ML19261C385
| ML19261C385 | |
| Person / Time | |
|---|---|
| Site: | Sterling |
| Issue date: | 10/19/1978 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| Shared Package | |
| ML19261C376 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 7903220366 | |
| Download: ML19261C385 (27) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION
)
In the Matter of
)
i ROCHESTER GAS AND ELECTRIC CORPORATION, et al.
)
Docket No. STN 50 485
)
(Sterling Power Project Nuclear
)
Unit No.1)
)
)
ORDER The Comission has decided not to review the decision in ALAB-502 However, by so doing we do not intend to express an opinion on the Appeal Board's verbal reformulation of the obviously superior standard.
In our recent Interim Policy Statement on General Rulemaking to Improve Nuclear Power Plant Licensing NRC staff proposed several candidate issues for generic rulemaking including Alternative Siting Methodology and Information Requirements.
43 Fed. Reg. 58377, 58379 (1978).
If rule-making is conducted on this issue, staff expects it, to result in clarification of the obviously superior standard. The period for public comment on candidate issues for generic rulemaking expires February 12, 1979.
Consequently, we believe it would be premature to express our opinion now on the Appeal Board's interpretation of the obvious superiority standard.
7 903 22 0 3GG
2 It is so ORDERED.
For the Comission.
SAMUEL J. CHILX Secretary of the Comission Dated at Washington, D.C.,
this day of January,1978.
\\\\~ mill %
UNITED STATES OF AMERICA 8/
d N 37 $
NUCLEAR REGULATORY COMMISSION gf1o 3 6
g,f.g,,g
.,1 ATOMIC SAFETY AND LICENSING APPEAL BOARD
.g S
Ci Alan S. Rosenthal, Chairman N'
Dr. John H. Suck Richard S. Salzman SERVED OCT 2 0 STS
)
In the Matter of
)
)
ROCHESTER GAS AND ELECTRIC
)
Docket No. STN 50-485 CORPORATION, et al.
)
)
(f.terling Power Project
)
Nuclear Unit No. 1)
)
)
Ms. Sue Reinert and Dr. Helen Daly, Oswego, Ne'- York (with whom Ms. Ruth Caplan was on the brief) for the intervenor," Ecology Action of Oswego.
Mr. Lex K.
Larson, Washington, D.C.
(with whom Messrs. Edward L. Cohen and Arthur M.
Schwart stein were on tne crief) for the applicants, Rocnester Gas and Electric Corporation, et al.
Mr. Stephen M. Schinki (with whom Messrs. Edwin J. Reis and Auburn L.
Mitchell were on the brief) for the Nuclear Regulatory Commission staff.
DECISION October 19, 1978 (ALAB - 502 )
On August 26, 1977, the Licensing Board rendered an initial decision authori=ing issuance of a construction permit for the Sterling Power Project, Nuclear Unit No. l. --1/
1/
The Scerline facility is co ce owned 'cv Rochester Ias 5
^
Electric CcEporation (28%), Central Eudsen Gas & Ilectric Corporation (17%), Orange and Reckland Utilities, Inc. (331) and Niagara-Mohawk Power Corporation (223) (Safety Ivaluation Report, Supp. No. 1, 520.1).
Rochester has full respcnsi-bility for the construction, cperation and licensing of the facility (id., 31.1).
s LSP-77-53, 6 NRC 350.
The facility is to be located on the south shore of Lake Ontario, in the town of Sterling in Cayuga County, New York, approximately 8 miles southwest of Oswego and 30 miles northwest of Syracuse (FES, 52.1).
Exceptions to the decision were filed by intervenor 2/
Ecology Action of Oswego and by the applicants.
Addi-tionally, at various times during the pendency of the appellate proceedings, Ecology Action filed with us motions to recpen the record on such discrete issues as (1) the need for the power to be generated by the Sterling facility;--3/
(2) the environmental costs associated with releases of radon (Rn-222) in the mining and milling of uranium;--4/
(3) whether the facility should 'ce located at some other site;--5/
and (4) the availability and cost of the uranium necessary 2/ Ecology Action participated below as a joint inter-venor with Sharon Morey, an individual.
Ms. Morey has not joined in the appeal.
As used in this opinion with reference to the proceedings before the Licensing Board, the term " Ecology Action" embraces both that intervenor and Ms. Morey.
_3,/ Motions dated October 24, 1977 and April 28, 1978.
_4,/ Motion dated March 15, 1978.
Cn April 28, 1978, Ecology Action filed a " Renewal and Supplement" to this motion.
Subsequently it filed several othar requests respecting the " radon" question.
_5/ Motion dated March 22, 1978.
On August 3, 1978, Ecology Action filed a supplement to this motion.
3-to fuel the reactor over its projected lifetime.--6/
With respect to the second and third of these subjects, on -
Aprii 28, 1978 Ecology Action moved to suspend the effec-
' lieness of the construction permit--7/
t to await the outcome of its appeal.
In an unpublished order entered on May 5, 1978, we declined to grant that relief, noting (inter alia) that the applicants had represented to us that, ;in - any event,. _- -
they did not intend to commence construction prior to the -
fall of 1978.
We directed, however, that, pending our final decision on the various exceptions, the applicants provide ---
us with at least ten days' written notice prior to the com -
8/
-~
mencement of any construction activities.
By letter dated July 21, 1973, the applicants advised us that ccmmencement of construction had been deferred until the fall of 1980, with the scheduled date of commercial service deferred until the spring of 1988.
In this opinion, we reach and decide all matters before us except for need-for-power and radon releases.
For the following reasons, decision on those two issues is being deferred:
_6/ Motion dated April 28, 1978.
_7,/ The permit (No. CPPR-156) issued on September 1, 1977.
See 42 F.R. 45722 (September 12, 1977).
_8/ Ecology Action unsuccessfully sought Cc= mission review of our May 5 order.
Thereafter, it sought judicial review of that order; that action is still pending.
Ecologv Action of Oswego, New York v. NRC, D.C. Cir.
No. 78-1355.
1.
In its motions seeking a reopening of the record on the need for Sterling-generated electricity, as well as in its exceptions addressed to that question, Ecology Action placed heavy reliance on various reports which purportedly counter the Licensing Board's findings respecting when that need will arise.
More particularly, in its April 28, 1978 filing (see fn.
3, supra), Ecology Action brought to our attention the report submitted earlier that month by the New York Power Pool pursuant to the requirements of the New York Public Service Law (ccmmonly referred to as a "Section 149-b" report).
According to Ecology Action, that report reflected a reduced projected demand growth in the applicants' service areas, as well as the likelihood that, even in the absence of Sterling, excess generating capacity would be available in 1984.--9f In granting in January 1978 the requisite state certifi-cate of environmental compatibility and public need for the Sterling facility, the New York State Board on Electric Generation Siting and the Environment (siting board) had concluded that, without the addition of Sterling or a fossil-fuel alternative to it, a deficiency in generating capacity was likely in 1986. In the wake of the Section 149-b report rendered in April, and alluding specifically to it, the siting board
_9/ The Licensing Board found that Sterling power would be needed in that year.
See 6 NRC at 379.
entered an order en May 4 which directed a " limited reopen 1ng on the issue of public need for the" Sterling facility (order p. 10).
To date, insofar as we have been informed, the siting board has not rendered its determination on this reopened issue.
We are, of course, under no legal compulsion to withhold our own decision on the need-for-power question to await the siting board's ruling.
But it appears to us that little useful purpose would be served were we now to undertake a duplication of the inquiry being made by the state body into the significance of the disclosures in the Section 149-b re-port.
We have been given no cause to believe that the siting board -- which has among its members a representative of the New York Public Service Commission -- lacks either the ca-pability or the willingness to explore the matter thoroughly and to make an informed judgment on it.
Beyond that, our understanding is that Ecology Action is a party to the state proceeding; thus it is in a position to put forth in that proceeding the same considerations it has pressed upon us in support of its challenge to the applicants' clai.7s respecting when Sterling power will be needed.
10/
-~
In its Vermont Yankee decision last April, the Supreme Court noted that "[t]here is little doubt that under the Atcmic 10 / Ver=ont Yankee Nuclear Power Corp. v. Natural F.esources Defense Council, 435 U.S.
55 L. Ed 2d 4 60,
~
~~
483 (1978).
~~
. Energy Act of 1954, state public utility ecmmissions or similar bodies are empowered to make the initial decisien regarding the need for power".
435 U.S. at
, JB L. Ed 2d at 483.
Although, to be sure, this Ccemission's responsibilities in this sphere have their primary roots in the National En-vironmental Policy Act rather than the Atcmic Energy Act,--11/
we even more recently expressed the view that NEPA does not foreclose "the placement of heavy reliance upon the judgment of local regulatory bodies which are charged with the duty of insuring that the utilities within their jurisdiction fulfill the legal obligation to meet customer demands."
Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, 4 ), ALAB-4 9 0, 8 NRC (August 23, 1978) (slip opinion at 14).
Granted, -- unlike state utilities cc= missions such as the one involved in Shearon Harris -,the siting board as such may not have that duty.
But, especin11y in light of the New York Public Service Ccemission presence on it, no less than a public utilities cccmission the siting board can "be expected to pcssess considerable familiarity with the primary factors bearing upon present and future [ electricity}
demand * * * ".
_Id_. at s _. (slip opinion at 13).
This being 11/ "'Need for pcwer' is a shorthand expression for the
' benefit' side of the cost-benefit balance which NEPA mandates for a proceeding considering the licensing of a nuclear pcwer plant".
Public Service Co. of New Hampshire (Seabrcok Statir;n, Units 1 and 2), ALA3-422, 6 NRC 33, 90 (1977).
. so,- we have little hesitancy in carrying over to this case
.. _ the conclusions reached in Shearon Harris wit.1 regard to the deference which appropriately may be given to need-for-power determinations by state agencies.
In this connection, in the particular circumstances confronting us, it is of no moment that in Shearon Harris, unlike here, the ultimate state determination had already been made by the time that the NRC licensing proceeding had reached the adjudicatory stage.
Apart from all other con-siderations, as previously noted the applicants do not propose to start building for another two years.
By. that time, both the siting board ruling and our own need-for-power decision in the wake of it should be in place.
Stated otherwise, al-though in many situations a deferral of one licensing body's decision to await that of another might cause prejudicial delay, we perceive no significant risk of that happening in this instance.
Once the siting board has ruled, we will expect the applicants premptly to bring it.s decision to our attention.
Should the decision be adverse to the applicants (and not overturned on any subsequent judicial review which might be available), that most likely would be the end of the matter.
.W e
e For, according to our understanding of New York law, the grant by the siting board of a certificate of environmental ccmpati-bility and public need is a condition precedent to plant con-struction no matter what this Commission might conclude re-garding the need for the plant.--12/
On the other hand, if the applicants prevail before the siting board, the Shearon Harris principles will come into play.
That is to say, the need-for-power findings and conclusions of that board will be given great weight by us unless shown to " rest upon a fatally flawed foundation."
ALAB-490, supra, 8 NRC at (slip opinion at 13-14).
Cf. Seabrook, ALAB-422, supra fn. 11, 6 NRC at 69-71, affirmed on this point, CLI-78-1, 7 NRC 1, 23-28 (1978),
affirmed sub nom. New England Coalition on Nuclear Pollution v.
- NRC, F.2d (Nos. 77-1219 etc.,1st Cir., decided August 13/
22, 1978) (slip opinion at 16-19).'--
2.
For its part, the issue relating to the environmental effects of radon releases in the mining and milling of uranium is " generic" in character in the se.2se that it applies ecually to all reactors.
Nonetheless, it is under current consideration in a large number of individual licensing proceedings as a 12/ There has, of course, been no federal preemption insofar as determinations respecting need for the nuclear facility are concerned.
13/ We assume that the siting board's decision will develop in some detail the basis for whatever conclusions the
~~
board may reach.
Such-development is a condition pre-cedent to our giving deference to those conclusic;s.
-g-result of the Commission's amendment of Tabre S-3 of 10 CFR
~
- ~
1 Part 51 to delete the value assigned in the~ table to radon
~ his action was releases.
43 F.R.
15613 (April 14,1978).
T taken because that value had been found to be incorrect.-
In ordering the deletion, the Commission further directed that
.the radon issue be examined or re-examined in a11 pending proceedings without reference to the discredited value.
In implementation of the Commission's instructions, we established procedures for dealing with the radon issue in cases such as this one.
See Philadelphia ' Electric -Co.
(Peach Bottom Atomic Power Station, Units 2 and 3), et al_., ALAB-480, 7 NRC 796 (May 30, 1978).
Those procedures are being followed but as yet have not reached the culmination point; hence we put the radon issue to one side in this case until that time.
We now turn to the issues which are ripe for decision at this time.
I.
The evaluation of alternatives to a proposed nuclear f acility mandated by Section 102 (2) (C) (iii) of the National Environmental Policy Act, 42 U.S.C.
433 2 (2) (C) (iii), has been characterized as "the ' linchpin' of environmental
10 -
14/
analysis".
One important ingredient of this evaluation is the " obligation to consider possible alternative sites" for the proposed reactor.
Seabrook, CLI-77-8, supra fn. 14, 5 NRC at 522.
The alternate site issue was sharply contested in this case, and aspects of the Licensing Board'.s decision are challenged on appeal by both Ecology Action and the applicants.
A.
Information concerning alternate sites was provided by 15/
-~
the applicants, both in their environmental report and at 16/
the hearingT The staff analyzed this information as well as 17/
~-
site data of its own.
Although several claims relating to the alternate site inquiry were presented to the Licensing Board, what the appeals call upon us to consider is that Board's treatment of the applicants' choice of Sterling over one specific site -- identified as "Ginna" -- of the several possibilities examined.
14/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 522 (1977), citing Monroe County Conservation Society, Inc. v. Volpe, 472 F.
2d 693, 697-98 (2d Cir. 1972),
See also Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-479, 7 NRC 774, 778-79 (May 30, 1978 ) ; Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAE-462, 7 NRC 320, 338 (March 9, 1978).
15/ ER, 29.2.2.
---16/ Testimony of Robert J. DeSeyn on contentions 11, 123, fol.
Tr. 868; testimony of Michael J. Hess on contention 12D, fol. Tr. 935.
17/ PES, 59.1.2.2; Supplemental Testimony of Martha S. Salk on contention 12D, of Dino C.
Scaletti on contention 12C, of Arvin S. Quist on contention 12A and 123, of Mr. Scaletti on contention 113.2, and of Messrs. Quist and Scaletti on contention 11A, all fol. Tr. 1296.
The applicants and staff also presented testimony comparing the Sterling and Ginna sites assuming closed-cycle cooling were used at each. Appl.
Exh. 8, as revised May 16, 1977; NRC Staff Supplemental Testimony - Alte,r,nate Sites, by Dino C. Scaletti, fol. Tr.
a-2
As earlier noted, the Sterling site is en the south shore of Lake Ontario, approximately 8 miles southwest of Oswego (FES, 52.1).
Although also on Lake
. Ontario (FES, 39.1.2.2), the Ginna site is 35 miles to the. west of Sterling, near Rochester (ER, Fig. 2.9-2). It now houses a 490-MNe nuclear reactor which is operated by Rochester Gas & Electric Company, one of the Sterling applicants (FES, p. 9-10).
Primarily for this reason, Ecology Action asserted below that the Ginna site should have been selected for this reactor rather than Sterling.
The Licensing Board carefully analyzed the various attributes of the two sites, with particular reference to those factors stressed by Ecology Action -- namely, trans-mission lines, aesthetics and land clearing requirements.
6 NRC at 414-16.--18/
Although the applicants and staff regarded.
the Sterling site's proximity to a proposed 765 kv transmission line as favoring use of that site, the Board agreed with Ecology Action that it should be given no weight in view of the then lack of local approval of the proposed line.
Id,. at 414.--19/
18/
The Board also examined Ecology Action's claim that the applicarts had rejected "scme sites' (not further identified) because they could not accenmodate two coal-fired plants which the applicants had ence planned for the Sterling site (in addition to the nuclear unit) but had since postponed indefinitely. 6 NRC at 413. The Board found other reasons why each site had been rejected.
Id. at 414-15. Ecology Action has not reasserted this claim Eefore us.
19/
Ne have not been apprised by the parties of any further developments with regard to the approval of the line; presumably, it is still under review.
On the score of aesthetic effects, the Board found the differences between the two sitas to be " slight".
Although taking account of the intervenor's thesis that a "second unit at Ginna would blend with the first and thus provide less visual impact," the Board balanced against it tLe con-sideration "that the Ginna site is smaller and flatter, with less natural cover and that the rolling hills and vegetation around Sterling wculd reduce the visual impact of the plant from a landward direction". S/ Id. at 415. As for the impact upon the terrestrial environment, the Board deter-mined that there was scme advantage to the Ginna site. Id. at 416. This stemmed _from.the fact that fewer acres would have to be cleared (150 as opposed to 201 in the case of Sterling).
The Board noted, however, that the trees which would be removed at Sterling "are not unique tc the region since mature hardwoods are relatively common in the area along the southern shore of Lake Ontario". Ibid. It Jalso found that the wooded swamp on that site would be only " minimally affected" by the project.
Ibid.
Going beyond these environmental comparisons, the Board undertook an economic analysis which produced the conclusion that it would cost roughly the same amount to 20/ Cur own visit to the two sites bore out the accuracy of the Board's summary of the terrain of each.
13 -
build, operate and decommission the reactor whether located at Ginna or Sterling -- assuming that no weight were given
~
the substantial transmission line cost differential in Sterling's favor should the proposed line in the' vicinity of that site be approved.
6 NRC at 417-18.
This equiv-alence -- taken in conjunction with the slight environmental advantage which it thought that Ginna possessed -- led the Board to join in Ecology Action's concern respecting the commitment of a " virgin" site such as Sterling to power generation when another site already so committad was avail-able.
Id. at 418.
But the Board then went on to find that a change in site from Sterling to Ginna would result in a two and one-half year delay in the completion of the plant, that the power provided by Sterling would be needed in 1984, and that beginning in that year an additional amount in excess of $100_million annually would have to be expended to obtain replacement power from some other source.
Ibid.
Becauce of these factors, the Board concluded that " Sterling is the preferred site for economic reasons".
Id. at 419.
It added:
If, however, a delay of two or more years were to occur in the beginning of construc-tion of Sterling, then a reevaluation of site--
selection must be given serious consideracion.
Ibid.
B.
Ecology Action and the applicants each take issue with the Board's reso3ution of the Ginna-Sterling alternate site question -- alth.: ugh, not surprisingly, on different grounds.
14 -
The intervenor claims that the Licensing Board's finding of environmental preferability of the Ginna site must perforce control the resolution of the site issue and that it was impermissible for the Board to have founded its ultimate con-clusion on the " coat of delay".
We are told that this is at least so where, as assertedly is true here, there is available
" sufficient power to absorb the delay without jeopardizing the public interest in having sufficient electricity".
On the other hand, the applicants maintain that the record demonstrates the environmental preferability (or at least equivalence) of the Sterling site and that the choice of that site should have been ratified for that reason.
Further, they urge that the Licensing Board relied on an incorrect legal standard in conducting its site evaluation.
For these reasons, they would have us countermand that Board's suggestion that there be undertaken a reevaluation of the sites should there be a delay of two or more years in the commencement of construction -- an eventuality which, we have s een, has indeed materialized. 21/
21/ Although the applicants have filed exceptions with respect to the Licensing Board's alternate-site conclusions, we have serious doubt regarding their right to do so.
Excep-tions may not be filed unless a party is aggrieved by the result reached below.
Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-157, 6 AEC 858 (1973);
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-282, 2 NRC 9 (1975).
Eere, the applicants do not challenge the site choice endorsed by the Licensing Board but, rather, the route chosen by the Board to reach its result.
Although they do seek to abrogate the site-reevaluation suggestions of that Board, those suggestions appear to be hortatory rather than mandatory and, indeed, gave rise to no construction permit condition.
For that reason, tennmunme enum rvrwn nu urvm onces
~~ Our consideration of these ccmpeting claims persuades
~
us that the Board below used the wrong standard in making its site comparison but that, under the correct one,the approval of the Sterling site was called for and there is no warrant for a further comparison of the Sterling and Ginna
- (or any~ other) sites.
1.
The standard to be used by a licensing board in evaluating alternate sites derives from the Ccmmission's Seabrook decision, CLI-77-8, supra, 5 NRC at 522-536.
- There, the Commission described the lengthy and thorough review given proposed sites for nuclear power plants, commencing long prior to the adjudicatory consideration of site-related issues and involving not only the NRC staff but, as well, other interested governmental agencies and the general public.
It contrasted this extensive review with the necessarily more limited analysis which reasonably can be accorded to possible alternative locations for the reactor -- noting that "[c]cemon sense teaches that the more closely a site is analyzed, the more adverse environmental impacts are likely to be discovered".
5 NRC at 529 (fn. omitted).
It also pointed to the inherent imprecision of cost / benefit analysis and the " wide margin of uncertainty" attendant upon any' evaluation of a carticular site.
21,/
(FCCTNCTE CONTINUED FRCM PRFVIOUS PAGE) we dismiss the applicants' exceptions.
Their brief in succort of those excections has, however, been censidered hv'us in connection w'ita our assessment of Ecology Action's
^
site--ccmparison exceptions.
See Midland, ALAB-282, supra, 2 NRC at 10, fn. 1.
Id. at 528.
Because of these two " realities of the NEPA process" (ibid.), a proposed site I..
r be rejected in favor of an alternative not when the alternative is marginally "better" but, rather, only when it is "obviously superior",
Id at 530.
Moreover, in determining whether a particular alternate site is obviously superior, actual costs of com-pleting a facility at that site may be cc..sidered.
Id.
at 530-36.
The Commission's "obviously superior" standard for evaluating alternate sites has now been expressly upheld by the Court of Appeals for the First Circuit.
New England, Coalition on Nuclear Pollution v. NRC, supra, F.2d at (slip opinion at 13).
In doing so, the court of appeals stressed that " * *
- NEPA doe s.not require that a plant be built on the single best site for environmental purposes. All that NEPA requires is that alternative sites be considered and that the effects on the environment of building the plant at the alternative sites be carefully studied and factored into the ultimate decision".
I d,.,
F.2d at (slip opinion at 13-14). The court also approved the Commission's determination to take actual facility completion costs into account in evalua-ting alternatives, terming it a " realistic way of dealing with
. 22/
existing circumstances."--
I d,.,
F.2d at (slip opinion at 14).
2.
Application of this standard mandates rejection of Ecology Action's assertion that the Licensing Board was re-quired to disapprove use of the Sterling site given its findings that the Ginna site is marginally preferab1e.
Equally unavailing is the claim that a licensing board may not properly take into account the costs of any replacement power which might be required by reason of the substitution at a late date of an alternate site for the proposed site.
Such costs appear to be as much e ' cost of completion" as those 23/
associated with pouring concrete or purchasing lanc! The only 22/ The court did express some concern that this practice might weight the Commission's determinaticn in favor of an applicant's chosen site, particularly where con-struction commences prior to the agency's final de-cision on the alternate site question.
Because the start of Sterling construction is deferred for at least another two years, that eventuality is not likely to materialize in this proceeding.
23 / We do not new consider whether, in point of f act, replace-ment power would be required were the Ginna site now to be substituted for Sterling.
As seen, the Licensing Board's findings respecting such pcwer were founded on its conclusion that the nuclear facility would be needed in 1984 to meet power demands existing at that time.
It is now clear that the facility will not be on-1ine by 1984 even if built at the Sterling site.
Beyond that, we have deferred decision on the correctness of the need-for-power findings below.
All that we hold hare is that, assuming that there is a sufficient factual basis for con-cluding that the delay attendant upon a switch in sites will necessitate the acquisition of replacement pcwer, the cost differential between that pcwer and the power which would have been generated by the proposed facility may be factored into the alternate site comparison. Whether in the particular case there will be occasion to do so,
-however, will depend upon the cutccme of the environmental analysis.
See p.
24, infra.
. substantial question now before us is one which the Licensing Board did not answer -- i.e., whether, on the basis of the record, Ginna is sufficiently better than Sterling to be adjudged "cbviously superior".
We conclude not.
The princip3?. advantage of Ginna cbvicusly is the pre-sence there of an existing reactor.
That factor is signifi-cant but not dispositivs.- Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-479, 7 NRC 774 (1978); Florida Power and Light Co. (St. Lucie Nuclear Pcwer Plant, Unit No. 2),
ALAB-355, 3 NRC 830 (1976). "(B]uilding a second nuclear plant next to an existing one is not always the most favorable solution".
Pilcrim, supra, 7 NRC at 789.
hd the possibility that it will not be is enhanced where, as here, the existing plant was built in the 1960s and is vastly different from the pro-posed unit, with the consequence that there is little potential 24/
for the two units to share cccmon facilities or equipment.
The various environmental attributes of the two sites25/
centrol whether Ginna is 'abviously supericr" to Sterling.
2J/ See, e_.c.,
" Applicant's Response to Board Inquiry on Cost Review of the Proposed Nuclear Unit at Sterling and as a Second Nuclear Unit at Ginna", fol. Tr. 2445.
25,/ Unless environmental preferability of an alternative is demonstrated, the cost comparisen beccmes irrelevant.
Consumers Power Coreanv (Midland Plant, Units 1 and 2),
ALAB-458, 7 NRC 155 5 1-62 (1978)._
As earlier noted, the Licensing Board thought the two sites to be essentially equivalent except that use of Ginna would in-volve the clearing of only 150 additional acres (in contrast to the 201 acres which would have to be cleared at Sterling).
In assessing the environmental harm associated with land clearance, one must look at what is being removed frcm the site and not iust at how many acres are involved.
"It does not follow as night the day that every inch of ground spared from a power plant or transmission facilities is so much parkland preserved."
Pilgrim, ALA3-479, supra, 7 NRC at 787.
In this regard, the Licensing Board found:--26/
Thirty-three acres of mature beech maple forests will be cleared at Sterling, which amounts to a loss of 64% of the remaining mature beech maple forests on the site.
At Ginna, 9 to 15 acres of intermediate-to-mature hardwoods would be cleared.
Ibid.; Tr. 937-38.
Therefore, in terms of the number of acres of natural ecmmunities to be cleared, the impact would be less at Ginna than at Sterling.
Ecwever, the habitats which will be cleared at Sterling are not unique to the region since mature hardwcods are relatively common in the area along the southern shore of Lake Ontario.
Salk Centention 12D Testimony at p. 1; Tr.
1352-1353.
We were told at oral argument by Ecology Action that one of the prime disadvantages of the Sterling location is that its use would mean the destruction of a large hardwood forest along Lake Ontario
( App. 3d. Tr. 23-32).
That is somewhat of an 20/
6 SRC at 416.
. overstatement.
As earlier noted, the Licensing Board found the trees to be removed not to be "unicue" and mature hard-woods to be "relatively common" in the area.
The witnesses cited by the Licensing Board as advancing this proposition clearly did so, and Ecology Action has presented no contrary claim to us (App. Bd. Tr. 29).
Moreover, our own inspection of the site left us with the firm impression that it is popu-lated essentially with second or third growth trees -- not unattractive but scarcely differentiable frcm the substantial number of other trees in the general area.
It is undoubtedly true that, as was stressed by Ecology Action during the oral argument (App. Bd. Tr. 29-30), once construction were to be commenced on the Sterling site members of the public no longer would have access to it.-- as they apparently do now -- for such recreational purposes as strol-ling along the edge of the lake among the trees.
But that consideration hardly serves to defeat the applicants' proposal to use the site for a nuclear plant.
Ecology Action attaches insufficient significance to the fact that the site is cwned by the lead applicant, Rochester Gas and Electric, which acquired it for the purpose of building some type of pcwer plant on it.
The public now enjoys its use not as of right but, rather, because that company has chosen to allow such use.
At any time, the ecmpany presimbly could foreclose ft.'ruher
.. public use -- irrespective of whether either a nuclear plant were built on the site or (as seems likely should the Sterling proposal fail) the site were cedicated to some other project.
In these circumstances, the public use factor _cannot be weighed
' heavily against the Sterling site on the !! EPA scales.. Indeed,. :
if a landowner's voluntary choice to permit public access to its property were deemed to provide a possible obstacle to its own future use of that property for seme other purpose, the almost certain consequence would be that such permission would never be forthcoming.
This assuredly would further no one's interests.
Ecology Action also has renewed befcre us its argument below that aesthetic considerations dictate the selection of Ginna over Sterling.
We see no reason, however, to disturb the Licensing Board's finding to the contrary.
More specifi-cally, our own inspection of the two sites confirmed what the Board found the record to establish (see p.12, suora) :
that each site has certain advantages and disadvantages from Cie standpoint of minimizing aesthetic effects and that, on balance, the difference between them is slight.
Finally, Ecology Action asserts the possibility that an existing swamp on the Sterling site might be seriously disturbed by construction and operation of the plant.
t It dces not take issue with the finding belcw that only one acre of the 179-acre woeded swamp would unavoidably be altered due to construction (6 MRC at 416) ; instead, its challenge goes to the further finding that the applicants will take steps to protect the remainder of the swamp area and thus that area will be but minimally affected by plant construction and cperation (ibid.).
Specifically, Ecology Action points to the potential effect of oil, salt and dust en the swamp and expresses doubt that the proposed mitigative measures will be successful.
When closely questioned at oral argument, hcwever, Ecology Action was unable to point to any evidence establishing that permanent damage to the swamp likely would eventuate or that the applicants' mitigative measures would not succeed (App. Bd. Tr. 27-28).
And our independent review of the record has turned up no evidence which wculd undercut the Licensing Ecard's conclusions on the matter.
In that connec-tien, it is worthy of note that the undertaking of mitigative measures, as spelled out in E4.5 cf the Final Environmental Statement, is expressly made a constructien-permit condition and that the Licensing Board also imposed the following further condition:
If unexpected harmful effects er cvidence of sericus damage are detected durine plant construction, the Applicants shall provide te the Staff an acceptable analysis of the problem and a plan of action to eliminate or significantly reduce the har=ful effects or damage.
6 NRC at 434.
Given the absence of anything to suggest that this condition might not be capable of fulfillment, we think it to provide a sufficient coasure.of dditional protection for the swamp area.
3.
We earlier referred to the Commission's recognition
- of the " imprecision of cost / benefit analysis" and the " wide margin of uncertainty" inherent in any site evaluation (see p.
15, supra).
As the Commissicn has explained:
- *
- in the nuclear licensing context the factors to be compared range from broad con-cerns of system planning, safety, engineering, economic and institutional factors to environ-mental concerns, including ecological, biological, aesthetic, sociological, recreational, and so forth.
Much of the underlying cost-benefit data is difficult of articulation, much less quantification.
Seabrook, CLI-77-8, supra, 5 MRC at 528.
These observations ring true as applied to the evaluation of the two sites in issue here.
Indeed, were we called upon to determine on the record brought to us which site was on balance the best choice from an environmental standpoint, our task would be a most difficult one.
Fortunatelv, however, we need not make that determination.
All that we must decide is whether Ginna is "obviously" -- in other words, clearly and substantially -- superior to Sterling.
In our judgrent, in light of the record evidence discussed above (taken in
conjunction with the fruits of our own examination of the 27/
~~
rites), that question requires a negative answer.
This being so there will be no need for the staff to pirsue the Licensing Board's suggestion -- and it was no more than that (see fn. 21 suora) -- that the selection of the Sterling site be reevaluated if the commencement of construction were delayed for two years or more.
As we have seen (see p. 13, suora), that suggestion flowed from the Licensing Board's approval of the Sterling selection solely on the basis of the costs of delay entailed in trans-ferring the plant to the Ginna site.
Our holding that the Sterling site should have been approved on the quite different basis that Ginna is not "obviously superior" fron an envi-ronmental standpoint eliminates, however, any occasion to consider further, now or in the future, the delay cost factor.
See Seabrook, CLI-77-8, sup ra, 5 NRC at 533-36, 27/
The preceding discussion presupposed that, whether located at Sterling or Ginna, the facility would employ a once-through cooling system (as proposed by the applicants).
As its decision reflects, how-ever, the Licensing Board also compared the two sites on the assumption that a close-cycle cooling system ultimately will be required by the Environmental Protection Agency at both locations.
6 NRC at 352, 428-29.
The Board found that that assumetion did
~
not call for an alteration of the conclusions it had reached on the basis of the once-throuch cooling system premise.
Id. at 429.
Ecology Action does not challenge this fin 21ng and our independent examination of the record convinces us as well that the choice of cooling systems is an essentially neutral factor insofar as the comparison of these sites is concerned.
Accordingly, our conclusion on the alternate site issue should be taken to apply without regard to which type of ecoling system were to be employed as a result of IPA action.
II.
Ecology Action has advanced several other claims on
~ ~
its appeal.
Upon careful examination, we have found them 28/
sufficiently insubstantial to be unworthy of discussion!-
Suffice it to say that most of the claims go to factual matters and the record manifestly provides adequate support for the Licensing Board's findings on the particular point 29/
~~
~-
in issue.
What that leaves is the staff's unopposed request that the second paragraph 209 of the initial decision, 6 NRC at 423, be amended.
In that paragraph, the Board set forth the calculations made by the staff with regard to the potential radiation consequences shculd truck ship-ments of spent reactor fuel be subjected to acts of sabotage.
It concluded the paragraph with the following findings:
These calculatiens do not take into account any protection likely to be afforded by buildings or evacuation of the endangered area.
It is believed, however, that these factors would have a mitigating effect, reducing expected consequences substantially.
The same is true of the motion to reopen the record on 28/
the cost and availability of uranium, which we hereby deny.
29/
Review cn our cwn initiative of the portions of the Licensing Scard's decision not brought to us by way of appeal has likewise disclosed no error belcw requiring corrective action.
These findings were an accurate reflection of the prepared testimony of staff witnesses Kasun and Hodge (following Tr. 3646 at p. 7).
The staff now tells'us, however, that the testimony was partially in error.
In point of fact, the calculations took into account the shielding effects of buildings (albeit not the evacuatien f actor).
Although the staff acted responsibly in calling to our attention the error, we find no need to go beyond noting it for the record.
The calculated releases as set forth in the second paragraph 209 are indeed small.
And the record establishes that evacuation procedures (not factored into the calculations) would reduce those releases by an order of magnitude.
Kasun-Hodge Testimony, supra, at p. 7.
In these circumstances, there is contin-uing validity to the ultimate finding of the Licensing Board that, if an act of sabotage should cccur, the radia-tion releases would be small and would not constitute a 30/
major threat to the public health and safety!~
30/
Para. 211, 6 NRC at 423.
On the basis of the foregoing:
The Licensing Board's August 26, 1977 decision is
~
affirmed on all issues except need-for-power.and the environia. ental impact of radon releases arising frcm the 31/
mining and milling of uraniumi'~ jurisdiction is retained over those issues.
It is so ORDERED.
FOR THE APPEAL BOARD m & f /0s.i h Margpret E. Du Flo Secretary to the Appeal Board 31_/ As seen, however, the affirmance of the result reached on the alternate site issue is on grounds other than those assigned by the Board below.
..