ML19289C019

Petition for Review of ALAB-502,handed Down by Aslab on 781019,by Ecology Action of Oswego.Asserts That Adoption of Decision Would Violate Nepa,That the ASLB Should Not Have Been Overruled & That ASLAP Violated Procedures

ML19289C019
Person / Time
Site:	Sterling
Issue date:	11/06/1978
From:	Caplan R, Reinert S ECOLOGY ACTION OF OSWEGO
To:
References
NUDOCS 7811210467
Download: ML19289C019 (6)

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Rochester Gas & Electric Corp. et al. ) s #. STN 50 485

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Sterling Power Project Unit 1 )

FETITION FOR Ravizw ,

Ecology Action of Oswego petitions the Commission to review the decision of the Atomic Safety and Licensing Appeal Board of October 19, 1978 (ALAB-502). This petition is brought under 10 CFR 2 786.

The Appeal Board's decision affirmed all findings of the Licensing B oard in Granting a construction permit for the Sterling Project on August 26, 1977, except for two issues that were deferred:

need for power and the impacts of uranium mining ind millin 5 (radon).

It thus rejected all o ther matters raised by intervenor in excep-tions to the initial decision and in motions filed on March 22, 1978, April 28, 1978, and August 5, 1978.

We ask the Commission to review three matter contained in the October 19 Appeal Board decision:

1. The Board's finding that the Ginna alternative site is not obviously superior to the Sterling location.

2. The Board's finding that there is no need to reconsider the choice of Sterling over Ginna even though a four-year delay in the in-service date for the plant has materialized.

3. The Board's rejection of intervenor's other objections as .

insubstantial, particularly in respect to: 7811210447, ,

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a. EA's request for a remand for reconsideration of alterna-tives to Sterling and the cost of the project in view of the

applicant's announced four-year delay of the plant. -

b. EA's motion to reopen the record on the availability and cost of uranium,

c. EA's exception to the Licensing Board's refusal to allow the intervenor to supplement Table S-3, the impacts of the uranium _

fuel cycle.

These matters have all been raised previously before the Appeal .

Boar'd either in exceptions to the Initial Decision or in the Motions cited above.

Point One. Board finding that Ginna is not obviously superior.

1. The Appeal Board has misinterpreted the "obviously superior test. In Seabrook, the Commission made it clear that the purpose of the "obviously superior" test was to avoid reaching an erroneous decision due to the imprecision and possible error inherent in cost / benefit analysis when choosin5 between the primary and alternate sites. Thus the test is that the alternate site must .

be cisarly established as the environmentally preferable site.

Instead of applying this test, the Board argues that the site must be greatly superior. This is a misinterpretation of the Seabrook decision and has caused the Board to err in not finding Ginna to be "obviously superior".

2. Adoption of Aopeal Board definition would violate NEPA.

If the Appeal Board defition of "obviously superior" as greatly superior were to be accepted by the Commission, then the NRC will have adopted a policy in clear violation of NEPA. The intent of NEPA is that agency decision-making should in f act result in choices which protect the environment, not merely that the agency be aware.

The Seabrook decision 'should ~.

of when it is harming the environment.

not 61slead the Commission in this regard, for court precedents such as Calvert Cliffs have upheld the action-forcing intent of NEPA.

3. The Licensing Board met the test of finding Ginna "obviously suoerior" and shouldnot have been over-ruled by the Appeal Board. It is true that the Licensin5 Board did not say, "The Ginna _

site is obviously superior." But the Licensing Board did find the Ginna site so much better than Sterling that, if not for the supposed cost of delay, it felt that reconsideration of the sites would not have been necessary. The virgin site issue was the crucial one.

The advantages of using an already developed site (Ginna) are not purely practical, as the Appeal Board seems to be saying (p. 18) when it downgrades the desirability of Ginna. The fact that the Ginna site is already committed to power generation is an environmental advant9Ee, and a substantial one, over a alte that is undeveloped.

The Ginna site has laready been impacted by an operating nuclear plant; the harm has been done. The Initial Decision says, in effect, that a very convincing argument must be made on other than environmental grounds before on commits a new, unharmed site to nuclear power instead of an existing plant site.

The Appeal Board never justifies its application of the Pilgrim decision to Sterling: of course, using an already developed site "is not always the most favorable solution," but why not in this case? The Board has not offered adequate support for its finding on Ginna, especially in view of the fact that the Licensing Board came to the opposite conclusion.

4 The Appeal Board imnronerly substitu;ed its own observ?-

tions and judgment for those of witnesses. The Ap1931 Board freely ,

substitutes its casual observations for those of witnesses in the .

Sterling hearing. The r6 cord is very clear that there are mature

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hardwood trees on the sterling site that will have to be cleared. 'Th,e Board ramarks on page 20, however, that "our own inspection left us with the firm impression" that Sterling "is populated essentially with second or third growth trees...." The noard cited "the fruits of our own examination of the sites" along with the record as the basis of its conclusion that Ginn9 is not obviously superior (pages 23-24).

Unless the Board can prove that the record is seriously in error or de fic ient , it is improper for,it to supplant the testimony with its own judgement.

Point Two. Board finding that delay does not require reconsider-ation of alternate.

Assuming that Ginna appears to be obviously superior to Sterling because it is a site already used for power generation, and given the fact that the applicant now plans an in-service date of 1988 rather than 1984, there is time to reconsider the site comparison without jeopar-31 zing power supplies. The National Environmental Policy Act's _._ _

purpose -- to foster decisions by governmental agencies that protect the environment -- requires such reconsideration.

Point Three. Board rejection of intervenor's other objections.

a. In papers filed on August 3,1978, we argued that the announced four year delay in the plant's service date would reasonably be expected to change the NEPA cost-benefit analysis an alternatives, and to increase the cost of the project. We said the alternatives to Sterling that would be available in the late 1980's would be different from those in the early 1980's, and we cited an announcement by the New York State Energy Office that it was preparing a power generation plan that would provide needed electricity without the consturction of any nuclear power plants. The Appeal Board ought to address itself to this argument.

b. In support of our motion to reopen the record on the cost and availability of uranium, we submitted documents prepared by one of the Sterling applicants, Niagara Mohawk. This information, prepared by Niagara Mohawk in connection with a NYS Public Service Co= mission hearing on its investment in a uranium mine, was in conflict with the testinony submitted by the applicant in the Sterling case.

It showed substantially higher uranium prices than were estimated by RG&E or the staff, and it indicated that Niagara Mohawk was concerned -

about the future scarcity of uranium. The applicant and staff testi-fled in Sterling that the uranium supply was adequate. Since Niagara Mohawk is an applicant in Sterling and the documents were briefs filed on its behalf, we think the new information raises substantial question about the Sterling record on this issue.

c. In our exceptions to the Initial Decision, we objected to being denied the right to supplement Table S-3 on the impacts of the uranium fuel cycle. We argued that the testimony of staff witness

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Gotchy on the health impacts of the nuclear fuel cycle versus those of the coal cycle went beyond Table S-3 Specifically Gotchy used source terms for uranium mining and for occupational exposure that are not included in the table. We were denied the opportunity to question Gotchy's Table S-3 source terms and to supplement Table S-3 ourselves on the ground that it was an impermissible challenge to the rules. We should have been given the same opportunity as the staff.

Conclusion. The Commission should review ALAB-302 because it presents an importan7 matter that could significantly affect the environ-ment. The petition directly concerns the comparison of alternate sites (Points 1 and 2) and the cost benefit analysis of alternatives _

generally (point 39). The consideration of alternatives is the -.

" linchpin" of environmental assessment under NEPA, as the Board says,. ,

with citation, in its decision. In fact this petition involves the very basis of how NEPA should be interpreted (Point 1).

The peition also raises two important procedural issues: the scope of the Appeal Board's authority to make independent factual -

find ings , and the implications of staff testimony of comparative health effects of coal vs. nuclear fuel cycles with regard to

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challenges to Table S-3 Respectfully submitted, Sue Reinert

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Ruth Caplan for Ecology Action of Oswego November 6, 1978 Copies served on all parties.

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