ML19289E722
| ML19289E722 | |
| Person / Time | |
|---|---|
| Site: | Sterling |
| Issue date: | 04/11/1979 |
| From: | Brenner L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7905290028 | |
| Download: ML19289E722 (11) | |
Text
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April 11, 1979 3y:
UNITED STATES OF AMERICA A*M4 NUCL" 3 REGULATORY COTEISSION
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BEFORE THE COMMISSION d
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7 In the Matter of
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ROCHESTER GAS AND ELECTRIC Docket No. STN 50-485
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CORPORATION, et al.
(Sterling Power Project
)
Nuclear Unit No.1) 1 NRC STAFF MEMOPANDUM PURSUANT TO THE COMMISSION'S ORDER OF MARCH 8, 1979 Introduction and Factual Backoround In its Order of March 8,1979, the Comission granted in part the petition O filed by Intervenor, Ecology for review of the Appeal Board's decision Action. The issue for review is whether, in the factual circumstances presen';ed by this proceeding, the Appeal Boa'rd correctly interpreted the Comission's standard for comparison of alternative sites--that the Applicant's proposed site will not be rejected unless there is an "obviously superior" alternative site.
It is the position of the NRC Staff that while there might be instances of both theoretical and real comparisons of alternative sites which present difficult questions of how far to push the outer bounds of the proper application of the obviou?'y superior standard, this case is not one of them.
In this proceeding, the factual findings by the Licensing
- Board, which were affimed by the Appeal Board in ALAB-502, establish SALAB-502, 8 NRC 383 (October 19,1978).
S nitial Decision, 6 NRC 350, 413-419 (1977).
I 2045 168 79052900A8
s that the alternative Ginna site advocated by Ecology Action, taking full account of the presence of a nuclear power plant at Ginna, is at best only environmentally marginally superior to the proposed Sterling site.S In these circumstances, the Appeal Board is correct that Ginna is not sufficiently better to be judged obviously superior to Sterling.
8 NRC at 394. Therefore, in the particular case at bar, the finding of the Appeal Board should be affirmed regardless of whether the Commission can envision circumstances not presented by this case where it would be uncomfortable applying the Appeal Board's "in other words" verbalization of the obviously superior test as clearly and substantially superior. 8 NRC at 397.
The factual findings on the comparison of the two sites were well-supported and explained by the Licensing Board, were affirmed by the Appeal Board and are not within the scope of the review granted by the Commission.
Full consideration was given to'the presence of an existing reactor at the alternative Ginna site.S The decisions of the Boards used somewhat different adjectives at different points to describe the environ-mental comparison of the two sites. However, the factual point repeatedly made in both decisions is that the environmental advantage that appears in comparing Ginna to Sterling is slight. S The Appeal Board, at 8 NRC 395, 3f e proposed Sterling site is in New York State on the shore of Lake Th Ontario, near Oswego.
The Ginna site, also on the lake about 35 miles west of Sterling, near Rochester, is the location of a nuclear power plant operated by the Rochester Gas and Electric Corporation, one of the Sterling Applicants. 8 NRC 391.
U 8 NRC 394-395.
/ e Licensing Board found, at 6 NRC 416, that "although comparison of Th the two sites is quite similar, a small advantage must be accorded the Ginna site on environmental considerations"; and again at 418 that
"... although the differences are small, the environmental comparison appears to favor slightly the Ginna site..." The Appeal Board correctly stated that Ginna was found by the Licensing Board:
to possess " slight environmental advantage" 8 NRC at 392, and to be " marginally preferable" 8 NRC at 394.
1945 169.-
has correctly sumarized the finding below that:
... the Licensing Board thought the two sites to be essentially equivalent except that use of Ginna would involve the clearing of only 150 additional acres (in contrast to the 201 acres which would have to be cleared at Sterling).
The adverse impact of this land clearing highlighted by both Boards was the clearing of trees that would be required--33 acres of mature beech maple hardwood forest at Sterling and 8 to 15 acres of intermediate-to-mature hardwoods at Ginna.
Both Boards went on to emphasize that the trees to be removed are not unique and that mature hardwoods are relatively common in the area.
6 NRC at 415-16; 8 NRC at 395-96. The Appeal Board similarly focused on the aesthetics and found support for the Licensing Board's conclusions that it could not say that visual impact of a second unit at Ginna would be less than the placement at Sterling. As it recounted the findings of the Licensing Board:S On the score of aesthetic effects, the Board
- found the differences between the two sites to be
" slight." Although taking account of the intervenor's thesis that a "second unit at Ginna vould blend with the first and thus provide less visual impact," the Board balanced against it the c.onsideration "that the Ginna site is smaller and flatter, with less natural cover and that the rolling hills and vegetation around Sterling would reduce the visual impact of the plant from a landward direction."20 [6 NRC] at 415.
b ur own visit to the two sites bore out the 0
accuracy of the Board's summary of the terrain of each.
- 8 NRC at 391.
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4-S The Appeal Board itself concluded, after viewing the sites:
... each site has certain advantages and disadvantages.
from the standpoint of minimizing aesthetic effects and that, on balance, the difference between them is slight.
In sum, then, to find that the Appeal Board improperly applied the Comission's standard, the Commission would have to find that the only actual environmental difference ascertained, a need to clear 18 to 25 additional acres of realtively common hardwood,S s of a sufficiently i
greater impact to justify rejecting the proposed Sterling site. The Staff submits that in light of the Commission's rationale for the obviously superior standard, this one apparent slight environmental advantage of the Ginna site out of the whole panoply of environmental matters considered with respect to environmental comparisons of nuclear power plant sites, does not justify rejection of the proposed Sterling site.
The Commission's "Obviously Suoerior" Standard In discussing its reasons for promulgating the obviously superior standard for comparing alternative sites to the site proposed by an applicant, the 38 NRC at 396. The Appeal Board also fcund claims of damage to a swamp or to recreational values to be unsupported.
8 NRC 396-397.
I"
-- --not unattractive but scarcely differentiable from the substantial number of other trees in the general area." 8 NRC at 396.
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. the two sites. N Rather, the Appeal Board cited the Commission's recognition in h *ook of the " imprecision of cost / benefit analysis" and the " wide margin of uncertainty" inherent in any site evaluation, and pointed out that:
These observations ring true as applied to tue 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.
Fortunately, 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 judgment, in light of the record evidence discussed above (taken in conjunction with the fruits of our own examination of the sites),
that question requires a negative answer.
[ footnote omi tted]. g N ossibly because in this case the alternative site, Ginna, had itself P
been studied and selected as a nuclear power plant site, albeit over a decade ago.
This is not to say, however, given the evolving depth and scope of the Commission's environmental analyses, that the disparity does not exist.
b5 NRC at 528. As more fully explained at this point in the Commission's Seabrook decision:
The imprecision springs from the nature of the cost-benefit analysis the Comission must perform:
in the nuclear licensing context the factors to be compared range from broad concerns of system planning, safety, engineering, economic and institutional factors to environmental concerns, including ecological, biological, aesthetic, sociological, recreational, and so forth. Much of the underlying cost-benefit data is difficult of articulation, much less quantification.
Given these difficulties, any evaluation of a particular site must inevitably have a wide margin of uncertainty.
[ footnote omitted].
If accurate overall assessments of these diverse factors were realistically available, one could appropriately employ a fairly strict standard of comparison and still have a high degree of confidence that the correct result had been reached.
But where the data to be compared necessarily oresent a wide margin of uncertainty, one site must appear to be substantially "better."
204"3 173 N8 NRC at 397-98.
9 Comission focused on the potential that the appearance of slight superiority at an alternative site may be a function of the uncertainty of comparative analyses and/or incompleteness of information rather than a real difference between the sites.S n other words, in a perfect (but unrealistic)
I world, if all the salient features of the sites being compared were completely understood, and if precise comparisons of these features could be made, then perhaps a measurably small difference between the two could warrant preferring the alternate site. The "obviously superior" concept is designed to take account of the uncertainty which is inherently involved in environmental comparisons. Consequently, "obviously superior" alternatives are those which are actually superior, i.e., the differences are real and not merely a function of either the limited quantity and quality of information avail-able at the alternative site as compared to that available at the proposed site or of the limitations of cost-benefit analyses. This notion of the question of confidence that apparent differences are real is highlighted in the Court of Appeal's approval of the Comission's standard:
"The
[obviously superior] standard is designed to guaiantee that a proposed site will not be rejected in favor of a substitute unless, on the basis of appropriate study, the Comission can be confident that such action is called for."
New England Coalition v. NRC, 582 F.2d 87, 95 (1st Cir.),
(emphasis added).
Application of the Obviously Suoerior Standard in the Sterlina Case I
In applying the Comission's rationale for the obviously superior standard, the Appeal Board did not rely on a possible disparity of information between
$public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-8. 5 NRC 503, 526-30 (1977).
2 2045 172 There appears to be: no dispute among the parties to this review that as a E
minimum, as stated by Ecology Action:
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 choosing between the primary and alternate sites.
Thus the test is that the alternate site must be clearly established as the environmentally preferable site.
[ emphasis inoriginal].
However, Ecology Action goes on to take the Appeal Board's formulation of
" clear and substantial" out of the context of the facts of the Sterling decision, and mischaracterizes it as meaning greatly superior. E Clear and substantial as applied by the Appeal Board in this case does not mean greatly superior. This is obvious from the fact, as set forth above, that Ginna is at best marginally superior on environmental grounds to Sterling.
What Ecology Action fails to recognize, and what the Commission's Seabrook decision fully discusses and holds as summarized above, is that an alternative site that apoears to be only marginally superior cannot be said to have an established actual environmental superiority.E E" Petition for Review," dated November 6,1978, at page 2.
E.
_Id E5 NRC at 530.
12045 174 4
When viewed in the context of the Comission's rationale for the obviously superior standard and the facts of the Sterling case, " clear and sub-stantial" is a perfectly reasonable formulation of the Comission's obviously superior concept.
It concisely encompasses the Comission's recognition in Seabrook that given the imprecision of environmental analysis and comparison, the requisite " substantial confidence"E that the appearent superiority of an alternative site is not illusive can only arise when the alternative site appears to be "substantially better."b One of the primary meanings of " substantial" is:
"not seeming or imaginary:
not illusive: REAL, TRUE."
As thus defined, and as used by both the Comission itself in Seabrook and the Appeal Board in Sterling, " substantial" superiority means no less and no more than a recognition that the obviously superior test is a function of the combination of the uncertainty remaining in the environmental comparison of the sites in a particular case after the required studies are fully performe (and some uncertainty is inherent in all cases) and the degree of :pparent environmental superiority, if any, of alternative sites in the particular case.
$5 NRC at 528-29.
b5 NRC at 528.
$ ebster's Third New International Dictionary (Unabridged). Not until W
the fourth meaning does it appear that substantial can also mean large.
As we have emphasized, the facts of Sterling do not permit the slightest inference that the Appeal Board meant large.
b0f course, under any formulation, the obviously superior test cannot be misused to justify a lack of thoroughness and good faithe in per-forming alternative site analyses.
See Seabrook, 5 NRC at 530, n. 30; NECNP v. NRC, suora, 582 F.2d at 95.
2045 175
UllITED STATES OF AMERICA NUCLEA REGULATORY CC:"4ISSION BEFORE THE C0iO4ISSI0tl In the Matter of
)
ROCHESTER GAS AND ELECTRIC Docket No. STN 50-485 CORPORATION, ET AL.
(Sterling Power Project J
Nuclear Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF MEMORANDUM PURSUANT TO THE COMMISSION'S ORDER OF MARCH 8, 1979" in the abova-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk by deposit in the Nuclear Regulatory Comissiui internal mail system, this lith day of April,1979:
Alan S. Rosenthal, Esq., Chairman
- Dr. George C. Anderson Atomic Safety and Licensing Appeal Board Department of Oceanography U.S. fluclear Regulatory Commission University of Washington Washington, DC 20555 Seattle, Washington 98195 Dr. John H. Buck
- Mr. Lester Kornblith, Jr.
- Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing Board U.S. fluclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Richard S. Salzman, Esq.
- Lex K. Larson, Esq.
Atomic Safety and Licensing Appeal Board 1757 N Street, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20036 Washington, DC 20555 Dirk S. Adams, Esq.
.dward Luton, Esq.
- Attorney for Movant Atomic Safety and Licensing Board Ecology Action of Oswego U.S. Nuclear Regulatory Commission Office and P.O. Address Washington, DC 20555 1600 First Federal Plaza Rochester, N York 14614 2045 177
-g-In any event, even if the Comission wishes to disapprove the Appeal Board's formulation of clear and substantial because of possible mis-apprehension in future cases of the word " substantial" as ne.cessarily meaning large, the factual findings of the Licensing and Appeal Board nevertheless support the finding that the very slight apparent enviornmental. superiority of Ginna is insufficient to justify rejection of the proposed Sterling site. The apparent difference is too marginal to support with any confidence a conclusion that Ginna is, in reality, actually environmentally superior to Sterling.
For the reasons stated, both the Appeal Board decision and its formulation of the "obviously superior" test as " clear and substantial" should ba approved.
In the al'.ernative, even if the Commission dis-approves the Appeal Board's formulation, the' decision that the alternative Ginna s.;e does not appear to be sufficiently superior from an environ-mental standpoint to justify rejection of the proposed Sterling site should be affirmed.
Respectfully submitted, Lawrence Brenner Counsel for NRC Staff Dated at Bethesda, Maryland this 11th day of April,1979 b
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s Ecology Action Atomic Safety and Licensing Box 94 Board Panel
- Oswego, New York 13126 U.S. Nuclear Regulatory Commission Washington, DC 20555 Jeffrey Cohen, Esq.
New York State Energy Office Atomic Safety and Licensing Swan Street Building, Core 1 Appeal Board
- Second Floor, Empire State Plaza U.S. Nuclear Regulatory Commission Albany, New York 12223 Washington, DC 20555 Gerald Charnoff, Esq.
Docketing and Service Section
- Shaw, Pittman, Potts & Trowbridge Office of the Secretary 1800 M Street, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20036 Washington, DC 20555 Samuel J. Chilk
- D3 Secretary of the Commission Oswego, New York 13126 U.S. Nuclear Regulatory Commission Washington, DC 20555 Office of the General Counsel
- U.S. Nuclear Regulatory Commission Washington, DC 20555 Lawrence Brenner Counsel for NRC Staff v-2045 178
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