ML19289E927
| ML19289E927 | |
| Person / Time | |
|---|---|
| Site: | Sterling |
| Issue date: | 04/09/1979 |
| From: | Reinert S ECOLOGY ACTION OF OSWEGO |
| To: | |
| References | |
| NUDOCS 7905290473 | |
| Download: ML19289E927 (10) | |
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4 sh-In the Matter of Rochester Gas and Electric Corp. et. al.
Sterling Nuclear Power Proiect Unit No. 1 Docket No. STN 50-485 ECOLOGY ACTION BRIEF ON APPEAL OF ALAB-502
<048 547 April 9, 1979 7905290 h7 3 {,,
Table of Authorities Cases New England Coalition on Nuclear Pollution v. Nuclear Regulatory Cocmission et. al.
U.S. Court of Appeals for ti.e First Circuit, Nos. 77-l' t .9, 77-1306, 77-1342 and 78-1013, 1978.
Commission Decisions Public Service Co. of New Hampshire (Seabrook) CLI 77-8 Boston Ecd-on Co. (Pilgrim) 7 NRC 774 1
Florida Power and Light Co. (St. Lucie) 3 NRC 830 Statutes National Environmental Policy Act, 42 USC 4321 et seq.
Regulations 10 CFR 2.760 43 CFR 1500.1 43 CFR 1505.2 We do not have access to all the listed decisions in the proper form for citation. We have cited from the Cocsission's Seabrook decision and from ALAB-502 by page number from the typed decision. We were not able to cite from the Coart of Appeals Seabrook decision by page number.
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Intr:Juction On March 8, 1979, the Commission ordered the parties in the Sterling case to submit briefs on the question of whether the Appeal Board's interpretation of the "obviously superior" standard for comparing alternatives to a proposed action was correct. Ecology Action of Oswego contends that the Appeal Board misinterpreted the standard, and that the Sterling construcedon permit should be rescinded or the matter of alte native sites remanded to the Licensing Board.
- 1. The Cor 21ssion's "obviously superior" standard must be interpreted so as to give suostance to the National Environrental Policy Act. The Appeal Ocard's interpretation is contrary to NEPA.
In the Sesaiook case, the First Circuit Court of Appeals did not give blanket approval to the "obviously superior" standard. The court said:
"It remains to be seen whether the Co= mission carries out its review of alternate sites under these standards
("obviously superior" and realistic costs) in conformance with NEPA's 'hard look' requirement."
(material in parentheses added)
This caveat shows that the court was concerned about the effect of the Commission's application of the "rbviously superior" formula. It was not enough merely to follow the rules the Commission really had to take a "hard look" at alternate sites.
The Appeal Board in ALAB-502 has used the "obviously superior" standard to prevent that hard look. It would have us ignore reality -- that the Sterling plant is no longar needed when the applicant said it would be, and that there are no replacement power costs associated with building a plant on the alternate site. It advocates overlooking the Licensing Board's obvious reluctance to commit a virgin site to power generation when a better alternate site with a power plant already on it is available, just because the ASL3 did e.at use the magic words, "obviously superior." The effect of the Appeal Board's decision is to make 1
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the alternate site comparison a " meaningless form" -- a result that the court criticized in its Seabrook decision.
The Appeal Board cites the court's opinion that "...NEPA does not require that a plant be built on the single best site for environmental purposes."
While that is true -- NEPA calls for a balancing of economic, technical and environmental factors -- we believe the Act calls for more than the "hard look" at alternatives cited above. NEPA also calls for good decisions. The NEPA requirement that agencies look at viable alternatives to the proposed action would be meaningless if all they had to do was look. Implicitlp, the law requires that th e final choice be the best alternative: the one that best carries out the purposes of the Act as set forth in Section 101(5).
The Council on Environmental Quality, which is charged with implementing NEPA, has recently established rules for NEPA procedure and decisions that reflect this principle. The purpose of the rules is to " foster excellent action."
(43 CFR 1500.1 (c)). As the rules say: " Ultimately, of course, it is not better documents but better decisions that count." (43 CFR 1500.1 (c)). According to 43 CFR 1500.1, Sect'.on 102 (2)c 111 of NEPA -- the provision on alternatives --
is an " action-forcing" provision "to make sure that Federal agencies act according to the letter and spirit of the Act." It is significant that the CEQ rules call on agencies to identify the " environmentally preferable" alternative .(43 CFR 1505.2(b))
rather than using the Commission's "obviously superior" standard. The Council evidently thinks its standard will " foster excellent action."
In the Sterling case, the Appeal Board has interpreted "obvicusly superior" so as to choose a site that is less desirable environmentally than the al:ernative.
If there were economic and technical-advantages to the Sterling site to balance this, the choice might be in conformance with NEPA. But with the plant now delayed from 1984 until 1988, there is no such advantage. Thus, the Appeal 3 card's 2 2048 550
E interpretation violates NEPA.
- 11. "Obviously superior" means clearly superior or clearly preferable, nc:
substantially better.
The standard used by a Federal agency in judging among alternatives to a proposed action must foster the purposes of NEPA (see Section 102 of the Act).
Requiring that an alternative be substantially better than the proposed action gives an undue advantage to the primary choice, an advantage that could lead to a decision that does not give " appropriate considaration" to the environment (see Section 102 (2) (B) of NEPA).
We recognize the Commission's concerns about the uncertainty of cost benefit analyses a.id the neec for power (both of which do not apply to the facts of the Sterling case, howceer, see p. 4 ) . But these concerns can be adequately assuaged by requiring that an alternative be clearly better than the primary choice before the primary choice is rejected. This will give .ssurances of a correct choice without unfairly burdening the alternatives.
The Council on Environmental Quality used the term " environmentally preferable" in its rules on considering alternatives (43 CFR 1505.2(b)). And the rules indicate that the environmentally preferable action should be chosen unless relevant economic and technical considerations override its advantages.
The same standard was used by the Commission itself in the Midland decision (7 NRC 155), which was written almost one year after Seabrook. The Commission said that NEPA requires consideration of whether the_e are "enyironmentally preferable" (our emphasis) alternatives, and added: "If there are, we must take the steps to see that they are implemented if that can be accomplished at a reasonable cost..." (7 NRC 155, at 162).
The Appeal Board would impose a standard that is much more rigorous than this, and unnecessarily so.
111. The facts of the Stetling case distinguish it fromSeabrook,Pilgr[m,and St. Lucie.
The main reason for the Commission's "obvidusiy sup,erior" standard was to 3
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guarantee that the Cocmission would not make the wrong choice in the inexact area of cost benefit comparisons. The comparison was inexact by nature, said the Commission in Seabrook, because the alternative did not receive the same intense scrutiny as the primary site. Thus, environmental disadvantages of an alternative site were likely to be unknown.
This is not the case with Sterling. The Ginna site has been studied extensively because it is also the alternative site in Rochester Gas and Electric's application to New York State to build the Sterling plant. Unlike the NRC rules and NEPA, the state's siting law recuires that a " complete case" be presented for the alternative as walA as the primary site. Thus, any environmental disadvantages of the Ginna site are known by now, and undoubtedly they would have been presented by the applicant if they were of significance.
Another reason for the Commission's standard was its concern for the public interest in needed electric power. Since it could only reject, not order a change in site, an adverse decision might deprive consumers of electricity, the Commission said in Seabrook. With the latest startup date for Sterling delayed from 1984 to 1988, that concern is not applicable here.
Our opponents will probably argue that New York State has found the Sterling site environmentally preferable to Ginna, a factor that the Commission said in Seabrook should be given substantial weight. However, the state's decision is not applicable here. The state comparison involved more than just site characteristics; it pitted the environmental impacts of a nuclear plant at Sterling against the environmental impacts of two coal plants at Ginna. The choice was between these very different alternatives instead of the Ginna nuclear vs. Sterling nuclear presented to the NRC, because the applicant chose to submit a coal alternative rather than a nuclear cne to the state. We do not think the state's decisien should carry any weight in the decision that the Commission must make.
The Appeal Board attacked our concern about destroying a virgin site by
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saying that a location already occupied by a nuclear plant should not be automatically preferred, and c_iting the St[. Lucie (3 NRC 830) and Pilgrim (7 NRCg774) decisions to support that. We agree with the precept. The Board is knocking down a straw horse in citing St. Lucie and Pilgrim. The reason for the decisions in those cases was that the staff's analysis of alternate sites was completely inadequate. That is certainly not the case in Sterling. The Board cannot use Pilgrim and St. Lucie as an rigument for automatically rejecting sites with plants on them any more than the staff can automatically choose such sites. The cases cited give support for careful consideration of alternatives rather than a rationale for rejecting the Ginna site.
IV. Although the exact language was not used, in fact the ALSB found the Ginna site was " obvious'y superior." The reasoning followed by the ASLB was in confor=wnce with 1ae Seabrook decision. The Appeal Board should nct substitute its uwn observation for the record in reaching a different conclusion than the ASLB reached.
The language of the ASLB decision indicates that the Licensing Board found the Ginna site clearly superior to Sterling not only because of the "small" environmental advantages of Ginna, but because Ginna was already committed to ,
power generation, where Sterling wcs not. In the decision, the Board says:
"Intervenors have raised the concern of committing a ' virgin' site (Sterling) to power generation when an already so called ' spoiled' (Ginna) site is available. The Board shares this concern especially in view of the fact that both are under the same ownership and are only a distance of about 35 miles apart. In addition, although the differences are small, the environmental comparison appears to favor slightly the Ginna site, whereas the economic comparison may be about equal. Of[ greater importance from _an environmental viewpoint is the possibility of an unnecessary commitment of a partially forested, partially cultivated, lake front site."
(p. 130-31. Emphasis added).
After finding the Ginna site clearly preferable to Sterling, the ASLB proceeded to apply " realistic" cost factors, as mandated by the Commission in Seabrook. The obvious superiority of Ginna was overridden solely because of the cost of replacement power. And then, still sticking with Seabrook, the ASLB made provision for the contingency that power would not be needed in 1984. Then the delay cost could not properly be weighed against the alternative (Seabrook, 5
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- p. 54). So the ASLB recommended that the matter be reopened if construction were delayed by more than two years beyond 1984.
Just because the ASLB did not use the words "obviously superior" should not determine the issue. (The Commission in Midland talked about " environmentally preferable" alternatives (7 NRC 155)). If one reads the Sterling Initial Decision (p. 127-132) in context, the conclusion is inescapable: the ASLB thought the Ginna site was clearly superior and preferable to Sterling, except for the replacement power cost factor. The Appeal Board applied its own dogmatic definitions in deciding that the ASLB did not find the Ginna site clearly better than Sterling.
The Board says its own decision that the Ginna site is not obvicusly superior is based partly on "our own examination" of the two sites (ALAB-502, p. 24). In particular. the Board seems to dispute testimony in the record that the forest to be destroyed at Sterling consists of mature hardwoods (ALAB-502, p. 20). It was improper for the Board to base its decision even partially on extra record facts.
The Commission's rules require a decision on the record. (10 CFR 2.760 (2)(c)).
V. The effect of the Appeal Board's interpretation is to create a Catch-22 in which opponents of the primary site are doomed to failure.
The Board uses the "obviously superior" standard in a way that allows the Board to reach self-contradictory conclusions. On one hand the Board argues that the ASLB may " properly take into account the costs of any replacement power which might be required" if the construction of a plant is delayed by a move to a different site (ALAB-502, p. 17).
On the other hand, the Board says that there is "no occasion to consider further, now or in the future, the delay cost factor." (ALAB-502, p. 24).
In other words, replacement power costs can be considered when they favor the choice of Sterling, the primary site. But when changed circumstances eliminate this apparent cost differential in favor of Sterling, then cost cannot be considered.
Only if one accepts the Board's conclusion that Ginna is not "obviously 6 2048 354
superior," can this glaring inconsistency be superficially justified. But we think the Commission should look under the legal skin of this exercise. What is the effect of the Board's opinion? If the first argument is true -- that cost is a valid consideration -- then the materially changed facts in the Sterling case require a remand of the alternate site issue, as the ASLB proposed. If the secoad point is true, and cost is not a proper factor, then the ASLB's original choice is invalid. The Appeal Board simply wants to have it both ways. This is pure manipulation, no matter how legal it sounds, and must be rejected.
We also contend that the Board's opinion on the role of delay factors in the consideration of alternate sites goes directly contrary to the Seabrook decision. In Seabrook, the Commission said:
"In connection with the delay factor, we note that delay is not a factor which carries uniform weight in all cir-cumstances. If the delay would result in an inability to construct the plant in time to meet a predicted need for power, then delay is a factor to be weighed against an alternative. If there is no such problem, then delay may figure only as a cause of additionalcost, and then only if it does in fact cause costs to increase."
(Seabrook, p. 54).
Here, the delay will not cause a lack of needed power. The Board's argument was clearly erroneous.
Conclusion Because the Appeal Board's interpretation (and thus its decision) was wrong, either the Sterling construction permit should be rescinded or the alternate site comparison should be remanded to the ASLB. We believe the record as it now stands, with the addition of the uncontroverted fact that the plant is not needed in 1984, will support a reversal of the construction permit.
44.
Sue Reinert for Ecolo27 Action of Oswego April 9, 1979 2048 $55 7
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On April 9, I miled copies of Ecology Ahtion's Brief on Appeal of ALAB 502 to the following:
Lex Larson 1757 N St, TT
, Washington DC Stephen Schinki Nuclear Regulatory Com:liss ion Washington, DC anrgaret LNFlo Atomic Safety and Licensing Appeal Board Nuclear Regulatcry Comissicn Washington, DC L.s l G.wJ due neutert O48 $5f)
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