ML19294B684
| ML19294B684 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 03/03/1980 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8003050301 | |
| Download: ML19294B684 (21) | |
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3/3/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Doc ket No. 50-155
)
(Big Rock Point Nuclear
)
(Spent Fuel Pool Modification)
Power Station)
)
NRC STAFF RESPONSE TO BOARD QUESTION The Staff of the Nuclear Regulatory Commission (Staff) hereby responds to the question posed by the Atomic Safety and Licensing Board (Board) in its Order Following Special Prehearing Conference, dated January 17,1980 in the above-captioned proceeding. The question posed by the Board states as fol1oxs:
Where the facility has never been subjected to National Environmental Policy Act of 1969 (NEPA) review because it das licensed before NEPA, does a license amendment which would permit the continued operation of the facility either require or permit considering a cost-benefit analysis or the need for power in the license amendment proceeding, notwithstanding that the Staff may issue a negative declaration? Board Order at 33-34.
In the Staff's view the Board is not required by law to consider a cost-benefit analysis or to consider the need for power in this license amendment proceeding. Assuming that the Staff determines that the application does not present any significant environmental impacts and the Board sustains such a determination, the Staff believes that the Board lacks jurisdiction 8008050'30)
to discuss these issues in this license amendment proceeding.
The Staff wishes to make it clear that even though its review of this license amend-ment application has not yet been completed, for the purposes of responding to the Board's question the Staff is assuming that it will issue a negative declaration accoapanied by an environmental mpact appraisal (EIA).
BACKGROUND This proceeding involves the application by Consumers Power Company (Licensee) for an amendnent to its operating license for the Big Rock Point plant to pemit it to nodify Big Rock's spent fuel pool.
This modification would enlarge the storage capacity of the spent fuel pool. The number of spent fuel assemblies which could be stored in the pool would be increased from 193 to 441.
A f;otice of Proposed Issuance of Amendaent to Facility Operating License was published in the Federal Register on July 23, 1979 (44 Fed. Reg. 43126).
The notice set forth the means by which interested persons could request a hearing and seek participation in that hearing.
Id. a t 43127.
In response to this notice three petitions for leave to intervene were filed on August 22, 1979.1/
In its Order of !iovember 5,1979 the Board scheduled a special prehearing conference for December 5-6, 1979.2]
Intervenors filed their 1/
Two of these patitions--that of Christa-fiaria and that of John P.
O'ficill, II--were granted.
The third petition--that of John A.
Leithauser--was denied by the Board in its Order of January 17, 1980.
2]
The Board had originally scheduled the prehearing conference for flovembe r 14, 1979.
S_ee Order Setting Special Prehearing Conference, dated October 11, 1979. The prehearing conference was postponed at the request of the parties.
.- first set of contentions on or near October 30, 1979.
Revised contentions were filed by Intervenors on November 20, 1979.
Appended to the revised contentions which were filed by Intervenor O'Neill, was a statement which nentioned that the Big Rock Point plant was a small reactor and thus no hardship would result from the cessation of its operation.
See Contentions of John P. O'Neill, II, at 10, dated November 20, 1979.
The Staff treated this statement as though it were related to Contention VIII which alleges that, since without approval of this license amendment Big Rock could not continue to operate, a general review of plant safety is necessary.
The Staff argued that the issues raised by Contention VIII were outside the scope of the present license amendment proceeding.
See NRC Staff Response To Contentions of Christa-Maria and Contentions of John P. O'Neill, II, da ted November 29,19 79, a t 30-31.
The L'censee took the position at the special prehearing conference with regard to Mr. O'Neill's statement that the alternative of shutting down the facility need not be considered if there are no significant environmental impacts from the proposed action.
See Tr. 217.
The Board treated Contention VIII as encanpassing Mr. O'Neill's statement regardir.g the need for the Big Rock facility, and has deferred ruling on this contention.
Soard Order at 33.
On January 10, 1980, a Licersing Board in another spent fuel pool modifica-tion proceeding issued an Initial Decision in which the Board declared that it had the jurisdiction to consider the need for the facility in question in the spent fuel pool modification proceeding ratner than at a proceeding which was to take place in the future to determine whether or not the facility
+ should receive a full-tena operating license.
Dairyland Power Cooperative (Lacrosse Boiling Uater Reactor), LBP-80-2,11 f1RC (January 10, 1980).3/
That portion of the Lacrosse Initial Decision dealing with the jurisdictional question was attached to the Order issued by this Board.
The parties were asked to brief the question of whether, since the Big Rock facility never underwent a f1 EPA review, consideration of a cost-benefit analysis or the need for power was either required or permitted in this license anendment proceeding, notwithstanding that the Staff might issue a negative declaration once its review was completed.
In responding to the Board's question, the Staff will assume that its finding will be that there is no major Federal action significantly affecting the quality of the human environment involved here and that this finding will be upheld by the Board. This can only be an assumption at this time, since the Staff has not yet issued its findings and indeed has not yet completed its review of the amendment application.
The following conclusions flow from this assumption:
1)
Consideration of either a cost-benefit analysis or the need for power is not required in a license amendment proceeding where the proposed action is found to have an insignificant effect on the 3]
The Lacrosse Board referred the ruling concerning its jurisdiction to consider need for power to the Appeal Board.
On January 30,1980, the Appeal Board issued an order requesting the Staff to respond, inter alia, to the question of why the Appeal Board should entertain the referral if there are few or no other nuclear facilities in a similar or analogous s ta tus.
In responding to this questic', the Staff drew the App 2al Board's attention to this Big Rock proceeding.
The Appeal Board has not yet issued a decision concerning the Lacrosse Board's referral.
_ quality of the human environment, regardless of the fact that this license anendment might be necessary for the continued operation of the facili ty.
2)
Section 102(2)(E) of NEPA does not require analysis of alter-natives in this spent fuel pool modification proceeding, since there are no unresolved conflicts concerning alternative uses of the resources involved here.
3)
The Board is not permitted to consider either a cost-benefit analysis or the need for Big Rock power in some other context in this proceeding, since it lacks tha jurisdiction to do so.
ARGUMENTS I.
Consideration of Either a Cost-Benefit Analysis or the Need for Power is not Required in a License Amendment Proceeding Where the Proposed Action is Found to Have an Insignificant Effect on the Quality of the Human Environment, Regardless of the Fact That this License Amendment Might be Necessary for the Continued Operation of the Facil i ty.
A.
The Fact that a Particular License Amendment is Necessary for Continued Operation of a Facility Does Not Require the Preparation of An Environmental Impact Statenent.
In previous spent fuel pool modification proceedings the Appeal Board has rejected "the continuing operation argument."
Portland General Electric Co.,
(Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 266, n. 6 (1979); Northern States Power Co. (Prairie Island Generating Plant, Units 1 and 2), ALAB-455, 7 NRC
_ 41, 4 6, n.4 (19 78).
The intervenors in Prairie Island argued that the practical effect of granting the spent fuel pool modification amendment would be to license plant operation.
They based this theory on their con-clusion that, without the expansion of storage capacity, the plant would have to cease operations.
They argued that, since it was plant operation which was being licensed, the impacts of that operation and the alternatives to it should have been discussed.
Prairie Island, supra.
The Appeal Board in Prairie Island pointed out that the impacts of plant operation had been assessed at the time the plant was granted its operating license.
In Trojan, the same situation was present--an environmental impact statenent had been prepared before the issuance of the plant's operating license.
The issue of whether such inpacts of continued operation would have to be considered where a plant had no FES was not before the Board in those two cases.
?!o similar issue seems to have been raised when other plants not having an FES applied for various license amendments.
The holding in the two cases cited above should not be distinguished from the facts here on the ground that those plants had previously existing final environmental inpact statements.
As discussed in greater detail later in this brief, fiEPA is not retroactive and Big Rock stands in the same position as a later licensed facility for which f1 EPA was applicable.
The purpose of fiEPA was to nake Federal agencies responsible for the protec-tion of this fiation's environmental resources.
That protection was to take the form of infonned decision-making before any major Federal actions were taken.
42 U.S.C. s 4332(2)(a-b).
In furthering these purposes, at least
- one Court has found that, when taking further action on a project, account should be taken of those environmental consequences not fully evaluated at the outset of a proposal or program.
Aluli v. Brown, 437 F. Supp. 602, 607 (D. Hawaii 1977), rev'd on other grounds, 602 F.2d 876 (9th Cir.1979).O This view is analogous to the position taken by the Suprene Court with respect to whether a comprehensive environnental impact statement is required in all instances where several similar actions are contemplated in the sane area.
Kleppe v. Sierra Club, 427 U.S. 390 (1976). The Supreme Coart in Kleppe stated that if actions not yet planned are later taken, account must be taken of the existing environment and that environment would reflect earlier proposed actions and their effects.
_Id. a t 410.
The Staff in reviewing the application of the Licensee for the spent fuel pool modification amendment must take the environment as it finds it.
That environment presently includes an operating nuclear power plant. An assess-ment which takes into account the data being accumulated at Big Rock on plant operation, and determines whether or not the environmental inpacts of the proposed amendnent exceed those existing environmental inpacts to a sufficient degree to warrant denial of the amendment, cones within the purview of the Prairie Island and Trojan decisions. The assu,pticns which the Staff used in conducting its evaluation could be tested at the public hearings to be conducted in the Big Rock proceeding. Therefore, in testing these assumptions, a record will be created through which the purpose of 4_/
The Court of Appeals reversed only that portion of the District Court's order holding that annual appropriation requests were proposals for major Federal action requiring an environmental inpact stater.ent.
NEPA to encourage informed decision-making will be achieved.
The fact that there was no final environmental impact statement accompanying the operating license decision, therefore, makes no difference to the environmental impacts which must be considered in this license amendment proceeding. Those impacts do not include the impacts of the continued operation of the Big Rock plant.
B.
Commission Regulations and Precedents do not Require the Consideration of Either a Cost-Benefit Analysis or the Need for Power in a License Amendment Proceeding Where the Proposed Action is Found to Have an Insignificant Effect on the Quality of the Human Environment.
When the detenaination is made that a particular license amendment does not require the preparation of an environmental impact statement, then the Commission's regulations require that unless otherwise detennined by the Commission, a negative declaration accompanied by an environmental impact appraisal will be prepared.
10 C. F. R. s 51. 5 ( c ).
Requirements for the contents of such an appraisal are set forth in 10 C.F.R. 6 51.7(b). An EIA must contain: 1) a description of the proposed action; 2) a summary descrip-tion of the probable impacts of the proposed action on the environment; and
- 3) the basis for the conclusion that no environmental impact statement need be prepared. These regulations make no mention of the necessity to include in the EIA a cost-benefit analysis of any type or a discussion of alternatives.5_/
In previous spent fuel pool modification proceedings, other Licensing Boards have found that the proposed spent fuel pool expansion would not significantly Sj The Staff believes that in addition to being the benefit side of a cost-benefit analysis, the need for power question could arise in the context of a discussion of alternatives to the proposed action.
- affect the quality of the human environment.
Commonweal th Edison Company (Zion Station, Units 1 and 2), Licensing Board Initial Decision,11 fiRC
( Februa ry 14,1980); Portland General Electric Co. (Trojan fluclear Plant),
LBP-78-32, 8 flRC 413, 449-450 (1978); Duquesne Light Co. (Beaver Valley Power Station, Unit 1), LBP-78-16, 7 fiRC 811, 816 (1978); fiorthern States Power Co. (Prairie Island fluclear Generating Plant, Units 1 and 2), LBP-77-51, 6 fiRC 265, 268 (1977).
The Zion Board concluded "the Board finds that the proposed action will not significantly affect the human environment.
It, therefore, finds that it is not required by law to consider the alternative of shutting down or curtailing the output of Zion Station." Zion, supra, at 97.
In Trojan, supra, the Licensing Board held that the need for power could only be considered in tems of the cost-benefit balance, and absent any substantial environmental costs any benefit whatsoever would tip the balance.
Therefore, concluded the Board, it was unnecessary to discuss need for power in any detail. R. a t 454.
The Trojan Board felt that decisions as to the economic advantages of a particular a: tion should be left to those corperate management personnel to whom such decisions were nomally delegated.
H.
In Beaver Valley, supra, it was a Licensing Board's position that if the Board found the EIA to be adequate and the negative declaration issued by the Staff to be appropriate, then issuance of the amendment which was the subject of the proceeding before it should be ordered.
Beaver Valley, su pra, a t 817. The Beaver Valley Board concluded that if the Board nakes a finding of insignificant impact, then it need not consider a cost-benefit balance or alternatives. H.
It reached this conclusion on the grounds that the Commission's regulations do not require consideration of either the cost-benefit balance or alternatives in the Staff's EIA.
Id.
_ The Appeal Board recently affinned the Trojan Licensing Board's decision.
Trojan, ALAB-531, supra. The Appeal Board considered whether the issue of the need for the Trojan facility should be considered in the context of an alternative to the proposed action. The Intervenor had questioned the adequacy of the Licensee's assessment of the alternative of reducing power, thus causing the generation of less spent fuel.
Id.
at 265. With respect to this alternative the Appeal Board found:
There is no obligation to search out possible alternatives to a course which itself would not either hann the environment or bring into serious question the nanner in which tys country's resources are being expended.
Id. a t 266.-
The Board's concern with whether the issue of need for power should be con-sidered in this license amendment proceeding seems to have been generated in part because of the decision by the Licensing Board in Lacrosse, supra.
While it is true that, like Lacrosse, Big Rock was licensed before the passage of fiEPA and so never underwent a f4 EPA review, there are significant differences between the two cases.
First, the Lacrosse EIA was prepared before the Commission issued its Notice of Availability of the Generic Environmental Impact Statenent on Handling and Storage of Spent Light Water 6/
For a discussion of the portion of this finding dealing with the need to consider alternatives where there is an unresolved conflict in alternative uses of resources, see Section II, infra.
Power Reactor Fuel 44 Fed. Reg. 43917 (August 22, 19 79 ).E Second, Lacrosse still has not received its full-term operating license (FT0L),
Big Rock on the other hand, has had its FTOL since 1964.
Therefore, while a FES will be prepared in connection with the Lacrosse FTOL, which could affect whether the facility would be allowed to continue to operate, Big Rock faces no such uncertainty.
This uncertainty seemed to be an inportant contributing factor in the Board's decision in the spent r'uel proceeding to consider the need for the Lacrosse facility for the period of time necessary to complete the FTOL proceeding.
Any justification the Board in Lacrosse may have had for taking that approach in its decision is completely lacking with respect to Big Rock.
Sl i p o2, a t 39.
For the reasons set forth above the Staff believes that no Commission regula-tions or policy require consideration of a cost-benefit analysis or the need for power in any other context in a license amendment proceeding.
,y Discussion of the five factors put forward by the Commission in its
" Notice of Intent to Prepare a Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel" (40 Fed. Reg. 48201 (September 16, 1975)) is no longer required, since the GEIS was issued in August of 1979.
See NUREG-0575, Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, August 1979.
In determining whether con-sideration of a cost-benefit analysis or need for power is required in this proceeding, no weight need, therefore, be given to previous Staff practices with regard to the consideration of these issues in EIAs.
The " interim period" referred to by the Commission in its policy state-ment as the period during which EIAs must weigh and balance the five factors has expired.
Consequently, discussion of need for power in an EIA on spent fuel storage expansion is not required.
_ C.
flEPA Does Not Require the Preparation of an Environmental Impact Statement in this Discrete License Amendment Proceeding.
NEPA became effective on January 1,1970.
In detenaining whether f; EPA should apply to a given project, Courts have consistently pointed out that fiEPA is not to be applied retroactively.
Olivares v. fiartin, 555 F.2d 1192, 1197 (5th Cir.1977).
52 County of Trinity v. Andrus, 438 F.Supp.1368, 1388 (E.D. Cal.1977); Pennsylvania Environmental Council v. Bartlett, 454 F.2d 613, 624 (3rd Cir.1971); Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109,1129 (4t 9 71).
See also Jones v. Lynn, 477 F.2d 885, 890 (1st Cir.1973).
Calvert Cliffs, supra, is the most pertinent of these cases since it sets forth the situations in which a NEPA review was required with respect to the construction and operation of nuclear power plants.
The Court listed three categories of cases in which a NEPA review was required. The first included those plants on which action was begun af ter NEPA's efie".sve Jate.
The second category included those facilities which were begun before NEPA, and which received their operating licenses af ter NEPA's effective date without NEPA compliance. The third group of plants encompassed those facilities for which construction pemits were issued before NEPA's effective date, but which had not received their operating licenses by the time NEPA became ef fec tive. _Id.
at 1120-1129. With respect to this third group of facili-ties, the Court was quick to point out that the ar' roach it was taking was not a retroactive application of NEPA. H.
The Court pointed to the fact, as support for this detemination that these plants still had to " pass
- muster" before they could begin to operate.
Id.
It was the lack of the final agency action of issuing an operating license which triggered the requirement that a f4 EPA review be conducted.
The Court in Calvert Cliffs made no attempt to require a fiEPA review for those plants constructed and already operating before fiEPA's effective date.
Big Rock is just such a facility.
In 1964, Consumers Power Company received a license to ope.au ca.: Big Rock facility for 40 years.
This final agency action showed that Big Rock had " passed nuster" in the words of the Calvert Cliffs court.S Since that final agency action was taken before fiEPA's effective date, any attempt to require an analysis equivalent to that neces-sary for preparation of an environmental impact statement would be a retro-active application of TIEPA.
II.
Sec' ion 102(2)(E) of fiEPA does not Require the Considera-tion of a Cost-Benefit Balance or the fleed for Power in this License Amendment Proceeding.
Section 102(2)(E) of f4 EPA requires the consideration of alternatives by an agency where there is an unresolved conflict in alternative uses of avail-able resources.
42 U.S.C. 5 4332(2)(E).
The Act does not define what is 8]
While there are cases which suggest that compliance with f4 EPA is necessary with respect to continuing or ongoing Federal projects, they are irrelevant to the situation before this Board.
Hart v. Denver Urban Renewal Authority, 551 F.2d 1178 (10th Cir.1977); yirginians for Dulles v. Volpe, 541 F.2d 442 (4th Cir.1976); flinnesota Public Interest Research Group v. Butz, 498 F.2d 1314 (8th Cir.1974); State of Wisconsin
- v. Callaway, 371 F.Supp. 807 (W.D. Wis.1974); Lee v. Resor, 348 F.Supp. 389 II4.D. Fla. Jacksonville Division 1972).
The action of concern here is a discrete action, separate from the action which occurred prior to f4 EPA's effective date.
In addition, unlike the actions contemplated by all of these " continuing Federal action" cases, this spent fuel pool modification is not an action which ' ill, in fact, significantly affect the quality of the human environment.
. mean'. by resources.
However, the legislative history of NEPA, particularly with respect to $ 102(2)(E) provides some help in this area. The Senate in its section-by-section analysis interprets %102(2)(E) as follows:
Wherever agencies of the Federal Government recommend courses of action which are known to involve unresolved conflicts over com-peting and incompatible uses of land, water, or air resources, it shall be the agency's responsibility to study, develop, and describe appropriate alternatives to the recommended course of action.
S. Rep.91-296, July 9,1969, 91st Cong.,1st Sess.
This analysis was adopted in the House-Senate Conference Report considered on December 20, 1969. See 115 Cong. Rec. 40420 (1969).
In a recent spent fuel pool modification decision issued by the Appeal Board, the proposed licens. amendment did not involve any commitment of available resources respecting which there was an unresolved conflict and thus the need to consider alternatives under @ 102(2)(E) was not triggered.
See Trojan, ALAB-531, supra, at 265.
The Appeal Board in Trojan viewed the
" resources" in question as those which went into the naking of the new racks for the spent fuel pool.
Id_. a t 266.
This is different from the view taken by the Lacrosse Licensing Board in its decision issued on January 10, 1980.
There the Board was of the opinion that the resource in question was the Lacrosse plant itself, and that the alternative of not using the facility was the conflicting use which triggered the necessity to consider alterna-tives under @ 102(2)(E) of NEPA.
See Initial Decision of January 10, 1980, s li p o_g. a t 53a. This view does not comport with that of the Appeal Board in p ojan. The Trojan view of what constitutes a resource for purposes of the application of 5102(2)(E) should be controlling here.
The cases cited by the Lacrosse Board in its decision do not support that Board's view of what constitutes a resource.
Trinity Episcopal School Corp.
- v. Romney, 523 F.2d 88 (2nd Cir.1975), involved a dispute over whether a particular parcel of land should be used for middle or low income housing.
City of Tiew Haven v. Chandler, 446 F. Supp. 925 (1978), involved the con-struction of transmission towers next to a bridge in the fiew Haven harbor.
The resource of concern in these cases seems to be land which would be in agreement with the definition of resources put forth in the legislative history of s 102(2)(E) of fiEPA.
The resources in Trojan, namely the mate-rials that go into making the new spent fuel racks, in part are derived from minerals which are natural resources taken from the fiation's land.
It is this type of resource which fiEPA was intended to protect.
See 42 U.S.C.
@@ 4321 and 4331(b)(6).9/
9]
42 U.S.C. 9 4321 states:
The purposes of this chapter are:
To declare a national policy which will encourage productive and enjoyable hannony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the fiation; and to establish a Council on Environmental Quality.
42 U.S C. Q 4331(b)(6) states:
(b)
In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, con-sistent with other essential considerations of national policy, to inprove and coordinate Federal plans, func-tions, programs, and resources to the end that the fiation may--
(6) enhance the quality of renewable resources and approach the naximum attainable recyclirg of aepletable resources.
.- The Courts have held and the Staff does not dispute, that $102(2)(E) could require consideration of altc.atives whether or not an environmental impact statement is required.
f4onarch Chemical Works, Inc. v. Exon, 466 F. Supp.
639, 650 (D. fiebraska 1979); aff'd sub nom, fionarch Chemical Works, Inc. v.
- Thone, F.2d
, fio. 79-1181(8th Cir. Augus t 16,1979), 9 ELR 20697;5 Trinity, supra ; Joseph v. Adams, 467 F. Supp.141,158 (E.D. f4ich.1979).
The CEQ regulations also recognize that an environmental impact appraisal should contain:
"an analysis of alternatives as required by G 102(2)(E)."
40 C.F. R.1508.9(b).
However, where as here, the action does not present an unresolved conflict of alternative uses of resources, those resources to be defined as the materials to be used in manufacturing and installation of the new spent fuel storage racks, then 5102(2)(E) does not require consideration of alternatives to the proposed action.
III.
The Board lacks Jurisdiction and is, Therefore, fiot Permitted to Consider a Cost-Benefit Balance or the fleed for Power in this License Amendment Proceeding.
A Licensing Board's jurisdiction is established by the Commission's rules and regulations.
Consumers Power Co. (14idland Plant, Units 1 and 2), ALAB-235, 8 AEC 645, 646 (1974); see 10 C.F.R. @ 2.717(a).
The jurisdiction of the Licensing Board is not independent, but is only that jurisdiction dele-gated to it by the Commission.
Public Service Co. of Indiana (fiarble Hill
_10/ This case involved a dispute as to whether a prison could be built on a tract of land slated for industrial development without preparation of a new EIS.
_ Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167,170 (1976).
A Licensing Board's action cannot either enlarge or contract the jurisdic-tion conferred upon it by the Commission, tiidland, ALAB-235, supra, at 646.
To determine what the jurisdiction of the Licensing Board is to be, the Appeal Board has stated that one must look to the notice of hearing in a particular case.
Houston Lighting and Power Company (South Texas Project, Units 1 and 2), ALAB-381, 5 NRC 582, 592 (19 77).
See Detroit Edison Conpany (Enrico Fenai Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 386 (1978);
riidland, ALAB-235, supra.
In the present case, a notice of proposed issuance of license amendment which involved this proposed spent fuel pool modification was issued on July 23,1979 (44 Fed. Reg. 43126).
This notice described the nature of the action to be taken as the installation of three racks in the spent fuel pool at Big Rock with a closer center-to-center spacing.
The notice went on to point out that this would result in an increase in storage capacity of the pool from 193 to 441 spent fuel assemblies.
In its notice of establishment of Licensing Board dated September 11, 1979 ;44 Fed. Reg. 52912) authority was delegated to the Licensing Board to preside cuer the instant proceeding.
In describing the action, that notice referred back to the July 23, 1979 notice of proposed issuance of license amendment.
In using this July 23, 1979 notice to detennine the extent of the Licensing Board's jurisdiction, the word " increase" should be the guiding factor. The notice does not give the Board a broad mandate to consider the environmental, health, or safety effects of the presently existing spent fuel pool.
Rather it focuses on the
increase that will result if this application for an amendment is granted.
It is that increase, and the health, safety, and environmental effects of that increase which are the subject of the present proceeding.
The need for the power of the Big Rock plant and a general ccst-benefit analysis involving the consideration of the impacts of continued plant operation have no relation to the incremental effects of the increase on the already existing impact of plant operation.
For the purposes of this proceeding, the Licensing Board must only look at the increase in the environmental impacts, if any, to be caused by the increased storage of spent fuel at the Big Rock site.
To do an extensive analysis of the impacts of plant operation in the context of this proceeding, just because it is possible that without this anendment the Big Rock facility might have to shut down in the future, is enlarging the jurisdiction granted to the Board in the July 23, 1979 notice of proposed issuance of license amendment.b Such an enlargement is not permitted.
Midland, ALAB-235, supra.
C0f1CLUSION For the reasons set forth above the Staff concludes that:
1)
Consideration of either a cost-benefit analysis or the need for power is not required in a license amendment proceeding where the proposed 1_1_/ In addition, the Board faces a jurisdictional problem when it makes deteminations in this license amendment action which really affect the continuation of the original 40-year operating license itself.
Questions concerning whether such a 40-year license should be suspended or revoked give rise to a proceeding differant from that over which this Board has jurisdiction.
_ action is found to have an insignificant effect on the quality of the human environment, regardless of the fact that this license amendment might be necessary for the continued operation of the facility.
2)
Section 102(2)(E) of NEPA does not require analysis of alternatives in this spent fuel pool nodification proceeding, since there are no unre-solved conflicts concerning alternative uses of the resources involved here.
3)
The Board is not permitted to consider either a cost-benefit analysis or the need for Big Rock power in some other context in this proceeding, since it lacks the jurisdiction to do so.
Respectfully submitted, Janice E. Moore Counsel for NRC Staff dated at Bethesda, Maryland this 3rd day of Fbrch,1980.
U'dlED STATES OF A'lEM CA
.,UCLEAR REGJLATCRY CO'.<!iSION BEFORE THE AT0"'C SAFETY A' D LICENSING BOARD In the "atter of
)
)
CONSUMER $ P0'lER C0"PANY
)
Docket No. 50-155
)
(Fig Rock Pcint Nuclear Po..er
)
(Spent Fuel Fool Modification)
Station)
)
CERT]FICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPON5E TO BOARD QUESTION, in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, throigh deposit in the Nuclear Regulatory Connission's internal mail system, this 3rd day of March, 1980.
- Mer: Ert 3rcssran, Esq.
Joseph Gallo, Esq.
Atcr.it Safety and Licensing Isham, Lincoln & Beale Board Pane'.
1050 17th Street, N.W., P701 U.S. Nuclear Regulatory Conmission Washington, D. C.
20036 Washing *.on, D. C.
20555 John A. Leithauser
- Dr. Oscar H. Paris Energy Resources Group Atomic Safety and Licensing Northwest Coalition Board Panel 350 Route One U.S. Nuclear Regulatory Commission Levering, MI 49755 Washington, D. C.
20555 John O'Neill, II
- Mr. Frederick J. Shon Route 2, Box 44 Atcr.iic Safety and Licensing Maple City, Michigan 49654 Board Panel U.S. Nuclear Regulatory Commission Christa-Maria Washington, D. C.
20555 Route 2, Box 103:
Charlevoix, MI 49720 Philip P. Steptoe, Esq.
Michael I. 11 iller, Esq.
Ms. JoAnne Bier Ishan, Lincoln & Beale 204 Clinton One first National Plaza Charlevoix, MI 49720 Suite 4200 Chicago, Illinois 60603 Barbara J. Godwin 306 Clinton Charlevoix, MI 49720
.- 'At ic Sefety and Licen ing Ms. Marcy Ercien s
4:, cal E'ard Punel 401 Alice Street c
U.(. ' ucicar Regulatory Ccccnission Charlevoix, Michigan 49720
-: ' ; t c n, D. C.
20555 Mrs. W. W. Schaefer, Chairman ic Safety ar d Licensing Ra dioac tive 1.'aste Mar.agement
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j Tanel Study Co>nittee U.t.
.,;' ear Pc..;1atory Co<.issicn Lake Michigan Fcuridation
'! ~_ en, D. C.
2C555 c/o 3741 Voehler Drive Chet,oygan, f ichigan 49721
+:;-; e'.ing ar,d Service Section U
.; 1.ar Regulatcry Cormission
}:arin P. Sheldon, Esq.
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,'tr, D. C.
2Ca55 Sheldon, Harmon & Weiss 1725 1 Street, fi.W.
Judd L. E3 con, Esq.
Suite 506 Con v ers Fot.er Cor..;.any 1lashington, D. C.
20306 212 '.. st Michican Avenue Ja-!o:n,Michi$an 49231 Mr. Gordon Ec$ne
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411 Pine Boyne City, MI 49712 Mr. T.% as Da ann Route 3, hx 241 Cr.arle.oix, MI 49720 f
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Janice E. Moore Counsel for i1RC Staff D
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