ML19320D714
| ML19320D714 | |
| Person / Time | |
|---|---|
| Site: | 05000599, 05000600 |
| Issue date: | 07/18/1980 |
| From: | Goldberg S, Bradley Jones NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 8007220110 | |
| Download: ML19320D714 (27) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of -
)
)
~ COMMONWEALTH EDISON COMPANY, et al.
.)
Docket Nos. S50-599
)
S50-600 f
-(Carroll County Site)
-)
NRC STAFF BRIEF IN OPPOSITION TO PETITIONERS' APPEAL FROM LICENSING BOARD'S ORDER DENYING PETITION TO INTERVENE f,
h Steven C. Goldberg Counsel for NRC Staff l~
Bradley W. Jones Counsel for NRC Staff I
July 18, 1980' s oors:oJ //e#r Cr
i TABLE OF CONTENTS Page I.
Introduction........................
1 II.
Statement of the Case 2
III.
Issues Presented on Appeal.................
4 IV.
Argument...
4 A.
Petitioner Gogol....................
4 1.
Petitioner Gogol's appeal from the Licensing Board's order is untimely 4
2.
The Licensing Board did not err in finding that Petitioner Gogol lacked standing..........
5 3.
Petitioner Gogol should not be allowed to intervene as a matter of discretion.........
5 B.
Petitioners CANP and Runyon 7
1.
The Licensing Board did not err in finding the contentions presented by Petitioners were not within the scope of the early site review 8
2.
Petitioners' argument that a complete environmental impact statement relative to nuclear power plant construction is required for an early site review constitutes an impermissible challenga to the Commission's early site review regulations 22 V.
Conclusion.........................
23
11 TABLE OF CITATIONS Page CASES Appalachian Mountain Club v. Branigan, 394 F.Supp.105 (D.N.H. 1975)..........................
14 Goge v. Commonwealth Edison Co., 356 F.Supp. 80 (N.D. Ill. 1972) 19 National Resources Defense Council v. USNRC, 539 F.2d 824 (2d Cir.1976), cert, granted, 430 U.S. 944 (1977), vacated and remanded on other grounds, 434 U.S. 1030 (1978)... I-~.
14, 17 Scientists' Institute for Public Information v. AEC, 481 F.2d 1079 (D.C. Cir. 1973) 19 Sierra Club v. Morton, 514 F.2d 856 (2d Cir.1975) 14 Upper Pecos Association v. Stans, 328 F.Supp. 332 (D.N.M. 1971), aff'd., 452 F.2d 1233 (10th Cir. 1971)......
15 NRC CASES i
Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-146, 6 AEC 631 (1973) 5 STATUTES 42 U.S.C. 4321, et,seg.
2 REGULATIONS 10 C.F.R. 9_2.101(a-1) 8, 9, 11, 18, 22 10 C.F.R. 5 2.600.........................
22 10 C.F.R. 1 2.604.........................
9, 22 10 C.F.R. 5 2.605.........................
10, 14 10 C.F.R. 5 2.606 10, 12, 18, 23
--~
q
iii TABLE OF CITATIONS (Cont.)
Page REGULATIONS (Cont.)
10 C. F. R. 5 2. 714........................
3, 5, 7 c.
10 C.F.R. 5 2.714a 1, 4 10 C. F. R. 5 2. 7 58........................
23 1
10 C.F.R. Part 50......................
8 10 C.F.R. 5 50.10........................
10 10 C.F.R. 5 50.30(f) 8 10 C.F.R. 5 50.34(a)(1).....................
8 10 C. F. R. Pa r t 51........................
8, 12 10 C. F. R. 5 51. 5 10 10 C.F.R. Part 100 8, 21 10 C.F.R. I 100.10 21 10 C.F.R. 5 100.11 21 40 C. F. R. 5 1502. 28.......................
12, 13 OTHER i
42 Fed. RegL. 22882-84......................
8, 11, 17
\\
44 Fed. ReSL. 26229 2, 9, 12 e
1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of COMMONWEALTH EDIS0N COMPANY, et al.
)
Docket Nos. S50-599
)
S50-600 (Carroll County Site)
)
NRC STAFF BRIEF IN OPPOSITION TO PETITIONERS' APPEAL FROM LICENSING BOARD'S ORDER DENYING PETITION TO INTERVENE I.
INTRODUCTION On June 12, 1980, Petitioners Citizens Against Nuclear Power (CANP), James Runyon, and Edward Gogol filed a Notice of Appeal from the Licensing Board's
" Memorandum and Order Re: Contentions," dated May 30, 1980, pursuant to 10 C. F.R. 9 2.714a. The decision followed the Board's "Memorandem of Special Prehearing Conference and Order," dated October 10, 1979, in which the Board ruled on the several intervention petitions filed herein and specified the contentions it had tentatively admitted for litigation. That Order pennitted the petitioners to submit briefs in support of any conten-tions previously filed which had been rejected therein. The May 30 Memo-randum and Order followed the submission and consideration of such responses.
In its May 30 decision, the Board rejected the contentions advanced by Peti-tioners CANP and Runyon on the grounds that they fell outside the scope of the early site review and thereby denied their joint petition.
Peti tioners argue on appeal that certain of their contentions were improperly rejected on the apparent grounds that they must be presently litigated under the environmental impact statement requirement of the National Environmental Policy Act (NEPA).
(42 U.S.C. 5 4321, el seq.).
The NRC Staff believes that the Board properly ruled that the rejected contentions are outside the scope of the early site review as prescribed by Commission regulation and the present notice of hearing. The Staff further submits that it is not required to prepare an environmental impact statement relative to nuclear power plant construction and operation at this early site review stage of the proceeding.
II.
STATEMENT OF CASE This proceeding was instituted upon publication of a " Notice of Hearing and Application for Construction Pemits and Request for Early Site Review" by the Secretary of the Commission on May 4, 1979.
(44 Fed. Rg. 26229.)
In i
response to the notice of hearing, the Board received seven petitions to intervene.
Four of the seven petitions were granted.
As relevant to this appeal, a petition for leave to intervene was filed by James Runyon and Edward Gogol on behalf of themselves and as members of CANP.
These same petitioners filed an amended petition, including a state-ment of contentions, on September 4,1979. A special prehearing conference was held on September 19, 1979 to consider intervention petitions. On October 10, 1979, the Board issued its Memorandum of Special Prehearing
f Conference in which it made certain tentative and final intervention rulings.
The Board ruled that Petitioner Gogol lacked standing to intervene in this matter. The Board consolidated the petitions of CANP and Mr. Runyon which it tentatively granted. The Board did not admit any of the fifteen conten-tions advanced by Petitioners CANP and Runyon, but reserved judgment on the admissibility of proposed contention 15 regarding evacuation plans.
(Order at 2,13. ) No notice of appeal was taken from the denial of the interven-tion petition of Edward Gogol therein.
On November 23, 1979, Petitioners CANP and Runyon moved the Board for leave to file a second amended petition to intervene, containing four newly pro-posed contentions. That motion was opposed by Commonwealth Edison Company (Applicant) and the NRC Staff on the grounds that it failed to satisfy the applicable requirements for untimely filings set forth in 10 C.F.R. @ 2.714.
In the Board's May 30, 1980 decision, all of the contentions of Petitioners CANP and Runyon were rejected as falling outside the scope of the early site review and their joint petition was thereby denied.
(Order at 11-12.)
Petitioners' motion to amend their contentions was similarly denied. The Board did indicate that CANP would have the right to submit a petition to intervene at the later construction pemit hearings, at which time many of its original contentions would be suitable.
Id.
The Board made no further reference to Mr. Gogol.
III.
ISSUES PRESENTED ON APPEAL 1.
Whether the Licensing Board correctly determined that Petitioner Gogol lacked standing to intervene in this early site review.
2.
Whether the Licensing Board correctly rejected Petitioners' conten-tions because they fall outside the scope of this early site review.
3.
Whether the Licensing Board correctly interpreted the Commission's early site review regulations which provide for early assessment of site suitability issues.
- V. ARGUMENT A.
Petitioner Gogol 1.
Petitioner Gogol's appeal from the Licensing Board's order is untimely The intervention petition of Edward Gogol was denied in the Board's October 10, 1979 Order for lack of standing.
This decision was not appealed pursuant to the applicable terms of 10 C.F.R. 5 2.714a. The present appeal was filed many months af ter the deadline set by_ the terms of 10 C.F.R. Q 2.714a.
Hence, this exceedingly untimely appeal should not be entertained by the Appeal Board.
- 2.
The Licensing Board did not err in finding that Petitioner Gogol lacked standing In any event, the Board's denial of the Gogol petition was correct. Mr. Gogol resides about 133 miles from the proposed site. He has alleged that some indistinct economic, property and health and safety interests would be adversely affected by operation of a nuclear plant at the proposed site.M Petitioner resides at a distance far in excess of any distance recognized as falling within the geographical zone of interest in NRC proceedings.E Similarly, there is no claim that Mr. Gogol conducts substantial activities of any kind in close proximity to the proposed site. Hence, Mr. Gogol is not entitled to standing as a matter of right.
3.
Petitioner Gogol should not be allowed to intervene as a matter of discretion Even though Petitioner Gogol is not entitled to intervene as a matter of right, the Appeal Board could grant him intervention as a matter of discre-tion.
In this regard, it should be guided by the circumstances of the case and the factors set forth in 10 C.F.R. 5 2.714(a). These factors are (i) good cause, if any, for failure to file on time, (ii) the availability of Other means whereby petitioner's interest will be protected, (iii) the extent to which petiticner's participation may reasonably be expected to assist in developing a sound record, (iv) the extent to which petitioner's lf Intervention petit.71on, dated June 11, 1979; Transcript of Special Prehearing Conference at 15.
t Units 1 and 2)ginta Electric & Power Co. (North Anna Power Station, y
See, Je.., Vir
, ALAB-146, 6 AEC 631 (1973).
1
. _ _ interest will be represented by existing parties, and (v) the extent to which petitioner's participation will broaden the issues or delay the proceeding.
Petitioner Gogol does not directly address the requisite factors. The first factor is inapplicable. With regard to the second factor, Petitioner's primary interest appears to be over possible accidents at a nuclear plant located at the Carroll County site. These matters will be considered in a later phase of the proceeding. With regard to factor three, Petitioner indicates that he has an undergraduate degree in chemistry and is taking graduate studies in environmental radioactivity and nuclear safety.3/ There is no indication, however, that Petitioner possesses any special expertise in the area of site suitability which might contribute to the development of the record. Any expertise that Petitioner might possess would relate to safety and environmental issues regarding operation of the plant. These issues will be considered at a separate phase of the licensing process for which the petitioner can seek intervention.
Factors four and five cannot reasonably be assigned any weight for purposes of this discussion since Petitioner has not advanced any admissible contentions.
Thus, his partici-pation in this matter is precluded.
3/
Special Prehearing-Conference, Tr. at 15.
f l
l Irrespective of this, Petitioner's proposed contentions are identical to those of Petitioner CANP, of which he ic a member.
If any of these conten-tions are deemed suitable for consideration at this phase of the proceeding, Petitioner CANP can adequately prosecute such issues.
Petitioner Gogol's additional participation on these issues can only result in unnecessary delay and duplication. Accordingly, a consideration of the above factors militates against granting Petitioner Gogol standing as a matter of discretion.
8.
Petitioners CANP and Runyon In its May 30, 1980 decision, the Board ruled that Petitioners CANP and Runyon had failed to advance a contention that fell within the scope of the early site review phase of the proceeding, and had thus failed to satisfy the pertinent intervention requirement of 10 C.F.R. 9 2.714.0 Therefore, the Board denied their intervention petition. Petitioners CANP and Runyon argue that the Board improperly rejected contentions 1 (need for power), 2 (alternative energy sources), 4 (cost-benefit balance), 6 (financial profita-bility of alternative energy sources), 7 (spent fuel storage), 8, 9 (long-tenn waste management),10 (decommissioning),11 (cost of waste management and decommissioning), and 13 (accident analysis).E For the reasons given below, the Staff disagrees.
_4f The Board had previously rejected all but one of Petitioners' proposed contentions on these grounds. Special Prehearing Conference, Tr. at 51-52.
_5/
Petitioners do not take exception to the rejection of five additional proposed contentions.
1.
The Licensing Board did not err in finding that the contentions proposed by Petitioners were not within the scope of the early si te review (1) Commission Regulations Early site review procedures pemit a construction pemit applicant to obtain resolution of important site-related issues which may prove disposi-tive of an application to construct a particular facility at a particular site well in advance of any substantial commitment of resources.6/ Accord-ingly,10 C.F.R. 9 2.101(a-1) provides that an applicant for a construction pemit "may request that the Commission conduct an early review and heari, j and render an early partial decision in accordance with Subpart F on issues of site suitability within the purview of the applicable provisions of Parts 50, 51, and 100...."
In such instances, a construction pemit dpplicant may submit the infomation required of it in four parts. Part one of the information required must include any infomation required by 10 C.F.R. 6 50.34(a)(1) (the preliminary safety analysis report) and 10 C.F.R. 9 50.30(f) 6]
As explained in the statement of consideration accompanying promul-gation of the final early site review provisions:
These procedures would pemit an applicant for a construction pemit to obtain resolution of important site-related issues which may prove dispositive of an application to construct a facility at a particular site well in advance of any substantial commitment of resources. By pemitting early review and providing a measure of certainty in this important area, these procedures are expected to increase the effectiveness of the licensing process in resolving legitimate public concerns and to enhance the effectiveness of the nuclear facility planning process. 42 Fed. Reo. 22882 (May 5, 1977).
- (the environmental report) "which relates to the issue (s) of site suitability for which an early review, hearing and partial decision are sought...."
including, among other things, " proposed findings on the issues of site 3
suitability on which the applicant has requested review...." (10 C.F.R. 5 2.101(a-1)(1).)
If an applicant for a construction pennit requests an early partial initial decision on the issues of site suitability pursuant to 10 C.F.R. 5 2.101(a-1), then the notice of hearing setting forth the issues to be considered "shall be modified so as to relate only to the site suita-bility issue or issues under review." (10 C.F.R. Q 2.604(a).) These do not encompass specific safety and environmental issues associated with a specific plant of a specific design at a designated site. These considerations will generally be considered at the construction permit phase of the proceeding.
The issues designated for early consideration in the notice of hearing published by the Commission in this instance are:
whether, from both an environmental and safety standpoint, the Carroll County site is suitable with respect to:
geology, hydrology, meteorology, terrestrial and aquatic ecology, water use, regional demography, community charac-teristics, economy, historical and national landmarks, land use, no) e considerations and aesthetic.c.
(44 Fed. Ryg. at 26229.)
7/
In its answer to the Notice, the Applicant expressed its assumption that certain environmental and safety findings respecting seismology, heat dissipation systems, and alternatives to the proposed site were encompassed within the prescribed list of issues. The Staff is pro-ceeding under a similar assumption.
- _ _ _ _ _ _ _ _ _ _ - _ _ _ - Petitioners do not claim that the rejected contentions singled out on appeal fall within the scope of the issues specified in the notice of hearing or the Applicant's proposed findings on site suitability issues.
Rather, they contend that such contentions must be presently litigated under the NEPA.
The gravamen of Petitioners' argument is that an early site review is a major Commission action significantly affecting the environment so as to require the preparation of an environmental impact statement pursuant to Section 102(2)(C) of NEPA that will presumably embrace consideration of the matters raised in the contentions.
Section 51.5(a) of the Commission's regulations identify specific types of actions for which an environmental impact statement is required. An early decision on site suitability issues is not among such actions. Nor do the Commission's early site review regulations themselves contain such a require-ment. By contrast, the regulatory provisions governing issuance of a limited work authorization expressly state that no such authorization shall be granted absent completion of an impact statement and the requisite findings required by Part 51 prior to the issuance of a construction permit. (10 C.F.R. 6 50.10(e).) Moreover, section 2.605 of the early site review regulations includes specific language under which the Commission, in its discretion or upon motion of any party, may decline to render an early partial decision on any site suitability issue, if, among other things, such a decision would i
lead to an irreversible and irretrievable commitment of resources that would prejudice a later review and decision on alternative sites. That is not the situation which obtains here since an early alternative site com-parison will be perfomed.
Thus, had the Commission intended to predicate issuance of an early decision on site suitability issues upon the preparation of a prior impact statement it could have so indicated. There is no such indicatior 'n the regulations.
However, whether ar *
'y site review, standing alone, constitutes a major Commission action significantly affecting the environment or not is immaterial herein since an environmental impact statement relative to that review will be prepared by the Staff in this case.
This statement will consider the site suitability issues for which an early decision is sought, including an evaluation of alternative sites. When the balance of the construction permit application is filed, the Staff will prepare a completed impact statement.
This is wholly consistent with the early site review regulaHons. As earlier noted, the regulations require that an applicant must only submit an environ-mental report relevant to the issues for which early consideration is sought.
(10 C.F.R. 5 2.101(a-1).) As explained in the applicable statements of con-sideraticn:
"the scope of the NEPA review will depend in any given instance on the nature of the site suitability issues submitted for review."U The regulations expressly provide that no limited work authorization or construc-tion permit may be granted without completion of a full impact statement y
42 Fed. M. at 22884
_ _ _ _ pursuant to the requirements of NEPA and 10 C.F.R. Part 51.
(10 C. F.R.
5 2.606.) This will ensure the elimination of any " gaps"U n the impact i
sta tement.
This delineation in the NEPA review process is aptly reflected in the Com-mission's present notice of hearing which provides that, as relevant to the Commission's responsibilities under NEPA, the Licensing Board will:
(1) detennine whether the requirements of Section 102(2)(A),
(C), and (E) of NEPA and 10 C.F.R. Part 51 have been complied with in this proceeding; (2) independently consider the final balance among conflicting factors contained in the record of the proceeding; and (3) detennine, after weighing the environ-mental, economic, technical and other benefits against environ-mental and other costs, the suitability of the site with respect to the factors reviewed.
(emphasisadded)
(44 Fed. Reg, at 26229.)
The Staff intends to fulfill these requirements in its impact statement regarding site suitability.
(ii) Council on Environmental Quality Guidance The Council on Environmental Quality (CEQ) has given tacit, if not explicit, approval to the bifurcated environmental review process envisioned in the Commission's early site review regulations. CEQ regulations have recognized that distinct but sequential impact statements may be appropriate at different stages of a particular action.
(40 C.F.R. 9 1502.20.) This concept, denomi-nated " tiering," is pennissible when the sequence of analyses is:
9/
ld.-
From an environmental impact statement on a specific action stage (such as need and site selection) to a at an early(which is preferred) or a subsequent statement or supplement analysis at a later stage..."
(40 C.F.R. 5 1502.28)
That is precisely the situation which obtains in the case at bar.
Moreover, in comments on the draft early sitt review regulations, CEQ indi-cated that its concern over, what it tenned, a " piecemeal" approach to compliance with NEPA would be satisfied if the regulations provided that no construction pennit or LWA will be issued without a complete NEPA review.N The final early site review regulations, as noted above, contain this proviso.
(iii) Applicable Case Law The Staff believes that it may properly prepare an impact statement regard-ing the merall construction pennit application in two stages -- a limited statement at the early site review phase and a completed statement at the later construction pennit phase. Thus, the central question appears to be when, and not whether, such a completed statement should issue.
Petitioner contends that it must issue now. The Staff submits that it must issue later. As the Second Circuit observed:
J0f See letter from G. Speth, CEQ, to then NRC Chairman Rowden, dated 0
April 27,1977, a copy of which is attached hereto.
Decisions dealing with nuclear power plants have cmphasized that the crucial objective for the NEPA decision is the pre-operating license stage where construction is allowed to proceed with its attendant massive investment of capital and manpower.E A partial decision on site suitability issues does not represent such a stage.
Indeed, just the contrary is truc.
By fostering early considera-tion of site suitability and alternative sites, the Commission's early site review regulations serve to eliminate potentially unnecessary capital invest-ment in the prosecution of a construction pennit application when the pro-posed site is either unsuitable or comparatively inferior.12l An early site review further serves to reduce the potential that such investment will tip the overall cost-benefit balance in favor of the proposed site.
In Sierra Club v. Morton,b the Second Circuit prescribed four factors to be applied to detennine when the time is ripe for an impact statement to issue with respect to a particular federal action. These factors are:
11/ Natural Resources Defense Council v. NRC, 539 F.2d 824 (D.C. Cir.1976),
cert. granted 430 U.S. 944 (1977), vacated and remanded on other grounds, 434 U.S.1030 (1978).
1_2f Cf. Appalachian Mountain Club v. Branigan, 394 F.Supp.105,119 TE.N.H.1975). However, the Commission's early site review regula-tions also provide that the Commission may, on its own initiative or that of a party, decline to render an early decision on any issue (s) of site suitability in cases where certain public interest considera-tions militate against such a decision.
10 C.F.R. 5 2.605(b).
13/ 514 F.2d 856, 880 (2d Cir.1975).
How likely is the program to come to fruition, and how soon will.that occur? To what extent is meaningful infomation presently available on the effects of implementation of the program, and of alternatives and their effects? To what extent are irretrievable commitments being made and options precluded as refinement o" the proposal progresses? How severe will be the environmental effects if the program is implemented?
The Staff believes that a balancing of these factors leads to the conclusion that a complete impact statement on nuclear construction and operation need not be perfomed at the early site review stage of the precess.
With regard to factor one, a favorable decision on site suitability is essential to a construction permit application. Conversely, an unfavorable decision at this stage would likely eliminate the desire to complete the construction permit application. Thus, a decision on actual construction is relatively remote and consideration of this facur conmends a cmpleted impact statement at the later construction permit stage.$
14/ The case of Upper Pecos Association v. Stans, 328 F.Supp. 332 (D. N.M.,
1971), aff'd. 452 F.2d 1233 (10th Cir.1971), constitutes an analogous situation from a timing standpoint.
In that case, the plaintiffs chal-lenged the failure of the Econmic Development Administration to issue an impact statement prior to its approval of a grant for a highway proj-ect in New Mexico. The plaintiffs alleged that the grant approval was a major federal action requiring a cmplete NEPA review of the entire project. The District Court below ruled that the Forest Service was the lead agency for purposes of cmpliance with NEPA regarding the v.'ect and found that, since a full impact statement would be issuer x u e the Forest Service would authorize the project to be built '.i
' n.
site approval) NEPA was met. The Court of Appeals affimed,..rt-c the significance of the time selected for environmental review.
noted that the location, construction plans, and specifications roi the project had yet to be approved.
It indicated that it was in connection with that decision that an impact statement was necessary.
l i
With regard to factor two, an early site review entails consideration of site suitability for a facility of the general type and design proposed.
The specific design feature
>f the particular plant will be developed later
~
and are not available at present to aid in preparing an environmental state-ment on the entire project. Hence, there is no present data base upon which to perform an environmental evaluation on the precise impacts of construction and operation of this specific plant. Therefore, consideration of this fac-tor commends consideration of these matters in the later impact statement.
With regard to factor three, a decision on site suitability does not repre-sent an " irretrievable commitment" to construct a nulcear plant at the proposed site. While the revenues expended in the prosecution of an early site review request may not be readily applied if some alternate course of action is taken, valuable infonnation will, nonetheless, be obtained which could be beneficial to some alternate use of the proposed or alternative sites. Moreover, an unfavorable decision on site suitability would likely result in the temination of the construction pemit application and the consequent saving of additional revenues. Nor are there other options precluded even in the event of a favorable decision on site suitability.
Before a plant can be built at that location, an impact statement must be prepared, and hearings held, which will consider, among other things, alter-native energy sources, the need for the plant, and site-specific construc-tion impacts. Any one of these considerations could lead to ultimate denial of the construction permit application. Therefore, consideration of thir factor does not mandate an early impact statement.b With regard to factor four, a decision on site suitability will not alter the environment. Construction cannot begin until the grant of a construc-tion permit which will be preceded by a completed impact statement. Thus, this decision is " neutral"E in its environmental impact. Therefore, this factor, coupled with the previous three, weighs in favor of a later state-ment. The autho-ity cited by Petitioners in their appeal brief does not mar. Ate a contrary result.
Petitioners 'irst cite Natural Resources Defense Council v. USNRC, supra n.11, in support of their position that an early site review is a major Federal action significantly affecting the environment. NRDC v. USNRC involved a challenge to interim NRC licensing of construction of nudar separation and reprocessing facilities, conversion of light water reactors to use of mixed oxide fuel, and the implementation of interim safeguards for the transportation of a deadly and highly radiotoxic nuclear material. The J_5f As the applicable statement of consideration provides:
By requiring applicants to furnish information concerning their site selection process as part of their request for early review and by providing for the findings described above, the Commission expects to avoid significant premature commitments of resources to sites which may prove unacceptable when compared with alternative sites. 42 Fed. _R_eg,. at 22884 (May 5,1977).
C,f,. NRDC v. NRC, supra, 539 F.2d at 844.
-1_6]
6 f
I court therein held that the interim activity was a major federal action since it was, in all material respects, the equivalent of fomal licensing and tended to "tip the scale" towards the widescale use of uranium and plutonium mixed oxide fuel. 539 F.2d 844.
Petitioners maintain that aa early site review will similarly "tip the scale" towards the approval of the construction of the nuclear power unit so as to qualify as a major Commission action. Brief at 7.
The instant situa-tion is distinguishable, however, both in nature and affect. The present case does not involve a generic matter having widespread policy impl' cations.
Moreover, by express regulation, a partial decision on site suitability does not authorize construction. That authority cannot be obtained until an appli-cation has undergone a full environmental evaluation consistent with NEPA and applicable Commission requirements.E An early site review can help ascertain whether a proposed nuclear site is suitable from a siting stand-point and preferable to alternative sites.
Indeed, rather than sewing to "tip the scale" toward approval of the construction permit, an early site review lessens the risk that expenditures in site selection and evaluation will "tip" the overall NEPA cost-benefit balance in favor of the proposed si te. Whether or not a plant can be built at that site without significant adverse environmental impacts is detemined at a different juncture following a complete envir,onmental evaluation.
ly 10 C.F.R. 59 2.101(a-1), 2.606(a).
< The other precedents cited by Petitioners are similarly inapposite. The case of Gage v. Commonwealth Edison Co., 356 F.Supp. 80 (N.D. Ill.1972),
cited by Petitioners, involved a request to enjoin the purchase of land for
~
a proposed nuclear power plant until a pending construction permit applica-
~
tion filed with the then Atomic Energy Commission (AEC) had undergone an environmental evaluation. The court denied the injunction on the ground that the mere receipt of an application did not constitute major federal action under NEPA. Nonetheless, inL dictum, the court noted that the AEC might have been under a duty to prepare an environmental statement if it actually conferred prior " location approval" to the applicant's land acqui-sition therein.18/
That is not the statutory practice nor the case here. Unlike the case in Gage, the Applicant already owns the Carroll County site.
In addition, no construction can be commenced at that site until the construction pennit application, in its entirety, has undergone prior safety and environmental review.
Petitioners also cite approvingly from Scientists' Institute for Public Infor-mation v. AEC (SIPI), 481 F.2d 1079 (D.C. Cir.,1973).
SIPI dealt with a federal program involving technology research and development of the liquid 18/ Brief at 7, citing 356 F.Supp. at 85.
metal fast breeder reactor. Citing legislative history of NEPA,I9/ the court found that such a program constituted a major federal acticn within the meaning of the statute and must be preceded by a programmatic impact statement.
The present case does not involve a federal commitment toward a technology development program with broad public and policy implications. All that is involved is an early consideration of issues relevant to the suitability of a particular site for a proposed light water reactor. A favorable decision thereon is not necessarily detenninative of whether a plant can and will be built in such a location and, standing alone, will not entail any environ-mental impact whatsoever.
(iv) Petitioners' Contentions The Licensing Board Order states that the contentions Petitioners have raised are not related to issues to be considered at the site suitability hearing.E The Staff agrees. The rejected contentions fall outside the scope of the issues designated for consideration in the notice of hearing.E 19/ The court referenced congressional hearings in which, according to the court, it was made evident that the tenn " actions" refers not only to construction of a specific facility but includes " project proposals, policy statements, or expansion or revision of ongoing programs." 481 F.2d at 1088.
20/ See also Special Prehearing Conference Transcript at 51-52.
& See discussion supra at 9.
As earlier explained, those issues are derived from the Applicant's specifi-cation of issues of site x tability for which early evidentiary considera-tion is sought. These do not encompass specific safety and environmental impact issues relative to particularized plant features unavailable at this stage of review. These considerations will generally be considered at the construction permit phase of the proceeding.
Contentions 7, 8, 9,10, and IN deal with issues concerning eventual operation of a nuclear power plant and safety issues related thereto.
Contentions 1, 2, 4, 6, and 11 deal generally with issues appropriate for consideration in connection with the cost-benefit analysis which must be perfomed in reaching a decision on whether to actually authorize construc-tion. None of the contentions relate to issues of site suitability or
,2_2/ Proposed contention 13 states that "the accident record of U. S. commer-cial power reactors indicates a strong possibility of meltdown of the Carroll County reactor cores, if they are built." The contention refers to certain plants which purportedly " suffered severe accidents and/or came close to meltdown."
The extent to which the risk of a facility accident beyond a generalized design envelope is influenced by certain site-specific characteristics is potentially relevant to a consideration of site suitability. The Com-mission's siting criteria in 10 C.F.R. Part 100 recognize that certain physical characteristics of a site could have a bearing on the consequences of radiological releases from a particular facility at that location (see 10 C.F.R. 9100.10(b), (c)) and in the detennination of an exclusion area and low population zone (see 10 C.F.R. 9100.11). The regulations also recognize the importance of specific reactor design in reducing the risk of a serious accident (see 10 C.F.R. 9100.10(a), (d)).
Proposed conten-tion 13 evinces a generic concern over the consequences of a serious accident. However, there is no nexus drawn between this generalized concern and the specific characteristics of the Carroll County site for which an early review is sought. Moreover, the planned reactor design, including the engineered safety features designed to prevent a serious accident, will be submitted and reviewed at the later construction pennit stage of the proceeding. Therefore, it would be premature to consider the issue underlying this contention at this time.
. alternative sites aad suffer the same ganeral defect. They introduce fac-tors potentially relevant to actual plant construction and operation. No decision on site suitability issues, however, can authorize the commence-ment of construction.
It can only detemine whether this particular site is suitable from the siting standpoints considered and how the site compares with alternatives thereto. The contentions were, therefore, properly rejected as being outside the scope of the early site review being undertaken.
2.
Petitioners' argument that a complete environmental impact state-ment relative to nuclear power plant construction is required for an early site review constitutes an impemissible challenge to the Commission's early site review reaulations The matters raised in the referenced contentions are unrelated to the specific issues of site suitability for which a partial decision is sought, and other-wise lie outsid9 ' te scope of the early site review portion of the proceeding.
(10 C.F.R. 9 2.604(c).)
Petitioners argue that the environmental evaluation which must be perfomed in connection with a complete construction pemit application must be conducted at this juncture.
Petitioners wholly ignore the regulatory authority under which this proceeding has been initiated.
(See 10 C.F.R. 9 2.101(a-1); 9 2.600, et sea; see also Conunission notice of hearing.) Specifically, the regulations pemit early consideration of site suitability issues as the first part of a construction pemit application.
The Commission's environmental review is initially confined to evaluation of those specific issues.
(10 C.F.R. 99 2.101(a-1)(1), 2.604.)
At a subsequent stage in the application process, the balance of the in-fomation required of construction permit applicants must be submitted and the necessary environmental and safety review perfomed. A favorable partial decision on site suitability issues does not authorize either preconstruc-tion (limited work) or construction activities.
No construction pemit may be issued without completion of a full environmental impact statement pur-suant to the requirements of NEPA.
(10 C.F.R. 9 2.606(a).) Thus, Peti-tioners' argument that the entire environmental review on construction of the plant must be performed at the early site review stage of the process would effectively negate the early site review regulations by requiring consideration of issues other than those specifically related to site suita-bi l i ty.
Such an argument is in effect a challenge to the Commission's regulations in this proceeding in contravention of 10 C.F.R. $ 2.758.E V.
CONCLUSION In light of the above, the Staff opposes the present appeal and urges that the Licensing Board's denial of the intervention petitions of Edward Gogol, CANP, and James Runyon be upheld.
Respectfully submitted, h!N Steven C. Goldberg Counsel for NRC Staff Bradley '. Jones Counsel for NRC Staff Dated at Bethesda, Maryland this 18th day of July, 1980.
23/ Such a challenge cannot be effected through the mere submission of con-tentions. H. Northern States Power Company (Monticello Nuclear Gener-ating Plant, Unit 1), CLI-72-31, 5 AEC 25 (1972).