ML19329E986

From kanterella
Jump to navigation Jump to search
Brief for Petitioners.Aec Violated NEPA by Refusing to Establish Procedures for Meaningful Consideration of Environ Effects of Facilities Now Under Const.Calvert Cliffs Memorandum Encl
ML19329E986
Person / Time
Site: Calvert Cliffs, Midland  Constellation icon.png
Issue date: 03/04/1971
From:
BERLIN, ROISMAN, KESSLER & CASHDAN, NATIONAL WILDLIFE FEDERATION, Sierra Club
To:
Shared Package
ML19329E987 List:
References
NUDOCS 8006190764
Download: ML19329E986 (48)
v • d • e


Text

.~ -- l l

',' d '

. DOCKET NUMBER 2800. & UTIL, fE M Nt I(THE e UNITED STATES COURT OF APPEALS 4 FOR THE DISTRICT OF COLUMBIA CIRCUIT 1

.24,971 THIS DOCUMENT CONTAINS P00R QUAUTY PAGES '

CALVERT CLIFFS' COORDINATING COMMITTEE, INC.,

NATIONAL WILDLIFE FEDERATION, and THE SIERRA CLUB, .

Petitioners,

, v. .

U.S. ATOMIC ENERGY COMMISSION, United States of, America, l

// 4 {

DOCKETED Respondents.

I Q MEC 3

~

gp 4 BRIEF FOR PETITIONSRS e, Omci af rae karg <1 F6the Free egap Brno  !

8 '

\

N c) ANTHONY Z. ROI54AN BERLIN, ROISMAN AND KESSLER 1910 N Street, N.W.

Washington, D.C. 20036 Of Counsel:

Attorneys for Petitioners Myron M. Cherry, Esq.

111 West Monroe Street i Chicago, Illinois '

Ed Strohbehn, Esq.

  • Angus McBeth, Esq. Peter Cooper, Esq. ~

Natural Resources Defense Council 35 Elm Street

j 36 West 44th Street  : Robert Kennan, Esq.

Nnw York, New York 10036 National Wildlife Federation )

i 1412 16th Street, N.W.

Washington, D.C.

t Esatrice K. Bleicher, Esq.

7th Floor, Toledo Trust Bldg. / 2,M Tol e do., - ~ Ohio -- hl .~

M g.M Lcwi.s 80 0 8140 7f y*  ; % "&M Drain, 311 Waters. Building Esq.

h /N ^^*b 4'A g -

g o Grand Rapids, Michigan

g b * - c.. .

TABLE OF CONTENTS -

Page ISSUES PRESENTED . . . . . . .. 1 STATEMENT PURSUANT TO RULE 8 (d) . . . . . . . . 2 -

REFERENCES TO RULINGS . . . . . . . . 3 STATEMENT OF THE CASE , , . . . . . . 3 STATUTES AND REGULATIONS INVOLVED . . . . . . . . . 4 ARGUMENT .'

. . . . . . . 4 Introductio'n

. . . . .. . . . 4

~

A. The AEC Refuses to Accept Responsibility to Take Affirmative Action to Protect the Environment. .

. . . . , ,. . . 9 B. The AEC Illegally Postpones the Date

~ .

Upon Which it Will Comply with NEPA . . . . 11 C. The AEC Prevents a Full Consideration of the Environmental Impact of a Nuclear Power Plant by Totally Deferring to Any and All State, Regional, and Federal ~

, Environmental Standards. . . . . . . . - . 11 D. The AEC Will Permit bonstruction of Nuclear

'. Power Plants.to Proceed without Taking Steps to Provide the Highest Level of. Environmental Protection. .

,. . . . . . . . 12 IE. The AEC Refuses to Place as Much'. Emphasis on Environmental Protection as it does on Other Equally Important Matters of Public Interest. . . . . . . . g. 13 I. .The Atomic Energy Commission Violated the National Environmental Policy Act By Failing to Accept the Burden of Investigating Adverse Environmental Effects of Nuclear Power Plants in its Public Hearings

. . . . . . . . 14 II. The Atomic Energy Commission Violated the National Environmental Policy Act by Establishing March 4, 1971, as the First Date On Which It Would Begin Considering the Adverse Environmental Effects of

. Nuclear Power. Plants In Its Public Hearings 19 e - , , e,, ,. - - - - -,m, m,~, - e-*--

o s

' s. g* a g .

III. The Atomic Energy Commission Violated the National Environmental Policy Act by Refusing to Consider Any Evidence of the Adverse Environmental Effects of Nuclear Power Plants htere State, Regional or Federal Environ-mental Standards Exist

. .
. . . . . . 29 IV. The Atomic Energy Commission Viola'ted the National Environmental l'olicy Act by Refusing to Establish Procedures for Meaningful Consideration of Environmental Effects of Nuclear Power Plants Now Under Construction . .. . . . . . 36 CONCLUSION . ..._,.. . . . . . 42
  • [

a 8

m '

e

  • e s'

G

+

i

.. . i O

_ _. ._ .- m w -

__. . _ . - 4 AUTHORITIES CITED Page Cases

~

Brooks v. Volpe (W.D. Wash., September 25, 1970) . . . . 20 Cities of Statesville, et. al. v. AEC, U.S. App. D.C.

, F. 2d (1969) . . . . 40 City of Pittsburgh v. FPC, U.S. App. D.C. , 237 F.

2d 741 (1956)

, . . . . 40 Dell Publishing Co. v. Summerfield, 198 F. Supp. 843 (D.C.

1961) affirmed 113 U.S. App. D.C. 1,303 F. 2d 766 . . 14 East Texas Motor Freight Lines v._U.S., 96 F. Supp 424, 427-428 (N . D . Tex., 1951) . . . . 14 Eastern Central Motor Carriers Association v. U.S.', 239 F. Supp. 591, 594-595 (D .C . , 1965) . . . . 14 Environmental Defense Fund, Inc. v. Finch, U.S.. App. '

D.C. , 428 F. 2d 1083, 1091 (1970) . . . . 15 Environmental Defense Fund, Inc. v. U.S. Army Corps of Engineers (D. D.C., January 15, 1971) F. Supp.

~

. . . . 21, 41

- FPC v. Hunt, 376 U.S. 515, 526 (1964) . . . . 42

- Goldberg v. Kelly, U.S. (38 LW 4223, 4226, March 24, 1970). .

. . . . . .25

_ Investment Syndicates, Inc. , v. Richmond ~(D . Oreg., October 27, 1970) . . . . 20

- Northern States Power Company v. State of Minnesota (D .

Minn., December 22, 1970) _ F. Supp. _ on appeal)

. . .',, . 31 Office of Communications of-the United Church of Christ v.

, FCC,

-U.S._ App..D.C. _ _,.359 F. 2d 994, 1001 (1969) 15 Pennsylvania Env'ironmental Council v. Bartlett (M . D . Pa . ,

April 30, 1970) -

., . . 20 4

1 e

q 8

~ .

, a Power Reactor Development Co. v. IUEW, 267 U'.S. 396 (1961) . . . . 12, 15, 39 Scenic Hudson Preservation Conference v. FPC, 354 F. 2d 608

, (C . A . 2nd, 1965) cert. den. 384 U.S. 941 (1965) . . 15, 17, 18

. Sierra Club v. Laird (D. Aug, June 23, 1970) F. Supp.

_ (appeal filed in the U.S. Court of Appeals for the '

Ninth-Circuit) . . . . 20, 40 State of New Hampshire v..AEC, 406 F. 2d 170 (C . A . 1st,,

1969) cert. den. 395 U.S. 962 (1969) . . . . 18, 26, 36 T.E.M.P. v. AEC, F. 2d (C.A. 7th, 1970) . . 26 T.E.M.P. v. AEC, U.S. App. D.C. '

, F. 2d (C. A . 7th, 1970) .- . . . . 26 Texas Committee on Natural Resources v. U.S. (W.D. Tex.,

February 5, 1970) _ F. Supp. _ . . . . 21, 41 Udall v. FPC, 387 U.S. 482.(1967) . . . . 17, 18 Wilderness Society v. Hickel (D. D.C., April 23, 1970) 21, 41 Statutes and Regulations 5 U.S.C. Section 706 (1) and 706 (2) (A) . . . . 14

. Water Quality Improvement Act of 1970 (33 U.S.C.)

~Section 1160 . . . . 34 Section 1171 .. . . 28 .

Atomic Energy Act of 1954 ' (42 U.S.C. 2239 (a) )

Section 189 (a) ,

~- -

. . . . 9  :

Section 191(a) , . . .. 17 )

NationalEnvironmental~PolichAct (42 U.S.C. 4321 et seq.)

Section 101 . ... 6 Section 102 (1) I '

6 Section 102 (2) . . . . 7 ,,

Section 102 (2) (A) , . . 4 . 33 Section 102 (2) (C)

.. . . 33 Section 102 (2) (C) (iii) . . . . 12

, Section 102 (2) (D) . . . . 12, 33 Section 102 (2) (G) .. . . 33

'Section 202 _

. . . . 6 g .

O ,

9 , - - , - , ,

-. weep =*'

. ,'; . o V:_ ._ . -

S.

2549, (Resources and Conservation Act of 1959) . . . . 4 P.L.91-560, 84 Stat. 1472 (December 19, 1970) . . . . 17, 40

~ AEC Rules of Practice (December 4, 1970) 10'CFR Part 2-10 CFR Part 2, Section 2.104 . . .. 18 2.719 .. . . 16, 18

. . . . 16

2. 721 (d) . . . . . 16 2.780 16 10 CFR Part 20 . . . .

,10 CFR Part 50 .. . . 24

. . . . 3, 8, 1:}

. 25, 29, ~!

10 CFR Part 50, Section 50.109 (a) 36, 37 i

. . . . 13 j Miscellaneous t l

~.

35 Fed. Reg. 5463 (April 2,1970)

.. . . . 8, 19, 2 35 Fed. Reg. 7390 (May 12, 1970)

- . . . . 24, 37 35 Fed. Reg. 8594 (June 3,1970)

. . . . . 8, 1*9 , 2I 35 Fed. Reg. 9042 (June 11,19 70) i

. . . . 5 35 Fed. Reg. 16749 (October 29, 1970)

, . . . . 18 35 Fed. Reg. 17679 (November 17, 1970)

. . . . 18 35 Fed.. Reg. 18470 (Decumber 4, 19 70)

. . . . 22 36 Fed. Reg. 1398 (January 28, 1971)

. . . . 37 105 Cong. Rec. 15979 (August 17, 1959)

. . . . 4 115 Cong. Rec.

(October (Daily Ed.) S12104-12121, S12116-12117 8,1969)

. . . . 8 115 Cong. Rec. (Daily Ed.) (October 8,1969) S12146 . . , . 31 Executive Order 11514, March 5, 1970, 35 Fed. Reg. 4247 24 H.' Conf. Rep. No.91-765, 91st Cong., 1st Sess. . . . . 7 S. Rep. No.91-296, 91st Cong., 1st Sess. (1969).

, . .. . . 5, G , 20,

- 22, 23, 28, 29, 31 i

.=

m

1, .. .

"- I;<'I'.

~

No. 93..g.l/s 9lesL ContJ., 2nd se3s

~ '

43 Notre Dame Lawyer 633 (1968)_

. . . . 9 e

G y

  • Z O

en ,

e I

O e

h i

e k

i g

'. O 1

( ,

t i

i .

6 e _.

i t

  • e '

I

. .vt I .

^

. a' 2

IN THE b

UNITED STATES COURT OF APPEA,LS FOR THE DISTRICT OF COLUMBIA CIRCUIT A

~

.24,871 .

CALi' 'RT CLIFFS ' COORDINATING COMMITTEE, INC.,

NATIONAL WILDLIFE FEDERATION, and

  • Petitioners,

. v.

U.S. ATOMIC ENERGY COMMISSION, .

UNITED STATES OF AMERICA,

'\. .

Respondents.

c e

e g .

BRIEF FOR PETITIONERS .

em O .

r s . r

^M -,...f.. -- -

.e____

= . - _ . __ .__

i 1

ISSUES PRESENTED

. l., Whether the Atomic Energy Commission violated the National l

Environmental Policy Act by failing to accept the Burden of Investigating adverse environmental effects of nuclear power plants in its public hearings?

2. Whether the Atomic Energy Commission violated the National Environmental Policy Act by establishing March 4, 1971 as the first date on which it would begin considering the adverse environmental effects of nuclear power plants 1.n'its public hearings?
3. Whether the Atomic Energy Commission violated the National Environmental Policy Act by refusing to consider any evidence of the adverse environmental effects of nuclear power plants where '.

state, regional, or Federal environmental standards exist?

4. Whether the Atomic Energy Commission violated the National Environmental Policy Act by refusing to establish procedures for I meaningful consideration of environmental effects of nuclear power plants' now under' construction?

O

\

0 0

4 e

4 e O h 4 p

1 . ... ..L . . . - - - - - - --

2 STATEMENT PURSUANT TO RULE 8 (d) ,

There is now pending before this court the case of Calvert

' Cliffs' Coordinating Committee, Inc., et al. v. United States Atomic Energy Commission, et al. (No. 24,839) which involves a challenge- to one aspect of the rule making adopted by the Atomic Energy Commission in implementation of the National Environmental Policy Act as applied to a particular nuclear power plant. One aspect of this case involves a challenge to the same portion of the general rules'of the Atomic Energy Commissio'n which are chal-lenged in No. 24,839. Pursuant to a reques't by petitioners in No. 24,839, Judge Wright (Acting Chief Judge) entered an order on February 12, 1971, ordering that these two cases be set down for argument on the same day and before the same division of this Court

  • Much of the relevant-record on review is identical in the two cases. For this reason and in order to reduce costs petitioners have reproduced most of the relevant mate' rials in the Joint Appendix of one, but not both, of the cases. Because reference to the Joint Appendices of each case may occur in both briefs the references in the briefs shall be to Jt. App. (Vol. I) to indicate the Joint Appendix in No. 24,871 and to Jt. App. Wol. II) to indicate the Joint Appendix in No. 24,839.

\

Finally, the written argument in No. 24,839 is virtually

, identical to one of the written arguments in No. 24,871. Thus virtually the same argument appears in both briefs.

9 8 e

,e a

f i

~~

l 1 . - . . .

l, . .

3 REFERENCES TO RULINGS

.In this proceeding petitioners claim that Appendix D of 10 CFR Part 50,-adopted by the Atomic Energy Commission on December 4, 1970 (Jt. App. (Vol. I) 5)*, is, in certain critical respects, contrary to the National Environmental Policy Act.

. STATEMENT OF THE CASE On January 1, 1970, tNe President signed the National Environmental Policy Act of 1969 (hereinafter NEPA) which became effective immediately (Add. 6A)**. bn December 4, 1970, the Atomic

-, Energy Commission (hereinaf ter AEC) adopted Appendix D to 10 CFR Part 50'as a statement of the procedures to be followed in imple- ,

menting NEPA. Jt. App. , (Vol. I) , 5. Two prior drafts of Appendix D (35 Fed. Reg. 5463 (April 7,1970) and 35 Fed. Reg. 8594 (June 3,

'1970) (Jt. App. (Vol. I)1) were circulated for comments by the AEC.

t Petitioners submitted comments with respect to the June 3, 1970, version of Appendix D on June 29, 1970 (Jt. App. (Vol. II) 31) * *

  • and

- References to "Jt.- App. (Vol. I)" are to the .Toint Appendix ---

in this case._ , . .

    • References t'o l'Ad'd. " are to the addendum b'ound with this brief.

'*** References to "Jt.-App. (Vol. II)" are to the Joint Appendix ~

in No. 24,839.

o 9 - .

e

_f-  % .

. ., . - ,5

. C l

. l 4 -

November 12, 1970 (Jt. App. (Vol. II) 75).

The final version of

~

Appendix D adopted on December 4, 1970, was totally inadequate and petitioners filed their Petition for Review on December 7, 1970.

STATUTES AND REGULATIONS INVOLVED The statute involved, the National Environmental Policy Act of 1969, is set forth in the Addendum bound with this Brief.

Add. 6A .

The regulation involved, Appendix D of 10 CFR Part 50, is set forth in the Joint Appendix in this case.' Jt. App. (Vol .

I) 5. ,

ARGUbiENT Introduction

  • Each year sees our streams and rivers increasingly loaded with pollution, the quality of their water degraded below tolerable limits, and their burden of waste materials clogging sanitation plants or washed up on the shores of parks and beaches

~

So we might inventory each of the othe.r natural resources -- minerals, hydroelectric power, re-creation, and wildlife. For each of them, the story is the same - sad

. .too little, too late.

- 105' Congressional Record 15979 (August 17, 1959)

-With these words Senator Murray of Montana introduced S. 2549, the. Resources and Conservation Act of 1959.

It was not until December 22, 1969 that Congress, by enacting the National U 9

  • l' ._ _ , _

5 Environmental Policy Act (hereinafter NEPA) 1/ , gave to all federal agencies and departments the power and responsibility to deal with the National environmental crisis.

The issue before the Court in this proceeding is whether the Atomic Energy Commission .(hereinafter AEC) has fulfilled the obliga-tions imposed upon it by NEPA. The AEC has adopted Appendix D of 10 CF'R, Part 50 (hereir.after Appendix D), as a statement-of its policies and procedures for the implementation of NEPA. 2/ -

Jt.

App. (Vol. I), 5. It is our contention that without any rational basis and in violation of the cle'ar mandate of NEPA, the AEC in

- Appendix D has narrowly limited its responsibilities to investigate and resolve environmental problems associated with the issuance of construction permits and operating licenses for nuclear power plants.

The enactment of'the National Environmental Policy A'ct was -

the result of a Congressional awareness of the environmental crisis which faces the Nation - the crisis which Senator Murray saw ten years earlier. (S . Rep, No.91-296, 91st Cong. , 1st Sess . (1969) p. 4)

(Add.14A ) . . The major cause of this crisis has been the (S. Rep. No. 91-29 6', suora, p. 5 (Add. 15A ):

~

~

1/- The bill was signed on January 1, 1970 and became effective immediately. 42 U.S.C. 4321 et seq. (P. L.91-190). A copy of

the statute is reproduced in the Addendum bound with this brief.

Add. 6A.

~

2/ The AEC has adopted interim guidelines for its internal procedures-in implementing NEPA.35 Fed. Reg. 9042 (June 11, 970).

Those guidelines are not in issue here. .

e e V *

. o > m

  • b*

r

?-

6 *

Failure to formulate a comprehensive national [ environmental]

policy. .. . P'olicy is established by default and

' inaction. Environmental problems are only' dealt with when th'ey reach crisis proportions.- Public desires and aspirations

-are seldom consulted. Important decisions concerning the use ' and the: shape lof man's future, environment continue to be made in small but. steady increments which perpetuate Lrather than avoid the recognized mistakes of previous-decades. (Brackets added) t In NEPA Congress responded to the growing environmental crisis and its.causes in three ways. First, NEPA sets forth in Section 101~

(Add. 6A .) a broad and comprehensive statement of environmental objectives which in effect, amends the authorizing legislation for all~ federal agencies and departments t'o include these environmental

, objectives in their legislat1ve mandates. S. Rep. No.'91 .296, supra, i

p. 9 (Add. 19A ).

Second, NEPA establishes in the Executive Office of t .e President, a Council on Environmental Quality to analyze and interpret environmental trends, to appraise Federal Government programs in light of the environmental policy established by NEPA, to be' responsive to the scientific, ..

economic, social, esthetic and cultural needs of the Nation and to-formulate and recommend national policies to promote the improvement of the quality of the environment. Section 202 of NEPA (Add. 8A ).

Finally NEPA requires all Federal departments and agencies to
' interpret ind administer their policies, regulations and public laws,;toLthe' fullest extent poss'ible in accordance with the environ-Emental objectives of Section.101 of NEPA. Section 102(1) of NEPA.
  • ~

. (Add .'-

7A1 ). . JThis latter directive was accompanied by eight' specific

, r . .

7' procedures which all federal agencies and departments must follow in order to insure compliance with the environmental policies set

'forth in section 101 of NEPA. Section 102(2) 'of NEPA. (Add. 7A_gA) .

. The. purpose of Section 102 was explained in the Senate Committee Report (S. Rep. No.91-296, supra, pp. 19-20 (Add.29A-304 ) :

The policies and goals set forth in section 101 can be

-implemented if they are incorporated into the ongoing activitieslof the Federal Government in carrying out its other responsibilities to the public. In many areas of Federal action there is no body of experience or precedent for substantial and consistent consideration of environ-mental factors in decisionmaking. In some areas of Federal activity, existing legislation does not provide clear

~ authority for the consideration of environmental factors which conflict with other objectives.

To remedy present shortcomings in the legislative foundation of existing programs, and to establish action-forcing procedures which will help to insure that the

_ policies enunciated in Section 101 are implemented, Section 102 authorizes and directs that, the existing body of Federal law, regulation, and policy be interpreted and '

administered:to the fullest extent possible in accordance with the policies set forth in this act. It further'estab-lishes a number of operating procedures to be followed by all-Federal agencies. ~

The operating procedures required by Section 102(1) and 102 (2) (A) (B) (D) and (G) require that agency decisions be made only after full consideration has been given to environmental amenities and values, alternative courses of action, ecological information in planninc

.and development and'the general principles in Section 101. In the 3/ Section 102 was not included-in the original House bill and was

' based on-the provision as originally included in the Senate bill. H. Conf.. Rep. No.91-765, 91st Cong., 1st Sess.

Add, 60A-61A. -

'y- o o

9

. y .

~

8 .

. case _of federal actions significantly.affecting the environment

, Section 102 (2) (c) requires the federal agency to prepare a detailed statement on the environmental considerations relevant to the pro-posed action.

This detailed statement must accompany the agency proposal for action through the agency review process. Thus, in certain cases, the agency in the course of making its decision on proposed actions must not only condition its action upon full

~

consideration of environmental values but must also meet the additional burden of preparing a detailed analysis of environmental factors relevant to the proposed action orior to the final decision being made.

4/

The AEC adopted Appendix D on December 3, 1970. ~

Much of

- what appears in that document is not at issue here.~5/ The points ,

in contention do, however, involve the heart of Appendix D and challenge the AEC'.s failure to adopt regulations which will make '

-4/ The first draft of Appendix D was published on April 2,_

1970 (35 Fed. Reg. 5463). The second draft was published on June 3, 1970 (35 Fed. Reg. 8594). Jt. App. (Vol. I), 1. The most significant change _from those early drafts to the present Appendix D was that in the early draft the AEC took the position that NEPA_did not extend the AEC's jurisdiction so that it could consider non-radiological environmental factors. That wholly indefensible position has been abandoned in the current Appendix-D.

i

- 5/ For-instance, Paragraph 6 of Appendix D (Jt. App. (Vol. I)9) i requires that'the environmental statement include a full dis- )

cussion of the water quality aspects of the particular nuclear plant even where the applicant has received a certification under Section 21(b) (of the Water Quality Improvement Act of

- 1970) from the state that the proposed plant will comply with the state's general water quality standards.

in the Water-Quality Improvement Act of 1970 or in NEPA toThere is nothing

.suggest that this should not be the case but there is some legislative history-to the contrary. See in particular 115 Cong. Rec. (Daily - Ed. ) S 12104-12121 - (October 8, 1969) and the. staff analysis of the- changes agreed upon as of October 8, 1969,'in NEPA and the Water Quality _Improvemen~t Act of 1970 1(115 Cong..' Rec.-supra,,-pp. S 12116-12117). This legislative

_l

.. a 9 -

environmental protection a meaningful aspect of its issuance of permits and licenses for nuclear power plants.

A. The AEC Refuses'to Accept Responsibility to Take Affirmative Action to Protect the Environment.

The AEC now conducts public hearings before the issuance of

~

any construction permit for a nuclear power plant and before the 7

issucnce of most operating licenses for nuclear power plants. ~/

_ The (footnote 5/, cont'd.)

history of would-at most the obligations indicate of Section 102 that a federal agency is relieved (2) (C) of NEPA with regard to preparation of an independent in depth study of the impact of the proposed federal action on the quality of adjacent waters.

It would not, of course, affect the agency's general responsibility under Sections 101 and 102 of.NEPA to provide in its decision-making processes for the highest environmental protection with respect to water presented to the agency requires. quality that the evidence l i

6/ For an excellent discussion of the AEC's procedures see )

Green, Safety Determinations in Nuclear Power Licensing:

Critical View A (43 Notre Dame Lawyer 633 (1968)).

~/

7 Section 189 (a) of the Atomic Energy Act of 1954 (42 U.S.C.

2239 (a) ) requires a public hearing before the AEC can issue a construction permit.

It also provides that the AEC may issue an operating licensing.without a hearing in the absence of a request for a. hearing by an interested person. As a practical matter most operating licenses now considered by the AEC are granted only after-a public hearing. i e

e e

O e

. f 1 I

10 '

. t

~

~

construction permit hearings aro' held even when the only parties are

. the applicant and the AEC staff,, both of whom urge issuance of the construction permit or operating license. Nonetheless the hearing board (Atomic Safety & Licensing Board) must satisfy itself that the applicant has met its burden of proving that in light of the health, 4

safety and public defense the permit or license should be issued.

Appendix D does S not establish a parallel procedure for environmental f

considerations. / Unless some ,menter of the public intervenes in the hearing and raises environmental issues neither 'the environmental

~

issues nor the detailed environmental statement prepared with respect

~

to the plant will be'before the board or considered by it. Even the 4

notice of hearing which defines the other issues to be considered at the hearing does not indicate that environmental considerations

  • can be raised. Thus the AEC attempts to avoid the burden imposed

- upon it by NEPA and refuses to assume responsibility for environmental protection throughout its review processes.

8/ Even an operating license hearing can be held without any inter-1 vening to by-passparty theif hearing.

the AEC determines not to exercise its option I

~

9/ The AEC has determined that all requests for issuance of co -

struction permits or operating licenses for nuclear power i rs involve " major federal actions significantly affecting the quality of the human environment". Thus the AEC will prepare a detailed environmental statement with respect to the appli- 1

cation each for a construction permit and an operating license for plant.

In the case of the operating license the detailed statement will only. consider those environmental factors which differ significantly from factors previously considered in the construction permit application.

r -

( o ,

m 4

I

~ ~ ~ '

~

. . a. .

'.11 .

~ B'.

The AEC Illegally Postpones the Date Upon Which it Will

, Comply with NEPA., ,

., 4 The public hearings held by AEC prior to issuance of construction permits and operating licenses have been a part of the AEC procedure for seventeen years and have a' ways involved a consideration of the impact of the plants' radiological releases upon the environmest. . In Paragraph lla of Appendix D (Jt. App.

(Vol. I), 10) .the,AEC (alleging a need for a " transition" period (Jt. App. (Vol I), 6)) refuses to allow non,-radiological environmental issues.to be raised at any hearing, notice of which appeariin the

, Federal Register before March 4, 1971. This delay in' implementing NEPA is totally unwarranted and directly conflicts with NEPA and the cases decided under NEPA.

~

C. The AEC Prevents a, Full Consider.ation of the Environmental "

Impact of a Nuclear Power' Plant by. Totally Deferring to Any j and All State, Regional, and Federal Environmental Standards.

.The AEC hearing is a de novo review of all issues raised by intervenors with respect to the application for a construction permit or operating license. 1Beo of the three members of the hearing panel are technically or otherwise specially qualified to review the application. In Paragraph llb of Appendix D this de novo review

_ pr'ocess is seriously hampered.by the AEC's refusal to permit evidence 1

to.be received on the possible adverse environmental impact of any e

e 9

1 s

e 4

+

-- #e- ,e-,- , _-..mm - . , , - , , y ,-., -- + -*e-

. 12

. aspect of the plant where a state, regional or federal authority has certified that the plant meets environmental standards set by that authority (Jt. App. (Vol I), 10).- Certification of com-pliance with a state, regional or federal environmental standard, no matter how weak or inadequate the standard

, when applied to a particular plant, is accepted by the AEC as conclusive evidence that the plant will not have an adverse environmental impact. By this device the AEC completely stifles its revie,w of the environ-mental' impact of nuclear power plants. ,

D.

- The AEC Will Permit Construction.of Nuclear Power' Plants to Proceed without taking steps to provide the Highest Level of Environmental Protection. ~

~

When the AEC considers the issuance of an operating license, Shodld it deee not consider the major investment of the applicant and is alb e 7

concerned solely with protection of the public health and safety and national defense. See Power Reactor Development Co. v. IUEW, 367 U.S. 396 '(1961). Thuc, health $nd :fcty isoues can be leZS open-a* Fha cons **"ction permit heering with the knceledge that-they-will be fully'reviawad =

  • th: Opereting license hearing. Under NEPA, consideration of adverse environmental effects and corrective action to be taken to avoid these effects occurs in light of the alternatives to the proposed action. (Sections 102 (2) (c) (iii) and 102 (2) (D) of NEPA). Thus cost and time delays become elements in

. l

~

O e

4 4

e

- * ~

13' .

the formula. In Paragraph 1 of Appendix D (Jt. App. (Vol. I), 9) the AEC recognizes the need to provide immediate environmental review of those plants for which construction permits have been issued without regard to environmental factors and for which the futureissuanceofoperatinglibenseswillincludeaconsideration i

for the first time of the adverse environmental effects. But the f

AEC refuses to reqdire the holders of these construction permits to respond to an order to show cduse why construction of their plants sh'ould not be suspended pending completion of the detailed environ-mental statement. The AEC-also refuses in these cases to Impose

, any' conditions on the construction permit where such ' conditions are warranted for environmental protection. In both respects the AEC is shirking its responsibilities under NEPA by allowing the passage *-

of time and the expenditure of funds by a power company to, as a practical matter, prevent the highest possible level of environ-mental protection.

E. _

The AEC Refuses to Place as.Much Emphasis on Environmental Protection as it does on Other Equally Important Matters of Public Interest. ~~~ '

The AEC now requires all holders of construction permits to update the equipm6nt and design of their plants when technological advances make it possible to substantially improve public health

~

and safety protection. Section 50.109 (a) of 10 CFR Part 50. In-Appendix D -the AEC has refused to apply this "backfitting" require-ment'where it would substantially improve environmental protection O

4 4

M *"

'o *s

- (J t . App. (Vol. I), 7) t.hereby relegating environment.a1 protection -

to a secondary status in the AEC's program of continually inonitortog .

nuclear power plants.

Thus,-the question at the heart of this proceeding is whether the AEC, in adopting Appendix 4 has complied with the requirements of Section 102 of NEPA to the " fullest extent possible". The AEC -

has adopted not only an excessively nar' row construction of its obligations under Section 102 of NEPA but is in several respects in direct conflict with Section 102. The portions of Appendix D here in question and the accompanying statement of reasons for their enactment are contrary to law and arbitrary and capricious. See Eastern Central Motor Carriers Association v. U.S., 239 F. Supp.

591, 594-595 (D.C., 1965); Dell Publishing Co. v. Summerfield, 198 F. Supp. 843 (D.C., 1961) affirmed 113 U.S. App. D.C. 1, 303 F 2d 766; East Texas Motor Freight Lines v. U.S. 96 F. Supp. 424, 427-428 (N .D. Tex. , 1951). We urge this Court to declare invalid those portions of Appendix D which are not in compliance with Section 102 of NEPA and to direct the HEC to immediately adopt regulations which are "to the-fullest extent possible" in compliance with Section 102 of NEPA. 5 U.S.C. Section 706 (1) and 706 (2) (A) .

  • ~

I. '

The Atomic Energy Commission Violated the National Environmental Policy Act By Failing to Accept the Burden of Investigating Adverse Environmental Effect of Nuclear W

  • Power' Plants 'in its' Public Hearings O

l ..'

L  !

L i

- * ~ r v 4, ,

e

,15 1

l

- ItLis by now well established that where healt.h, u.i re t y ,

' environmental protection and other similar public interests are I concerned a federal agency has the burden of proving that its See proposed action best serves the public interest involved.

ra (involving S_cenic Hudson Preservation Conference v. FPC, ,

cnvironmental considerations); office of Communications of the

_ U.S. App. D.C. , 359 United Church of Christ v. FCC, )

F. 2d 994, 1001 (1969) (involving public interest in broadcasting; ..

Environmental Defense Fund, Inc. v. Finch, U.S. App. D.C.

, 428 F. 2d 1083, 1091 (1970) (involving public health standards in proceedings to set pesticide tolerances on raw agri-cultural products; Power Reactor Development Co. v. IUEW, supra,

p. 404 (involving public health and safety in the construction and .,

operation of nuclear power plants). The enactment of NEPA was a reaffirmation of this principle with respect to environmental pro-tection as applied to all federal agencies. Sections 101 and 102 of NEPA.

In Appendix D the AEC attempts to avoid this burden of proof with respect to environmental protection. Paragraph 13 of

~

Appendix D (Jt . App . (Vol. I) , 10) specifically excludes environmental issues from any construction-permit or operating license hearing

. 10/

Thus,-

unless an intervenor to the hearing raises such issues.

~l jb/ The applicant and the regulatory staff of the AEC (which is allegedly separate and. apart from the AEC and its Commissioners) are parties to,all hearings. Inasmuch as~these hearings are, as a practical matter, only scheduled when the applicant and the staff have reached agreement, there is no real possibility that either of those parties will even raise an environmental issue'.

D

\ .

          • %'b' meew .e,,

- :^ -

~

.. '=

the AEC denics that it has the bunten when act liig t h nin .s h Iho Atomic Safety and Licensing Board, to consider the adverso environ-mental impact of the plant. Section 102 (2) (c) of NEPA specifically l

requires a federal agency which, as'here, has prepared a detailed environmental statement with respect to proposed action, to include that detailed' statement in all agency review processes. Paragraph 13 of Appendix D is in clear violation of that statutory obligation.

.This is particularly distressing in the face of the normal

. operation of the AEC. The AEC Rules of Practice,, 10 CFR Part 2,

~

Section 2.104 (b) (2) provide that in an uncontested proceeding the 12/ will sua sponte examine the Atomic Safety and Licensing Board f

application to determine if review by the regulatory staff of the AEC of the application was adequate and if the issuance of the requested permit or-license is consistent with the health and safety of the public. Thus, the public hearing is an integral and important part of the AEC review process.. It is the first and - unless there

.is an appeal - the only opportunity for the AEC (as opposed to the 11/ The AEC in its regulations is scrupulous in separating the regulatory staff, which reviews the application for a construc- '

tion permit or'an operating ~ license, from the Atomic Safety and Licensing Board. f or instance Sections 2.719 and Se4 2.780 of 10 CFR Part 2  ;

12/ See 10 CFR, Part 2, Section> 2.721(d) copferring upon the Atomic Safety and Licensing Boards the authority of the pre-siding officer. Under present AEC practice all hearings are conducted by the three member boards rather than by a single presiding officer.

f

. . # e 9

  1. e e

e

't e

9

,. -- -.en

, - < - - . , ,,.,,..m. + ..n..cg.. . ..,,,,,...,.,,,n -

~ -

i -

.,. _ _ . . ---- ~'

e 17 regulatory staff) to reveiw the application. In addition, the Atomic Safety and Licensing Boards are composed of t least two I

members ,who "have such technical or other qualifications as the commission deems appropria'te to the issues to be decided" (Section l t

191a of the Atomic Energy Act of 1954 as amended by P.L.91-560, 84 Stat. 1472 (December 19, 1970)) and who would therefore be able to pr' ovide'special technical expertise in reviewing the environmental statement and issues. By excluding the environmental statement from the record of these uncontested proceedings the AEC has rele-gated environmental considerations to a second class status.

In light of the enormous cost involved in preparing a full factual intervention in the complex construction permit or operating license hearing the general public will often have to rely upon the Atomic Safe 4(and Licensing Board to ensure that adequate protection for the environment has been provided by the applicant just as the public now relies upon that . Board to ensure that the applicant has provided adequately for the public health and safety.

Even if Section 102 (2) (C) of NEPA did not require the agency to include the detailed environmental statement in the agency's review process, the requirement would exist as a matter of general administrative law. In Udall v. FPC, 387 U.S. >

482 (1967) and Scenic Hudson ~ Preservation Conference v."FPC,' 354 F. 2d 608 (C . A . 2nd, 1965) cert. den. 384 U.S. 941 (1965), the Courts made clear the obligation of a federal agency.to include in the record upon which the federal action is based all data relevant to that action. It O

e S.O m _ _ _ _ _ _ _ _ . _ . _ _ _-- _ . _ _ - . . _ _ _ _ _ _ _ _ . _ _ _ . . _ _ . _

w--iW _

, . . 18 is the Atomic Safety and Licensing Bo'ard which makes the initial-decision to issue a construction permit or operating license. 13/

If the detailed environmental statement is relevant to the agency review process and if environmental issues must be considered in

'the agency review process, as is clearly the case under NEPA, then

.under Udall v. FPC, supra, and Scenic Hudson Preservation Conference

v. FPC, supra, the. Safety and Licensing Board must have th'e detailed j

s,tatement before it and must consider environmental factors in its review.

The problein created by Paragraph 13 of Appendix D is

' intensified by the failure of the A'C E to alter its form of notice for purposes of construction permit and operating license hearings to reflect its new authority as a result of the enactment of NEPA. C~ 14/

Section 2.104 of 10 CFR, Part 2 sets forth general requirements t

.for a notice of hearing. See 35 Fed. Reg. 16749 (October 29, 1970) and 35 Fed. Reg. 17679 (November 17, 1970) for examples of the actual notices given for construction permit and operating license proceedings.

Pursuant to this regulation the issues to be covered at the hearing are brought to the attention of the public. Unless the notice 4

13/ Under the recently amended AEC Rules of Practice (10 CFR, Part 2, Section 2.764, 36 Fed. Reg. 828 ( January 1971)) the Board decision to issue an operating license, authorizes full operation of the plant regardless o." any appeal unless a special finding is made by the Board. If an appeal is taken it is heard by the Commission itself, or by a Safety and Licensing Appeal Board. Section 2.785 of 10 CFR Part 2. -

14/ This is particularly important because in State of New Hampshire

v. AEC.406 F 2d 170 (C . A. 1s t , 19 69 ) cert. denied 395 U.S. 962 (1969) it was held that the AEC did not have authority to con-sider non-radiological environmental factors.

- = . ..a. --,-e.,,. .yy , . . ,,.._-,.,,.y

p. - -

. ~ - .~ . - - . - . ..~~ . <

. - _ .i includes a specific reference to the AEC's new authority to ,

consider environmental' factors and to the requirements of Appendix

. - ' D, the public, whose only notice of a proposed hearing is the

. Federal Register notice, will not know that unless there is an intervention and unless the intervenor raises environmental issues these issues will not be considered at the proceedings and the afety and Licensing Board will.not have the detailed environ- ,

mental statement before it for review.

- II.  ;'

  • The Atomic Energy Commission Violated the National Environmental Policy Act by Establishing March 4, 1971, as the First Date On Which It Would Begin Considering the Adverse Environmental

~

Effects of Nuclear Power Plants In Its Public Hearings I -

Although'the AEC now concedes that it has the authority and the duty to consider.no'n-radiological environmental factors (a concession which was not made either in the April 2, 1970 (35 Fed. Reg. 5463) or June 3, 1970 (3'5 . Fed . ' Reg . 859 4) '(Jt. App. (Vol.

1), 1) versions of Appendix D), it nonetheless postpones the

' effective date of that authority by limiting the provisions of Para-

graph ll(a) of Appendix D (Jt. App. (V'l. o 1), 10) to proceedings for 15/

which ~ notices of hearing ~ were filed on or. after March 4,1971.

i' .

jLj; 5/ The addendum attached to this bri'ef. includes a list of all Hof'those nuclear power plants for which construction permits or. operating licenses were issued since January 1, 1970 or

'for which notices of hearing were filed before March 4,1971.

. -(Add.lA-5A) For-these admittedly " major Federal' actions sig-nificantly affecting the quality of the human environment" (Sectic

.102 (2) (c) of.NEPA) all of which have occurred or will occur after-January 1, 1970), the.AEC has arbitrarily decided that NEPA shall.not-fully. apply.

i .

,>.-w,, ,,---p-gw e s.- w-. -ep 9 - p g. E v v e ,& --*,we y-.- t . - - , , ,,--.3 -

.. n ,

s -s==-n - - . - n.1, , ,;,

. . 3 20 NEPA became effective on January 1, 1970 and the AEC as of that date was required to consider' environmental factors in its decision making process, a. fact now conceded by the AEC. The plain and obvious words of the statute do not permit a fourteen month hiatus. The dntire legislative history is replete with references to the environ-mental crisis and the need immediately to begin conditioning all federal agency decisions upon adequate provision for environmental protection. For instance, S. Rep. No.91-296, supra, p. 16-17 (Add. 26A-27A) states:

Past neglect and carelessness are now costing us dearly, not merely in opportunities foregonc, in impairment of health, and in discomfort and inconvenience,_but also in a demand upon tax dollars upon personal incomes, and

.upon corporate earnings. The lenger we delay meeting our environmental responsibitities, the longer the growing list, of " interest charges" in environmental deterioration will

  • run. The cost of remedial action and of getting on to a

. sound basis for'the fuuure will never again be less than it is'today.

Where a final decision by a federal agency occurs after

' January 1, 1970 the federal agency decision will be illegal unless there is compliance with N3Pl., ~~16/ In Sierra Club v. Laird (D.

Aug, June 23, 1970) F. Supp. __ (appeal filed in the U.S.

Court of Appeals for the Ninth Circuit) the court granted a There may be some doubt as to whether NEPA requires the govern-16/ ment to' review final decisions which were made before January 1, 1970. See Brooks v. Volpe_ (W.D. Wash., September 25, 1970);

Investment Syndicates, Inc.,_ v. Richmond (D. Oreg., October 27,.1970) and Pennsylvania Environmental Council v. Bartlett

' (M.D. Pa. , April 30, 1970).

y 0

\

9 8c.*e-

- - ~ ~

granted a preliminary injunction to restrain defendants from continuing channel cleaning work on the Gila River because

.such work had been under taken without compliance with NEPA.

In Environmental Defense Fund v. U. S. Army Corps of Engineers (D- D.C. , January 15, 1971)- ,

F.Supp. the Court issued a preliminary injunction to halt construction of the Cross-Florida Barge Canal, a project which was authorized in 1942 and for which construction began in 1964, on the ground that the Corps had not complied with the requirements of NEPA.

In Wilderness Society v. Hickel (D . D.C., April 23, 1970) the Court issued a preliminary injunction to prevent issuance of permits . to construct the Trans-Alaska Pipeline because the Department of Interior had not complied with NEPA. In Texas Committee on Natural Resources v. U.S. (W.D. Tex.,

February 5,1970) F.Supp. the petitioners sought to prevent payment of a loan by the Farmers Home Administration for construction of a golf course on the ground that the construction would cause substantial damage to the environment The Court issued an order staying the grant of the loan pending an appeal because th'e passage of NEPA subsequent to the Court's devision made the likelihood of success on appeal substantial.

. r . . . . ,

e 21 e

9

= - - . . . _ _ _ ,_

The AEC' explains its decision to postpone the effective date of NEPA until March 4, 1971 as follows (35 Fed. Reg. 18470, December 4, 1970 (J t App. (Vol I) 6)) ,

In order to provide an orderly period of transition in the conduct of the

~

Commission's regulatory proceedings and to avoid unreasonable delays in the construction and operation of nuclear power plants urgently needed to meet the national requirements for electric power, the issues described in paragraph 11(a) i

. may be raised only in proceedings in'which the notice of hearing in the proceedings is published on or after March 4, 1971.

Particularly disturbing is the AEC 's f,acile assumption that there is a national pouer crisis for which the only solution is more power and that nuclear power has the *.

reliability to fill that assumed need. Obviously, the ques-tion of the need for power and the best alternative for meeting ~ that need is a relevant issue in deciding, in a par-ticular case, to what extent environmental protection should be provided. This is the thrust of the requirIment in Sections' 102 (2) (C) (iii) and 102 (2) (D) that alternatives to the proposed action be fully investigated. See S. Rep.

No.91-296, supra, pp. 20-21. Add. 30A-31A But the AEC attempts to pre-judge this issue not for one reactor but for every reactor and in effect to place a self-mandated and assumed need for more nuclear generated electric power as superior to the Congressionally mandated and explicitly established requirement that matters of environmental pro-tection-be given priority in all agency decisions on and af ter . January 1,: 1970.

Significantly,-the AEC as early as April 2, 1970 .

implemented NEPA. See 35 Fed. Reg. 5463 where the original Appendix D is set forth. There has been ample time for an

" orderly transition" since that date. But in that original Appendix.D, as well as the June 3, 1970 amendment (35 Fed. Reg. 8594 (Jt App. (Vol. I)) the AEC erroneously concluded that it did not have the authority to consider non-radiological environmental factors in its decision-making process. Thus if an additional " orderly. transition" period is now necessary g/

it is because of the AEC's persistent and erroneous interpretation.of the clear intent of NEPA. It is unreason-able that the public should suffer and that Congressional intent should be frustrated by the AEC's own derelictions.

Finally,we reject the assumption that any transition '

period is permissible or necessary. First, nowhere in NEPA or its legislative history.is there any indication that a 17/ See for instance the following statement in S. Rep. No.91-296, supra, p . 14 . (Add . 24A1:

Many older operating agencies of the Federal

< Government, for example, do not at present have a mandate within the body of their enabling laws to allow then to give adequate attention to environmental values.,

1S. 1075, as repor'ted by the committee n would provide all agencies and.all Federal officials with a legislative mandate and a responsibility to consider the consequences of their actions on the environment. This would lua true of the licens-ing functions of independent agencies as well as the ongoing activities of the regular Federal agencies .-

23 .

L .

J ,m

- o transition period is permissible. Second, as early as

~ March 5, 1970,the President ordered all, federal <.gencies to include in their existing public hearings a discussion of environmental factors. Executive Order 11514, March 5, 1970, 35, Fed. Reg. 4247. Add. 63A Third, the Council on Environmental' Quality in its Interim Guidelines (35 Fed.

Reg. 7390,May 12, 1970) required all agencies to be in compliance with NEPA and Executive Order 11514 by June 1, 1970.

All of these authoritative and, for purposes of this issue,-

dispositive pronouncements indicated that if any transition period was allowable it ended on June 1,1970.

Furthermore, there is no evidence in this record to support the theory that a transition period, even if per-

. missible under NEPA, is necessary. Paragraph ll(a) provided. ,

for raising environmental issues at construction permit

~

and operating license hearings. These hearings have always involved many factual issues and, even before NEPA was adopted, involved issues related to the environmental impact 18/

of the radioactive releases from the plant. Certainly in the case of any hearing in which evidence was still being 1[/ See 10 CFR Part 20 for the standards established for these releases.

24 W I e

i

_..)

~

,wne s mes A A received there would not be.an unnecessary delay if, after the passage of NEPA,the atomic Safety and Licensing Board ,

werefilowedtohearevidenceonandtodecideissues respecting non-radiological environmental problems associated with - the plant. There is no need for a transition period to' institute a procedure to explore evidentiary issues 19A/

at a proceeding which already involves evidentiary issues.

It is important to realize titat the AEC by adopting this transition period has excluded environmental considerations from proceedings in which the issue of environmental protec-tion is perhaps more hotly contested by intervenors than at any previous time. Notable among these proceedings is the application for an operating license by Consumer Power 20/

~~

Company for its Palisades Nuclear Power Plant which came

--19/ Of course the receipt of the evidence on these issues and deciding these issues would delay the proceeding but that delay is inherent in the consideration of environmental i factors. See Goldberg v. Kelly U.S. (38 LW 4223,  :

4226, March 24, 1970) where the Court finds that the l importance of a full hearing on the merits prior to a termination of welfare benefits is more important than ' l the cost and delay created by such a hearing and. notes  !

that the administrative agency should develop procedures ,

to reduce these costs and delays rather.than denying a j hearing altogether. i i

19A/ Some transition period may be needed before the detailed environmental statements would fully comply with NEPA See Paragraph 8 of Appendix D. (Jt App (Vol II)

However, even in that instance the burden should be upon

)

l the agency in each specific case to establish that over-riding-policy considerations require that the proposed federal action not be delayed until the NEPA requirements have been fulfilled.

(footnote cont. )

25 '

1 e

+ eV -

l

. . - .- i to this court on.the very issue of the AEC's refusal to -

consider envirpnmental protection in its licensing proce-dures (T.E.M.P. v. AEC,, 'U.S. App. D.C. _ , F.2d

.; (CA -7 th, 1970) ; see also T.E.M.P. v. AEC, F.2d (CA .7th, 1970) decided on the same ground of lack of ripe-ness of the issue). In denying the relief sought on the ,

ground.that the issue was not ripe for Court review, this Court observed: ,

4 In the present case petitioners have been granted the status of intervenors,and their complaint is from the announced refusal to accept evidence along the.line proferred.

If the Commission persists in e'xcluding such '

evidence, it is courting the possibility that if error is found a court will reverse,its

, final order, condemn its proceeding as so much waste motion,and order that the proceeding be conducted over again in a way that realisti-cally permits de novo consideration of the .

tendered evidence.

1 (footnote cont.)

--20/ It is also interesting'to note that the time is near when the AEC will be holding hearings on the operating lipense'for the Vernon Vermont Nuclear Power Plant, tha plant whose construction permit hearing gave rise to the case of New-Hampshire v. AEC, supra, in which the AEC's refusal to consider non-ra3Iological environmental

' factors was . upheld. It would be ironic if-that plant,  !

whose plight was a significant factor in the discussions

. surrounding the adoption of NEPA should, by the early-filing of.a notice of hearing be excluded at this, its last opportunity for review, from thorough exploration of its possible-adverse environmental impact.

. I I 26

  • e G e

/.

. . . , ,- - . . . - . . . .. - - . . , .,, - . r . - . . . -

1 When that case was before the Court the AEC position was that it lacked authority to consider thermal pollution.

It 2_1/

now concedes that it has that authority but still denies the concerned citizen intervenors a chance to present their

, case in the hearing. -

Equally urgent pleas- for consideration of adverse .

environmental effects have been made by intervenors in the following proceedings all of which hearings are still in progress or were concluded after January 1, 1970, the effective date of NEPA.

1. Hearing for issuance of a construction permit for the Midlands Nuclear Power '

Plant (Units 1 & 2), Midland, Michigan

2. Hearing for issuance of a construction permit for the Davis-Besso Nuclear Power Plant,on Lake Erie in Ohio. +
3. Hearing on issuance of a construction permit for the Shoreham Nuclear Power Plant, on Long Island Sound, N. Y.

21/ As we shall indicate later the AEC, while : conceding that NEPA establishes its a'uthority to consider thermal pollu-tion,now. argues that the Federal Water Quality Improve-ment Act of 1970 ousts it of-that authority. It is as incorrect now as it was then. -

22/ The addendum (lA-5A) lists additional proceedings in which

~~

licenses.or permits were issued.in 1970 or are still pend-ing and the AEC has on b.e h basis of its erroneous inter-pretation of its authority under NEPA as expressed.in the April 2,-1970 and June 3, 1970 Appendices D and on the basis of. its present adoption of a " transition period"

~

~ ~ foreclosed consideration of the environmental affects of these plants. ,

. - , i .

t

  • 27 _ .

e

. t-t t

- - " a

    • e
4. Hearing on issuance of a construction permit for the Diablo Canyon Nuclear Power Plant (Unit 2) San Luis Obispo County, California - Permit issued December 14, 1970.
5. Hearing on issuance of an operating

" license for the Palisades Nuclear Power Plant on Lake Michigan in Michigan. .

6. Hearing on issuance of an operating license for the Indian Point Nuclear Power Plant (Unit 2) , Peekskill, N.Y.

In light of'the exp' licit congressional concern with nuclear 4

plants as a major unregulated source of possible environmen-tal damage It is incredible and unsupport ble that the AEC should now argue that these plants should be able to secure permits or licenses after NEPA was enacted without I that decision being based upon consideration of the environ-mental effects of the plants. l (Add .

23/ See S.24A)p.No.

Re and S.91-296, Rep. No.suora pp. 91st 4, 8,Cong.

9, 14,, 14A, 18A-19A, 91-1247, 2nd Sess.

p. 4 where the Joint Committee on Atomic Energy abandoned consideration of legislation to compel the AEC to con-si' der non-radiological environmental factors because of the eractment of NEPA and the Water Quality Improvement Act of 1970 (33 U.S.C . Section '.171) . ,

t i

28 t .

I .

f

.  : ='

k

. 5 .

Th3 Atomic Energy Commisnion Violated The National Environmental Policy Act Dy Refusing to Consider Any Evidence of the Adverse

  • Environmental Effects of Nuclear Power -

Plants Wherc State, Regional or Federal Environmental Standards Exist The AEC in Appendix D has narrowly circumscribed the scope of the Atomic Safety and Licensing Board investigation of of the environmental impact / construction and operation of nuclear power plants. Paragraph lifb) of Appendix D describes the limitatio'ns imposed on t!.e hearing boards authority to review environmental c.onsiderations. It provides:

With respect to those aspects of environnental quality for whichjenvironmental quality standards and requirements have been established by autho-rized Federal, State and regional agencies, pr.oof that the applicant is equipped to observe and agrees to observe such standards and requirements will be considered a satisfactory showing that there will not be a significant, adverse effect .

on the environment. Certification by the appro-priate agency that there is reasonable assurance that the applicant for the permit or license will observe such standards and requirements will be considered dispositive for this purpose.

By this ~ rule the AEC attempts to avoid the specific obliga-tions imposed upon it by NEPA. Congress was well aware of the existence of seate, regional and federal. environmental 24/

standards and requirements when it passed NEPA. -~

No provi-sion is made in that act for a fedtral agency to defer to 24/ See S. Rep. No.91-296, suora pp. 4-6, 8-10. Add. 14A-16A, 18A-10A 29 o

O

+

y

. .e the multituae of standards and raquirements promulgated 25/

by those authorities.-- Quite the contrary, NEPA was ,

I 25/ An examination of the relevant statutes of five states representing diverse population figures, sizes and geographical locations demonstrates that the states have not established uniformity in their approaches to the authority for setting environment-regulating stand-ards within the state. Several states have within the past year adopted statutes providing for one broad au-thority over environmental quality, while others have retained several independent commissions with individuals and often overlapping authority.

California and New York have both recently legislated to provide one body with both administrative and regulatory pouers. California Statutes S 21001, entitled "Environmente.l. Quality,"' creates a Coordinator of Atomic Energy Development and Radiation Protection to act as a liasion between the state and the Atomic Energy Commission with regard to all phases of environ-mental quality. The New York Environmental Conservation Law, passed in July 1970, establishes a single commission to adopt standards for all phases of environmental quality, including air and water pollution control as .

well as wildlife preservation.

Several other states, however, have created no one broad authority with power to set standards in all phases of environmental conservation. The Maryland Annotated Code provides for an Air Pollution Control Council in Article 43 S 694, while chapter 243 Acts 1970 of the same state creates a department of water resources to hold hearings, issue permits for discharges into water-ways, and adopt and modify water quality standards for the waters of the state. .See tha list of permits now required at the state level for a nuclear power plant in Maryland at Jt App (Vol. II) 180. Ohio and Michigan, similarly, provide for separate aater and air pollution control boards with independent authority to set and enforce standards. Michigan's Constitution article 4 S 52 creates an air pollution control commission, S 323 creates a water resources commission with separate inves-tigatory and regulatory powers,and S 299 establishes a l department of conservation,with power over pollution of l wildlife. The water pollution control board and air  ;

pollution control boards created in Ohio's SS 6111 and 3704 have independent and conceivably overlapping authority over the environmental quality standards.of the state.

30 '

e

t 'g i.ntended to replace the multitude of often overlapping, con- .

tradictory and inadequate standards with a national enviro.nmen- .

tal policy to be administered by all. federal agencies. S.

Rep. No.91-296, supra,' pp. 13-14 ; (Add. 23A-24A) see also remarks of Senator Jackson, Chairman of the Senate Committee cn Interior and Insular Affairs and Chief Senate sponsor of NEPA on October 8, 1969 (115 Cong. Rec. (Daily Ed. ) S. 12146).

The purpose of NEPA was not to delegate to state and regional ,

cuthorities the task of protecting the environment. In fact, one purpose of the legislation was to~ establish a model ,

cystem of federally imposed authorities' for dealing with their purely local problems. S. Rep. No.91-296, supra, p. 8' .  ;

(Add . 18A) ,

The licensing of nuclear power reactors is exclusively ., -

a fed.eral function. It is ironic that the AEC, which has cuccessfully thwarted the attempt by Minnesota to impose  ;

i radiation release standards more stringent than those set i by the AEC on the ground that it is a matter within the  !

l Exclusive jurisdiction of the AEC (Northern States Power I Company v. State of' Minnesota (D. Minn. , December 22, 1970)  !

F.Supp. on appeal) should so lightly defer to these same state standards on other matters affecting the  :

cperation of nuclear power plants and their effect on the l Cnvironment.  !

l .

'31 O

s a g

iv a ...

1

. It is precisely becauno of the AEC's uniquo qualifica-tions and technical exportisc that it is the agency which should make the ultimate and binding decision on the condi-

, tions to be imposed upon nucicar power plants *for purposes of

, environmental protection. .This is especially true in determining the ability of 'an operating. nuclear power plants to meet environmental standards and requirements. Such a determination would require a sophisticated and technical understandi'ngoftheoperakionofnuclearpowerplants.

Frankly," we are astounded that the AEC has suggested tha't it totally defers to s* tate, regional and federal environmental standards and' requirements. If a state requires that the water intake for a nuclear plant must be of a speci-fic design solely for purposes of protecting fish in the *.

river but the AEC concludes that the design proposed would make the plant unsafe to operate, is it the intent of the AEC to preclude all nuclear' plants from the state? Obviously, the AEC will want to be able to apply its superior knowledge of nuclear plant design to provide adequate protection for the fish and for the safety; of the plant. By the same token if the state, which frequently lacks the financial resources to develop the depth of expertise needed to fully

' explore environmental issues and may be more susceptible to e

economic pressures of power companies which approach the r state governments with a take-it-or-leave-it plant location a G 32 e

e

or design, establishes a water intake rate for power plants which is in fact not adequate to protect the fish in the ,

river, NEPA provides that the AEC has the power to establish a more stringent requirement for the particular plant in order to best protect the environment.

Obviously state, regionaland federal environmental .

standards and requirements will represent persuasive evidence on the question of what level of environmental protection is required. The question is whether the standards and requirements by their very ex~istence will totally foreclose any examination of adverse environmental effectswhichwilloccurevenwNenthestandardsand requirements are met. These standards and requirements are not necessarily the product of the interdisciplinary ,

approach mandated by Sectio,n 102 (2) (A) of NEPA;nor are they necessarily developed with the fullest participation of the general public as mandated by Executive Order 11514; I i

l nor are they necessarily the product of the indepth study 1

{

and analysis mandated by Sections 102(2) (A), 102 (2) (C) , i 102 (2) (D) and 102 (2)'(G) of NEPA. More importantly the l requirements and standards are frequently, if not always,

~

general and unrelated to a specific plant, at a specific site, operating in a specific manner.

O

. 33 . .

9 e

e y , -

. l For instanco, water quality standards set by states and ,

approved by the fcdcral govfernment pursuant to 33 U.S.C. .

26/ 1 Section 1160 (Federal Water Pollution Control ActT generally,

, apply to large areas of the' states water resources. Com-r pliance with those standard's may be wholly inadequate to pro-tect the environment in the specific location of a nuclear plant. Certainly the AEC in providing the environmental protection should allow evidence to be presented to demonstrate that general water quality standards are inadequate in a particular ca'se.

.- e The, entire philosophy ,and purpose of NEPA would be i

totally frustrated if the A'C, I which in its licensing pro-ceeding possesses the powen to require, nuclear plants to meet the most stringent environment requirements necessary, .,

l 26/ The AEC implies (Paragraph 9 of Appendix D) that the Water Quality Improvement Act of 1970 has in some

~ unspecified manner ovdrruled all of the requirements of Sections 102-and 103 of NEPA.' As we indicated in footnotes 5 on p. 8-9 , suora, at most some portions of the legislative history suggest that the requirements of Section 102(2) (C) are eliminated where water quality standards are involveq. Fortunately the AEC has not followed this dubious auggestion. See Paragraph 6, Appendix D. (Jt App. (Vol 1)S) Surely in the face of the clear language in Section 104 of NEPA and Section 21(c) of the Water Quality Improvement Act of 1970, it cannot be seriously suggested that a federal agency exercising its authority .under NEPAis bound .to totally disregard any possible water quality problems where state certification id obtained. These certificates

,of course represent a' minimum requirement but surely

. do not preclude the AEC from independentl decidin that

! even higher standards 'are required, fpn act, f4g /,'t.aru4 hs St. ltus den 94D fA02 hi h tE fandand I6 n4 Ed. S G. h (0l Of. ANfA -

34 e ,

e e

,a ,

and ponsesses the power and financial abilit.y to thoroughly explorothisissuetodeterbineifmorestringantrequire-ments are necessary, should be automatically excluded from considering those factors. Environmental damage from nuc1 car

and other steam generating power plants was.a problem foremost i

j in the minds of the. Congress when it enacted NEPA. See foot-note 23 on p. 28 supra. .

What the AEC suggests is that despite the 10 year struggle to provide a national environmental policy and to provide a focus on environmental protection when federal decisions are made on specific proposals,this struggl'e produced nothing than an obligation on each federal agency to require that the proposed action be taken only after approval was obtained from state, regional and federal authorities that the ,

project would meet whatever environmental standards and requirements were imposed by those authorities. In short, according to the AEC nothing has changed. Nuclear power plants need only comply with state, regional, and federal requirements that were always applied to them. Clearly NEPA does not permit theA 'EC t9 artificially foreclose the explora-tion of important~ environmental issues by deferring, without the possibility of review, to environmental standards and requ.irements set by any state or region'al authority.

D .

G 9 .

o O

  • 6 0

0 4

  • es-

J

. , , i.

36 1

1V.

The Atomi'c Encrgy Comiaission Violat.cd the National Environmental Policy Act by Refusing to Establish Procedures for Meaningful Consideration of Environmental Effects of Nuclear Powcr Plants Now Under Constructi6n __

4 The issue involved here is hoq federal agencics which oversce continuing projects which can have a significant affect on the enviornment are to app 3.y NEPA to these projects. The AEC in its application of NEPA to the con'tinuing project of, construction of a nuclear power plant differs from manu other Federal Agencies because alu.sp cefsndEd Ma# if of two factors. First, the MC(did n'ot have the authority to -

consider non-radiological environmental factors prior'to the enact-mer.t of NEPA (see State of New Hanoshire v. AE.C, 406 F. 2d 170 (CA lst, 1969) cert. den. 395 U.S. 962 (1969)) and thus construction

  • of these plants is proceeding without the AEC having giving any con-sideration to the environmental impact of the plant. Second, the AEC ultimately will have to fully explore the environmental impact d the plant, prior to granting an operating licenso bocasse the act of grandng enoperating license is a major federal action significantly affecting the environment within the meaning of Section 102(2) (C) of NEPA. Appendix D,, Paragraph 2 (Jt. App. (Vol. I), 9).

In Appendix D the AEC has recognized the need to expedite examination of the-environmental impact of plants such as Calvert -

Cliffs for which no previous ' exploration of the environmental impact of the plant has occurred. It has required immediate submission of

+

e ,

e e

b

e. < * . . ,

37 .

envir ormum t;il reportn by Iho applir:iinI and immediate psopartition of i

1 .

the detailed environmental statenent hy the AEC. Appendix D, j Paragraph 1 (Jt. App. (Vol. I), 9) . The narrow issue here is a

whether'the AEC, having recognized the need to act, has, "to the I- fullest extent possible" interpreted and administered its policies cad' regulations in accordance with the policies of NEPA. Section

. 102 of NEPA.

In its Interim Guidelines on Section 102(2) (C) of NEPA (35

~

27/ -

Fed. Reg. 7390 (Paragraph 11) (May 12, 1970)~ the Council on ,

Environmental' Quality referred to" continuing federal projects and established the following rule with respect to the preparation of I

detailed environmental statements under Section 102(2) (C) :

Application of section 102 (2) (C) procedure to existing projects and programs. To the fullest extent possible the section 102 (2) (C) procedure should be applied to further major Federal actions having a significant effect on the environment.cVen though they arise from projects or programs initiated prior to-enactment of Public Law 91-190 on January 1, 1970. Where it is not practicable to reassess the basic course.of action, it is still important that further in- "

cremental major actions be shaped so as to minimize adverse environmental consequences. .It is also important in further action that account be taken of environmental consequences not fully evaluated ~at the outset of the project or program.

27/ .The Guidelines were adopted in final form on January 22, 1971, (36 Fed. Reg. 1398,. January 28,.1971) and Paragraph 11 was adopted without. change.- .

6 O

a " . -

e e .

, e 6 a E 9 P

. _ . . __- ._ _____m . _ . . _ . _ . . 2.2.a _ . .

=,;. , ,, ,

, *" , , 38 4 . -;

M The AEC has not complied with this requirement. The AEC procedures have not been " shaped so as to minimize adverse environ-mental consequences". In refusing to utilize the information obtained in the preparation of the detailed environmental ,

statement

. as a basis for' modifying, suspending or revoking the construction permit the AEC makes the entire : procedure 'as relat'ed to on goi'ng and.previously unexamined projects totally meaningless. The purpose of the preparation of the detal ed statement is not merely to set forth a catalogue of disastrous environmental problems about which nothing is to be done. Thepurposeisobvibuslytousethatdata as a basis for corrective action. Once the AEC has evidence which establishes'that a particular plant will cause an avoidable adverse environmental impact, it is bound by NEPA to require that steps be . .

taken by the applicant to avoid the problem or to find that other overriding policy considerations prevent steps being taken to avoid the environmental problem.

Closely related to the failure of the AEC to take action .

based upon its examination of the environmental impact of a proposed plant.is the failure of the AEC,to immediately issue to these plants an order to show cause why construction of the plant should not be suspended during preparation'of the detailed environmental l

statement.. It is only through the adoption of both procedures that k

e

  • e e

e

. s ,. w . . ,

39

~

. the AEC-can prevent the very fact of continued construction of the plant.from foreclosing possible environmental protection modifications

. 2V at the operat'ing licenso stage.-

One'of the critical examinations required under NEPA is an examination of alternatives to the proposed action. Sections 102 (2) (C) (iii) and 102 (2) (D) . The feasibility of proposed alternatives will depend in part upon a balancing between the cost of the' alter-29/

nativeandthebenefittobeobta,inedpromit.- ,

Thus, as plant 1:

construction proceeds the alternatives to the plant location, design

~

and operation become drastically reduced. If the impositi6n of condition toprotect.theenvironmentisdbferreduntiltheoperatinglicense h:-

O V t.

28/

The issuance of an order to show cause would permit the applicant to make its case for the continued construction of the plant if some overriding need were established. The.public would be allowed to demonstrate in what manher further construction would foreclose possibly important environmental modifications in the plant. Thus the procedure does not compel a shutdown of con- ,

struction but merely compels the AEC to resolve the question of whether to issue an order for suspension of construction in the light of a presentation to it by applicant and the public of the relevant considerations. -

29/ In this regard NEPA apparently differs from the mandate contained in'the Atomic Ehergy Act of 1954 to protect public health and safety"for the latter has been interpreted as requiring the AEC to totally disregard the investment in the plant when con-sidering whether to issue an operating license and to be concerned solely with the question pf safetytof the public. Power Reactor Development Co. v. IUEW, 3 67 U.S . '396 - (19 61) . Even in that case Justice Douglas, in dissent observed (367 U.S. at 417) :

. . . when that point.is reached [the operating license hearing), when millions have been invested, the momentum is on the side of the applicant, not on the side of the public.- The momentum is not only generated by the desire to salvage investments. No agency wants to be the architect of a " white elephant".

~

That observation is particularly relevant here.

.. __ - . T

q p. . '

. , . , - { 40 hearing there will be, in the words of NEPA (Section 102(2) (C) (v))

" irreversible and ir, retrievable commitment (s) of resources. . .

,' . -which can only serve to restrict the AEC's optionn. In short, to

. postpone action is, for all practical purposes, to deny it. See FPC v.' Hunt, 37 6 U . S . 515, .52 6 (1964) and City of Pittsburgh v. FPC, 3V

,U.S.-App. D.C. , 237 F. 2d 741 (1956).-

It is for this reason that the AEC must not only immediately act upon the data obtained from the preparation of the detailed ,

environmental statement with respect to plants under construction but must also issue with respect'to these plants an order to show cause-why the construction of the plant should not be suspended during prepar,ation of the environmental statement.

A number of courts have been asked to apply NEPA to projects. ,

which began prior to January 1, 1970 but for which further federal action was required. In these cases th'e courts have not only found that NEPA was. applicable but have' ordered work on the projects halted until there had been full compliance with NEPA. Thus in Sierra Club

v. Laird-(D. Aug, June 23, 19'70) F. Supp. (Appeal filed in the U.S.' Court of Appeals for the Ninth Circuit) the court i

30/

In Cities of Statesville, et al. v. AEC, U.S. App. D.C. ,

F. 2d (1969) this Court discussed how the cost of pro-e ducing nuclear power effects.the liklihood that such power will become commercially viable. When,the nced to provide environ-

, mental protection is added 'to this' cost-benefit analysis, it can be seen that the greater the cost of environmental protection the less likely it'is that the protection will be deemed necessary.i

. The fact is that nuclear fission as a source of power generation-

-at'its present state is only marginally economical. Congressional l legislation was required to force the AEC to even find that such

. power.has practical value.

~

See Publ. Law 91-560 and S. Rep.,

No.-91-1247, 91st Cong.," 2nd Sess.

+ , -

"M t t ,

. t

,~ -

grant.cd a preliminary' injunction to restrain defendants from continuing lear channel clearing work on the Gila River because such work had been n undortaken without compliance with NEPA. In Environmental Defense,

~

Fund, Inc._v. U.S. Army Coros of Engineers (D.D.C., January 15, 1971)

F. Supp. the Court issued a preliminary injunction to halt construction of the Cross-Florida Barge Canal, a project which was -

authorized in 19'42-and for which construction began in 1964, on the '

ground that. the Corps had not complied with the requirements of NEPA.

See also Ifilderness Society v. Hickel (D.D.C., April 23, 1970) where -

the Court issued a preliminary in~ junction to prevent issuance of permits to construct the Trans-Alaska Pipeline because the Department of Interior had not ' complied with NEPA and Texas Committee on Natural Resources v. U.S. (W.D. Tex., February 5, 1970)

F.

Supp. where the petitioners sought to prevent payment of a loan by the Farmers Home Administration for construction of a golf course en the ground that the construction would cause substantial damage to the environment and the Court issued an order staying the grant of the loan pending an appeal because the passage of NEPA subsequent to the Court's decision made the likelihood of success on appeal cubstantial. .

In the' instant case petitioners do nQt seek an order from this Court or the AEC halting construction of these nuclear plants.

Pstitioners merely seek'a sho'e cause hearing at which evidence will

~

.ba presented by t'he applicant '(who carries the burden of proof) and by environmentalists from which evidence the AEC will determine whether Wh Couice , ON NE C ASEs. ci d in 06 A 6!!N fo^Qfn b t&I-ys e' AEC pocists 'n s M AM)%

e e it, f Me ._ /c comply in FAv icsuan cs

.tenstau t

(;c e n s ss, . ccm sfrucli , ( oyh> n fa FAou j,,g miysa ua-h m ta ts un7/ I ,

-. _ b e ~ s ubit cf -lo a. cot- inkncNx. ,

[

. ...

Retrieved from "https://kanterella.com/w/index.php?title=ML19329E986&oldid=2485160"