ML19331D358
| ML19331D358 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 08/26/1980 |
| From: | Fahner T, Marc-Anthony Murray, Sekuler S ILLINOIS, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-CPA, NUDOCS 8009020084 | |
| Download: ML19331D358 (15) | |
Text
-
A.
D USNac.
UNITED STATES OF AMERICA SUS pg BOD as
)
NUCLEAR REGULATORY COMMISSION 2
2" gg n
0 Bram % ce BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4
~
In the Matter of
)
)
NORTHERN INDIANA
)
Docket No. 50-367 PUBLIC SERVICE COMPANY
)
(Bailly Generating Station,
)
(Construction Permit Nuclear-1)
)
Extension)
STATE OF ILLINOIS' MOTION TO COMPEL STAFF DETERMINATION The State of Illinois, by its attorney Tyrone C. Fahner, Attorney General of the State of Illinois, moves the Board to compel the NRC Staff to make and inform the Board of its determination whether, pursuant to the National Environmental Policy Act, it will prepare and circulate an Environmental Impact Statement (EIS) with respect to NIPSCO's application for an amendment to its construction permit.. This determination is particularly essential in light of the changes in circumstances which have occurred since the preparation of the EIS issued with respect to the Bailly construction permit.
The State of Illinois previously agreed to defer a ruling on its Contention One of the " Supplemental Petition of the State of Illinois," which, in general, asserts that an EIS is required.
That agreement to defer was based on the Staff's indication, at the Special Prehearing Conference, that by June it expected to complete its evaluation of NIPSCO's application for a construction permit extension.
(Tr. of March 13, 1980, pp. 302-305).
As of the date of filing 8 009 0 2 0 0F/4 4
- this moticn, no Staff evaluation has been made.
l The State of Illinoi.9 submits that this is the appropriate time for such a determination to be made as to whether the Staff will prepare an EIS in order to fulfill the mandate of NEPA.
The change in circumstances since the issuance of the EIS dated February 13 covering the Bailly construction permit has rendered that EIS inadequate and a new or supplemental EIS must be prepared.
These circumstances are detailed in the letter dated May 27, 1980 from William J.
Scott, then Attorney General,to J.
Gustave Speth, Chairman of the President's Council on Environmental Quality, attached hereto as Exhibit A.
The Council has concluded that a new or supplemental EIS is required, as reflected in the letter from chairman Speth to Tyrone C. Fahner, Attorney General, dated August 12, 1980, attached hereto as Exhibit B.
For all of the foregoing reasons, as well as the reasons set forth in the exhibits, Illinois submits that the Staff should be compelled to make its determination forthwith.
Respectfully submitted, i
TYRONE C.
Fahner Attorney General State of I 'inois BY:
)
l MARY JO.}URRAY Assistan. Attorn - General CF COUNSEL:
l Susan N.
Sekuler Environmental Control Division l
188 West Randolph Street, Suite 2315 Chicago, Illinois 60601
~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
NORTHERN INDIANA PUBLIC
)
SERVICE COMPANY
)
)
Docket No. 50-367
)
(Construction Permit Extension)
(Bailly Generating Station
)
Nuclear-1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " STATE OF ILLINOIS MOTION TO COMPEL STAFF DETERMINATION in the above-captioned proceeding haveing served on the foloowing by deposit in the United States mail, 1980.
first class postage prepaid this 26th day of August, Edward W.
Osann Jr. Esq.
Herbert Grossman, Esq., Chairman Suite 4600 Atomic Safety and Licensing Board Panel One IBM Plaza U.S. Nuclear Regulatory Commission Chicago, Illinois 60611 Washington, D.C.
20555 Robert L. Graham, Esq.
Dr. Richard F. Cole One IBM Plaza Atomic Safety and Licensing Board 44th Floor Panel U.S. Nu clear Regulatory Commission Chicago, Illinois 60611 Washington, D.C.
20555 I
George and Anna Grabowski Mr. Glenn O. Bright 7413 W.
136th Lane Atomic Safety and Licensing Board Cedar Lake, Indiana 46303 Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. George Schultz Kathleen H. Shea, Esq.
110 California Street Lowenstein, Newman, Reis, Axelrad Michigan City, Indiana 46360 and Toll 1025 Connecticut Avenue, N.W.
Washington,'D.C. 20S55 Richard L.
- Robbins, q.
Robert J. Vollen, Esq.
Lake Michigan Federation c/o BPI 53 W. Jackson Blvd.
109 N.
Dearborn Street Chicago, Illinois 60604 Chicago, Illinois 60602
, Clifford Mezo, Acting President William H. Eichhorn, Esq.
Local 1010 United Steelworkers of America Eichorn, Morris & Eichhorn 5243 Hohman Avenue 3703 Euclid Avenue Hammond, Indiana 46320 East Chicago, Indiana 46312 Diane V. Cohn, Esq.
Michael I. Swygert, Esq.
Suite 700 25 E. Jackson Blvd.
2000 P Street N.W.
Chicago, Illinois 60604 Washington, D.C.
20036 Atomic Safety and Licensing Stephen Laudig, Esq.
Board Panel 445 N.
Pennsylvania Street U.S. Nuclear Regulatory Commission Indianapolis, Indiana 46204 Washington, D.C.
20555 Steven Goldberg Counsel of the NRC Staff Docketing and Services Section Office of the Executive Legal Director Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
2055a Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 CYNTHIA DUMAS I
i SUBSCRIBED AND SWORN TO BEFORE ME T1?IS DAY OF AUGUST, 1180.
Notary Public b
5t:ttr ai 31111tais
@ifirz ai thz W.am 6euzral Ghicaga SGS01 Killiam 3.3catt Attarnes sen,ral May 27, 1980 J.
Gustave Speth, Chairman Council on Environmental Quality 722 Jackson Place, N.W.
Nashington, D.C.
20006
Dear Chairman Speth:
I am writing to you on behalf of the People of the State of Illinois (Illinois) to call to the attention of the Council on Environmental Quality (CEQ) a matter of significance related to compliance with the National Environmental Policy Act.
The Nuclear Regulatory Ccamission (NRC) is currently considering an application frcm the Northern Indiana Public Service Company (NIPSCO) to extend the con-struction permit for its Bailly Generating Station, Nuclear-1 (Bailly)
(NRC Docket No. 50-367) from September 1, 1979 to December 1, 1987.
NIPSCO received its initial construction permit to build l
Bailly on May 2, 1974 and the original environmental l
impact stata ent (EIS) was completed in February of 1973.
Pursuant :o Section 185 of the Atomic Energy Act of
- 1954,
,2 U.S.C.
52235 all construction permits must specify a latest complation date.
If construction l
is not completed by that completion date "the con-struction permit shall expire, and all rights there-under be forfeited, unless upon good cause shcwn, the Commission extends the completion date."
Section 50.55(b) of the NRC's Regulations, 10 C.F.R. 5 50. 5 5 (b) contains a similar requirement.
l l
EXHIBIT A
7u,..o
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J. Gustavo Speth, Chairman Page Two
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not detail here, al=cs: no construction has taken place on Bailly since it received its construction permit on May 1, 1974, six years age.
The NRC estimates that the plant is less than ene.cercent cc==lete, censistine -a-alv.
of a large hole in the grcund with support pilings driven for the non-critical buildings.
No construction has taken place on the plant since September, 1977 during which time the NRC staff has reviewed a change in the foundation design of the plant f cm long support piles going to bedrcck or the glacial lucustrine sill i mediately above bedrock to short piles.
Pursuant to Petitions filed by Illinois and a number cf other petitioners the NRC has formed an Atc=ic Safetv.
and Licensing Scard for the purpose.cf determininc. whether a hearing shculd be held regarding the renewal of the constructicn permit for Sailly.
A special prehearing conference was held in March := consider the various Petitions to Intervene.
At that hearing the NRC staf f announced that it was reviewing NIPSCO's application for the purpose of determining inter alia, whether an EIS cr a supplemental EIS would be necessary.
Illincis believes that an EIS or a supplement must be prepared for the renewal of the construction permit and that the decision related to the Bailly Plant must be based upon a consideration of environmental fac:crs.
If the NRC were te approve NIPSCO's petition for construction per=it renewal it wculd be giving NIPSCO permission to build 99% of the nuclear pcwer plant.
In fact, the length of time requested for the extension is even icnger than the time provided in original construction perit.
The February, 1973 IIS prepared for Sailly does not taka into consideration the considerable environmental developments which have occurred since it was issued sven seven years ago.
Ancng these significant cevelopments to Bailly are:
1.
The issuance of WASH 1400, the Reactor Safety Study (October, 1975) and the reevaluatton by H.W.
Lewis' Risk Assessment Review Group.
2.
Three :lile Island, the Kemeny Cc=missien Repor and the Regovin Cc==ission Report.
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Gustavo Spoth, Chairman Page Four The NEPA issue related to Bailly will have broad implications for other nuclear power plants in the early stages of construction when their construction permits expire.
For example, the Jersey Central Power and Light Company on August 31, 1978 applied for an extension to its construction permit for the F0rhed River Nuclear Generating Station issued on July 10, 1973.
That plant is only 3% ccmplete with work currently halted due to financial problems experienced by the utility which is part owner of Three Mile Island-2.
The Company seeks a seven year extension of its construction permit.
Illinois believes that the Nuclear Regulatory Comeission must prepare an Environmental Impact Statement or a supplement in conjunction with the determination of whether to extend the construction permit for the Bail _y Nuclear Power Plant.
If there was ever a circumstance in which the preparation of an environmental impact statement or a supplement is necessary it is this circumstance.
The construction permit for the Bailly plant will be extended by the NRC upon a shcwing of good cause by the applicant for extensfen.
Illinois also believes that NEPA and Calvert Cliffs Coordinatine Cermittee v.
AEC 449 F. 2d 1109 (D.C Ct. App. 1971) redllre that the decision be based upon a consideration of these environmental consequences of the construction of the power plant which were not and could not have been considered at the initial construction permit proceeding.
Very truly yours, i
l
'(D L,
^
/
ATTORNEY ENERAL
EXECUTIVE OFFICE OF THE PRESIDENT COUNCIL ON ENVIRONMENTAL QUAUTV h*
WASMNGToN. D. C. 20006 August 12, 1980 pr, j 81980 Honorable Tyrone C. Fahner gli 1 AM J. SCOTT Attorney General State of Illinois MM Chicago, Ill.
60601
Dear Attorney General Fahner:
The Council has reviewed your office's letter, dated May 27, 1980, regsrding the application of the National Environmental Policy Act
("NEPA") to the future decisions concerning the Bailly Generating Station, Nuclear-1 ("Bailly-1").
Our review of the matter indicates that the initial construction permit for Bailly-1 was issued on May 1, 1974.
Since that time virtually no construction has taken place, and the construction permit has expired.
Pursuant to the intent of the Atomic Energy Act, unitss the permit is extended by order of the Nuclear Reg.latory Commission ("NRC"), the Northern Indiana Public Service Company ("NIPSCO") will forfeit all rights to construct Bailly-1.
Your office has suggested that there have been certain significant new developments since the final EIS on Bailly-l's construction permit was issueu in 1973, such as:
1.
The issuance of WASH-1400, The Reactor Safety Study (Cetober, 1975) and its reevaluation by H. Lewis' Risk Assessment Review Group in NUREG/CR-0400 (1978).
2.
Ihe accident at Three Mile Island and the subsequent studies of the accident, including the Esport by the President's Commission on The Accident At Three Mile Island, and the report of the Special Inquiry Group to the Nuclear Regulatory Commission.
3.
The September 26, 1979, NRC memorandum from R. W. Houston, Chief of the NRc'- Accident Analysis Branch, to Daniel P. Muller, Acting Director of the NRC's Division of Site Safety and Environ-mental Analysis, indicating that the Bailly-1 facility failed tc meet proposed siting criteria contained in the report of the NRC Siting Policy Task Force (NUREG-0625)(1979).
4.
The Council's letter of March 20, 1980, to the NRC and the Council's report entitled, NRC's Environmental Analvsis of Nuclear Accidents:
Is it Adequate?
In our letter of March 20, 1980, we urged the Commission to move quickly to revise its policy on accident analysis in environmental impact state-ments. The review of NRC EISs by the Environmental Law Institute for NNT B
r.
2
~
the Council had revealed that none of the EISs prepared to date by the NRC for land based reactors has included an analysis of what were formerly known as " Class 9" or worst case accidents. We stated our conclusion that the NRC's new accident analysis policy should require discussion in EIS's of the environmental and other consequences of the full range of accidents that might occur at nuclear reactors, including core melt events.
Such analyses,we noted, could improve the Commission's siting, design, licensing, anu emergency planning decisions.
On June 13, 1980, the Commission published a new Interim Policy for the consideration of environmental consequences of nuclear accidents under NEPA.
The NRC concluded that there is a need to include in EISs a dis-cussion of the " site specific environmental impacts attributable to accident sequences that lead to releases of radiation and/or radioactive materials, including sequences that can result in the.
. melting of the reactor core."
The Interim Policy was ambiguous on whether supplements must be prepared for existing EISs that have already been issued for construction permits.
However, the Commission stated:
. it is the intent of the Commission that the staff take steps to identify additional cases that might warrant early consid-eration of either additional features or other actions which would prevent or mitigate the consequences of serious accidents. Cases for such consideration are those for which a Final Environmental Statement has already been issued at the Construction Permit stage but for which the 3perating License review stage has not yet been reached." 45 Fed. Reg. 40101, 40103.
The NRC acknowledged that substantive changes in plant design features as a result of such analyses "may be more easily incorporated in plants when construction has not yet progressed very far."
Id.
As indicated in the memorandum enclosed with this letter from our General Counsel's Office, in determining whether to act to extand NIPSCO's construction permit, the NRC's responsibilities under the Atomic Energy l
Act are supplemented by the National Environmental Policy Act.
NEPA requires the NRC to consider environmental factors to the fullest extent possible in its new decision about Bailly-1. The Council is of the view that for this decision, the NRC may simply adopt all or portions of its prior final EIS pursuant to 40 CFR 51506.3 and prepare a supplement dealing with the developments indicated above. Consideration of this new information might indicate, among other things, the need to modify plant design, select an alternative site, implement certain emergency preparedness measures, or reconsider the construction permit altogether.
As stated by the U.S. Court of Appeals for the 3econd Circuit:
"Although an EIS may be supplemented, the cri'.ical agency decision must, of course, be made after the supplement has been circulated, i
I I
3 considered and discussed in the light of alternatives, not before.
Otherwise, the process becomes a useless ritual, defeating the purpose of NEPA, and rather making a mockery of it."
NRDC v.
Callavav, 524 F.2d 79, 92 (2d Cir., 1975).
In summary, the Council has concluded that the NRC should prepare and circulate a supplement to the EIS on the Bailly-1 construction permit prior to rendering a decision on the pending request for a permit extension.
The NRC must also issue a record of its new decision in compliance with 40 CFR 51505.2.
By a copy of this letter, we are providing our conclusions on this issue to the NRC and NIPSCO.
Sincerely, M%
GUS SPETH Chairman Enclosure cc:
Members of the Commission President of NIPSCO f
i i
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EXECUTIVE OFFICE OF TH E PRESIDENT COUNCIL ON ENVIRONMENTAL QU ALITV tR JACKSON RACE N W WASM6NGToN. D. C 20006 MEMORANDUM FOR THE CHAIRMAN THROUGH:
Foster Knight, Acting Genera *. Counsel FROM:
John Shea, Counsel
SUBJECT:
The Need To Supplem t NRC's EIS On the Bailly-l Reactor Construction Permit On May 27, 1980, the Attorney General of the State of Illinois wrote to the Council concerning the application of the National Environmental Policy Act ("NEPA") to a decision by the Nuclear Regulatory Commission
("NRC") on a request for an extension of the construction permit for the Bailly Generating Station, Nuclear-1 ("Bailly-1").
Background
The final environmental impact statement on the construction permit for Bailly-1 was issued in February 1973.
The initial construction permit for Bailly-1 was issued on May 1, 1974.
Since that time, virtually no construction has taken place and the construction permit has expired.
Pursuant to the intent of the Atomic Energy Act, unless the permit is extended by order of the NRC, the Northern Indiana Public Service Company
("NIPSC0") will forfeit all rights to construct Bailly-l (Section 185 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 52235).
1.
The Attorney General's Letter.
The Attorney General ideatified a number of developments and items of information which are relevant to environmental concerns and the NRC's l
decision to allow the construction of Bailly-1.
Several of these items were discussed at length in the Council's letter and attachment to the NRC, dated March 20, 1980.
These include:
1.
The issuance of WASE-1400, The Reactor Safety Study (October 1975) and its reevaluation by H. Lewis' Risk Assessment Review Group in NUREG/CR-0400 (1978).
2.
The accident at Three Mile I.1and and the subsequent studies of the event, including the Report bv the President's Commission on The Accident At Three Mile Island and the report of the Special Inquiry Group to the NRC.
3.
The Council's release of the report by the Environmental Law Institute entitled, NRC's Environmental Analysis of Nuclear Accidents:
Is it Adeouate?
i I
l i
2 One other related development discussed in the Attorney General's letter
- involves a memorandum to Daniel R. Muller, Acting Director of the NRC's Division of Site Safety and Environmental Analysis, from R.
Wayne Houston, Chief of the NRC's Accident Analysis Branch, DSE, con-cerning the development of siting criteria for nuclear reactors.
That memorandum indicates that the Bailly-1 facility failed to meet all six of the proposed siting criteria contained in the report of the NRC's Siting Policy Task Force (NUREG-0625) (1979).
2.
CEQ's Letter of March 20, 1980, to the NRC Concerning Accident Analysis.
In our letter of March 20th, we told the NRC that its long-standing approach to accident analysis in EISs was inadequate to meet the full disclosure requirements of NEPA. We also stated that all future EISs would have to include an accident analysis which fulfilled the requirements indicated in our letter and discussed further in the ELI report. We went on to say that the NRC should perform supplemental accident analyses for operating nuclear reactors giving highest priority to high risk reactors, particularly those near densely populated areas or reactors with unique features naving a greater potential for accidents.
3.
The NRC's Recent Statement of Interim Policy Concerning Accident Analysis.
On June 13, 1980, the NRC published an Interim Policy for the consideration of severe reactor accidents in EISs.
The statement of policy announced the withdrawal of the old classification system for nuclear accidents and set forth the Commission's direction that NRC EISs
" include considerations of the site specific environmental impacts attributable to accident sequences that lead to releases of radiation and/or radioactive materials, including sequences that can result in inadequate cooling of reactor fuel and to melting of the reactor core."
Id.
In carrying out this policy, the NRC staff was instructed to consider relevant site features associated with accident risks, including population density.
The staff was also directed to " consider the likelihood that substantive changes in plant design features which may compensate further for adverse site features may be more easily incorporated in plants when construction has not yet progressed very far." 45 Fed. Reg at 40103.
The Legal Issues Under NEPA As with its other actions and decisions, the NRC's responsibilities under the Atomic Energy Act regarding its decision on NIPSCO's applica-tion for an extension of the construction permit are supplemented by the NEPA.
Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F.2d
- This-memorandum focusses only on the developments cited by the Attorney General's Office that are national in scope.
Several other developments referred to in the Illinois letter, which are more of a local nature, may be appropriate for discussion and consideration in a supplement to the Bailly-1 EIS, depending upon their significance.
These " local" developments include (1) the drawdown of water during plant construction from the Indiana Dunes National Lakeshore and Cowles Bos, (2) increases in plant costs, and (3) decreases in the need fir power.
~
e a
3 1109, 1112 (D.C. Cir., 1971), cert. denied, 404 U.S. 942 (1972); Public Service Co. of New Hampshire v. Nuclear Regulatorv Commission, 582 F.2d 77 (1st Cir.,1978), cert. denied, 439 U.S. 1046.
A decision to extend l
the NIPSCO construction permit and thereby allow the construction of Bailly-l, would be a major federal action necessitating compliance with NEPA's requirement for an EIS review.
40 CFR 551502.3 and 1508.18; Minnesota PIRG v. Butz, 498 F.2d 1314 (8th Cir., 1974). In this case the NRC could adopt its prior EIS or portions thereof and issue a supplement to that EIS to disclose the significant new information discussed above.
40 CFR 551506.3 and 1502.9(c).
The Council's new NEPA regulations provide at 40 CFR 51502.9(c) (1979) that
" (c) Agencies:
(1) Shall prepare supplements to either draft or final impact statements if:
(1) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information, relevant to environmental concerns, bearing on the proposed action or its impacts."
In Essex County Preservation Association v. Campbell, which was decided prior to the adoption of the Council's new regulations, the Second Circuit affirmed a district court's order directing the Federal Highway Administration to prepare a supplemental EIS on significant new circum-stances involving a moratorium on certain highway extension work.
The
=oratorium purportedly called into question the need for other highway construction at issue in the case.
The Court sf Appeals affirmed the district court, stating:
the [ district] court held that a supplemental EIS had to be prepared in order to effectuate the basic aims of NEPA which favor j
disclosure of all relevant factors affecting agency decisions.
See Monroe County Conservation Council. Inc. v. Volpe, 472 F.2d 693, 697 (2d Cir., 1972). We are inclined to agree with this judgment.
l While we cannot determine with certainty what the ultimate environmental effects [of these new circumstances] will be, it would seem to constitute the type of 'significant new information...concerning
[an] action's environmental aspects' that makes a supplemental EIS necessary.
23 CFR 5771.15.
Such a supplemental statement, which receives the same type of public comment and exposure as an original EIS, is likely to facilitate the ' complete awareness on the part of the actor of the environmental consequences of his action.
National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir., 1971),
mandated by NEPA." Essex County Preservation Association v. Campbell, 536 F.2d 956, 8 ERC 2156, 2159 (1st Cir.,1976).
The Court went on to hold that:
"In view of the fact that the reconstruction project at issue here is not yet completed and that certain agency decisions may ' remain
4 open to revision,' [ citation omitted] we cannot say it was improper for the district court to require appellees to prepare and circulate a supplemental EIS...."
Id.
In the past the Council has advised agencies to prepare supplemental EISs in order to fulfill the NEPA mandate identified by the Court of Appeals in the Essex County case, i.e., that agencies must be aware of the potential consequences of their actions and that agencies such as the NRC should weigh all of their decisions in light of significant new data and developments.
Scenic Hudson Preservation Conference v.
- FPC, 354 F.2d 608, 620 (2d Cir., 1965), cert. denied,'.384 U.S. 941 (1966);
Hudson River Fishermen's Association v. FPC, 498 F.2d 827, 832-33 (2d Cir., 1974).
This should be done only af ter preparation of a supple-mental EIS.
As stated by the Second Circuit in interpreting 40 CFR 51500.11 of the Council's former guidelines:
Although an EIS may be supplemented, the critical agency decision of course, be made after the supplement has been circulated,
- must, considered and discussed in the light of alternatives, not before.
Otherwise the process becomes a useless ritual, defeating the purpose of NEPA, and rather making a mockery of it.
NRDC v.
Callaway, 524 F.2d 79, 92 (2d Cir., 1975).
Conclusion Consideration of the significant new information relating to the environ-mental consequences of severe reactor accidents might indicate..amcng other things, the need to modify plant design, select an alternative site, implement certain emergency preparedness measures, or reconsider a construction permit altogether.
It is essential, therefore, that this information be discussed in a supplemental EIS and considered prior to the NRC's critical decision on the extension of the Bailly-1 construction permit.
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