ML19331E306

Ack Positive Response in 800320 Ltr Re Accident Analyses in Nuclear Reactor Eis.Conveys Ceq Specific Views on Interim Policy Under Nepa.Policy Purpose Is Public Disclosure of New Developments.W/Internal Memo & Certificate of Svc

ML19331E306
Person / Time
Site:	Bailly
Issue date:	08/14/1980
From:	Speth G COUNCIL ON ENVIRONMENTAL QUALITY
To:	Ahearne J NRC COMMISSION (OCM)
Shared Package
ML19331E304	List: ML19331E303 ML19331E305 ML19331E306
References
NUDOCS 8009090798
Download: ML19331E306 (9)

Text

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7. EXECUTIVE OFFICE OF THE PRE @IDENT

-a . COUNCIL ON ENVIRONMENTAL QUALITY m Jacasou e6 Ace.w w.

h, WA$eeNGToN. D. C. 30006 e

August 14, 1980 ,,

The Honorable John Ahearne 1

- Chairman j U.S. Nuclear Regulatory Commission 1 Washington, D.C. 20555

Dear Chairman Ahearne:

The Council.vas gratified by the positive response informally expressed ,

by the Commission for the views set forth in our letter and attachment  !

to you, dated March 20, 1980, concerning accident analyses in the Commis-sion's environmental impact statements ("EISs") for nuclear reactors. ,

We believe that the subsequent formal announcement of Interim Policy on the issue by the. Commission is the most significant and encouraging step you have taken to rectify the serious problems in accident analysis inherited from the Atomic Energy Commission. I am writing to you at i

this time to convey the Council's specific views on the Interim Policy and the steps which must be taken to fulfill the Commission's obliga-tions under the National Environmental ?clicy Act ("NEPA").

I The accident considerations to be included in future NEPA reviews described by the Com=ission in the June 13th policy statement (45 Fed. Reg. 40101, at 40103) appear to conform to the basic outline for the required accident  :

analysis prescribed in the Council's letter of March 20, 1980. However, such an analysis is difficult to describe accurately in purely abstract

. terms. For that reason we look forward to the issuance of the first such NEPA analysis for a reactor in the licensing process. The Council will carefully examine the draft of that analysis and public comments

• l thereon with a view toward providing the Commission with comments that would be useful in the preparation of a final analysis for NEPA review purposes.

As the Interim Policy indicates, consideration of the environmental con-sequences of severe reactor accidents might warrant the need "for additional features or other actions which would prevent or mitigate the consequences of serious accidents." 45 Fed. Reg. at 40103. Consideration of such information might indicate, among other th t s, the need to modify plant

- design, select an alternative site, implement mergency preparedness measures, or reconsider a construction permit s'.'together. In this l regard, the Council strongly disapproves of the Commission majority's l statement that such new NEPA reviews "will lead to conclusions regarding '

the environmental risks of accidents similar to those that would be I reached by a continuation of current practices . . . ." 45 Fed. Reg. at I 40103. Two members of the Commission disagreed with the majority on

- this point and concluded that thLt position is " absolutely inconsistent with an.even-handed reappraisal of the former erroneous position on Class 9 t accidents.'.' '45 Fed. Reg. at 40103. The Council agrees. The two sentences i

8/19...To OGC for Appropriate Action...Cpys to: RF, EDO, Docket... 80-1598 I

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2 at issue in the Commission's Interim Policy inapprtprictsly projudga tha

.\ . NEPA analysis yet' to be performed on a site-by-site basis by staff. Not only is the position contrary to the purposes of the NEPA to provide 1

information which serves as a guide to the decisionmaker, but it would appear to require powers of prediction that the Commission simply does not possess with regard to the multitude of factual variables at each site.

Two other points of importance to the Council concern (a) the timing of

.the disclosure under NEPA of this new information on reactors for which a final EIS has been issued at the construction permit stage, but for which the operating license review stage will not be reached for some time, and (b) the indications in the Interim Policy that, for such reactors, the NRC may choose not to prepare the requisite NEPA documents .

for public review and comment.

Our Office of the General Counsel has prepared an opinion on the NRC's obligation to discuss major accident analyses and significant new develop-ments under NEPA for reactors which have not yet reached the operating license stage. On the basis of that opinion, it is our conclusion that

- where reactor construction is still in the initial stages, the NRC l

should prepare supplemental EISs containing analyses of major accidents as early as possible rather than waiting until the operating license review. By ensuring the timeliness of such analyses, this approach will be of greatest use to the public, the NRC and the utilities Significantly, the Commission has acknowledged that " substantive changes in ,lant design . . . may be more easily incorporated in plants when construction has not yet progressed'very far." Id.

The Council, of course, is not of the view that construction on reactors must stop pending these supplemental NEPA reviews. Our purpose, and NEPA's, is to ensure that public disclosure of the significant new information and considerations regarding reactor accidents, and their review by the Commission, occur to the maximum extent possible while there is still time to correct earlier decisions based on the Commission's "former erroneous position on Class 9 accidents" (45 Fed. Reg. at 40103).

As in the past, we would be pleased to discuss the Council's views with you at any time. Please let me know how we can be of assistance.

Sincerely, GUS SPETE dhF ~

Chairman cc: Members of the Commission 3

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EXECUTIVE OFFICE OF THE PRE @lDENT

d. CCUNCIL CN ENVli:ONMENTAL CUAUTY m JAcxsoN PLACE. N. W.

WAsHMGToN. D. C. 30006  !

August 14, 1980 ,

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MEMORANDUM FOR THE CHAIRMAN '

THROUGH: Foster Knight, Act g General Counsel FROM: John Shea, Counse

SUBJECT:

The Need to Supple t NRC EISs on Unconstructed and Partially Constructed Reactors to Disclose Significant New Information This memorandum analyzes the Commission's responsibilities under NEPA with respect to re:ctors which are in large part or completely uncon-structed. It specifically addresses the obligation of the NRC to ,

• supplement EISs, so as to disclose significant new information and provide the necessary analysis of nuclear reactor accidents.

Background

1. The NRC's Recent Statement of Interim Policy Concerning Accident Analyses. ,Q On June 13, 1980, the NRC published an Interim Policy for the considera-tion of severe reactor accidents in EISs. 45 Fed. Reg. 40101. The l Statement of Policy announced the withdrawal of the old classification system for nuclear accidente and announced "the Commission's position that its EISs shall include ",asiderations of the site specific environ-mental 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.

The Commission specifically addressed how its new policy would be phased in to-licensing proceedings:

"It is the intent of the Commission in issuing this Statement of Interim Policy that the staff will initiate treatments of accident considerations, in accordance with the foregoing guidance, in its on-going NEPA reviews, i.e. , for any proceeding at a licensing stage where a Final Environmental Impact Statement has not yet been issued . . . .

"However, it is also the intent of the Commission that the staff take steps to identify additional cases that might warrant early

. consideration 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 Environ-mental Statement has already been issued at the Construction Permit

, stage but for which the Oparating License review stage has not yet been reached." 45 Fed. Reg. 40101, 40103.

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In carrying out this policy, the staff is directed to consider relevant site features associated with accident risk, including population density.

Staff is also directed to " consider the likelihood that substantive ,

char.ges in plant design features . . . may be more easily incorporated in plants when construction has not yet progressed very far." Id. 1

2. Status of Reactors Under Construction.

l There are a number of nuclear reactors for which construction permits l have been issued, but no significant construction has taken place. I

! According to the NRC's Program Summary Report, dated Septeriber 21, 1979 l (NUREG-0380, vol. 3. number 9, at 35), a total of 95 reactors have

- either-limited work authorizations or construction permits. Approximately 10 of those reactors are less than 10% complete. A total of 9 other reactors are between 10 and 20% complete. The NRC figures generally 3 have been optimistic as to current stage of completion and projected

, completion date. . .

1 The Legal Issues Under NEPA The Council's NEPA regulations specifically provide at 40 CFR ll502.9(c)

(1979) that

"(c) Agencies:

(1) Shall prepare supplements to either draft or final impact statements if:

(i) 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."

The Supreme Court has ruled that the Council's regulations and interpre-tations of NEPA are " entitled to substantial deference." Andrus v.-

Sierra Club, U.S. , 47 U.S.L.W. 4676, 4679 (June 11,1979). See also Alaska v. Carter, 462 F.Supp.1155,1164 (D. Alas.,1978) in which the district court relied heavily on the Council's interpretation of the section of its former guidelines on supplemental EISs. 40 CFR ll500.11(b)

..(1978). That section provided that:

An agency may at any time supplement a draft or final environmental statement, particularly when substantial changes are made in the proposed action, or significant new information becomes available

[

, concerning its environmental aspects. 40 CFR 61500.11(b)(1978).

In Essex County Preservation Association v. Campbell, which was decided prior to the adoption of the Council's new regulations, the First Circuit affirmed a district court'L order directing the Federal Highway Administration to prepare a supplemental EIS on significant new I

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l circumstances involving a sorctorium en cartcin highway extcasion work.

4. The moratorium purportedly called into question the need for highway expansion that was at issue in the case. The Court of Appeals affirmed '

the district court, stating that: ,,

. . . . tha [ district] court held that a supplemental EIS had to be

, prepared in order to effectuate the basic aims of NEPA which favor disclosure of all relevant factors affecting agency decisions. See Honroe County Conservation Council. Inc. v. Volpe, 472 F.2d 693, 697 (2d Cir., 1972). We are inclined to agree with this judgment.

While we cannot determine with certainty what the ultimate environ-mental 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 $771.15. 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 ,

open to revision" [ citation omitted) we cannot say it was improper i 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 idLatified 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 l data and developments. Scenic Hudson Preservation Conference v. FPC, 354 F. 2d 608, 620 (2d Cir., 1965), cert. denied, 384 U.S. 941 (1966); '

i Hudso, 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 supplemental 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 must, of course, be made after the supplement has been circulated, considered and discussed in the light of alternatives, not before.

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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).

Significant new circumstances and information have developed since the issuance of most of the Commission EISs on reactor construction permits,

including

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I l?' a) Thf reevaluation of WASH-1400, the Reactor Safety Study (October l' 1975) by H. Lewis' Risk Assessment Review Group in NUREG/CR 0400 ,

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(1978).

b) The accident at Three Mile Island and the subsequent studies of.

the accident,- including the Report by the President's Commission on the Accident at Three Mile Island and the report to the Nuclear Regulatory Commission by the Special Inquiry Group.

c) The issuance on September 26, 1979, of a 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 Environmental Analysis, indicating that 31 nuclear power plants under active review do not meet certain proposed siting criteria.

d) The transmittal of the Council's letter of March 20, 1980, to

• the NRC and the Council's report entitled, NRC's Environmental' Analysis of Nuclear Accidents: Is It Adequate?

The review of NRC EIS's by the Environmental Law Institute for the Council released in March 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 urged the Commission to move quickly to revis'e its policy on accident analysis in <

EISs and to require the discussion in NEPA reviews of the environmental  !

and other consequences of the full range of accidents that might occur at nuclear reactors, including core melt events. As t sted in our March 20th letter to the NRC, under the Atomic Energy Act the NRC has a contin-uing obligation to review information which may indicate a need to reconsider or modify a construction permit or an operating license for a proposed reactor. 42 U.S.C. 52232(a). This responsibility is supplemented by NEPA's requirements. Calvert Cliffs' Coordinating Committee. Inc.

v. AEC, 449 F.2d 1109, at 1112 (D.C. Cir., 1971), cert. denied, 439 U.S.

942 (1972); Public Service Co. of New Hampshire v. Nuclear Regulatory Commission, 582 F.2d 77 (1st Cir., 1978), cert. denied, 439 U.S. 1046.

As acknowledged by the Commission in its Interim Policy, consideration of information such as the environmental and other consequences of major nuclear accidents might indicate the need for " additional features or

' ot.her actions which would prevent or mitigate tha consequences of serious accidents." 45 Fed. Reg. at 40103. Obviously, the new data developed as a result of the Three Mile Island accident might also warrant reevaluation of prior plans. 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 a construction permit altogether.

The NRC concluded that such analyses must be initiated in its ongoing NEPA reviews on propcsed reactors, "i.e., for any proceeding at a licensing stage where a Final Environmental Statement has not yet been issued." Id. This means that if's final EIS has already been issued at

.the construction permit stage, such a review must eventually be done for

5 the operating license EIS. Th2 b2cic issu2 th:n io n2t wh2thsr, but

,',, when the NRC should consider environmental and other factors concerning the full rang: of_ accidents that might occur at nuclear power reactors, including core melt events. The Commission recognizes that, should su:h '

accident analyses indicate the need for modifications, "subatantive changes in plant design features . . . may be more easily incorporated in plants when construction has not yet progressed very far." Id.

In addition, NEPA's " action-forcing" procedures for EISs must be carried out by the NRC "to the fullest extent possible" so as to achieve the substantive requirements of the Act. NEPA $102(2)(c); Calvert Cliffs' Coordinating Committee. Inc. v. AEC. supra; 40 CFR 51500.1 (1979). The Council's regulations, which direct all agencies to commence the NEPA process at the earliest possible time (40 CTR 21501.2(d)(3)), provide that an EIS "shall be prepared early enough so that it can serve practi-cally as an important contribution to the decisionmaking process and ,

will not be'used te rationalize or justify decisions already made

($51500.2(c),1501.2, and 1502.2)." 40 CFR 51502.5 (1979). The purpose

= of the EIS process is to ensure " meaningful consideration of environmental factors at all stages of agency decisionmaking." Scientists' Institute .

For Public Information. Inc. v. AEC, 481 F.2d 1079, 5 ERC 1418,1425 (D.C. Cir ,1973)(emphasis added).

To delay the NEPA review and consideration of new accident analysis ,

information until operating license EISs are prepared would thwart the purposes of NEPA. Id. at 1427. While an EIS " drafted by the Commission can be amended to reflect newly obtained information as the program progresses," id. at 1430, the consideration of information pursuant NEPA must be given "at the earliest possible time to insure that planning and decisions reflect environmental values." 40 CFR $1501.2 (1979).

Conclusion Accordingly, the supplemental EISs for plants under construction should be prepared at the earliest possible time in the construction stage, while the Commission's prior permit actions " remain open to revision,"

(Esrex County Preservation Association v. Campbell, supra), so that the Ceumission has the greatest ability to make necessary substantive changes '

in its decisions regarding proposed reactors. 42 U.S.C. 2232(a).

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V UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket No. 50-367

)

NORTHERN INDIANA PUBLIC SERVICE ) (Construction Permit  ;

COMPANY ) Extension)  !

)

(Bailly Generating Station, ) September 5, 1980 Nuclear-1) )

)

CERTIFICATE OF SERVICE I hereby certify that a copy of NIPSCO's Response to Motions

, Concerning Staff Determination of Whether or Not to Prepare En-vironmental Impact Statement and letter to Harold Denton, Director, Nuclear Reactor Regulation, NRC from Kathleen H. Shea with attached memorandum of law on the Need to Prepare an Environmental Impact Statement in Connection with Extension of the Bailly Construction Permit were served on the following by deposit in the United States mail, postage prepaid, on this 5th day of September, 1980:

Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l Glenn O. Bright U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard F. Cole U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary .

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Howard K. Shapar, Esquire Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Steven Goldberg, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555

b' Susan Sekuler, Esquire Environmental Control Division 188-West Randolph Street Suite 2315 Chicago, Illinois 60601 Robert J. Vollen, Esquire c/o BPI 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602 Edward W. Osann, Jr., Esquire One IBM Plaza Suite 4600 Chicago, Illinois 60611 Robert L. Graham, Esquire One IBM Plaza 44th Floor ,

Chicago, Illinois 60611 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana 46312 Diane B. Cohn, Esquire William B. Schultz, Esquire Suite 700 2000 P Street, N.W.

Washington, D.C. 20036 Richard L. Robbins, Esquire 53 West Jackson Boulevard Chicago, Illinois 60604 Mr. George Grabowski Ms. Anna Grabowski 7413 W. 136th Lane Cedar Lake, Indiana 46303 Dr. George. Schultz 110 California Michigan City, Indiana 46360 b

KA7HLEEN H. SHEA Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.

Washington, D.C. ~20036 i l

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