ML19338D221

Submission of Exhibit B Erroneously Omitted from State of Il 800915 Brief Filed in Form of Pleading in Support of City of Gary,In,Et Al & s Schultz Appeal

ML19338D221
Person / Time
Site:	Bailly
Issue date:	09/19/1980
From:	Marc-Anthony Murray ILLINOIS, STATE OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-CPA, NUDOCS 8009220173
Download: ML19338D221 (4)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY-COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of- )

)

NORTHERN INDIANA PUBLIC )- Docket No. 50-367 SERVICE COMPANY )

) (Construction Permit Extension)

(Bailly_. Generating Station. )

Nuclear 1) )

To the Board:

Exhibit B, the-letter from Gus Speth to Attorney General Tyrone C. Fahner was erroneously omitted from the State of Illinois Brief in Support of the Gary and. Schultz Appeals. The letter is herein enclosed.

We apologize for any inconvenience this omission may have caused.

Respectful y s itted, ff ~ /

lt,Qin 7 UAIA4V MART J M 3RRAY Assis ritj Attorney Ge al Envir ental Control vision 188 West Randolph, Suite 2315 Chicago, Illinois 60601 (312) 793-2491 cc: Service List Enclosure

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I - EXECUTIVE OF'FICE OF TH E PRESIDEN1 ~ Exhibit A

- COUNCIL CN ENVIRONMENTAL CUALITY 7:2 JACxsoN PLACE. N W. -

WASMNGioN. o. C. 20006 _ _ * {*-

i August 12, 1980 gan j 81980 Honorable Tyrone C. Fahner VWiiiyaJ.SCOg

' Attorney General State of' Illinois AaW "F Chicago,'Ill. 60601. . .

Dear Attorney General Fahner:

The Council has reviewed your office's letter, dated May 27, 1980, regarding the application of the National Environ = ental Policy Act

("NEPA") to the future decisions concerning the Bailly Generating Station, Nuclear-1 ("Bailly-l").

Our raview of the' matter indicates that the initial construction per=it for Bailly-1 was issued on May 1, 1974. Since t. hat time virtually no construction has taken place, and the construction per=1e has expired. -

Pursuant to the intent of the Atomic Energy Act, unless the pe =it is extended by order of the Nuclear Regulatory Com=1ssion ("NRC"), the Northern Indiana Public Service Company ("NI?SCO") will forfeit all rights to construct Bailly-l.

Your office has suggested that there have been certain significant new developments since the final EIS on Bailly-l's construction permit was issued in 1973, such as:

1. The issuance of WAS'd-1400, The Reactor Saferv Study (October, 1975) and its reevaluation by H. Lewis' Risk Assessment Review Group in NUREG/CR-0400 (1978) .

2. The accident at Three Mile Island and the subsequent studies of the accident, including the Reporr bv the President's Coc=ission on The Accident At Three Mile Island, and the report of the Special Inquiry Group to the Nuclear Regulatory Commission.

3. The Septe=ber 26, 1979, NRC memorandum frc= R. W. Houston, Chief of the NRC's 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 to ,

meet proposed siting criteria contained in the report of the NRC l Siting Policy Task Force (NUREG-0625)(1979) . l 4 The CounciU s letter of March 20, 1980, to the NRC and the Council's report entitled, NRC's Environ = ental Analvsis of Nuclear Accidents: Is it Adecuate?

In our letter of March 20, 1980, we urged the C ~ ssion to cove quickly to revise its policy on accident analysis in environ = ental != pact state-ments. The review of NRC EISs by the Environ = ental Law Institute for E k g a utmn.

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the Council had_ revealed that none-of the EISs preparsd to' data by ths-

NRC for: land based reactors:has included an analysis of what were-formerly known as " Class 9".or worst case secidents. ' We stated our conclusion that ths NRC'slnew accident anaJysis policy should require discussion 'inL 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,_couldl improve the Commission's siting,: design,~ licensing, and emergency plauning' decisions.

On June 13,'1980, the Commission published a new Interim Felicy 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 1 materials, including sequences'that can result.in.the . . melting of .

the reactor core." 45 Fed. Reg. 40101. 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-i 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 cdditional features or other actions which would prevent or mitigate the consequences of serious accidents. Cases for-such consideration are those for whien a Final Environmental Statement'has already been issued at the Construction Per=it stage but for which the. Operating' License review stage has not yet been reached." 45 Fed. Reg. 40101, 40103.

l The NRC acknowledged that substantive changes in plcnt design features j

'as a result of such analyses'"may be more easily incorporated in plants ~

when construction has not yet progressed very far." 'Id.

s As indicated in the memorandum enclosed with this letter from our General Counsel's Office, in determining whether to'act to exrend NI?SCO's

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-construction permit, the NRC's' responsibilities under 'the Atomic Energy 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 $1506.3 and prepare a supplement dealing with the developments indicated above. Consideration of this

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new -information might_ indicate, among other things, the need to modify plant design,~ select an alternative site, tuplement certain emergency preparedness measures, or reconsider the construction per=it altogether.

As' stated by the U.S. Court of Appeals for the Second Circuit:

"Although an EIS may be supplemented, the critical agency decision must, of~ course, be made~after the supplement has been circulated,

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• 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.

Callawav, 524 F.2d 79, H92 (2d Cir. ,1975) .

'In summary,'the Council has concluded that the NRC should prepare and

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circulate a supplement to the EIS on.the Bailly-l construction permit prior to-rendering a decision on the pending request for a permit exrension. 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, GUS SPETH Chairman Enclosure cc: Me=bers of the Coc=ission President of NIPSCO l

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