ML19340B370
| ML19340B370 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 10/20/1980 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| ISSUANCES-OLA, NUDOCS 8010220313 | |
| Download: ML19340B370 (34) | |
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UNITED STATES OF AMERICA'
(.
NUCLEAR REGULATORY COMMISSION BEFORE -THE ' ATOMIC SAFETY AND LICENSING APPEAL BOARD l-In-the'. Matter. of-
)
)
CONSUMERS POWER COMPANY
)
Docket No. 50-155
)
(Spent Fuel Pool Modification) l
'(Big Rock Point' Nuclear Plant)
-)
l l
NRC STAFF BRIEF IN OPPOSITION TO MEMORANDUM AND ORDER ON NEPA REVIEW i
f I
.x i
Janice E. Moore
~
L:,
Counsel-for NRC Staff i
L.,
I
' October 20, ~1980
[:
e',
G u
1 i
l TABLE OF CONTENTS Page
-I.
I n t ro d uc t i o n.......................
j II.
Statement of.the Case...................
3 III.
Questions Presented....................
7 IV.
Argument..............
8 A.
An Environmental Impact Statement is not Required as a 11atter of Law Merely Because the Action in Question Might Indirectly Affect
- the Continued Operation of a Nuclear Power Plant for Which an Operating Licensewas Issued Prior to the Effective Date of NEPA and, Therefore, for Which no General Environmental Review was Previously Conducted.................
8 1.
The Board erred in defining the situation before 4
it as one in which a new Federal action is required to enable a private-party to complete a project. initiated prior to the effective date of NEPA......................
8 2.
Basing the conclusion that an environmenta!
4
- impact statement is warranted for a particular
~
. action on the mere fact that the continued operation of a facility for which the operating license was issued prior to the effective date
+
l
- of NEPA runs the risk of trivializing that s ta tu t e......................
15 3.
A requirement for preparation of an environmental
. impact statement with regard to this license amendment request would be a retroactive. application of NEPA.......................
17 B.
The Licensing Board lacks the Authority to Order the Preparation of an Environmental Impact Statement by the Staff. Before any Evidentiary Hearings Concerning the Adequacy of the Staff's Review have been held...
23 s.
- 1. sThe Licensing Board'nay not determine the adequacy of the Staff's performance of its independent 1 *~
responsibilities prior to an evidentiary hearing
. in this proceeding................
23
-/
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mir
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4,--
m y
u-
+
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-1
11 TABLE OF CONTENTS (Cont.)
e.
Pf3' 2.
The Licensing Board's jurisdiction in this proceeding is also limited by the contents of the Notice o f He a ri n g....................
25 C.
If it is Determined by this Appeal Board that Sec. tion 102(2)(C) of NEPA was Erroneously Applied by the Licensing Board in this Proceeding, the Appeal Board should then Determine for itself that Section 102(f)(E) of NEPA does not apply to this proceeding.......
26 V.
Conclusion........................
4 9.
o e
iii TABLE OF CITATIONS Page CASES Aberdeen and Rockfish R. R. Co. v. SCRAP, 422 U.S. 289 (1975)..................
13,.14 Andrus v. Sierra Club, 442 U.S. 347 (1979).......
15, 16, 17 Kleppe v. Sierra Club, 427 U.S. 390 (1976).......
20, 21 Strycker's Bay Neighborhood Council, Inc.
- v. Karlen, U.S.
, 48 U.S.L.W. 3433 (J a n. 7, 1980 )....................
28
~~Calvert Cliffs' Coordinating Committee v.
AEC, 449 F.2d 1109 (D.C. Ci r.1971 )..........
IS, 19 Hart v. Denver Urban Renewal Authority, 551 F. 2d 1178 (10th Ci r. 197 7 )............
14, 15 Jicarilla Apache Tribe of Indians v.
Morton, 471 F.2d 1275 (9th Cir.1973).........
14 Jones v. Lynn, 477 F.2d 885 (1st Cir.1973).......
15 Minnesota P. I.R.G. v. Butz, 8, 9, 13 4 98 F. 2d 1314 (8 th Ci r. 19 74 ).............
Olivares v. fiartin, 555 F.2d 1192 (5th Cir.1977).............
18 Pennsylvania Environmental Council v.
Bartlett, 454 F.2d 613 (3rd Cir.1971)........
18 Trinity Episcopal School Corp. v.
Romney, 573 F.2d 88 (2nd Ci r.1975)..........
28, 29 Westinghouse Elec. Corp. v. Nuclear Regulatory Commission, 598 F.2d 759 (3rd Cir.1979)..
17 Aluli v. Brown, 437 F. Supp. 602 (D. Hawaii 1977), rev'd on other grounds, 602 F.2d 876 (9th Ci r.1979).............
20
~
iv
~
TABLE OF CITATIONS (Cont.)
CASES (Cont.)
~
City of New Haven v. Chandler, 446 F. Supp. 925 (1978)................
28 County of-Trinity v. Andrus, 438 F. Supp.1368 (E. D. Cal.1977)..........
18 Joseph v. Adams,-
467 F. Supp.141 (E.D. Mich. S.D.1978)........
29 Monarch Chemical Works, Inc. v.
Exon, 466 F. Supp. 639 (D.. Nebraska 1979); aff'd sub nom, Monarch "5emical Works, Inc. v. Thone, F.2d
, No. 79-1181-(8th Cir. August 16,1979), 9 EmR 20697........
29 NRC CASES
-Carolina Power and ~ Light Co. (Shearon Harris Nuclear' Power-Plant, Units 1, 2, 3, and 4),
CLI-80-12, 11 NRC 514 (1980).............
23 Consumers Power Co. (Midland Plant Units 1 and 2), ALAB-235, 8 AEC 645. (1974 )............
24, 25 Consumers Power Co. (Midland Plant Units 1 and 2),.ALAB-123,-6 AEC 331, 335 (1973)..........
24-Houston ~ Lighting and Power Co. (South Texas Project, Units.1 and 2), ALAB-381, 5 NRC 582 (1977)...................
25 Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831. (1973)......
22 Northern States Power Co. (Prairie Island
- -Generating Plant,- Units 1 :and. 2),
. ALAB-455, 7 NRC 41 (1978 )...............
21-E '
7 e
s
(
yL
. TABLE OF-CITATIONS (Cont. )
Page NRC CASES (Cont.)
Offshore Power Systems, Inc. (Floating
,Huclear Power Plants), ALAB-489,
- 8]NRC 194 (1978)...................
23, 24 Portland General Electric Co.,:(Trojan
' Nuclear Plant),-ALAB-531, 9 NRC 263 (1979)......
21, 27, 28 Public Service ~Co. of Indiana.(Marble Hill Nuclear-Generating Station),
ALAB-316, 3 NRC 167 (1976)..............
25 i Dairyland Power Cooperative (La Crosse
. Boiling-Water Reactor), LBP-80-2,-
11 NRC 44 (1980)...................
28 New England Power Co. (NEP Units 1 and 2),
LDP-78-9, 7 NRC 271 (1978)..............
23, 24
. Northeast Nuclear Energy Cc. (Montague Nucle.ar Power Station-Units 1 and 2),
LBP-75-19, 1 NRC 436 (1975).............
23 REGULATIONS 10 C. F. R. 5. 2.101...................
23 10 C. F. R. 1 2.102....................
23 10 C. F. R. f - 2.105 ( b)..................
13 L
'10 C. F.R. f 2.105 (b)(1 )................
13
'10 C.F.R.-5 2.730(f)..................
2
[
10 - C. F. R.' 5 5 0. 3 5......'.............
9
~
i-
. 10 C. F. R. 6, 5 0. 9 0 '...................
23 10 C.F.R.L Part 50,7 ppendix I, -Section V........
9 A
i l.
.10 - C.F. R. Pa rt '50 ' Appendix-D.............
9 s
p.
l
vi
.TABLF 0F' CITATIONS (Cont.)
Page' REGULATIONSD(Cont.)-
10 C. F. R. 5 51. 5....................
1 0, 11
~
' 10 C.F.R. 5 51.5(a)...................
10 10 C. F. R. l 51. 5 ( b )...................
10
- 10 C. F. R. 5 51. 5 (d )...................
10 10 ' C. F. R. 5 ' 51. 5 (d ) (4 ).................
23
.10 C.F.R. 5 51.56 9
4 0 C. F. R. l 15 08. 9 ( b )..................
30 40 C.F. R. 5 1508.18(b)(4 )................
12 PROPOSED REGULATIONS P ro po s ed 10 C. F. R. - 6 51.12...............
10 Proposed 10 C.F.R. 6 51.14(a)(4)(i-fii).........
10 Proposed 10 C.F.R. 6 51.20(b)(11)............
11 Proposed 10 C.F.R. 6 51.20(b)(13)............
11 Proposed 10 C.E.R. 5 51.21 (b)..............
10, 11
~ Proposed 10 C.F.R. 5 51.21(b)(7)............
11
- Proposed 10 C.F.R.1151.30(a)(1)(ii)..........
30 STATUTES
- 4 2 U. S. C. 5 4 3 21....................
29 4 2 - U.S.C. 5 4331 (b)(6).................
29 42 U.S.C. 5 4332(2)(a-b)'.................
20
'42 U S C cs 4332(2)(C) passim
- 42:U.S.C. 'l 4332(2)(E)'.................
passim
.' N.
~
vii TABLE OF CITATIONS (Cont.)
Page OTHER 40 Fed. Reg. 42801...................
16, 31 44 Fed. Ft i t. 4 3126...................
4, 12, 25 jj 44 Fed. Rgg. 5 2 912...................
12 45 Fed. Rgg. 13739...................
9 S. Rep.91-296, July 9,1969, 91 s t Congres s, 1 s t Sess................
27 115 Cong. Rec. 40420 (1969)...............
27 O
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY. AND LICENSING APPEAL BOARD i.
In the Matter of
)
CONSUMERS POWER COMPANY.
Docket No. 50-155
'(Big Rock Point Nuclear Plant)
NRC STAFF BRIEF IN OPPOSITION TO MEMORANDUM AND ORDER ON NEPA REVIEW I.
INTRODUCTION On September 12, 1980, the Atomic Safety and Licensing Board (Licensing Board) designated to conduct this spent fuel pool ~ expansion proceeding issued a " Memorandum and Order on NEPA Review".
In its Order the Licensing Board required the Staff of the Nuclear Regulatory Commission (Staff) to-prepare an environmental impact statement (EIS) pursuant to Section 102(2)(C)
~
of the National Environmental Policy Act of 1969 (NEPA). 42 I!.S.C. s-4332(2)(C).
The Licensing Board said that.this statement was to cover the environmental impacts of an expanded spent fuel pool, and the additional tem of operation of the facility that such expansion would pemit.. Memorandum and Order on' NEPA Review at 18-19 (September 12,1980).
In its Order the Licensing Board also restated and admitted Contention VIII, which was originally filed by Intervenor John O'Neill, II.1/ The admitted contention states.as follows:
If It should be noted that the contention admitted by the Board differs in
- some degree from Intervenor O'Neill's original contention.
See n. 5, infra.
i "An environmental review of the proposed spent fuel pool expansion is necessary under Section 102(2)(C) of NEPA and would indicate that the environmental costs of. this expansion exceed the benefits."
M. at 19.
In its Order the Licensing Board -referred the rulings it had made to the Atomic Safety and Licensing Appeal Board _(Appeal Board) pursuant to 10 C.F.R. $ 2.730(f) of the Commission's regulations. M.
In an Order dated September. 12, 1980, the Appeal Board accepted the referral of the rulings underlying the Licensing Board's direction to the Staff to prepare an environmental. impact statement in this proceeding, established a briefing schedule for the parties, and invited the Council on Environmental Quality to submit a brief anicus curiae.l By Order dated September 30, 1980, the Appeal Board requested that the parties also address the questions:
(1) whether, should the preparation of an environmental impact statement be found unnecesnry in' this proceeding, Section 102(2)(E) of NEPA would apply, and (2) whether the Appeal Board should remand this question to the Licensing Board for decision or decide the question.itself.
For the reasons set forth below, the Staff concludes that:
1.'
The Licensing Board erred in detennining that an environmental impact statement must be prepared by the Staff in this proceeding;
- 2]
No mention is made in the Appeal Board's Order concerning the Licensing Board's ruling admitting Intervenor O'Neill's contention as the Board restated'it.
Therefore, the Staff assumes for purposes of this brief that the question of the admissibility of such a contention is not
. before the Appeal Board.
l
'2.
The Licensing Board lacks the authority to order the preparation of an i
environmental impact. statement before the adequacy of the Staff's review has been tested by evidentiary hearings in which all parties have had an opportunity to participate; and 3.
'The question of. the applicability of Section 102(2)(E) of NEPA is not raised by the circumstances of this case.
II.
STATEMENT OF THE CASE The Big Rock Point plant is an operating. nuclear plant. Consumers Power Company (Licensee) received a provisional operating license for the Big-Rock facility in 1962, and a full-term operating license for the facility in 1964.
Since this full-term operating license was issued prior to January 1, 1970 (the effective date of NEPA)'no environmental impact statement covering plant. construction and operation was prepared for ti e facility.
l In April of 1379, the Licensee submitted an application for an amendinent to d-the operating license for the Big Rock plant which would allow an increase
-in.the spent fuel pool storage-capacity at' the facility from 193 to.441 spent fuel assemblies. - This increase in capacity is to be accomplished by
~the installation of three new racks in the spent fuel pool with a closer center-to-center spacing than exists between the present racks, i o.
e f
On July 23,-1979, a flotice' of Proposed Issuance of Amendment of Facility' Operating License was published in the Federal Register regarding the Licensee's request for this~ spent fuel pool modification amendment. 44 Fed.
Reg. 43126.. In-response to that Notice several petitions for leave to intervene were filed.U-At the Special Prehearing Conference argument was heard on Mr. Leithauser's interest and on.the contentions submitted by Intervenors Christa-flaria, el al. and John O'fieill, II.4l One of the contentions submitted by Intervenor O'fleill was Contention VIII.N In its Order Following Special Prehearing Conference dated January 17, 1980, t-y Petitions were filed by fir. John 0'Neill, II, and John A. Leithauser, on behalf of him: elf and the florthwest Coalition. A petition was also filed by 24 residents of communities surrounding the facility.
By Order dated September 25, 1979, the Licensing Board found that the 24 area residents,_ and John O'fleill', II, had established the requisite interest
.for participation in this proceeding. Order at 2, 4.
Mr. Leithauser's i
petition was denied for failure to demonstrate the requisite individual or organizational interest in~ that same Order, and he was given an opportunity to amend his petition before the Special Prehearing Conference.
Id_. a t"4.
This prehearing conference was held on December 5,1979.
4]
By the time of the prehearing conference, only 3 of the original 24 area residents who signed the initial petition for leave to intervene remained as participants in the proceeding. These remaining participants are now 4
referred to as Christa-Maria, et al.
5] - Contention VIII states as follows:
Granti.ng of the license is the only way the plant can operate
- past the year 1981 as things stand now, and thus allow an extension of plant activity that would otherwise be halted.
4 Hence, ittis a tacit approval of such extended operation, and should -include a review of general plant safety.
(Continued) t
,.,.,,~.
s
.5 -
the Licensing Board denied fir. Leithauser's petition for -leave to intervene in any capacity, and admitted a number of contentions for litigation in' this proceeding.
In its Order the Licensing Board-interpreted -Intervenor O'Neill's Contention VIII as follows:
" Contention VIII, in addition to again requesting a review of.
general ~ plant safety, conte'nded that the granting of the license would-pennit the plant to operate past the year 1981, that the plant produces very little electricity compared to modern nuclear generators, and that _the closing of the plant would not cause great hardship."
Board Order at 32 (January 17,1980). The Board deferred ruling on this contention, and requested the parties to brief the following question:
"W'ere the facility has never been subjected to National Environ-mental Policy Act of 1969 (NEPA) review because it was licensed before NEPA, does a license amendment which would penait the continued operation of the facility either require or permit considering a cost-benefit analysis or the need for power in the license-amendment proceeding, 99twithstanding that the staff may issue a negative declaration?"3 5/
(Continued)
The Kemeny Commission has recommended " periodic relicens-
-ingf of existing atomic plants on the basis of hearings, inspections and performance criteria."
Big Rock produces very little electricity compared to modern nuclear generators, 72 meg: watts at most; the closing of Big Rock would ~not cause great hardship.
6/.
In response to the Licensing Board's question, the Staff concluded that:
.1)-
Consideration of either a cost-benefit analysis or the need for power is not required in a license amendment proceeding where the proposed action is found to have an insignificant effect on-the
~
quality of the human-environment, regardless of the fact that this (Continued) i
~
~-
Id. at'33-34. - All parties briefed the ' issue presented by the Board.2/
The Board's Memorandum and Order on NEPA Review would seem to be the Licensing Board's -ruling on the question it had previously posed, though no specific neation is made in the Order of consideration of any particular environmental issues such as need for power or the performance of a cost-benefit analysis.
The Licensing Board held in its Order that:
"to the extent that we are asked to approve a Federal action granting a. license amendment for the sole purpose of enabling Licensee to utilize a greater term of the license than would otherwise be possible, we consider the action to have a sig-nificant effect upon the environment which must be environ-mentally reviewed under Section 102(2)(C)."
Because of. this holding the Licensing Board ordered the Staff to prepare an environnental impact statement pursuant to Section 102(2)(C) of NEPA covering the environmental impacts of an expanded spent fuel pool, and the additional 6/
(Contined) license amendment might be-necessary for the continued operation of the facility.
2)
Section 102(2)(E) of NEPA does not require analysis of alterna-
! aes in this spent fuel pool modification proceeding, since there are no unresolved conflicts concerning alternative uses of the resources involved here.
3)
The Board. is not pennitted to consider either a cost-benefit analysis or the need for. Big Rock power in some other c.' text in this proceeding,'since it lacks the jurisdiction to do so.
~
2/
AlthoughLMr. Leithauser's petition for leave to intervene was denied, he was given the opportunity to brief this particular issue and did so.
4 phm
~
tenn of operation of the facility _ that such an expansion would pennit.
Board Order of September 12, 1980 at 18-19 In addition, the Board admitted Intervenor John O'Neill's Contention VIII as restated by the Board. The Licensing Board then referred its ruling to the Appeal Board and the Appeal Board has accepted this referral at least with regard to the question of whether an environmental impact statement should have been ordered by the Licens.ingBoard.E III.
QUESTIONS PRESENTED A.
Whether an Environmental Impact Statement is required as a matter of law in a situation where the action in question might indirectly affect
- the continued operation of a nuclear power plant for which an operating license was issued prior to NEPA's' effective date and for which, there-fore, no environmental review was previously conducted?
B.
Whether the Licensing Board has the authority to order the preparation of an Environmental Impact Statement by the Staff before the Staff has completed i_ts review and before the adequacy of that review has been tested in an evidentiary hearing? and C.
If it is detennined that Section 102(2)(C) was erroneously applied by the Licensing. Board in this proceeding, whether the Appeal Board should 8/ -
The Staff views the Board's Order as a statement that without the prepa-ration of an environmental impact statement, this license amendment application will not be granted.
In other words without an environ-mental impact statement the Licensing Board views the Staff's review as. per se inadequate.
e y
See n. 2, supra.
determine the applicability of Section-102(2)(E) of NEPA to this case itself and if so, is Section 102(2)(E) applicable to this proceeding?
IV.
ARGUMENT A.
An Environmental Impact Statement is not Required as a Matter of Law Perely Because the Action in Question Micht Indirectly Affect the Continued Operation of a Nuclear Power Plant for Which an Operating License was Issued Prior to the Effective Date of NEPA and, Therefore, for Which no General Environmental Review was Previously Conducted.
1.
The Board erred in definina the situation before it as one in which a new Federal action is required to enable a private party to complete a project initiated prior to the effective date of NEPA.
The Licensing Board has characterized the situation before it as one in which a new Federal action is required to enable a private party to complete
~
a project initiated prior to NEPA's effective date. Memorandum and Order on NEPA Review at 8.
As support for its view the Board cites the case of Minnesota P.I.R.G. v. Butz, 498 F.2d 1314 (8th Cir.1974).
In this case extensions and modifications of timber sale contracts were viewed cumula-tively as major Federal actions requiring an environmental impact statement on timber cutting. The extensions of some of the contracts would have allowed the cutting oT timber which' had not previously been disturbed. The modification of other contracts would have changed the lands on which the private parties involved could cut the-amount of timber necessary for ful-i fillment of the contract terms.
None of the above-mentioned extensions or modifications tampered with a completed timber sale contract.
The Court in
~
4
9-Minnesota P.I.R.G., supra, encouraged the preparation of a general environ-mental impact statement on the effects of timber cutting, thus making it unnecessary to environmentally evaluate each individual timber sale absent a material change in circumstances or a departure from the policy covered by the overall impact statement. 498 F.2d at 1323, n. 29.
The Licensing Board's view does not comport with 10 C.F.R. Part 51 of the Commission's present and proposed regulations.N It also does not comport with the Notice of Hearing which initiated this proceeding, nor is the Board's conclusion compelled by case law.
Part 51 of the Coanission's present regulations, which'is applicable to this proceeding, does not state tnat the description of those actions requiring an EIS or an environmental impact appraisal does not apply in situations where operating licenses were issued prior to NEPA's effective date. Where the Commission has determined that particular provisions of the regulations should not apply to certain actions, or should ~ apply to a different extent, the Commission has promulgated a specific regulation to that effect.
- See, e.g.,'10 C.F.R. 5. 50.35, n.1; Appendix I to 10 C.F.R. Part 50, Section V.
In Part 51 itself the Commission states which environmental documents and proceedings would be controlled by the present regulations and which would be governed by the previous regulations contained in Appendix D to 10 C.F.R. Part 50.
10 C. F.R. 5 51.56. The Commission's proposed Part 51 sets out in
~
1_0f The proposed revision to 10 C.F.R. Part 51 was published in the Federal Register on March 3, 1980. 45 Fed. RS. 13739. These proposed regula-tions will be~ cited hereafter as proposed 10 C.F.R. 5 detail which environmental documents must comply with these new eegulations, and which documents are not required to do so.
Proposed 10 C.F.R. 5 51.12.
There is'no statement in s 51.5 of the present regulations or in proposed 5 51.21 to the effect-that the license amendment actions. mentioned therein should be treated differently based on whether the plant in question received its operating license before or after NEPA's effective date. Therefore, the Commission's regulations in this area apply in the same manner to both pre-NEPA and post-NEPA facilities.
The Commission's regulations discuss which type of actions require environ-mental impact statements,10 C.F.R. S 51.5(a), those which may or may not require an environmental impact statement,10 C.F.R. 5 51.5(b), and those which require neitherL an environmental impact statement nor an environmental impact appraisal and negative declaration.
10 C.F.R. 5 51.5(d). The Commis-sion's -proposed regulations also discuss those actions requiring impact statements and those requiring environmental assessments.b The Commission's i
W In these new regulations the term " environmental assessment" is defined L
as follows:
l l
"a concise public docuaient for which the Commission is responsible that serves to:
l (1) Briefly provide sufficient evidence and analysis for detemining whether to prepare an environmental impact statement or a finding of no significant impact.
(ii) Aid the Commission's compliance with NEPA when no environmental
. impact statement is necessary.
l
-(iii)
Facilitate preparation of an environmental impact statement when
~
one is necessary." Proposed 10 C.F.R. 6 51.14(a)(4)(1-iii).
v
- present regulations do not specifically mention a license amendment which would increase the spent fuel storage capacity at a facility.
However, in both the Commission's present and proposed regulations _ license amendments as a category of actions are discussed separately from actions resulting in issuance of_ construction permits or operating licenses.
See 9 51.5 and proposed 9 51.21(b).
In the proposed regulations the only license amendment which would require an environmental impact statement is one which would allow decommissioning of a facility.1 / Proposed 10 C.F.R. % 51.20(b)(11).
An environmental assessment is required by the proposed regulations, on the other hand, for a number of different types of license amendments, including amendments which would result in a significant increase in the spent fuel storage capacity of a facility.
Proposed 10 C.F.R. 6 51.21(b)(7).
In the 4
preparation of the Commission's proposed NEPA implementation regulations it was necessary to review and reconsider the present regulations.
Such recon-sideration did not result in any changes to the treatment of license amend-ment actions as separate from actions resulting in the issuance of a con-struction permit or operating license.
In fact, the proposed regulations make such a distinction even clearer than the present regulations. The Commission's separation in _the regulations of NEPA requirements to be met for -issuance _ of construction permits or operating licenses from the environ-mental evaluation requirements for issuance of license amendments indicates that all amendments' to licenses should be treated as. separate and distinct 12/ It should be noted that these proposed regulations give the Commission the option of preparing an environmental ' impact statement for "...any other action which the Commission deems is a major Commission action significantly affecting the quality of the human environment." Pro-posed 10 C.F.R. 6 51.20(b)(13).
actions.for NEPA purposes.b On the. basis of either tne present or proposed regulations the significance of the impacts of a particular license amendment should be detemined by evaluation of the impacts of that particular amendment.
- The mere fact that' a particular license amendment micht indirectly affect.
the continued operation of a given facility is not tne detemining factor in the decision concerning the preparation of an Environmental Impact Statement.
This license amendment request was treated as a separate and iistinct action in the Notice of Proposed Issuance of Amendment to Facility Operating License, 44 Fed. Reo. 43126 (July 23, 1979), and in the Natice of Establishment of Atomic Safety and Licensing Board to preside in proceeding, 44 Fed. Re,c.
a 52912(September 11,1979).
In establishing the Licensing Board to rule on petitions to interven" and preside over this proceeding, the Chairman of the Atomic Safety and Licensing Board Panel described the matter with which the Licensing Board was to deal by references to the July 23, 1979 Notice of 1
Proposed Issuance of Amendment to Facility Operating License, 44 Fed. Rec.
43126.
In the Notice of Proposed Issuance of Amendment to Facility Operating License the nature of the action to be taken was. described as "the addition of three racks with a closer center-to-center spacing-of spent fuel assemblies in the
-facility's spent fuel. pool."
Id. at 43127.
In describing the nature of the
.13/ The Commission's regulations are' consistent with the definition of
~
project contained in the regulations of the Council on Environmental Quality (CEQ) which states:
... Projects include actions approved by
^
permit or other regulatory decision as well as federal and federally
- assisted activities." 40 C.F.R. 5 1508.18(b)(4).
action that would be taken, as required by 10 C.F.R. 6 2.105(b)(1), no reason for the taking of such an action was assigned.
The giving of reasons for a particular. action in a notice-for proposed issuance of a license amendment is not required by the Commission's regulations.
See 10 C.F.R.
s 2.105(b).
This license amendment requiring the approval of the Licensing Board, since this is a contested proceeding, is more analogous to the action which was the subject of litigation in Aberdeen and Rockfish R. R. Co. v. SCRAP, 422 l
U.S. 289 (1975), than-to the action discussed in flinnesota P.I.R.G., supra.
[
In Aberdeen, the Nation's railroads submitted a proposed general rate increase to the Interstate Commerce Commission (ICC).
In addition the railroads proposed selective rate increases which were evaluated in environmental impact statements prepared-by both the railroads and.the ICC. The ICC issued an order tenninating -the general revenue proceeding without declaring the selective rate increases unlawful.
422 U.S. at 302. A three-judge federal _ court required-the preparation of a better environmental impact statement by the ICC which would include, among other things, discussion of the general railroad rate structure presently in existence.
The Supreme Court reversed the three-judge court's decision. 422 U.S. at 328.
~ The_ Supreme Court's_ view was that the impacts of the rate increase were l
l.
adequately discussed in the ICC's impact statement, that no need was found
' for a detailed -discussion of the basic _ railroad rate structure, and that any such discussion should be conducted in a different proceeding.
The Court,
detemining whether the.EIS was adequate, focused on the impact of the increase itself, and not on the environmental impacts of the underlying operation of the railroads.b No mention was made by the Court whether o'r not an environmental impact statement had ever been prepared concerning the operation of the Nation s railroads either individually or collectively.
The presence or absence of such a statement did not influence the court's decision that she rate increases themselves and their impacts on the environ-ment were what should be evaluated.
Similarly the presence or absence of an environmental impact statement relating to the operation of the Big Rock facility should not influence a decision as to the significance of the impacts of this spent fuel pool expansion on the environment.
Even if the Licensing Board's view of this license amendment request as part of a continuing Federal project initiated before NEPA is accepted, it would not mean that the whole project, i.e., the continued operation of the Big Rock Point plant, would have to be considered.
Federal courts have said that the practicality of complying with Section 102(2)(C) of NEPA must be detemined as regards each major Federal action contemplated, not on the project as an entirety. Hart v. Penver Urban Renewal Authority, 551 F.2d 1178,1181 (10th Cir.1977); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973).
In Hart, the Plaintiffs attempted to stop the sale of a tower to 'a Denver architectural firm for renovation into
~'
14/. The Court recognized that the increase in rates on recyclables which are 4
defined as " materials obtained from products which have already been put to ~one commercial use" would potentially increase truck traffic which
. would in turn increase pollution, and might increase the use of virgin
)
resources rather than recyclables.
422 U.S. at~299.
1 office space until the Department of Housing and Urban Development (HUD) complied with NEPA and historic preservation regulations.
This tower was part of a large urban renewal project approved before the effective date of NEPA.
However, it was necessary for HUD to approve dispositions of property by the city urban renewal authority, and the Court of Appeals found this l
requirement to be sufficient Federal action to weigh in favor of the applica-bility of NEPA for certain purposes.
The court determined that the applica-tion of NEPA must be considered in relation to the particular matter or struc-ture being evaluated rather than the entire redevelopment project.
Hart v.
Denver Urban Renewal Authority, supra, at 118?.
l In the situation before this Board, if ene applies the reasoning of Hart, then only the impacts of this amendment upon the environment should be en luated. An environmental evaluation of general plant operation is not l
required.
l 2.
Basing the conclusion that an environmental impact statement is warranted for a particular action on the mere fact that the action l
might indirectly affect-the continued operation of a facility for
. which the operating license was issued prior to the effective date of NEPA runs the risk of trivializino that statute.
I The situation before this Appeal Board is very similar to that faced by the Supreme Court in Andrus v. Sierra Club, 442 L.S. 347 (1979).
In Andrus the I
15/ See also Jones v. Lynn, 477 F.2d 885 (1st' Cir.1973).
This case involved an urban renewal project where amendments to pre-NEPA contracts were-found to be sufficient to make the project subject to NEPA. The court l
held, however, that an EIS need be prepared with respect only to the uncompleted part of the project conceived as a whole. id. at 893.
The court suggested that the study to be undertaken should be both limited
.in scope and foreshortened in time.
y Supreme Court rejected the position that an EIS was required for appropria-tions request because.without appropriations the entire program which the request was designed to fund would cease.
Aside from the unique facts relating to budgetary decisions, the Andrus decision strongly suggests that NEPA should'not be interpreted and applied so that a particular action--no matter how trivial--must be the subject of an EIS if "but for" that action a previously approved major Federal-action might have to discontinue opera-tion.16/ The Licensing Board concludes that the reason for this amendment is to allow the plant to operate for a greater part of its licensed tem.El M/ The Supreme Court reversed the Court of Appeals' alternative interpreta-tion of NEPA.
Under this interpretation, although appropriations requests were not proposals for legislation under Section 102(2)(C) of NEPA, an EIS would ha~ to be prepared for an appropriations request which would fund major changes in an underlying program which would significantly affect the cuality of the human environment.
The Supreme Court stated that this interpretation of NEPA would have the same results as if appropriations requests were to be considered proposals for ;egislation.
442 U.S. at 364 n. 23.
The Court pointed out that if the existence of the Federal program in and of itself.were a major Federal action significantly affecting the quality of the human environ-ment, and without this funding the program could not exist, then an EIS would be required to accompany the appropriations request.
Id.
The Court felt that the Court of Appeels' interpretation would require an EIS for every funding request for-a Federal program which significantly affects 'the quality of the human environment. M.
It was the Court's view thdt such a requirement would run the risk of trivializing NEPA.
E / It should be noted that another reason for this license amendment request could be the need to compensate for a regulatory change which suspended the possibility of the use of reprocessing as a means for spent fuel di sposal.
The Commission recognized that the spent fuel storage capacity of' individual reactors'was designed bas. d on the nuclear industry's belief that reprocessing would be available to 1. xithin a short time after
-commencement of reactor-operation.
See Notice of Intent to Prepare Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, 40 Fed. Reg. 42801 (September 16,1975).
Big Rock was among those facilities authorized to burn mixed oxide fuel
.in advance of rulemaking on an. experimental basis.
Obviously, if Big Rock would.have.been allowed to continue to ship fuel for reproces' sing, (Continued)
If plant operation is considered to'be a major Federal action significantly affecting the quality of the human environment, as stated by the Licensing Board in its Order at 15, then an EIS would have to accompany every license amendment approval-which would in.effect allow the plant to continue to operate.
Such amendments would range from changes in and exemptions from Technical Specification requirements to amendments allowing restart of a plant after a reload 'is completed. Such amendments could be issued with great. frequency.
The Supreme Court ;in Andrus made no distinction in detennining that appro-priations-requests did not warrant the filing of an EIS between Federal programs for which an initial EIS was prepared and those for which one was not prepared. The Court sees such a result as risking the trivialization of NEPA, and requiring -such a result here would incur the same risks.
l 3.
A requirement for preparation of an environmental impact statement l
with regard to-this license amendment request would be a retro-active application of NEPA.
As noted above, the project in question here is not the total-operation of the Big Rock. plant but rather the separate and distinct amendment to the i
1.2/
(Continued).
the present amendment request to enlarge the facility'.s spent fuel pool would have been unnecessary.
If the failure of reprocessing to materialize as a method of waste disposal is viewed as the reason behind the request
.for this -amendment, then it would hate to be.the impacts of_ the decision to suspend reprocessing rather than-the impacts of plant operation, which must be' evaluated. The Court' of Appeals for the Third Circuit held that
' an EIS is not necessary for such suspension.
Westinghouse Elec. Corp. v.
~
Nuclear Regulatory Commission, 598 F.2d 759, 776-78 (3rd Cir.1979)..
operating. license allowing an increase in the on-site spent fuel storage capacity of the faci ity.
The Licensee received its full-term operating l
license for the Big Rock facility in 1964, some' 6 years prior to NEPA's effective date.. Congress made no provision for the retroactive application of NEPA.
The Courts in applying NEPA to particular projects have consist-ently held that NEPA may not-be applied retroactively.
Olivares v. fiartin, 555 F.2d 1192,- 1197 (5th Cir.1977).
See County of Trinity v. Andrus, 438 F.Supp.1368,1388 (E. D. Cal.1977); Pennsylvania Environmental Council v.
Bartlett, 454 F.2d 613, 624 (3rd Cir.1971); Calvert' Cliffs' Coordinatino Committee v. AEC, 449 F.2d 1109,1129 (D.C. Cir.1971).
Calvert Cliffs, supra, is the most pertinent of these cases since it sets forth the situations in which a NEPA review was required with respect to the construction and operation of nuclear power plants which were in varying stages of licensing review and approval on the effective date of NEPA.
The 1
Court listed' three categories of cases in which a NEPA review was required.
The first included those plants on which licensing action was begun after NEPA's effective' date. ' The second category included those facilities which were begun before NEPA, and which received their operating licenses after NEPA's effective date without NEPA compliance. The third group of plants encompassed those facilities for which construction permits were issued before NEPA's effective date, but which had not received their operating licenses by the time NEPA became effective, ljf., at 1120-1129.
With respect to this third group of facilities, the Court was quick to point out that the v
'r
t [.-
-approach it was taking was not a retroactive application of NEPA.
Id.
The l
Court pointed -to the fact, as support for this determination that these l
f l
plants still had to " pass muster" before they could begin to operate.
I d_.
~
l l
It was the lack of the final agency action of issuing an operating license which triggered the requirement that a NEPA review be conducted.
The Court.in Calvert Cliffs made no atterpt to require a NEPA review for those plants constructed and already operating before NEPA's effective date.
Big Rock is just such a facility.
In 1964, Consumers Power Company received a full-term operating license for the facility.
This final agency action showed that Big Rock had " passed muster" in the words of the Calvert Cliffs' l
l court.
The use of the fact that one more agency action, that of issuing the operating license, was what made NEPA apply to particular plants indicates that the Calvert Cliffs' Court viewed a particular project as finished once the operating license was issued. Therefore, an amendment to that operating license should be reviewed as a separate and distinct project, and the significance of its impacts on the quality of the human environment should be determined independently of whether or not the plant could continue to operate without the amendment. Any attempt to tie the two projects together for purposes of requiring an environmental impact statement on plant opera-tion, wheti er past or future, would be an impermissible retroactive applica-tion of NEPA.
s The approval of this license amendment request as an action independent of
'the continued operation of the Big Rock plant in the form of a negative O
m ww
t:
declaration supported by an environmental impact appraisal, does not co:.-
-flict -with the purposes of NEPA.
The purpose of NEPA was to make Federal agencies responsible for the protection of this Nation's environmental resources.
That protection was to take the form of informed decision-making before any major Federal actions were taken. 42 U.S.C. 5 4332(2)(a-b).
In furthering these purposes, at least one Court has found that, when taking further action on a project, account should be taken of those environmental consequences not fully evaluated at the outset of a proposal or program.
Aluli v. Brown, 437 F. Supp. 602, 607 (D. Hawaii 1977), rev'd on other orounds, 602 F.2d 876 (9th Cir.1979). This view is analogous to the position taken by the Supreme Court with respect to whether a comprehensive environmental impact statement is required in all instances where several similar actions are contemplated in the same area.
Kleppe v. Sierra Club, 427 U.S. 390 (1976). The Supreme Court in Kleppe stated that if actions not yet planned 1-are later taken, account must be taken of the existing environment and that-environment would reflect earlier actions and their effects.
Id. at 410.
The Staff is obligated to take the environment as it finds it.
The existing environment at the Big Rock facility contains an operating nuclear power plant. The impacts of the operating nuclear power plant on the environment must be taken into account in evaluating the environmental consequences of 1
the spent fuel pool modification at Big Rock. An assessment which takes into account the known data accumulated on plant operation, and determines
- whether or not-the _ consequences of the proposed license amendment would.
exceed those existing environmental impacts to a sufficient degree to warrant
1.
i consideration of denial of the proposed amendment, would comply with the Supreme Court's view in Kleppe, supra.
The consideration of these environ-mental impacts in the form of an environmental impact. appraisal rather than an EIS would comply with the purposes of NEPA under the particular circum-stances of this case, since the agency would be considering environmental consequences in their decision-making process.
The fact that an environ-mental review had not previously been done for plant operation in general does not mean that to do one now would be the only way, or the best way, to accommodate the purposes of NEPA and the view of the courts as to how these purposes should be implemented.
In addition, the preparation of such an appraisal by the Staff would make the Big Rock situation very similar to that in previous spent fuel pool 4
capacity expansion' cases in which the Appeal Board rejected the argument that the impacts of plant operation had to be considered in evaluation of this license amendment request.
See Portland General Electric Co., (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 266 n. 6 (1979); and Northern States Power Co. (Prairis Island Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 46:n. 4 (1978).
In each of these cases the Appeal Board pointed out that the environmental impacts-of plant operation had been assessed at the
- time the plants' operating licenses were issued as support for its rejection of this argument.
Trojan, supra, at 266 n. 6; Prairie Island, supra, at 46
- n. 4. -
The Staff. believes that the evidence, had it been presented, would have shown that this license ~ amendment would not significantly affect the quality
of the environment. As noted above, in the case of Big Rock' the Staff will make its environmental evaluation of this amendment application based on approximately 18 years of accumulated operating data in those ;reas which l
' the spent fuel _ pool expansion would affect, i.e., effluent releases.
The fact that the Staff must, to some extent, evaluate the environmental impacts l
j-
-which would be affected by the pool's capacity expansion in order to deter-l mine whether the expansion's effects on the environment are significant, should. serve the same purpose as reliance on data previously issued in another document. As previously stated by the Appeal Board, NEPA reviews should be governed by a rule of reason. See long Island Lightino Co.
(Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 836 (1973).
It would not serve the purposes of NEPA to evaluate now all the aspects of plant operation which are included in an EIS, but which are not related to the expansion itself. The plant -is already there, and is permitted by its license to generate power with the concomitant generation of waste for a f
period of approximately forty years from the date of its issuance. As noted by the Licensing Board the plant may operate under its present license as long as it can find a place to store the spent fuel it generates without an environmental review. Memorandum and Order on NEPA Review at 15.
Thenafore, no valid purpose wculd be served by using this amendment to accomplish indirectly what cannot be accomplished directly - the evaluation of the environmental impacts of general plant operation.
i' l
B.
The Licensing Board lacks the Authority to Order the Preparation of an Environmental Impact Statement by the Staff Before any Evidentiary Hearings Concerning the Adequacy of the Staff's Review have been Held.
1.
The Licensina Board may not determine the adequacy of the Staff's perforinance of its independent responsibilities prior to an evidentiary hearing in this proceedina.
The Commission has recently held that a Board does not have the power to direct the Staff in the performance of its administrative functions.
Carolina Power and Licht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12, 11 NRC 514, 516 (1980).
Some Licensing Boards have also ruled that as a general matter, a Board has no supervisory authority over that part of a review of an application which has been entrusted to the Staff.
New Enoland Power Co. (NEP Units 1 and 2), LBP-78-9, 7 NRC 271, 279 (1978); Northeast Nuclear Eneray Co. (Montague Nuclear Power Station Units 1 and 2), LBP-75-19,-1 NRC 436, 437 (1975).
Under the Commission's regulatory scheme, the Staff is given the duty to review applications for licenses and license amendments. See 10 C.F.R.
@@ 2.101, 2.102, and 50.90.
See also Montaoue, supra, at 437. As part of its review the Staff. prepares certain documents.
In the case of a license amendment the Staff prepares a safety evaluation, and either an environmental impact statement or a negative declaration supported by an environmental impact appraisal. W The Staff has the right'to prepare documents up to its own standards of adequacy. Offshore Power Systems, Inc. (Floating Nuclear
-18/ There are some amendments which do not require either environmental
' documents.- See10C.F.R.651.5(d)(4).
Power Plants), ALAB-489, 8 NRC 194, 206 (1978).
It has previously been held that Licensing Boards have no authority over or role in the preparation of.
Staff documents.
See New England Power Co., LBP-78-9, supra, at 279.
The troner relationship between an adjudicatory ooard and the Staff should be analogous to that of a reviewing court and an administrative agency.
Offshore Power,_ALAB-489, supra, at 203.
The documents prepared by the Staff are subject to review and amendment by a Board in an adjudicatory setting where all the parties to a proceeding may participate in evidentiary hearings.
New Enaland Power Co., LBP-78-9, supra, at 279.
The Board's review is expected to be independent, and to resolve the appropriate conten-tions of the various parties.
Consumers Power Co. (Midland Plant Units 1 and 2), ALAB-123,. 6 AEC 331, 335 (1973). 'The purpose of the Board's review is also for the Board to assure itself that the Staff's review has been adequate, and to inquire further into areas in which the Board may perceive problems or find a need for more elaboration. M.
If the Board finds the Staff's review in question inadequate, then the Board may reject the appli-cation before it' or require further development of the record. H.
In the situation presently before this Appeal Board, there was no evidence presented to the Licensing Board on which it could determine whether or not the Staff's review was inadequate. While the Licensing Bo:rd may have had the authority to admit a contention that an EIS was necessary in this case, it did not have the_ authority to make a mling on that contention requiring the Staff to prep'are such a document as a part of the Staff's review of the
- 25 application. The Board's remedy is, either to accept the Staff's review as adequate or, based on the evidence presented in this contested proceeding, to detennine that the application should be rejected or that the record should be further developed.
2.
The Licensing Board's jurisdiction in this proceeding is also limited by the contents of the Notice of Hearina.
The Licensing Board has only the authority which is delegated to it by the Commission.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station), ALAB-316, 3 NRC 167, 170 (1976). A Licensing Board may neither enlarge nor contract the jurisdiction conferred upon it by the Commission.
Consumers Power Co. (Midland Plant Units 1 and 2), ALAB-235, 8 AEC 645, 647 (1974).
To determine what the jurisdiction of the Licensing Board is to be, an Appeal Board has _ stated that one must look to the Notice of Hearing in the particular case.
Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-381, 5 NRC 582, 592 (1977).
See Midland, ALAB-235, supra.
In the case at issue a Notice of Proposed Issuance of Amendment to Facility Operating License was issued'on July 23, 1979. 44 Fed. Reg. 43126.
This notice described the nature of the action to be taken as the addition of three racks in the spent fuel pool with _a closer center-to-center spacing.
The notice also pointed out that the_ capacity of the pool would be increased from 193 to 441 spent fuel assemblies.
Id_. at 43127.
The notice makes no mention of a mandate to.the Licensing Board to discuss anything other than
v.
the effects of the installation of the racks and the increase in capacity on the already existing impacts of the plant's operation.
If, based on the evidence presented to it by all the parties to this proceeding, the Board determines that this increase in environmental impacts warrants the denial of the amendment, then it should reject the Licensee's application. An attempt to discuss in this proceeding the impacts of future plant operation, rather than to view the incremental increase in the presently existing impacts affected by the expansion, would tue an impermissible enlargement by the Licensing Board of the jurisdiction delegated to it by the Notice of Proposed Issuance.of Amendment to Facility Operating License and by the Notice of Establishment of Atomic Safety and Licensing Board to Preside.in Proceeding.
C.
If it is Determined by this Appeal Board that Section 102(2)(C) of NEPA was Erroneously Applied by the Licensing Board in this Proceeding, the Appeal Board should then Determine for itself that Section 102(2)(E) of NEPA does not apply to this Proceeding.
The Appeal Board should itself determine whether Section 102(2)(E) of NEPA applies to this license amendment proceeding, rather than remanding the question to the Licensing Board for a decision.
Such a decision would avoid any further delay in the conduct of this hearing and contribute to the efficiency of the administrative processes.
For the reasons set fo..a below, the Staff contends that such a determination can be made on the documents presently before the Appeal Board in this proceeding.
9 r
l ur
27 -
e Section 102(2)(E) of NEPA, 42 U.S.C. 9 4332(2)(E), requires the considera-tion of alternatives to an action by an agency where the action involves an unresolved conflict in alternative uses of resources.
The statute does not define what is meant by the term " resources". However, the legislative history relating to Section.102(2)(E) provides some guidance in this area.
The Senate, in its section-by-section analysis of the bill, interprets Section 102(2)(E) as follows:
"...Wherever agencies of the Federal government recommend courses of action which are known to involve unresolved conflicts over competing and incompatible uses of land, water, or air resources, it must be the agency's responsibility to study, develop, and describe appropriate alternatives to the recommended course of action..."
S. Rep.91-296, July 9, 1969, 91st Congress,-1st Sess.
This analysis was adopted in the House-Senate Conference Report considered on December 20, 1969. See 115 Cono. Rec. 40420(1969).
- In an earlier spent fuel pool modification proceeding, it was found that the proposed' license amendment did not involve any commitment of available resources respecting which there were no unresolved conflicts among alterna-tive uses of resources, and thus the need to consider alternatives under Section 102(2)(E) was not triggered.
See Trojan, ALAB-531, suora, at 265.
The Appeal. Board in Trojan reviewed the " resources" in question as those which went into the construction of the racks for the spent fuel pool.
Id[.
9
'4 l
1 y
,-r-t-
e vn,
e y
at 266.b The Appeal Board's view is supported by court decisions on the applicability of Section 102(2)(E) of NEPA to particular projects.
Trini ty Episcopal School Corp. v. Romney, 523 F.2d 88 (2nd Clr.1975);E City of flew Haven v. Chandler, 446 F. Supp. 925 (1978). Trinity, supra, involved a dispute over whether a particular parcel of land should be used for middle or low-income housing. City of New Haven v. Chandler, supra, involved the construction of transmission towers next to a bridge in the New Haven harbor.
The resource of concern in these cases seems to be land which would be in agreement with the definition of resources suggested by the legislative history of 5102(2)(E) of NEPA. The resources in Trojan, namely the mate-rials that go into making the new spent fuel racks, in part are derived from mineral which are natural resources taken from the Nation's land.
It is 19/ A Licensing Board recently took a somewhat different view of what con-9 stitutes a resource for purposes of the application of Section 102(2)(E) of NEPA.
Dairrland Power Cooperative (La Crosse Boiling Water Reactor),
LBP-80-2,11 NRC 44 (1980).
In La Crosse, the Licensing Board was of the opinion that the resource in question was the La Crosse plant itself, and that the alternative of not using the facility was the ccnflicting use which triggered the necessity to consider alternatives under Section 102(2)(E) of NEPA.
La Crosse, LBP-80-2, supra, at 74.
This view does not comport with that of the Appeal Board in Trojan.
The Trojan view of what constitutes a resource for purposes of the application of Section 102(2)(E) should be controlling here.
20/. This case again reached the Court of Appeals for the Second Circuit as 0 -
the result of a challenge to the adequacy of a "Special Environmental Clearance" prepared by HUD regarding this project. 590 F.2d 39 (2d Cir.1978). -The Court of Appeals remanded the case again to the agency, and on January 7,1980 the Supreme Court summarily reversed the Second Circuit.
Strycker's Bay Neighborhood Council, Inc v.
'U.S.
48 U.S.L.W. 3433 (Jan. 7,1980).
Ka rlen, _
i 4
v e
~
s o.
l.)
this type of resource which NEPA was intended to protect.
See 42 U.S.C.
si4321and4331(b)(6).b l
The Courts have held and the staff does not dispute, that 6102(2)(E) could l
require consideration of alternatives whether or not an environmental impact statement is required. Monarch Chemical blorks, Inc. v. Exon, 466 F. Supp.
639, 650 (D. Nebraska 1979); aff'd sub nom, Monarch Chemical klorks, Inc. v.
- Thone, F.2d
, No. 79-1181 (8th Cir. August 16, 1979), 9 ELR 20697; E l
-Trinity, supra; Joseph v. Adams, 467 F. Supp.141,158 (E.D. Mich. S.D.1978).
g 42.U.S.C. s.4321 states:
l
-The purposes of this chapter are:
To declare a national policy I
which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimu-late the health and welfare of man; to enrich the understanding of the ecological systems and natural' resources important to the Nation; and:to establish a Council on Environmental Quality.
l 42 U.S.C. s 4331(b)(6) states:
(b)
In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent.with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end I
that the Nation may--
(6) enhance the quality.of renewable resources and approach the maximum attainable recycling of depletable resources.
_2_2f -This case involved'a dispute as to whether a prison could be built on 2
a tract-of land slated -for industrial development without preparation I-of a new EIS.
I!'n L.
!~
L -.
The CEQ regulationsb also recognize that an environmental impact appraisal should contain:
"an analysis of alternatives as required by 5102(2)(E)."
40 C.F.R.1508.9(b). However, where as here, the action does not present an unresolved conflict of alternative uses of resources, those resources to be e
defined as the materials to be used in manufacturing and installation of the new spent fuel storage racks, then 5102(2)(E) does not require consideration of alternatives to the proposed action.
The Staff believes that there is no need for either the Licensing Board or this Appeal Board to address the question of the applicability of Section 102(2)(E) tc this proceeding.
The Staff, though it is not required to do so, has traditionally considered some alternatives to spent fuel pool expan-sion in the environmental ' impact appraisals which have been issued. The Staff presently intends to consider alternatives in whatever environmental document it produces with relation to the Big Rock facility.b The Staff M The Commission's proposed changes to Part 51 of its regulations also use this language.
10 C.F.R. 9 51.30(a)(1)(ii) states:
"(a) An environmental assessment shall identify the proposed action and include:
(1) A brief discussion of
(.ii) alternatives as required by Section 102(2)(E)
' of NEPA.
24/ It'should be noted that the Staff may, if the Commission's proposed 4
Part 51 is adopted as it now is written, be required to consider alternatives as a matter of course in environmental assessments.
,[.
would use as a basis for its discussion of alternatives, the Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel issued in 1979.b Therefore, the only question which would then be before the Licensing Board would be whether this part of the Staff's.rev'iewwasadequate.b The Staff does not, therefore, find a ques-tion here which needs to' be decided by the Appeal Board in this proceeding.
V.' CONCLUSION l
For the reasons : stated above, the Staff concludes that:
1.
The Licensing Board erred in detennining that an environmental impact i
statement must'be prepared by the Staff in this proceeding.
2.
The Licensing Board lacks the authority to order the preparation of an environmental impact statement before the adequacy of the Staff's review has been tested by evidentiary hearings in which all parties have had an opportunity to participate.
25/ The Commission noticed its intent to prepare this generic environmental 5
l i
impact statement, although it did feel that the question of onsite disposal could be handled in individual cases.
42802 (September 16,1975). This statement was prepared by the'0ffice of Nuclear Material Safety and Safeguards.
N - It should be noted that at present there are no contested issues relating to alternatives to the proposed spent fuel pool capacity expansion.
f i..
m...
3.
The question of the applicability of Section 102(2)(E) of NEPA is not raised by the circumstances of this case.
Respectfully submitted, 0 $YS(-
0 0.D Y U )
Janice E. Moore Counsel for NRC Staff Dated at Bethesda, Maryland this 20th day of October,1980
[
t
.5 i
4 o
UNITED STATES OF AMERICA e
NUCLEAR REGULATORY COMMISSION
~
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the' Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket No. 50-155
)
~
(Big Rock Point Nuclear Plant)
)
(Spent Fuel Pool Modification)
CERTIFICATE OF SERVICE 1
I hereby certify that copies of "NRC STAFF BRIEF IN OPPOSITION TO AEMORANDUM AND ORDER ON NEPA REVIEW" in the above-captioned proceeding have been served on the.following by deposit in the United States mail, first class or, as indicated by an asterisk, through deoosit in the Nuclear Remilatory Commis-sion's internal mail system, this 20th day of October, 1980.
^
- Alan S. Rosenthal, Chairman
- Mr. Frederick J. Shon Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555
- Dr. John H. Buck Philip P. Steptoe, Esq.
Atomic Safety and Licensing Michael I. Miller, Esq.
Appeal Board Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission One First National Plaza Washington, D. C.
20555 Suite 4200 Chicago, Illinois 60603
- Thomas S. Moore Atomic Safety and Licensing Joseph Gallo, Esq.
Appeal Board Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission 1120 Connecticut Ave., N.W., #325 Washington, D.~ C.
20555 Washington, D. C.
20036 y
- Herbert Grossman, Esq., Chairman John A. Leithauser
-Atomic Safety and Licensing Leithauser and Leithauser, P.C.
(
Board-Opal Plaza, Suite 212 U.S. Nuclear Regulatory Commission 18301 Eight Mile Road
. ashington,. D. C.
20555 '
East Detroit, MI 48021 W
- Dr.- Oscar H. Paris John O'Neill, II Atomic Safety and Licensing Route 2, Box 44-Board Maple City, Michigan 49664 10.S. Nuclear Regulatory Commission Washington, D.' C.
20555
>s a
Chris ta-Maria C. Foster Knight, Esq.
a Route 2 Box 108c Acting General Counsel o
Charlevoix, MI 49720 Council on Environmental o
Quality Ms. JoAnne Bier 722 Jackson Place, N.W.
204 Clinton Washington, D. C.
20006 Charlevoix, MI 49720 Mr. Gordon Howie
- Atomic Safety and Licensing 411 Pine Appeal Board /anel Boyne City, MI 49712 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Jim Mills Route 2, Box 108
- Atomic Safety and Licensing Charlevoix, MI 49720 Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Thomas Dammann Route 3, Box 241 Charlevoix, MI 49720 Judd L. Bacon, Esq.
Consumers Power Co.
212 West Michigan Ave.
Jackson, MI 49201 r g q {
g qsp 3 Janice E. Moore Counsel for NRC Staff N
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