ML19340D169
| ML19340D169 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 12/22/1980 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8012290241 | |
| Download: ML19340D169 (17) | |
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UNITED STATES OF A'4 ERICA l
NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICEfCING APPEAL BOARD
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In the Matter of
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CONSUMERS POWER COMPANY
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Docket No. 50-155
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(Spent Fuel Pcal Modification)
(Big Pock Point Plant)
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NRC STAFF REPLY TO BRIEFS IN SUPPORT OF MEMORANDUli Ai40 ORDER ON NEPA REVIEW Janice E. Moore Counsel for NRC Staff 0
December 22, 1980 3013200%l:,
TABLE OF C0flTENTS Elle.
I.
I n t ro d u c t i o n........................
i II. Sta temen t o f I s s ue.....................
4 III. Argument..........................
4 IV.
Conclusion.........................
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TABLE OF CITATIONS Page Andrus v. Sierra Club, 442 U.S. 347 (1979)............
9, 10 Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109
( D. C. Ci r. 1971 ).......................
6, 7, 11 Pennsylvania Environmental C_ouncil v. Bartlett, 454 F.2d 613 (3rd Cir. 1971)..................
11 WATCH v. Harris, 603 F.2d 310 (2nd Cir.1979).........
3, 7, 8 Lee v. Resor, 348 F. Supp. 389 (M. D. Fla.1972).'........
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UNITED STATES OF A!1 ERICA NUCLEAR REGULATORY COMillSSION BEFORE THE AT0f1IC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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CONSUMERS POWER COMPANY Docket No. 50-155 (Spent Fuel Pool Modification)
(Big Rock Point Plant)
HRC STAFF REPLY TO BRIEFS IN SUPPORT OF '
MEMORANDUM AND ORDER ON NEPA REVIEW The Staff of the Nuclear Regulatory Commission (Staff) hereby replies to the briefs of Intervenors Christa-Maria, et al., and John O'Neill, II, to the brief of John A. Leithauser, and the the brief of the Council of Environ-mental Quality (CEQ) as amicus curiae filed in support of the Atomic Safety and Licensing Board't { Licensing Board) Memorandum and Order on NEPA Review, dated September 12, 1980.
I.
INTRODUCTION On September 12, 1980, the Licensing Board issued a Memorandum and Order in the abov '-captioned proceeding in whica it required the Staff to prepare an
_ environmental impact statement (EIS).M The Licensing Board stated that the y
The Staff will not reiterate the events leading to the. Licensing Board's Order, since they are discussed at length in the Staff's earlier filing.
NRC Staff Brief in Opposition to Memorandum and Order on NEPA Review at 3-7(October 20,1980).
- EIS was to cover "the environmental impacts of an expanded spent fuel pool and the additional tem of operation of the facility that such exm ision would pemit." Licensing Board Memorandum and Order on NEPA Review at 18-19 l
(September 12,1980).
In its Order the Licensing Board referred its ruling to the Atcmic Safety and Licensing Appeal Board (Appeal Board).
Id_. a t 19.
By Order dated September 12, 1980, the Appeal Board accepted referral of the Licensing Board's ruling concerning the preparation of the environmental impact statement, and established a briefing schedule.
Under that schedule any persons opposed to the Licensing Board's Order were to file their briefs on October 20, 1980. Those participants supporting the Licensing Board's Order were to file their briefs by November 24, 1980.
Reply briefs were to be filed by December 10, 1980. The times for filing briefs in support of the Licensing Board's Order and reply briefs were extended to December 4, 1980 and December 22, 1980, respectively, in response to motions made by the participants preparing briefs in support of the Licensing Board's Order.
l On October 20, 1980, the Staff and the Licensee filed briefs in opposition l
to the Licensing Board's Order.
In its brief the Staff addressed three l
issues. These issues were:
1.
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?
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Whether the Licensing Board has the authority to order the preparation of an Environmental Impact Statement by the Staff before the Staff has completed its review and before the adequacy of that review has been tested in an evidentiary hearing? and 3.
If it is detennined that Section 102(2)(C) was erroneously applied by the Licensing Board in this proceeding, whether the Appeal Board should detenaine the applicability of Section 102(2)(E) of flEPA to this case itself and if so, is Section 102(2)E) applicable to tilis proceeding?
NRC Staff Brief in Opposition to Memorandum and Order on liEPA Review at 7-8 (October 20, 1980). This reply brief addresses only the first of these issues, since it is one of the principal points of dispute in this proceeding.U Although the Staff has stated its position on this issue at some length, the argument made by Intenenors and CEQ that NRC approval of this license amendment application represents a new and further federal action: requiring an Environmental Impact Statement, at least on the extended period of plant operation, necessitates some further treatment. The Staff will specifically address the case of WATCH v. Harris, 603 F.2d 310 (2d Cir.1979), relied upon by CEQ in support of its position--a case not previously discussed by the Staff.
y Intenenors Christa-Maria, et al., in their brief at 24 point to an error in citation in the StaTf5 brief at 11. The correct citation of the regulation in question should be 5 51.21(b)(5)(vi)(C).
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I Intervenor O'Neill has made many unsupported allega?, ions concerning the Big Rock facility.
See, Intervenor John O'Neill II's "Brief in Support of Memorandum and Order on NEPA Review" at 23-28 (hereinafter O'Neill Brief).
Since these allegations are irrelevant to the question of whether, as a matter of law, an environnental impact statement must be prepered with regard to this license amendment application, they are not addressed further.
The appropriate place for discussion of Intervenor O'Neill's allegations is the evidentiary hearing which will be held in this proceedjng, provided that they relate to admitted matters in controversy.
II. Statement of Issue Whether NRC approval of this license amendment application represents a new or further federal action for which an environmental impact statement, at least on the extended period of plant operation which the expansion would permit is required by Section 102(2)(C) of the National Environmental Policy Act of 1969.
III.
ARGUMENT Treatment of this License Amendment Application as a New or Further Federal Action Requiring an Environmental Impact Statement on Plant Operation for any Future Period is a Retroactive Application of NEPA.
All those who have supported the Licensing Board's Order, except for John:
A. Leithauser, have argued that the approval of the Licensee's application
. i for an amendment to the Big Rock operating license allowing expansion of the facility's spent fuel pool capacity is a new major Federal action signifi-cantly affecting the quality of the human environment and so requires the 1
preparation by the Staff of an environmental impact statenent on plant ope ra tion. Brief of Intervenors Christa-Maria, Mills and Bier in Support of the Memorandum and Order of the Atomic Safety and Licensing Board Directing 1
Preparation of an Environmental Impact Statement at 9-14 (hereinafter Brief of Christa-Maria, et al.); 0'ileill Brief at 9; Brief of the Council on Environmental Quality as Amicus Curiae in Support of Memorandum and Order on flEPA Review at 4-6 (hereinafter CEQ Brief).E The exact scope of the environ-mental impact statement which CEQ and Intervenors argue must be prepared is an issue on which these participants differ. The proposed license amendment would allow storage of spent fuel in the Big Rock spent fuel pool until 1990, still allowing Licensee to discharge a full core into the spent fuel pool if necessary.
The Big Rock license is not due to expire until the year 2000.
Intervenors Christa-Maria, et al., agree with the scope of the EIS as proposed by the Licensing Board--an EIS covering the expansion of the spent fuel pool and the impact of the period of operation of the plant which such an expansion would pennit. Brief of Christa-Maria, et al., at 9.
CEQ l
y Mr. Leithauser argues that the Big Rock Point plant represents an ongoing federal project as defined in the case of Lee v. Resor, 348 F. Supp. 389.(M. D. Fla.1972).
This is not a view shared by other participants. The Court in that case pointed out that environmental impact statements for ongoing projects nearing completion would be
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ill advised.
Id. at 394. The Big Rock plant project--the construction and issuance of the operating license for the Big Rock plant has long been completed.
It is not an ongoing project. Therefore, Lee v. Resor is inapposite in the present situation.
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- argues that an EiS should be prepared to cover plant operation for the rest of the license period.
CEQ Brief at 8.0 All those who support the Licensing Board's Order base their characterization of this license amendment approval as a major Federal action significantly affecting the quality of the human environment on the assumption that without this amendment the Big Rock facility could not continue to operate, and that operation of a nuclear power plant significantly affects the quality of the human environment. Therefore, they argue, this continued operation must be evaluated by the preparation of an environmental impact statement.
This reasoning ignores the situation in this case. Consumers Power Company received its provisional operating license for the Big Rock Point plant in 1962, and its full tenn operating license for that facility in 1964. The license will not expire until the year 2000.
In 1964 NEPA was not enacted.
No environmental review was required. The Licensee satisfied the require-ments of the Atomic Energy Act in effect at that time, and the requirements set forth in the Commission's regulations. Therefore, in the words of the Court in Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109,1129 (D.C. Cir.1971), this plant had " passed muster."
It cannot be argued that because the plant was not licensed in accordance with a statute not in 4)
The exact language used by CEQ is: "the new federal action involved here requires an EIS for the remaining term of the proposed amended license." This language is somewhat confusing since the amendment proposed did not change the term of the original operating license.
The license expires in the year 2000 regardless of whether this amendment application is approved.
_.. effect at that time, it did not pass the type of muster mentioned by the Calvert Cliffs' Court.
There is no rule of law requiring omniscience either on the part of licensees or federal agencies.
The Big Rock facility has now been operating for approximately 18 years. As the Licensing Board noted, were there no application for a license amendment pending before this agency, Big Rock could continue to operate for the full tenn of its license without the preparation of an EIS. Licensing Board Order at 15. Christa-!1 aria, at 11., and CEQ both make a distinction between the past operation of the Big Rock facility and the future operation which they allege will be the result of the approval of this license amend-ment application. See Brief of Chirsta-Maria, At.al., at 19; CEQ Brief at 8.
The operating license issued to Licensee for the Big Rock facility contains no time limit for which operation is authorized other than the above-mentioned expiration date of the year 2000. Any attempt to say that this license amendment application represents a new threshold in time af ter which the environmental impacts of plant operation must be evaluated is clearly a retroactive application of NEPA.
CEQ relies on the case of WATCH v. Harris, 603 F.2d 310 (2d Cir.1979) as support for its position that this license amendment application is a new threshold from which a detenaination should be made as to whether an en-e vironmental impact statement on future plant operation should be prepared.
WATCH involves an urban renewal project for which the capital grant contract between HUD and the Waterbury Urban Renewal Authority (WURA) was signed in I
. 1973, some three years after the effective date of NEPA.
Under this contract.
HUD retained the authority to approve every action taken by the UURA with respect to the acquisition of properties in the project area, demolition of buildings, and changes in the urban renewal plan. WATCH at 313. WURA submitted infomation to HUD indicating that no properties of historical significance were located in the project area.
_Id. at 314-315.
In 1977, HUD granted a special environmental clearance for the project without pre-paring an environmental impact statement.
Later that year,,WURA transmitted infomation to HUD that a building in the project area was potentially eligible for inclusion on the National Register of Historic Places.
_Id. a t 315. The Court of Appeals pointed out that the project in question was far from complete. M. at 312.
For example, some 27 buildings still remained to be demolished, and some of the necessary property in the project area was still owned by private individuals.
In granting a prelininary injunction to halt the demolition of any more buildings in the project area, the district court held, and the Court of Appeals agreed with the holding, that because new infomation concerning the eligibility of certain properties for inclu-sion on the National Register had become available, HUD should reconsider its threshold detemination that an environmental impact statement was not required. H. at 318. The district court further detemined that if proper-t ties eligible for inclusion on the National Register would be affected by the project, then an environmental impact statement would be required by existing case law.
Id.
i The HUD contract was signed af ter flEPA's effective date, thus WATCH contains no element of retroactivity.
The assumptions on which HUD based its detemi-nation not to prepare an impact statenent were shown to be flawed requiring a reassessment although not necessarily an impact statenent. HUD retained authority to approve each acquisition within the project area.
In Big Rock the action for which preparation of an EIS is sought is plant operation, an action for which approval was obtained prior to flEPA's effective date. fio new facts tending to show impacts significantly different than those upon which the Commission would nonaally make its licensing decision have been identified. The spent fuel licensing action will not finally authorize operation nor will it preclude operation, thus the federal action is more limited than that exercised in WATCH.
The more appropriate analogy in the situation before this Appeal Board is the one to be found by considering the case of Andrus v. Sierra Club, 442 U.S. 347 (1979) (hereinafter Andrus).
In Andrus, the question was whether Section 102(2)(C) required that annual requests for appropriations be accom-panied by an environmental impact statement. This question arose because of a proposed reduction in the budget of the flational Widelife Protection System.
Andrus at 352. The Court of Appeals for the D. C. Circuit held that an EIS had to accompany an appropriations request only if major changes that would significantly affect the quality of the human environment are proposed in the underlying program for which funding is sought. Andrus at 364, n. 23, citing Sierra Club v. Andrus, 581 F.2d 895, 903 (D.C. Cir.
1978).
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In reversing the Court of Appeals' ruling, the Suprene Court stated:
But an appropriation request applies not only to major changes in a federal program, but also to the entire program it is designed to fund. Without appropriations, the under-lying prograu would cease to exist. Therefore, if the existence vel non of that program is a major federal action significantly affecting the quality of the human environment, the Court of Appeals' alternative interpretation of NEPA would require an EIS to be included in the concomitant appropriation request.
Id. at 364, n. 23.
The Supreme Court went on to conclude that the Court of Appeals' holding would require EIS's to accompany funding requests for every program which significantly affects the quality of the human environment. That situation would, according to the court, run the risk of "trivializing" NEPA.
Id.
In the situation presently before the Appeal Board, if one accepts the Intervenors' and CEQ's argument that without this amendnent the plant could not continue to operate, and that operation of a nuclear power plant signifi-cantly affects the quality of the human environment, then an EIS would have to accompany every request regarding the plant which would affect operation.
As the Supreme Court made no distinction between those programs for which an EIS had previously been prepared and those programs for which none existed, the fact that none exists here is irrelevant as a distinguishing feature of this case. The situation just described is the exact situation which the Supreme Court concluded would run the risk of "trivializing" NEPA.
In light of Andrus, therefore, this license amendment application must be treated as a discrete action, evaluation of which is limited to the particular environ-mental impacts of the proposed license amendment.
L If the Staff's NEPA review is broadened to take into account the environmental impacts of general plant operation, inserting as a feature of the plant the existence of an expanded spent fuel pool, then this Appeal Board would be asking the Staff to go back and review plant operation which was authorized by a license issued in 1962 for a period of 40 years.
Such Appeal Board action would impose upon the Staff a statutory requirement to review an action taken long before NEPA was enacted.
In the case of such a decision the doctrine of non-retroactivity would lose all meaning. 'This is not the type of situation contemplated by the Calvert Cliffs' Court, as is exempli-fied by that Court's delineation of those categories of cases for which an environmental review was required. Calvert' Cliffs', supra, 1120-1129.
Adoption of the Licensing Board's position in this proceeding would necessi-tate an answer to the question of how the doctrine of the non-retroactivity of NEPA should be defined. The present definition of this doctrine precludes the reopening of decisions which became final before the effective date of NEPA.
See, Pennsylvania Environmental Council, Inc., v. Bartlett, 454 F.2d 613, 624 (3rd Cir.1971).
The final decision made with respect to Big Rock plant was the decision in 1964 to authorize the operation of the Big Rock facility until the year 2000.
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CONCLUSION For the reasons set forth above, and for the reasons stated in the NRC Staff Brief in Opposition to Memorandum and Order on NEPA Review, the Licensing Board's ruling should be reversed.
Respectfully submitted, L_
CUL/M b OD_DM Janice E. Moore Counsel for NRC Staff Dated at Bethesda, fiaryland this 22nd day of December,1980 9
UNIIED S1ATES OF AMERICA fiUCI EAR REGULAIORY CC^;illSSION Bil 0RE 11tE ATO:11C SATLTY AND LICEi4 SING APPyl. polRD, 1
In the ihtice of
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CD:nb;LRS i'0;!LR CO:'PANY
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Docket No. 50-155 (Big Rock Point Plant)
(Spent fuel Pool ILdification) l 4
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CE Rl iflC]!T E _OF_ SERV I CE, I hereby certify that copies of NRC STAFF REPLY TO BRIEFS IN SUPPORT OF MEMORANDUM 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 deposit in the Nuclear Regulatory Commission's internal mail system, this 22nd day of December,1980.
Thomas S. floore, Chairman
- Mr. Frederick J. Shon Atomic Safety and Licensing Atoaic Safety and Licensing Appeal Paard B ard U.S. ?!uclear Regulatory Corn.ission U.S. tluclear Regulatory Commission
!!ashington, D. C.
20555
!?a s' ington, D. C.
20555
- Dr. John 11. Buck Philip P. Steptoe, Esq.
Atornic Safety and Licensing Michael I. Miller, Esq.
Appeal Board Isham, Lincoln & Beale U.S..*:acicar Regulatory Commission One First l'ational Plaza 1:ashington, D. C.
20555 Suite 4200
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i Chicago, Illinois 60603 Christine N. Kohl At0uic Safety and Licensing Joseph Gallo, Esq.
Arccal Board Isham, Lincoln & Beale U.S..';uclear Regulatory Commission 1120 Connecticut Ave., N.lf., #325 1-lashington, D. C.
205S5
!!ashington, D. C.
20036
- licr! cet Gressman, Esq., Chairman John A. I.eithauser Ate..ic Safety and Licensing b
Leithc. user and Leithauser, 'P.C.
P.ard Opal Plaza Suite 212 li.S. Nuclear.Regula tory Commission 18M1 Light Mile bad I
1:ashington, D. C.
20555 Ea s t e t roi t, MI 1S021 8-
'Dr. Oscar 11. Paris John O'Neill, II Atc...ic Safety and Licensing Route 2, Box 14 B.ard l'ap'e City, Michigan 49ES4 11.5. !;uclear P.cgulatory Commission 1.'a s h i ng t on, D. _ C.
20555
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2-Cf.ris ta -Maria C. Poster Knight, Esq.
C.,ute 7, Box 103c Ac ting General Counsel Charlevoix, MI 49/20 Council on Environmental Quality Ils. JoAnne Bier 722 Jactson Place, ll.W.
201 Clinton h'asfiington, D. C.
20006
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Cl.arlevoin HI 49/20 4
Mr. Gordon licule
- Atc ic Safety and Licensing 411 Pine
- eal roard Panel Boy ne City, MI 49712 ti.S.
- uclear Regulatory Comission h'
',i n g te n, D. C.
20555 Mr. Jim Mills Route 2. Box 108
' / *v ic Safety and Licensing Charlevoix, MI 49720
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ft:rd P3.al U.S.1:uclear Regulatory Comnission James Olson, Esq.
L'as!.ington, D. C.
20555 P. O. Box 561
- DacLeting and Service Section lf.S. iluclear Regulatory Commission Herbert Semmel, Esq.
1:ashington, D. C.
20555 Urban Law Institute of The Antioch School of Law j
Mr. Ti.onas Dai:. ann 1624 Crescent Place, N.W.
Roate 3, Box 241 Washington, D. C.
20009 Charlcsoix, MI 49720 JI Judd L. Bacon, Esq.
l Consumers Pov.or Co.
l 212 h'est Michisan Ave.
i Ja ckson,111 49201 d W L_l b b M I b i
i Janice E, Moore Counsel for NRC Staff l-5 I
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