ML19340D216
| ML19340D216 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 12/05/1980 |
| From: | Knight C, Osherenko G COUNCIL ON ENVIRONMENTAL QUALITY |
| To: | |
| References | |
| NUDOCS 8012290336 | |
| Download: ML19340D216 (15) | |
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UNITED STATES OF AMERICA M 4 c/
NUCLEAR REGULATORY COMMISSION x
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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CONSUMER POWER COMPANY
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Docket No. 50-155
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(Spent Fuel Pool Modification)
(Big Rock Point Nuclear Plant)
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1 BRIEF OF THE COUNCIL ON ENVIRON > ENTAL QUALITY AS AMICUS CURIAE IN SUPPORT OF MEMORANDUM AND ORDER ON NEPA REVIEW s
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C. FOSTER KNIGHT Acting General Counsel GAIL OSHERENK0 Counsel ~
Council on Environmental Quality 722 Jackson Place, N.W.
Washington, D.C.
20006 (202) 395-4616 Decer.ber 5, 1980 8012290 336 S
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INDEX PAGE Introduction 1
Statement of Facts ----
2 3
Questions Presented ------
Argument:
I. The proposed issuance of a license amendment to expand the spent fuel pool of Big Rock Point nuclear power plant in order to enable the plant to operate af ter 1981 is a major federal action for which the NRC must prepare an environmental impact statement pursuant to Section 102(2)(C) of 3
N EPA -------
3 A.
Introduction ------
B.
This is not a case of applying NEPA retroactively--
4 C.
The proposed action is major because it will "significantly affect the quality of the human environment," 43 U.S.C. 4332(2)(C) --
6 D.
Only where the environmental impacts have already been fully considered in a prior EIS may an agency avoid preparing an EIS for a major federal action -----------
7 II. NRC must consider appropriate alternatives to a proposed action even when it is not required to prepare a full EIS for the action ---------------
9 11 Conclusion
==------
CITATIONS Cases:
Calvert Cliffs' Coordinating Committee v. AEC, 449 6,9 F.2d 1109 Dairyland Power Cooperative (La Crosse Boiling 8
Water Reactor), LBP-80-2, 11 NRC 44 5,6 Minnesota PIRG v. Butz, 498 F.2d 1314 Northern State Power Company (Prairie Island Generating Plant, Units 1 and 2) 7 ALAB-455, 7 NRC 41 Portland General Electric Company (Trojan Nuclear 7
Plant), ALAB-531, 9 NRC 263 ---
4,6 South Dakota v. Andrus, 614 F.2d 1190 -------
Stryker's Bay Neighborhood Council v. Karlen, 9
U.S.
[13 ERC 2157] --
Trinity Episcopal School v. Romney, 523 F.2d 88 ----------
9 5
WATCH v. Harris, 603 F.2d 310
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-1 11 PAGE Statutes and regulations:
National Environmental Policy Act (NEPA),
42 U.S.C. 4331 e_t seg.
Passim t
10 C.F.R. 50.90, 50.91 --------------------
5 40 C.F.R. 1501.3 --- --
4 40 C.F.R.1508.9(a) (1) 4 40 C.F.R. 1508.9(b) --
9
==------
43 Fed. Rg. 55977 -------
6 44 Fe d. _R_eg. 61372 ------------
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Miscellaneous:
Exec. Order 11514 (March 5, 1970, as amended by Exec. Order 11991, May 24, 19 7 7) ----------------
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i UNITED STATES OF AMERICA' I
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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CONSUMER POWER COMPANY
)
Docket No. 50-155
)
(Spent Fuel Fool Modification)
(Big Rock Point Nuclear Plant)
)
1 BRIEF FOR THE COUNCIL ON ENVIRONMENTAL QUALITY AS AMICUS CURIAE IN SUPPORT OF MEMORANDUM AND ORDER ON NEPA REVIEW.
1 INTRODUCTION This brief is submitted at the invitation of the Atomic Safety and Licensing Appeal Board in its order of September 12, 1980. The Council on Environmental Quality (hereinafter referred to as.the Council) was charged with the duty to issue regulations for the implementation of the procedural provisions of the National Environmental Policy Act (NEPA),
42 U.S.C. 4332(2), and the continuing responsibility to review procedures.
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of the Federal agencies. Exec. Order 11514 (March-5, 1970, as amended by Exec. Order 11991, May 24, 1977), Section 3; Section 204 of NEPA, 42 U.S.C. 4344. This case raises the important issue of when NEPA applies to decisions of federal agencies affecting projects which preceded the 1
enactment of NEPA and for which no EIS was originally prepared. Since the decision in this case may have precedential effect, the Council accepts the invitation of-the Appeal Board to file'this brief as amicus l
curiae.
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STATEMINT OF FACTS This proceeding involves the application of Consumer Power Company (CPC) for an amendment to its operating license to permit expansion of the capacity of the spent fuel storage pool at the Big Rock Point nuclear power plant, a 72 Mk'e reactor located at Charlevoix, Michigan. Big Rock Point was granted a full operating license in 1964 for a term to expire in the year 2000. However, the existing storage capacity of the plant's spent fuel pool will be exhausted in 1981.
The modification which CPC has proposed will provide storage for the sp :nt fuel from the reactor for an additional ten years. Hence, issuance of the amended license will permit the continued operation of the facility.
Since the plant was originally licensed before the enactment of the National Environmental Policy Act (NEPA), no environmental impact state-ment (EIS) was prepared for the facility.
In fact, there has never been a detailed environmental analysis of the operation of this power plant.
The intervenors, residents living near the plant, raised the issue of the need for power from 31g Rock Point and argued that an analysis of the environmental costs as weighed against the benefits of operating the I
j plant should be prepared in connection with this proceeding. In light i
of the intervenors' contention,'the Licensing Board considered the issue of whether NEPA requires an environmental impact statement (EIS) to be 1
prepared for the continued operation of the facility.
The Licensing Board concluded that Section 102(2)(C) of NEPA applies to the proposed license amend =ent and ordered the preparation of an EIS.
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. QUESTIONS PRESENTED 1.
k'hether the NRC's approval of an application to expand the spent fuel pool capacity at Big Rock Point nuclear power plant which will result in permiting the facility to continue in operation for at least an additional ten years, is a major federal action for which an environmental impact statement must be prepared pursuant to the National Environmental Policy Act. 42 U.S.C. 4331 et, seq.
2.
k'hether Section 102(2)(E) of NEPA requires the NRC to include a discussion of alternatives to the proposed action in its environmental assessment.
ARGUMENT I
THE PROPOSED ISSUANCE OF A LICENSE AMENDMENT TO ENPAND THE SPENT FUEL POOL OF BIG ROCK POINT NUCLEAR P0k'ER PLANT IN ORDER TO ENABLE THE PLANT TO OPERATE AFTER 1981 IS A MAJOR FEDERAL ACTION FOR kTICH THE NRC MUST PREPARE AN ENVIRONMENTAL IMPACT STATEMEST PURSUANT TO SECTION 102(2)(C) 0F NEPA.
A.
Introduction. Section 102(2)(C) of NEPA, 42 U.S.C. 4332 (2)(C), provides in part that an environmental impact statement (EIS) is required for " major Federal actions which significantly affect the quality of the hu=an environment." Applied to this case, this section
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mandates the preparation of an EIS if (1) issuance of an amended operating license is an '? action" within the meaning of the provision, and (2) the
. federal action is " major" in the sense that it significantly affects the quality of the human environment.
See South Dakota v. Andrus, 614 F.2d 1190, 1193 (8th Cir. 1980). The following discussion will explain why the issuance of an amended operating license is a federal action requiring, at a minimum, an environmental assessment to determine whether the pro-posed action significantly affects the environment,1! and furthermore, why the likely outcome of an environmental assessment for this action would be a decision to prepare an EIS.
B.
This is not a case of applying NEPA retroactively. Nor is it a case where an EIS must be prepared for a continuing project.
This is a case of applying NEPA to a new federal action. A decision on an application to amend a plant's operating license is a distinct stage of federal approval. Since it occurs after the effective date of NEPA, it presents a new action to which Section 102(2)(c) of NEPA applies. For this reason, the Atomic Safety and Licensing Board correctly viewed the proposal that the NRC grant a license amendment to permit expansion of the spent fuel pool of the Big Rock Point Nuclear Power Plant "as requiring a new Federal action for the sole purpose of enabling the Licensee to make a fuller utilization of its operating license than it could otherwise."
(Memorandum and Order on NEPA Review, hereafter referred to as Opin., at 7,8.)
1/ No environmental assessment has yet been prepared for the Big Rock Point spent fuel pool modification. Nevertheless, the NRC staff informed the Licensing Board (NRC Staff Response to Board Questions, docketed March 5, 1980, page 2) that it assumed it would issue a nega-tive declaration accompanied by an " environmental Lapact appraisal."
Since the purpose of this appraisal or envircr. mental assessment is in part to assist the NRC in daciding whether an environmental impact statement is necessary (40 C.F.R.1501.3), the staff's assumption improperly prejudges the outcome of the assessment. The NRC staff must first provide sufficient evidence and analysis to determine whether or not to prepare an EIS, 40 C.F.R.1508.9(a)(1).
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. The Licensitg Board correctly followed the hciding of !!innesota PIRG
- v. Butz, 498 F.2d 1314 (8th Cir. 1974). There, logging contracts had been signed prior to the effective date of NEPA. Nevertheless, subsequent Forest Service approval of certain logging company activities necessary to carry out the contracts were considered to be new major federal actions for which an EIS should be prepared.
The court assumed that the logging company had accepted the risk that its roads, mechanized equipment, logging camps, etc. might not be automatically approved and that it would be subject to later approvals some of which could effectively make it impossible to carry out the anticipated timber cutting, Id. at 1323.
The amended license proceeding for Big Rock Point presents a similar situation.
In the early 1960s, the CPC accepted the risk that later necessary approvals including approvals for the management of its spent fuel, might limit its ability to operate the plant for the full term of the original license. Stated another way, CPC's application for an amendment to its operating. license creates a new " threshold" at which the NRC must determine whether an EIS is required. WATCH v.' Harris, 603 F.2d 310, 317, 318, 326 (2nd Cir. 1979). -The NRC's authority over applications for amended licenses require it to comply with NEPA.
The NRC has discretion to grant or deny CPC's application for the amendment. Nothing in the Commission regulations indicate that granting operating license amendments is strictly a ministerial duty.2/
Nor has the NRC staff claimed that the Commission has no discretion with regard i
I 2/ NRC regulations governing license amendments are codified at i
10 C.F.R. 50.90, 50.91.
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. to CPC's pending application. Discretionary decisions are " actions" within the meaning of Section 102(2)(C) of NEPA when they enable a private party to do something the party could not otherwise do.
Compare South Dakota v. Andrus, 614 F. 2d 1190,1194 (8th Cir.1980), which declared that the issuance of a mining patent, which is not a precon-dition to mining operations, is not an " action" within the meaning of Section 102(2)(C) of NEPA.
The application in question here, if granted, would enable CPC not only to increase the capacity of its spent fuel pool but also would enable the licensee to operate the plant for an additional 10 years without needing off-site storage for spent fuel.
C.
The proposed action is major because it will "significantly affect the quality of the human environment," 43 U.S.C. 4332(2)(C). The l
Council and the courts have interpre.ted " major" to reinforce but not to have a meaning independent of "significantly," 40 C.F.R. 1508.18.
Minnesota PIRG v. Butz, supra., 498 F.2d at 1321-1322.2/ No party would seriously argue that~ operating a nuclear power plant does not have the potential for a significant effect on the human environment. Lest there be any question on how the courts would view the impact, Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1128 (D.C. Cir. 1971),
contains the following statement:
3/ The Minnesota PIRG decision, which preceded the current CEQ regu-lations, was expressly inceroorated into the 1978 regulations imple-menting NEPA, 43 Fed. Reg. 55977, 55989 (Nov. 29, 1978).
. In cases where environmental costs are not considered in granting a construction permit, it is very likely that the planned facility will include some features which do significant damage to the environment and which could not have survived a rigorous balancing of costs and benefits.
The same likelihood exists here where no EIS was prepared for either the construction or operation of a nuclear power plant. The fact that an operating license was granted for Big Rock Point prior to the enactment of NEPA does not give rise to the presumption that it could have sur-vived a rigorous balancing of costs and benefits, or even that the benefits of its continued operation weighed against its environmental and financial costs can survive such a balancing today.
D.
Only where the environmental impacts have already been fully considered in a prior EIS may an agency avoid preparing an EIS for a =aior federal action.
In both Portland General Electric Company (Trojan Nuclec Plant), ALAB-531, 9 NRC 263 (1979), and Northern State Power Company (Prairie Island Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41 (1978), environmental impact statements had been prepared before issu-ance of the original operating licenses. Those EISs assessed the effects of operating the plants over the full term of the licenses.
The subse-quent environmental impact appraisals (environmental assessments) for modification of those spent fuel pools determined that environmental
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impacts would not be significantly changed from those analy=ed in the final EISs previously prepared. Moreover, expansion of spent fr.el pools was being considered separately in generic proceedings, 44 Fed. Rjgt. 61372
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(October 25, 1979).b NEPA does not require duplication. The decision that no EIS was necessary for the amended license determination in either the Trojan or Prairie Island cases was based on the principle that NEPA does not mandate redundancy. See Dairvland Power Cooperative (La Crosse Boiling k'ater Reactor), LBP-80-2,11 NRC 44, 71 (1980).
Thus, where the environmental effects of continuing in operation had already been fully elucidatsd, a new EIS was unnecessary.
But hete, the effects of operating the Big Rock Point nuclear power plant have never been assessed. As previously explained, supra at 7, the fr.et that the original operating license was granted prior to NEPA does not entitle the plant to a presumption that it would have been favorably assessed.
(See Opin. 16.) Although operating the plant over the first 19 years, until 1981, escapes analysis under the doctrine of nonretroactivity, the new federal action involved here requires an EIS for the remaining term of the proposed amended license.
Preparation of a detailed EIS and consideration of the information in it could well result in improvements in plant operation. The purpose of an EIS is in part to determine if there are certain measures by which environmental impacts can be mitigated.
Since the economic benefits of operating this plant have never been weighed against the environmental costs, this process might reveal changes which could be made in order to minimice environmental costs. NEPA requires that the economic benefits 4/ The Trojan and Prairie Island nuclear power plants were approved prior to completion of the generic EIS on handling and storage'of-spent light water power reactor fuel, but only after environmental assessments were prepared which concluded that installation of new racks in the pools and operation of the pools with expanded capacity would not have significant environmental impacts at the individual sites under consideration in those proceedings.
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9-of the proposed action, the benefits to be derived from continuing to produce power at a given cost, be assessed and then weighed against the environmental costs of operating the nuclear plant, including any damaging effects on air and water and any risk to human health.
See e.g. Calvert Cliff's v. AEC, supra, 449 F.2d at 1118, 1123.
II NRC MUST CONSIDER APPROPRIATE ALTERNATIVES TO A PROPOSED ACTION EVEN WHEN IT IS NOT REQUIRED TO PREPARE A FULL EIS FOR THE ACTION Section 102(2)(E) of NEPA requires all federal agencies to " study, J
develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." The courts have concluded that this section of the Act directs federal agencies to consider alterna-tives without regard to tihether an EIS must be prepared and have emphasized the importance of this review. Trinity Episcopal School v. Romney, 523 F.2d 88, 92-95 (2nd Cir. 1975), discussed in Stryker's Bay Neighborhood Council v..Karlen, U.S.
[13 ERC 2157, 2158] (1980). Accordingly, the Council's regulations implementing NEPA direct that an environmental.
assessment ".
shall include brief discussions of the need for the proposal, of alternatives as required by Sec.102(2)(E), [andl of the environmental impacts of the proposed action and alternatias.
." 40 C.F.R. 1508.9(b).
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. In essence, the NRC staff argued (Br. 27) that Section 102(2)(E) only applies when there are unresolved conflicts over certain " natural" resources. We find no ambiguity in the meaning of the word " resources" as used in that section. Had Congress wished to so limit the circum-stances in which an agency must consider alternatives, it could easily have used the term " natural resources." The plain meaning of " resources" in Section 102(2)(E) includes not only land, air, and water, but also available capital or assets and other resources in adcition to " natural" resources.
Even if this Board were to accept the NRC's crabbed interpretation of Section 102(2)(E), the section would still apply to the NRC's prep-aration of an environmental assessment here. Not only is there an unresolved conflict over the expenditure of capital to modify the spent fuel pool and to operate the nuclear power plant, there is also conflict over the use of land, air, and water. For example,.the application to modify the spent fuel basin involves the use of water for spent fuel storage, land on which the plant is located, land for future disposal of nuclear waste--resources for which there could be competing uses. The NRC acknowledges these and other impacts and irretrievable commitments of resources in its geneetc EIS on handling and storage of spent light water power reactor fuel (March, 1978). The alternatives to the individual application at issue here must be addressed in an environmental assess-ment, and the discussion of alternatives would of necessity include the alternative of "no action."
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In none of the several cases on Section 102(2)(E) of NEPA, has another agency accorded this section such a constricted application.
CONCLUSION For the foregoing reasons, the memorandum and order of the Licensing Board should be affirmed.
Respeqdully subadfed,
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yy C. FOSTER KNIGHT Acting General Counsel GAIL OSHERENKO Counsel Council on Environmental Quality 722 Jackson Place, N.W._
Washington, D.C.
20006 December 5, 1980 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPFAL BOARD In the Matter of
)
)
CONSUMER POWER COMPANY
)
Docket No. 50-155
)
(Spent Fuel Pool Modification)
(Big Rock Point Nuclear. Plant)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "BRIEF OF THE COUNCIL ON ENVIRONMENTAL QUALITY AS AMICUS CURIAE IN SUPPORT OF MEMORANDUM AND ORDER ON NEPA REVIEW" in the above-captioned proceeding have been served on the fol-lowing by deposit in the United States mail, first class or, as indi-cated by an asterisk, by hand delivery, this 5th day of December, 1980.
- Thomas S. Moore, 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
- Christine N. Kohl 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
- Dr. John H. Buck 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
- 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 Washington, D.C.
20555 East Detroit, MI 48021
- Dr. Oscar H. Paris John O'Nex_l, II Atomic Safety and Licensing Route 2, Box 44 Board Maple City, MI 49664 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
.. Christa-Maria Mr. Gordon Howie Route 2, Box 108c 411 Pine Charlevoix, MI 49720 Boyne City, MI 49712 Ms. JoAnne Bier Mr. Jim Mills 204 Clinton Route 2, Box 108 Charlevoix, MI 49720 Charlevoix, MI 49720
- Atomic Safety and Licensing
- Janice E. Moore, ESQ.
Appeal Board Panel Nuclear Regulatory Staff U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road 4550 East-West Highway Bethesda, Maryland 20014 Bethesda, Maryland
- Atomic Safety and Licensing Judd L. Bacon, Esq.
Board Panel Consumers Power Co.
4550 East-West Highway 212 West Michigan Ave.
Bethesda, Maryland Jackson, MI 49201
- Docketing and Service Section Mr. Thomas Dammann U.S. Nuclear Regulation Commission Route 3, Box 241 Washington, D.C.
20555 Charlevoix, MI 49720 7
- /' l E-Gail Osherenko Counsel for NRC Staff l
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