ML19340D303
| ML19340D303 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 12/04/1980 |
| From: | Leithauser J AFFILIATION NOT ASSIGNED |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8012300247 | |
| Download: ML19340D303 (8) | |
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UNITED STATES OF AMERICA
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BEFORE THS ATCMTC SAFETY AND LICENSING BOARD
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s IN THE MATTER OF
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Docket No. 50-155 CONSUMERS PCUER CCMPANY
)
(Big Rock Nuclear
)
Power Plant)
)
BRIEF OF JOHN LEITHAUSER IN SUPPORT OF LICENSING BOARD; 3
FINDING THAT SEC. 102 (2)(C) (42 U.S.C.
4332(C)) IS J 3
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APPLICABLE TO THE REQUEST OF CONSUNERS PO!ER COMPANY FOR A LICENSING AMENDMEi;T TO INCREAGE THE DENJITY OF SPENT FUEL STCRED GN GITE. AND INCREASE THE CAPACITY OF THE SPENT FUEL POOL FROM 103 TO 441 SPENT FUEL __ RODS.
Intervenor Leithauser restates as if incorporated herein,
- Lr Brief en the Need for Power Issue (docketed 3-17-80.)
Aan it is declared that a person shall not be deprived of his preterty v.ithout "due process of law" it means such an exercise of the powers of government as the settled maxims of laws permit and sanction, under such safeguards as these maxims prescribe for the class of cases to which the one in question belongs.
It seems clear that the question before the Appeals Board today is essentially one of statutory interpretation.
Is the' National Environmental Policy Act applicable in the instant case.
In epite of the crabbed and dichotomous interpretation given by the applicant and the staff in their repective briefs, the cor-rect view of the National Environmental Policy Act is far more in-clusive.
I am sure that the Appeals Board need not be reminded that "a statute must be constuuad as a whole and a doubtful provi-sion (which is not here the case) must be ra d in ec mection with other pertinent provisions of the stn' :te to give the doubtful provision meaning consistent with the general purpose to be accom-lished."
The purpose of the National Environmental Policy Act is found
_in. 42 U.S.C. 4321.
In part it Y..
declare (s) a national policy gf 8012 3"
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' " Ob 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 stimulate the health and welfare of man..."(emphasis mine)
A brief review of Sec.102 (2)(C) would perhaps here be on-lighteninE.
Sec.102 states: The Congress authorizes and directs that, to the fullest oxtent possibles (2) all agencies of the federal government shall - (C) include in every renort on_pronocals for...
maior federal netions sicnificantly affecting the nuclity of the human environment, a detailed statement by the responsible official on:
(i) the-environmental impact of the proposed actions (ii) any adverse environmental effects which cannot be avoided should the proposal be implementads (iii) alternatives to the pronosed action (emphasis mine):
(iv) the relationship between local short-term uses of man's environment and maintenance and anhancement of long-term productivity, ands (v) any irreversible and irretrievable commitments of re-sources which would be involved in the proposed action should it be implemented. (Emphasis mine)
The sweep of N.E.P. A., declared the court in Calvert Cliffs Coordinating Committee, Inc. v U.S. Atomic Energy Commission (1971) 449 Fi i 1109,17 h.L.E. Fed 1), "Is extraordinarily broad, compelling consideration of any and all types of environmental impact of federal action. with N.E.F.A. mandating a case-by-case balancing judgement on the part of federal agencies so that in each individual case the particular economic and technical benefits of planned action must be assessed and then weighed against the environmental costs, and the alternatives must be considered which would affect the balance of values... to insure that, the optimally beneficial action is fk 11y taken."
Furthermore, "the environmental values must'be considered at every distinctive and comprehensive stage of an agency's process,"b!-
and in any field of activity which "may affect the environment..."5/
The court in Committee to stop route 7 y Volpe ((1972 D.C.
Donn.) 346 F. Supp. 731) pointed out that "the whole point of
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~3-N.E.P.A. In that certain careful considerations... are to bo *c16hed beforo federal deciciencaking occured..."
Federal decicien=akinc cubject to N.E.P.A. occurc "then nn agency (wac) in in the process of exercisinc its discretion between two or coro alternatives open to it under the controlling law" (Octty 011 Co. (Eastern Cporations) v Ruckerchaus (1972 D.C. Del.) 342 F. Supp. 2006 409 U.S.1125).
Rostated unequivocally in Calvert Cliffc. "The procedural dutico, the duties to give full consideration to environmental protection, are subject to a... ctrict standard of compliance... By nor the applicable principle cheuld be absolutely clonr.
N.E.P.A. requirco that an acency cust - to the fullect extent poccible under its other statutory obligations - conaldor alternatives to its actions which would reduce environmental damage... a full exercico of cubstantive diacrotion is required at every important, approprinto and non-dupli-cativo stage of an agency's proceedings."
It is by no means necoccary for tho Licensing Board to rely on N.E.P.A. 's applienbility to any and all exercicoc of dicerotion which nay affect the environment.
For the courta have been anything but anbiguous in defining "a nnjor fodoral action cignificantly affecting the quality of the environ =ent."
An initial reference to the Council on &.vironmental Quality cuido11nen, in extronely clarifying.
In 5-111-b. the C.E.Q. stateci "In concidering what conctituten major action significantly affectinc the environment no;cncioc chould bear in mind that the offect of cany federn1 decisions about a project or conplex of projects can be indi-vidually limited but cunulatively considernble."
The C.E.Q. hno ctated further in sec. II of its guidelinen that dec.102 (2)(C). "should be applied to further =njor federal actions having a cignificant effect on the environment even though they crice from projects or progracc initiated prior to enactment of the Act on January 1. 1970.
Where it is not practicable to renoccan the bacic courco of notien, it is still important that further incrocental cajor actionc be chaped no as to minimizo adverso environmental concequences not fully cynluated ct the outset of the project or procran."
In Environmental Defenco Fund v Tonneocco Valley Authority
((1972 D.C. Tenn.) 339 F. Supp. 806, 468 P2d 1164) the court stated
. that it was clear that the environmental impact
.tements are required for ongoing federal projects initiated prior to such date (Jan.1 1970)... whether or not they represented simply the last phase of an integrated operation most of which was completed before that date."
Thus it is clear "that the fact that a project is ongoing at the time of N.E.P.A.'s effective date will have little effect on the obligation to comply with the mandates of 102 (2)(C)."b! In Lee v Resor ((1972 D.C. Fla.) 348 F. Supp. 389), the court defined an ongoine project begun before enactment of N.E.P.A. "as one which has a definite termination date which is known when the project commences".
The court juxtaposed this with a continuine project begun before the enactment of N.E.P.A. which is, stated the court, a project "which has no definite termination date but is intend to continue indefinitely."
"It has been stated that an ongoing project is subject to the requirements of N.E.P.A. until the project has reached such a state of completion at which the cost of abandoning or altering the pro-posed project would clearly outweigh ( the benefits which could flow from compliance with N.EiP.A.*2/
Or stated another way, it is only when the benefits drived from an ongoing project outweigh the costs of its continued operation that it should meet with approval at those junctures at which the agency exercises its discretion.
Thus the court in Pizits v Volpe ((1972 D.C. Ala.) 467 F2d 208) stated that "ther s must be substantial compliance with the provisions of N.E.P. A.
before beginning new construction on an old project."
Particularly relevant to the extant case is the holding in San Fran-cisco TEmnorrow v Romney ((1972 D.C. Cal.) 342 F. Supp. 77) in which "the court declared that if any consistent rule could be distilled from those cas es involving the applicability of N.E.P.A. to so-called ongoing projects, it is that 'if subsequent to January 1, 1970 there is any significant departure from the original design having eco-logical significance er if, subsequent thereto, a design feature of ecological sighificance left open in the original design is resolved, or one previously provided for is significantly changed an imnact statement must be prepared.'" In Thompson v Fugate ((1972 D.C. Va.)
347 F. Supp.120) the court noted "that recent. decisions have held that the Act (N.E.P.A.) applies to unexecuted portions of a plan or project."
The Appeals Board may, at this point, well wonder when N.E.P.A.
D mmh
] in not applienble.
"Although ".2.r.A.
Ja cpplicable to further in-crencntn1 enjor federal netiens cecuring cubccquent te its effective dato, even thout:h the project ic initinted pricr to that date, ence the project is cecplete there enn be no further enjer actien becauce nt tine of cenpletien proiegf_ inn cppnblo of_ppstJpg_At_nn;e c;pDSI.ty and naencico intendcd to opernte it at full enpacity."
i Dir; Rock Toint in the words cf tho etnff (tctober 20, 19C0, p.
- 22) "10 pernitted t"t itt liccnne to cencrate pceer
... for n period cf approxicately forty yenra fron thn date of it0 incunnce."
In the cacc bcfore the beard toony, the applicant han clearly cdni'ted that it "nuct provido additional etorace cynce for the Big i:cek ; cint tpent fuel to n11ov continued oporation." (5.cc.1-0 p.
1-2: Cencuncrc pracr Co., 31C Rock Toint T1 ant 3 pent Tuc1 Rnch Additient Fnviren=cntnl != pact Evnluntion 4-70).
'; hun a full ten yearc before the full-tert of itc crerating licence. nnjer federal act!on le recuired to allet it to operate at enxinun capacity.
The licensinr; Ecord in here in error both in its confucion of a rrn'rct vith "MItD En vreresaln for major federal actico" (.3ec.
102 (2)(C).
("he detailed ctatenent is te accenpany anv repor_i_cn prprennlr fer ccjer fcderal action c.g. licencinr; be it cubnitted by n private party cr under the Punpicen of a federni projcet.) (reco-randut and Crder en IT.E.T. A. Povicw. Joptenbor 12, 1960, p. 7) and alco in fniling to clasnify Dig Rock Foint ac on onEcing project, for the plant clearly falls rithin the definiticn expcunded in Lee v Ecccr (3':8 T. lupp. 3E9), particularly in licht of the extensivo federal involvetent during the pinnt'n first 4-1/2 years of operation.
4 during thic]Ltire it r< calv7(JtE fyll_tcrn erryntin/C.llCfnDr. (Con-ctruction of Ult; Rcch tun begun in the inte 1950's under an ccreccent thereby Concurerc Power Co. wns to construct. cupply the cito and cperate the plant and the A.E.C. would cupply the technical expertice.
Undcr the agreenrnt the federal gevornment salved fuel une charcou of over 01.(50.000.00 - nnd cpent half-nillien dollarn on reccarch and develepnent.
"creever. Cencral "Icetric built the reactor froc n 3 7 clllion dollar govern =ce.t stard and then donated enid invectcent to Con':uners Fewer Co. ac a " gift".)
2e "Turpocec of fi.E.F.A. are frustrated then considorntions of alternativec and collateral effect are unrcasonably constrictedk
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~6-N.E. P. A. " mandates that any and all typee of potential environnental irracts be censidered by (the) acency involved, including beth direct and indirect effects of federal actions."1E!
If the requirenents fof the Act can feasibly be opplied (to en ongoing project)then they thould in fact be applied, even if the project in quentien was begun prior to the enactcent of N.E.P.A.
Such application wculd not be retroactive, but proepectivo, "since it would teek to alter, within proper limits, l
espects of propenal which hsd not yet bacn completed, and not to undo anything which had already proceeded to final construction."11/
"To accertain (tha) eigni ficance of najor federal action, (a) project must be ansecced with view to overall conulative inpact of action propeced, of related federal action already taken in area and further actions contemplated" (Sierra Club v Bergland ((N.D. Miss) 451 F. Supp. 120).
In Natural Recources Unfenne Council, Inc. v.
U.3. N.R.C.
(178 App. D.C. 336, 547 F2d 633) the court stated that it is "clonr that...
licensing of vaste dispenal facilities connected with nuclear power reactor in in itself major federal action requirinc a N.H.F.A. state-ment."
A collateral natter d2nanding compli?nce with N.E.P.A. has alresdy been conceded by the staff en p. 22 of its brief filed Cetober 20, 19"O.
"The Stent Fuel Fool expension would affect... offluent release?."
It has been determined in Izaak Nalton Lesgue v Schloringer
((!971 D.C. Dict. Col.) 337 F. Supp. 287), "that the heated water that would be dtscharced frn.n n nuclear-power-generating facility nay sig-nificantly affect the quality of the htunen envirennent within the meaning of Sec.102 (2)(C) of N.E.P. A."12 Th a Nationn1 Znvironmental Policy Act requires that the (detailed) stetenent be cubject to e rigorous revier procees. (Environ. Defense Fund Inc. v Corp. cf Engineern of U.S. Army (197? D.C. Uieu.) 346 F. Supp. 916)."
Forfnnetory and cenclusory languace, "such ac the expected n?cative declaration by the etsff (not? harn for instance th? Licensinc Zonrt coment en p. 3 of ite W nornndun end Crder en N.E.F.A. Reviet that the staff'n negative declaration wculd be 'in the usual forn.") sinply did not cuffice."
It seems abundantly clear that in regardo to the National En-vironmental Felley Act that Big Rock is in the came pcsition n3 an unlicensed facility, in co far as it has never had any of its impacts, lot alone its cumulative effects, evaluated in light of alternatives
i 7-or their damage to the environment.
j Clearly "due process of inw" in the instant cace requires complete l
compliance with Sec.102 (8)(C) of f!.E.P. A.
Intervenor Leithouser thua requesto that the Appeals Deard support fully the doteminaticn by the Licensing Board and remand the appli-cation to the Licensing Board for resolution.
I further request that l
if the Appeals Board evererno the Licensing Board on the Applicability i
of Sec.102 (2)(C) of N.E.P. A. that intervenors be allowed to file separate briefs on the applicabilit'/ of Sec.102 (2)(C) not to be i
due before January 31, 1981.
These proceedings are quite taxing to those lacking the immense resources of the applicant and simple justice and fair play should compel the appealc Beard to take such matters into account for scheduling.
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John A.- Lel'thnuser 1
December h, 1980 Lovering, Michigan l
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o Notes 1/
Cooley on Const. Limitations (7th Ed.) p. 506. Kennedy y State Board of Registration in Medicine 108 N.tl. 730.
2/
73 An. Jr. 2nd Statutes Sec.194 et. seq. 275 J/ lAnerican Iaw Review Fed. 1, Annotation p. 72.
4/
Greene County Plan'i.ng Board v Federal Power Commission 1972
((1972, Ca. 2) *);. d 412) l J/
U.S. v 247 37 Acres of Land (1971 D.C. Ohio) 3 E.R.C. 1098.
6/
17 A.L.R. Fed. 33, Sec.16, p.183 2/
17 A.L.R. Fed. 33, Sec. 3a, p. 66.
8/
Sierra Club v Morton (D.C. Cal.) 400 F. Supp. 610.
2/
Greene County Flanning Board v Fed. Power Commission (CA2) 559 F2d 1227 10/ McDowell v Schlesinger (D.C. Mo.) 404 F. Supp. 221.
1.1] Jones v Lynn (CA1 Mass) 477 F2d 885 12/
17 A. L.R. Fed. 33 S ec 14-b, p. 174.
ij/ Hanly v Mitchell (1972, CA2 NY) 460 Fed. 640.
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