ML19340D344
| ML19340D344 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 12/22/1980 |
| From: | Gallo J, Thornton P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8012300360 | |
| Download: ML19340D344 (28) | |
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOAR 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 Pool Modification)
(Big Rock Point Nuclear
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REPLY BRIEF OF CONSUMERS POWER COMPANY 5[
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Joseph Gallo, Esquire Peter Thornton, Esquire ISHAM, LINCOLN & BEALE ISHAM, LINCOLN & BEALE 1120 Connecticut Ave., N.W.
One First National Plaza Suite 325 Suite 4200 Washington, D.C.
20036 Chicago, Illinois 60603 202/833-9730 312/558-7500 Two of the Attorneys for Consumers Power Company Dated:
December 22, 1980 8012300 gQ
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i TABLE OF CONTENTS Page i
INTRODUCTION.
1-
SUMMARY
OF ARGUMENT 2
i 5
ARGUMENT.
I. The Licensing Board's Jurisdiction Was Limited By The Commission's Notice of Hearing.
5 II. Intervenors Misinterpreted the Scope of the Action That the Licensee Seeks the Government to Take in This Case.
8 III. The Intervenors Misconstrue the Licensees Position On Retroactive Application of NEPA and the Cases Interpreting That Doctrine 11 IV. Section 102 (2) (E) of NEPA Does Not Require Consideration of Alternatives in This Case.
13 V. The Licensing Board Had Authority to Determine That Any Impact Appraisal by the Staff Should Encompass The Scope of the Action as Defined by the Board.
18 CONCLUSION.
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t ii TABLE OF AUTHORITIES CASES:
Andrus v. Sierra Club, 442 U.S. 347 (1979) 15 Arlington Coalition on Transportation
- v. Volpe, 458 F.2d 1323 (4th Cir. 1972).
12 City of New Haven v. Chandler, 446 F.Supp.
925 (D. Conn. 1978).
13 Commonwealth Edison Company (Zion Station, Units 1 and 2), LBP-80-7, 11 NRC 245 (1980).
8, 10 Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-616, 12 NRC (October 2, 1980).
7, 8 Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), LBP 80-2 (January 10, 1980).
15 Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 (1977) 20 Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973).
11, 13 Minnesota PIRG v. Butz, 498 F.2d 1314 (8th Cir. 1974) 11, 12 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 31 (1978), remanded on other grounds sub nomine Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) passim Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167 (1976) 6 Portland General Electric Company (Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979) passim l
Portland General Electric Company (Trojan i
Nuclear Plant), ALAB-534, 9 NRC 287 (1979) 7 i
Trinity Episcopal School Corp. v. Romney, l
523 F.2d 88 (2d Cir. 1975) 17 l
f i
STATUTES:
Page 42 U.S.C.
Section 4332 (" National Environmental Policy Act of 1969")
Section 102 (2) (C) passim Section 102 (2) (E) passim REGULATIONS:
10 C.F.R. S2.718.
19 40 C.F.R. 51508.9(b).
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e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD IN THE MATTER OF
)
)
CONSUMERS POWER COMPANY
)
Docket No. 50-155
)
(Spent Fuel Pool Modification)
(Big Rock Point Nuclear
)
Power Plant)
)
REPLY BRIEF OF CONSUMERS POWER COMPANY INTRODUCTION This appeal results from the acceptance by the Atomic Safety and Licensing Appeal Board
(" Appeal Board") of a referrall/ by the Atomic Safety and Licensing Board
(" Licensing Board") of its ruling / that, under the circum-2 stances of this case, it is necessary as a matter of law to prepare an environmental impact Statement pursuant to section 102 (2) (C) of the National Environmental Policy Act of 1969
("NEPA").
Briefs in opposition to the Licensing Board's ruling were filed by the NRC Staff and Consumers Power Company
(" Licensee") on October 20, 1980.- Briefs in support of the Licensing Board's Order were filed on December 4 by 1/
" Memorandum and Order", dated September 12, 1980.
2/
Licensing Board's " Memorandum and Order on NEPA Review", dated September 12, 1980.
3/
42 U.S.C.
54332 (2) (c).
Mr. John O'Neill II, by Mr. John Leithauser and by Ms.
Christa-Maria, Ms. Joanne Bier and Mr. James Mills (here-inafter referred to individually by name.or collectively as "Intervenors").
The Council on Environmental Quality ("CEQ")
filed a brief amicus curiae on October 5, 1980 also in support of the Licensing Board's action.
The Appeal Board's September 12, 1980 Order auth-orized the filing of Reply Briefs by December 10, a date which was later extended to December 22, 1980.
This Reply Brief is submitted on behalf of the Licensee in response to the various briefs supporting the Licensing Board's Order of September 12.
SUMMARY
OF ARGUMENT The major question before this Aegeal Board is what comprises the proposal for federal action for purposes of NEPA scrutiny in an application for modification of the spent fuel pool at an operating nuclear reactor.
The Licensee contends that the proposed action is solely approval of expanded pool capacity, including any incremental environ-mental impacts of the additional spent fuel assemblies that could be stored in the modified pool.
Because, in the view of the Intervenors, the react'or will have to shut down in 1981 unless the pool capacity is expanded, they contend that the federal action proposed here must include any environ-mental impacts of continued reactor operation.
The scope of a proceeding is governed by the Nuclear Regulatory Commission's notice of hearing, which in this case does not mention continued reactor operation.
Intervenors' contrary arguments are inconsistent with the Appeal Board's decision in Trojan.II Furthermore, the Appeal Board in Portland General Electric Company (Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979), and Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 31 (1978), defined the proper scope of the federal action involved in a spent fuel pool modification amendment.
Intervenors argue that the Appeal Board's refusal to consider continued operation in those d^cisions was based solely on the fact that the facilitieo in question had undergone prior NEPA review.
The Appeal Board's reasoning, however, shows that it considered both the proper scope of the proceeding and the existence of prior NEPA review.
Finally, a line of judicial decisions support the result in Trojan and Prairie Island by holding that confirmatory actions by the government are not major federal actions unless they represent a significant change in the project as originally approved.
Licensee maintains, l,
4/
See Portland General Electric Company (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 (1979), and cases cited therein, i
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consistent with longstanding NRC precedent, that any in-creased environmental impacts resulting from expansion of the pool itself would be insignificant, and that operation of the Big Rock Point reactor remains within the contem-plation of the original licensing bases for the plant in 1962.
In this circumstance, the requirement of an en-vironmental impact statement would be prohibited here as a retroactive application of NEPA.
When a facility has been fully licensed long before the effective date of NEPA, a
presumption arises that subjecting its operation to NEPA scrutiny would involve a retroactive application of the statute.
The Licensing Board and Intervenors appear to recognize and accept this burden, since they attempt to avoid the bar on the retroactive application of NEPA by relying on federal court decisions which distinguish the situation of retroactive application.
However, none of these decisions are apposite.
If this Appeal Board finds that Section 102 (2) (C) is not applicable here, it should itself decide the applic-ability of Section 102 (2) (E).
Section 102 (2) (E) is applic-able only when a proposed action involves appreciable envir-onmental impacts, while recognizing that the section may apply in cases where no environmental impact statement is required.
CEO appears to argue that the section applies
. even where potential environmental impacts would be de minimis, a position that would trivialize NEPA.
CEQ's expansive interpretation of the statute is without case law support and ignores clear legislative history that is j
contrarv to its position.
Finally, Licensee takes issue with the NRC Staff's position that the Licensing Board had no authority to issue the order on appeal before reviewing the Staff's environmental impact appraisal.
Licensee agrees that it was improper for the Licensing Board to order preparation of an EIS, but it cannot agree that the Licensing Board was powerless to examine and redefine, if thought appropriate, the scope of the proposed federal action for NEPA review purposes.
ARGUMENT I.
The Scope of the Proceeding was Limited By the Nuclear Regulatory Commission's Notice of Hearing.
Intervenors, Christa-Maria, et al. and John O'Neill, contend that the scope of a proceeding before a licensing board is not affected by the Nuclear Regulatory Commission's (" Commission") notice of hearing, as Licensee
' and the NRC Staff stated in their briefs.b!
Ms. Christa-Maria appears to think that the issue is one of notice and argues that all parties have received adequate notice of the question of continued operation here.
(Christa-Maria Brief at 28).
Mr. O'Neill contends that a licensing board's authority to define the scope of a proceeding " flows from the facts of the case".
(O'Neill Brief at 9.)
The question, however, is not one of notice or factual implication but rather one of jurisdiction.
It is well settled that the jurisdiction of a licensing board and therefore the scope of the proceeding is limited by the Commission's notice of hearing.
Ms. Christa-Maria attempts to distinguish Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAS-316, 3 NRC 167, 170-71 (1976), and other cases cited by Licensee 5/
Intervenors characterize Licensee's Application for a license amendment to expand the spent fuel pool at Big Rock Point as one that must be granted to avoid re-actor shutdown in 1981.
This characterization is erroneous.
As the application indicates (Description and Safety Analysis Report (p. 1-1) and Environmental Impact Evaluation (p. 1-2), dated April 1979), the flexibility of maintaining full core offload cap-ability would be lost in 1981 if the pool capacity were not expanded.
No NRC regulation or other regulatory authority requires that such a full offload capability be maintained, and this existing space in the pool could be used for three additional annual refuelings.
Further-more the question of reactor shutdevn cannot be properly discussed without taking into account the possibility of shipping spent fuel to DOE installations for storage and/or the establishment of an away-from-reactor storage site at the Barnwell facility or some installation that might be created by federal legislation.
for this principle on the ground that intervenors there were precluded from raising antitrust issues at hearings on safety and environmental matters.
This exact argument, however, has already been rejected by the Appeal Board in Portland General Electric Company (Trojan Nuclear Plant),
ALAB-534, 9 NRC 287 (1979):
The intervenors endeavored to raise issues manifestly beyond the bounds of the issues identified in the notice of hearing which triggered this special proceeding.
The Licensing Board concluded (8 NRC at 745),
that it lacked the jurisdiction so to ex-pand the scope of the proceeding, citing as authority Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976).
The Marble Hill deci-sion clearly supports that conclusion; it squarely holds that a licensing board does not have the power to explore matters be-yond those which are embraced by the notice of hearing for the particular proceeding.
Contrary to the intervenors' suggestions, this was a holding of general applicability; i.e.,
it was not restricted to the precise situation presented in Marble Hill (where an attempt had been made to inject anti-trust issues into a proceeding which had been con-vened to consider solely safety and environ-mental questions).
9 NRC at 289-90 n.6 (emphasis supplied).
The principle was also reiterated recently in the context of a spent fuel pool expansion proceeding by the Appeal Board in Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-616, 12 NRC (October 2, 1980).
The Licensing Board in the Zion proceeding had pro-pounded the question whether modification of the pool and
operation of the plant with increased pool storage capacity would require changes in the station's emergency plan.
Commonwealth Edison Company (Zion Station, Units 1 and 2),
LBP-80-7, 11 NRC 245, 283 (1980).
The Licensing Board excluded testimony relating to alleged deficiencies in the emergency plan because it did not specifically address deficiencies arising from the increased capacity of the storage pool.
On appeal, this ruling was upheld on juris-dictional grounds.
The Appeal Board stated:
As the Board correctly perceived, its juris-diction was limited by the Commission's notice of hearing.
That jurisdiction extended only to issues fairly raised by the application to modify the spent fuel pool, the sole matter which the Commission had placed before it.
This was why Board Question 4 (b) was drawn narrowly and sought evidence only about whether the Zion facility's emergency plan needed to be changed "as a result of the proposed modifica-tion of the spent fuel pool and the proposed operation of the Station with increased spent fuel storage capacity".
l Slip Op. at 13, 12 NRC at (citations omittad).
II.
The Intervenors Misconstrue the Scope of the Action that the Licensee Seeks the Government to Take in this Case The Intervenors attempt to avoid the application of the Appeal Board's ruling in Northern States Power Company (Prairie Island Nuclear-Generating Plant, Units 1 and 2),
ALAB-455, 7 NRC 31 (1978), (hereinafter Prairie Island),
which defines the proper scope of the action to be subjected t
_9 to NEPA scrutiny in this proceeding.
Ms. Christa-Maria and Mr. O'Neill attempt to read Prairie Island as merely holding that in cases where an EIS has already been prepared, there is no need for a NEPA reassessment.
The Prairie Island opinion, however, is not amenable to this interpretation.
Ms. Christa-Maria attempts to explain away the Appeal Board's refusal to consider continued operation by unduly relying on the grammatical relationship between two sentences of the Prairie Island decision in which the Appeal Board states:
...it seems manifest to us that all that need be undertaken is a consideration of whether the amendment itself would bring about significant environmental consequences beyond those previously assessed and, if so, whether those consequences (to the extent unavoidable) would be sufficient on balance to require a denial of the amendment application. This is true irrespective of whether, by happenstance, the particular amendment is necessary in order to enable continued reactor operation (although such a factor might be con-sidered in balancing the environmental impact flowing from the amendment against the benefits to be derived from it).
The thrust of these two sentences when read in context with the entire passage 5/ clearly indicates that whether or not a license amendment is necessary to enable continued reactor operation, all that NEPA requires is consideration of whether the amendment itself would bring about significant environ-mental consequences.
The Appeal Board, in other words, discounted the same cause-effect argument put forward by 6/
The two pertinent paragraphs are set out on pages 8 and 9 of the Licensee's Brief in opposition to the Licensing Board's Order.
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t i Ms. Christa-Maria and indicated that under NEPA the same standard applies to any license amendment, irrespective of the happenstance of a prior NEPA review or that a particular amendment may permit continued operation.
The relevant standard in either case is whether the amendment in itself would have significant environmental consequences not yet addressed in an EIS.
4 i
Licensee maintains that in itself the amendment sought here will have no significant environmental con-sequences whatever. 1/
Mr. O'Neill disagrees on this point, j
arguing that the environmental impacts of the spent fuel pool expansion itself will be significant.
(O'Neill Brief pp. 5-8.)
In addition to being contrary to NRC precedent, these assertions are not supported by the factual record in this proceeding and they must be disregarded.
-7/
As Licensee pointed out in its brief before the Licen-sing Board, numerous Licensing and Appeal Board decisions have so held with respect to similar spent fuel pool expansions.
The Licensing Board in Commonwealth Edison Company ' Zion Stations, Units 1 and 2), LBP-80-7, 11 NRC 245, 294 (1980), recently held that "the proposed modification [of the spent fuel storage pool capacity]
will not in itself increase the environmental impact of the Station."
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. III. The Intervenors Misconstrue the Licensee's Position on Retroactive Application of NEPA and the Cases Interpreting That Doctrine Licensee has argued that the Licensing Board's determination to require an EIS covering continued operation for the remainder of the Operating License constitutes an impermissible retroactive application of NEPA.
Ms. Christa-Maria attempts to defend the Licensing Board's misplaced reliance on Minnesota PIRG v. Butz, 498 F.2d 1314, (8th Cir.
1974), and Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973), by asserting that in both cases the courts held that NEPA required preparation of an EIS covering the continued operation of projects approved prior to 1970.
Ms. Christa-Maria misapprehends the Licensee's position with respect to Butz.
(Christa-Maria Brief p. 17.)
The Licensee recognized that the EIS required in that case included the basic issue whether logging, the project approved before NEPA, should continue.
The key difference between Butz and the present case is the fact that Butz 1
involved continuing federal involvement in the project, in that the Forest Service was required to " approve locations of timber roads, logging camps and buildings; mark trees to i
be cut; and negotiate payment for the timber cut".
498 F.2d at 1322.
Where there is continuing federal involvement in
, 1 a project, the unexecuted portion of it must be tvaluated under NEPA even though the project was initiated before 1970.
Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972).
The Licensing Board expressly recognized that this rationale is not applicable here be-cause Big Rock Point is not a project requiring continued federal involvement.
With respect to Jicarilla, Ms. Christa-Maria misapprehends the posture of the case.
Referring to the post-NEPA federal actions taken on a pre-NEPA project, Ms.
Christa-Maria reasons that "the approval of a right-of-way and the pollution devices were necessary for the operation of the power plant", (Christa-Maria Brief p. 17) and suggests that the court therefore held that an EIS covering plant operation was required.
It is a fair conclusion that the approvals of rights-of-way, stack heights and pollution i
control devices were necessary preliminaries to operation of the plants.
However, Jicarilla contained no cause-effect reasoning based on that conclusion.
The court in Jicarilla l
held that even assuming that the basic projects were not reassessable after 1970, the post-NEPA federal actions themselves -- approvals of rights-of-way, etc. -- were major l
federal actions having a significant impact on the quality of the human environment and therefore required preparation of an EIS.
471 F.2d at 1282-83.
Jicarilla thus fails to l
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support the Licensing Board's action because the proposed amendment in this case, as properly defined by the notice of hearing and NRC precedent, is not a major federal action significantly affecting the environment.
IV.
Section 102 (2) (E) of NEPA Does Not Require Consideration of Alternatives in this Case CEQ urges that the courts have held Section 102 (2) (E) of NEPA applicable not only where an EIS need not be prepared but apparently without qualification--even where potential environmental impacts would be de minimis.
(CEO Brief at 9.)
In its brief filed with the Licensing Board, the Licensee argued that Section 102 (2) (E) is applicable only where an environmental appraisal discloses that the-proposed action involves appreciable environmental impacts to make the consideration of alternatives meaningful, although Licensee recognized that there need not be a significant environmental impact sufficient to require preparation of an EIS under Section 102 (2) (C).
(Brief of Consumers Power l
Company on the Need for Power Issue at 14-19.)
"Although the agency's duty to consider alternatives under 54332 (2) (E) j is independent of the duty to file an EIS, it must be looked at in relation to the nature of the proposed project, including its estimated environmental impact".
City of New Haven v.
Chandler, 446 F. Supp. 925, 935 (D. Conn. 1978).
Because
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any environmental consequences of pool expansion are de minimis and the expansion involves no unresolved conflicts about the commitment of the country's resources, the re-quirement that alternatives be considered is not triggered in this case.
Licensee pointed out the clear precedent of Trojan, in which the Appeal Board held that a spent fuel pool expansion did not either "(1) entail more than negli-gible environmental impacts; nor (2) involve the commitment of available resources respecting which there are unresolved conflicts", and stated that there was "no obligation to search out possible alternatives to a course which itself will not either harm the environment or bring into serious question the manner in which this country's resources are being expended".
Portland General Electric Company (Trojan Nuclear Plant), ALAB-534, 9 NRC 263, 266 (1979).
The NRC Staff also argues that the application of Section 102 (2) (E) is not required when the " resources" in question are the materials to be used in manufacturing and installing the new spent fuel racks, and that as to them there are no unresolved conflicts.
CEO has attacked this l
position as unduly restrictive because, in its view, con-flicts about alternative uses of " capital or assets and other resources" would require application of Section 102 (2) (E).
In this proceeding, C2O argues, there is a conflict about the Licensee's exsenditure of capital to i
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modify the pool.
(CEQ Brief at 10.)
CEQ does not elucidate the boundaries of its expansive interpretation of Section 102 ( 2 ) (E), but they would clearly include many situations with no environmental significance.
Such an interpretation runs the clear risk of trivializing NEPA, against which the Supreme Court warned in Andrus v. Sierra Club, 442 U.S.
347 (1979).
CEQ ignores the House-Senate Conference Report, which paraphrased Section 102 (2) (E) as concerned with "un-resolved conflicts over competing and incompatible uses of land, water, or air resources".
Moreover, despite the assertion of CEO that the decided cases do not support the Staff's " constricted" interpretation of the statute, CEQ does not cite a single case in support of the proposition that " resources" in Section 102 (2) (E) includes the capital assets of a corporation.
In fact, the only opinion so to hold is that of the Licensing Board in Dairyland Power Cooperative (Lacrosse Beiling Water Reactor), LBP-80-2 (January 10, 1980), which held that a nuclear reactor itself was a resource.
The Licensee and the Staff have demonstrated that this holding is at odds both with the opinion of the Appeal Board in Trojan and with the statute.
(Brief of Con-sumers Power Company on Need for Power Issue at 14-19; NRC Staff Response to Board Question at 13-16.)
In its brief before this Appeal Board, the NRC Staff repeats the position regarding Section 102 (2) (E) that
it developed below, but the Staff notes in addition that the NRC's proposed revision of Part 51 of its regulations in-cludes a reference to Section 102 (2) (E).E/
The NRC Staff concludes that if this regulation is adopted as written, they may "be required to consider alternatives as a matter of course in environmental assessments".
(Staff Brief at 30 n.24).
Licensee suggests that this is not the proper inter-pretation of the proposed regulation.
If the Commission meant that environmental assess-ments must always include consideration of alternatives, the words "as required by Section 102 (2) (E) of NEPA" in the pro-posed regulation would be meaningless.
The regulation plainly means that the environmental assessment is to include a discussion of alternatives in cases where Section 102 (2) (E) requires that they be considered.
The proposed regulation, in other words, takes formal recognition of the principle
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The Commission's proposed regulation 10 C.F.R. 551.30 (a) (1) (ii) states:
(
"An environmental assessment shall identify the proposed action and include:
(1)
A brief discussion of l
(ii) alternatives as required by t
l Section 102 (2) (E) of NEPA."
l Similar language occurs in a CEQ regulation at 40 C.F.R.
l 51508.9(b).
l l
established by the courts that Section 102 (2) (E) may apply even when no EIS is required.
Trinity Episcopal School Corp. v. Romney, 523 F.2d 88 (2d Cir.1975).
The proposed regulation therefore directs that when the conditions of Section 102 (2) (E) are fulfilled, Staff shall include a consideration of alternatives in its environmental assess-ment.
Accordingly, when, as here, there are only negli-gible environmental impacts and no unresolved conflicts regarding the use of available resources, alternatives need not be considered.
The proposed regulation, in other words, does not change the result in Trojan with regard to spent fuel pool amendments.
Finally, the Staff appears to take the position that the Section 102 (2) (E) issue somehow becomes moot because of its voluntary consideration of some alternatives that it J
has traditionally undertaken in its environmental assessment of spent fuel pool expansion cases.
The full import of this proposal is not entirely clear.
In any event, Licensee is opposed to the consideration of any alternatives in this case, whether they be prompted by misconceptions concerning proper statutory and case law interpretations or the gratuitous initiatives of the NRC Staff.b!
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Licensee's Application for license amendment (Environmental Impact Evaluation, dated April 1979, pp. 5-1 through 5-5) discusses various alternatives.
Apparently this informa-tion was furnished pursuant to the NRC Staff's " traditional consideration" of alternatives in spent fuel pool modifica-tion cases.
Consistent with Licensee's legal posture, this information is immaterial to the Application, and Licensee does not intend to o introduce this material at the evidentiary hearings scheduled in this proceeding.
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- Intervenors, Christa-Maria, et al,. and John Leithauser request two weeks to brief the applicability of Section 102 (2) (E) to this proceeding if this Board decides to consider the issue itself.
This request is unwarranted and should be denied.
As acknowledged by Mr. O'Neill, the applicability of Section 102 (2) (E) was thoroughly briefed by all parties, including Christa-Maria, et al and Mr. Leit-hauser before the Licensing Board.
Amicus CEO, which was not present before the Licensing Board, has addressed this issue in its brief before this Board, on which Licensee comments above.
The issue is ripe for decision and the Appeal Board should decide the matter for the reasons stated previously in Licensee's Brief in Opposition to Order Requiring Impact Statement without further briefing oppor-tunity.
V.
The Licensing Board Had the Authority to Determine that any Environmental Impact Appraisal by the Staff Should Encompass the Scope of the Action as Defined by the Board
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The Licensee has argued that the Licensing Board's determination of the proper scope of the federal action in-volved in this proceeding is incorrect as a matter of law.
Licensee has also argued that even assuming its correctness, i
the Licensing Board did not comply with the procedures of-Part 51 in ordering the Staff to prepare an EIS.
Nonethe-less, Licensee cannot agree with the assertions in the l
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Staff's brief seeking to impose sweeping limitations on a licensing board's authorit;r over the conduct of proceedings.
Under Section 2.718 of the Commission's regula-tions, a Licensing Board has authority to regulate the course of proceedings within an adjudicatory framework.
One of its adjudicatory functions is to determine the proper scope of the federal action to be evaluated under NEPA requirements.
Insofar as the Licensing Board did just that here, it acted within its powers.
It is true that the Licensing Ecard here determined the scope of the action before reviewing the Staff's environmental impact assessment (EIA).
The situation in this case, however, was somewhat unusual in that the Staff and the Licensing Board both voiced their assumption that Staff's environmental assess-ment would result in a negative declaration.
Given this circumstance, it was sound administrative procedure for the Licensing Board at least to hold that any impact appraisal l
supporting the proposed amendment would be inadequate unless it encompassed the full scope of the federal action determined relevant by the Board.
A licensing board surely need not t
delay proceedings by awaiting an environmental assessment from the Staff which it has good reason to believe will not address environmental concerns that it considers relevant.
Indeed for a board to do so would be for it to abdicate
its responsibility to regulate the timing of the proceed-ings, which is undoubted.
Under the circumstances, there-fore, Staff's assertion that the Licensing Board was power-less to act until it had reviewed the Staff's environmental appraisal is unfounded.
Probably the most relevant precedent on the issue of the Licensing Board's authority in this case is Gulf States Utilities Co. (River Bend Station, Units 1 and
- 2) ALAB-444, 6 NRC 760 (1977).
The Appeal Board in that case discussed the desirability of the Staff's including in a Safety Evaluation Report "a summary description of.
generic problems under continuing study which have both relevance to facilities of the type under review and poten-tially significant public safety implications".
In a footnote the Appeal Board went on to discuss a board's authority to require inclusion of such information in an SER:
)
We need not pause to consider whether we might have the power to direct (rather than simply to urge) the inclusion in SER's of the information referred to in the text above.
In all events, the li-censing boards plainly have the authority to insist that the information be supplied on the record--if not through the vehicle of the SER then by other evidence.
This being so, the interests of the staff--as well as those of the boards and other parties--will be best served by insuring that the information (to the extent avail-able) is at hand before the evidentiary hearing on radiological health and safety matters commences.
Otherwise, there will be a high potential of delay in the pro-gress of the hearing.
More likely than not, m
. the hearing will have to be adjourned to allow for the belated submission of the in-formation.
And, once it has been submitted, the licensing board may be confronted with the necessity to provide time for additional discovery or the preparation of rebuttal evidence.
6 NRC at 775-76 n.28.
Licensee submits that the Appeal Board's reasoning is equally applicable here.
While the 4
j Licensing Board should not have airected the NRC Staff to prepare an EIS because an EIA is required by 10. C.F.R.
S51.5 as a first step towards a decision to prepaJe an EIS, it need not have encouraged delay by awaiting an EIA that it knew would not address all the environmental issues it considered relevant.
CONCLUSION The arguments presented by the Intervenors and CEO in support of the Licensing Board's MEMORANDUM AND ORDER ON NEPA REVIEW, dated September 12, 1980 are without merit, and the Order should be reversed.
The Appeal Board should reject the requests of Christa-Maria, et al, and John Leit-l hauser for an additional briefing opportunity concerning the applicability of Section 102 (2) (E) to this proceeding, assume jurisdiction over the issue, and determine that-said l
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. section does not apply to this proceeding, in particular, and spent fuel past modification actions in general.
i Respectfully submitted, Jo ph Gallo f
1 Peter Thornton I
Two of the Attorneys for.
l Consumers Power Company
]
ISHAM, LINCOLN & BEALE l
1120 Connecticut-Avenue, N.W.
i Suite 325 Washington, D.C.
20036 202/833-9730 ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 312/558-7500 Dated:
December 22, 1980 i
i n.
i i
e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOAhD In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket No. 50-155
)
(Big Rock Point Nuclear Power Plant))
CERTIFICATE OF SERVICE I hereby certify that copies of the following:
4 REPLY BRIEF OF CONSUMERS POWER COMPANY in the above-captioned proceeding was served upon the following persons by deposit-ing copies thereof in the United States mail, first class postage prepaid, this 22nd day of December, 1980.
Thomas S. Moore, Chairman Herbert Grossman, Esquire Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. John E. Buck Dr. Oscar H. Paris Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Christine N. Kohl, Esquire Mr. Frederick J.
Shon Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commiscion Commission Washington, D.C.
20555 Washington, D.C.
20555
g Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Janice E. Moore, Esquire Docketing and Service Section Counsel for NRC Staff Office of the Secretary U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Gail Oshenko, Esquire John A. Leithauser Council on Environmental Quality Energy Resources Group 722 Jackson Place, N.W.
General Delivery Washington, D.C.
20006 Levering, Michigan 49755 John O'Neill, II Ms. JoAnne Bier Route 2, Box 44 204 Clinton Maple City, Michigan 49664 Charlevoix, Michigan 49720 Christa-Maria Mr. Janes Mills Route 2, Box 108C Route 2, Box 108 Charlevoix, Michigan 49720 Charlevoix, Michigan 49720 Herbert Semmel, Esquire Judd Bacon, Esquire Antioch School of Law Consumers Power Company 1624 Crescent Place, N.W.
212 West Michigan Avenue Washington, D.C.
20009 Jackson, Michigan 49201 Qk Rq f
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