ML19340E305
| ML19340E305 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 01/09/1981 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 8101130282 | |
| Download: ML19340E305 (99) | |
Text
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UNITED STATES OF AMERICA N
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2 NUCLEAR REGULATORY COMMISSION 3
Before the Appeal Board 4
o 5
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9 3
6' In the matter of:
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Docket No. 50-155 2
7 CONSUMERS POWER COMPANY (Spent Fuel Pool j
8 (Big Rock Nuclear Plant)
Modification) 3 d
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!1 l Sth Floor Hearing Room, h
East-West Towers, d
12 4350 East-West Highway, z
3 Bethesda, Maryland.
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J Friday, January 9, 1981 l
14 a
2 15 y
Hearing was convened at 10:00 a.m.,
in the above-g 16 w
entitled matter, for purpose of oral argument before the 6
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j Appeal Board.
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Present:
19 9
M THOMAS MOORE, Chairman.
20 DR. JOHN BUCK, Member.
21 MS. CHRISTINE KOHL, Member.
22
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ALDERSON REPORTING COMPANY, INC.
2 1l APPEARANCES:
2 For the Licensee 3
JOSEPH GALLO, Esq.
Isham, Lincoln & Beale 4
1120 (;o n ne c t icu t Avenue Northwest, Suite 325 Washington, D.C.
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-and-j 6I g
PETER THORNTON, Esq.
7 Isham, Lincoln & Beale 1 First National Plaza, Suite 4200 8
Chicago, Illinois 60603.
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f For the Staff:
i 10 JANICE MOORE, Esq.
II U.S.
Nuclear Regulatory Commission f
Office of the Executive Legal Director 12 Washington, D.C.
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For Intervenors Crista-Maria, Mills & Bier:
g 14 HERBERT SEMMEL, Esq.
9 15 Antioch School of Law
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2633 16th Street Northwest j
16 Washington, D.C.
20009.
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For Pro Se Intervenor:
18 l
j JOHN O'NEILL II, I9 g
Route 2, Box 44 5
Maple City, Michigan 49664.
20 l l
21 For Intervenor CEQ:
22 JOHN SHEA, Esq.
Council on Environmental Quality 23,
722 Jackson Place Northwest Washington, D.C.
20006.
I ALDERSON REPORTING COMPANY, INC.
3 SSEIE31E i
I 2i Oral Argument of Joseph Gallo, 3
on behalf of the Licensee.
6 4
Oral Argument of Janice Moore, i
on behalf of the NRC Staff 22 g
5 i
Oral Argument of Herbert Semmel, j
6 on behalf of Intervenors Crista-Maria, et al..
37 R
7 oral Argument of John Shea, s
on behalf of Intervenor CEQ.
61 5
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d Rebuttal Argument of Joseph Gallo,
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9 on behalf of the Licensee.
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10 Rebuttal Argument of Janice Moore, on behalf of the NRC Staff 94 E
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ALDERSON REPORTING COMPANY, INC.
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2 CHAIRMAN MOORE:
This Board is hearing oral argument x
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3l this morning on the September 12th, 1980 deferred ruling of 1
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the Licensing Board in Docket No. 50-155, which concerns the e
5 Consumers Power Company's application for an operating license 0
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amendment for the expansion of the capacity of the Big Rock R
7 Plant spent fuel pool.
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8I The argument is governed by the terms of our order dd 9
oheember 12th, 1980, and 31st, as indicated therein.
A total 10 of 45 minutes is allotted to each side for the presentation of z
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11 argument, and no more than two counsel will be heard for each 3
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13 The appellants will be heard first, and may reserve a
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15 Before I have counsel identify themselves for the wz 16 record, I would like to introduce the Board this morning.
On j
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17 my left is Christine Kohl, a legal member of the Board.
On my wm M
18 right is Dr. John Buck, a technical member of the Board.
And I
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19 am Thomas Moore, a legal member of the Board.
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l 20 I will now request that counsel identify themselves 21 formally for the record.
Let's begin with the Staff.
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22 MS. MOORE:
For the record, my name is Janice Moore, i
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and I represent the NRC Staff.
I 24 MR. GALLO:
Good morning, Mr. Chairman and members of 25 i the Board.
My name is Joseph Gallo of the law firm of Isham, l
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ALDERSON REPORTING COMPANY, INC.
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Lincoln & Beale, 1120 Connecticut Avenue Northwest, Washington, g
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D.C.
With me, on my right, is Peter Thornton of the same 3
firm.
.Together we represent the licensee, Consumers Power 4
Company.
On my left is Mr. Carl Larsen, whc is the project g
5, manager from Consumers Power Company for the Big Rock Point n
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MR. SEMMEL:
Mr. Chairman and members of the Board, I Ej 8
am Herbert Semmel from Antioch School of Law.
I represent the ax 9-
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Intervenors Crista-Maria, Jim Mills and Joanne Sier.
With me
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is Mimi Cerde: who is a law student at Antioch School of Law.
3 II MR. O'NEILL:
My name is John O'Neill.
I am the B
E" 12 Intervenor in this case that raised the contention that brought E
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l about this hearing on the cost-benefit of Big Rock.
I would
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I4 at this time ask the Board to recorsider its motion to allow me 20 15 j
to speak because I did raise that contention in the first
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place.
I feel very strongly that a person who is affected by W
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the decision, who is competent in the issues, should be allowed m
to speak.
I am not going to speak for any more time than is 19 I
g allowed Intervenors.
None of the parties and Council on n
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Environmental Quality have any objection to my speaking, and i
21 local people went to quite an expense to allow me to speak, and 22 I think I would enrich the proceeding.
23 '
CHAIRMAN MOORE:
Mr. O'Neill, we have considered and 24 reconsidered your previous motions.
The question before us V
25 ~
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today is a legal one.
We ruled initially that we would divide I
i ALDERSON REPORTING COMPANY. INC.
6 1 i the case essentially in two parts, because of the way the issues
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on each side.
We think that is adequate, and your motion for 4
reconsideration is denied.
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MR. O'NEILL:
Respectfully I would object to the M9 j
6 proceeding then continuing without my participation.
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7 MR. SHEA:
My name is John Shea.
I am counsel for Nl 8
the Council on Environmental Quality, 722 Jackson Place North-d i
d 9l west.
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10 CHAIRMAN MOORE:
Counsel for the appellants may proceed.
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II ORAL ARGUMENT OF JOSEPH GALLO, ON BEHALF OF 3
y 12 THE LICENSEE.
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);5 13 MR. cALLO:
May it please the Board, I would like N/2 1
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14 to reserve five minutes o f my time for rebuttal.
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15 I think that the best thing to do is to get right at
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j 16 what I believe to be the central issue in this case and in this W
6 17 appeal, which concerns the proper definition of the federal i
5 wm 18 action being taken by the NRC under the National Environmental P
y 19 Policy Act of 1969.
5 20 The resolution of the remaining issues will be guided 21 by the definition determined to be appropriate in this case.
22 That this was the proper place to start and to begin the analysis 23{
has been so held by the Supreme Court.
As that court stated i
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in the Aberdeen & Rockfish Rail Company case, "It is necessary
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25 first to describe accurately the federal action being taken."
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l ALDERSON REPORTING COMPANY, INC.
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The Licensee has requested the NRC to amend the
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operating license for Big Rock Point to permit the expansion of 3
the spent fuel pool by installing three additional racks.
4 The
.,1 censing Board and the Intervenors believe that in addition 3
5 to expanding the capacity of the pool, continued operation of 0
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the Big Rock facility is a part of the request for the license i
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amendment or, in the parlance of NEPA, the further federal N!
O action requested of NRC includes, in the view of the Board, 1
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9 continued operation because the plant will have to shut down 3
10 l in 1981.
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II The Licensing Board seizes on the relationship between 3
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pool expansion and reactor shutdown in order, in my judgment, OI
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shutdown as an action being taken by the NRC in connection with
'zj 15 the expansion of the spent fuel pool.
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Ib j This characterization is immaterial to a proper d
i II definition of the further federal action being contemplated in s'
I0 this case, as well as factually incorrect.
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19 l The characterization is incorrect because the reactor n
20 will not be forced to shut down in 1981 if the capacity is not 2I expanded.
As the application quite clearly states, only the space to maintain a full core discharge capability will be lost 23[
in 1981.
Space for the storage of spent fuel will remain beyond i
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The question of reactor shutdown is only indirectly affected by the present federal action.
That is, the i
l ALDERSON REPORTING COMPANY, INC.
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8 1
expansion of the pool.
2 The question of adequate spent fuel storage for the 3
remaining 40-year life with the license I misstated myself --
4 for the remaining life of the 40-year license, remains a g
5 problem for the Licensee, regardless of the outcome of the R
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6f pending license application.
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7 The reactor is operating under a 40-year license N
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granted in 1962, and no extension or other modification of the d
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term of the license has been requested of the NRC.
The further 10 federal action being requested by the Licensee is merely the 3j 11 authority to add the three additional storage racks.
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12 The Licensing Board's mischaracterization of the 5
r~'3d 13 effect of the pending application for license amendment cannot be
[Us un 14 used to bootstrap, to include continued operation within the g
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15 definition of the further federal action now being considered 16 by the NRC.
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The Commission in the Seabrook decision placed the
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5 18 matter in its proper perspective when it stated that a NEPA 3
19 analysis "should focus on the proposal submitted by the i '
M 20 private party rather than on some broader but ill-defined 21 concept extrapolated from that proposal," and that is indeed 22 what the Licensing Board has done here.
23,
MS. KOHL:
Mr. Gallo, what happens when the off-i 24 load capacity of the facility is exhausted?
I assume that
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25 would be mid-1984?
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ALDERSON REPORTING COMPANY. INC.
9 1
MR. GALLO:
Well, under current estimates, it would 2
be
'84,
'85, if in the interim no other arrangements were made 3
to either send the fuel to a DOE installation or to transship 4
it to another reactor like Palisades or to -- if away-from-o 5
reactor installations like Barnwell is establisTed in the mean-Ae j
6 time.
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7 Assuming that none of those things happen, then the Kj 8
offload capacity would be exhausted by about 1984,
'85.
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9 MS. KOHL:
What's the effect on the operation of the 10 plant?
Does the plant shut down?
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11 MR. GALLO:
Well, at the..oint in time when the fuel
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12 that is in the reactor core becomes used up, then it would be 5
I-ssE 13 necessary to shut the plant down, yes.
But that assumes, as I m
l 14 pointed out, that none of the other intervening possibilities 2
15 have occurred.
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16 Now the conclusion limiting the definition of A
g 17 l further federal action to only the action of expanding the 5
18 capacity of the spent fuel pool is supported in this case by 6
h 19 the Notice of Hearing issued by the NRC.
It recites only that i
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20 the proposal involves the addition of three racks to the spent i
21 fuel pool.
No mention is made of continued operation.
The 22 cases cited in Licensee's Brief and Reply Brief clearly hold 23,
that a licensing board's jurisdiction and thus the scope of 24 the proceeding is controlled by the Notice of Hearing.
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25l Moreover, Appeal Board precedent supports limiting I
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i ALDERSON REPORTING COMPANY, INC.
10 the scope of the proceeding to just the issue of fuel pool 1le 2l expansion.
I am, of course, referring to the Prairie Island 3
and the Trojan cases.
Disagreement exists concerning the 4
proper application of these cases to this proceeding.
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Licensing Board and the Intervenors assert that the Appeal Board 0
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excluded continued operation from the scope of the NEPA review R
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in those cases solely because a prior NEPA review supporting sj 8
the issuance of the facility operating licenses had been per-I d
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9 formed.
We maintain that in addition the Appeal Board rejected 5
10 continued operation because it concluded that such operation, i
j 11 as in this case, is a coincidence of the action of expanding 3
g 12 the capacity of the reactor spent fuel storage pools.
The 3
sd 13 disagreement is sharply delineated in the briefs for this
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14 Board's decision.
2 15 CHAIRMAN MOORE:,Mr.
Gallo, is it possible to reach U
j 16 the question of whether an EIS would be necessary for i.ther A
6 17 :
the spent fuel pool or continued operation without first E
5 18 the Staff's environmental assessment being placed in the record
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19 and tested in the hearing process?
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20 MR. GALLo:
certainly not for continued operation.
I 21 i You need a factual basis, in my judgment, for determining 22 l whether or not 10 years of continued operation found by i
23 l Licensing Board to be appropriate for consideration involves I
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24 l significant impacts, environmental impacts significantly affecting l
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Q 25 l the environment.
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i ALDERSON REPORTING COMPANY, INC.
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11 1I On the question of the expansion of the pool alone, I l
N 2l think it is possible, because of the prior precedent of the 3
20 to 40 fuel pool expansion cases, all of which have held that 4
there has been no appreciable impacts, or rather, they have 5
g been negligible.
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6l CHAIRMAN MOORE:
Are those hearings res judicata here, 7l E
2 or do they collaterally estop, showing something different in E!
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9 MR. GALLO:
We think they do not.
I think they do not.
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g 10 The point it gets to, though, is whether or not the Licensing z
II Board improperly asserted its jurisdiction in deciding this 3
j 12 question before it saw the EIA, and on that point I think that E
13 it properly was advised by the parties and, indeed, by the NRC 3
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. Staff that an environmental assessment and negative declaration, g
15 much like had been filed in the other cases, was an upcoming m
j 16 document to be filed in this case.
And on that basis, I think
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I0 MS. KOHL:
What is the exact source in that record I.
19 9
of that first prediction that an EIA would be forthcoming?
Did M
20 that originate with the Staff or from the Applicant, or from II some other party?
And if it originated from the Staff, do you 22
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consider that appropriate?
l MR. GALLO:
Well, I can't give you a page number A
to the transcript, but it's my recollection that that point was 25 made during the oral argument, the prehearing conference on l
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ALDERSON REPORTING COMPANY, INC.
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December 5, by the NRC Staff.
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2k MS. KOHL:
By the Staff or by -- my perusal of the 3
transcript indicates that it was Applicant's counsel who first 4
injected that prediction into the record.
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MR. GALLO:
Well, that may well leave been.
That was S
6, based on my assumption that the NRC Staff was going to prepare I
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7 the same sort of document that had been prepared in the prior Nj 8
cases.
If that's the order in which the comments were made, I d
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think the controlling statement is any statement by the NRC 3
10 staf f confirming that particular point.
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Il MS. KOHL:
Do you think it's appropriate for anyone 3
I I2 to proceed on that kind of assumption?
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( jg 13 MR. GALLO:
I do in this case, yes.
I think that it h
14 just wasn't an isolated comment.
I think the surrounding circum-I j
15 stances provided a valid basis for the Licensing Board to make z
16 that judgment.
After all, it had no reason to doubt that the g
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17 Staff would not do what it said it might do, and what it had N
I w2 18 done in 50 other cases, or whatever the right number is.
But a P
"g 19 good many, nonetheless.
l 20 So I think it was appropriate for the Board to make 2I that judgment.
s 22 CHAIRMAN MOORE:
Do you believe that spent fuel cases j
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23 can be treated effectively generically?
One spent fuel is the 1
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24 same as another spent fuel pool case?
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MR. GALLO:
1? the Commission in its wisdom had t
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ALDERSON REPORTING COMPANY, INC.
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1 decided to come up with a model spent fuel pool and a model spent I
2l fuel expansion process and proposal, then it could have treated s,
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it generically.
I mean it's arguable that each pool is a little 4
different, it has different types of fuel involved, different g
5 dimensions of the pool.
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Indeed, the pool at Big Rock is inside containment.
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lot of others are outside containment.
So it's possible to say Al 8
-- to hypothesize that the effects would be different, but I d
9 think that given all the circumstances in this case, the Board Z0 y
10 did the right thing because, after all, what could have happened z
11 here I mean we still do not have a Safety Evaluation Report 3
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12 from the Staff, and I assume we still would not have had an fs =3
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13 Environmental Impact Statement.
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I4 The Board would have sitting, knowing what it thought u
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about the question of scope, and wa!. ting for the Staff to issue
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We are talking about more delay to the process.
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I think the Board exercised its discretion judiciously in not l
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18 waiting.
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I9 MS. KOHL:
Those points that you have just made k
20 address the issue of timing.
Where is the factual support in 2I this record for the statements made in your briefs that this 22 particular application for spent fuel pool expansion has no 1
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significant environmental impacts?
Is there any factual basis, i
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24 or again is this an assumption?
25,
Ma. GALLo:
There is no factual basis aside from the l
l ALDERSON REPORTING COMPANY, INC.
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environmental assessment that the Licensee itself submitted to b
2 the NRC Staff as a basis for the NRC's work and its environmental 3
appraisal.
4 That assessment indicates that the impacts are not e
5 significant, but there is no federal document that suggests that.
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6 Turning to --
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7 DR. BUCK:
Mr. Gallo, was that discussed at the E
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hearing, or challenged at the hearing?
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9 MR. GALLO:
It was not.
There was no evidence taken Y
10 at the prehearing conference at all.
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11 Now although the Intervenors joined the issue d
12 aggressively of the meaning of Prairie Island and Trojan, they E
I 13 were unable to shake the case law that supports Licensee's (s /5 j
14 major premise, namely that in defining the scope of further 5
2 15 federal actions involving circumstances where the original action 5
g 16 was taken prior to the effective date of NEPA, the relevant M
g 17 inquiry is whether the amendment sought significantly affects 5
18 the environment, and not whether the original action was
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19 preceded by a NEPA review.
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20 One of these cases I am referring to is the San 21 Francisco Tomorrow v.
Romney case.
There HUD approved an urban 22 development plan for federal financing and signed a loan agree-23 l ment and grant contract with the city development agency f'"]
24 before the effective date of NEPA.
Subsequent to the effective
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t 25 ' date of NEPA, contract amendments were sought to increase I
ALDERSON REPORTING COMPANY, INC.
15 I
federal funding to provide for the rising costs of land
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2 acquisition and other matters.
3 Significantly, in determining whether the federal 4
action was a major federal action requiring an Environmental 5
Impact St:tement, the court looked only to the post-NEPA e
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approvals required of the government.
The fact that no prior R
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7 NEPA review had been conducted with respect to the original Nj 8
plan did not influence the court's judgment on this question.
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Jones v.
Lynn, Westside Property owners t 10 Schlesinger are in accord with this principle and, indeed, l
g 11 similarly in Big Rock, the relevant federal action, indeed 3
y 12 the only federal action :alled for, is the post-NEPA approval
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3 13 of installing three additional fuel racks to the Big Rock pool.
Ja ag 14 Now if, despite these arguments, the Appeal Board 2
15 believes that the further federal action in this case includes 10 j
16 years of continued operation, or at least that's within the W
d 17 I scope of the proceedings articulated by the Licensing Board, 5
5 18 then such operation should nevertheless be excluded because
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to do otherwise would constitute a retroactive application of l
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20 NEPA.
When the operation of a facility such as Big Rock has 21 been fully licensed long before the effective date of NEPA, a 22 rebuttable presumption arises that subjecting its operation to s
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NEPA scrutiny would involve a retroactive application of the
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24 s t a tu t e'.
25; The Board, in much the same manner as federal courts, i
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ALDERSON REPORTING COMPANY, INC.
16 1 :
recognized and accepted this burden by attempting to avoid
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2l the bar on retroactivity by distinguishing the circumstances of 1
3 this case.
4 Unfortunately, none of the cases relied upon by the e
5 Board support its position.
The case it stresses is the h
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Minnesota PIRG v.
But: case, and it relies on this case to support 2
7 its notion that continued operation is within the scope of N
8 the spent fuel pool expansion case.
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9 As explained in our briefs, this case falls into what Y
10 we call "the continuing federal project" line of cases, and as 3l 11 recognized by the Licensing Board in this case, and the 3
y 12 commission in seabrook, this line of cases is inapposite to
}h 13 NRC licensing activities which involve solely the licensing of x
'A.i 14 private enterprises.
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$j 15 New controversy exists over the proper interpretation
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j 16 of Butz.
Intervenors stress the fact that part of the further M
6 17 federal action requested involved contract extensions and 5
18 modifications -- activities similar to license amendments.
5 19 '
However, in my judgment, the court clearly was persuaded 20 by other facts to conclude that an EIS was required.
The 2I situation involved timber cutting in federally-owned lands 22 in the Boundary waters of northern Minnesota under the 1
23 administration of the U.S.
Forest Service.
Timber sales to
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24 private companies were effected prior to NEPA, but the couYt x_ /
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25l found that there was significant federal involvement in post-NEPA I
i ALDERSON REPORTING COMPANY. INC.
17 1
activities under the ongoing timber contracts.
2 Now to quote the Court in what I think is really the 3
dispositive paragraph in what is a somewhat ambiguous opinion, i
4 it's on page 1322, Volume 498 of the Federal Reporter, in the e
5 second column.
It says:
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6 "The Forest Service has been significantly R
7 involved with these timber sales since January 1,
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8 1970, the effective date of NEPA.
Its contracts d
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require it to, among other things, approve i
g 10 locations of timber roads, logging camps and E
j 11 buildings, mark the trees to be cut, and negotiate 3
y 12 payment fo r the timber cut.
Obg 13 "In addition, it extended six of the sales m
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14 after the effective date of NEPA and made contract 2
15 modifications with the consent of the purchasers of g
16 seven of the sales."
6 17 ll It is this juxtaposition of these sentences that leads 5
18 me to conclude that the court primarily relied upon the facts 5
19 showing continuing federal involvement on a federal project as n
20 being the persuasive reason why an EIS was required here, and 21 it did not rely, but simply pointed to in addition, the 22 contract modification and contract extension actions as a bacis i
23 l for requiring the EIS.
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24 In this case, the consideration of pre-NEPA impacts i
25,
is impermissible, and the post-NEPA impacts are, as I have i
ALDERSON REPORTING CCMPANY, INC.
I 18
/'s 1l indicated, under NRC precedent, insignificant.
No EIS is s_/
2 warranted and the Licensing Board's contrary order should be 3
reversed.
4 One final point and I have kind of touched on it e
5 in some of the questions that were being asked -- it is j
6 our view that if the Licensing Board is right on the scope of E
I 2
7 this proceeding, then in directing the Staff to prepare an EIS
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was incorrect because it was inconsistent with NRC regulations.
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d 9
Clearly, as a first step before deciding whether or not an EIS 10 is appropriate, the Staff would have to prepare an EIA based E
g 11 on the 10 years cons:nued operation anf. expansion of the fuel 3
g 12 pool.
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O 13 CHAIRMAN MOORE:
Mr. Gallo, what is the standard to m
l 14 be applied in judging whether an action significantly affects n
2 15 the environment?
16 MR. GALLO:
Well, it's a subjective judgment, to some g
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17 extent, and it's also an overt judgment based on the experience U
18 of the NRC Staff dealing with these kinds of cases and reactor d
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I 19 cases.
R 20 Indeed, the court in the Trinity case, which was 21 trying to decide whether those impacts were significant enough 22 to support the requirement of an EIS, as opposed to an EIA, i
23 !
and whether or not you had to consider alternatives, had the 24l same question.
I think the best answer I can give you is I i
25[
don't believe there is a legal standard per se.
It's just one f
I ALDERSON REPORTING COMPANY, INC.
19 1
of reasonableness under the facts as they are developed.
O 2
Now I ought to point out the Licensing Board's 3
reliance on calvert cliffs and Issac walton League as a basis 4
for finding as a matter of law continued operation would require e
5 an EIs is just misplaced.
I don't think those cases dealt with j
6 that issue at all.
7l E
R I would like to touch briefly the question of sectidn 1
N 8
10 2 ( 2 ) ( E ).
The question of whether alternatives need be d
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considered in the context of an environmental impact appraisal
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10 has been adequately briefed by all the parties, and I urge
$l II the Appeal Board, assuming it agrees that the Licensing Board it j
12 erred in its EIS decisics, to decide this question.
The issue 5
h 13 should not be remanded to the Licensing Board.
I 14 Now on the assumption that this Board will decide g
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interpretation by the Dairyland Licensing Board of the A
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I7 Trinity case that I have referred to.
The Dairyland Board N
l 18 specifically held that all that is needed to invoke the E
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application of Section 10 2 ( 2) (E) to an EIA is " differing L
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l 20 impr. cts on the environment whether or not they be significant."
2I That's in the slip opinion, on page 52.
22 This holding simply cannot be correct.
If it is,
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23 all EIA actions would require the consideration of alternatives, l
24 l
q a result the Trinity court did not wish to reach.
It should be
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'N,y' 25 emphasized that Trinity was confronted with a significant federal.
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ALDERSON REPORTING COMPANY, INC.
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project involving 20 or more city blocks in Manhattan.
Although
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the impacts may not have been sufficient to warrant the prepara-k 3
tion of an EIS, they were appreciable.
Certainly more than the 4
negligible environmental impacts found for the spent fuel pool e
5 expansion action in Trojan.
This is the Appeal Board's decision 0
l 6!
in Trojan.
The Dairyland holding would surely, in the words R
R 7
of the U.S.
Supreme Court, "trivialize NEPA," because the N
8 consideration of alternatives would be required in all ases 1
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9 involving license amendments, regardless of the significance 10 or lack thereof, of environmental impacts.
I j
II l For this and the other reasons set forth in our briefs, 3
Y I2 the Board's question that it posed to the parties and asked to
=3 13 be briefed, should be answered in the negative.
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I4 MS. KOHL:
Mr. Gallo, you were not able to give
$j 15 any particular guidance with respect to Mr. Moore's question x
16 about what is the standard for significant impact.
Can you j
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17 give us any guidance on the appreciable impact standard that 5
18 you have just referred to under Section 102(2)(E)?
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MR. GALLO:
Again I think that it is a judgment call M
20 based on the facts and -- if I were going to look for a legal 2I standard, I would have to say it would have to be a reasonable 22 standard based on the facts.
I think the Trinity court was
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able to enunciate in that decision.
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DR. BUCK:
Mr. Gallo, you may not be able to answer 3
this yourself, but perhaps your compatriots may be able to.
4 Has the Big Rock reactor had any amendments to its license?
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MR. GALLO:
Oh, yes.
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6 DR. BUCK:
Have you any idea how many during the 8
7 course of its existence?
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8 MR. GALLO:
Can I have a minute?
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DR. BUCK:
Certainly.
IO (Pause.)
3 Il MR. GALLO:
My project manager doesn't know, but I 3
y 12 would say, based on my own knowledge, it has to be two, three
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Would you ask the project manager if that's l
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Two or three dozen, you say?
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Yes, sir.
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18 DR. BUCK:
Okay.
And that has been since 1962, it l
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was licensed?
M 20 MR. GALLO:
Yes.
2I DR. BUCK:
Okay.
Thank you.
22 Ms. KOHL:
Along the same lines, have there been any
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since 19707 Any, in particular, in which hearings have been 24 involved?
'(})25 MR. cALtO, rhe,e have b,,n a ou,he,si,ce 1,,0, a,d I
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I would say again -- Carl, check me on this -- perhaps a dozen 2
since 1970.
3 MR. LARSEN:
That's about correct, yeah.
4 MR. GALLO:
None of which -- only one involved a e
5 possibility of a hearing, and the h' earing was never held because O
3 6I it was of special circumstances.
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put into effect.
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hearings.
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9 Well, that's all I have.
Thank you.
Y' r.2 10 ORAL ARGUMENT OF JANICE MOORE, ON BEHALF OF E
II THE NRC STAFF.
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I2 MS. MOORE:
Mr. Chairman, shall I begin?
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Yes.
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14 MS. MOORE:
May it please the Board, my name is Janice
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16 The issue before this Board is a simple one.
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y 17 whether the spent fuel pool modification request should be 18 treated differently than other such requests, merely because P
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this plant was licensed prior to the effective date of NEPA.
M 20 The Staff submits that it should not be treated 2I differently.
It is the Staff's position that to do so would 22 constitute an impermissible retroactive applic ation o f NEPA.
23 ;
It is also the Staff's position that the Licensing i
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25 i Environmental Impact Statement.
ALDERSON REPORTING COMPANY, INC.
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2 brief it submitted to you on October 20th, 1980.
3 The difference between the Big Rock facility and 4
other facilities which have received spent fuel pool modifica-1 I
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tions is that Big Rock was licensed prior to January 1st, 1970.
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6 Therefore, no NEPA review was required and none was conducted.
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The Licensing Board, Intervenors, and other s
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participants in this proceeding argue that without this amend-d d
9 ment, Big Rock cannot continue to operate.
They say that this i
10 possibility transforms this independent license amendment action 3_
E 11 into one requiring an Environmental Impact Statement.
They argue
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12 that the s t. a t em e n t must cover the period of continued operation N "
13 which would be allowed by the grant of this amendment.
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15 ing and the present availability or lack of availability of a=
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10 years, Big Rock would have to shut down.
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18 However, this possibility is not germane to the issue h
19 before this Board for two reasons:
20 First, this plant was authorized to operate for a 21 period of 40 years.
It was so authorized prior to the effective 22,
date of NEPA.
An attempt now to require a review of any 23 portion of that. previously authorized period of operation would CN 24 be an impermissible retroactive application of NEPA.
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I 25 Secondly, the focus of this amendment is not on the i
ALDERSON REPORTING COMPANY, INC.
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continued operation of this plant.
This amendment represents
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2 one method of coping with an industrywide problem of spent fuel 3
storage.
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What must be evaluated is whether this method of e
5 spent fuel storage significantly affects the quality of the 6
human environment.
No one has demonstrated that this action has R
7 such effect.on this record.
No one can make such a demonstration.
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8 An attempt to tie this independent and separate project dd 9l to the operating license of the Big Rock facility for NEPA's z:
10 purposes is a retroactive application of that statute, prohibited Z
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11 by the statute itself and by the case law.
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12 Perhaps the most pertinen. case for this court to
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3 14 v.
AEC.
In that case the court delineated those categories of 2
15 nuclear power plants which would require environmental reviews.
E 16 None of those categories included plants which had received g
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17 operating licenses prior to the effective date of NEPA.
The 2
h 18 court was particularly concerned with one category, and that p"
19 was those plants which had received construction permits, but X
20 not operating licenses prior tc NEPA's effective date.
21 The court recognized that NEPA could not be applied 22 retroactively.
In support of their view, that NEPA reviews 23,
were required for these particular plants, the court pointed
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%_J 25 plant had not, in the words of the court, passed muster before ALDERSON REPORTING COMPANY, INC.
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going into operation.
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2 Using the criterion of the Calvert Cliffs court, then, i
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Big Rock was not one of these projects, but was rather a 4
completed project, since its license had issued prior to NEPA's g
5 effective date.
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0 An attempt now to state that this independent action a
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is part of an uncompleted project is an application of NEPA A
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not permitted by the Calvert Cliffs court or recognized by that d
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court to be impermissible.
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10 This amendment is not tantamount to the issuance of a 3
II new operating license for the Big Rock facility.
The Appeal 3
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. Board has recognized that in the case of license amendments, b.
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The I4 Staff must determine whether this action, that is the installa-
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y 16 affect the plant's environmental impacts to warrant consideration W
17 l of its denial.
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To do this analysis, the Staff must take the wh II 3
environment as it finds it.
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.a n operating nuclear power plant.
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data available to it, and that would be the actual plant 23 operating data.
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From this data it would have to determine whether the
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ALDERSON REPORTING COMPANY,INC.
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impacts to a sufficient degree to warrant the amendment's denial.
2 MS. KOHL:
Ms. Moore, how do you know what the s
3 existing impacts are, -if there is no EIS that had been compared 4
previously on the plant?
5l MS. MOORE:
What is available to the Staff is some g
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18 years of operating data from which it can determine what R
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7 the impacts have been on the environment of this particular s!
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And that is the sort of material that the Y
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3 12 MS. MOORE:
Yes.
The Staff would have to rely on OO
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I4 MS. KOHL:
What rule does, first of all, the
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And also what role does the generic impact statement that was A
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MS. MOORE:
In the 1975 policy, the Commission stated 5
20 that it felt spent fuel storage capacity expansions could be 2I handled in individual cases.
However, it stated to deal with 22 long-range considerations, the Commission would prepare final l
23 l generic environmental statement. 'The statement has been 24
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prepared, and where it would be appropriate to do so, the Staff 25 i would rely on this generic statement.
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MS. KOHL:
Has the Commission ever formally approved
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MS. MOORE:
No, the Commission has not.
4 MS. KOHL:
What effect does that absence of i
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commission approval have on the 1975 policy statement?
Is the E9 3
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8 MS. MOORE:
It is the Staff's position that they do d
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not have to consider those five factors.
Y 10 MS. KOHL:
Why?
E 11 MS. MOORE:
Because the policy statement was self-3 j
12 limiting in referring to consideration of those five factors, (O.?:_
13 in individual spent fuel cases. The policy statement referred
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That generic statement has now issued by the Staff a
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They no longer have to do that.
ax 18 MS. KOHL:
Doesn't the generic impact statement,
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20 prior environmental reviews pursuant to NEPA?
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There is some indication of that in the t
22 generic statement in which it mentions the fact that these 23 ' plants have had a prior generic environmental -- a prior i
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merely because there is not an existing EIS.
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9 CHAIRMAN MOORE:
Excuse me, Ms. Moore.
Has the i
Oy 10 Commission ever either disapproved or approved of the generic z
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I frankly don't know.
I believe that Uj 15 as a usual matter, they are issued by the Staff.
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So I w
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The reason I inquire is, I am pu : led C
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by your response that you say the 1975 interim rule put into n
20 effect by the Commission was self-limiting, and it ceased;that 2I the five factors the Staff was to consider, no longer need be i
22 considered, according to the Staff, after that generic state-i I
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ment was issued.
I am pu== led whether without some Commission t
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Staff, whether the Staff can make that assumption.
Can you give i
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me any othe r-are there any other precedents for that kind of l
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3 MS. MOORE:
Not to my knowledge.
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I can posit an example where the_ day l
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after the interim rule came into effect, the Staff would issue An 3
6 what one might arguably say would be a totally inadequate e
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on the theory of its self-limiting, dispose of the necessity of d
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considering the factors in the interim rule.
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The policy statement the five factors E=
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Those portions could be tested.
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17 CHAI RMAN MOORE:
The very question of deferral is am 5
18 really a question of alternatives, is it not?
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19 MS. MOORE:
If I understand your question, the deferral M
20 of a particular expansion?
21 CHAIRMAN MOORE:
Correct.
Isn't that a consideration 22 of the alternative of closing down the plant, if you defer l
23 ! indefinitely expanding the spent fuel pool, and if you are out l
24 of capacity in the spent fuel pool, doesn't the plant close down?
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25l Ms. MOORE:
without any other methods o f storing spent I
ALDERSON REPORTING COMPANY, INC.
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fuel, it would eventually have to close down, that's true.
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2 CHAIRMAN MOORE:
Well, I go back to my question, that 3
isn't the interim policy statement, which requires the considera-4 tion of the five factors, one of which is whether the question i
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of the deferral of issuing of expanding fuel pools, isn't 0
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that really a consideration of the alternative of closing down E
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MS. MOORE:
If extended for a lengthy period of time, d"
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that may be true.
However, the deferral was only to be until 2
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12 l on a weighing and balancing of those five factors, it would be OR 13 advisable to do so.
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referred to the consideration of alternatives.
h CHAIRMAN MOORE:
In your brief, at some point, you
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end, you state that it is Staff's present intention to consider
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20 the Staff will be doing.
l 21 MS. MOORE:
That's correct.
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What alternative, if you know, what i
23 '
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Mr. Chairman, before I answer that I
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that question, I realize that I,
in beginning my argument,
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for rebuttal.
May I reserve that?
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CHAIRMAN MOORE:
Certainly.
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MS. MOORE:
Thank you.
O 6
In answer to your question, the Staff would intend R
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to consider those alternatives which it traditionally has E
8 considered; that is, other methods of spent fuel storage, such d
9 as away-from-reactor storage in the alternative of doing nothing.
2 Oy 10 CHAIRMAN MOORE:
Which is essentially a consideration E
h 11 of need for power, is it not?
E f
I2 MS. MOORE:
No, it is the Staff's view that it is 3
j 13 not a consideration of need for power.
What it is, is a s%-./ z l
h I4 consideration of what would happen were the reactor to shut 5
g 15 down, since you have an existing operating reactor that would z
j 16 j be that the power from that reactor would have to be replaced.
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power.
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CHAIRMAN MOORE:
Thank you.
5 20 l MS. MOORE:
I notice that my time is out.
May I have 2I a few more minutes?
22 CHAIRMAN MOORE:
Certainly.
We interrupted you 23 sufficiently to entitle you to more time.
[J) 24 MS. MOORE:
Thank you.
25 The use of operation or the effect of an amendment l
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ALDERSON REPORTING COMPANY. INC.
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on operation as a determining factor in whether to prepare
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2 an environmental impact statement trivializes NEPA.
Many s,,
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A great many of them 4
are minor amendments.
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However, many do have effects on operation.
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operation is the determining factor, then there is always the R
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risk or the possibility that an environmental impact statement N
8 8
would be required on a minor amendment.
The fact that a N
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previously existing EIs on a particular plant is available doe's I
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10 not obviate the problem.
Over the 40-year life of a plant, 3_
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y 12 assessed, or circumstances originally assessed could change.
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13 Even if these minor amendments were tangentially m
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15 there would automatically be a requirement for an EIs to 2a=
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sierra club wished to avoid when it held that 20 appropriatians requests need not be accompanied by environmental 21 impact statements, and this is also pardon me.
The 22 Eupreme Court rejected in that case the Court of Appeals' q
23 holding restricting the need for such statements to programs 24
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25 The Supreme Court po'inted out that without the i
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ALDERSON REPORTING COMPANY, INC.
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I 11 appropriations request, those programs could not continue.
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t'.e re f o re, an EIS would be required with every appropriations 3
req.ast, were the underlying program significantly to affect 4
the quality of the human environment.
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The situation is very similar to what would happen b
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In summary, then, the Staff concludes that this --
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impermissible as a matter of law.
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11 MS. KOHL:
Ms. Moore, is it your position that 3
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12 focusing on the spent fuel pool expansion itself, apart from g
j 13 the continuing operation that it might permit, is it your V=
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15 itself would be prohibited under either NEPA or the Commission's aa j
16 current or proposed regulations or any other law?
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MS. MOORE:
If it were determined that this action w
Em 18 significantly affected the quality of the human environment, an 5
19 EIS would not be prohibited under law on the spent fuel pool n
20 expansion itself and its impacts.
21 MS. KOHL:
Well, let's assume there is a finding that 22 it's not a major action with a significant impact.
Would 23 the Licensing Board still be prohibited from requesting one, 24 anyway?
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25 li MS. MOORE:
If I understand your question, is that ALDERSON REPORTING COMPANY, INC.
34 I
ultimate finding to be made by the Licensing Board?
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2 had hearings at that point, or are you referring to the Staff's s_
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MS. KOHL:
Let's assume the Licensing Board itself n
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concludes that this is not a traditional major action with a R*"
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significant impact, but it, for whatever reasons, requested an ni 8
n EIS to be prepared.
Is that prohibited by any law or regulation?
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9l MS. MOORE:
The standard in 10 2 ( 2) (C) of NEPA is 3
that Environmental Impact Statements shall be prepared for those 3_!
II major federal actions significantly affecting the quality of 3
12 E
the human environment.
If that finding is not made, if this is NE 13
}g not a major federal action, NEPA would not require --
MS. KOHL:
Would not require, but would it prohibit it?
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MS. MOORE:
I don't believe that it would prohibit it.
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there is somewhat of a risk, for a line has to be drawn somewhere, z
18 which actions require Environmental Impact Statements and which H
19 8
do not, and the Commission's regulations attempted to do that O
by adopting NEPA standards.
21 There is flexibility in those regulations to provide 22 for Environmental Impact Statements, however.
23 MS. KOHL:
Let me shift gears a little bit.
Is it l
l the Staff's position that a spent fuel pool expansion could V
25 i
never be considered a major action with a significant impact on ALDERSON REPORTING COMPANY, INC.
35 1!
the environment?
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2 MS. MOORE:
No, that is not the Staff's position.
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To conclude my summary, then, this license amendment 4
must be treated as a separate independent federal action, and e
5 the' analysis must be confined to whether the impacts of this A9 j
6 license amendment would affect the already existing impacts to a R
7 sufficient extent to warrant consideration of the amendment's s
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denial.
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10 amendment on operation to be the determining factor in whether 3
j ll to prepare an Environmental Impact Statement, would trivialize B
d 12 NEPA.
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14 generic problem of spent fuel storage.
It should be treated in the t
2 15 same manner as similar amendments used to accomplish the same am j
16 purpose.
I 17 l Therefore, no evaluation of continued plant operation N
5 18 should be required in an Environmental Impact Statement.
The n
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19 Licensing Board's ruling on this subject should be reversed.
n 20 Thank you.
21 MS. KOHL:
Ms. Moore, one further question about 22 Section 10 2 ( 2) ( E).
I don't believe you addressed yourself to 23,
that yet.
Assuming that 10 2 ( 2 ) (C ) does not require the prepara-24 tion of an EIS or a consideration of alternatives, and assuming
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consideration of alternatives in this case?
2 MS. MOORE:
It is the Staff's position that it does not.
'9 3
MS. KOHL: 'What about the proposed regulations that 4
the Commission now has under consideration?
Do they not require e
5 consideration of alternatives pursuant to that statute in an 3e 6
environmental assessment?
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MS. MOORE:
They provide now that Environmental Impact Ml 8
Statements pardon me, Environmental Impact Appraisals must d
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consider alternatives as provided in Section lO2 (2) (E), so i
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10 therefore the limitations in that section would also apply.
3) 11 CHAIRMAN MOORE:
Are you through, Ms. Moore?
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I2 MS. MOORE:
Yes.
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13 CHAIRMAN MOORE:
Before we hear the appellees, we z
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14 will take a five-minute recess.
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15 (Recess.)
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16 CHAIRMAN MOORE:
Is the appellee ready to proceed?
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17 MR. SEMMEL:
I am, sir, but Mr. Gallo is not yet back, wx M
18 (Pause.)
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19 CHAIRMAN MOORE:
Have you coordinated with your M
20 colleagues so that you have divided your time?
l 21 MR. SEMMEL:
Yes, in accordance with the order --
22 I'm sorry, I see Mr. Shea isn't back.
23 (Pause.)
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24 l CHAIRMAN MOORE:
Proceed, Mr. Semmel.
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25 MR. SEMMEL:
Thank you.
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ALDERSON REPORTING COMPANY, INC.
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37 l
1, ORAL ARGUMENT OF HERBERT SEMMEL, ON BEHALF OF l
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2 INTERVENORS CRISTA-MARIA, et al.
3 MR. SEMMEL:
May it please the Board, I'd like to 4
begin with emphasizing just a few of the key facts in this case g
5 which led to the order of the Licensing Board.
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The original license was approved back in 1962 prior I
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7 to the enactment of NEPA and, of course, not only was an K
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Environmental Impact Statement not prepared, but at that time d
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the Atomic Energy Commission operated on the belief that it was z
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16 This is not my view, this is not the view of the Staff, it's 2
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3 18 the Licensee stated in their application.
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application with a statement, " Consumers Power Company plans to n
20 increase the storage capacity of the spent fuel pool of the 21 Big Rock Plant to allow continued plant operation."
l 22 There is obviously no other reason other than the 23 problem of continued operation after 1981, or perhaps 1984, l
24 l for the particular action requested; that is, expansion of the i
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pool.
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1 The third matter I would like to emphasize is the l
2l limited nature of the Environmental Impact Statement ordered 3
by the Licensing Board.
It applies only to the extended operation 4
which is made possible by granting of the license amendment.
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5 eliminates consideration of any issue which cannot be altered 3
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construction design, site location, what type of reactor.
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are all matters that are foreclosed, they are fixed, the plant is d
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there.
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I cannot even specify all of those because we E
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16 l We could suggest, however, some obvious ones.
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d 17 j example, what is the effect on the environment of the liquid N
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What is the effect
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19 on the environment of the continuous venting into the air from 5
20 the plant?
What.are the effects of the fact that the plant 21 uses a special kind of enriched plutonium fuel bundle?
What 22 are the effects which the storage of those in the spent fuel pool 23, might have, which might be different or unique from other plants?
24 DR. BUCK:
Mr. Semmel, supposing this amendment didn't I
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25 l come up at this time, what would be the effect of plant I
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operation in the future without the amendment?
I mean assuming 1
2l now they hadn't filled their tank, what is the effect?
Anything 3
different from what's been happening in the last 10 years?
4 MR. SEMMEL:
No. Presumably there would be no difference, g
5 except to the extent that the cumulative impact might cause 8
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7 DR. BUCK:
But they are licensed to do that.
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8 MR. SEMMEL:
They are licensed to do that.
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difference is that because now after NEPA, they have come in and 2
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That's a judgment on your part, is it not?
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Yes, that's correct.
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14 DR. BUCK:
Thank you.
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15 MR. SEMMEL: No, let me take that b a c k'.
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h 18 facility, be it for 10 years or 20 years or 40 years, itself P
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l, 20 DR. BUCK:
But my point, sir, is that the plant has i
l 2I been licensed for operation for 40 years.
Now what is the 22 change in that operation just because you have a larger storage l
23 capacity?
I'm talking only about the operation of the plant now.
24 Is there any change in the daily effect of the operation of that O) 25 l plant because of the change in the fuel pool?
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MR. SEMMEL:
Other than possible cumulative effects 2
on the enrironment 3
DE BUCK:
But that would be the change without the 4
change in the pool?
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MR. SEMMEL:
They would be the same, yes, that's E
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That's correct.
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But that really raises, I think, the z
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The purpose of NEPA is to 3
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However, NEPA
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But what the application here triggers is that
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The effect of the action here is to allow the plant n
20 to coninue to operation, and that is why that must be assessed.
21 MS. KOHL:
Mr. Semmel, why do you believe that the 22 Environmental Impact Assessment or appraisal is inadequate here?
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Why do we need an EIA as opposed to an EIS?
24 MR. SEMMEL:
We submit an EIS is needed here.
25 MS. KOHL:
Well, why would we need an EIS rather than an ALDERSON REPORTING COMPANY, INC.
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2f MR. SEMMEL:
An EI--
NEPA talks in terms of requiring d
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impact on the environment, and major federal action which is e
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6l An Environmental Impact Statement here, we would R
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submit, would not be of any particular value because it has s
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already been held as a matter of law, going back to Calvert d
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Cliffs and universally recognized that the operation of a power Y
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2 17 i affects the environment.
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How can you say --
h 19 DR. BUCK:
Excuse me.
Go ahead.
a 20 l Ms. KOHL:
How can you say that at this point in time 21 when we have had nothing entered into the record, either an 22 appraisal or an impact statement, that the Licensing Board --
23 ! what did they have as the basis for their decision, factually?
r 24 i MR. SEMMEL:
Well, let me just suggest in the CEQ l
C_ s) 25 l regulations on this subject -- this is Section 1501.4 of 40 CFR --
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l 42 1 i CHAIRMAN MOORE:
Does that regulation, Mr. Semmel, 2
apply to the Nuclear Regulatory Commission as an independent 3
regulatory agency?
4l MR. SEMMEL:
Yes, the CEQ is given authority under g
5 NEPA to oversee all federal agencies, whether independent or N
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part of -- directly part of the Executive Branch, in the R
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application of NEPA.
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MS. KOHL:
Is the NRC part of the Executive Branch?
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MR. SEMMEL:
No, it's an Ind ep ende nt a ge ncy, but I say i
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Ed 13 CHAIRMAN MOORE:
Do you have any authority?
Can you l
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15 MR. SEMMEL:
I will leave that to Mr. Shea, who is a=
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17 of the CEQ.
18 MS. KOHL:
well, then, could you answer my ques ion E
19 that I asked?
In particular, what was the factual basis for n
20 the Licensing Board's decision to effectively reject the EIA 21 before it was even prepared?
Is there any factual basis?
And 22 where is that appropriate?
23 MR. SEMMEL:
Well, that was on the assumption, I 24 l believe, that and I believe it's been verified by Ms. Moore J) 25 that the Staff EIA would not look to the operation of the plant,
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that they were going to prepare an EIA only on the limited l
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operation.
And what they have really done, it seems to me, is 4
facilitate the proceeding, because once they determine that as a e
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the Staff has said our assessment has is required as to R
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operation -- our assessment will not even look to the question of A
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future operation.
We don't think that's within the scope of 4:
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That's their position -- then the Licensing i
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10 Board facilities the whole thing by saying to the Staff, "No, El 11 you're wrong.
It is within the scope and we want an 3
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And I think it 5
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2 18 this Board orders the assessment to address the operations of 5
19 the plant.
Then we are going to have the Licensing Board looking 5
20 at it again and saying the operation of this plant -- the l
21 operation of a nuclear power facility, we would submit, as a l
22 matter of law has a significant impact on the environment.
I 23 And I think that is also illustrated by the regulations 24l of the Commission itself which require that when an operating l
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CHAIRMAN MOORE:
Mr. Semmel, it is your position, as I 4
understand it, that a full EIS is required here by NEPA, and you 5l
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reach that by saying in effect that without this amendment, the O!
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The sole purpose of this amendment is to z
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Mr. Gallo suggested --
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Is it your position, then, that NEPA 3
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MR. SEMMEL:
If the operation of the plant has never 15 g
previously been assessed, and if the amendment is necessary for
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Aren't all license amendments x
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MR. SEMMEL: I don't think they all may be necessary.
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They may find they want to make some minor changes in operations i
21 for efficiency --
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CHAIRMAN MOORE:
But as a matter of law, if the NRC I
23l orders a license amendment, for instance, and it is not made, l
can the nuclear power plant continue to operate?
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MR. SEMMEL: No, if the NRC orders a license
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CHAIRMAN MOORE:
In that case, would an EIS be 2
necessary even if it's minor and has no significant effect on 3
the environment because it would mean continued operation of the 41 plant?
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MR. SEMMEL:
No, I was answering the question no, O
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That's correct.
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CHAIRMAN MOORE:
What's the difference?
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22 DR. BUCK:
On the basis of a federal order.
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MR. SEMMEL: On the basis of a federal order.
I 24 DR. BUCK:
That's a federal action, because it has an s
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MR. SEMMEL:
It would depend on the particular action 2l and whether --
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3 DR. BUCK: Yes, but what you are saying, you'd have to 4
write an EIS.
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No, I would distinguish it in this sense:
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10 DR. BUCK:
But any amendment
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okay?
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16 MR. SEMMEL:
Yes.
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17 on. BUCK:
The agency or NRC looks at this thing, they l
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okay?
And they say that it is necessary.
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That amendment is carried out.
Without it, NRC agrees that the X
20 plant is not safe and it has to shut down.
21 Now, according to you, that has to have an EIS for the 22 whole operation.
23 MR. SEMMEL:
It would have to have an EIS for the whole i
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operation if there had never been an EIS on the operation in the w/
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Oh, no, it has the effect the plant can 2
operate without that.
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All right, but 4
DR. BUCK:
Independent of whether it's got it, it may e
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have an EIS before the plant can operate again.
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No, you would not -- if the plant has d
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But NEPA does not require retrocctivity sE
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Right, it does not.
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16 DR. BUCK:
Just seeking an amendment to change a pipe 2
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No, that's right, it does not make NEPA
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20 means that we have an action in 1970 to an action now in 1981.
21 The effect of that action -- if the effect of that action is 22 to allow continued' operation of a plant that would otherwise r
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24 DR. BUCK:
That's true with an environmental statement
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25 ALDERSON REPORTING COMPANY, INC.
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MR. SEMMEL:
Wait.
But the question -- yes, that is 2
correct, Dr. Buck.
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once, we remove all of that from the subsequent assessment and R
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we look solely at what is new.
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is we have changed from one kind of pipe to the other.
We look dd 9
only to the effect of that pipe.
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That is retroactive application to the 3
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Its. operation has been assessed.
It passed E"
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that assessment.
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And as I under-j 15 stand NEPA, it specifically stated this is not to be made z
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started and has passed muster, as the court said?
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If that isn't 22 making NEPA retroactive, I don't know what is.
t 23 l MR. SEMMEL:
Well, it's not retroactive for two reasons, 24 both of which connect:
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federal action involved, and in measuring the significance of s
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the effect of continuing the operation of a plant that would not 3
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CHAIRMAN MOORE:
Mr. Semmel, what would happen if"the
$j 15 Licensee now withdrew its application for amendment to its
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Of course not.
2I CHAIRMAN MOORE:
Well, the NRC would have to approve 22 the withdrawal of the application and the inevitable result of 23.
the withdrawal, according to you, would be the cessation of the 24l operation of the plant.
Why wouldn't that require an EIS?
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25 l MR. SEMMEL:
Because I think now we are dealing in a ALDERSON REPORTING COMPANY,INC.
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technical area of internal procedure.
The Applicant comes in, I
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3 If that technically requires the Commission's approval, I would 4
not regard that within this purpose and intent of NEPA at all.
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But you a moment ago said that the 3
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2 15 MR. SEMMEL:
That's right.
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The real impact.
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That's correct.
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The real impact of a withdrawal of P
19 Applicant's license amendment application may well be the shut-20 down of Big Rock Point, and that can only take place if the NRC 21 le ts him withdraw his application.
22 Now on that basis, what I fail to see the difft i
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24 MR. SEMMEL:
Well, I mean I would agree with you that 25l there is a certain sort of surface logic to it, but we don't i
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DR. BUCK:
Why not?
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Because I think, as Justice Holmes once g
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j 16 MS. KOHL:
Mr. Semmel, can an action that is not other-A 17 wise a major action with a significant impact on the environment E
18 become a major action simply by the -- because of the absence of'a I
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20 MR. SEMMEL: No, of course not, but when you measure --
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MS., KOHL:
Isn't that what we have here?
22 MR. SEMMEL:
No, we have here an action --see, I look 23 ;
at it exactly the other way.
That is any spent fuel expansion 24 l which is necessary for the continued operation of the plant is a v
25 major federal action requiring --
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Well, they all ares otherwise let me s_,/
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There may be none.
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14 MS. KOHL:
Before we go any further on this, what Nz 2
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16 MR. SEMMEL:
On 10 2 ( 2 ) (C ).
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17 MS. KOHL:
I have some problem.
Perhaps you could M
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The parties that you represent, Crista-Maria, et I
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as I understand their argument below to the Licensing Board, M
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25l Your brief on appea; to us takes a totally different i
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tack, I believe.
I would like you to respond as to whether or not
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parties can often change their positions on appeal to sustain the r
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I raised a little bit before.
I am still trying to find -- can s\\
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failing to comply with it, the plant would be closed down?
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7 MR. SEMMEL:
To begin with, I would start with the Nl 8
question of whether there had been an EIS on operation previously, d
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10 encompassed within that would not have to be duplicated, and so 3) 11 the question would -- we would then look to the amendment that 3
N I2 has been proposed.
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I'm sorry, I thought previously you m
h 14 answered that a nonmajor federal action with no significant 5j 15 environmental impact could not become one simply because there
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17 MR. SEMMEL:
That's correct.
That's correct.
But E
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Whenever P
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the effect of the -- whenever the effect of the amendment is to n
20 permit continued operation of the plant which would otherwise 2I have to close, then you have a significant impact on the environ-22 ment which has to be assessed unless it has not been -- unless it 23 has already been assessed.
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CHAIRMAN MOORE:
If I accept your argument, is there l
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not a very serious danger of NEPA then becoming an impediment to I
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the licensee's coming forward with improvements in the operation 2
of their plant and seeking license amendments for them, because s_
3 of the very fact that they will have to go through an environ-4 mental impact a full Environmental Impact Statement for all --
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and what I'm talking about now are the older plants in this 8
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country that have not had EISs.
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7 MR. SEMMEL:
That's right, it would only apply, to Nl 8
begin with, to the older plants, d
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CHAIRMAN MOORE:
That group o f plants.
fg 10 MR. SEMMEL:
I don't believe it would be an impediment E
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Only one 3
g 12 case.
That is the case where they serious y believed that an hbg 13 honest look at the environmental impact would dictate that the m
mg 14 plant be closed.
If they are trying to cover up that, then it
$j 15 might be an impediment, and that is what NEPA, once again on z
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17 DR. BUCK:
There is one other major impediment, isn't
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18 there, and that is the total cost of the hearings and the writing A;
19 o f the EIS and all that sort of thing, and the time spent by n
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20 the engineers could be doing something else than writing EIS?
21 There's a lot of impediments rather than just the effect on the 22 environment, to having to go through a set of hearings like this.
23 MR. SEMMEL:
Well, if a licensee seriously believes i
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that an improvement in the plant is desirable, they are in
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actually no worse position than a plant approved after 1970 which ALDERSON REPORTING COMPANY, INC.
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had to go through all this, because they only have to do it
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All plants approved since 1970 do 3 I it.
4 Yes, there would be some little extra expense and time, l
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but if the change they were proposing was of any consequence, I j
6 would hope that they would --
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DR. BUCK:
So they go through a cost-benefit thing n
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and a lot of it would not be done, d
9 MR. SEMMEL:
No, I would hope they would do it 2o g
10 DR. BUCK:
But they'd go through a cost-benefit, 3
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12 MR. S E MMi'L :
Their internal cost benefit.
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Sure.
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h 14 MR. SEMMEL:
It's possible.
It's possible.
But my sj 15 understanding of the public responsibility of operators is that z
d I0 that would be somewhat contrary to what at least their obligation d
6 17 I should be to operate the plant M
18 DR. BUCK:
We're not discussing the capability of the p
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I am just asking what the effect g
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t 21 MR. SEMMEL:
Well, it is certainly possible, as you 22 suggest, that some plant would decide that the improvement that i
23 they wanted to make was so insignificant that the cost of an
N 24 Environmental Impact Statement is not worth it.
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certainly outweigh any particular cost involved.
And in the 1
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2 context of spent fuel, as we have here, I think we realized --
3 and as Mr. Gallo has told us, that this plant will not have to 4
close until 1984 or 1985 if this is not expanded, so that g
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how long it's going to take in this proceeding, will still leave R
7 more than adequate time for a decision.
So that if ultimately N
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the application is approved, the pool can be expanded without d
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E, having to close down the facility, at least temporarily.
y 10 I only have a moment or two more.
I would -- there 3
h II are some points which Mr. O'Neill, since I have been delegated 3
I 12 to represent him, wanted to specifically make, and so I would Db
( jg 13 like to address those now, unless you have any further questions.
m I4 He would like to emphasize that first he would like zj 15 to say that he has brought with him some earth from the area m
d 10 around Charlevoix.
The earth is really special.
In fact, the A
g 17 earth is mine, says the Lord.
We are stewards of the land, N
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of that stewardship.
n 20 His request for NEPA review of the Licensing Board's 2I order to the Staff to prepare an Environmental Impact Statement i
22 is quite reasonable.
It's reasonable for the arguments that 23l have already been presented by myself and for the views
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24 expressed by the Council on Environmental Quality.
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The Council has stated in Section 2 of its guidelines i
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that Section 10 2 ( 2) (C) of NEPA should be applied to further l'~
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2 major federal actions having a significant effect on the 3
environment, even though they arise from projects or programs 4
initiated prior to enactment of the act in 1970. Where it is not g
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important that further incremental major actions be shaped so a
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as to minimize adverse environmental consequences not fully Nl 8
evaluated at the outset of the project.
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10 Power has requested this license amendment.
In denying the E
h 11 amendment, it would cause the reactor to shut down if an 3
N 12 alternative storage was not available.
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14 and the residents of the Charlevoix area have never received 15 the protection of such a review.
There is, therefore, a real j
16 need for an Environmental Impact Statement to make sure that a A
6 17 reluctant Staff fully discharges its duty to safeguard the ua 18 environment.
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To accept the position of Consumers Power and the M
20 Staff on the notice and scope of the proceeding would make the 21 notice an arbitrary and capricious thing.
The notice ignores 22 the real scope of the proceeding.
It is simply too narrowly 23 drawn.
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24 May I say on that point that I didn't get a chance to j
25l address the question of th e scope of the notice, but as this i
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I Board recently said in the Zion case, the notice all issues
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Licensing Board.
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comes back to the factual -- some factual question we have been g
5 talking about, and that is do we look at the true fact, which is N
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6 continued operation?
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If we do, then a notice that we are going to expand MI 8
the spent fuel pool encompasses that.
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brief and simple kind of a-matter, and simply specifies the N
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3) 11 what that encompasses is left by the regulations of 3
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15 moment, the Consumers Power Company's position in this hearing N
j 16 is inconsistent with the position it has taken concerning the 4
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Nac-mandated modifications to the plant.
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18 The utility has requested a risk-benefit assessment of E
19 these major changes, changes that include pqst-accident shielding, g
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20 a technical support center, a recirculating pump trip, and others.
2I It is simply not right that they be granted such a 22 review when it profits them, at the same time that they be 23 !
exempted from a similar cost-benefit study when it is not 24 advantageous.
NEPA reviews and risk-benefit assessment should
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narrow interests of the company.
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The license amendment is a decision before an agency 3
of the federal government, and this decision will affect us, 4
the local residents.
This is a major decision.
I am not a 5
g nuclear physicist, but Calvert Cliffs has clearly show'n there 9
3 6
is no question that reactor operation has a significant R
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environmental effect on the human environment.
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The crux of the case is this:
What does the license d"
9 amendment really do?
The real effect of the amendment is 2
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10 continuing plant operation.
2 II Please do not forget that the abstract environment is 3
N I2 for us a beautiful world section of Michigan.
The shore of jg 13 great Lake Mic'higan.
The land is to the Indians, and we cherish s
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it.
We are only stewards of the land, not masters of the earth.
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Thank you for your indulgence.
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CIIA I RMAN MOORE:
Mr. Semmel, I have one question on A
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I7 i lO2 (2) (E).
Is not our prior case in North Anna dealing with the z
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where we found that the resources at issue in such a matter are M
20 the labor and sta'inless steel that go into the pool, and that no other -- there are in effect no conflicting uses of resources 22 since those are the only resources at issue?
MR. SEMMEL:
Let me partially defer on that one to l
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Mr. Shea, who is going to address that issue, but let me say I 25 am not -- my memory does not serve me as to whether you i
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specifically consider in that case another alternative which was s
2l the alternative that the operation of the plant and provision of I
3 the plant, that is to say no operation is an alternative which 4
should be considered.
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MS. KOHL:
I have one further question with regard to R
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some of the issues raised by Mr. O'Neill and the other parties.
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other contentions admitted into the hearing?
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It is possible that some of the matters 3
j 11 will be addressed, but I think many of the matters, such as 3
g 12 liquid waste disposal and venting might not at all come up under h5j 13 any other contention in this proceeding.
And in any event, NEPA m
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14 requires a specific kind of assessment and not simply putting 2
15 something in issue in the case.
j 16 If there's nothing further, thank you very much.
2 4
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17 ORAL ARGUMENT OF JOHN SHEA, ON BEHALF OF
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5 18 THE COUNCIL ON ENVIRONMENTAL QUALITY.
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19 MR. SHEA:
Good morning, Mr. Chairman and members of gn
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My name is John Shea.
l 21 I will forego a restatement of the position which you 22 have in our brief, and I would like to instead hit a number of l
23 rebuttal points seriatum.
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24 The major question before the Board, of course, is
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what is the scope of the impacts to be addressed and the l
ALDERSON REPORTING COMPANY, INC.
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adjudication of the spent fuel pool expansion 4pplication.
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2l In 1962, the facility was licensed with certain 3
limited capability to operate.
It was limited with respect to 4
its ability to operate without removal from the site of spent e
5 fuel.
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Now with a need for a new federal decision with respect I
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to spent fuel capacity comes the need to assess N
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DR. BUCK:
Excuse me just a moment.
Th2re was nothing d=
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i cg 10 There was at that time an agreement on the part of the federal 3_
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12 for fuel or reprocessing.
N9 13 Now I don't understand what you mean when you say VS l
14 that it was licensed with the consideration of operating as long 2
15 as it had room for spent fuel.
I think that's what you said.
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16 don't understand that at all.
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17 l MR. SHEA:
Well,*I simply mean to say that you can't 5
E 18 simply take a.look at the piece of paper that was handed to the
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It may have received a license that said it had a k
20 40-year term of operation ahead of it, but you have to take a 21 look at the real facts of the industr,y at the time, and in 1962 22 the fact was that particular facility had a certain capability 23,
to store spent fuel.
'N 24 DR. suck:
All facilities have that.
25 MR. SHEA:
And in the industry at that time there ALDERSON REPORTING CON PANY, INC.
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63 1.
was a certain capability for offsite management of spent fuel.
~s 2i DR. BUCK:
No.
Sorry.
,The government was guaranteeing 3
MR. SHEA:
Was there a waste management facility in 4
existence at that time?
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5 DR. BUCK:
The government was guaranteeing at that 9
3 6l time that there would be.
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MR. SHEA:
How was that guaranteed?
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8 DR. BUCK:
Apparently it wasn't guaranteed at all d
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10 MR. SHEA:
My point exactly.
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12 MR. SHEA:
You've made my point. ~
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13 the joint committee and the government DR. B UC K:
z I4 was assuring the applicants that they needed fuel for a certain Nj 15 length of time, there would be waste facilities at that point.
m 16 Now that was not licensed on the basis of the length of time g
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18 was not licensed on that basis.
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MR. SHEA:
Well, Doctor, if you would take a look at n
20 the piece of paper handed to the applicant and some of the 2I representations made by the Atomic Energy Commission to the 22 applicant, but I am afraid that you have to take a look at the 23 ;
facts of the situation.
24 f'"3 DR. BUCK:
Did the license say that this was licensed 25 only as a fuel pool --
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MR. SHEA:
As I said, Dr. Buck --
2 DR. BUCK:
I'm asking what the license said, sir.
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3 It said it was licensed for operation for 40 years, did it not?
4 MR. SHEA:
Please relax, Doctor.
The license said it g
5 was licensed to operate ter 40. years.
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6 DR. BUCK:
Right.
That's the point I'm making.
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MR. SHEA:
The facility had the capability to store N
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spent fuel for a very limited period of time.
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9 DR. BUCK:
You stated that it was licensed --
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At this point in time the federal government 3
h II has to make a decision whether to increase the capacity of that 3
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12 spent fuel pool to allow continued operation.
That's what N3g 13 the Licensee has represented in this proceeding.
And what d8 h
I4 this Commission cannot do, what the Appeal Board can't do, is
$j 15 try to do what was referred to in Minnesota v.
Butz, is isolating z
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The activities of M
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the case:
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20 "We think NEPA is concerned with indirect effects 2I as well as direct effects."
22 And in connection with that point, I refer the Board s
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to the cases of Sierra Club v.
Hodel, Port of Astoria v.
- Hodel, V-N 24 Henry v.
FPC, and the more recent case of Alumet v.
Andrus.
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MS. KOHL:
Are those cited in your brief?
ALDERSON REPORTING COMPANY, INC.
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MR. SHEA:
No, they are not.
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2l MS. KOHL:
Well, the Board would appreciate them.
3 MR. SHEA:
I can provide you the cites, sure.
4 This point that you raised, Doctor, is very related g
5 to the point that the Licensee makes with respect to the notice E
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of hearing.
You can't simply limit the scope of impacts by a R
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piece of paper.
The notice of hearing here cannot override N!
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our regs, which defines the proposal under NEPA and a proposal zo 10 may exist in fact as well as by a declaration that one exists.
ll CHAIRMAN MOORE:
Mr. Shea, are the CEQ's regulations 3
p 12 binding on the NRC?
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5 13 MR. SHEA:
We believe they are.
Obviously this is a da m
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The case g
15 law I did not know that you would want this issue addressed.
x d
I6 Counsel could brief it for you, but the case law on this indicates e
17 that the President can direct even independent regulatory agencies 2
3 18 to observe certain procedural steps.
E 19 Now that much has been acknowledged by the NRC.
What 20 the President cannot do is tamper with the adjudicatory decisions 2I by an independent regulatory agency.
22 And as to the CEQ's authority to regulate the 1
23!
implementation of NEPA, I refer you to NEPA Sections 10 2(2) (3) 24 and 204(3).
25 I would like to dispose of several cases cited by the ALDERSON REPORTING COMPANY, INC.
66 1I Staff and Licensee in their briefs.
3 i 2
First, the Scrap decision.
In that case, the plaintiffs ms 3
never requested that the operations of the railroads be assessed 4
in connection with the environmental assessment of the requested 5
rate increase.
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Denver, that actually is an excellent R
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decision on the need to prepare EISs on major federal actions, Ml 8
that further basic course of action initiated prior to NEPA.
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This is the same type of distinction that can be mado h
I4 with the other cases cited by the Licensee and the Staff.
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15 In calvert cliffs, the court did not interpose a z
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The z
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now a decision has arisen with respect to this reactor that in n
20 turn gives rise to the need to assess the impacts of both normal 21 and accidental impacts from reactor operation.
22 In connection with accidental impacts, I point out that 23,
the council has been engaged in correspondence with the I
{h 24 Commission on that issue and I refer you to the letters of the N-l 25 ;
council dated March 20, 1980; August 12, 1980s and August 14, i
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ALDERSON REPORTING COMPANY, INC.
1 67 1
1980.
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2 The Watch case is an excellent decision.
It involved 3
an attempt to establish a cut-off date for the National 4
distoric Preservation Act, very similar by attempts by Licensees e
5 to establish the cut-off date for NEPA here.
But the court did R9]
6 not accept that argument, and it likened the relevant section of R
7 the National Historic Preservation Act to NEPA, saying there was j
8; no cut-off.
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CHAIRMAN MOORE:
Mr. Shea, I would like to ask you the s a:
10 question that I asked Mr. Semmel:
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p 12 operation of the plant that must be considered, because that
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2 15 operation, why, then, are not all license amendments -- why 16 don't all license amendments require an EIS to be done?
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Okay, let me step back for a moment.
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19 draw with it impacts that would have a significant eff9ct, there.
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20 would be a need for an EIS.
We are not saying that all license 21 amendments necessarily would 44va a significant effect on the 22 environment.
23 CHAIRMAN MOORE:
But all license amendments do, I s
24 believe, as least as a matter of law, indicate that the plant 25 '
can or cannot continue in operation.
ALDERSON REPORTING COMPANY. INC.
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MR. SHEA:
That's a technical point that I am not that O-
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plant.
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But if it is true that every single modification that wou.
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be made to a plant would be essential to continued operation of 9
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7 DR. BUCK:
One that requires an amendment to the Ej 8
license.
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One I'm sorry?
One that requires 3
10 amendment to the license.
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II DR. BUCK:
There may be modifications to the plant 3
y 12 that don't require amendments to the license.
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If that's true, that every license amendment I4 modification is essential to the continued operation of the plant.
a g$ 15 we would say yes, you would have to take a look at the impact z
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that by reference --
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20 CHAIRMAN MOORE:
If that's CEQ's position, why then II is it not a retroactive application of NEPA, since the plant 22 was licensed for a longer period of time, a post-NEPA period of i
23 i time?
24
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MR. SHEA:
Then you are simply coming back to the v
25 argument that we have already discussed, and the cases we have I
i ALDERSON REPORTING COMPANY, INC.
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69 1
already discussed, which is.you have a new intervention by the
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federal 2
government in this activity.
It is a further action by 3
the federal government post-NEPA.
It is not a retroactive 4
application.
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CHAIRMAN MOORE:
What is, then, a retroactive applica-X9 3
6l tion of NEPA?
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7 MR. SHEA:
A retroactive application of NEPA would be Nl 8
where the NRC unilaterally intervened in plant operations and d
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10 reactor that had been licensed pre-NEPA and had been operating 3
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g 12 prepared on the continued operation of that reactor, where there A5
( jg 13 has been no -- the key is let's put it this way:
h I4 There are plenty of industrial activities going on 5
g 15 around the country that have no governmental involvement and z
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5 18 activities, those significant activities, activities that have P
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gets involved --
l 22 CHAIRMAN MOORE:
On that point, I would like to ask 23 you the same question I asked Mr. Semmel.
If Mr. Gallo now
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that amendment application may not be withdrawn without NRC i
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Rock Point because of no more spent fuel capacity -- pool 4
capacity, why then is not an EIS required in that case?
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In response I would have to ask you several N
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questions.
I'm not familiar with the Commission's practice, but e
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11 CHAIRMAN MOORE:
No, assume that it's more than 3
g 12 administerial, and that it's discretionary.
3 13 MR. SHEA:
It is then discretionary, adjudicatory a
g 14 function by the NRC to allow the applicant so the NRC can 2
15 force the applicant to stay before it, it can hang onto that N
y 16 application?
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17 Well, if the NRC can hang onto that application, and U
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19 concerns, the continued operation of the plant, then I would R
20 say an environmental review would have to be conducted.
21 CHAIRMAN MOORE:
Why not an impact statement?
It's a 22 given here that an environmental review would be done.
23 MR. SHEA:
Well, it would depend.
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l 24 i CHAI RMAN MOORE:
On all these actions?
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MR. SHEA:
If the scope then it would depend on the ALDERSON REPORTING COMPANY, INC.
71 1
facts of the case.
If the application would be critical to the 2
continued operation of the facility, then those impacts of 3
operation would have to be reviewed -- well, would have to be 4i reviewed and, of course, it is our position that reactor operations e
5 normally give rise to the preparation of an EIS.
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6 CH AIRMAN MOORE :
And the cessation would, too, the E
7 cessation of reactor operation would, too.
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MR. SHEA:
Well, you're looking at alternatives, correct g
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9 That's right.
That's one alternative.
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10 MS. KOHL:
Mr. Shea, as a representative of CEQ, can 3
h 11 you give us any guidance on what the criteria, the major action 3
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12 with the significant impact, are?
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MR. SHEA:
Well, I refer you to our regulations which s
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15 1508.
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Can you elaborate now for our benefit?
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Well, we worked very hard in defining those N
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Are you familiar with those sections?
If not, I n
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would urge you to familiarize yourself with those two sections 5
20 and I would be glad to respond to any questions you have about 2I those two sections.
22 MS. KOHL:
You are not able to --
23 !
MR. SHEA:
well, I.would immediately go to 1508.18, i
I 24
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significant.
Major federal actions include actions with effects l
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that may be major and which are potentially subject to federal 2
controK and federal responsibility, and major reinforces, but 3
does not have a meaning independent of significantly.
4 And then in our regulation defining "significantly,"
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we direct agencies to take a look at the context intensity --
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7 MS. KOHL:
All right.
Applying those rather vague Ml 8
descriptions, apart from the continued operation that a spent d
2 9
fuel pool expansion might occasion in this instance, is the
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10 spent fuel pool expansion itself, in your view, a major action E
j II with a significant impact?
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12 MR. SHEA:
I would like to be able to refer -- we 13 have our own nuclear staff person, and I would like to be able j
I4 to refer to that person's judgment.
I don't like making'a m
g 15 factual judgment like that as a lawyer.
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16 is that if you isolate that action, looking strictly at the g
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There is M
20 MS. KOHL:
I had the impression from your brief that 21 you, like Mr. Semmel and the parties he represents, are really 22 hanging your hat and your arguments on the continued operation, 23 ;
that that is your primary focus.
24 MR. SHEA:
Well, that is a concern to us, that's a major
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slide through the cracks by a very narrow construction of either g
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NEPA's review.
But in terms o f -- if you want to just isolate 4j the spent fuel pool expansion f:om all the other impacts, there g
5 is a tremendous commitment of financial resources, as you pointed 0
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out in the North Anna case, there is labor involved, there is R
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accident releases of radiation and nuclear materials.
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In that respect, on page 10 of your brief, E
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l 12 the pool?
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Well, you have to take a look at the s-g 14 alturnatives that you consider.
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No, I'm asking, what is the increase in the
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17 1 MR. SHEA:
And as I was going to explain, you take a 18 look at the consumption of resources of the proposal and its n
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alternatives.
M 20 one of the alternatives to simply putting in new racks 21 to the spent fuel pool is to build a large spent fuel pool I
22 capacity that could manage spent fuel to the end of the operating i
23l license.
That would involve new land, new water.
l 24 DR. BUCK:
We're not asking or the application isn't
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MR. sHEA:
But that's an alternative.
2 DR. BUCK:
May I just finish my question, please?
3 The applicant is asking for a particular type of 4
increase in the fuel storage pool.
You say here that this 5
g involves I presume you mean greater use of water and greater 9
6 use of land for that amendment.
Now where do you get the greater R
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use of water and greater use of land in this particular request Al 0
for an amendment?
Never mind the alternatives.
I'm asking for d
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this request for the amendment.
,3 10 MR. SHEA:
I'm sorry.
It's the Council's view that E
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No, we're asking -- and the question from I4 a
Ms. Kohl a few moments ago -- was to consider the fuel pool 5[
15 alone, the capacity of that fuel pool alone, and I am following
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MR. SHEA:
If you were only looking at that alterna-M 20 ety.
II DR. BUCK:
I have repeated that several times.
I am 22 only looking at that.
23 l MR. SHEA:
All right.
If you are only looking at 24 that alternative, I would see no increase in the use of land.
I 25 s_
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land.
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There is perhaps an increase in water.
I understand 3
the spent fuel pools are cooled by a flow or a recycle of water.
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5 this is the Council's view that when you take a look at the
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alternatives, not simply the one proposal.
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one of the alternatives here is to build additional d:i 9
spent fuel pool capacity which would involve new land resources, z
10 new water resources, more financial resources, than simply the 11 financial resources involved in this particular proposal for is y
12 expansion of the existing capacity.
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13 DR. BUCK:
Your brief certainly doesn't say that, but h
14 th a t ' s all right.
Go ahead.
g 15 MS. KOHL:
What if the alternative is less beneficial z
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Must that alterna-as N 'l7 tive nonetheless be considered, or equally beneficial?
NEPA says you have to look at all reasonable E
19 alternatives.
Now it's a subsequent judgment after you have 20 analyzed each of those alternatives whether or not one is more 21 desirable than the other.
22 DR. BUCK:
Do you have to look at alternatives even 23 ;
though the amendment being requested isinviewed -- I'm talking 24 now about the amendment requening a change in the fuel pool --
V 25 that is reviewed by the Staff and found to have insignificant ALDERSON REPORTING COMPANY, INC.
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environmental effect.
Do you have to look at alternatives in that v) 2 case?
3 MR. SHEA:
Where there is where 10 2 ( 2 ) ( E) has been 4
triggered, where they say an unresolved conflict of the use of e
5 resources, you sure do, you have to take a look at alternatives.
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Why?
If you've got an insignificant R
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this is contrary to some of our decisions ifi you think you have N
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to do that.
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The Council, as you know, under the new 2o g
10 regulations, has established three categories of actions for Z
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Those 13 are actions which the agency in consultation with the Council 14 has determined require absolutely no review -- environmental g
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other actions, the second category of actions, are A
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actions which in all cases require environmental assessments,
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20 and pursuant to our regulatory definition of environmental 21 assessments, you have to take a look at alternatives.
22 I would like to address now the Staff's use of 23,
Andrus
- v. sierra club, analogizing the appropriations request to 24l spent fuel pool expansion request.
The Staff quotes the result e-'s
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The court reversed the i
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1 Court of Appeals in that case on the very narrow grounds of N_,)
2 CEQ's new regulations and specifically 1508.17.
We changed 3
our regulations because of the very peculiar, almost arcane 4
nature, of the budget cycle and the appropriations request.
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6 Congressional distinctions regarding appropriations requests R
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11 Here if an EIS isn't done, it will never be done.
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12 Staff's use of Andrus would eliminate EISs, virtually, OS g
13 for all federal permit actions.
mg 14 staff critici=es our argument as being a "but for" 2
15 approach to federal decision-making.
However, but for any 16 j
federal permit there would be no project.
So you cannot accept 2
6 17 the Staff's views of Andrus.
Otherwise, you would eliminate NEPA 18 review for all federal permits.
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We believe that the scope of impacts must include 5
20 both normal and accidental impacts from reactor operation, until 21 the end of the operating license.
This is a point picked up by 22 Staff in their reply brief.
It was a good point.
23 one of the alternatives here to simply spent fuel pool
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fuel from this reactor to the end of the operating life, and s
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because that is one of the reasonable alternatives, the impacts
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operating license should be addressed.
4 Now with respect to 10 2 ( 2 ) ( E), if there is an unresolved 5
conflict over the use of resources, you have to address h
6l alternatives.
The Licensee, we believe, za incorrect, stating a
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that financial resources are excluded from this section.
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the Dairvland case, I think, indicated that given the difference d
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in environmental impacts between operating and nonoperating 3
10 of plant, financial costs are irrelevant factors to consider in z
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16 The courts have never established contrary to what 2
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18 for lo 2 ( 2) ( E) 's application.
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I will again refer you back to the Council's regulations n
20 concerning categorical exclusions.
Those categories of actions II that require EISs on the remaining actions for NEPA review.
22 One other point was made in Staff's brief concerning i
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regulations by the NRC for environmental assessments, and I would s_,)
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cold the Commission that the proposal to limit environmental h
2 impact statement reviewed at'the category of actions it had 3
established was inappropriate; that there were a number of actions
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5 category that we felt should be within the Environmental Impact 0
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Mr. Gallo pointed out that the characterization of Nj 8
Minnesota v.
Butz is ambiguous I'm sorry, he characterized d
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Il the federal government with respect to the timber sales.
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2I One other point concerns the -- concerning the 22 standard of significance.
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to assist ic in its decision-making, and I would also like to point
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101. If it seems to the agency that an environmental impact 5
statement would assist it in achieving thos e policies, it should 9
6 prepare such a statement.
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7 MS. KOHL:
Shouldn't the Licensing Board then await M
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the assessment so that it would have that assistence in this case?
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MR. SHEA:
Well, that dispute that I saw in the briefs i
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g 12 when an impact statement should be done, whether the Staff comes
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Didn't yoA just tell us that was the primary M
E 15 concern of CEQ, was how agencies dealt with these matters 16 j
procedurally?
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Well, in this in my short. period -- in E
5 18 l my limited time here and our short brief, we did not want to get
=H 19 into that procedure, but, yes -- into that issue, but, yes, we 20 are very interested in the internal procedures of the agencies.
21 The Hearing Board, we believe, could have properly 22
' determined as the delegated authority within the Commission 23,
that an environmental assessment was necessary, or that indeed 24 l if it was clear to the Licensing Board, that the operation of 25 y,e j the nuclear facility weas one of the impacts that should be i
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addressed in connection with this application, that an EIS s
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MS. KOHL:
What if an EIA addresses continued opera-4 tion?
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Well, it would be inadequate, it would 9
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the attendant normal impacts and accidental impacts is a major d
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10 MS. KOHL:
Is inadequate, per se, without even looking 3
II at the assessment?
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I believe so, yes, f
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CHPIRMAN MOORE:
What's the starting point for looking Vm m
14 at continued operation?
Would it be an operating plant with 5j 15 all of its good and bad points at this time, or would they
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17 MR. SHEA:
At this point you take it as given, as I m
h IO think the court stressed in Minnesota v.
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n 20 You don't try and undo what's been done.
You would 2I have to take a look at th is facility as it stands today, with i
22 all its defects, with all its modifications, and you take a look 23 -
at the potential operating impacts of that particular facility, starting from day one, from today.
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What if an environmental assessment does l
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2 l CHAIRMAN MOORE:
And it says they are insignificant?
3 MR. SHEA:
And it says they are insignificant?
I'd 4
say you're probably in trouble in court.
2 5
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significant, obviously an environmental assessment wouldn't R
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satisfy NEPA, because an environmental assessment doesn't go N
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through the procedural processes required by NEPA.
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What if your environmental assessment 3_
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y 12 your answer simply is no, it's insignificant?
13 MR. SHEA:
It's insignificant and you withstand a
5 I4 judicial scrutiny, then, fine, there is no need to do an EIS.
Ej 15 You only have to do an EIS when there is significant impact.
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operating nuclear reactors are insignificant, you would not 2
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I daresay that that would fly in the face of n
20 Commission experience and practice over the last 10 years.
2I MS. KOHL:
So your position is that it's extremely 22 improbable, if not impossible, to prepare an EIA that would be l
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satisfactory then?
i MR. SHEA:
Yes.
Yes.
But one of the Commission's
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other reactors come up for spent fuel pool expansion applications.
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encourage the reduction of duplication of documents and NEPA 4
reviews. Where you have already done the review of an operating 5
license, you don't have to replow that ground. You simply N
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incorporate that document by reference in the future documents R
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you prepare.
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MS. KOHL:
Have you ever examined an environmental d
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assessment in a spent fuel pool expansion case?
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I did at one point, some time ago, yes.
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Did you form an opinion as to its efficacy?
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I was not with the Council at the time.
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Would you like to share it with us?
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I did not think it was a very informative W
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3 18 Are there any other questions?
E IS CHAIRMAN MOORE:
I have just one.
If Big Rock Point l
20 !
can avoid expanding its Juel pool by shipping its fuel for 21 storage to another facility, whether it be its own, another 22 utility, or a vendor or what-have-you, and hence continued to 23 operate without needing a NEPA review, and can thus indirectly 24 7eg avoid -- or directly avoid NEPA, why is it necessary when you are k.'
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to continue, NEPA review necessary?
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2 MR. SHEA:
That's a good point.
That returns to the 3
point I was trying to make.
4 CHAIRMAN MOOPE:
Because in the first instance, the I
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NRC would still be involved in the transportation link and 9
3 6
approving a license amendment on the other end to receive that R
7 fuel.
Presumably they would be involved, anyway.
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contend that that environmental assessment would require for
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12 MR. SHEA:
The approval of the NRC comes at which b
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j 14 CHAIRMAN MOORE:
All along the line.
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15 MR. SHEA:
As I understand it, the NRC does not give 16 specific approvemen*- of shipments of fuel.
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If fuel were sent from Big Rock 18 Point to Midland, anot
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19 may well need a license amendment to accept that fuel.
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20 MR. SHEA:
Yes.
21 CHAIRMAN MOORE:
If that were the case, would that 22 license amendment proceeding have to look at the continued 23,
operation of Big Rock Point?
24 MR. SHEA:
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regulation concerning effects, our definition of effects in the 2
regulations, and our categorization of indirect effects.
3 Again, I would like to repeat that there are a lot of 4
industrial activities that are carried on without federal e
5 involvement, and that don't benefit from a NEPA review.
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Thank you.
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Yes.
Ea 13 l5 DR. BUCK:
May I ask a question here?
Excuse me, Mr.
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5 I4 Shea.
This indirect effect situation,supposing that the govern-9 15 ment should build an off-reactor site storage, and the Consumers a
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the fuel they have got in their pool, to the new reactor site.
2 I0 Are you saying that as a result of this action, this would h
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enable the Big Rock to continue operation and, therefore, as a n
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2 MR. SHEA:
The very purpose of the AFR is to enable those facilities to continue operation, as'we say in our regula-
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removed in distance, but are still reasonably foreseeable.
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Under those circumstances you are telling us 0
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If it's a reasonably foreseeable and direct w
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18 Dr. Buck, one point --
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And that isn't making NEPA retroactive?
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One point I'd like to make is that I know 2I there are still some people within the Commission who feel as l
22 though NEPA is an impediment.
We have tried to, in our regula-23 l tions, make NEPA as expeditious a process as possible.
24 DR. BUCK:
I'm not sure it's NEPA that is the impediment
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25 sir.
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MR. SHEA:
We tried to streamline the EIS process, 2
eliminate duplication, allow agencies to benefit from prior 3
environmental reviews, and I think you will find it is only going i
4J to be in a very small percentage of the cases where you would e
5 have to embark on a whole new review.
In most cases you would M9 6!
find you would be able to benefit from prior NEPA documents.
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What I am trying to point out is that this N
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19 CHAIRMAN MOORE:
Mr. Gallo.
20 'l REBUTTAL ARGUMENT OF MR. GALLO, ON BEHALF i
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OF THE LICENSEE.
22 MR. GALLO:
Mr. Chairman, I will attempt to be brief.
23 '
I have got a few comments with aspect to --
24!
CH AI RMAN MOORE:
I imagine you do.
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argument.
I think I will take them in reverse order.
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2 With respect to Mr. Shea, he is just simply wrong.
3 The CEQ regulations do not apply to the NRC.
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in the statute that indicates that the advice of the CEQ is e
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Order was issued, I believe, by President Nixon that there was 2
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21 Finally, with respect to both Mr. Shea and Mr. Semmel, 4
22 they continually get back to this point that with respect to 23!
conducting an EIS with respect to every license amendment, that
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20 decide that an EIA shows that there are no significant II impacts, then you issue a negative declaration and notice of intent to do so.
That's binding on the Licensing Board.
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I 23l if the facts and the EIA assessment show that the Board cannot i
24 reverse that finding and direct instead the preparation of an EIS, j
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it" would be abusing its discretion and violating the regime l
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established by the Commission in implemer.tation of NEPA.
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2 MS. KOHL:
But is there anything in the 3
Commission's regulations to preclude the Commission from deciding 4
in its judgment that it would like to have an EIS prepared?
5 MR. GALLO:
The Commissioners themselves have the 0
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discretion to decide under a certain fact situation that it G
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is reserved to the Commission for just tha t purpose, but ever.
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I notice in the CEQ brief footnote on page 4,
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where it indicated 22 apparently that it was assumed that it would issue "it" being 23 the Staff, would issue a negative declaration, accompanied by an 24 x
Environmental Impact Appraisal.
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a review of the prehearing conference order to give you a more specific citation to what I think is there, if you'd like.
MS. KOHL:
The earliest place that I found it was in the transcript.
I think it's page 217 of the December '79 conference, and the idea that an EIA would be prepared seemed to 8
6 originate with Applicant's counsel.
But I would appreciate it if e
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that could be pinned down as to where that idea originated.
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Well, I will intend to, with the Board's d
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quickly trying to address the point.
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uncommitted" resources, and that either one of those answers 20 questions, rather, has to be answered in the affirmative before any consideration of alternatives under 102 (2) (E) is necessary.
I 22 Now if this Board finds on either one of those bases l
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under 10 2 ( 2) (C), then the Staff is foreclosed from volunteering 25 '!
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The question was asked, what is the status of'that i
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approval.
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approval, like the as-low-as-practicable rulemaking, like the i
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emergency core cooling system rulemaking, like the Table S.3 sl 8
rulemaking. Until Commission approval is levied, and in accordance d
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3 I2 CHAIRMAN MOORE:
If that's true, then aren't the five 3
13 factors that the Staff outlines in that interim rule -- isn't
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Well, their position is they need not.
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What's your position, given the fact that II you don't believe the generic statement applies?
What does?
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MR. GALLO:
Well, I think that the question of that n
20 generic statement really does have to await the outcome of the 2I Commission decision.
22 MS. KOHL:
Well, does the 1975 interim policy apply or 23 f
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Well, in the absence of a final decision,
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MS. KOHL:
And does that not require some look at 2
alternatives, and does that not contemplate -- it refers 3
specifically both to environmental appraisals and environmental 4
impact statements.
It doesn't foreclose or dictate one or the g
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well, but you're looking in the context of R
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whether or not there is some compromise or otherwise adverse e<l 8
dealing with the ultimate decision to be reached by the Commission d
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ultimately with respect to the GEIS.
I think that's a different 10 question than the alternative raised under 10 2 ( 2 ) ( E) which I E)
Il think may be the Staff's position.
That is a voluntary matter.
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That's my position.
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16 CHAIRMAN MOORE:
Mr. Gallo, what's the basis for l
d-I' your view that until the Commission would act on that generic w
5e 18 environmental impact statement, it is merely a Staff view?
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that statutory, regulatory?
5 20 MR. GALLO:
No, I think there are Appeal Board decisions 2I that indicate any Staff position, whether it be in a reg guide 22 or a NUREG document is simply that, and until it receives the I
l approval of the Commission itself, it can be contested one way 23 24 or another in the licensing proceeding withzespect to any party.
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Here in the 1975 interim rule 25 ALDERSON REPORTING COMPANY,INC.
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promulgated by the Commission, or interim policy statement, or h
2 whatever you're going to call it, promulgated by the Commission, 3
there is some language that suggests it might be self-executing, 4
which is the Staff's position that upon the issuance of the g
5 generic environmental impact statement, the rule would cease to N
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Is that a proper a tion for the Commission to take?
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You mean at the time they did it?
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Yes.
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Would that change your view as to io g
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well, if it I must confess that if that 3
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15 letter on the question of reviewing the record for the point N
y 16 of who indicated that an EIA, much like the others, was forth-M s
6 17 coming.
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18 CHAIRMAN MOORE:
Thank you.
E 19 Ms. Moore, do you have any rebuttal?
R 20 MS. MOORE: Yes, sir.
2I REBUTTAL ARGUM2NT OF MS. MOORE, ON BEHALF OF 22 THE NRC STAFF.
23 I CHAIRMAN MOORE: Please proceed.
24 MS. MOORE:
I would like to deal with just a few points g
i 25 made first by counsel for CEQ.
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First, it is CEQ's position that our reliance on
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Andrus would create a situation where EIS EIA could be used 3
instead of EIS for all federal permits, that it would eliminate 4
the EIS requirement.
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I would direct the Board's attention to our regulations 3?
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which say that we.would do EISs for permits, so therefore the e
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th o s e regulations and changing the import.
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It does not believe the Andrus decision was construed i
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j 12 considered under 10 2 ( 2 ) ( E) because of potential contamination
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'- #l 14 that Section 10 2 ( 2 ) ( E) says alternatives to a proposed action 2
15 must be considered when there is an unresolved conflict in E
y 16 alternative uses of available resources, and that this i
17 alternatives consideration arise at the time of the proposed 5
18 action, and the uses of resources are the resources the uses P
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19 which would be involved by either taking or not taking this ij '
20 action by either constructing or installing -- pardon me, tne l
21 new racks or not installing the new racks by the use of the i
22 stainless steel, for instance, that would go into those racks.
23 Not by some future potential contamination which is an impact 24 separate and apart from the use of a resource.
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25 The other point that CEQ -- counsel for CEQ raised was i
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that they opposed -- that they made comments on the categories O
2 of actions set forth in our regulations about those requiring 3
impact statements.
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well taken.
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8 CHAIRMAN MOORE: Ms. Moore, what is the Staff's position d
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as to the effect of the CEQ's regulations on the NRC?
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The Staff's position is that those regula-E g
11 tions in and of themselves are not binding on the NRC.
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g 12 have their own regulatory scheme of Part 51, which is presently 3
13 in effect, which is our regulation to implement NEPA, and we g
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If we accepted 2
15 CEQ's regulations as binding upon us, we wouldn't have to have j
16 that Part 51 at all.
But we have our own regulations and our W
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18 process.
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19 The point raised by both CEQ and counsel for Intervenors M
20 Crista-Maria is their contenticn that continued operation of a 21 nuclear power plant is in and of itself a major federal action 22 significantly affecting the quality of the human environment.
23,
And they say that this has long been established.
24 The Licensing Board also relied on Calvert Cliffs for
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ALDERSON REPORTING COMPANY, INC.
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found that as a matter of law, operation of a nuclear power plant 2
is a major federal action significantly affecting the quality of 3
the human environment.
4 Those are all the points which the Staff wishes to g
5 raise at this time.
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6 CHAIRMAN MOORE:
The Appeal Board will take the matter Rg 7
under advisement, and we thank counsel for their participation N
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and response to our questions and inquiries.
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the hearing was 3
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1 NUCLEAR REGULATORY CO.WISSION This is to certify that the attached proceedings before the Appeal Board of the Nuclear Regulatory Commission in the matter of:
Big Rock Point Date of Proceeding:
Jan.
9, 1981 Doeket tiumber:
so-15s Place of Proceeding:
wanwinneon, o.c.
were held as herein appears, and that this is the original transcript thereof for the file of the Commission.,
ANN RILEY Official Reporter (Typed) 1 m
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Official Reporter (Signature) l 4
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