ML19343A295
| ML19343A295 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 09/12/1980 |
| From: | Grossman H, Paris O, Shon F Atomic Safety and Licensing Board Panel |
| To: | Oneill AFFILIATION NOT ASSIGNED, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| ISSUANCES-OLA, NUDOCS 8009170175 | |
| Download: ML19343A295 (19) | |
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NUCLEAR REGULATORY COMMISSION e
Atomic Safety and Licensing Board l'Cf 1
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'EdDQh Herbert Grossman, Chairman s
- M.((/,QCenid Dr. Oscar H. Paris, Member
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Frederick J. Shon, Member
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In t.ne Matter of
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CONSUMER POWER COMPANY
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Docket No. 50-155 OLA
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,C (Big Rock Point Nuclear Plant)
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(Spent Fuel Pool Expansion) Thc MEMORANDUM AND ORDER ON NEPA REVIEW
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Intervenor John O'Neill's Contention VIII, in addition Y
to requesting a review of general plant safety, contended that the b
granting of the license amendment to expand the spent fuel pool would permit the plant to operate past the year 1981, that the plant produces very little electricity compared to modern nucicar ge.nerators, and that the closing of the plant would not cause great hardship.
At the special prehearing conference held on December 5, 1979, Mr. O'Neill further contended (Tr. 215-216) that, under a cost-benefit analysis, the closing of the plant would not cause undue hardship because it produced little and expensive power which could easily be replaced.
The Licensee objected to this contention (Tr. 217) on the ground that what is being considered for licensing is not con-tinued.plantoperation,butratheranexpansionofthespentfuei 1
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, pool which may not have a significant environmental impact.
The Licensee pointed out (Ibid.) that the Staff is expected to issue an environmental impact assessment indicating that the proposed pool expansion does not have a significant environmental impact, so that the alternative of shutting down the plant need not be con-sidered.
The Staff also obj ected (Tr. 214, 216) on the ground that the contention was outside of the scope of the proceeding.
In its Order Following Special Prehearing Conference, the Board deferred ruling on this contention.
It indicated that it expected, as did Licensee, that the Staff would issue a "nega-tive declaration" stating that an Environmental Impact Statement containing a cost-benefit analysis need not be prepared because the proposed amendment does not significantly affect the quality of the human environment.
Nevertheless, the Board was not satis-fied that the prospective issuance of a negative declaration would resolve the issue of whether, in this case, a cost-benefit analysis or other weighing of the need for power,is required.
It referred the parties to the January 10, 1980 Initial Decision in Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), LBP-80-2, 11 NRC 44, 65-77, which held, inter alia, that the Licensing Board in the spent fuel pool expansion proceeding had jurisdiction to consider the need for the power generated by the reactor under Section 102(2)(E) of NEPA, 42 USC Section 4332(2)(E)~.
The. Board
, requesced that the parties brief the following questiong Where the facility has never been subjected to National Environmental Policy Act of 1969 (NEPA) review because it was licensed before NEPA, coes a license amendment which would permit the con-tinued operation of the facility either requite or permit considering a cost-benefit analysis or the need for power in the license amendment pro-ceeding notwithstanding that the staff may issue a negative declaration?
In responding to the Board's question, the parties assumed, as suggested by the question, that the Staff would issue an environmental impact assessment, accompanied by a negative declaration in the usual form issued in other spent fuel pool expansion proceedings, stating that an Environmental Impact State-ment need not be prepared.
Intervenor John O'Neill contended
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(Response, pp. 2, 6-7) that Section 102(2)(C) of NEPA is appli-cable to the requested license amendment primarily upon the ~
grounds that questions involving the storage and disposal of nuclear waste pose serious concerns for the health and environ-ment that should be considered with this proposed license amendment, notwithstanding that the generic aspects of nuclear waste disposal can be considered in a comprehensive proceeding, and the spent fuel pool modification is the only way that the plant could con-tinue to operate.
He also argued (pp. 3-4) on the basis of Lacrosse, LBP-80-2, supra, and other cases that Section 102(2)(E) imposes a duty to develop and explore alternatives, even where the preparation e*
I of an Environmental Impact Statement is not required.
Intervenors Christa-Maria,'et,al. assumed that the expected negative declaration by the Staff would be valid and that Section 102(2)(C) would not apply here.
They argued, however, for the reasons stated in Lacrosse, supra, that Section 102(2)(E) does apply and would require a' discussion of alternative uses of available resources.
As factual support for requesting a balancing of costs against benefits, Christa-Maria, et al.
(Response, p. 5) and
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0'Neill (Response, p. 7) alleged that the power produced by Big Rock represents only approximately one percent of the generating capacity of Consumers Power Company's total output, which allegedly contains a reserve margin of 37 or 38 percent.
The Staff and Licensee opposed the application of either section of NEPA to this license amend =ent on the ground that Courts have consistently held that NEPA is not to be applied retroactively.
(Staff, p. 12; Licensee, p. 13.)
The effective date of NEPA was 1
January 1, 1970, and the full-term operating license was issued for the Big Rock Plant in 1962, more than seven years prior to that date.
They also argued that a spent fuel pool expansion which does not significantly affect the quality of the human environment, as allegedly was determined in a number of cited cases, would preclude the application of both Sections 102(2)(C) and 102(2)(E) to the i license snendment, contrary to the determination in Lacrosse, supra.
. (Staff, pp. 8-10; Licensee pp. 14-19.)
The Staff and Licensee cautioned against distinguishing Portland General Electric Co. (Troj an Nuclear Plant), ALAB-531, 9 NRC 263 (1979) and Northern State Power Co. (Prairie Island Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41 (1978), which held that an environmental assessment need not be made in spent fuel pool expansion proceedings, from the instant case merely because Environmental Impact Statements had been prepared before the issuance of those plants' operating licenses.
In arguing against distinguishing Troj an, supra, and Prairie Island, supra, from this proceeding, the Staff (p. 6) relied primarily upon the
'osition that the Big Rock Point plant had already been licensed p
to operate, NEPA is not retroactive, and Big Rock should stand in the same position as a later licensed facility for which NEPA was applicable.
The Licensee (pp. 7-11) relied primarily upon the argument that the Trojan and Pt sirie Island opinions delimited the scope of spent fuel pool proceedings to exclude environmental reviews, and should not be viewed merely as applying the doctrines of res judicata or collateral estoppel so as to exclude relitigation of the environmental issues that had already been considered at the operating license proceeding.
TheStaffandLicenseealsoraisednumerousargumentspor l
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. disagreeing with the Licensing Board's application of Section 102(2)(E) to a spent fuel pool proceeding in LaCros'se, and for distinguishing the facts in Lacro'sse from those in the instant case so that Section 102(2)(E) would not be applicable to this proceeding even if the Lacrosse Licensing Board were correct.
We hold that Section 102(2)(C) of NEPA applies to the proposed license amendment before us, and that it requires the preparation of an Environmental Impact Statement.
Because that section is more comprehensive than Section 102(2)(E) and includes all of the requirements of the latter section, we consider it unnecessary to determine whether, if Section 102(2)(C) were not to apply, Section 102(2)(E) would apply in any event.
OPINION I
A Full' Environmental Review Would Not Violate the Prohibition Against a Retroaccive Application of NEPA It is beyond dispute that NEPA may not be applied retro-actively and if this Board were to require the preparation of an Environmental Impact Statement with regard to the continuation of Licensee's operating license, it would be acting directly contrary to the mandate of the statute and established judicial precedent.
- See, e.g., Olivares v. Martin, 555 F.2d 1192, 1197 (5th Cir. 1977);
Pennsvivania Environmental Council v. Bartlett 454 F.2d 613, 624-
. (3rd Cir. 1971).
Nor can we consider the continuous operation of the plant under the license granted by the NRC (in 1962, the AEC) as an ongoing Federal project which requires constant reevaluation to determine whether it should continue as, for example, in Environ-mental Defense Fund v. T.V.4., 468 F.2d 1164 (6th Cir.1972) and Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972).
NRC licensing does entail continuous Federal monitoring, but a review of environmental L5 pacts is required only when significant changes are contemplated.
We must recognize the distinction made in Pub 1'ic'Servic'et Co" of NeV Kampshi're-(Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 542 (1977) between a continuing proj ect of the Federal Government, which Big Rock i= not, and that of a private party which has received a Federal license and now askt for further approval of a discrete lic.ense amendement.
On the other hand, we do not perceive the issue before the Board as pertaining to the continuati n of the Licensee's operating license or its right to utilize that license for the full operating term, which would make the prohibition against retroactive application of NEPA applicable to this proceeding.
Rather, we view the proposal that the NRC grant a license amendment to per=it expansion of the spent fuel pool as requiring a new Federal action for the sole purpose of enabling Licensee to makE 1
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a fuller utilization of its operating license than it could other-wise.
When Consumer Power Company was granted the operating license in 1962, it was given the right to operate for the full term if it were able, but it was not given a guarantee that our predecessor, the Atomic Encrgy Co= mission, would take every step necessary to see that the Licensee had the full ability to utilize that operating
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license over the full term.-
We cannot overlook the sole purpose for and the practical effect of the Federal approval sought: expansion of the spent fuel pool to enable Licensee to operate beyond the year 1981, when it otherwise would have to cease operation unless it could find another means of storing spent fuel, to the year 1990.
We see this situa-tion, in which a new Federal' action is required to enable a private party to complet'e a project intitiated prior to the effective date
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of NEPA, as similar to' Minnesota Public Interest Research Group v.
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We do not make this statement without some misgivings.
The understanding in the auclear industry, which was fostered and encouraged by the A.E.C.,was that spent fuel discharged from reactors would be disposed of off-site and need not be provided for in the design of the plant.
-See, Intent to Prepare Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, 40 Fed. Reg. 42801 (1975).
Were we able to read that understanding as a commitment on the part of A.E.C. to ap fuel as part of' prove all reasonable means for disposing of spent the operating license granted in 1962, we might decide the question before us differently.
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Butz, F.2d 1321 (8th Cir.1974), stay denied, 429 U.S, 935, ' cert, denied, 430 U.S. 922, in which an Environmental Impact Statement was required for the Forest Service to make changes in contracts for timber sales after the effective date of NEPA, even though the project encompassing those sales was approved and intitiated pre-NEPA.
In another case which held that Section 102(2)(C) of NEPA applies to I
an individual Federal action occurring after the effective date of 4
NEPA even though the entire project had been approved prior to NEPA, Jicarilla Apache Tribe of Indiens v. Morton, 471 F.2d 1275, 1282 (9th Cir.1973), the Court stated, "It is clear that NEPA applies i
to all major Federal actions taken subsequent to January 1, 1970, regardless of whether the project with which the particular major action is associated was intitiated prior to the effective date of NEPA."
Also see, Hart v. Denver Urban Renewal Authority, 551 F.2d 11-78 (10th Cir. 1977).
3 We see a clear distinction between the action proposed, whose sole.and. direct.effect..would.be to~ continue-the operations of the plant, and a license amendment intended to remedy a defect in operations, which may only indirectly affect the' plant's ability to operate over a longer term.
In this case, the impact to be environ-1 mentally appraised includes the additional tsrm of operation; in the 3atter instance, it might include only the change in the manner of 4
operation, which may not have a significant effect on the environment.
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. II An Invironmental Review is not Excluded from the Scope oi " is troceecing We do not disagree with Licensee's position that Trojan and ?rairie Island define the proper scope of a spent fuel pool pro-ceeding and did not merely apply res judicata or collateral estoppel principles, but we cannot reach the same conclusion as Licensee that the scope of a spent fuel pool proceeding may not include an environmental review even where none had been held previously.
That conclusion appears to us to contradict the emphasis placed by the Appeal Board in Prairie Island and Trojan on the full environmental reviews that had preceded the issuance of the operating licenses for those facilities.
The Appeal Board concerned itself only with determining whether there had been "significant environmental con-sequences beyond those previously assessed."
(Ecphasis added.)
Prairie Island, supra, 7 NRC, p. 46 fn. 4; Trojan, suora, 9 NRC,
- p. 266 fn. 6.
We view the Appeal Board's exclusion of an Environmental Impact Statement in those proceedings as being based merely upon the principle that NEPA does not require the preparation of duplicative environmental reviews for every maj or Federal action.
As stated by the Appeal Board (Ibid.), "Nothing in NEPA or in those judicial decisions to which our attention has been directed dictates that tha
st=e ground be wholly repicwed in c. nection with a proposed enend-ment to those 40-year operating licenses."
See~also, Calvert Cliffs Coordinating C c==itt e e v. AEC, 449 F. 2d 1109, 1118, 1128 (D. C. Cir.
197C1 In Prairie Island and Trojan, even though the proposed spent fuel pool expansien would have pernitted a greater use of the operating license than previously, the granting of the license had been preceded by an environmental review that assumed that the license would be utilized over the full term.
When the NRC was requested to approve the anend=ent which would have the practical effect of permitting the fuller utilization of the operating license than the current situation otherwise permitted, no further review was necessary because the operation of the plant during the full term of the license had r_1 ready been assessed.
Here, because no environmental review was made at the tLne of the granti g license, there would be
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no duplication, and the Federal action sought, for the sole purpose of permitting a fuller utilization of the license, must be assessed.
III A Spent Fuel Pool Modification Which Allows a Much Greater Term of Plant Operation has a Significant Effect on the Environment A more troublerome question in our estimation than that of retroactivity is the Staff's assertion (pp. 8-9) that other licensing boards have already found that a proposed spent fuel pool
. expansion would not significantly affect the quality of the human environment, citing Commonwealth Edison Co, (Zion Station, Units 1 and 2), LBP-80-7,11 NRC 245 (1980) ; Portland General' Electric Co.
(Troj an Nuclear Plant), LEP-78-32, 8 NRC 413, 449-450 (1978),
af f' d, ALAB-531, sunra; Ducuesne Light Co. (Beaver Valley Power Station, Unit 1) LBP-78-16, ! NRC 811, 816 (1978); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),
L3P-77-51, 6 NRC 265, 268 (1977), aff'd, ALA3-455, supra, Contrary to the Staff's assertion, we do not read these cases as determining that the proposed action would not significantly affect the human environment, but rather read them as determining that there would be no significant effect other than'tha't which had already been assessed in an~ Environmental' Impact St' t'ement, a
Each of those proceedings involved a facility that had been subj ected to a NEPA review prior to the granting of the operating license, The negative declaration in Zion, which we assume to be typical, stated, inter alia (11 NRC, p. 248) :
We have determined that the proposed license amend-ment will not significantly affect the quality of the human environment and that there will be no significant environmental impact attributable to the proposed action other than that which has already been credicted and described in the Commission's Final Environmental Statement or the racility datec Decem-ber 1972.
(Emphasis added.)
. l As discussed'above, NEPA does not require duplicative j
environmental analyses.
Where the effect of the proposed cetion has already been environmentally re';iewed, albeit in the context I'
of another major Federal action sr.ch as the granting of an operating l
license, it need not be reviewed again.
The only thing that must l
be reviewed is the incremet.tal effect of the prop _ sed action ove" i
what had already been reviewed if that increment has a significant i
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effect upon-the human environment.
See, for example, the Appeal
}
Soard's statement in Georgia Power-Co. (Alvin W. Vogtle Nuclear 1
Plant, Units 1 and 2), ALAB-291, 2 NRC 404, 415 (1975), quoted with j
j approval in Detroit Edison Co,.
(Enrico Fermi Atomic Fower Plant, Unit 2), LBP-78-ll, 7 NRC 381, 393 (1978) :
J It will not be the (Licensing] Board's function
- in passing upon the permit snendment appli-cations ***to embark broadly upon a fresh assess-j
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ment of the environmental issues which have already been thoroughly considered and which were decided in the initial decision.
- Rather, the Board's role in the environmental sphere will be limited to as'suring itself that the ultimate.NEPA conclusions reached in the initial j
decision are not significantly affected by***
1 new developments **w.
See,'also, the discussion in Natural' Resources Defense Council v.
Administrator, 451 F. Supp. 1245, 1259-60 (D.C. 1978), regarding the-need to supplement a programmatic impact statement with a follow-up site-specific statement only when the site-specific factors have significant environmental impacts not acequately evaluated in 3-the programmatic statement.
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. The only case we have found that actually holds that an Environmental Impact Statement need not be prepared for a spent fuel pool expansion because Section 102(2)(C) does not apply, even thcugh there had never been an Environmental Impact Statement pre-pared for that facility, is Lacrosse, suora.
In that case, however, unlike the instant proceeding, the proposed spent fuel pool expansion wculd not have resulted in a further operation of the facility over a lengthy term of the operating license.
The facility was operating under a provisional operating license whose term had already expired and was involved in a proceeding initiated with regard to its appli-cation for a full-term license, the issuance of which would have to be preceded by a full Environmental Impact Statement, Consequently, the granting of the spent fuel modification would have permitted the facility to continue its operationt only on a tentative basis until the Environmental Impact Statement was prepared and reviewed.
We cannot quarrel with the Licensing Board's conclusion in that case, that the action approving the facility's ability to operate on that tentative basis would not have a significant effect upon the envir-onment.
Here, however, we are faced with a modification that is sought to enable the facility to operate for a further term of ten years, which we consider will have a significant impact upon the environment, without an assessment of that impact having ever been made.
- In sirmmary, we do not question Licensee's right to operate under the operating license granted prior to the effective date of NEPA without having been environmentally reviewed, Kowever, to the extent that we are asked to approve a Federal action granting a
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license snendment for the sole purpose of enabling L'icensea to uti-line a greater term of the license than would otherwise be possible, we consider the action to have a significant effect upon the environ-ment which must be environmentally reviewed under Section 102(.2)(C),
If such review were to result in a determination that the costs of continued operation over that greater term outweigh _ the benefits, Licensee's operating license would still 'se intact and Licensee could continue to operate even over the full term if it could find some manner to operate within the terms of the license that does not require a further major Federal action, As stated by the Licensing Board in Lacrosse, supra, p. 80:
All that an adverse decision in this SFP
[ spent fuel pool] proceeding could or should do is to prevent the Applicant from undertaking the SFP modification.
If DPC [ Applicant] found an alternate method of disposing of its spent fuel, an adverse decision in this proceeding could not prevent it from continuing to operate, IV The Biz Rock Plant does not Stand in the Same Position as 'an Environ-mentally Reviewed Post-NEPA Facility.
We do not dispute the Staff's assertion (p, 7) that it:
"must take the environment as it finds it" in reviewing Licensee's application for the spent fuel pool modification, and that the environment " presently includes an operating nuclear plant."
How-ever, that principle does not lead us to the conclusion, as it does the Staff (p. 6), that " Big Rock stands in the same position as a later-licensed facility for which NEPA was applicable" making the preparation of an Environmental Impact Statement unnecessary.
For reasons already given, we believe that Big Rock should be distin-quished frca Prairie Is1'and and' Trojan.
As the Court said in Minnesota Public Interest Research Grouo'v. Butz, suora, 497 F.2d 1320, "the threshold cecision as to whether or not to prepare an EIS should be reviewed ***on the grounds of its reasonableness."
We consider it reasonable and consistent with law and national policy for Staff to prepare an Enviromnental Impact Statement in this case.
While the principle of nonretroactive application of NEPA permits. Big Rock to maintain its operating license without undergoing an environmental review, it does not create a presumption that Big Rock would have been favorably assessed if an environmental review had been made.
There is no basis for suggesting that a prospective envircnmental review of Licensee's operations during the remaining term of its operating license could be in any manner duplicative of an environmental assessment that was not prepared
before the granting of the operating license becaus: it was not required.
V A NEPA Review Must Consider Oniv the Incremental' Environmental L= pacts We agree with the Staff's further conclusion (p.18) that the " Licensing Board (and the Staff] must only look at the increase in the environmental impacts' from the proposed action, which the Staff also refers to (Ibid.) as "the incremental effects of the
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increase on the~already existing impact of plant cperation,"
- But, a realistic view of the incremental effect must take into account the increase in the term of operation that would be afforded by the proposed amendment.
We cann~ot conceive of any grounds for requiring the environmental review to consider either the environmental cost of" constructing the plant (which already exists) or the operation of the plant to the extent that it would continue without the spent fuel pool modification.
"or, for that matter, can we permit the review to consider the environmental impact of maintaining the reactor site as a nuclear waste disposal site after the expiration of the license term, as intervenor John O'Neill proposes (pp. 2-3).
That position had been advanced with regard to the spent fuel pool expansion involving.
the Prairie Island and Vermont Yankee nuclear plants (see, Prairie
' Island, ALAB-455, supra,).
On appeal to the Court of Appeals for u-
4 the District of Columbia in State of Minnesota v. N.R.C., 602 F.2d 412 (1979), the Circuit Court refused to vacate or revoke the faci-4 lity licenses.
However, it remanded the matter te-the Commission-j to consider whether an off-site storage solution for nuclear waste will be available by the years 2007-2009, the expiration dates of the licenses of the Vermont Yankee and Prairie Island plants, and, if not, whether that waste ~can be stored at the sites beyond those years, unril an off-site solution becomes available, a
Inl response to that decision, the Commission has issued a Notice of Proposed Rulemaking regarding the Storage and Dispos'al of "uclear Waste (p4. Sed. R,es. 61373 (Oct. 25, 1979)), in which it decided that that issue should not be addressed in individual licensing proceedings.
It determined, however, that all licensing proceedings now underway will be subj ect to whatever final determi-nations are reached in its rulemaking. proceeding.
Under that Notice, this Board does not have the authority to consider, or to order the Staff to consider, any of the environmental impacts that might be associated with the storage of spent fuel beyond the expiration of the operating license.
CONCLUSION i
IT IS ORDERED that the Staff prepare an Environmental, Impact. Statement pursuant to Section 102(2)(C) of NEPA, covering the environmental impacts of an expanded spent fuel pool and the y
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additional tem of operation of the facility that such expansion would permit.
We further admit intervenor O'Neill's Contention VIII, restated by the Board, as follows: "An environmental review of the proposed spent fuel pool expansion is necessary under Section 102(2)(C) of NEPA and would indicate that the environmental costs of this expansion exceed the benefits."
Discovery on that contention is not to begin until the Staff has prepared its Draf t Environmental State-
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cent.
The rulings contained in this Memorandum and Order are referred to the Appeal Board pursuant to 10 C.F.R. 5 2.730(f).
3Y ORDER OF THE BOARD
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FOR THE ATOMIC SAFETY AND LICENSING BOARD
((
Herbert Grostman, Chairman
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Wi t Dr. Oscar H. Paris, Member N
b,,
Frederick J '
on, Member
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Dated at 3ethesda, Maryland
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this 12th day of September, 1980
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