ML19344B324

Informs That Council Has Reviewed 800527 Ltr Re Application of NEPA Future Decisions Concerning Facility.Council Concludes That NRC Should Prepare & Circulate Suppl to EIS on CP Prior to Rendering Decision

ML19344B324
Person / Time
Site:	Bailly
Issue date:	08/12/1980
From:	Speth G PRESIDENT OF U.S. & EXECUTIVE OFFICES
To:	Fahner T ILLINOIS, STATE OF
Shared Package
ML19344B326	List: ML19344B324 ML19344B328
References
NUDOCS 8008260568
Download: ML19344B324 (3)

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EXECUTIVE OFFICE OF THE PRESIDENT

COUNCIL ON ENVIRONMENTAL QU ALITY 722 JAcMSON PLACE. N W.

WASHtNGToN. D. C. 20006 *-

August 12, 1980 , ,

m Honorable Tyrone C. Fahner E- A'3 g C

Attorney General C ONg af kg 9 Staee of Illinois DC3;;27..t;,;- ;,7 g# th gE.

I Chicago, Ill. 60601 Pfl0D.a U JL,A g , Q g g fj.

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Dear Attorney General Fahner:

The Council has reviewed your office's letter, dated May 27, 1980, regarding the application of the National Environmental Policy Act

("NEPA") to the future decisions concerning the Bailly Generating Station, Nuclear-1 ("Bailly-1").

Our review of the matter indicates that the initial construction permit for Bailly-1 was issued on May 1, 1974. Since that time virtually no construction has taken place, and the construction permit has expired.

Pursuant to the intent of the Atomic Energy Act, unless the permit is extended by order of the Nuclear Regulatory Commission ("NRC"), the Northern Indiana Public Service Company ("NIPSC0") will forfeit all rights to construct Bailly-l.

Your office has suggested that there have been certain significant new developments since the final EIS on Bailly-l's construction permit was issued in 1973, such as:

1. The issuance of WASH-1400, The Reactor Safety Study (October, 1975) and its reevaluation by H. Lewis' Risk Assessment Review Group in NUREC/CR-0400 (1978).

2. The accident at Three Mile Island and the subsequent studies of the accident, including the Report by the President's Commission on The Accident At Three Mile Island, and the report of the Special Inquiry Group to the Nuclear Regulatory Commission.

3. The September 26, 1979, NRC memorandum from R. W. Houston, Chief of the NRC's Accident Analysis Branch, to Daniel P. Muller, Acting Director of the NRC's Division of Site Safety and Environ-mental Analysis, indicating that the Bailly-1 facility failed to meet proposed siting criteria contained in the report of the NRC Siting Policy Task Force (NUREG-0625)(1979).

4. The Council's letter of March 20, 1980, to the NRC and the Council's report entitled, NRC's Environmental Analysis of Naclear Accidents: Is it Adequate?

In our letter of March 20, 1980, we urged the Commission to move quickly to revise its policy on accident analysis in environmental impact state- g ments. The review of NRC EISs by the Environmental Law Institute for gO 9g \ 1 8U08260 gg g

2 the Council had revealed that none of the EISs prepared to date by the NRC for land based reactors has included an analysis of what were formerly known as " Class 9" or worst case accidents. We stated our conclusion that the NRC's new accident analysis policy should require discussion in EIS's of the environmental and other consequences of the full range of accidents that might occur at nuclear reactors, including core melt events. Such analyses.we noted, could improve the Commission's siting, design, licensing, and emergency planning decisions.

On June 13, 1980, the Commission published a new Interim Policy for the consideration of environmental consequences of nuclear accidents under NEPA. The NRC concluded that there is a need to include in EISs a dis-

! cussion of the " site specific environmental impacts attributable to l accident sequences that lead to releases of radiation and/or radioactive materials, including sequences that can result in the . . . melting of the reactor core." 45 Fed. Reg. 40101. The Interim Policy was ambiguous on whether supplements must be prepared for existing EISs that have already been issued for construction permits. However, the Commission stated:

". . . it is the intent of the Commission that the staff take steps to identify additional cases that might warrant early consid-eration of either additional features or other actions which would prevent or mitigate the consequences of serious accidents. Cases for such consideration are those for which a Final Environmental Statement has already been issued at the Construction Permit stage but for which the Operating License review stage has not yet been reached." 45 Fed. Reg. 40101, 40103.

The NRC acknowledged that substantive changes in plant design features as a result of such analyses "may be more easily incorporated in plants when construction has not yet progressed very far." Id.

As indicated in the memorandum enclosed with this letter from our General Counsel's Office, in determining whether to act to extend NIPSCO's construction permit, the NRC's responsibilities under the Atomic Energy Act are supplemented by the National Environmental Policy Act. NEPA requires the NRC to consider environmental factors to the fullest extent possible in its new decision about Bailly-l. The Council is of the view that for this decision, the NRC may simply adopt all or portions of its I prior final EIS pursuant to 40 CFR $1506.3 and prepare a supplement dealing with the developments indicated above. Consideration of this new infor=ation might indicate, among other things, the need to modify plant design, select an alternative site, implement certain emergency preparedness measures, or reconsider the construction permit altogether.

As stated by the U.S. Court of Appeals for the Second Circuit:

"Although an EIS may be supple =ented, the critical agency decision must, of course, be made after the supplement has been circulated,

3 considered and discussed in the light of alternatives, not before.

Otherwise, the process becomes a useless ritual, defeating the purpose of NEPA, and rather making a mockery of it." NRDC v.

Callaway, 524 F.2d 79, 92 (2d Cir., 1975).

In summary, the Council has concluded that the NRC should prepare and circulate a supplement to the EIS on the Bailly-1 construction permit prior to rendering a decision on the pending request for a permit extension. The NRC must also issue a record of its new decision in compliance with 40 CFR 51505.2.

By a copy of this letter, we are providing our conclusions on this issue to the NRC and NIPSCO.

Sincerely, GUS SPETH Chairman Enclosure cc: Members of the Commission President of NIPSCO

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