ML19344B328

Submits Info That Should Be Discussed in Supplemental EIS & Considered Prior to NRC Critical Decision on Extension of Facility CP

ML19344B328
Person / Time
Site:	Bailly
Issue date:	08/12/1980
From:	James Shea PRESIDENT OF U.S. & EXECUTIVE OFFICES
To:	NRC COMMISSION (OCM)
Shared Package
ML19344B326	List: ML19344B324 ML19344B328
References
NUDOCS 8008260574
Download: ML19344B328 (4)

Text

EXECUTIVE OFFICE OF THE PRE 510ENT COUNCIL CN ENVIRONMENTAL QU ALITY 722.:ACK5oN PLACE. N. W WASHINGTON. D. C. 20006 MEMORANDUM FOR THE CHAIRMAN THROUGH: Foster Knight, Acting General Counsel FROM: John Shea, Counsel

SUBJECT:

The Need To Supplem t NRC's EIS On the Bailly-1 Reactor Construction Permit On May 27, 1980, the Attorney General of the State of Illinois wrote'to the Council concerning the application of the National Environmental Policy Act ("NEPA") to a decision by the Nuclear Regulatory Commission

("NRC") on a request for an extension of the construction permit for the Bailly Generating Station, Nuclear-1 ("Bailly-1") .

Background

The final environmental impact statement on the construction per=1t for Bailly-1 was issued in February 1973. The initial construction per=it 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 NRC, the Northern Indiana Public Service Cc=pany

("NIPSC0") will forfeit all rights to construce Bailly-1 (Section 135 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. $2235).

1. The Attorney General's Letter.

The Attorney General identified a number of developments and items of information which are relevant to environmental conce.ns and the NRC's decision to allow the construction of Bailly-l. Several of these ite=s were discussed at length in the Council's letter and attachment to the NRC, dated March 20, 1980. These include:

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

2. The accident at Three Mile Island and the subsequent studies of the event, including the Report by the President's Coe=ission on The Accident At Three Mile Island and the report of the Special Inquiry Group to the NRC.

3. The Council's release of the report by the Environ = ental Law Institute entitled, NRC's Environ = ental Analvsis of Nuclear Accidents: Is it Adecuate?

8008260 5 7//

2 One other related development discussed in the Attorney General's letter

• involves a memorandum to Daniel R. Muller, Acting Director of the NFC's Division of Site Safety and Environmental Analysis, from R.

Wayne Houston, Chief of the NRC's Accident Analysis Branch, DSE, con-cerning the development of siting criteria for nuclear reactors. That memorandum indicates that the Bailly-1 facility failed to meet all six of the proposed siting criteria contained in the report of the NRC's Siting Policy Task Force (NUREG-0625) (1979).

2. CEQ's Letter of March 20, 1980, to the NRC Concerning Accident Analysis.

In our letter of March 20th, we told the NRC that its long-standing approach to accident analysis in EISs was inadequate to meet the full disclosure requirements of NEPA. We also stated that all future EISs would have to include an accident analysis which fulfilled the requirements indicated in our letter and discussed further in the ELI report. We went on to say that the NRC should perform supplamental accident analyses for operating nuclear reactors giving highest priority to high rish reactors, particularly those near densely populated areas or reactors with unique features having a greater potential for accidents.

3. The NRC's Recent Statement of Interim Policy Concerning Accident Analysis.

On June 13, 1980, the NRC published an Interim Policy for the consideration of severe reactor accidents in EISs. 45 Fed. Reg. 40101. The statement of policy announced the withdrawal of the old classification system for nuclear accidents and set forth the Commission's direction that NRC EISs

" include considerations of the site specific environmental impacts attributable to accident sequences that lead to releases of radiation

' and/or radioactive materials, including sequences that can result in inadequate cooling of reactor fuel and to melting of the reactor core."

Id. In carrying out this policy, the NRC staff was instructed to consider relevant site features associated with accident risks, including population density. The staff was also directed to " consider the likelihood that substantive changes in plant design features which may compensate further for adverse site features may be more easily incorporated in plants when construction has not yet progressed very far." 45 Fed. Reg. at 40103.

The Legal Issues Under NEPA As with its other actions and decisions, the NRC's responsibilities under the Atomic Energy Act regarding its decision on NIPSCO's applica-tion for an extension of the construction permit are supplemented by the NEPA. Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F.2d

• This <nemorandum focusses only on the developments cited by the Attorney General's Office that are national in scope. Several other developments referred to in the Illinois letter, which are more of a local nature, may be appropriate for discussion and consideration in a supplement to the Bailly-1 EIS, depending upon their significance. These " local" developments include (1) the drawdown of water during plant construction from the Indiana Dunes National Lakeshore and Cowles Bog, (21 increases in plant costs, and (3) decreases in the need for power.

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3 1109,1112 (D.C. Cir. ,1971), cert. denied, 404 U.S. 942 (1972); Public S7rvice Co. of New Hampshire v. Nuclear Regulatory Commission, 582 F.2d 77 (1st Cir. ,1978), cert. denied, 439 U.S. 1046. A decision to extend thm NIPSCO construction permit and thereby allow the construction of Bailly-l, would be a major federal action necessitating compliance with NEPA's requirement for an EIS review. 40 CFR 551502.3 and 1508.18; Minnesota PIRG v. Butz, 498 7 2d 1314 (8th Cir., 1974). In this case the NRC could adopt its prior EIS or portions thereof and issue a supplement to that EIS to disclose the significant new information discussed above.

40 CFR $51506.3 and 1502.9(c).

Ths Council's new NEPA regulations provide at 40 CFR $1502.9(c) (1979) that

"(c) Agencies:

(1) Shall prepare supplements to either draf t or final impact statements if:

(1) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information, relevant to environmental concerns, bearing on the proposed action or its impacts."

In Essex County Preservation Association v. Campbell, which was decided prior to the adoption of the Council's v2w regulations, the Second Circuit affirmed a district court's order directing the Federal Highway '

Administration to prepare a supplemental EIS on significant new circum- The stances involving a moratorium on certain highway extension work.

moratorium purportedly called into question the need for other highway construction at issue in the case. The Court of Appeals affirmed the district court, stating:

. . the [ district] court held that a supplemental EIS had to be prepared in order to effectuate the basic aims of NEPA which favor See disclosure of all relevant factors affecting agency decisions.

Monroe County Conservation Council. Inc. v. Volpe, 472 F.2d 693, 697 (2d Cir., 1972). We are inclined to agree with this judgment.

l While we cannot determine with certainty what the ultimate environmental effects [of these new circumstances] will be, it would seem to constitute the type of 'significant new infomation.. .concerning

[at 1 action's environmental aspects' that makas a supplemental EIS nec 1sary. 23 CFR 5771.15. Such a supplemental statetent, which re w .ves the same type of public comment and exposure as an original EIS is likely to facilitate the ' complete awareness on the part of the actor of the environmental consequences of his action . . . ,'

National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. ,1971),

mandated by NEPA." Essex County Preservation Association v. Cacobell, 536 F.2d 956, 8 ERC 2156, 2159 (1st Cir., 1976).

The Court went on to hold that:

"In view of the fact that the reconstruction project at issue here is not yet completed and that certain agency decisions may ' remain

. 4 open to revision,' (citation omitted] we cannot say it was improper for the district court to require appellees to prepare and circulate a supplemental EIS . . . ." Id.

In the past the Council has advised agencies to prepare supplemental EISs in order to fulfill the NEPA mandate identified by the Court of Appeals in the Essex County case, i.e., that agencies must be aware of the potential consequences of their actions and that agencias such as the NRC should weigh all of their decisions in light of significant new data and developments. Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620 (2d Cir., 1965), cert. denied, 384 U.S. 941 (ISbe';

Hudson River Fishermen's Association v. FPC, 498 F.2d 827, 832 31 2d Cir., 1974). This should be done only af ter preparation of a supple-mental EIS. As stated by the Second circuit in interpreting 40 CFR 51500.11 of the Council's former guidelines:

Although an EIS may be supplemented, the critical agency decision must, of course, be made after the supplement has been circulated, 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).

Conclusion Consideration of the significant new information relating to the environ-mental consequences of severe reactor accidents might indicate..among other things, the need to modify plant design, select an alternative site, implement certain emergency preparedness measures, or reconsider a construction permit altogether. It is essential, therefore, ti.at this information be discussed in a supplemental EIS and considered prior to the NRC's critical decision on the extension of the Bailly-1 construction permit.

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