ML19346A326
| ML19346A326 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 06/12/1981 |
| From: | Semmel H ANTIOCH SCHOOL OF LAW, WASHINGTON, DC, BIER, MILLS, CHRISTA-MARIA, ET AL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8106190142 | |
| Download: ML19346A326 (9) | |
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UNITED STATES OF AMERICA
_e NUCLEAR REGULATORY COMMISSION
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g ATOMIC SAFETY AND LICENSING BOARD j Jg I O 196f g g g
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s In the Matter of
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Docket No. 50-155
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) (Spent Fuel Pool Modification)
CONSUMERS POWER COMPANY
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(Big Rock Point Nuclear Plant) l'k
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4,,[d d gd REQUEST FOR PREPARATION OF ENVIRONMENTAJE- %
/Sg IMPACT STATEMENT cj
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Intervenors Christa-Maria, Mills and Bier recuest the l' " ' Ing Board to exercise its discretion and request the preparation of an Environmental Impact Statement (EIS) covering the operations of the Big Rock Point Plant for the additional ten year operating life made possible if a licence amendment were to be approved expanding the spent fuel pool.
In its opinion herein, ALAB-636, the Appeal Board made the following statement concerning the discretionary power of the Commission and the licensing-Board (p. 31-32, fn. 29) :
"Nothing in our holding is intended to suggest, however, that the Commission itself could not, as a matter of policy, require evaluation of tha environmental impacts of the continued plant operation resulting from a spent fuel pool ex-pansions.
Neither NEPA nor the agency's environ-mental regulatior.s, 10 C.F.R. 51, preclude such an exercise of discretion.
Cf. Offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9, 10 NRC 257, 261 (1979).
In this connection, Ms. Christa-Mariat et al.,
contend that the Licensing Board had discretion.
to order the preparation of an EIS on continued plant operation.
Br. 21-25.
Because the Board did not purport to exercise discretion but rather held that NEPA recuires an EIS, we do not reach g> S O E Si s 2 co no lyk cr
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the. issues of whether such discretion was the Board's to axercise, and, if so, whether it properly exercised it."
I THE LICENSING BOARD HAS DISCRETION TO REQUIRE PREPARATION OF AN EIS As the Appeal Board has found, the Commission itself has authority to require preparation of an EIS as a matter of discretion, even if technically not required by NEPA.
The Commission has dele-gated that authority to the Licensing Board.
As a " Presiding Officer",
cee 10 C.F.R.
S2.721(d), the licensing Board is authorized to take "any other action" consistent with the Atomic Energy Act and the regulations of the NRC.
The Licensing Board has " broad power over the Licensing Process."
Offshore Power Systems, ALAB-49, 8 NRC 194, 204 (1978).
-The Policy Statement which follows the regulations governing hearings also provides that in matters relating to an operating license, the Licensing Board will determine the issues raised by the parties and where the board determines that "a serious safety, environmental or common defense and security matter was not raised by the parties, the board will determine such matter as being among the issues to be decided. " 10 C.F.it. Part 2, Appendix A, Part VIII(b) (p. 110).
See also proposed regulations S51.20 (a) (12), 45 Fed. Reg. 13751-52 (Mar. 3, 1980).
In Tennessee Valley Authority (Hartsville Nuclear Plant, Units LA, 2A, 1B and 2B) 5 NRC 572 (1977), the applicant appealed an order modifying an existing limited work authorization (LWA). Tt4 Lice. E ( Board l
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9 raised sua sponte the question of whether construction of offsite transmission lines could appropriately be undertaken as part'of LWA cetivities.
Although the Appeal Board disagreed with the result reached by the Licensing Board on the merits, it made clear that the disagreement with the decision below"...should not be allowed, how-over, to obscure the fact that, in inquiring on its own initiative into the transmission line question, the Board was discharging an important function assigned to it.
Licensing Boards have independent respcnsibilities in the realm of the enforcement of the NEPA command; i.e.,
their r ole is not confined to the arbitration of those environ-mental controversies as may happen to have been placed before them by the litigants in the particular case. " (Emphasis added, at pg. 575).
II THE IMPACT ON THE ENVIRONMENT FROM THE BIG ROCK POINT PLANT SHOULD BE ASSESSED Both this Licensing Board and the Appeal Board have four.d that cpproval of the application to expand the spent fuel pool is necessary for continued operation of the Big Rock Point plant.
See Licensing Board decision, September 12, 1980, p.8; Appeal Board decision, March 31, 1981, pp. 18-19, 24.
The licensee conceded this point at oral argument before the Appeal Board.
Oral Argument, TR.
9.
It is equally clear that the operation of a nuclear power facility has the potential to impose great damage to the environment.
Licensing Board Decision, September 12, 1981, p. 15, added footnote.
All applications for operating. licenses under consideration since NEPA because effective are automatically reviewed by an'EIS which in-cludes the effects of operation.
As this Licensing Board again pointed out in its Memorandum of April' 22, 1981, p. 5, in other Opent fuel pool expansions in which EISs were not required, there had been prior environmental reviews of operations.
But no such review has ever been undertaken in the case of the Big Rock Point Plant.
No one knows, for example, what effect the discharge of radio-active water and other materials has on the fish and plant life of Lake Michigan.
No one knows the effect of such discharges on the people who live on the shores of Lake Michigan or eat its fish, or use its waters.
No one knows the effect of the continued venting of radioactive matter into the atmosphere on the population in the vicinity of the plant.
No one knows these things because no full ar*1 / sis of them has ever been made.
Nor does anyone know the effects of the use of plutonium enriched bundles at the plant on the environment.
No one knows whaE other damage wi)1 ccntinue to be done to the environment by continued operation because no full analysis of operations has ever been made.
Ths Environmental Impact Assessment prepared by the staff, dated May 15, 1981, does not purport to measure the impact on the environment of continued plant operation.
It addresses solely the possible effects of expanding the spent fuel pool and concludes that t.o additional "significant" impact to the environment will occur from the expansion.
But the EIA never tells us what is the already existing snd ongoing damage to the environment.
The practical.
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effect of.this approach can be illustrated by the case of a popuIstion receiving a steady dose of poison, which may be fatal over a period of time, as a result of a, community effort to eliminate
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rats.
Under the position of the staff herein, if it were pro-posed to slightly increase the dosage of poison, an assessment would be made only of the additional risks of the increase, without inquiry as to whether the original dosage is harmful.
The Nuclear Regulatory Commission should not decide cases with blinders on.
It has a duty to. protect the health and safety of the public.
The Atomic Energy Act is replete with references to the Commission's responsibility to protect public health and safety.
Sections 2013 (d), 2201 (i) (3), and 2232 (a) of tha Act grant the Commission broad discretion to protect the public health and safety in the performance of its duties.
This responsibility has been delegated to this Licensing Board which should carry out the responsibility. If the continued operation of the Big Rock Point plant is actually doing serious damage to the environment, as intervenors believe, preparation of an EIS
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will save the lives and protect the health of thousands.
If an EIS concludes that no damage is occurring from the plants operation, the EIS will at least lay to rest the anxiety that operation of the plant will otherwise cause so many people for years to come.
III RESERVATION OF RIGHTS By this request, interverors do not waive any rights to object to the sufficiency of the Safety and Evaluation Report of the Safety -
cnd Evaluation ' Report or the Environmental Impact Assessment pre-pared by.the Staff or to raise any other issue in this proceeding.
The necessary study and review of these documents, which were not received by intervenors counsel until May 20, 1981, could not be completed prior to the departure from the country of inter-venors' counsel.
For the reasons set forth in intervenors' request for continuance, filed May 18, 1981, intervenors also request the opportunity to reply to any filings'on this request for an EIS until August 10, 1981.
Intervenors also wish to call to the attention of the Licensing Board of the pendency of Intervenors' contention filed earlier in this proceeding that a full study and report of alternatives is required by Section 102 (2) (E) of NEPA even if a full EIS is not required.
In its brief as amicus curiae before the appeal board, the Council on Environmental Quality' agreed with intervenors' contention.
The Appeal Board decision of March 31, 1981, appears to require an evidentiary hearing on this issue.
Intervenors request that such hearing not take place before September 15, 1981, because of all the other matters with which intervenors will be involved under the Order Following Specail Prehearing Conference, even if*tius request for continuance is granted.
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Intervenors a' iso wish to make clear that they do not regard the EIA prepared by the staf f as compliance with Section 102 (E')
2 of NEPA.
Respe ft.lly submitted, ferdert el Antioch School of Law 2633 16th St., N.W.
Washington, D.C.
20009 202-265-9500 Attorney for Intervenors Christa-Maria, Mills and Bier.
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CERTIFICATE OF SERVICE I hereby certify that the attached Request for Preparation of an Environmental-Impact Statement was served upon~the persons in the attached list by depositing copies in the United States mail, first' class, postage prepaid, the 12 th_ day of June, 1981.
M M
Scott Warner d
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Ate.ie Safety and Licensing Jcesph Calle, Esquire Inha, Lincoln and Beale 5:ard Panel g
1120 Conne::icutt' Ave, N.W.
U.S. Nuclear Regulatory Suite 325 Connissien Washington, D.C.
20555 W:4hington, D.C.
20036 Philip P. Steptoe, Esquire Herbert Grossman, Esq., Chairman Isham, Lincoln and Beale Atomic Safety and Licensing One First National Plaza suite 4200 Board Panel Chicago, Illinois 60603 U.S. Nuclear Regulatory Commission Washington D.C.
20555 A:oric saf ety and Licensi:e Appeal Board Panel.
U.S. Nuclear Regulatcry Dr. Oscar H. Paris Commission Atomic Safety and Licensing Washington, D.C.
20555 Board Panel U.S. Nuclear Regulatory Docketing and Service Section Commission Of fice of the Secretarv Washington D.C.
20555 g,3, gue),,
p,9u3, 07;.
Commission Mr. Fredrick J. Shon Weshington, D.C.
20555 Atomic Safety and Licensing John O'Neill, II Board Panel Route 2, Box 44 U.S. Nuclear Regulatory
.. Maple City, MI 49664 Commission Washington D.C.
20555 Janice E. Moore, Esq.
Counsel for NRO Staff
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U.S. Nuclear Regulatoty Co mr.i s s i'on Washington, D.C.
20555 John A. Leithauser Energy Resources Group General Delivery Leve ring, M:
49755 l
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