ML19347A581

Discusses Case Law Clarifying Saginaw Intervenors' Exception 4A Position During Oral Argument.Initial Decision Deficient Because ASLB Failed to Independently Research & Review All Environ Issues

ML19347A581
Person / Time
Site:	Midland
Issue date:	04/09/1973
From:	Cherry M JENNER & BLOCK
To:	Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8007291005
Download: ML19347A581 (5)

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-Alan S. Rosenthal, Zuq. j '

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Atomic Safety and Licensing j Appeal Board '

.U.S.. Atomic Energy Commission Washington,.D.C. 20545 Dear Chairman Rosenthal Sinca the date of the oral argument regarding In, n The Matter of Consumers Power Company (Midland Plant, Units 1

.and 2), Docket Nos. 50-329 and.50-330, several recent cases have come to Saginaw Intervenors' attention which bear directly

. upon Saginaw Intervenors' Exception IV A. As you will recall, that Exception, in essence, demonstrated that the Initial Deci- l sion was deficient.as a matter of law because the Licensing i

. Board failed to do an independent review of all issues of an environmental nature, whether contested or uncontested. In '

particular,-you asked'us in that Exception to focus upon the requirement that the Licensing Board engage in independent re-search'.

1 In order to assist you and the Atomic Safety and l Licensing Appeal Board.in making your. decision on Exception .

l IV A',- we are taking this opportunity to present to you these l cases, in the event your rese. arch has not disclosed them.

1 At the' oral argument,'we demonstrated that the Licensing l 7 Board has been content'to sit back like an umpire in this pro-

.coeding'to. resolve environmental issues that:others might raise, j but has~~not taken the initia -

've itself in probing environmental 41.GJ./px-

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AlanLS. ' Rosenthal, -Esq.' April 9,'1973 Page 2 1

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t ,considorations. .Yet the unequivocal intent of NEPA requires-that the Licensing Board, as-the. designee of the agency, en-sure that'the environmentalist goals of NEPA are carried'out.

Tha cases make it clear that an~ administrative ~ agency, as ' the; r5presentative of the public inter < :t, has an affirma-tive duty to ensure that the record on which a-decision is-based is complete, office of Communication, United Church of Christ

v. .FCC, 359 F.2d 994 (1966); Scenic Hudson Preservation Con-ference v. FRC, 354 F.2d 608 (2d Cir. 1965); Green County Plan-ninq_ Board v. FPC,.(CA 2nd, Nos. 71-1991, 71-1996) decided January 17, 1972, slip. op. . 1405-06.

. As the court stated in the Scenic Hudson case, "If the commission is properly to dis-

charge its duty in this regard (licensing' of plant) the record-

- on which it bases its determination must be complete. The peti-tioners and the public at large'have a right to demand this

completeness." 354 F.2d'at 612.

Thus, the' purpose of a Licensing Board review is to provide an opportunity. to marshall all of the data bearing -on '

the issue at hand,'so that any decisions are made with full knowledge and disclosure. Any decision based.on incomplete information must be set aside. Shannon v. United-States Depart-ment'of Housing and' Urban Development, 436'F.2d 809, 819 (3d Cir. 1970'. ,

To fulfill its responsibility in this regard the

- Licensing Board must evaluate the information received from the parties and determine whether all of the relevant facts have q

, .bcen.' included. -If'not, the Licensing Board must seek out and i add any information necessary to supplement the material submitted by~the parties'. As.the court in Scenic Huds'on:noted in quoting

~ from the opinion in'Isbrandtsen Co. . U. S . , 96 F. Supp. 883, 892 '(S.D. H.Y. '1951), "The agency does not do its duty when. 'it -

- merely decides upon a poor or nonrepresentative record. As the j

-sole representative of the publict which is a thil party in these proceedings,'the. agency' owes the duty to investigatecall pertinent facts,.and to see that they are adduced when the I'

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a Alan'S. Rosenthal,'Esq. April 9, 1973 i Page 3.

parties have :not .put them . in. . .The agency must always act .upon

the record 'made and-if that is not sufficient, it should see

< l that the~ record.is supplemented before it acts...." Scenic-Hudson' Preservation Conference v. FPC, 354 F.~2d 608,-621. Not- 1 only must the Licensing Board determine that all.the necessaryl j information is included, but in particular, it'must make'a thorough' study, "on'its own initiative, of the alternatives to i what the private parties present where the consider'ation'of i such alternatives appears, prima facie, to be: required by the  :

public interest." _ Michigan Consolidated Gas Co. v. FPC,1283:

' F.2d 205, 207 (1960) . . The course of action prescribed by the parties is not simply.to be approved or disapproved.. If. alter-i natives exist, they must be weighed against the plan . submitted - .

by the parties in. light of the public interest. For instance, -

i better safety systems and better methods for evaluating these safetyxsystems'must'be considered whethei Applicant suggests.

! them or-not. J

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Becauss-it'has relegated the representation of its interest to the. agency, the courts have found that-the public is entitled to certain assumptions about-theLagency's activities.

As Commissioner Ross said in his dissent to the decision o'f the' FPC to grant Con Ed a' permit'to.constiuct.the Storm King pumped

, -storage. facility, "I do feel the publi: is entitled to know en >

[ , the record .(emphasis. added) that -no - stone has been left uuturned. ..

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regulatory commission can ensure continuing confidence in.its decisions only when~it has used its. staff and'its own expertise-L in' a ~ manner:not possible for the uninformed -and >poorly financed pubrlic. " Scenic Hudson ~ Preservation Conference,. supra, at-621.

To meetithe public'stright.to-know, and to aid the Board in--its-idetermination 'of the' adequacy. of the Licensing Board review,

'~ the record presentedfmust reflectEthe investigative findings of;thecLicensing Board and any additional information acquired

. .duringcthe. review. :In the words of Commissioner Ross in the

' Scenic ~ Hudson case, the; record should " speak "

.- . It :does little good '

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'if;the Licensing _-Board: properly carries' outfits review and does not-

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makeithianapparent on the record.

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Alan S./Rosenthal, Esq. April 9, 1973 Page 4 The March 15, 1972 decision in Natural P.esources Defense Council v. Grant, 341 F. Supp. 356- (E.D. N.C. 1972),

reaffirms this. view of the Licensing Board's appropriate role.

In that case, no environmental impact statement had been filed in connection with ~a watershed project approved by the Soil conservation Service which-the evidence showed would have an impact on the environment. In ruling on whether an injunction i should issue,.the court held that the Soil conservation Service, as the responsible agency, must take the initiative itself and i consider the environmental aspects required by NEPA: l l

...The Soil Conservation Service is the federal agency responsible for the planning and funding of this project. Its primary concern in this action seems to be that if it has to issue an impact statement for this. project, it will have to do the same for many other ongoing  ;

projects. This will cause delay and, in many j cases,-duplicity. The projected cost per project l for issuing an impact statement is approximately

, $7,500. This. cost is minute indeed in comparison to the equity of the farmers and the effect that this project will have on the environment. The i ' conservationists are organizations dedicated to the laudable cause of conservation and preserva-

. tion of our' environment. They have shown that this project will have a significant effect on the environment. It.is to the public's welfare that any project significantly affecting the en- l vironment comply with the procedures established j

.. by'NEPA so there can be. assurance that the en- i vironmental aspects have been fully considered. l It'would constitute irreparable damage for this (

project to proceed without the environmental l aspects being properly considered as - required by NEPA. Therefore1the equitable considerations  !

favor the environment, the public, and the plain-

- tiffs and -require that- the construction of the

Chicod Creek Watershed Project be enjoined -until thefrequirements of'NEPA are satisfied. " 341 F.',Supp.;at 369.

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Alan S. Rosenthal, Esq. -April 9, 1973 Page~5-1

'In.the present case,Lthe Licensing Board has merely'

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rubber-stamped the impact statement'and the-environmental.

j' findings 1of the Regulatory Staff. - The result is as disturbing as in Grant; the agency.has notJassured that environmental

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- aspects have been fully. considered as required by NEPA.

j- In. summary, therefc.'e, the Licensing Board has two responsibilities to fulfill its duty to. complete an " adequate" 3

review of an application.- It must inquire into and consider all-relevant facts, including the alternatives, and it must

. bring the material forth so that the parties and the public can i determine' what has. been done. .The Licensing Board must be open with the public and.not_ hide _information or mask conclusions ~

which raise doubts about commission policies or programs. Its i-  ; function'is not to be a proponent of a particular nuclear power reactor, at least not until it has completed its investigation l

and made all the relevant data available on the public record.

! -We hope, therefore, that this review of the case law

! further clarifies the pos'ition we took during oral-argument and proves helpful to th e Atomi c Saf ety and Licensing Appeal Board in rendering its decision on Exception IV A.

f-Very truly yours, i

j' '

Myron M. Cherry Attorney for Intervenors MMC:mr s

- CC:: Secretary, Atomic Energy Commission

.j - Harold-F.-Reis, Esq.

Milton R. Wessel, Esq.

' David E. Kartalia,~Esq.

l

_g William Parler, Esq.

Dr.. John H. Buck 4' Howard J.-Vogel, Esq.

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