ML19347E248
| ML19347E248 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 04/17/1981 |
| From: | Semmel H BIER, MILLS, CHRISTA-MARIA, ET AL, URBAN LAW INSTITUTE |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8104240385 | |
| Download: ML19347E248 (8) | |
Text
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y UNITED STATES OF Af! ERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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CONSUMERS POWER COMPANY
)
Docket No. 50-155
) (Spent Fuel Pool Modification)
(Big Rock Point Nuclear Plant)
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PETITION FOR REVIEW 0F DECISION OF THE ATOMIC SAFETY AND LICENSING APPEA. BOARD THAT A ENVIRONMENTAL IMPACT STATEMENT IS y
g NOT REQUIRED AS A MATTER OF LAW cc xtra y
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Herbert Semmel b[JL' Urban Law Institute S.
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Antioch School of Law 2633 16th S treet, N.W.
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Attorney for Intervenors Cris ta-Ma ria, Mills and Bier April 17, 1981 4
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QUESTION PRESENTED Where an atomic energy plant was licensed prior to NEPA so that no EIS was prepared as to operations, and where the purpose and effect of a proposed license amendaent to expand the spent fuel pool are to extend the operating life of the plant, does NEPA require an EIS on the extended operations?
SUMMARY
OF DECISION AND PROCEEDINGS BEFORE THE LICE.'; SING BOARD AND APPEAL BOARD Intervenors Crista Maria, Mills and Bier petition pursuant to 10 C.F.R. 52.786 for review of the decision of the Atomic Safety and licensing Appeal Board, dated March 31, 1981 (Appeal Board Decision), that NEPA does not require preparation of an Enviornmental Impact Statement (EIS) in co"'ection with a proposed license amendment.
The appeal Board reversed the licensing Board which had found that an EIS was required because no EIS had ever been prepared when the plant was licensed in 1962 and the effect of the amendment is to expand the operating life of the plant.
(Decision of September 12, 1980, hereafter " Licensing Board Decision".-
Consumers Power Company (Licensee) seeks a license amendment "to increase the storage capacity of the spent fuel pool at the Big Rock Point Plant to allow continued plant operation" (emphasis added).
Licensee's application, April 19 7 9, p.1 - 1.
In response to a contention raised by Intervenor O'Neill (see Appeai Board Decision, p. 3-4), and after soliciting briefs from all parties to the proceeding on the issue, the Licensing Board ordered the Staff to prepare an EIS limited in scope to the " environmental impacts of an expanded spent fuel pool and the additional term of
operation of the facility that such expansion would permit."
(Emphasis added).
Licensing Board Decision, pp. 18-19.
The Licensing Board referred its ruling to the Appeal Board pursuant to 10 C.F.R. 92.730(f).
By order of September 12, 1980, the Appeal Board accepted the refe.rral, and then reversed.
The facts as found by the Licensing Board and Appeal Board are simple.
The Big Rock Point Plant was provisionally licensed in 1962 and fully licensed in 1964, before the passage of NEPA.
Accordingly no EIS was ever prepared for the plant.
In fact the Atomic Energy Commission at the time believed it lacked power to consider broad environmental issues inherent in the operation of a nuclear power facility.
Calvert Cliffs Coordinating Committee v.
U.S. Atomic Energy Commission, 449 F.2d 110 9,1112, n.4 ( D.C.
Cir. 1971).
Since no EIS has ever been prepared, a variety of potential environmental impacts arising from the operation of the plant have never been assessed.
As a result of a moratorium imposed on shipment of spent fuel in 1977, Licensee has been required to store all its spent fuel in its own spent fuel pool.
Since the pool will be filled to capacity by 1984, the continued operation of the plant is con-tingent upon approval of the a pplication to expand the spent fuel pool.
"The sole purpose for and the practical effect of the Federal approval sought is to extend the operating life of the plant from 1981 to 1990."
Licensing Board Decision, p.8.
See also Appeal Board Decision, p p. 18-19, 24.
l The Licensing Board found that NEPA required preparation of an EIS on the extended life of the plant because the current appli-cation for an amendment to the operating license is a major federal I,
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action and no EIS had ever been prepared covering operation of the plant.
It found that operation of a nuclear power plant signi-ficantly affects the environment.
It held t' at the requirement of at EIS limited to the extended life of operationof the plant is not a retroactive application of NEPA and would not be duplicative of any prior environmental assessment because none existed.
The l
Licensing Board carefully limited the scope of the EIS to the incremental effect of the proposed amendment, but found that "a realistic view of the incremental effect must take into account the increase in the t' rm of operation."
Licensing Board p.17.
e The licensing Board reversed.
It held that since continued plant operation simply results in maintenance of the environmental status quo, there are no environmental changes to evaluate.
Appeal Board Decision,
- p. 26.
It also asserted that "the necessary ' Federal action' (i.e., approval of the license amendment to expand the spent fuel pool) purportedly would not provide any opportunity to al ter plant opera tion."
The Appeal Board failed to consider that an EIS might result in a decision to deny the license amendment, effectively closing the plant, because the Commission may determine that the environmental damage from future operation outwe'ighs the l
benefits of the very small amount of power produced at the plant.
THE APPEAL B0ARD FAILED TO CARRY OUT NEPA'S COMMAND TO PAXIMIZE INFORMATION CONCERNING ENVIRONMENT l
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The essential purpose of NEPA is to maximize "to the fullest extent possible" information concerning the environment available to federal decision makers.
42 U.S.C. 14332;40 C.F.R. 111500.1 and 1502.10 C.F.R. 151.1(a).
"The sweep of NEPA is extraordinarily broad, compell;ng consideration of any and all types of environmental l.
impact of federal action."
Calvert Cliffs Corrdinating Committee
- v. U.S. Atomic Energy Commission, 449 F.2d 1109, 1122 (D.C. Cir.
1971).
The EIS is the primary instrument by which Congress sogght to achieve its objectives.
Congress directed that "to the fullest extent possible", all federal agencies shall prepare an EIS on all " major Federal actions significantly affecting the huma n environment." 42 U.S.C. 14332.
The decision of the Appeal Board sweeps under the rug the serious environmental considerations which flow from extending the operational life of the Big Rock plant.
Because the plant was built prior to the enactment of NEPA, environmental factors were never taken into account in the decision making process at the time of licensing.
The Court of Appeals in Natural Resources i
Defense Council
- v. Morton, 458 F.2d 827, 836'(D.C. Cir. 1972) sta ted that the major Congressional purpose of NEPA was to avoid the perpetuation of mistakes of the past where policy was made by default a nd inac tion.
The absence of prior consideration of enviornmental impacts is precisely what requires their consideration now that new federal action is sought to enable continued operation of the plant.
As the court said in Calvert Cliffs, supre, 449 l
F.2d at 1118:
" Compliance to the ' fullest' extent possible would seem to demand that environmental issues be considered at every important stage in the decision making pro-cess concerning a particular action, at every stage where an overall balancing of environmental and non-enviornmental factors is appropriate and where alter-ations might be made in the proposed action to minimize 1
environmental costs.
Of course, consideration which is entirely duplicative is not necessarily required."
Where the environmental effects of operation were considered in the original licensing decision, reconsideratien at a later point would be duplicative.
But there is no duplication where
m there has never been an EIS on the opera tionof the plant.
The Appeal Board failed to follow Minnesota PIRG v. Butz, 498 F.2d 1314 (8th Cir.1974) in which a project approved and begun prior to enactment of NEPA had its life extended by federal action af ter NEPA, requiring an EIS.
Accord: Jicarilla Appache Tribe of America v. Morton, 471 F.2d 1275 (9th Cir. 1973).
- Instead, it "reanalyized" NEPA to inquire whether the proposed federal action has a cause and effect relationship with changes in the environment, Appeal Board p. 26 and cases cited therein.
But this analysis is inapplicable to the operation of a nuclear power plant that is regularly releasing batches of liquid waste into Lake Michigan and continuously venting into the atmosphere.
Nor have the effects of the " experimental" use of plutonium enriched fuel bundles ever been assessed.
In constrast, Committee for Auto Resoonsibility v.
Solomon, 603 F.2d 992 (D.C. Cir. 1979), cert denied 445 U.S. 915 (1980), involved a four year lease on a parking lot.
Westside Property Owners v. Schlesinger, 597 F.2d 1214 (9th Cir.1979) merely involved a post NEPA formalization of pilot training that had gond on for many years.
597 F.2d at 1224.
These cases are a far cry from the hazards presented by an atomic energy plant:
"In cases where environmental costs are not considered in granting a cons titution permit, it is very likely that the planned facility will include some features which do significant damage to the environment and which could not have survived a rigorous balancing of costs and benefits."
Calvert Cliffs, supra, 449 F.2d 1109, 1128.
REASONS FOR GRANTING REVIEW As the Appeal Board noted, "/1/he situation presented by this case is unusual, if not unique."
Appeal Board, p. 18.
Although the decision may not affect other cases, the question of whether o
an EIS is required will eventually have to be decided by the Commission itself when it reviews the decision of the Licensing Board on whether the license amendment to expand the spent fuel pool should be approved.
If the Licensing Board were to approve
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without an EIS and the Commission were to find that an EIS is re-quired, the entire proceeding would have to be repeated, for the EIS must accompany the proceeding at each stage practicable and cannot simply be prepared af ter the fact.
Calvert Cliffs, supra, 449 F.2d a t 1118.
Thus any delay and expense required to prepare an EIS is far less than the delay and expense which will ensue if the Commission determines at a later date that an EIS is required by law.
Futhermore, the EIS may produce valuable information on the health and safety consequences of extending the operating life of this plant.
The Commission should not approve such extension without the information an EIS could develop.
For the Big Rock Point plant has never passed environmental muster.
Respectfully submitted, HERBERT SEMMEL Antioch School of Law 2633 16th Street, N.W.
Washington, D.C.
20009 l 1
CERTIFICATE OF SERVICE T
hereby certify that copies of the' attached Petition for Review by Intervenors Crista-Maria, Mills and Bier was served upon the persons named in the attached list by depositing copies in the United States Mail, first class, postage prepaid, the 20th day of April, 1981.
HERBERT SEMMEL l
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