ML19350C789
| ML19350C789 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 03/31/1981 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-636, ISSUANCES-OLA, NUDOCS 8104060701 | |
| Download: ML19350C789 (42) | |
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- n *'-~ M,g NUCLEAR REGULATORY COMMISSION
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Thomas S. Moore, Chairman.,
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g In the Matter of
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CONSUMERS POWER COMPANY
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Docket No. 50-155 OLA
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(Spont Fuel Pool Expansion)
(Big Rock Point Nuclear Plant))
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Mr. Joseph Gallo, Washington, D.
C.,
and Mr. Peter Thornton, Chicago, Illinois, for the applicant, Consumers Power Company.
Ms. Janice E. Moore for the Nuclear Regulatory Co =ission staff.
Mr. John P. O'Neill II, Maple City, Michigan, intervenor pro se.
Mr. Herbert Semmel, Washington, D.
C.,
for intervenors Christa-Maria, JoAnne Bier, and Jim E. Mills.
Mr. John A. Leithauser, Levering, Michigan, non-party participant pro 3 Messrs.
C.
Foster Knight and John F. Shea III and Ms. Gail Osherenko, Washington, D.
C.,
for amicus curiae Council on Environmental Quality.
DECISION March 31, l's81 (ALAB-616)
In its' memorandum and order of September 12, 1980, the Licensing Board held that where a reactor has never undergone an environmental review, Section 102 (2) (C) of V
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. the National Environmental Policy Act (NEPA), 42 U.S.C.
4 332 ( 2) (C), requires the preparation of an environmental impact statement (EIS) covering the effects of a proposed spent fuel pool expansion and the. additional term of reactor operation that such expansion would permit.
LBP-80-25, 12 NRC 355, 359, 366. 1/
We accepted the Licensing Board's rdferral of this interlocutory ruling, and the parties have briefed and argued the matter.
See 10 C.F.R. 2. 730 (f). --2/
- L/
Section 102(2) (C) provides, in pertinent part:
The Congress authorizes and directs that, to the fullest extent possible:
- all agencies of the Federal Government shall --
include in every recommendation or report on pro-posals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible of ficial on --
(i) the environmental impact of the proposed
- action, (ii). any adverse environmental ef fects which cannot be avoided should the proposal be imple-
- mented, (iii) alternatives to the proposed action, (iv)-
the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commit-ments of resources which would be involved in the proposed action should it be implemented.
2 /- We invited the CoLncil on Environmental Quality (CEQ)
~~-
to participate as an amicus curiae.
It accepted our invitation and appeared in support of the Licensing Board's. decision.
l 69
_ = _ _
3-For the reasons explained below, we conclude that the Board erred.
Unless the proposed spent fuel pool expansion will change ree : tor operation, the agency's environmental review for this license amendment need not consider the con-
. tinued plant operation that the expanded pool might permit.
I.
A.
Intervenor John O'Neill II, in his Contention VIII first raised the issue of continued plant operation occasioned by the proposed ' expansion of Bi, Rock's spent fuel pool.
! At a special prehearing conference on December 5, 1979, Mr. O'Neill contended further that a cost-benefit. analysis would show that closing the plant would not~cause undue hardship because the small amount of power it. produces could be easily replaced.
Tr. 215-216.
Applicant Consumers Power Company (CPC) argued, on the other hand, that continued plant operation is not the object of the proceeding and thus should not be considered.
CPC also noted j
._ 3/
'Mr. O'Neill's Contention VIII, as submitted, stated:
Granting of the. license is the,only way the plant can operate past the year 1981 as things stand now,
.and thus allow an extension of plant activity that would otherwise be halted.
Hence, it is a tacit
~
. approval of-such extended operation, and should include a review of ~ general plant safety.
- The Kemeny Commission has recommended periodic relicensing of. existing atomic plants on L the basis ;of -hearings, inspections and performance criteria."
. Big Rock produces very little electricity compared to-modern nuclear generators, 73' megawatts at most; the. closing of Big Rock would not caus'e great-hard-ship.
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. that it expected the staff to issue an environmental impact appraiscl (EIA) with a " negative declaration" (i.e., no significant environmental impact from the expanded spent fuel pool itself).
Tr. 217.
Apparently concerned about the ade-quacy of an EIA because Big Rock,was licensed before the enact-ment of NEPA and thus had never had an EIS, the Licensing Board deferred ruling on Mr. O'Neill's contention.
Instead, it requested the parties to brief the following question (LBP-80-4, 11 NRC 117, 133 (1980) ) :
Where the facility has never been subjected to a National Environmental Policy Act of 1969 (NEPA) review because it wcs licensed before NEPA, does a license amendment which would permit the con-tinued operation of the facility either require or permit considering a cost-benefit analysis or the need'for power in the license amendment proceeding, notwithstanding that the staff may issue a negative
- declaration?
Although the staff had not yet issued any environmental statement, all of the parties-briefed the question, assuming arguendo'that the-staff would eventually issue a " negative declaration"7EIA similar to.those in other spent fuel pool proceedings. 1! In its' decision, the Licensing Board first l
4/
The participating parties include a group of intervenors (Ms.-Christa-Marig et al.) as well as the applicant, NRC
. staff,. and Mr. O'Neill!
The Licensing. Board also~ permitted Mr. John'Leithauser to brief the NEPA question even though it had already denied his petition to intervene.
11 NRC at 133, 123.
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. concluded that the full environnental review of both the expanded spent fuel cool and the continued plant operation it would permit would not result in an illegal retroactive application of NEPA.
Although the Board determined that the continued operation of Big Rock was not an " ongoing Federal project" -- which in many cases necessitates an EIS --
it viewed the proposed license snendment "as requiring a new Federal action for the sole purpose of enabling [ applicant]
to make a fuller utilization of its operating license than it could otherwise."
12 NRC at 359.
It further characterized this as "a new Federal action.
. required to enable a private party to complete a project initiated prier to the effective ~ date of NEPA," citing Minnesc a Publ;; Interest Research Group v. Butz, 498 F.2d 1314 (8th Cir. 1974) [here-inafter "MPIRG"].
_I_d. at 360.
The Licensing Board also concluded that ordering an EIS for the continued operation of Big Rock would not conflict with the holdings of Portland General Electric Co. (Trojan Nuclear Plant),. ALAB-531,. 9 NRC 263 (1979), and Northern States Power Co. (Prairie Island Generating Plant, Units 1 and 2),
ALAB-4 S S, 7 NRC 41 (1978), remanded on other grounds sub nom.
Minnesota.v. Nuclear-Regulatory Commission, 602 F.2d 412
. (D.C. Cir. 1979).
It viewed the Appeal Board's finding that no EIS was required in either Trojan or Prairie Island "as being based merely upon the principle that NEPA does not require the preparation of duplicative environmental reviews for every major Federal action."
Id. at 361.
Unlike Big P.ock, both the Trojan and Prairie Island reactors were the subject of an EIS prepared for their original permit and licensing proceedings.
But here the Licensing Board reasoned that "because no environmental review was made at the time of the granting license, there would be no duplication, and the Federal action sought, for the sole purpose of permitting a fuller utilization of the license, must be assessed."
Ibid.
Another important element of the Licensing Board's de-cision was its finding that approv'al of this license amend-ment -.which ostensibly would permit applicant "to utilize a greater term of the license than would otherwise be possible --
would be a major' federal action with a significant impact on the environment.
Id. at 363-364.
The Board directly linked the spent fuel pool expansion with continued operation.
- Then, by noting that "[i]t is well-established that operation of a' nuclear power plant:has a significant effect upon the human environment," M. at 364'n.2,.the Board easily made O
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. the critical finding that triggers NEPA's EIS requirement.
The Licensing Board thus ordered the staff to prepare an EIS but explicitly limited the scope of that analysis to the incre-mental environmental effects of the pool expansion and the increased term of plant operation.
Id. at 365, 366r5/
Intervenors had also argued that Section 102(2) (E)
' of NEPA, 42 U.S.C. 4332(2) {E), requires the consideration of alternatives to the pool expansion (including plant shut-down), even when no EIS is required. 5/
But because the Li-censing Board grounded its holding on Section 102 (2) (C) of NEPA, which it characterized as more comprehensive, it found
--5/
The Board also admitted Mr. O'Neill's Contention VIII and restated it as follows (12 NRC at 366):
An environmental review of the proposed spent fuel pool expansion is necessary-under Section 102 (2) (C)' of NEPA and would indicate that the environmental costs of this expansion exceed the benefits.
[6/
Section 102(2) (E) provides:
The Congress authorices and directs that, to the _ fullest extent possible:
- *
- all agencies of the Federal Government shall --
study, develop, and describe ' appropriate alternatives to-recommended courses of action in any_ proposal-which involves unresolved conflicts concerning alter-native uses of available resources, a
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. it unnecessary to determine the independent applicability of Section 102(2) (E) to this case.
Id. at 359.
After accepting the Board's referral, however, we directed the parties to brief the Section 102(2) (E) point along with their other arguments on appeal.
B.
Before us, applicant CPC first argues that the Licensing Board misconstrued the scope of this proceeding.
The proposal, it asserts, is simply to expand Big Rock's spent fuel pool capacity, not to continue plant operation.
The notice of hear-ing (which referred only to the spent fuel pool) and the Appeal Board decisions.in Trojan and Prairie Island assertedly rein-force CPC's " limited scope" argument.
The " relevant inquiry,"
in CPC's view, "is not whether -the original license was pre-ceded by NEPA review, but whether the amendment sought signif-icantly changes the environmental impacts of the projects as originally approved."
Br. 12.
Second, in an effort to distinguish cases such as MPIRG, supra, on which the Licensing Board relied, CPC contends that the. post-NEPA modifications of pre-NEPA projects at issue there
-- unlike the Big-Rock spent fuel pool expansion -- were them-
s 9-selves further major federal actions necessarily requiring a full environmental review.
It therefore asserts that scrutiny of Big Rock's continued operation, which was ori-ginally licensed in 1962, would result in an improper retro-7/
active application of NEPA.
Third, assuming arguendo that the Board correctly con-cluded that continued plant operation must be considered in an environmental review, CPC argues that the Board failed to comply with the Commission's regulations,10 C.F.R. 51, by not awaiting the staff's environmental analysis.
Conse-quently, CPC contends that this " procedural irregularity" (Br. 20) deprives the Board's conclusion of factual and record support.
Finally, CPC urges us to decide whether Section 102 (2) (E) is applicable.
Relying on the brief it filed before the Licensing ' Board, CPC contends that this section of NEPA does not apply where, as here, there are no " unresolved con-
.flicts concerning alternative uses of available resources" and the involved proposal has only " negligible" environmental effects.
7/' Big Rock received a " provisional" operating license in
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1962,- followed by a. full-term operating license in 1964.
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The N C staff argue 3 that the Licensing Board's decision does not comport with the Commission's regulations (10 C.F.R.
- 51), which, in both their present and proposed (amended) form, 4
do not require an EIS for a spent' fuel pool expansion.
Relying on Andrus v. S_ierra Club, 442 U.S.
347 (1979), the staff con-tends further that requiring an EIS in this proceeding would 4
improperly "trivialize" NEPA.
The staff asserts that con-sidering the environmental impacts of plant operation, whether
. past or. future, would result in an illegal retroactive appli-cation of NEPA as well.
. The staff views the Licensing Board as lacking authority to order the preparation of an EIS before the staff submits its own independent' appraisal.
Like CPC, it also argues that the scope of the proceeding is defined by the notice of hear-ing.
The' environmental effects of continued plant operation,
- it argues, are beyond'the scope of an application to install
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additional racks in ~ a spent fuel pool.
With respect to Section 102 (2) (E), the staff urges us, if necessary, to determine its relevance, rather than~to remand the issue'to the Licensing Board.- The' staff believes that although Section 102 (2) (E)
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may. require consideration. of alternatives regardless of whether an EIS.is required, there - are no " unresolved conflicts" in
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. this proceeding to invoke that requirement. 8 /
In support of the Licensing Board, Ms. Christa-Maria, et al., argue that because authorization of this spent fuel pool expansion would permit the. plant to continue operating, it is a major federal action with a significant impact on the environment.--9/ Because the plant's operation has never been evaluated for environmental impdct, NEPA, in their view, requires such an evaluation now (in the' form of an EIS) for continued reactor operation.
Intervenors thus emphasize that such an environmental review would not be the duplicative t
one held to be unnecessary in the Trojan and Prairie Island decisions.
Intervenors.also contend that requiring an EIS on con-
. tinued plant operation.is not a retroactive application of NEPA because (1) the EIS ordered by the Licensing Board would concern only. prospective plant operation, and (2) the government is being asked here, as in MPIRG, supra, to 8/- The staff points out (Br. 30), however, that it "has traditionally. considered some alternatives to spent fuel pool expansion in the environmental impact apprais-als which have been issued" and that it " presently intends to consider alternatives-in whatever environ-
~ mental document it produces with relation to the Big Rock facility.". The staff proposes to rely on the Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, NUPEG-0575 (August.1979), for this purpose.
Id. at 31.
. jt/
Intervenors emphasize.that CPC itself stated in its application that the ~ expansion of the spent fuel pool was "to allow continued plant operation."
Br. 1, 20.
4 A
. approve a further major action "' required to enable a pri-vate party to complete a project initiated prior to the
. affective date of NEPA.'"
Br. 16. Ms. Christa-Maria, et al.,
vigorously dispute the arguments of the staff and CPC that
'tdus Board exceeded either its furisdiction or the proper i
scope of the hearing, arguing not only that NEPA requires an EIS in this case, but also that the Board and Commission have discretion to order its preparation.
Id. at 21-24.
'1 They point out that no agency regulation " deprives the Licensing Board of its authority to require an EIS," and they note NEPA's
. broad: mandate to federal agencies to carry out its provisions
'"to the fullest extent possible" (42 U.S.C. 4332).
Id. at
~23,.7..
With respect.to the notice of hearing, intervenors state that its purpose "is simply to advise the public that a proceeding ~ concerning a particular facility has been com-
~ menced -and [to ~ describe] 'its general nature, not to set forth 4
a pleading delineating'th'e issues."
Id. at 26.
Thus, the
~
argument goes, the notice ~of hearing in no way limits the scope lof environmental inquiry in' this spent fuel pool proceeding.
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LIntervenors also. reject: the argument that the Licensing Board improperly interfered 'in the' staff's performance of-its E
J duties by requesting an EIS,Jinstead of the. allegedly forth-c
? coming.EIA. ' They contend.that ' the Board acted wholly in accord m
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with its authority and obligation to avoid delay by ordering the staff to do now what it believed NEPA would inevitably require as a matter of law.
Id. at 30-31.
Finally, Ms. Christa-Maria, et al., argue that the Licensing Board, if necessary, should have the initial opportunity to decide the applicability of Section 102(2) (E).
In the alternative, however, they request an extra two weeks in which to brief the issue.
The position of intervenor O'Neill parallels, in large measure, that of Ms. Christa-Maria, et al.
He also presses several points not raised by the other intervenors.
For instance, Mr. O'Neill suggests (Br. 5-9) that the spent fuel qmol' expansion itself -- apart from the continued plant operation it might permit is a :-dor federal action with a significant impact on the environment, thus requiring an EIS.
In this regard, he discusses certain technical aspects of the pool and contends that this pool expansion proposal is "part of a major new federal policy en spent fuel reprocessing."
.M, :at 8.
. Mr. O'Neill expresse's hf.s confidence that an EIS "will find significant issues of fact that weigh heavily in Lfavor of an alternative to pool expansior., including the al-ternative-of doing nothing."..g.
at 22.
Finally, relying on -his < arguments to the Licensing Board, Mr. O'Neill asserts h,
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14 -
that Section 102 (2) (E) clearly requires consideration of alter-natives in this case.
Id. at 28.--10/
In its amicus brief, CEQ expresses views generally consistent with those of the intervenors.
It argues that because a new federal action is involved, the Licensing Board's decision to require an EIS on the spent fuel pool expansion and continued plant operation does not result in a retroactive application of NEPA, citing MPIRG, supra, as support.
CEO states that the continued plant operation 10/
Mr. Leithauser, who ae a consequence of the denial of his petition to intervene is not a party to this pro-ceeding (see note 4
supra), also filed a brief, al-though he failed to move for leave to do so.
See 10 C.F.R. 2.715(d).
No party, however, has objected to his continued participation.
We therefore accept his brief and accord him the status of non-party participant (essentially " amicus curiae") for the purpose of this appeal.
(Several procedural orders of this Board re-ferred to Mr. Leithauser as an "intervenor."
Those orders were not intended as sua sponte reversals of the. Licensing Board's denial of his petition to inter-vene.
Rather, our references simply reflected Mr.
Leithauser's own characterization of his status in this case in the pleadings he filed that were the subject of the procedural orders.
See, e.g., Leithauser Motion to Postpone Mearing, filed December 19, 1980, Br. 1, 7.)
Mr. Leithauser argues generally that NEPA is broad enough in its reach to require the preparation of an EIS on this spent fuel pool expansion.
In somewhat of a de-parture from the position of both the Licensing Board and the intervenors, however, he seems to argue that Big Rock is an " ongoing Federal proj3ct," governed by the line of cases holding that NEPA applies to any con-tinued. federal' involvement in such projects, even if the latter were' initiated well before the enactment of NEPA.: Lastly, like Ms. Christa-Maria, et al.,- Mr. Leithauser requests additional time to brief the Section-102(2) (E) issue.
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, permitted by the pool expansion makes the proposal a " major Federal action.
" and finds the absence of a prior EIS on the plant a significant factor furthe:. militating in favor 11/
of.a full environmental review of plant operation now.
It also addresses the applicability. of Section 102(2) (E), contend-ing that certain court decisions, as well as CEQ's own regula-tions, require agencies to consider alternatives to a proposed action even when that action does not otherwise warrant an EIS.--12/Applying Section 102 (2) (E) to the instant case, CEQ concludes that there are indeed " unresolved conflicts concerning
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alternative uses of available resources," irrespective of whether
-the word " resources" is limited to " natural" ones (e.g.,
- land, air, water) or is given a broader constructicn.
II.
Soon after we held. oral argument in this case, amicus CEQ submitted a letter-("the January 19 letter") with several 11/
In another part of its brief, however, CEO states that dae amendment ~ involved -here requires "at a minimum, an environmental assessment to determine whether the pro-
-posed action significantly affects the environment, and furthermore,
. the likely. outcome of.an environmental assessment for this' action would.be a decision to prepare Lan(EIS."-Br. 4 (emphasis added; ' footnote.omitted).
?l2/
In.this; case,-consideration of alternatives "would of necessity include the alternative of 'no action.'"
Id.-
at 10.
d
- attachments, purporting to relate to matters raised at the argument.
This material can be categorized as follows:
1.
Discussion in the January 19 letter of CEQ's special amicus role, its " mandate
to review and appraise various programs and activities of the Federal Government in the light of the policy set forth in'"
NEPA, and the " binding" nature of the Council's regulations on other agencies (p. 1, paragraph 2; p. 2, paragraph 1; and the attached report of the Environmental Law Institute, NRC's Environmental Analysis of Nuclear Accidents:
Is it Adecuate? (1980));
2.
Discussion in the January 19 letter concerning three letters.from CEO to the NRC and others that express the Council's views on the adequacy of the Commission's NEPA inquiries in other cases (p.
2, paragraph 2), with the attached three
-letters, dated March 20, August 12, and August 14, 1980;
-3.
Citations for and brief descriptions of four cases to which CEQ's counsel referred during oral argument; and 4.
. Corrections to the oral argument transcript.
- Applicant CPC has coved to strike essentially' the matter
- described in' items.land 2 above.13/
It argues that in each instance this matter constitutes " supplemental argument" and
- is thus " impermissible after an appeal has been submitted for
--13/r CPC=does not mention the Environmental Law Institute report in'its motion.
But'since CEQ's reference to the report falls within.that portion of the Janttary 19 letter that CPC~ moves to strike,'we assume CPC objects to the report as-well..
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. decision absent an opportunity for all parties to respond 14 /
11/
thereto."~~
The NRC staff supports the motion.
We agree with CPC that those portions of the January 19 letter and enclosures to which CPC objects are improper sup-plemental' argument.
We therefore strike them from the record.
See Consurers Power Co. (Midland Plant, Units 1 and 2), ALAB-115, 6 AEC 257 (1973).
. Insofar as,the references to CEQ's "special" relation-ship to other-agencies are concerned, we recognize that the issue of the " binding" nature of the Council's regulations arose briefly.during oral argunent.
Cr. 65, 88, 96.
How-ever, we requested no further briefing cf the matter, and, as shown below, the resolution of this issue is of no relevance to our ultimate decision.
It ~is clearly supplemental argument
- and is of no particular value in'the disposition of this case.
22/
In lieu of our striking the matter, CPC reluctantly suggests that all pa.-ties be permitted to reply to the tendered matter.
15/ We recently received-a letter from CEO urging us to deny
' applicant's motion. - Because the letter was an untimely
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response in opposition to the motion (22 days late) and was not in proper pleading form, we-must reject -it _for filing.
See 10 C.F.R.
2.708, 2.709, 2.710, 2. 730 (c).
4
> The material submitted by CEQ dealing with its views on the adequacy of the NRC's environmental reviews in other cases
- is similarly i= proper supplemental argunent and is, in any event, not relevant to this case.
CEO itself injected this
=atter into the oral argument.
Tr. 66-67.
While we do not see 'its relevance, CEO had the opportunity to pursue this line of' argument or policy position in its brief, but it
. failed to do so. --16/
Fairness to the other parties precludes permitting CEQ to pursue it new.
CPC's motion to strike is granted.
A.
'The situation presented by this e ese is unusual, if not unique. Big lLick Point. nuclear plant, a private project, has.been fully. constructed and operative since 1962 and li-
-censed:by the federal government for a full term'since 1964
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17/
-- years before the effective date of NEPA.--
The plant For example,-the three-letters'of~ March 20, August 12,
-16/
and. August 14,._1980, were.in existence many months before CEQ filed its brief with us.
L y.'se'e' note' l
-7
,.' supra.
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owner has now determined that a modification of the spent fuel pool is necessary and desirable for continued plant operation beyond 1984.
Although the change purportedly would not affect the basic project (reactor operation) or the term of the license, it nonetheless requires a license amendment and thus federal approval.
The need for government approval invokes the agency's
. obligations under NEpA.
We perceive no real dispute among the parties that the Commission must make a threshold deter-mination whether a " major Federal action significantly af-fecting the quality of the human environment" is involved here.- The disagreement, of course, centers on the outcome of that determination, for that in turn may trigger other
'cbligations and consequences for the Commission and the parties.
Because of the unusual nature of this case, it does not fit neatly into the categories or analytical framework sug-gested by most of the cases cited to us or discovered in our own research. -Those cases generally involved the issue of
. whether certain post-NEPA federal action on a project initiated 18/
Big'. Rock's operating license is to _ expire in the year 2000.
m
. before NEPA, but not yet completed, constituted "further major action" so as to require an EIS.
- See, e.g.,
Port of
' Astoria v. Hodel, 595 F.2d 467 (9th Cir. 1979); Sierra Club v.
Hodel, 544 F.2d 1036 (9th Cir. 1976); MPIRG, supra; Jicarilla Apache Tribe of India.s v. Morton, 471 F.2d 1275 (9th Cir. 1973);
Jones v. Lynn,-477 F.2d 885 (1st Cir. 1973).
The government's
' suggestion in many-of these cases was that projects underway or even simply planned before the enactment of NEPA were totally immune;to the future prescriptions of that statute.
The courts, however, rejected that notion, at least
. e insofar as any changes or additions to the projects were concerned.
If'a further major federal action significantly af fecting the quality of the human-environment is involved --
irrespective'of the date of commencement of the basic project --
- then NEPA perforce requires the preparation of an EIS for that further major action.
. Given the nature of the matter' before us,l9 /
we find these Leases inapposite. - The federal action sought here is approval
~ of a license amendment - to expand the capacity of the Big Rock Point s' pent fuel' pool by the addition-of extra-racks 19 )U ' The ~firsti step in any NEPA inquiryfis to define the
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"FederalJaction"freguested or~ involved.
Aberdeen and Rockfish R.R.'vfSCRAP, 422 - U.S.
289, _ 322- (1975).
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f for the fuel assemblies; it is not approval to alter any other aspect of the facility or the term of the license.
Moreover, the situation in Bic Rock is unlike that in many
- of the cases cited above.
For example, Big Rock is not a government-sponsored housing program that evolves over a period of years.
See Jones v. Lynn, supra.
Nor is it a federal power project that similarly and typically undergoes many metamorphoses over a decade or longer.
See Port of Astoria, supra. Renewal of_old contracts and negotiation of new ones for activities on T~
federally-administered land are not involved.
See MPIRG, supra.
'Further, we agree with the Licensing Board that this is not "an ongoing Federal _ project which requires constant reevaluation to determine whether it should continue."
12 NRC at 359.
-Thus,.the object of this proceeding does not readily lend itself to characterization as a "further major-Federal action."
LNo.' spent fuel pool expansion at any other facility has been found to be'a " major' Federal' action," and no party to this proceeding save :Mr.- O'Neill, contends that the expansion per se is such an 20/.
l action.~~
Rather, the intervenors and CEO contend that the i
--20/' As discussed infra, 'we are unable to make any finding at
.this t juncture as to whether this particular spent fuel r
' pool expansion -itself Eis or is not '.a major federal action
~
Lrequiring an-EIS.
That-is a matter initially'for the staff's determination and subsequently for exploration
. during the hearing process._
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.. continued plant operation intended to result from the pool expansion must be taken into account, and that it is this continued operation that makes the pool expansion a major action with significant environmental effects.
The -parties offer no real support for their view that continued plant operation must be considered, other than the argument that it is the.necessary and intended result of the license amendment and is therefore within the scope of the proposal.
As such, the environmental ef fects or impacts associated with continued plant operation are best described as " secondary" or " indirect" effects of the proposed federal
- action, - in contrast with the " primary" ef fects directly as-sociated with the spent fuel-pool expansion itself (the addi-1tional racks, increased concentration of spent fuel, etc.).
The critical question then is whether NEpA requires con-sideration of the secondary, indirect.mpacts associated with
-21/ "The Commission's environmental regulations, 10 C.F.R.
51,
-~
i do not categorize an action's impacts 'in this manner.
As
' discussed infra, however, a number of courts have employed this t'erminology and analysis. -CEQ's regulations provide useful guidance in this-area as.well.
" Direct effects" are: defined as those "which are caused by the action and occur at: the 1same time and place. "
40 C.F.R.
150 8. 8 (a).
" Indirect' effects"~are those "which are caused by-the action and are later in time or farther removed in distance,f but 'are still reasonably foreseeable.
40 C.F.R.
150 8. 8 (b).
4 -22/
continued plant operation. -
Many courts have concluded that "NEPA is concerned with indirect effects as well as direct effects," MPIRG, supra at 1322 -- providing one
- does not stray "beyond reasonable forecasting" into "the realm of pure speculation."
North Dakota v. Andrus, 483
--2%/
Again, the Commission's environmental regulations do not address this matter.
We therefore reject the staff's lead argument that 10 C.F.R.
51, in either its present or its proposed form, somehow provides the solution to this problem.
We also reject applicant's argument that the notice of-hearing forecloses consideration of anything other than the spent fuel pool itself.
As we recently pointed out in Commonwealth Edison Co. (Zion Station, Units 1
'and 2), ALAB-616, 12 NRC 419, 426 (1980), the hearing may-encompass issues fairly raised by the application to modify-the spent fuel pool (Emphasis added.)
Continued plant operation, the intended result of an expanded-spent fuel pool, is clearly an issue " fairly raised" by the applica bion to modify the pool.
Although
~
it may not necessari.y be within_the ambit of the environ-
' mental analysis'rea: ired'by-NEPA in this case (see dis-cussion infra), we innot say continued plant operation is beyond the Lice sing Board's " jurisdiction."
Compare Public' Service Co. of Indiana, Inc. (Marble Hill Station,
. Units 1-and 2),-ALAB-316, 3.NRC 167 (1976) (antitrust issues
!beyond scope of-hearing instituted to consider health, safety, J and environmental effects - of plant construction) ;
Portland General -Electric Co. (Trojan Nuclear Plant),
ALAB-534, 9-NRC 287 (1979) (general safety issues and need
'for power beyond scope of'special proceeding convened to consider interim operation of control building) ; Zion,
' supra (modification of overall plant emergency plan beyond scope of application to expand spent fuel pool).
~
W f
W q
r m
l
. 'F.Supp. 255, 260 (D. N.Dak. 1980).--23/
CEQ's regulations i
also suggest that, once an EIS is to be prepared, it should include discussion of both direct and indirect effects.
40 C.F.R. 1502.16 (a) and (b).
(The Council'c regulations do not explicitly address, however, whether indirect effects should be considered when determining if an action is " major.")
In this case, assuming that no alternative storage for spent fuel is found -- such as a government-operated away-from-
' reactor ( AFR) facility -- and that Big Rock is not shut down
'for a-substantial period of time for other reasons, expansion of the spent fuel' pool is necessary to permit the plant to
-continue. operating beyond 1984.
Oral argument, Tr. 9.
Although~we do not believe that a denial of this license amendment'would necessarily make shutdown a certainty, we
' also cannot reasonably ' characterize continued plant operation as a remote or speculative indirect consequence of a grant of the'emendment.
Thus,1one might quickly conclude that, in
~
this case,ENEPA indeedorequires consideration of the secondary impacts associated -with continued plant operation.
~
But see, e.g.,
National ~ Ass'n of Government Employees v.
~~~:23/ ' Rumsfeld, 418 F.Supp. 1302,-1305-1306 (E.D. P a.
19 7 6), and cases. cited therein, holding;that NEPA-is'not concerned Jwith'" social or: economic"' impacts'in-the< absence of.a
~
~
primary significant; environmental impact.
v l
4
. The " rule of reason," which guides our interpretation and application of NEPA, however, precludes us from reaching so hasty;-- or simple -- a conclusion.
See Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 834, 837 (D.C.
Cir. 1972).
We would be remiss in our responsibilities were we to fail.to scrutinize carefully the realities of this matter.
CEQ has urged us not to "isolat[e] the action of the agency from the impacts."
Oral argument, Tr. 64.
We
-believe this is sound counsel, and,for that reason,we next consider the real-impacts of the Big Rock spent fuel pool expansion.
We assume that, as in the case of other spent fuel pool expansions, the applicant will undertake no modifications that -will affect reactor operation or any other aspect of 24/
the facility.--
Thus,-after'the addition of more racks for the fuel assemblies, Big' Rock Point will' continue to operate
.as it-has since 1962.
To be sure, such operation will have the usual environmental impacts, rut they will be the same 24/ We makeithis assumption in the absence of a thorough
- - ' - search.of the record (in particular, the application)
..for. support for1this " fact."
We leave that function to the. Licensing Board.
We note, however, that applicant asserts'this on'bri'ef (at' 13), and no other party quarrels with-the notion that~ increasing the capacity of a spent
~
fuel' pool-does not effect any changes in reactor operation.
' ones that have been present since the first day of operation.
' Continued plant operation simply results in maintenance of
. the environmental status quo.
Insofar as this secondary or indirect effect is concerned, there are no environ-25/
mental changes to evaluate.--
We-believe that in these circumstances, a reasonable application of NEPA does not require consideration of the continued plant operation permitted by the pool expansion.
Indeed, the whole purpose in considering primary or secondary impacts of an action is to determine if they have a cause-and-26/
-effect relationship with any environmental changes.--
- Where,
~
as here, there.is no change in the environmental status quo, that purpose need not be served.
--25/
Compare Virginians for Dulles v. Volpe, 541 F.2d 442, E445-(4th Cir. 19 76), - where the ' court found "the FAA's acquiescence in the vastly expanded use of the airports require [d] an impact statement" (emphasis added).
- 26/'LCEQ's definition of " indirect effects" reflects a similar1 concern with measuring changes.
40 C.F.R.
.1508.8(b)i states (emphasis 'added) : " Indirect effects may include growth ~ inducing ~ effects and other effects related to' induced changes in the pattern-of land use, population density or growth rate, and related ef fects-on : air _and. water and other natural systems, including ecosystems."
e w
y e
. Several court of appeals decisions support this analysis.
In Committee for Auto Responsibility v. Solomon, 603 F.2d 992 (D.C. Cir. 1979), cert. denied, 445 U.S.
915 (1980), the court concluded that a General Services Administration de-cision to lease a parking lot to a parking management firm did not require an EIS.
The court noted GSA's finding that
~
-the level of pollutants would not be altered from its existing level as a result of the new lease.
Since GSA's proposal would not alter the environmental status quo, the court held that no EIS was-required.
As the District of Columbia Circuit stated, "[t]he duty to prepare an EIS normally is triggered when _there is a proposal to change the status quo."
Id. at 1002-1003.
Significantly for purposes of the instant case, an EIS apparently had never been prepared for the particular federal facility involved in Solomon.-
Id. at'1002 n.43.
The Ninth Circuit also supports the view that NEPA does not--require an-EIS when an action _does not directly or indi-rectly_ bring aboutL any change in.the environmental status quo '.. In Westside Property Owners v. Schlesinger, 597 F.2d 1214 (9th_Cir. 1979), one of-the issues was whether the formaliza-tion _ofEa German-American pilot training program (which began
l l
i '
in 19 64) through a 1971 diplomatic agreement constituted a
" major Federal acrion" requiring an EIS.
The court concluded that it_did not.
Id. at 1225.
Its decision was influenced by, inter alia, the following facts:
(1) the United States approved the design of the training prograra long be-
. fore NEPA; (2) "the 1971 agreement did not affect the pol-lution produced by the training"; and (3) a substantial
. amount of training had already occurred and was "in the same manner as the future training of German pilots. "
Id. at_1224.
Strikingly similar factors exist in this case as well:
(1) Big Rock _ received its full-tern license from the Atomic Energy Commission in 1964; (2) the proposed spent fuel pool expansion, while permitting the plant to continue operating beyond 1984, presumably will not result in any
~
.~ operational ~ changes and thus will not affect the existing level'of the environmental impacts attributable to reactor 27/
operation;--
and- (3). Big ^ Rock has been operating for over
- 18 years and, if'the amendment is approved, will continue to do so for the remaining ~ term of-its license (subject, of
. course, to other unrelated circumstances that may develop). -
y/. See note 24, supra.
w--
f y-y g
a v
'ot-e
. See also Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116-117 (9th Cir. 1980), cert. denied, 49 U.S.L.W.
3636 (U.S. Mar.
2, 1981); San Francisco Tomorrow v.
- Romney, 472 F.2d 1021, 1025 (9th Cir. 1973).
Greene County Planning Board v. Federal Power Commission, 455 F.2d 412 (2d Cir. ), cert. denied, 409 U.S.
849 (1972), is similarly instructive, particularly because it concerns a hydroelectric power plant.
The basic project (i.e., the powerhouse and reservoirs) was planned, licensed, and under
- construction for six months before the effective date of NEPA, but the FPC specifically withheld approval of the transmission lines associated with che plant, pending further consideration of their effect on the environment.
Approval of the lines came after NEPA, and the court held that the agency was bound
--to comply'with the statute in that regard.
Insofar as the
- basic project (which was 80 percent complete) was concerned,
- however, the court found "no basis for applying NEPA retro-actively."
M. at 424.
Although.the Greene County court's approach differs sciaewhat from ours here, dae. case nonetheless provides a Luseful~ precedent"and analogy. :There, an environmental analysis of: the impacts of a power plant, -not yet completed 3
l 3
v&
. but licensed just six months before NEPA, was not required in connection with the post-NEPA approval, soon thereafter, of related transmission lines.
It follows, therefore, that in connection with a proposal to expand a plant's spent fuel pool, NEPA does not require consideration of the environmental impacts of continued reactor operation where the plant was completed and licensed years before promulgation of that statute and has since been in operation for almost two decades.
'Our-conclusion is further fortified by the very purpose of a NEPA inquiry -- to identify aspects of a project that
- can still be changed to mitigate possibly detrimental environ-
- mental effects.
See Virginians for Dulles, supra at 446.
Fo'r example, in Arlington Coalition on Transportation v. Volpe,
- 458 F.2d 1323, 1332 (4th Cir. 1972), approval for the federal highway involved'had "not beenigiven, construction contracts
' [had] not been. awarded,.and actual construction on the high-way-itself '(ha'd]' not begun" at the time of the-NEPA challenge.
Since the project was.far from complete, modifications to mitigate environmental. effects - were easily possible, and 28/
- the court therefore required an -EIS for any further action.--
~ 28/ 'The same is true.of Henry v.- Federal Power Commission, 513?F;2d 395 (D.C. Cir.: 1975), upon which CEQ relies 1
.for its view-that NEPA requires consideration now of (FOOTNOTE CONTINUED ON NEXT PAGE)
- In this case, however, the reactor at Big Rock has been fully completed and operative since 1962, and the necessary " Federal action" (i.e., approval of the license amendment to expand the spent fuel pool) purportedly would not provide any opportunity to alter plant operation.
NEPA "is not an authorization to undo what has al-ready been done."
Jones v.
Lynn, supra at 890.
And just as we concluded in Troj an, supra at 266 n.6, and Prairie Island, supra at 46 n.4, that NEPA does not require dupli-cative environmental analyses, so too must we conclude that "to ~ formulate' an EIS [on continued plant operation) under these circumstances would trivialize NEPA's EIS requirement and diminish its utility in providing' useful environmental analysis for major federal actions that truly af fect the environment."
Solomon, supra at 1003.
28,/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) the environmental impacts of the entire Big Rock project.
Apart from-the fact that the court's actual holding in the case was7that petitioners raised the NEPA issue prematurely, it is not without~ significance that the.
gasification project involved in' Henry was neither licensed nor constructed at the time.
Thus, again, an EIS would serve a very useful purpose in identifying aspects of the total project still. susceptible to modification on environmental' grounds.
29/. Nothing in.our: holding.is intended to suggest, however, that~the Commission itself could not, as a matter of policy,
' require' evaluation of-the environmental impacts of the con-
'tinued plant, operation resulting-from-a spent fuel pool
- (FOOTNOTE. CONTINUED ON NEXT PAGE)
~#
m
. We believe our judgment here represents "a just and practicable balance" between the spirit of NEPA and the 31/
realities of this case.--
Hence, we conclude that NEPA 29/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) expansion.
Neither NEPA nor the agency's environmental regulations, 10 C.F.R.
51, preclude such an exercise of discretion.
Cf. Offshore Pow.
Systems (Floating Nuclear Power Plantr), CLI-79-9,
.0 NRC 257, 261 (1979).
In this connection, Ms. Christa-Maria, 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 requires an EIS, we do not reach the issues of whether.such discretion was the Board's to exercise and, if so, whether it properly exercised it.
30/
Jones v. Lynn, supra at 887.
31/. We note that the Supreme Court's most recent NEPA cases evidence a trend toward construing that statute in a manner consistent with our approach here.
Although these cases are not on point as-to the issue before us, the Court's guidance.is useful.
For example, Andrus v.
Sierra Club, supra at 349, 364-365, held that Section 102(2) (C) of NEPA does not require federal agencies to prepare EISs to accompany appropriation requests be-cause the latter are neither " proposals for legislation" nor " proposals'for.
. major Federal actions."
In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S.
519, 551 (1978), the Court noted that " [t ] o make zul impact statement some-thing more _than an exercise in frivolous boilerplate the concept of alternatives [in Section '102 (2) (C)] must (FOOTNOTE CONTINUED ON NEXT PAGE)
. does not require consideration of the environmental impacts of the continued plant operation likely to result from expansion of the Big Rock spent fuel pool, assuming that expansion will not cause any changes in reactor operation.
If this assumption proves to be accurate, the scope of the agency's environmental inquiry may be confined to the effects of the expanded pool itself.
We therefore reverse the 32/
Licensing Board.--
31/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) be bounded by some notion of feasibility."
And in Kleppe v. Sierra Club, 427 U.S.
390, 399 (1976), the Court. held that NEPA does not require " regional" im-pacr statements where the proposed federal action is not regional in scope.
Such an EIS would be an exercise in the " impossible," "little more - than a study.
. containing estimates'of potential develop-
. ment and attendant environmental. consequences," and a document' lacking in-the " factual predicate for the pro-duction of an environmental impact statement of the type envisioned by-NEPA."
Id.~
at 402.
These decisions share in common with one anotEer and this case a' construction of.NEPA that does not require an endeavor destined to be'of little utility.
--32/
Many of'the arguments made and cases cited to us in this
' proceeding concerned the matter of retroactivity -- i.e.,
- whether the Licensing Board's. decision constitutes aE -
- improper; retroactive-application of NEPA.
In view of the approach we'take in this opinion, we do not reach, and accordingly do not decide, that issue.
As we see it, r
~
our inquiry logically led us to determine first whether
-the' impacts associated with continued plant operation.
were even'a-required area _of' consideration under NEPA.
"We have determined that-they are-not.
Had we decided
,otherwise, our'next-step would have been to decide whether'suchl consideration would violate the pro-scription against applying NEPA. retroactively.
re-r w
q
-f
34 -
B.
Our conclusion that NEPA does not require the agency to consider the environmental impacts of continued plant operation neither ends our inquiry nor provides a complete disposition of the rulings that the Licensing Board referred to us.
The Board ordered the preparation of an EIS " covering
- the environmental impacts of an expanded spent fuel pool" as well as "the additional term of operation of the facility that such expansion would permit."
12 NRC at 366.
Having determined that the Board erred in finding that NEPA re-quires an EIS on continued plant operation, we now must
_ decide _whether the Board also erred in finding that an EIS on the. expansion'of the pool itself is necessary.
There are two factors of significance in the Licensing Board's ruling-on this point.
First, its order to prepare an EIS on the pool expansion is closely tied to its order to 33/
prepare an EIS_on continued. plant operation.~~
Second, the 13/-Indeed,Lthe. Board's conclusion that approval of a license amendment to expand a spent fuel ~ pool is a major federal action with a significant effect upon the environment -- the finding necessary to trigger NEPA's EIS requirement -- is grounded on.its belief that.(1) the amendment's_" sole purpose" is to enable CPC "to' utilize a greater term of
- the license than would otherwise be - possible" (12 NRC at 363; see also id. at 359, 360, 361), and (2) " making such operation possI51e for a-period of ten years clearly con-stitutes a major Federal' action" (id,.~at 364 n.2).
m w
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4 j
. Board had no " record" upon which to support its finding of significant impact because the staff has yet to prepare an EIA or any other environmental document.
In view of these factors, se believe that the Board should reconsider its order to the staff to prepare an EIS on the proposed spent fuel pool expansion.
We therefore reverse this ruling as well.
As to the first factor (the linkage between the EIS ordered for the spent fuel pool and that for the additional term of plant operation), our decision in the preceding section effectively eliminates continued plant operation from the scope of the environmental review NEPA requires in tria case..The Board should therefore rethink its decision in light'of our opinion by focusing on the need vel non for an EIS on the pool itself.
7 We also believe that the Board,rin reconsidering its decision, should await the preparation of the staff's en-vironmental analysis,-whether that turns out to be an EIA or 34/ The Board will also necessarily have to reconsider its
^~~
restatement and admission of Mr. O'Neill's Contention VIII.
36 -
35/
an EIS.-~
It is unwise, if not improper, to decide without the. record support provided by the staff's environmental review, whether a given action significantly affects the 16 /
environment.
See Jones v. Lynn, supra at 891.
--35/
While this case was pending, the Ccamission approved the Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, NUREG-0 57 5 (August 1979), and indicated that this document is now applicable to proposed spent fuel storage licensing actions.
46 Fed. Reg. 14506 (February 27, 1981).
The staff has already indicated its intent to rely to some extent on this document.
Br. 30-31.
We note in this regard that NUREG-0575 itself states that' "[b]ecause there are many variations in storage pool
-designs and limitations caused by spent fuel already in some pools, the licensing reviews must be done on a. case-by-case basis."
NUREG-0575, Vcl.
1, 9-1.
Moreover, in approving the. document, the Commission noted that its
~" action does not affect any other recuirements which may exist tc address specific environmental and safety issues for individual licensing action."
46 Fed. Reg. 14507.
Thus, presumably the staf f's enviren= ental review will take account of any factors that distinguish Big Rock from other plants -- e.g., its use of mixed oxide fuel.
See Consumers Power Co. (Big Rock Point Nuclear Plant),
The extent to which NUREG-0575, with its generalized approach to spent fuel storage, is' relevant to Big Rock, therefore, re-mains to be determined.
36/ LIn this vein, it.does not seem logical to suggest, as the Licensing Board's opinion does, that an action that otherwiseLmay not have a significant effect on the envi-
.ronment is transformed into one that does have such effect simply by the absence of an. environmental review
-of a different, prior action.
We appreciate the Licensing Board's desire and effort 37/
to avoid unnecessary delay in this proceeding.--
The Board believed that an EIA was forthcoming and that, as a matter of law, it would be inadequate, regardless of its content.
It therefore issued its ruling before ever seeing the docu-ment and in an obvious attempt to expedite the case.
Ecw-ever worthy such an effort may be, this action must be balanced against the integrity of the hearing process.
And, in our view, the latter outweighs the former.
First, we find the assumption that precipitated the Board's action -- that the staff would issue its " usual" EIA on spent fuel pools -- to be an inapprcpriate prejudgment of the 38/
staff's position on an important issue.
The Board, staff counsel, applicant, and all'other parties should not encourage such prognostication, as it could have a chilling effect on the staff's ultimate recommendation.
The staff should be
. permitted to doJits job in an honest and objective fashion, 37/
Indeed, we share-this concern and trust that when the Licensing Board resumes this proceeding, the staff will endeavor to complete its environmental review quickly.
~
-38/ The ass'umption-apparently originated with applicant's
~~
- counsel at the December 5, 1979, prehearing conference-(Tr..?217),_was'later promoted by the Board (11 NRC at 133),
and_was eventually' acquiesced in by the' staff and other
_ parties.-
4,1
38 -
without being inhibited by perhaps the self-serving pre-dictions of one party or another.
Second, if the Licensing Board had permitted the staff to complete and submit its environmental analysis (whether an EIA or EIS), the Board would have had the benefit of a 39 /
" record" to aid it in reaching its conclusions.--
- Moreover, the parties (and the Board) would have had the chance to defend or. challenge the content and conclusions of the document during the course of the hearing, which provides the vehicle for contesting any perceived deficiencies in the staff's analysis.
See 10 C.F.R.
2.718(g), 2.721(d), 51.52(d).
Prematurely con-cluding that such a document is inadequate before it is even produced deprives the participants of their opportunity to l
explore the matter during the hearing, as the Commission's regulations contemplate.
We emphasize that our comments are not intended to reflect a judgment on our part ~ as to 'whether this proposed spent fuel pool expansion is or is not a major action with a 39/ To illustrate, if the staff prepares an EIA and the Board agrees'with its " negative declaration," che required _ explanatory text in the appraisal can, if adequate,; provide the record support for the Board's conclusion.
.See 10 C.F.R.
51.7(b).
~
w b=
39 -
significant effect on the environment.
Rather, our purpose is to underscore the importance of not bypassing the staff's function and of permitting the hearing to take its natural course.
C.
The final issue posed in this case is whether Section 102(2)_(E)'of NEPA requires the consideration of alternatives 40/
to this spent fuel pool expansion.--
The Licensing Board concluded that'it was unnecessary to reach this issue be-cause of its decision that the "more comprehensive" section 102 ( 2) (C) required an EIS here.
12 NRC at 359.
We, on the other hand, conclude-that it would be premature to decide this issue now, in the absence of a record upon which to base such'a finding.
LAs is evident from our decision in Virginia Electric
.and Power Co. (North Anna Station, Units 1 and 2), ALAB-584,
'll'NRC 451,' 456-459 (1980), petition for review pending sub
'40/L Although the Licensing Board did not reach this issue, we nevertheless asked the parties to address it in their briefs on appeal.. While most did, Mr. Leithauser and intervenors Christa-Maria, et al., have recuested additional time.to brief the matter.
In view of the
' disposition of the Section 102 (2) (E) issue we make here,
'it-is unnecessary to rule on their requests.
t
i 40 -
nom. Potomac Alliance v. Nuclear Regulatory Ccmmission (No.
80-1862, D.C.
Cir., filed July 28, 1980), some factual basis (usually in the form of the staff's environmental analysis) is necessary to determine whether a proposal
" involves unresolved conflicts concerning alternative uses of available resources" -- the :tatutory standard of Section 41/
' 10 2 ( 2) (E).
- See, e.g.,
id. at 458 n.14.--
Since this pro-ceeding is in its incipient stages, there is little in the record that could provide the foundation for the conclusion that this. particular spent fuel pool expansion proposal does or does not involve such " unresolved conflicts."
Thus, until the record is more fully developed with the inclusion of such documents as the staff's environmental evaluation, a meaning-ful determination of - the relevance of Section 102(2) (E) to this proceeding cannot be made.
Upon return of this case, however, the Licensing Board may once again be able to avoid entirely resolution of this
--4 L/
As we also observed in North Anna, supra at 457, Section 102 ( 2) (E) of NEPA is not limited to major federal actions with significant effects-on theLenvircnment and may re-quire consideration of alternatives even when an EIS is not otherwise~ required.
See Trinity Episcopal School Corp. v.
Romney, 523 F.2d;88,-_93 (2d Cir. 1975), on remand, Trinity-Episcopal' School Corp. v. Harris, 445
'F.
Supp. 204 (S.D.N.Y.
1978), rev'd and remanded sub.
nom. Karlen v.
Harris,.590.F.2d 39 (2d Cir. 1978), rev'd
-sub. nom.,Strycker's Bay' Neighborhood Council, Inc. v.
Karlen, 444,U.S. 223.(1980);-California v. Bergland, 483 F.
Supp.;465, 488_(E.D. Cal. 1980).
4 s
y 4
y
__g-
. issue.
If the staff concludes that this pool expansion license amendment requires an EIS, then the mandated consideration of alternatives therein should suffice insofar as Section 102(2) (E)
- is concerned.
Moreover, the staff has indicated that it
" intends to consider alternatives in whatever environmental document it produces with relation to the Big Rock f acility. "
Br. 30.
Thus, if the staff prepares an EIA, the parties can apparently expect discussion of the " alternative uses of available resources."
IV.
For the foregoing reasons, we find that a reasonable application of-NEPA does not require the preparation of an
~
EIS:on the continued plant operation likely to result from
- the proposed expansion of the Big Rock spent-fuel pool, Lassuming that the expansion will not effect any change in reactor operation.
We therefore reverse the Licensing Board's contrary _ finding.
We also direct the Licensing Board to reconsider its. companion order to the staff to prepare.an EIS on the spent: fuel pool itself.
Before doing
- so, however, the Board should await the submission of the staff's environmental evaluation.
Similarly, the Board
'should' await the filing of that document before determining the.- applicability _oflSection ?l02 (2) (E).to this case.
t _
42 -
A Applicant's motion to' strike certain material sub-
. mitted by CEO following. oral argument is granted.
The rulings' referred to us in the Licensing Board's September 12,.1980, Memorandum and Order on NEPA Review" are reversed.
It is-so ORDERED.
FOR THE.1PPEAL BOARD 4
0 14 A--T
-C. gean Bishop
\\
Secretary to the
. Appeal Board 9
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