ML20002E087
| ML20002E087 | |
| Person / Time | |
|---|---|
| Site: | Mcguire, McGuire  |
| Issue date: | 01/21/1981 |
| From: | Cohn D CAROLINA ENVIRONMENTAL STUDY GROUP |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8101260311 | |
| Download: ML20002E087 (23) | |
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UNITED STATES OF AMERICA g# "
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- p s19e n as** W Before the Atomic Safety and Licensing Board 1['1\ H In the Matter of )
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Duke Power Company ) Docket Nos. 50-369
) 50-370 (William B. McGuire Nuclear )
Station, Units 1 and 2) )
CESG'S MEMORANDUM IN SUPPORT OF MOTION TO ADD FURTHER CONTENTIONS By Order of November 25, 1980, the Licensing Board granted the Carolina Environmental Study Group's ("CESG's") motion to reopen the hearing record in this proceeding, admitting four con-tentions relating to the issue of hydrogen generation control, a question which arises as a result of the accident at Three Mile Island. The Board concluded that in its judgment, CESG's con-tentions "may well shed significant light. upon key safety findings which are required to be made before operation of McGuire Units 1 and 2 could be authorized."
In its November 7,1980 reply to applicant's ' notion for summary disposition, CESG advanced two additichalucontb'nti'oh' s "
er ., , c w a * .: a i: ~.r e-which, we submit, also address critical environmen't$a[1%d[. $'[.'.N ,
safety matters which require co7 sideration in light oVI ~4 accident at Three Mile Island. t- eh/ ' '#
Thesefurthercontef,long%1// N'
- 5. Under current practice the NRC is req hedl4//,a n, . ) Iv a to issue an environmental impact statement the consequences of Class 9 accidents.- Sued Fth.@lj,'fgrg' fan i
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environmental impact statement is required for.- M/ "-
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- 6. The emergency plan for McGuire must, due to the special circumstances of close proximity to a large population center, be revised to provide an emergency response for the city of
- Charlotte in the event of a Class 9 accident.
These newly offered contentions were not previously i
addressed by the Board because it is only as a result of TMI that the Commission has abandoned its "former erroneous"
- position (45 F.R. 40103) that the probability of occurrence i '
of class 9 accidents was too low to warrant their consideration either under the National Environmental Policy Act or in emergency planning. We demonstrate below why a consideration
, of the effects of Class 9 accidents, to which contentions 5 and 6 relate, must be included in this operating license proceeding.
A. A Supplemental Environmental Impact Statement Considering The Effects of Class 9 Accidents Is Required Under NEPA.
CESG's contention 5 states that an environmental impact ,
statement ("EIS") assessing the consequences of Class 9 accidents is required for McGuire. This conclusion is dictated by the i
National Environmental Policy Act ("NEPA"), applicable Council on Environmental Quality ("CEQ") regulations, and current j Commission policy.
The essential and undisputed purpose of NEPA is to require i that agencies take a close look at all environmental costs of '
major projects so that any decision to proceed is made with complete awareness of the environmental consequences. See l Calvert Cliffs' Coordinatine Committee v. Atomic Energy Commission,
-449'F.2d 1109, 1118 (D.C. Cir.1971) (environmental issues must be considered at every important stage in the decision-making l
I process); National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir. 1971); Monroe County Conservation Council, Inc. v.
Volpe, 472 F.2d 693, 697 (2d Cir. 1972). Moreover, an agency's duties under NEPA do not end with the production and acceptance of its initial EIS. As the court stated, for example, in Sierra Club v.Froehlke, 359 F. Supp. 1289, 1345 (S.D. Tex. 1973),
s rev'd on other grounds, 499 F.2d 3d2 (5th Cir. 1974),
" agencies must . . . continue to reevaluate such aspects at mitigation, impact, and the scope of a proposed prceject, even if an acceptable impact statement has been prepared, reviewed, and accepted." See also Libby Rod & Gun Club v. Poteat, 457 F. Supp.
1177, 1188 (D. Mont. 1978), modified 594 F.2d 742 (9th Cir. 1979) j (". . .
an agency is under an obligation to reassess a project '
as more information becomes available."). Society for Animal Rights, Inc. v. Schlesinger, 512 F.2d 915, 918 (D.C. Cir. 1975)
(the Army has " continuous responsibility to gather information
. . . [and to] incorporate new findings of significance into its analysis.")
In light of these basic teachings, the Courts have regularly required agencies to issue a supplemental environmental impact statement when significant or important new information or j circumstances exist which bear on the environmental impacts of a proposed action. In Essex County Preservation Association i v. Campbell, 399 F. Supp. 208 (D. Mass. 1975), aff'd 536 F.2d 956 (1st Cir. 1976), an action to enjoin work on an interstate highway, the First Circuit affirmed an order directing the Federal Highway Administration to prepare a supplemental EIS
.- ~ _ , .__ .- . -- ,
on significant new circumstances involving a post-impact statement moratorium on certain highway extension work. The Court of Appeals stated:
. . . the [ district] court held that a supplemental EIS had to be prepared in order to effectuate the basic aims of NEPA which favor disclosure of all relevant factors affecting agency decisions. See Monroe County Conservation Council, Inc. v.
Volpe, 472 F.2d 693, 697 (2d Cir. 1972). We are inclined to agree with this judgment. Whf.le we cannot determine with certainty what the ultimate environmental effects (of these new circumstances] will be, it would seem to con-stitute the type of 'significant new information
. . . concerning [an] action's environmental aspects' that makes a supplemental EIS necessary.
23 C.F.R. S 771.15. Such a supplemental statement, which receives the 64me type of public comment and exposure as an original FIS, is likely to facilitate the ' complete awareness on the part of the actor of the environmental consequences of his action . . ., '
National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971), mandated by NEPA.
536 F.2d 956, 961 (1st Cir. 1976). Other courts Yave likewise required the preparation of revised impact statements when n,s information on the environmental impacts of on-going projects becomes available. See Libby Rod and Gun Club, Inc. v. Poteat, 457 F. Supp. 1177 (D. Mont. 1978), modified, 594 F.2d 742 (9th Cir.1979) (preliminary injunction issued against construction of a dam where 1974 impact statement did not consider the environmental impacts on the bald eagle, which was not listed as an endangered species until after issuance of the final EIS, or on archaeological sites dis-covered after issuance of the final EIS); Nelson v. Butz, 377 F. Supp. 819, 822 (D. Minn. 1974) (court orders agency to include "new and important information as a supplement to the EIS"). _4_
The Council on Environmental Quality ("CEQ") has codified this case law or the requirements for preparation of a supple- ,
mental EIS in new uniform regulations issued pursuant to E.O. i 11991 (May 24, 1977), reprinted in 42 U.S.C. S 4321 (1977).
i See 40 C.F.R. $ 1502.9. CEQ's regulations, which are binding on all f ederal agencies (Sec. 1500.3), require that supplements to either draf t or final environmental impact statements be prepared if there are "significant new circumstances" or if new information on the environmental impacts of the proposed 1/
action becomes available. Sec. 1502. 9 (c) (1) (ii) .- Since the accident at Three Mile Island, CEQ has repeatedly expressed its view to the Commission that appropriate accident analysis must include a " discussion in EIS's of the environmental and other consequences of the full range of accidents that might occur at nuclear reactors, including core melt events," and that a supplemental EIS should be prepared with respect to ongoing projects in order to consider the environmental risks attributable to such accidents. See Letter from Gus Speth, Chairman, CEQ, to Tyrone Fahner, Attorney General, State of
, Illinois, Aug. 18, 1980 (with attached memorandum) (attached as Exhibit A).
1/ Although the NRC has questioned whether it is bound by CEQ's regulations, in a joint memorandum to the Commissioners the NRC's General Counsel and Executive Legal Director have taken the position that "NRC can be bound by CEQ's NEPA regu-lations as a matter of law insofar as those regulations are solely procedural or ministerial in nature." (SECY-7 9-3 05, "NRC Compliance with CEO NEPA Regulations," 17 (May 1, 1979).
It is beyond dispute that requirements concerning the timing i
and prepration of impact statements are the essence of NEPA's procedural requirements. See Calvert Cliffs' Coordinating ;
Committee v. Atomic Energy Commission, 449 F.2d 1109, 1114 '
(D.C. Cir. 1971).
On June 13, 1980, the Commission adopted a new interim policy for consideration of the en"ironmental consequences of nuclear accidents under NEPA. 45 F . R. 40101, et seg. The NRC explained that "the March 28, 1979 ;...ident at Unit 2 of the Three Mile Island nuclear plant has emphasized 'ae need for changes in NRC policies regara_ng the considerations to be given to serious accidents from an environmental as well as a safety point of view." 45 F.R. 40101. The NRC concluded that there is a need to include in EIS's a discussion of the " site specific environmental impacts attributable to accident sequences that lead to releases of radiation and/or radioactive materials, I
including seguences that can result in the . . . melting of the reactor core." Id. The first proceeding in which this new policy was implemented relates to the Virgil C. Summer nuclear plant, for which a supplemental draft EIS was issued in November, 1980.
The accident ct Three Mile Island and the Commission's new recognition of the need for considering the environmental risks attributable to Class 9 accid >;.ts and possible mitigating actions are, we submit, new circumstances which require the i
preparation of a supplemental EIS for McGuire. However, the Applicant has opposed the admission of contention 5, on the ground that the Commission's interim policy is explicitly 1
applicable only to proceedings in which, unlike McGuire, a final EIS has not yet been issued, absent "special circumstances."
See Applicant's Response of December 15, 1980; 45 P.R. 40103.
Our short response is that, to the extent the Commission's l policy does not require the preparation of impact statements l
[
t to assess the environmental consequences of Class 9 accidents in all pending proceedings, we take exception to it on the ground that such statements are required under NEPA and CEO regulations. The Licensing Board need not address t;.is issue, however, since this case does present special cir-cumstances which necessitate the specific finding that a supplemental EIS is required.
These circumstances include the combination of Three Mile Island, which confirmed that Class 9 accidents can occur, and the fact that McGuire is located near the high population center of Charlotte, North Carolina. The possible environmental impacts of operation of McGuire on surrounding areas, including the City of Charlotte, have never been fully considered in this proceeding precisely because the probability of occurrence of a Class 9 accident was deemed to be so low as to render it unworthy of consideration. Carolina Environmental Study Group
- v. United States, 510 F.2d 796, 799 (D.C. Cir. 1975).
Special circumstances are also presented by the existing uncertainties rugarding the capability of the McGuire con-tainment to withstand the explosion of an amount of hydrogen no greater than that present at TMI. The Licent;ing Board has already determined to reopen this proceeding to address this issue, recognizing that it is relevant to key s,afety findings which must be made before an operating license is granted.
In view of the fact that the Board has already authorized additional hearings to consider the possibility that a containment breach could occur, the inclusion of an analysis of the environmental effects of this or other Class 9 accidents,
I and possible ways to mitigate environmental harm, will not l significantly expand the scope of the proceeding. )
l Finally, the EIS for McGuire is now over four years old. )
In light of NEPA's requirement that NRC consider environmental factors to the " fullest extent possible, 42 U.S.C. S 4332, i an operating license should not be issued without a timely consideration of all of the possible impacts of operation of this facility. NEPA's requirement that impact statements be prepared is specifically designed for the purpose of iden-tifying the environmental consequences of operating a plant, in order that the decision-maker may consider ways to minimize those consequences. A proper analysis under NEPA may indicate, among other things, the need to modify the McGuire plant design or implement certain emergency preparedness measures.2/
We therefore contend that the preparation of a supplemental EIS for McGuire is required, and thus urge the Board to admit CESG's contention 5.
B. Emergency Plans Must Be Revised In Crder to Provide Protection to the City of Charlotte In the Event of A Class 9 Accident.
Even if the Board determines that no supplemental EIS 2/ In this regard, the NRC's interim policy specifically directs the Staff to fulfill its obligation to identify additional cases, beyond those for which no final EIS has been prepared, where consideration of tne environmental consequentes of severe accidents might warrant the need "for additional features or other actions which would prevent or mitigate the consequences of serious accidents." 45 F.R. 40103. Accordingly, CESG requests that its motion to admit its suppleme tal EIS conten-tion also be considered in the alternative as a request to compel the Staff to determine whether it will undertake to prepare a supplemental EIS for McGuise.
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is required, the question of the adequacy of emergency plans l in the event of an accident at McGuire must be addressed.
4 As a result of the accident at Three Mile Island, during-which the NRC recommended that the State of Pennsylvania consider evacuation within 20 miles of the reactor, the Commission has recognized the need for effective emergency response capability. In proposing new rules, the Commission stated that it now regards "emergercy planning as equivalent to, rather than secondary to, siting and design in public l protection," a position which it acknowledged is a " depart [ure]
from its prior regulatory approach to emergency planning."
44 F.R. 75169 (Dec. 19, 1979). On August 19, 1980, the i
Commission published final rules whicit require workable evacuation plans within an Emergency Planning Zone ("EPZ")
as a condition for operation of a plant. 45 F.R. 55402, et sec.
{ In contention 6, CESG urges that the EPZ around McGuire
! must include planning to protect the population of the i
City of Charlotte in the event of a nuclear accident.
, The applicable emergency planning regulations require that the size of the EPZ will be determined on a case-by-casa basis, although they state that " generally, the plume exposure pathway EPZ for nuclear power plants shall consist of an area about 10 miles (16 km) in radius . . ..
10 C.F.R.
S 50.33, 45 F.R. 55409 (Aug. 19, 1980). For further guidance, 4
the regulation provides that:
-the exact size and configuration of the EPZs surrounding a particular nuclear power reactor shall be determined in relation to local emergency response needs and capa-bilities as they are affected by such conditions as demography, topgraphy, land characteristics, access routes, and jursidictional boundaries.
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10 C.F.R. S 50.33. See also Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, NUREG -
0554 at 11, 17 ("the actual shape (of the EPZ) would depend upon the characteristics of a particular site").
CESG does not challenge the general requirements of these regulations, as the Applicant alleges. Response of December 30, at p. 6. Rather, CESG urges that, fairly interpreted, the regulations require a consideration of the location of surrounding high population centers in determining the size of the EPZ for which evacuation plans must be prepared in order for an operating license to be granted. In this case, CESG intends to show that the City of Charlotte, whose boundaries lie just about 10 miles from the reactor site, must be included in the EPZ for planning purposes. This conclusion is required by the particular characteristics of the area surrounding the McGuire site, including the fact that the City of Charlotte has a population of approxi-mately 320,000 people; is located in the path of winds which at certain times come from the direction of McGuire; and is one of only a few locations in the U.S. which is uniquely susceptible to atmospheric inversions.
NRC regulations in effect at the present time clearly require more than the establishment of an arbitrary ten mile l zone for emergency planning purposes. Yet, no such considera-I tion has been made with respect to McGuire. So far as we l
are aware, the Licensing Board has not passed on the
j i
adequacy of emergency planning considerations since evaluation '
of the preliminary analysis made at the construction permit stage. Moreover, all of the safety analysis reports sub-mitted by the Applicant and staff during the prior operating license proceedings were based on tho assumption that if an accident occurred at all, it was expected to be highly localized, presenting no jeopardy beyond the plant site.3/
Since TMI and the corresponding change in Commission policies on emergency planning requirements, the Licensing Board has not evaluated emergency plans for McGuire and CESG has not had the opportunity to present its case as to the adequacy of emergency plans recently considered by the staff.
I NRC's regulations explicitly state that "no operating license for a nuclear power reactor will be issued unless a finding is made by NRC that the state of onsite and offsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 10 C.F.R. S 50.47, 45 F.R. 55409. We thus submit that the Board must establish the adequacy of proposed emergency plans for areas surrounding g McGuire, and that CESG's contention is directly relevant to this issue.
, In any event, che Commission has alfeady admitted CESG's contention 4, which questions the sufficiency of an emergency i 3/ In view of the Board's ruling at the Construction Permit l stage that Class 9 accidents would not be considered in these proceedings, CESG saw no changed circumstances upon which l
to urge the Board to consider planning for Class 9 accidents during the operating License proceedings.
1 1
I planning zone of 10 miles in terms of protecting the public from radioactive releases of one particular Class 9 accident, i.e. , a low pressure, ice conc' ..ser containment ruptured by a hydrogen explosion. Since the Commission's rules are designed to provide adequate protection against a range of possible Class 9 accidents, similar considerations underlie both contentions 4 and 6. As a result, the admission of CESG's further contention on emergency planning will not significantly expand the inquiry which the Board has already authorized. * *
- For these reasons, CESG's motion to add further contentions should be granted.
Respectfully submitted, d uah 1. M Diane B. Cohn William B. Schultz Suite 700 2000 P Street, N.W.
Washington, D.C. 20036
~(202) 785-3704 Attorneys for Carolina Environmental Study Group January 21, 1981 COUNCIL ON CN VI R ' *d M E N T.k L Q U A i n
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%. e' gQG}E'.580 Hencrabia Tyrone C. Tahner -
sii A::::ney ceneral yayun 11M J. SCr.---
Sta:e of Illinois AgTestfMEEF # I-
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Dear A:
- nev Ceneral Tahner:
- oocmETED USHF
The Council has reviewed your office's le::er, da:ed May 27, 1980, ggy -
E 6 regarding :he applica:ica of :he Na:1onal Enviren=en:a1 ? licy Act *
("NEPA") :o the futura decisions cencerning the Sailly Genera:1:g SMise of timissetWT W
S:a:10 , Nuclear ("3a' ' ' y- 1") .
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Our review of the =ar:e indica:es :ha: the ini:ial cons: ue:icn per:1:- m f: 3ailly-1 was issued May 1,1974 Since :ha: :i=e virtually :=
cons: nc:1 = has :aken p'. ace, and :he cc:s:::::icn per:i: has expired. -
Pursuan: :: :he in:en: of the A-- d- e:gy Ac:, unless :he per:1: is ex: ended by order of :he Nuclear Regula:::7 C =ission ("NRC") , the N ::her: Indiana Publi: Se:-tice Cc=pany ("N ? SCC") vill forf ei: all
. d e, .'. . s . .- -. . .. s . -" .- .
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Your effice has sugges:ed tha: there have bee: cer: sin si;=ificas: new develep=en:s since the final IIS : Sailly-l's cens::ue:icn per=i: vas issued in 1973, such as:
- 1. he issuance of WA3E-laCO, he Reae::: Safe:r Studv (0:::b er ,
1975) and i:s reevalua:ics by H. Lewis' Risk Assess =en: Review G up i: NURIO/CR-CaC0 (1978) .
- 2. ".he acciden: c: "hree Mile Island and :he subsecuen: studies ci :he acciden:, includi:g :he Re ::: bv the ?residen:'s Cc 'ssi:n i en he A :iden: A: -'h: te Mile Isla:d, anc the repc : =f :he Special
~. qui:,7 G: up :: the Nuclear Regu14:::7 Cc 'ssi:n.
- 3. *he Sep:e=ber 25, 1979, NRC =e==:andu= f == R. 7. Ecus:en, Chief ci :he NRC's Acciden: A=alysis 3:anch, := Daniel ?. Muller, Ac:ing Direc::: of :he NRC's Divisi n of Site Saf e:7 and Enviren-
=en:21 Analysis, indica:i=g :ha: :he 3a1117-1 facili:v failed ::
=ee: pr:pesed sizing ::1:eria c: stained in the repc:: ef :he NRC Si-ing ?clicy Task ?c :e (NN,-0625)(1979) .
- l. . ' he Council's le::e of Ma:.:h 20, 1980, :: :he NRC and :he Council's reper: en:i: led, NRC's T- "-- en:21 Analvsis of %: lear A :idents* Ss i- AdeCO2:27 I sur le::e ef March 20, 1980, we urged :he C =issi: :: ::ve quickly
- rev_se 1:s poli:7 en acciden: analysis 1: envi:===es:a1 i=:ac: s:a:e-
=ents. -he reviev of NRC EISs by the Env-;;: = ental lav Ins:i:::e f or W
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- he Council had evealed :hc: ntna of :hs E;Ss p;cpcred :o da:e by :hs NRC for land based reac: ors has included an analysis of wha: vere for=erly known as " Class 9" or vers: case acciden:s. 'Je sta:ed our cenclusien :ha: :he NRC's new acciden: a:alysis pclicy should require discussion t=.E!S's of :he environ =en:21 and o:her consequences of :he full range of acciden:s :ha: =ight occur a: nuclear reac:::s, includi=g cors =al: even:s. Such analyses.ve noted, could i= prove :he C ==1ssion's sizing, design, licensing, and a=e:gency planning decisions.
On June 13,1980, :he Cc==issien published a sev ^!::eri= Folicy for :he considera:icn of envir===en:11 c0nsequences of nuclear acciden:s under NI?A. The NRC cencluded :ha: there is a need :s i=clude in I Ss a dis-cussics of :he "si:e specific envir===en:a1 impac:s a:::ibu:able :o acciden: sequences tha: lead :o releases of radia:ics and/or radioac:1ve
=aterials, including sequences that can resul: in :he . . . sel:1ng of
- he reac:c: cere." 45 Fed. Reg. 40101. The Interi= Policy was a=biguous on whe:her supple =en:s =us be prepared for exis:ing E!Ss tha: have already been issued for cens::ue:1:= per=1:s. devever, :he C ==issi n s:a:ed:
". . . i: is the inten: of :he Cc==issic: :ha: :he s:aff ake s:eps :: iden:ify addi:1 :a1 cases :ha: =1gh: varran: early censid-ers:icn of ei:ter addi:icnal fea:ures c: c:he ac:icas which veuld preven: c: =i: iga:e :he c sequences of serious acciden:s. Cases fer such ::nsidera:icn are :hese for which a Final Inviren=en:a1 5:sta=en: has already been issued a: :he C strue:i n Per=i: stage bu: fc which :he Operating License review s: age has ac: ye: been reached." 45 Fed. Reg. '0101, 40102.
The NEC ack :viedged :ha: subs:antive changes in plan: design fea:ures as a resul: ci such analyses "=ay be =cre easily i= corpora:ed i plan:s when cens: rue:10: has nc: ye: progressed very far." Id.
As 1:di:s:ed in :he =e=crand== enc 1: sed vi:h :his le::e f::= cur G4:eral Counsel's Office, i de:er d-iss whe:her := ac: :o ex end N!?SCO's cons: ue:1:n per=1:, :he NRC's responsibilities under the A::=1c Energy Act are supple =ented by the Na:10 a1 Invir===en:a1 Policy Ac:. NI?A requires :he NRC to cesider envir===en:a1 fac:::s :s the fulles: ex:en:
poss'*'= d- 1:s =ev decision abou 3a1117-1. The Council is of the viev
- ha: fe: :his decisien, the NRC =ay si= ply adop all or porticus of 1:s prior fi=al IIS pursuan: :o 40 CTR 51306.3 and prepare a supp,le=en:
dealing vi:h the develop =ents i= dica:ed above. Considera:1 = of :his new i=fer=a:1:n =1ght indicate, a=eng c:her :hings, the need :c = edify '
plan: design, selec: an al:ernative si:e, i=ple=en: cer: sin e=ergency preparedness =easures, or recensider :he cons: ue:1cn per=i: al::ge:her.
As s:a:ed by :he U.S. Cour: of Appeals for :he Secen'd Cir:ui::
t
" A1: hough an IIS =ay be supple =e :ed. :he ::1:1 cal age::y decisi:n
=us:, of course, be =ade ad:e :he supple =en: has bee circula:ed,
- ~ - - - - - - - - - . . . , , , , , _ _ , , _ , _ _ _ _ ,, _ _ _ _ _ , _
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- sidered and discussed in :he ligh: of al:erna:ives, no: before.
1 C:herwis e, :he process becones a useless ri:ual, def ea:ing :he ;
purpose of STJA, and ra:her =aking a nockery of it." lC C .v .
Callavav, 524 7. 2d 79, 90 (2d Cir. ,1975) .
In su==ary, the Council has concluded tha: :he NRC should prepare and circula:e a supplemen: :o :he EIS on the 3a4y-1 cons: rue:icn per=i:
prior := rendering a decision on :he pending request for a per:1 ex:ension. The NRC nus; also issue a record.cf 1:s new decision in ec=pliance vi:h 'O C7R 51505.0.
By a copy of this le::er, we are providing our conclusions en :his issue
- o :he NRC and N!?SCO.
Sincerely, f
N Tw.e e .m. e . u..
Chair =an Enc 1:sure c: F.e:hers of the C ==ission
?residen: ef N!? SCC O
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. EXECUTIVE OFFICE OF TH E PR ESIDENT COUNCIL CN ENVIRONMENTAL CU ALI Y *'" N 7:2.ACK!CN Pt.ACL N W WASMiNGTCN : C 200C6 #D in USNR0 -4
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MDiCRA.TUM FOR THE CHA!.C!AN
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JAN 2119N > -
, Missof thehuse, 5 THROUGH: Foster Knigh:, Acting General Counsel Oh
/
FROM: John Shea, Counsel s , I gl I
SU3 JECT: ~he Need To Supple = n: 'G.C's EIS On the 3ailly-1 Reac:c:
Cons uction Pe=1:
On May 27, 1980, the A :ceney General of the State of Illinois vroce to the Council concerning the application of :he Na:1onal Inviron= ental Policy Act ("NE?a") to a decision by :he Nuclear Regulatory Cc==ission
("NRC") en a reques: for an ex:ension of the construe: ion pe=1: fc :he Sailly Generating Sta:icn, Nuclear-1 ("3a111y-1").
Back:reund The final enviren=en:a1 i= pac: s:2:e=en: on the cons: uction pe=1: for 3ailly-1 was issued in February 1973. The ini:ial cons::ue:icn pe=i:
for 3ailly-1 was issued en May 1,1974 Since :ha: :i=e, virtually no construction has :aken place and :he cens: uction pe=1: has expired.
Pursuan: :o the in:ent of :he A:c=ic Energy Act, unless :he pe=i: is ex: ended by order of the NRC, :he Nc::hern Indiana Public Se:tice Cc:pany
("NI? SCC") vill fc:fei: all righ:s :o cons::ue: 3ailly-1 (See:icn 135 ef
- he A:o=1: Energv Act of 1954, as a= ended, l.2 U.S.C. 52:25).
- 1. *he A::orney General's Latter.
The A::o =ey General identified a nu=ber of develep=en:s and 1:e=s of info =atica uhich are relevant to environ =en:a1 concerns and the NRC's deci.sion :o allev :he cons::ue: ion of 3a1117-1. Several of :hese 1: ens were discussed at leng:h in :he Council's le::e and a::ach=en: :o the NRC, dated March 20, 1980. These include:
- 1. The issuance of 'a*ASE-1400, The Reactor Safe:v S:udv (Oc:cber 1975) and i:s reevalua:icn by H. Lewis' Risk Assess =en: Review G cup in NUREG/CR-0400 (1973).
- 2. The acciden: a: Three Mile Island and :he subsequent s:udies of :he even:, i.:cluding the Recor: bv the ?residen:'s Cc =issien en ne Acciden: A: ~hree Mile Island and :he report of :he Special Inquiry G cup =c :he NRC.
- 3. ~he Ccuncil's release of :he report by :he Invironnental Law Ins:1:ute en:1: led, NRC's Environ = ental Analvsis of Suclear Accidents: Is 1: Adecuate?
D** 3 a
wo o. J, m One other related development discussed in the At:orney General's letter
- involves a memorandum to Daniel R. Muller, Acting Director of the NRC's Division of Site Safety and Enviroemental Analysis, from 1.
Wayne Hous:en, Chief of the NRC's Accident Analysis Branch, DSE, con-carning the development of si:ing cri:eria for nuclear rea'c: ors. That memorandum indicates that :he Bailly-1 facili:y failed :o neet all six of the proposed siting criteria contained in the report of :he NRC's Si:ing Policy Task Force (NUREG-0625) (1979).
- 2. CIQ's Latter of March 20, 1980, to the NRC Concerning Acciden:
Analysis.
In our letter of March 20th, we told the NRC that i:s long-standing
- approach to accident analysis in IISs was inadequate to meet the full
- l. disclosure requirements of NEPA. We also stated that all future EISs i would have to include an accident analysis which fulfilled the requirements indicated in our letter and discussed fur:her in the ELI report. 'Je went on to say : hat the NRC should perform supplemental accident analyses for opera:ing nuclear reactors giving highes: priori:7 :o high risk reactors, par:icularly : hose near densely populated areas or reactors with unique fea:ures having a grea:er poten:ial for accidents.
- 3. The NRC's Recen: S: ate =ent of Interim Policy Concerning Acciden:
Analysis.
On June 13, 1980, the NRC published an In:erim Policy for the consideration of severe reactor accidents in EISs. 45 Fed. Reg. 40101. The stata=en:
of policy announced the wi:hdrawal of :he old classifica:ica systa= for nuclear accidents and set forth the Cc==issien's direction :ha: NRC IISs
" include censiderations of the si:e specific enviren= ental i= pacts at:ribu:able to acciden: sequences tha: lead :o releases of radia: ion and/or radicactive =a:arials, including sequences that can resul: in inadequate cooling of reac:or fuel and to mal:ing of :he reactor core."
Id. In carrying ou: this policy, the NRC staff was 1:strue:ed :o consider relevan: si:e features associa:ed wi:h acciden: risks, including popula: ion density. The scaff was also direc:ed to " consider the likelihood tha:
subs:an:ive changes in plan: design features which =ay co=pensa:e further for adverse si:e features may be more easily incorporated in plants when cenetrue:1on has not yet progressed vary far." 45 Fed. Reg at 40103.
The Lagal Issuas Under NEPA As with its other actions and decisions, the NRC's responsibilities under ete A o=ic Energy Ac: regarding its decision on N!?SCO"s applica- ,
tion for an extension of :he cons:ruction per=i: are supplenented by the i NEPA. Calver: Cliffs' Coordina:ine Co=ci::ee. Ines v. AEC, 449 7.2d l
- This-memorandum focusses only en :he develep=en:s cited by the A::orney I General's Office that are na:ional in secpe. Several other develep=en:s l referred to in the Illinois letter, which are = ore of a local na:ure, =ay be appropria:e for discussion and consideration in a supple =ent :o :he 3ailly-l IIS, depending upon : heir significance. These " local" develop =ents include (1) :te drsudown of water during plant construe:ica frc=
the Indiana Dures Na:1cnal Lakeshore and Ccwles Sog, (2) increases in plan: cos:s, and (3) decreases in the need for power.
- - - - . , - - . , , , ,,- ,,n-+ - - - -- - - - , , - - , -
I l
1109, 1112 (D.C. Cir. , 1971) , cert. denied, 404 U.S. 942 (1972); Public Service Co. of New Haceshire v. Nuclear Regulatorv Co= mission, 582 F.2c l I
77 (1s: Cir., 1978), cert. denied, 439 U.S. 1046. A decision :o ex:end the MI?SCO cons::uction permit and thereby allov :he construe:1on of 3ailly-1, would be a major federal ac: ion necessi:a:ing compliance with NEPA's requiremen: for an EIS review. 40 CFR 561502.3 and 1508.18; Minnesota ?IRG v. But:, 498 F.2d 1314 (8:n Cir., 1974). In this case :he ,
NRC could adopt its prior IIS or por: ions therecf and issue a supplemen:
to tha: EIS :o disclose the significan: new infomatbn discussed above.
4 40 CFR 551506.3 and 1502.9(c).
The Council's nev .'E?A regula:1ons provide a: 40 CFR 51502.9(c) (1979)
- hat
"(c) Agencies:
(1) Shall prepare supplements :o either draf: or final impac:
statemen:s if:
(1) The agency =akes substan:ial changes in the proposed ac: ion tha: are relevant to environmental concerns; or (ii) There are significant new circamstances c: infor=a: ion, relevant to environmental concerns, bearing on the p cposed ac: ion or 1:s i= pacts."
In"Essex Coun:v Preservation Association v. Ca=cbell, which was decided prio :o the adop: ion of :he Council's new regulations, the Second Circui: affir=ed a dis::ict court's order direc:ing the Federal Highway Ad=inis::atica to prepare a supple =en:al EIS on significan: new circu=-
s:ances involving a moratoriu on cer:ain highway extension work. The
=cra:oriu= purpor:edly called into question :he need for other highway cons::uction a: issue in the case. ~'he Cour of Appeals affi:=ed :he district cour , sta:Ing:
. . . the (dis::ic:] cour: held that a supplemental EIS had to be prepared in order to effectuate the basic ai=s of NE?A which favor disclosure of all relevan fac: ors affecting agency decisions. See Menroe Coun:v Conservation Council, Inc. v. Voice, 472 7.2d 693, 697 (2d Cir. ,1972) . '4e are inclined :o agree with this judg=en:.
'Aile we cannct determine with certainty wha: the ul:i=a:e environ =en:a1 effects (of these new circu= stances] will be,1: would see :o constitu:e the type of 'significant new infor=ation...concerning
[an] action's environmental aspects' that =akes a supplemental EIS necessary. 23 CFR 5771.15. Such a supple = ental sta:e=en:, which receives the same :ype of public con:=en: and exposure as an original EIS, is likely to facili: ate :he 'comple:e awareness on the part,'of
- he ac:or of :he environmen:a1 consequences of his action . . .
National Helium Core. v. Mor:on, 455 F.2d 650 (IC:h Cir. ,1971),
=andated by NE?A." Essex Coun:v ?:eserra: ion Association v. Ca=chell, 536 F.2d 956, S ERC 2156, 2159 (1s: Cir., 1976).
! ~he Court went on :o hold that:
"In view of the fac: tha: :he reco: s::uction projec: at issue here
- is not yet completed and : hat certain agency decisions =ay 're=ain l
~
. . m m 9 D -
- .oo o .: m
. . I open to revision,' (ci acion o=1tted] we cannot say 1: was i= proper for the district cour: to require appellees :o prepare and circulate a supplemental EIS . . . ." Id.
In the past the Council has advised agencies to prepare supple = ental EISs in order :o fulfill the NE?A =andate identified.by the Court of Appeals in the Essex Countjr case, i.e. , that agencies =ust be aware of
- the potential consequences of their actions.and : hat agencies such as the NRC should weigh all of their decisions in light of significant new data and develop =ents. Scenic Hudson Preservation Conference v. TPC, 354 F.2d 608, 620 (2d Cir.,1965), cert. denied, 384 U.S. 941 (1966);
Hudson River Fishermen's Association v. ??c, 498 7.2d 827, 832-33 (2d Cir., 1974). This should be done only after preparation of a supple-
= ental EIS. As stated by the Second Circui in interpreting 40 CyR 51500.11 of the Council's for=er guidelines:
Although an EIS =ay be supple =en:ed, the critical agency decision
=us:, of course, be =ade after :he supple =en: has been circulated, considered and discussed in the light of al:erna:ives, not before.
Otherwise :he process becomes a useless ritual, defeating the purpose of NE?A, and rather =aking a =ockery of it. NRDC v.
Callavav, 524 F.2d 79, 92 (2d Cir., 1975).
Conclusien Consideration of the significhn: new infor=a: ion rela:ing to the environ-
= ental consequences of severe reactor accidents =igh: indicate, a=eng other things, :he need to =odify plant design, selec: an al:erna:ive si:e, i=ple=ent cer: sin e=ergency preparedness =easures, or reconsider a construe: ion per=i: al:ogether. It is essencial, therefore, tha: :his infor=a:1on be discussed in a supple =en:a1 EIS and considered prior to the NRC's cri:ical decision on :he ex:ension of the 3ailly-1 construe:ica per:i:.
6 S
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. l t l aumeme '
UNITED STATES OF AMERICA tasar NUCLEAR REGULATORY COMMISSION 4
Mggg ;
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Atheg g Before the Atomic Safety and Licensing Board In the Matter of ) *
) Docket Nos. db Q 69 Duke Power Company ) 501370
)
(William B. McGuire Nuclear ) January 21, 1981 Station, Units 1 and 2) )
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. S 2.713, the following information is provided:
Name William B. Schultz Address Public Citizen Litigation Group Suite 700 2000 P Street, N.W.
Washington, D.C. 20036 Telephone (202) 785-3704 Admissions District of Columbia Court of Appeals; Supreme Court of Virginia; M.S. Supreme Court; U.S. Courts f Appeals for the District of Columbia and Fourth Circuits-Name of Party Carolina Environmental Study Group N1' %. SAb William B. Schultz
(
cc: Service List l
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- Gd t
nocese UNITED STATES OF AMERICA W 4
~
NUCLEAR REGULATORY COMMISSION I ggggg b si te Seustuy *O j Before the Atomic Safety and Licer.3ing Board l In the Matter of )
I Duke Power Company Docket Nos. 50-369
)
)
50-370 (William B. McGuire Nuclear ) January 21, 1981 Station, Units 1 and 2) )
NOTICE OF APPEARANCE Notice is hereby given that the undersianed attorney enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. 5 2.713, the following information is provided:
Name Diane B. Cohn Address Public Citizen Litigation Group Suite 700 ,
2000 P Street, N.W.
Washington, D.C. 20036 Telephone (202) 785-3704 Admissions District of Columbia Court of Appeals; U.S. Supreme Court; U.S. Court of Appeals for the District of Columbia, Third, Fifth and Ninth Circuits; U.S.
District Court for the District of Columbia Name of Party Carolina Environmental Study Group Diane B. Cohn
cc: Service List
d l_l%
t UNITED STATES OF AMERICA =
NUCLEAR REGULATORY COMMISSION O 7.
O JAN 91195 > - '
een Before the Atomic Safety and Licensing Board In the Matter of )
)
DUKE POWER COMPANY ) Docket Nos. 50-369, 50-370
)
(William B. McGuire Nuclear )
Station, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify, this 21st day of January, 1981, that copies of CESG's Motion to Supplement Further Contentions have been served by hand upon those indicated by an asterisk and by m' ail, first class and postage prepaid, upon the remainder of the following:
- Robert M. Lazo, Esq.
- Edward G. Ketchen, Esq.
Chairman, Atomic Safety Counsel for NRC Regulatorty and Licensing Board Staff U.S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission
- Dr. Emmeth A. Luebke Washington, D.C. 20555 Atomic Safety and Licensing Board William L. Porter, Esq.
U.S. Nuclear Regulatory Associate General Counsel Commission Duke Power Company Washington, D.C. 20555 Post Office Box 2178 Charlotte, North Carolina 28242 Dr. Cadet H. Hand, Jr.
Director
- Chairman Bodega Marine Laboratcry Atomic Safety and Licensing of California Board Panel Post Office Box 247 U.S. Nuclear Regulatory Bodega Bay, California Commission 94923 Washington, D.C. 20555 Jesse L. Riley Mike Fennell President Safe Energy F.liance/CMEC Carolina Environmental 2014 Bay Street Study Group Charlotte, North Carolina 28205 854 Henley Place Charlotte, North Carolina 28207
- J. Michael McGarry, III, Esq.
- Chairman Debevoise & Liberman Atomic Safety and Licensing 1200 17th Street, N.W. Appeal Board Washington, D.C. 20036 U.S. Nuclear Regulatory Commission .
- Chase R. Stephens Washington, D.C. 20555 Docketing and Service Section Mayor Ed Knox Office of the Secretary Dave Smith U.S. Nuclear Regulatory 600 East Trade Street Commission City Hall Washington, D.C. 20555 Charlotte, North Carolina 28202 Gerald Fox, County Manager Mecklenburg County Commission 720 East 4th Street Charlotte, North Carolina 28202 hL Diane B. Cohn Suite 700 2000 P Street, N.W.
Washington, D.C. 20036 (202) 785-3704 Attorney for Carolina Environmental Study Group O
s
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