ML20003A336
| ML20003A336 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 01/19/1981 |
| From: | James Shea COUNCIL ON ENVIRONMENTAL QUALITY |
| To: | Buck J, Kohl C, Moore T NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20003A337 | List: |
| References | |
| NUDOCS 8102030511 | |
| Download: ML20003A336 (18) | |
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WASHtNGToN. D C 20006 January 19, 198 95q(,&SN8
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Qt 19 Thomas Moore, Chairman
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Dr. John Buck, Member Christine Kohl, Member Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Re:
In the Matter of Consumers Power Company (Big Rock Point Plant) Docket No. 50-155 (Spent Fuel Fool Modification)
Mr. Chairman and Members of the Board:
k*e have received the transcript of the oral argument held on January 9, 1981, in the above-referenced Docket and wish to address one error in the transcript and one issue raised at oral argument, both of which are related to the Council's role in this proceeding and in the implementa-tion of NEPA.
The transcript incorrectly identifies the Council on Enviromental Quality as an " intervener" in this case.
In fact, the Council did accept the Appeal Board's thoughtful invitation to participate in this proceeding, but as an amicus curiae. Moreover, the Council has not participated as an amicus curiae in the traditional sense. The Council has a statutory mandate "to review and appraise various programs and activities of the Federal Government in the light of the policy set forth in [the National Environmental Policy Act]..., and to make recommendations to the President with respect thereto." 42 U.S.C.
54344(3).
Section 102(2)(B) of the Act requires all agencies to develop procedures in consultation with the Council to ensure consideration of the environmental impacts of federal decisions.
In 1977, the President ordered the Council to " issue regulations to Federal agencies for the implementation of the procedural provisions" of NEPA, and he further ordered all agencies to comply with those regulations (Executive Order No. 11991, 3 CFR 124 (1977)). Pursuant to the Council's regulations, which became effective on July 30, 1979, all agencies are required, as necer6ary, to " adopt procedures to supplement" the regulations, but "only after an opportunity for public review and after review by the Council for conformity with the Act and [the] regulations." 40 CFR 51507.3 (1980).
The United States Supreme Court has characterized the Council's regulations as " mandatory regulations applicable to all federal agencies." Andrus v. Sierra Club, 442 U.S. 347, 353; 99 S.Ct.
233* 2341 (1979). The President can lawfully impose such binding pro-cedural requirements on independent regulatory agencies, as well as executive branch agencies.
See discussion and citations in Environmental Law Institute, NRC's Analysts of Nuclear Accidents: Is It Adequate?
43-44 (1980).
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2 Even prior to the issuance of those regulations the Supreme Court had held that "CEQ's interpretation of NEPA is entitled to substantial deference." Andrus v. Sierra Club, supra, at 353, citing Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301, 1309-10 (1974) (Douglas, Circuit Justice). On numerous occasions the Council has advised the NRC and other agencies of its regulations without any intervention as a party of amicus in agency proceedings.
So, here, as in the past, the Council appears not as a typical amicus, but rather as the unit of government charged with the regulation of NEPA's implementation by Federal agencies.
At oral argunent I mentioned that the Council has written (both directly and indirectly) to the Commission three times in the last year on the need to review potential impacts of nuclear accidents in connection with reactor licensing.
Copies of those letters are enclosed for the Board's information.
Of particular relevance is the letter, dated August 12, 1980 wherein the Council determined that the Comnission's extension of an expired construction permit required a new environmental impact statement on the proposed reactor. There too, the licensee sought to eliminate all environmental inquiry on the theory that the extension of the permit involved no new decision by the Commission regarding reactor construction.
However, that argument flew in the face of the fact that, without the permit extension, the licensee would forfeit all rights to construct the reactor pursuant to the Atomic Energy Act, 42 U.S.C. 52235.
On another issue, at oral argument on January 9, 1981, I referred the Board to several cases in support of the principle that the environmental review of an agency's proposed action must address the full scope of potential ef fects, both direct and indirect, that would flow from the action (Transcript, pp. 64-65).
Pursuant to the Board's request for citatiors to those c _ses, I submit the following:
Henry v. FPC, 513 F.2d 395, 406 (D.C. Cir. 1975) (FPC approval of tap and valve facility which is essential to coal gasification project requires consideration of envirormental impacts of the entire project, not merely tap and valve facility.
Port of Astoria v. Hodel, 595 F.2d 467, 477 (9th Cir. 1979) (Bonneville Power Administration's agreement to supply power, which enables company to build aluminum reduction plant planned in 1966, requires preparation of an EIS on the plant as well as. transmission lines.)
Sierra Club v. Hodel, 544 F.2d 1036, 1044 (9th Cir. 1976) (1970 contract amending 1967 contract for supply of power requires preparation of EIS on magnesium plant as well as transmission lines essential to operation of that plant.)
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3 Alumet v. Andrus, 607 F.2d, 911, 913 (10th Cir. 1979) (Bureau of Land Management viewed rights-of-way, which were necessary to mining opera-tions on leased federal lands, to be part of the total project.)
Lastly, I would request that the corrections indicated on Attachment A to this letter be made to the transcript of January 9, 1981.
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f bA9 J phn F. Shea, III Counsel Attachment cc:
Service List
ATTACHMEhT A h
Line Correction 2
21 Change "Intervenor" to " Amicus Curiae" 3
7 61 25 Change "and" to "in" 64 15 Change "is" to "as" 67 4
Change "by" to "to" 70 8, 12 Change "administerial" to " ministerial" 71 24 Change "is" to " adds" 78 9, 10 Change "nonoperating of" to "not operating a" 79 2
Change " reviewed" to " reviews" 83 2
Change "It" to "I"
84 16 Change "approvements" to " approvals" 86 16 Chr.nge "and direct" to " indirect"