ML20008E199
| ML20008E199 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 10/20/1980 |
| From: | Gallo J, Thornton P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | |
| References | |
| ISSUANCES-OLA, NUDOCS 8010240364 | |
| Download: ML20008E199 (32) | |
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sp UNITED STATES OF AMERICA
'g NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD IN THE MATTER OF
)
)
CONSUMERS POWER COMPANY
) Docket No. 50-155
) (Spent Fuel Pool Modification)
(Big Rock Point Nuclear
)
Power Plant)
)
BRIEF OF CONSUMERS POWER COMPANY IN OPPOSITION TO ORDER REQUIRING IMPACT STATEMENT Joseph Gallo, Esquire Peter Thornton, Esquire ISHAM, LINCOLN & BEALE ISHAM, LINCOLN & BEALE 1120 Connecticut Avenue, N.W.
One First National Plaza Suite 325 Suite 4200 Washington, D.C.
20036 Chicago, Illinois 60603 202/833-9730 312/558-7500 Two of the Attorneys for Consumers Power Company Dated:
,0ctober 20, 1980
.801024g Qy
TABLE OF CONTENTS Page INTRODUCTION.
1 ARGUMENT.
4 I.
The Licensing Board Misconstrued the Scope of the Action that the Licensee Seeks the Govern-ment to Take in this Case.
4 II.
The Licensing Board Improperly Applied NEPA Retroactively.
13 III. The Licensing Board's Finding Under Section 102 (2) (C) of NEPA Did Not Comply with the Pro-cedural Requirements of 10 C.F.R. Part 51 and Was Not Based on Competent Evidence 21 IV.
The Appeal Board Should Determine the Applicabil-ity of Section 102 (2) (E) of NEPA, 24 CONCLUSION.
25 I
TABLE OF AUTHORITIES CASES:
Page Aberdeen & Rockfish R.
Co.
- v. SCRAP, 422 U.S.
289 (1975)..
4 Arlington-Coalition on Transport ^ation v. Volpe, 458 F.2d 1323 (4th Cir. 1972).
14 Calvert Clif fs' Coordinating Committee, Inc. v.
- AEC, 449 F.2d 1109'(1971) 23 l'
Consumers Power Company (Midland Plant, Units 1 and 2, ALAB-452, 6 NRC 892 (1977) 26 Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), LBP 80-2 (January 10, 1980).
2 Detroit Edison' Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-ll, 7 NRC 381 (1976).
6 Hart v. Denver Urban Renewal Authority, 551 F.2d 1178-(10th Cir. 1977) 16,19 Houston' Lighting and Power Company (South Texas Project, Units 1 and 2), ALAB-381, 5 NRC 582 (1977).
6 Izaak Walton League of America v.
Schlesinger, 337 F.Supp. 287 (D. C. 1971).
23,24 Jicarilla Apache Tribe of Indians v. Morton,
_ 15,16,18,20 1
471 F.2d 1275 (9th Cir. 1973).
Jones v. Lynn, 477 F.2d 885 (1st Cir. 1973).
11 ma w Kleppe v.
Sierra Club, 427 U.S. 390 (1976) 5 Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2), ALAB-486, 8 NRC 9 (1978) 25 MPIRG v. Butz, 498 F.2d 1314 (8th Cir. 1974) 16,17 l
Niagara Mohawk Power Corporation (Nine Mile Point Nuclear Power Station, Unit 2), ALAB-264, 1 NRC 347 (1975) 26 l
iii Page Northern States Power Co.,
et al. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 31 (1978), remanded on other grounds sub nomine Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979).
7-10 Portland General Electric Co., et al. (Trojan Nuclear Plant) ALAB-531, 9 NRC 263 (1979).
7-10 Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167 (1976) 6 Public Service Company of New Hampshire (Seaarcok Station, Units 1 and 2), 5 NRC 503 (1977).
5 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-14, 7 NRC 952 (1978) 25 San Francisco Tomorrow v.
Romney, 472 F.2d 1021 (9th Cir. 1973).
10-12,20 Sworob v. Harris, 451 F.Supp. 96 (E. D. Pa. 1978) 11 Tennessee Valley Authority (Hartsville Nuclear Plants, Units lA, 2A, 1B, and 2B), ALAB-467, 7 NRC 459 (1978).
25 Trustees of Columbia University, 4 AEC 680 (1971),
aff'd. sub nom. Morningside Renewal Council v.
- AEC, 482 F.2d 234 (1973), cert. denied, 417 U.S.
951 (1974) 24 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-194, 7 AEC 431 (1974) 25 Westside Property Owners v.
Schlesinger, 597 F.2d 1214 (9th Cir. 1979).
12n.
+
iv:
STATUTES:
42 U.S.C. Section 4332 (" National' Environmental Policy
. Act of 1969")
Section 102 (2) (C)
. passim 4
Section 102 (2) (E) passim-L
, REGULATIONS:
10-C.F.R.
- 52. 717 (a) 6 l
10 C.F.R.
- 52. 730 (f) 3 10 C.r.R.
S 51. 5 (a) 23 10 C.F.R.
SSI.5(b) 21 10 C.F.R.
S 51. 5 (c) 21 10 C.F.R.
S51.7 3
T 4
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- k W
i 1
.1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD IN THE MATTER OF
)
)
i
- CONSUMERS POWER COMPANY
) Docket No. 50-155
) (Spent Fuel Pool Modification)
(Big Rock Point Nuclear
)
Power Plant)
)
BRIEF OF CONSUMERS POWER COMPANY IN OPPOSITION TO ORDER REQUIRING IMPACT STATEMENT INTRODUCTION This proceeding involves the appl.tcation1/
of Consumers Power Company (" Licensee") for an amendment to its operating license for the Big Rock Point plant.
The amendment,' if approved, would permit the Licensee to enlarge the capacity of the Big Rock Point spent fuel pool from 193 to 441 spent fuel assemblies.
A " Notice of Proposed Issuance of Amendment to Facility Operating License" was published on July 23, 1979.S Three pe'titions for leave to intervene were filed in response to this notice on August 22, 1979.
The petitions of 1/
See Licensee's letter of April 23, 1979 signed by Mr.
David P.
Hoffman to Mr. Dennis L.
Ziemann of the NRC Staff, which transmitted Licensee's " Spent Fuel Rack Addition, Description and Safety Analysis" and accom-panying " Environmental Impact Evaluation. "
2/
44 Fed.-Reg. 43126.
Ms. Christa-Maria, et al. and Mr. John O'Neill were admitted.
The third petition, filed by Mr. John Leithauser, was denied by the Atomic Safety and Licensing Board
(" Licensing Board")
for failure to cure certain deficiencies in the petition and to file timely contentions,3/
In its Order, the Licensing Board directed the parties to brief'the-following question:S!
Where the facility has never been sub-jected to National Environmental Policy Act of 1969 (NEPA) review because it was 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?
The question was prompted by a contention asserted by Inter-venor John O'Neill and by the decision of another Atomic Safety and Licensing Board in Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), LBP 80-2, (Januhry 10, 1980.EI 3/
ORDER FOLLOWING SPECIAL PREHEARING CONFERENCE
(" Order"),
January 17, 1980, pp. 5-13.
4/
Mr. Leithauser was also granted leave to participate in the briefing of this, question.
Order at 34.
5/
See Order, pages 32-35.
l -
In the Order, the Licensing Board indicated that it fully expected the NRC Staf f to issue a " negative declar-atio~n" stating that the proposed license amendment would not significantly affect the quality of the human environment.
Consequently, the parties briefed the question posed by the Licensing Board, i.e., the applicability of section 102 (2 )(E),5 on the premise that the environmental impact appraisal then undergoing preparation by the NRC Staff would support the issuance of a negative declaration.
In its ME!!ORANDUM AND ORDER ON NEPA REVIEW, dated September 12, 1980, the Licensing Board, af ter summarizing the parties ' positions on the applicability of section 102(2)(E) to this proceeding, concluded that this issue was not dispositive and therefore need not be decided.
Without awaiting the NRC Staff's environmental impact appraisal, the Licensing Board determined, apparently as a matter of law, that-the proposed license i
amendment was a major federal action having a significant effect on the quality of the human environment.
It therefore directed the NRC Staff to prepare an Environmental Impact Statement ("EIS") pursuant to Section 102(2)(C) of NEPA (42 USC Section 4332(2)(C)).
The Licensing Board referred its ruling to the Atomic Safety and Licensing Appeal Board
(" Appeal Board")
pursuant to 10 C.F.R. 2.730(f), and the Appeal Board accepted 6/
42 U.S.C. 4332(2)(E).
the referral.
Briefs in~ opposition to or in support of the Order are due by October 20 and November 24, 1980, respec-tively.
Reply briefs must be filed by December 10, 1980.
The Council on Environmental Quality has been invited to file a brief amicus curiae.
On September 30, 1980 the Appeal Board issued an order noting that if it were to determine that the Licensing Board had erred in applying Section 102(2)(C), it might either determine the remaining issue of the applicability of Section 102(2)(E) itself or remand the case to the Licensing Board for determination of that issue.
The Appeal Board therefore asked the parties to address this matter in addi-4 tion to addressing the efficacy of the referred Order.
ARGUMENT I.
The Licensing Board Misconstrued the Scope of the Action that the Licensee Seeks the Government to Take in this Case.
The Supreme Court has recognized that "defin[ing]
the scope of the ' federal action' to be taken" can be the key to the proper application of section 102(2)(C) of NEPA in a given case.
Aberdeen & Rockfish R.
Co. v. SCRAP, 422 U.S.
289, 326 (1975).
The Court noted that " [i] n order to decide what kind of an environmental impact statement need be prepared, it is necessary first to describe accurately 1
the ' federal action' being taken."
422 U.S.
at 322.
The Licensing Board concludes that the proposed federal action
. sought in this case involves not only the incremental envi-ronmental impact of the additional spent fuel assemblies that could be stored in the pool under the license amendment, but also any impacts resulting from continued operation of the plant for the next ten years.
Such an overbroad inter-pretation of the scope of the license amendment is contrary to previous Nuclear Regulatory Commission and Appeal Board decisions.
In Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2 ),
5 NRC 503 (1977) (hereinafter "Seabrook"), the Nuclear Regulatory Commission held that when the relevant federal action consists of federal approval of private action, the proper focus for NEPA analysia is the proposal submitted by the private party.
The Commission reasoned as follows:
In Federal approval cases, 'NEPA seeks only to assure [ environmental] consideration
"'during the formulation of a position on the proposal submitted by private parties.'"
(Quoting Kleppe v.
Sierra Club, 427 U.S.
- 390, (1976) (emphasis supplied by the Commission). ]
A formal proposal exists only when an applica-tion is docketed; it becomes a proposal for Federal action only when our staff has com-1 plated environmental (and other) analyses and decided to support the application in the hear-
)
ing process, 1
i
[O)ur NEPA analysis should focus on the proposal submitted by private parties rather than on some broader but ill-defined concept extrapolated from that proposal.
5 NRC at 541-42.
Following the Seabrook analysis, the scope of the federal approval sought in this license amendment proceeding is determin'ed by the Licensee's application in support of license amendment.
(See n.1 supra)
The application in this case does not include continued plant operation within the scope of its proposal, which is concerned solely with the action of enlarging the capacity of the Big Rock Point spent fuel pool.
Furthermore, a Licensing Board has jurisdiction to hear only those issues that are within the scope of the NRC's notice governing the case.
Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976); Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP 11, 7~NRC 381, 386 (1978); See Houston Lighting and Power Company (South Texas Project, Units 1 and 2), ALAB-381, 5 NRC 582, 592 (1977); see generally, 10 C.F.R. S 2.717(a).
In this case, the Commission's " Notice of Proposed Issuance of Amendment to Facility Operating License" (44
' Fed. Reg. 43126), contains no reference to continued plant operation.
The proposal specified there is the addition of three racks to the Big Rock Point spent fuel pool with a
- I resultant increase in the pool's storage capacity.1/
The environmental impacts within the scope of the proposal are therefore those resulting from increased storage of spent fuel assemblies.
In extrapolating the concept of continued reactor operation from the proposal submitted by the Licensee and noticed by the NRC, the Board contravened the principle enunciated in Seabrook and exceeded its jurisdiccion.
Furthermore, the identical issue as to the proper scope of a spent fuel pool expansion proceeding was raised in Portland General Electric Co., et al.
(Trojan Nuclear Plant),
ALAB-531, 9 NRC 263 (1979) (hereinafter " Trojan") and in Northern States Power Co..
(Prairie Island Nuclear Gener-ating Plant, Units 1 and.2), ALAB-455, 7 NRC 31 (1978),
remanded on other grounds sub nomine Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) (hereinafter " Prairie Island").
In both decisions the Appeal Board held that a proposed license amendment requesting expansion of the spent fuel pool capacity is not equivalent to a request for federal approval of continued cperation.
The Appeal Board's reasoning in these cases confirms that -its primary concern was defining the proper scope of a spent fuel proceeding.
Rejecting the " cont.inued operation" 7/
.See also the' Licensing Board's NOTICE OF HEARING ON AMENDMENT OF FACILITY OPERATING LICENSE, dated January 24, 1980.
' theory in Troj an, the' Appeal Board declared itself content to rest on its earlier analysis in Prairie Island, which it quoted as follows:
Because the practical effect of not now
. increasing the capacity of the spent fuel pool would be that that facil-ity would have to cease operation, the
[ appellant] appears to believe that what is being licensed is in reality plant operation.
Therefore, according to
[ appellant] the license amendment could i
not issue without a prior exploration of the environmental impact of continued operation and the consideration of the alternatives to that operation (e.g.,
energy conservation).
We do not agree,.
9 NRC 263 at 266 n.6 (emphasis added).
The Licensing Board admits that it does "not disagree with Licensee's position that Trojan and Prairie, Island define the proper scope of a spent fuel pool pieceed-ing."
(Slip Opinion at 10.)
Nonetheless, the Licensing
- Board reasons that in the present case the scope of the federal action to be considered should be enlarged because, unlike the Trojan and Prairie Islant plants, the Big Rock Point plant did not undergo NEPA review before licensing.
This reasoning is perhaps predicated upon a misinterpreta-tion of the Appeal Board's earlier analysis in Prairie 4
Island which was also quoted in Trojan, namely that:
The issuance of operating licenses for the two Prairie Island units was pre-ceded by a full environmental review, including the consideration of alter-
- natives,
. Nothing in NEPA or'in 4
W.
e e
r w
- those judicial decisions to which our attention has been directed dictates that the same ground be wholly replowed in connection with a proposed amendment to those 40-year operating licenses.
Rather, it seems manifest to us that all that need be undertaken is a con-sideration of whether the aruendment itself would bring about significant environmental consequences beyond those previously assessed and, if so, whether those consequences (to the extent un-avoidable) would be sufficient on balance to require a denial of the amendment application.
This is true irrespective of whether, by happen-stance, the particular amendment is necessary in order to enable continued reactor operation- (although such a f actor might be considered in balancing the environmental impact flowing from the amendment against the benefits to be derived from it).
A careful reading of Troian, however,-indicates that the proper scope of the proceeding and the existence of prior NEPA review were separate reasons, either of which would have supported the Appeal Board's holding.
In neither Trojan nor Prairie Island did the Appeal Board hold that continued operation was properly within the scope of a spent fuel pool expansion proceeding, but that prior consideration of NEPA issues in a licensing proceeding prevented the Board from considering such issues in an amendment proceeding.
Rather the Appeal Board regarded the relationship between spent fuel pool' expansion and continued operation as one of
" happenstance", and did not agree that "what is being licensed is in reality plant operation".
9 NRC at 266 n.6.
- This interpretation of Trojan and Prairie Island is supported by a line of cases involving HUD in which there had been no prior environmental review.
In San Francisco Tomorrow v.
Romney, 472 F.2d 1021 (9th Cir. 1973), HUD approved an urban redevelopment plan for federal financing and signed a loan and grant contract with the San Francisco Redevelopment Agency. before the effective date. of NEPA, with the result that no environmental assessment of this major redevelopr.ent plan was undertaken.
After the date of NEPA, amendatory contracts were sought to increase the federal funding to provide for the rising costs of land acquisition and the relocation of displaced residents.
In holding that the centract amendments did not constitute a major federal action, the court did not consider the fact that the rede-velopment plan had not undergone NEPA review, but only the fact that the amendments did not significantly modify the plan as approved.
The court concluded by stating that:
[S]uch amendments represent but confirma-tion of the Federal Government's earlier decision that the oroject proposal con-formed to HUD regrirements and was there-fore eligible for a grant and loan.
The major federal action was the execution of the initial grant and loan contract which occurred over four years before the effective date of NEPA.
472 F.2d at 1025.
. In Jones v. Lynn, 477 F.2d 885 (1st Cir. 1973),
the court held that the trial court's treatment of the question of whether similar contract amendments were major federal actions had been inadequate.
The court, however, did not adopt a dif ferent focus from that of the court in Romney.
The Jones court simply noted that the magnitude of the increase in funding was " suggestive of an expanded undertaking" and might therefore represent something more than mere confirmation of the earlier project approval.
477 F.2d at 890.
In Sworob v.
Harris, 451 F.Supp. 96 (E.D. Pa.
1978), the court agreed with and accepted a HUD policy statement that NEPA review would be required for pre-NEPA projects only when a " major amendatory" was proposed af ter 1970.
A " major amendatory" was defined as "a significant change in the nature, magnitude or extent of the action from that which was originally evaluated and which may have a significant effect on the quality of the human environment.
451 F.Supp. at 107.
This statement closely resem-bles that of the Appeal Board in Trojan, but note here that
" originally evaluated" clearly does not mean evaluated under the requirements of NEPA.
3/
See also Westside Property owners v. Schlesinger, 597 F.2d 1214 (9th Cir. 1979).
There the Air Force had located jet aircraft operations at Luke Air Force Base since 1951.
After the passage of NEPA the Government located the F-15 at Luke, having first prepared an Environmental Impact i
- These decisions support the proposition that in determining whether the federal action involved in a license amendment comes within Se tion 102 (2 )(C ),
the relevant inquiry is not whether the original license was preceded by NEPA review, but whether the amendment sought significantly changes the environmental impacts of the project as orig-inally approved.
If it does not, no significant new federal action is proposed.
This is true even when the amendment is
't necessary to complete the project as approved.
In San Francisco Tommorrow v.
Romney, supra, for example, the additional federal funding sought in the contract amendments to compensate for increased land costs was so substantial--
some six million dollars--that it is clear the project as approved could not have been implemented without it.
Yet the court did not use this fact as an excuse to subject the entire project to environmental review on the ground that the original approval had occurred nrior to NEPA.
In this case, therefore, the relevant federal action is limited to approval of - the increased capacity of the spent fuel pool and to any increased environmental 8/.
continued Statement.
This EIS concluded that the F-15 would not cause any increased adverse environmental effects.
Its adequacy was challenged because it did not discuss the total environmental effect of the operations at the base.
j The Court of Appeals, however, rejected this challenge, j
refusing "to turn the EIS regarding the introduction of the F-15 into an evaluation of maintaining Luke as an Air Force base at all."
597 F.2d at 1218.
. impacts associated therewith.
Both the Licensing Board and the NRC Staff have assumed that these impacts will be de minimis, although the NRC Staff has not been allowed to complete its environmental impact appraisal addressing this point.
Furthermore, insofar as the license amendment may make continued operation possible, the relevant inquiry would be not whether there had been a prior NEPA assessment of such operation, but whether continued operation represented a significant modification of the project as approved in the original grant of the license.
The answer, of course, is that there is no modification whatever; the operation of the Big Rock Point plant for the next ten years is precisely what was contemplated in the grant of the cperating license in 1962.
II.
The Licensing Board Improperly Applied NEPA Retroactively.
The Licensing Board's opinion concedes that " [il t is beyond dispute that NEPA may not be applied retroactively and if this Board were to require the preparation of an Environmental Impact Statement with regard to the continua-tion of Licensee's operating license, it would be acting directly contrary to the mandate of the statute and estab-lished judicial precedent".
(slip Opinion at 6.)
The Licens-ing Board then attempts to avoid the proscription against retroactive application of NEPA by characterizing the next ten years of operation at Big Rock Point as prospective 1
_14-activity which is inextricably linked with the proposed amendment to enlarge the capacity of the spent fuel pool.
This distinction, however, is supported neither by reason nor by the cases discussed below which allow the application of NEPA to projects approved before the statute's effective date.
The first of these cases involves a project ap-proved before NEPA requires substantial continuing federal involvement af ter January 1, 1970, the effective date of NEPA.
In Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972), the court held that despite its prior initiation the unexecuted part of the project must be evaluated under the requirements of NEPA.
The second of these cases involves a project approved before 1970 that later requires an amendment or modification that in itself constitutes a major federal action having a significant effect on the environment.
In Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973 ), the court held that the further major federal action was subject to NEPA even though the basic project could not be evaluated under the statute.
Only under the first of these rationales, the continuing project rationale, has the unexpired portion of the basic project approved before dEPA been held subject to NEPA requirements, including the requirement of an EIS under section 102(2)(C).
The Licensing Board has expressly recog-nized that this rationale is not applicable because Big Rock
- Point is not a project requiring continuing federal involve-ment:
"Nor can we consider the continuous operation of the plant under the license granted by the NRC (in 1962, the AEC) as an ongoing Federal project which requires constant re-evaluation to determine whether it should continue.
(Slip Opinion at 7. )
The second rationale, based on further federal action involving major project amendments, is inapplicable to this proceeding for two reasons.
First, in such cases the amendment itself constitutes a major federal action having a significant effect on the environment.
No such finding has been made here.
Second, only the further action, not the part of the project already approved, was subjected to NEPA requirements.
Here the Licensing Board has required that an EIS be prepared, not for the amendment alone but also for the continued operation of the plant for the same term and under the same conditions as already approved in 1962.
The Licensing Board relies on three decisions as supporting the result that it has reached here:
MPIRG v.
Butz, 498 F.2d 1314 (8th Cir. 1974); Jicarilla Acache Tribe of Indians v. Morton, 471 F.2d 275 (9th Cir. 1973); and Hart v.
Denver Urban Renewal Authority, 551 F.2d 1178 (10th Cir. 1977).
In all three cases, however, the Licensing Board's reliance is misplaced, because the decisions are
grounded upon either the " continuing project" or "further major-federal action" rationales and so are clearly distin-guishable from the result reached by the Licensing Board here.
In Butz the Forest Service had, before the date of NEPA, entered into contracts with private parties allowing them to conduct logging operations within certain portions of the Boundary Waters Canoe Area (BWCA ), a unique and fragile wilderness area.
In 1972 the MPIRG sought to enjoin all logging in the BWCA until the Forest Service prepared an EIS.
The Service contended that no EIS was required cecause there had been no major federal action since the date of NEPA.
The primary basis of the Circuiu Court in Butz in finding that there had been a major federal action since 1970, was that the contracts between private companies and the Forest Service represented continuing federal action.
The court noted that the Forest Service's contracts required its continued involvement to " approve locations of timber roads, logging camps and buildings; mark the trees to be cut; and negotiate payment for the timber cut."
498 F.2d at 1322.
The case is therefore inapplicable here, where the Board has admitted that there is no such continuing federal involvement.
Although the federal action in Butz also included the extension or modification of some of the con-tracts, these actions appeared to be of secondary importance
o
- to the court.
At most these actions contributed to the notion that the overall action constituted a major federal
/
action.
Tn Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 275 (9th Cir. 1973), two coal-fired electric generating stations were approved before tne date of NEPA.
After that date, however, further approvals were necessary.
In the case of one of the plants, rights-of-way and casements for a coal-haul railroad as well as stack heights had to be ap-proved.
In the case of the other plant a right-of-way over public lands had to be approved.
The question before the court there was whether, assuming that the basic projects were not reassessable after 1970, "a NEPA statement [must) be filed as to further maior federal actions".
471 F.2d at 1283 (emphasis in original).
The post-NEPA federal actions at issue were there-fore subject to NEPA only because in themselves they con-stituted major federal actions.
The Licensing Board in this case goes far beyond the holding of Jicarilla.
Without finding the license amendment in this case a major action in itself, the Licensing Board reasons that the amendment may be necessary to continue utilizing the. license or to utilize it more fully, and it therefore holds that the basic course of action itself thcrchy becomes subject to NEPA scrutiny.
The court in Jicarilla, on the other hand, determined that the basic course of action approved before 1970 was not reviewable.
+'
_18 In Hart v. Denver Urban Renewal Authority, 551 F.2d 1178 (10th Cir. 1977), a large urban renewal project was approved in 1968.
Included in the project area was a tower built in 1911 as part of a department store.
When the store was demolished as part of the project the tower was left standing.
In 1969 the tower was added to the naticnal register of historic places.
In 1970 the Denver Authority purchased the tower and in 1975 sold it to an architectural firm for renovation and use as office space.
It was alleged that this sale was subject to NEPA review.
Although there is language in the opinion relating to the " continuing project" rationale, the holding really relied on the fact I
that HUD'throughout the project treated the building separ-ately, both in preserving it from demolition and in selling it.
The case therefore most closely resembles Jicarilla in that a further major action on a pre-NEPA project was held
~
subject to NEPA-review.
The cases relied on by the Board, therefore, do not support the Board's conclusion that its Order avoids applying NEPA retroactively.
Big Rock Point is not subject to NEPA review as-a continuing federal project, as the Board concedes.
Neither does the license amendment involve further major federal action.
In the Board's words "a review of environmental _ impacts is required only when significant changes are contemplated."
(Slip Opinion at 7.)
In this case the NRC Ste ff has not yet completed its appraisal of
_19-whether the increased impacts of the additional spent fuel assemblies would constitute a significant change, but the Board has previously assumed that they would not.
If this is so, no significant changes are being contemplated here, and the fact that the amendment may enable the Licensee to continue operating under its license as it has done heretofore does not alter this result.
Any amendment save the most trifling may well be necessary to complete the project as approved, and such confirmatory actions taken after NEPA have not been held to open the original project approval to NEPA review.
In Jicarilla, supra, relied on by the Board, approval of rights-of-way over public land was probably necessary before the previously approved generating stations could become operative.
In San Francisco Tomorrow, supra, approval of additional funding was necessary if the previously approved purchase of land for an urban renewal project was to be consummated.
In neither case was there a reconsid-eration of the original project approval.
Similarly, the proposed amendment in this case is at most a confirmation of a federal action taken long before NEPA.
No significant changes are contemplated because there will be no appreci-ab?e increase in environmental impacts over those resulting from the project as approved in 1962.
Therefore any NEPA review of those impacts now is clearly a retroactive appli-cation of the statute.
III. The Licensing Board's Finding Under Section 102(2)(C) of NEPA Did Not Comply with the Procedural Requirements l
of 10 C.F.R. Part 51 and Was Nor Based on Competent l
Evidence.
1 Even assuming arauendo, the correctness of the Licensing Board's conclusion that the scope of the federal l
l action in this proceeding includes continued reactor opera-tion,- the finding that the proposed amendment constitutes a major federal action having a significant effect on the environment did not comply with the procedures specified in the Nuclear Regulatory Commission's regulations, 10 C.F.R. Part 51.
Section 51.5(b) includes an operating license amendment among the actions that "may or may not require preparation of an environmental impact statement, depending on the circumstances".
Section 51.5(c)(1) then provides. as follows:
The environmental impact of proposed licens-ing and regulatory actions listed in paragraph (b) will be evaluated, and if it is determined that an environmental impact statement should be prepared, a notice of intent will be pub-lished and distributed in accordance with 5 51.50(b) and draft and final environmental impact statements will be prepared.
If it is determined that an environmental impact state-ment need not be prepared for an action listed in paragraph (b), a negative declaration and environmental impact appraisal will, unless otherwise determined by the Commission, be prepared in accordance with SS 51.7 and Sl.50(d).
Here the Licensing Board did not await _ the NRC Staf f's evaluation of the proposed action.
That procedural irregularity in itself may not be of much consequence since the Licensing Board. expected that the NRC Staff evaluation would not consider continued operation and would conclude that no environmental impact statement need be prepared.
The real vice of the Licensing Board's short-circuiting of procedure is that the NRC Staff has never evaluated whether continued operation of the plant for the next ten years would require preparation of an environmental impact state-ment.
Lacking the NRC Staff's appraisal, the Licensing Board could not properly find as a matter of law that the license amendment would require an EIS.
In its original MEMORANDUM AND ORDER ON NEPA REVIEW, the Licensing Board merely said "we consider the action to have a significant effect upon the environment which must be environmentally reviewed under Section 10 2 ( 2 ) (C )".
(Slip Opinion at 15.)
The Board later appended a footnote to this sentence, as follows:
It is well-established that operation of a nuclear power plant has a significant effect upon the human environment.
- See, e.g.,
Calvert Cliffs, supra, 449 F.2d at 1129; Izaak Walton League of America v. Schlesinger, 337 F.Supp. 287 (D.C. 1971).
In the Board's opinion, making such operation possible for a period of ten years clearly constitutes a major Federal action and obviates the need to await the Staff's recommendation on this point.
Licensee does not disagree that issuance of a full-term operating license requires preparation of an en-vironmental impact statement as a matter of law.
Part 51 of the Commission's regulations expressly so provides.
10 C.F.R."Section 51.5(a).
However, the Licensing Board's
-22,
passing reference to Calvert Cliffs and Izaak Walton League, is wholly. inadequate to support its attempt to require an EIS for a license amendment without developing a factual basis therefor, even if it be assumed that some term of continued operation is within the scope of the amendment.
Reliance on Calvert Clif fs is unavailing because the question of whether nuclear plant operation was a major federal action under Section'102(2)(C) of NEPA was not at issue.
Izaak Walton League is also inapposite, because the court there did not decide, as a matter of law, that reactor operation was a major federal action having a significant ef fect on the environment.
Rather, the court found that the exhibits and affidavits submitted by plaintiffs " create a situation where there is a potential that the environment may be significantly affected. "
337 F.Supp, at 295.
Con-cluding therefore that plaintiff's had shown a likelihood of prevailing in a subsequent suit on the merits, the court granted the injunction sought by plaintiffs.
Thus the court relied on a factual record and made limited findings based on it.
In the present case, the preparation of an envi-J renmental impact appraisal of the proposed license amendment by the NRC Staff, including 10 years of continued operation, would provide a factual basis -- one way or the other -- for a determination of whether an EIS is needed.
Absent an environmental appraisal, the-Licensing Board oimply had no
. basis ' under NRC regulations or 'the case law for finding that its definition of the federal action constituted a major federal action.
Accordingly,. even if the Appeal Board accepts the Licensing Board's conclusion that the environ-mental impacts of 10 years of continued plant operation should be considered in this proceeding, the Appeal Board should vacate the Licensing Board's ruling and direct the NRC Staff to prepare an environmental impact appraisal in accordance with 10 C.F.R. Part 51.
IV.
The Appeal Board Should Determine The Applicability Of NEPA Section 102(2)(E).
Because the Licensing Board concluded that Section 102(2)(C) of NEPA required the preparation of an EIS in this case, it did not decide whether, absent the need for an EIS,
Section 102(2)(E) would require or permit considering a cost-benefit analysis or the need for power in this proceed-ing.
At the Licensing Board's request, however, the parties had already thoroughly briefed this issue.
Licensee there-fore submits that it would be appropriate for the Appeal
~
Board to decide this issue rather than remanding it to the Licensing Board.
When considerations-of policy.so dictate, the l
atomic safety and licensing appeal board will even conduct an evidentiary hearing itself rather than remanding to the
' Licensing Board.
Trustees of Columbia University, 4 AEC l
680, 681-82 (1971), aff'd, sub nom. Morningside Renewal l
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- Council v. AEC, 482 F.2d 234, 239 (1973), cert. denied, 417 U.S. 951 (1974).
Considerations that have led appeal boards to do so include the specificity of the issue to be decided, Tennessee Valley Authority (Hartsville Nuclear Plants, Units lA, 2A, IB, and 2B), ALAB-467, 7 NRC 459, 461 (1978);
l administrative expediency and the burdens of delay, expense and inconvenience that remand would place on the parties, Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station, ALAB-194, 7 AEC 431 (1974); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-14, 7 NRC 952, 956-7 (1978) (Commission opinion); and the desirability of having the appeal board's views reflected in the decision, Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2), ALAB-486, 8 NRC 9 (1978).
Here the issue is well-defined and is in addition essentially an issue of law, appropriately decided on briefs rather than an evidentiary record.
Moreover, the question of law involved is novel and for that reason warrants Appeal Board consideration at th'is juncture to provide direc-tion for this case and to achieve some measure of economy and efficiency in the litigation process.
Despite these reasons, remand would be appropriate if a decision by the Appeal Board would prejudice any of the parties, but that is not the case here.
All parties have been af forded a reasonable opportunity to present their arguments in the briefs filed b'elow and therefore no prej-udice would accrue if the Appeal Board decides the issue.
Cf. Consumers Power Company (Midland Plant, Units 1 and 2),
ALAB-452, 6 NRC 892, 1020-2 (1977); cf. Niagara Mohawk Power Corporation (Nine Mile Point Nuclear Power Station, Unit 2),
ALAB-264, 1 NRC 347, 354 (1975).
CONCLUSION For the reasons stated above, the Licensing Board's MEMORANDUM AND ORDER ON NEPA REVIEW, dated September 12, 1980 should be reversed, and the Appeal Board should decide the applicability of section 102(2)(E) to this proceeding based on the briefs filed by the parties below.
Respectfully submitted, Joseph Gallo Peter Thornton Two of the Attorneys for Consumers Power Company ISHAM, LINCOLN & BEALE 1120 Connecticut Avenue, N.W.
Suite 325 Washington, D.C.
20036 202/833-9730 ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 312/558-7500 Dated:
October 20, 1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD IN THE MATTER OF
)
)
CONSUMERS POWER COMPANY
)
Docket No. 50-155 (Spent Fuel Pool Modification)
(Big Rock Point Nuclear h
Power Plant)
)
CERTIFICATE OF SERVICE I hereby certify that copics of the following:
BRIEF OF CONSUMERS POWER COMPANY IN OPPOSITION TO ORDER REQUIRING IMPACT STATEMENT in the above-captioned proceeding were served upon the following persons by depositing copies
'thereof in the United States mail, first class postage pre-paid, this 20th day of October, 1980.
Alan S.
Rosenthal, Chairman Herbert Grossman, Esquire Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Comrission Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. John H.
Buck Dr. Oscar H.
Paris Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board Panel U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.r.
20555 Washington, D.C.
20555 Thomas S.
Moore, Esquire Mr. Frederick J. Shon Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board Panel U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555
2 Atomic Safety and Licensir.g Atomic Safety and Licensing
(
Board Panel Appeal Board Panel U.S.
Nuclear Regulatory U.S. Nuclear Regulatory i
Commission Commission
{
Washington, D.C.
20555 Washington, D.C.
20555 l
Janice E.
Moore, Esq.
Docketing and Service Section Counsel for NRC Staff Office of the Secretary i
U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory l
Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 John A. Leithauser John O'Neill, II Energy Resources Group Route 2, Box 44 General Delivery Maple City, MI 49664
{
Levering, MI 49755 C.
Foster Knight, Esquire l
Christa-Maria Acting General Counsel
(
Route 2, Box 108C Council on Environmental l
Charlevoix, MI 49720 Quality l
722 Jackson Place, N.W.
j Ms. JoAnne Bier Washington, D.C.
20006 l
204 Clinton Charlevoix, MI 49720 Mr. James Mills Route 2, Box 108 Charlevoix, MI 49720 Qm Gafo Jo