ML20010C887
| ML20010C887 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 08/14/1981 |
| From: | Hyman E, Semmel H ANTIOCH SCHOOL OF LAW, WASHINGTON, DC, BIER, MILLS, CHRISTA-MARIA, ET AL |
| To: | U.S. COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT |
| References | |
| ALAB-636, NUDOCS 8108210173 | |
| Download: ML20010C887 (8) | |
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C0!NISSION, AND THE UNITED STATES OF
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r PETITION FOR REVIEW
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1.
The Nature of the Proceedings as to hhich Review is Sought.
Petitioner seeks review of a decision by the Atomic Safety and Licensing Appeals Bo'ard (Appeal Board) issued on March 31, 1981, in Consumers Power Compaf@ (Big Rock Point Plant), ALAB-636, NRC Docket No. 50-155 (Spenf Fuel Pool Moditication) (March 31, 1981) (copy
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attached). The effect of the Appeals Board Decision is to preclude re-view under Section 102(2)(c) of the National F vironmental Policy Act (NEPA), 42 U.S.C. 4332(2)(c), of the environmental effects of a pro-posed spent fuel pool expansion and the additional term of reactor op-eration su.n expansion permits. By its sction, t'
Appeal Board reversed ^
a decisior of the Atomic Safety and Licensing Board (Licensing Board),
g Memorapdum and Order on NEPA Review, September 12, 1980 that an environ-5 mental impact scatement (EIS) adressing both the effects of the spent
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fuel pool expansion and the continued operation of the reactor are re-quired under NEPA because no EIS had ever been prepared on Big Rock Point when it was licensed in 1962 and the effect of the license amand-ment is to expand the operating life of the plant. qatitioner sought review by the Nuclear Hegulatory Camission alni were notified by the Camissim cn June 18, 1981 that the Ccmnission declined to review the texeal Board decisicn.
The Appeal Board proceeding that is the subject of this appeal was initiated as a result of the Consumers Power Company (Licensee) applica-tion to the Nuclear Regulatory Commission for amendment of the Facility Operating License No. DPR-6 for Big Rock Point Nuclear Power Plant. On July 23, 1979, the Nuclear Regul:.ory Commission published in the Federal Register a notice of a proposed issuance of an amendment to Facility Op-erating License No. DPR-6 that had been issued to Consumers Power Compar.y (the licensee) for operation of +he Big Rock Point Plant located in Charlevoix County, Michigan.44 Fed. Reg. 43126. The notice provided that the licensee might file c request for a hearing and that any person whose interest mcy be affected by the proceeding may file a petition for leave to intervene pursuan" to 10 CFR 52.714 by August 22, 1979.
On, August 22, 1979, Christa Maria, with others, filed a timely peti-tion to intervene in the Big Rock Point license amendment proceedings, indicating, inter alia, that she wished to litigate, among other things, the issue of whether a license amendment which would permit expanded operation of a nuclear power plant requires NEPA review of the expanGed operation of the facility.
On January 17, 1980, the Licensing Board issued a MEMORANDUM AND
ORDER FOLLOWING SPECIAL PREHEARING CONTERENCE admitting petitioner as intervenor in Consumers Power Company.
In its Order, the Licensing Board deferred ruling on the NEPA issue and requested the parties to brief the following question by February 15, 1980:
Where the facility has never been subjected to National Environmental Policy Act of 1969 (NEPA) review because it was licensed before NEPA, does a license amendment which would permit the continued operation of the facility either require or permit considering a cost benefit analy.is or the need for power in the license amendment proceeding, notwith-standing that the staff may issue a regative declaration?
On September 12, 1980, the Licensing Board issued Memorandum and Order on NEPA review, holding that where a license amendment permits continued operation of a nucicar power plant, section 102(2)(c) of NEPA requires the preparation of an EIS on the environmental effects of continued op-eration and directing the staff to prepare an EIS covering the environ-mental impacts of an expanded spent fuel poel and the additional term of operation of the facility that such expansion would permit. Pursuant to 10 CFR 2.730(f) the Licensing Board referred its rulings underlying the direction to staff to prepare an EIS, to the Appeals Board for review.
On September 15, 1980, the Appeal Board accepted the Licensing Board's i
referral and established a briefing schedule for the NEPA issue.
Pur-suant to that schedule, Petitioner, amicus curiae in support of the Licensing Board's Memorandum and Order - the Council on Environmental Quality, the staff and Licensee briefed the issue of whether section 102_
(2)(c) of NEPA applies to expanded operation of Big Rock Point Nuclear Power Plant. On March 31, 1981, the Appeal Board reversed the decision l
of the Licensing Board, fir. ding that while the license amendment permits the facility to operate longer than would otherwise be possible and allows the Licensee to utilize a longer term of its license than would be possible without the license amendment, expansion does not require preparation of an environmental impact statement.
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Petitioner asserts that the action by the Appeals Board reversing the l
Licensing Board and holding that section 102(2)(c) of NEPA does not apply l
to the expanded operation of a nuclear power plant was arbitrary and capricious, and an abuse of discretion and in contraver. tion of the National Environmental Policy Act and the Atomic Energy Act, 42 U.S.C. 2011 et seq.
2.
Description of Petitioner Petition, r Christa-Maria et al, residents of Charlevoix County, Mich-igan, live within fifty miles of Big Rock Point Nuclear Power Plant.
Petitioner is admitted as Intervenors in all aspects of the Nuclear Regulatory Commission proceedings, Consumer Power Company, was a party to Licensing Appeals Board Proceeding appealed herein and has raised contentions admitted to the Nuclear Regulatory Commission Proceedings by the ORDER FOLLOWING SPECIAL PREHEARING CONFERENCE.
3.
Description of Recpondentg The United States Nuclear Regulatory Commission is an independent regulatory agency of the United States, charged under the Atomic Energy Act and the National Environmental Policy Act with assuring that nuclear -
power does not harm the public health and safety and does not do unaccept-able damage to the human environment.
4.
Venue This petition is properly before the United States Ccurt of Appeals for the District of Columbia pursuant to 28 U.S.C. 82343.
5.
Grounds Upon Which Relief is Sought Petitioner contends that the March 31, 1981 decision by the Atomic Safety and Licensing Appeals Board was arbitrary and capricious and an l
abuse of discretion and in contravention of the National Environmental Policy Act and the Atomic Energy Act.
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6.
Relief Requested l
Petitioner prays this Court grant the following relief:
1.
To declare that section 102 (2)(c) of the National Environmental Policy Act applies to the continued operation of the Big Rock Point Nu-clear Power Plant made possible by a license amendment to expand the capacity of the facility's spent fuel pool.
2.
To order the Nuclear Regulatory Commission to prepare an environ-mental impact statement assessing the environmental impacts of continued l
operation of the Big Rock Point facility.
3.
At a later date, if necessary, to order the Commission to stay the license annndment proceeding in Consumers Per Ccmpany pending a ruling by this court an this petition.
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!!crbert Semmel Antioch School of Law 2633 16th Street N.W.
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l Antioch$nhool of Law 2633 16th Street N.W.
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20009 (202)265-9500 Counsel for Petitioners Christa-Maria,et al.
Christa4hria l
Jim fiills JoAnne Bier Dated: August 14, 1981 l
Washington, D.C.
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IN Tile UNITED STATES COURT OF APPEALS FOR TIIE DISTRICT OF COIUM3If CIRCUIT
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Petitioner v.
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Docket No.
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UNITED STATES NUCLEAR REGULATORY )
C05NISSION, AND Ti!E UNITED STATES ))
0F AMERICA
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Respondents CERTIFICATE OF SERVICE I hereby certify that copies of the " Petition for Review," have been deposited in the United States mail, postage pre-paid, on this 14th day of August, 1981 to all parties on the attached list.
T Scott Warner Dated: August 14, 1981
,i At mic Safety and Licensing JcespF Ca!!r, Enquire Isha, Lir.cc3n and Beale E:ard Fanel 3
1120 Cer:ecticutt' Ave, N.W.
U.S. Nutlear Regulatory Suite 325 Was hington, D.C.
20555 Washington, D.C. 20036 ~
Cor.:ssi.n Philip P. Steptoe, Esquire Herbert Grossman, Esq., Chairman Isham, Lincoln and Beale
- Atomic Safety and Licensing One First National Plaza Suite 4200 Board Panel Cuicago, Illinois 60603 U.S. Nuclear Regulatory Commission Washington D.C.
20555 Ateric Safety and Licens :..
Appeal Board rane!
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U.S. Nu: lear Reg;1atery Dr. Oscar H. Paris Commission Atomic Safety and Licensing Washington, D.C.
2'555 l
Board Panel U.S. Nuc' ear Regulatory Docketine and Service Section Commission Office of the Secretarv Washington D.C.
20555 U.S.
Nuclear Regulatory Commission Washingt n, D.C.
2C555 l
Mr. Fredrick J. Shon Atumic Safety and Licensing John O'Nc 11, II l
Board Panel Reute 2, Box 44 U.S. Nuclear Regulatorv Mrple City, MI 49664 Commission Washington D.C.
20555 Uchn Ahearne, Chairman Janice E.
Moere, Esq.
U.S.
uclear Regul atorv l
Counsel fer NFC Staff Commission U.S. Nuclea r Regulatory Wanhin9tGn.
D.C.
?c5c-
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Cer.-ission Washington, D.C.
20555 Victor Gilincky, Ccmmissioner U.S.
Nuclear Regulatory Jchn A. Leithauser Commincion Energy Res urces Group Wishington, D.C.
20005 General Delivery Levering, MI 49755 Joscoh Hendrie, Commissioner U S.
Nuclear Regulatory Commisazon l
Washington, D.C.
20555 Peter Bradford, Comminnio[ier U.S.
Nuclear Regu.atory Commission
.Ja s h i ng to n,
D.C.
20555 James A.
Tourtellotte, Esq.
Office of the Exec. Legal Director U.S. Nuclea'r Reaulatory C mmis@
Washington, D.C.
20555