ML20033B184
| ML20033B184 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/06/1981 |
| From: | Tedesco R Office of Nuclear Reactor Regulation |
| To: | Latham S SHOREHAM OPPONENTS COALITION, TWOMEY, LATHAM & SHEA |
| References | |
| NUDOCS 8111300543 | |
| Download: ML20033B184 (3) | |
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NOV 6 1981 Docket No. 50-322 g
%gg.l Stephen D. Latham, Esq.
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x 39 33 West Second Street Riverhead, New York 11901
Dear fir. Latham:
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This is in response to your letter dated September 24, 1981, regarding a l
"UEPA Review of LILCO's Application for an Extension to the Shorehan Construction Permit." This Application was the second such filed by LILCO and was dated November 26, 1980. Your letter specifically inquired into our plans and schedule, if any, for firplementing !! EPA in connection with the CP
. extension application.
As you know, LILCO previously applied for a CP extension on December 18', 1978.
The NRC Staff granted that extension request on fiay 14, 1979. As part of the Staff's approval, at that tire, a !!egative Declaration was prepared by the Staff pursuant to 10 C.F.R. 51.5. This is the "HEPA review in connection with LILCO's prior request * * * *" which is mentioned in the footnote on page 1 of your letter.
l Pending a decision on whether your request for a hearing will be granted (See r
Co~nission Order dated July 22, 1981, in the Shorehan OL proceeding), the Staff has held further action on LILCO's extension request in abeyance. As noted by the Concission in its Order, supra Under Connission regulations, LI. '.0's timely request for an extension will leave the existing [ construction]
permit in force until the application [for extension]
has been finally detemined. 10 C.F.R. 2.109.
In elaboration of your letter you have argued that a draft and final supplenent to the Shorehan FES pust be prepared by the NRC Staff prior to issuance of a CP extension. Your argunents in this regard are set out in your " Statement of Contentions for Construction Pemit Extension Proceeding [etc]" filed with the l
Atonic Safety and Licensino Board pursuant to the above referenced Coanission Order. The NRC Staff's position in response to these argunents is set forth i
at pages 16-17 of the staff's response to your contentions dated October 15, 1991.
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0FFIClAL RECORD COPY usom mi-mm NRC FORM 318 (10-80) NRCM 0240 C_
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Stephen B. Lathan, Esq. If you have any further questions, please contact Eernard it. Bordenick, Staff Counsel assigned to this matter.
Sincerely, Original signed by Robert L. Tedesco Robert L. Tedesco, Assistant Director for Licensing Division of Licensing cc: See next page See previous page for distribution and concurrence
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t DISTRIBUTION:
Docket File LB#2 File DEisenhut/RPurple Docket No. 50-322 er BBordenick-JWilson MService
.ephen B. Lathan, Esq.
Tw ncy, Lathars A Schmitt BCCs:
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Box 398 NSIC NRC PDR 33Uc's\\SecondStreet TERA-Local PDR h
8",s New York 11901 TIC ACRS (16)
Dear Mr. Lat w:
This is in resp Rse to your letter dated Septenber 24, 1981, regarding a "HEPA Review of Ll CO's Application for an Extension to the Shoreham Construction Pernit." This Application w5s'the second such filed by LILCO and was dated Novembe 26, 1980. Your letter specifically inquired into our plans and schedule, if y,' for implenenting EPA in connection with the CP extension application.
As you know, LILCO previous 1 pplied for a CP extension on December 18, 1978.
The NPC Staff granted that firs extension request on fiay 14, 1979. As part of the Staff's approval, at that ine, a Megative Declaration was prepared by the Staff pursuant to 10 C.F.R. 51 \\S. If and when the second CP extension request is granted, the Staff will att in prepare a Megative Declaration. Pendinq a decision on whether your request for hearing will be granted (See Connission Order dated July 22, 1981, in the Shoreb. OL proceeding), the StaTThas held further action on LILCO's extension reques in abeyance. As noted by the Conmission in its Order, suora tinder Connission regulations, LILCO's imely request for an extension will leave the existing construction]
permit in force until the application [f xtension]
has been finally deternined. 10 C.F.R. 2 9.
In any event, it is clear to the Staff that during the pe ency of your request for a hearino and the Staff's action, at the appropriate tit, on LILCO's second CP extension request, there will be no environmental inpact a the Shoreham site, attributable to the extension request, other than that al ady predicted and described in the FES-CP issued in Scotember,1972 and in the S-OL issued in October,1977. Ifor did your letter allege any such inpacts.
Sincerely, nobert L.~ Tek:co, Assistant Director for Licensing a
Divisiqn of Licensing.
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a TwoMEY, LATHAM & SCHMITT '
l ATTDRNEYS AT LAW 33 WEST SECOND STREET RIVERHEAD.
N. Y.
11901 516 727-2180 THOMAS A. TWCMEY. J4 10 MAIN STREET STEPHEN LATHAM EAST HAMPTON, N. Y.
I1937 Z1G SCHMITT' NO.ERT O. PIKE CHRtSTDPhER O. KELLEY a.c.m..= =v..ru.
September 24, 1981 k
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Harold R.
Denton lp g h),
Director of Nuclear Reactor Regulation Q
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U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
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NEPA Review of LILCO's Application
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y For An Extension To The Shoreham Construction Permit
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Dear Mr. Denton:
On November 26, 1980 the Long Island Lighting Company ("LILCO") requested that the Nuclear Regulatory Commission ("NRC") grant an extension to the latest completion date in its permit for the constuction of the Shoreham Nuclear Power Station, Unit 1.
The decision by the NRC on LILCO's application is subject to the requirements of the National Environmental Policy Act, 42 U.S.C.
Section 4321 et. seq.
("NEPA"), which supplements the NRC's other statutory obligations.*
Pursuant to the regulations of the Council on Environmental Quality governing the procedural implementation of NEPA, agencies must implement the NEPA review process as early as possible in the course of decisionmaking.
Hearings on LILCO's application for an extension to the construction permit ("CP") are about to begin, yet The NRC conducted a NEPA review in connection with LILCO's prior request for an extension of the Shoreham CP, dated December 18, 1978.
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no NEPA document-has.been circulated in connection with this action.
SOCJurges you to fulfill your responsibilities under 10 CFR Section 51.50 without
.further delay.*
Scope of the NEPA Review Without an extension to the CP, LILCO will forfeit all rights under the permit to complete construction of the reactor.
SOC believes that an extension of the Shoreham CP would constitute a major federal action necessitating the compliance with NEPA's requirement for the preparation of an environmental impact statement ("EIS")
which fully considers all factors including relevant new developments and information.
See 40 CFR Section 1502.9(c).
The Council on Environmental Quality ("CEQ")
has previously interpreted NEPA to require an EIS for such an NRC decision.
Copies of the opinion of CEQ's General Council and letter to the Attorney General of the State of Illinois, dated August 12, 1980, are attached.
At a minimum, SOC believes that the EIS supplement must address such issues as the safety and environmental impacts of Class 9 accidents; the impacts of releases to the liquid pathway; reevaluation of the suitability of the Shoreham site; and alternatives to the proposed action, among others.
Many months have already been lost since last
(
November, when LILCO applied for the CP extension.
Further delay in implementing NEPA for this action will in turn delay the other proceedings on LILCO's extension application and could af fect as well commencement of proceedings an LILCO's application for an operating license.
SOC will take whatever steps are necessary to insure meaningful and timely compliance with NEPA's procedural requirements.
However, the Coalition wishes to avoid initiating unnecessary action, if possible.
We would, therefore, appreciate a response from you within two weeks indicating what plans and schedule, if any, you have--for implementing NEPA in connection with the CP extension application.
Sincerely,
- ~s Stephen B. Latham SL
- jo
- SOC raised the ~ NEPA compliance issue in connection with LILCO's application for a CP extension in its petition, dated January 23,_1981.
However, the ma*.ter has never been addressed by your office.
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EXECUTIVE OFFICE OF THE PRESIDENT COUNCIL ON ENVIRONMENT AL OV ALITY EN JACKSON PLACE N W WASHINGTON o c 200c6 March 20, 1980 The Honorable John Ahearne Chairman Nuclear Regulatory Commission Washington, D.C.
20555
Dear Chairman Ahearne:
Section 204(3) of the National Environmental Policy Act (NEPA) directs the Council on Environmental Quality "to review and appraise the various programs and activities of the Pederal Government... for the purpose of determining the extent to which such programs and activities are contributing to the achievement of the policy (of NEPA]...." Last year, as part of the Council's overall effort to meet this responsibility, the Council initiated a study of the Nuclear Regulatory Commission's regulations and policy on the environmental analysis of possible nuclear accidents under NEPA.
This letter contains the conclusions of our study. We were assisted in this review by the Environmental Law Institute,.which has prepared for us a report entitled "NRC's Environmental Analysis of Nuclear Accidents: Is It Adequate?", which I am providing to the Coc=ission with this letter. The Council believes the report constitutes an accurate and important assessment of the NRC's regulations and policy on the analysis of nuclear accidents in environmental impact statements.
The results of our review of impact statements prepared by the NRC for nuclear power reactors are very disturbing. The discussion in these statements of potential accidents and their environmental impacts was found to be largely perfunctory, remarkably standardized, and uninformative to the public. Despite the broad diversity of size, design, and location of the nuclear reactors licensed by the Commission over the years, virtually every EIS contains essentially identical, "boilerplate" language written in an unvarying format.
The typical EIS does not consider or analyze the possibility of a major accident even though it is these " Class 9" accidents which have the potential for greatest environmental harm and which have led to the greatest public concern.
Moreover, for those accidents which are typically discussed in an EIS, the potential impacts on human health and the environment are presented in a cursory and inadequate manner with little attention to public understanding.
Each EIS relies on the NRC accident analysis policy, which has remained essentially unchanged and in interim form since 1971, asserting that " correct manufacture, design, operation and quality assurance" will provide "a high degree of protection" against the occurrence of postulated accidents. A limited range of accidents with varying consequences are discussed.
Estimates of materials released from such accidents, or " release fractions," are provided.
However, based on the conclusion that it is highly improbable that serious accidents will occur, the policy prohibits the discussion of certain severe accidents, the Class 9 events.
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area, especially your decision in Of fshore Power Systems to hold a public rulemaking and to reexamine NRC' policy on the inclusion of major accidents in EISs. We are also pleased to note that in the preamble to its proposed-NEPA procedures the Commission has. indicated that "this reconsideration of policy may result in adoptien of different practices with regard to ' worst case' accidents at nuclear power reactors." 45 Fed. Reg. 13739, 13742 (March 3,1980).
. e believe that the new policy should be based on the sensible approach of W
discussing the environmental and other consequences of the full range of accidents that might occur at nuclear reactors, including accidents now classified as Class.9. This should include core melt eventss In addition, EISs should present the best estimates of the likelihood of such events.
In order to comply with the disclosure requirements of N!PA, the NRC should include in the analyses the likely range of environmental and other conse-quences from severe and other accidents.
In describing reactor accidents and their possible effects in impact statements, the NRC should follow closely the relevant provisicns of the Council's NEPA regulations, includinF che following provision on " worst case" analysis:
"If.
the information relevant to adverse impacts is important to the decision and the means to obtain it are not known (e.g., the means for obtaining it are beyond the state of the art), the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the action to proceed in the face of uncertainty.
If the agency proceeds, it shall include a worst case analysis and an indication of the probabili-ty or improbability of its occurrence." 40 C.F.R. S 1502.22(b)(1979).
The enclosed report suggests eight possible accident scenarios, with certain caveats, for consideration by the Commission for use in its EISs. They have been selected because they " span the range of likely consequences" of severe nuclear events. We believe that the use of such analyses could improve the Commission's siting, design, licensing and energency planning decisions.
We also urge the Commission to broaden its range of variables (e.g., radia-tion pathways) in determining accident impacts, and expand its discussions in EISs of the impacts of nuclear accidents on human health, the natural environment and local economies.
Site specific treatment of data should be substituted for "boilerplate" assessment of accident initiating events and potential impacts, and EISs should be comprehensible to non-technical members of the public.
Finally, the Commission should pursue the approach described here vigorously in order to fulfill to the fullest extent possible the requiremants of NEPA and the legitimate public interest in full disclosure of nuclear plant hazards.
The-Commission at a minimum should apply the approach described here to pro-caedings where impact statements have not yet been issued. We also encourage the Commission to consider preparing supplemental accident analyses for plants currently licensed for operation, particularly for those located near high population centers and those with unique' features suggesting higher risk.
c.
v 4
ATTACHMENT 4
This attachment analyzes the adequacy under the existing law of the present AEC/NRC policy on discussing nuclear accident impacts in environmental impact statements.
NEPA's Mandate For Full Disclosure Under Section 102 of NEPA Congress has directed that
. to the fullest extent possible:
l 1)
{
2) all agencies of the Federal Covernment shall -
(C) Include in every recommendation or report on pro-posals for legislation and other major Federal j
actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -
(i) The environmental impac.t of the proposed action As recognized by the United States Court of Appeals for the District of Columbia Circuit, "the sweep of NEPA is extraordinarily broad, compelling consideration of any and all types of environmental impact of federal l
action." Calvert Cliffs' Coordinating Comm. Inc. v. Atomic Enerev Commission 449 F.2d 1109, 1122 (D.C. Cir. 1971), cert. denied 404 U.S.
l 942 (1972).
l Thus, NEPA requires Federal agencies to assess more than simply the l
probable impacts of their proposed actions.
Environmental impact statements required by Section 102(2)(C) must, at a minimum, contain adequate information to alert the public and Congress '~to all known possible environmental consequences of proposed agency action.'
Environ-mental Defense Fund v. Corps of Engir.eers, 325 F. Supp. 749, 759 (E.D.
Ark. 1971) (emphasis in the original).*
Indeed, one of NEPA's prominent l
See also Sierra Club v. Froehlke, 486 F.2d 946, 951 (7th Cir.,
1973); Hanly v. Kleindienst, 471 F.2d 823, 836 (7d Cir,1972).
t cert. denied 412 U.S. 9081(1973) (agency must consider the increased risk of crime that might result from operation of correctional center and the impacts from "the possible existence of a drug-maintentance program."): Appalachian '*ountain Club v.,Brinerar. 394 l
F. Supp. 105, 114 (D. N.H. 1975): NRDC V. Grant. 355 F. Supp. 2RO, l
286 (E.D. No. Car.1973): Brooks v. Volpe, 350 F. Fupp. 269, 276 (W.D. Wash. 1972) aff'd 487 F.2d 1344 (9th Cir., 1973) Conservation Council of No. Carolina v. Froehlke, 340 F. Supp. 222, 225 (M.D.
No. Car.1972); Izaak k' alton League of America v. Schlesinger, 337 F. Supp. 287, 294 at n. 26 (D.D.C. 1971); accord, Monroe County Council, Inc. v. Volpe, 472 F.2d 693, 697 (2d Cir. 1972).
i-
. The Council was created by NEPA and charged with the responsibility to review and appraise programs and activities of the Federal Government and to make appropriate recommendations in light of the policy set forth under the Act.
Andrus v. Sierra Club.
U.S.
, 4 7 U. S. L. k'.
- 4676, 4679 (June 11, 1979). Accordingly, the Supren.e Court has ruled that the Council's interpretations of NEPA are " entitled to substantial deference."
Id.
Thus, under.NEPA, interpretative cases, and the Council's interpretative NEPA regulations, one of the NRC's most important obligations is to present "to the fulle t extent possible" (5 102) the spectrum of nuclear accidents that may result from NRC actions and the details of their potential consequences for the human environment.
The NRC's responsi-bilities under the Act are further discussed below.
The Commission's poliev on Clasa 9 Accidents and the "eed For Revision The longstanding policy of the AEC and the NRC in the NEPA phase of its licensing proceeding has been not to consider ' Class 9 accidents",
meaning those events with severe consequences that have low probability of occurrence. The Commission's existing regulations regarding the content of EISs require staff to discuss only *the probable impact of the proposed action on the environment." 10 C.F.R. 55 51.23(a) and 51.20(a)(1)(1979) (emphasis added).
Based on what staff parceives to be
" low risk", the Commission does not require Class 9 accidents to be discussed in either applicants' Environmental Reports or staff's EISs.
Such severe accidents are required to be discussed, however, in applicants' safety analysis reports.
10 C.F.R. 50.34 (1979).
This policy was first propounded in an Atcmic Energy Commission directive to applicants, dated September 1, 1971 (Appendix C to the enclosed report).
The directive explained how the types of accidents included in applicants' safety analysis reports were to be handled in applicants' environmental reports. Subsequently, the Commission made the policy applicable to staff EISs as well.
36 Fed. Reg. 22851, n. 1, December 1, 1971. The Commission believed that in the " consideration of the environ-
{
mental risks due to postulated accidents, the probabilities of their occurrence and their consequences must both be taken into account.
It it not practicable to consider all possible accidents.
." The u.eictive concluded that "The highly conservative assumptions and calculations legitimately used for safety evaluations are not suitable for environmental risk evaluatica, because the probability of occurrence is so low for the unfavorable combinations of circumstances used. For this reason, Class 8 events are to be evaluated realistically, and will have consequences predicted in this way that are far less severe than those given fer the same events in Safety Analysis Reports, using conservative evaluations.
~
i
. Technical and legal weaknesses in the Policy's foundation, discussed more fully in the ELI report, vould of themselves require a change in the NRC's stand on accident analysis. However, new developments make the need for a policy revision even more coepelling. Significantly, the NRC staff found that:
"the accident at Three Mile Island Unit 2 involved a sequence of successive failures (i.e., small-break Icss-of-coolant accident and failure of the emergency core cooling syster) note severe than those postulated for the design basis of the plant.
Therefore, we conclude that the accident at Three Mile Island was a Class 9 event."
Matter of Public Service Electric and Cas Co. (Salee Nuclear Generating Station, Unit 1), Docket 50-2 72, ' NRC staff response to questien no. 4 of the Ato:ic Safety and Licensing Board" at 3 (e=phasis added).
The President's Co=rission on the accident at Three Mile Island made the further finding that the probability of occurrence cf an accident liio that at Three Pile Island was high enough, based on L' ASH 1400, that since there had been more than 400 reactor years of nuclear power plant operation in the United States, such an accident should have been expected during that period." Report of the President's Commission on the Accident at Three Mile Island 32 (1979) (e=phasis addedi.
Clearly the realities of Three Mile Island warrant a prc=pt reexamination of the Comrission's narrow policy on accident analysis.
In the Commission's Memorandum and Order dated September 14, 1979 (In the Matter of Offshore Power Svstems, Docket No. STN 50-437), it deterrined that the potential consequences of a Class 9 accident at a floating nuclear power plan (TNP) should be considered in the context of the Ce= ission's NEPA review of the application to deploy TNPs. Itile the Co==1ssion did not express any definitive views on the need for the environmental consideration of Class 9 accidents at land-based reactors, it did declare its concern about that question and its intention to reexanine Co==1ssion policy and to complete the rule =aking begun in 1971.
Id. at 9.
In so doing, the Commission held that it was not bound by the policy on accident analysis formulated under the AEC.
Id. at 4, 7.
The Commission ruled that "we are free to decide on the basis of the facts known to us today whether the Licensing Board should be allowed to consider the environmental consequences of a Class 9 accident at the FNps which Offshore proposes to manufacture."
Id. at 7.
The Cocnission recognized that NRC staff had already prepared a report on the environ-cental consequences of a Class 9 accident at an FNP.
The Commission's formulation of the issue is most significant.
It determined that the question before it was whether it wished "to order the Licensing Board to blind itself" to the infermation in the staf f report.
Id. at 7.
The Commission concluded that under NEPA's full 1
.f'
/
}
_7 (3) attain the videst range of beneficial uses of the environment-without degradation, risk to health or safety, or other undesirable and unintended consequences." 42 U.S.C. $ 4331 (b)(3) (emphasis added).
The NRC is under a legal obligation to exercise its statutory powers in furtherance of these and the other provisions of the Act.
Public Service Co. of New Hampshire v. Nuclear Regulatorv Commission, 582 F.2d 77 (1st Cir. 1972), cert. denied 439 U.S. 1046. ? EPA's requirement that federal agencies strive to attain the videst range of beneficial uses of the environment without risk to health or safety or other undesirable or unintended centequences ($ 101(b)(3)) is equally as rigorous a standard as that created under the Atomic Energy Act.
a 5
EXECUTIVE OFFICE OF TH E PR ESIDENT COUNCIL ON ENVIRON M E NT AL.CU ALITY 722 JACKSON PLACE N W WASMtNGToN. o C 20006 August 12, 1980 Honorable Tyrone C. Fahner Attorney General State of Illinois Chicago, Ill.
60601
Dear Attorney General Fahner:
The Council has reviewed your office's letter, dated May 27, 1980, regarding the application of the National Environmental Policy Act
("NEPA") to the Iuture decisions concerning the Bailly Generating Station, Nuclear-1 ("Bailly-1").
Our review of the matter indicates that the initial construction permit for Bailly-1 was issued on May 1, 1974. Since that time virtually no construction has taken place, and the construction permit has expired.
Pursuant to the intent of the Atomic Energy Act, unless the permit is extended by order of the Nuclear Regulatory Commission ("NRC"), the Northern Indiana Public Service Company ("NIPSC0") will forfeit all rights to construct Bailly-l.
Your office has suggested that there have been certain significant new developments since the final EIS on Bailly-l's construction permit was issued in 1973, such as:
1.
The issuance of WASH-1400, The Reactor Safety Study (October, 1975) and its reevaluation by H. Lewis' Risk Assessment Review Group in NUREG/CR-0400 (1978).
2.
The accident at Three Mile Island and the subsequent studies of the accident, including the Report by the President's Commission on The Accident At Three Mile Island, and the report of the Special Inquiry Group to the Nuclear Regulatory Commission.
3.
The September 26, 1979, NRC memorandum from R. W. Houston, Chief of the NRC's Accident Analysis Branch, to Daniel P. Muller, Acting Director of the NRC's Division of Site Safety and Environ-mental Analysis, indicating that the Bailly-1 facility failed to meet proposed siting criteria contained in the report of the NRC Siting Policy Task Force (t:UREG-0625)(1979).
4.
The Council's letter of March 20, 1980, to the NRC and the Counc tl's report entitled, NRC's Environmental Analysis of Nuclear Accidents:
Is it Adequate?
In our letter of March 20, 1980, we urged the Commission to move quickly co revise its policy on accident analysis in environmental impact stnce-ments. The review of NRC EISs by the Environmental Law Institute for I
b
3 considered and discussed;in the light.of" alternatives, not before.
Otherwise, the process becomes a useless ritual, defeating the purpose of NEPA, and rather making a mockery of it."
NRDC v.
Callaway, 524 F.2d 79, 92 (2d Cir., 1975).
In summary, the Council has concluded that the NRC should prepare and circulate a supplement to the EIS on the Bailly-1 construction permit prior to rendering a decision on the pending request for a permit extension. The NRC must also issue a record of its new decision in compliance with 40 CFR 51505.2.
By a copy of this letter, we are providing our conclusions or this issue to the NRC and NIPSCO.
Sincerely, 1
CUS SPETH Cha irman Enclosure cc: Members of the Commission President of NIPSCO i
i
I 4
EXECUTIVE OFF!CE OF THE PRESIDENT COUNCIL ON ENVIRONMENT AL QU ALITY F22 JACMSCN PLACE. N W WASHINGTON o C 2000t, MEMORANDUM FOR THE CHAIRMAN THROUGH: Foster Knight, Acting General Counsel FROM:
John Shea, Counsel
SUBJECT:
The Need To Supplem t NRC's EIS On the Bailly-1 Reactor Construction Permit On May 27, 1980, the Attorney General of the State of Illinois wrote to the Council concerning the application of the National Environmental Policy Act ("NEPA") to a decision by the Nuclear Regulatory Commission
("NRC") on a request for an extension of the construction permit for the Bailly Generating Station, Nuclear-1 ("Bailly-1").
Background
The final environmental impact statement on the construction permit for Bailly-1 was issued in February 1973. The initial construction permit for Bailly-1 was issued on May 1, 1974.
Since that time, virtually no construction has taken place and the construction permit has expired.
Pursuant to the intent of the Atomic Energy Act, unless the permit is extended by order of the NRC, the Northern Indiana Public Service Company
("NIPSC0") will forfeit all rights to construct Bailly-1 (Section 185 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. $2235).
1.
The Attorney General's Letter.
The Attorney General identified a number of developments and items of information which are relevant to environmental concerns and the NRC's decision to allow the construction of Bailly-l. Several of these items were discussed at length in the Council's letter and attachment to the NRC. dated March 20, 1980. These include:
1.
The issuance of WASH-1400, The Reactor Safety Study (October 1975) and its reevaluation by H. Lewis' Risk Assessment Review Group in NUREG/CR-0400 (1978).
i 2.
The accident at Three Mile Island and the subsequent studies of the event, including the Report by the President's Commission on The Accident At Three Mile Island and the report of the Special Inquiry Group to the NRC.
3.
The Council's release of the report by the Environmental Law Institute entitled, NRC's Environmental Analysis of Nuclear Accidents:
Is it Adequate?
~
9 2
One other related development discussed in the Attorney General's letter
- involves a memorandum to Daniel R. Muller, Acting Director of the NRC's Division of Site Safety and Environmental Analysis, from R.
Wayne Houston, Chief of the NRC's Accident Analysis Branch, DSE, con-cerning the development of siting criteria for nuclear reactors. That memorandum indicates that the Bailly-1 facility failed to meet all six of the proposed siting criteria contained in the report of the NRC's Siting Policy Task Force (NUREG-0625) (1979).
2.
CEQ's Letter of March 20, 1580, to the NRC Concerning Accident Analysis.
In our lettar of March 20th, we told the NRC that its long-standing approach r., accident analysis in EISs was inadequate to meet the full disclor.are requirements of Nt.PA.
We also stated that all future EISs woul?. have to include an accident analysis whien fulfilled the requirements indicated in our letter and discussed further in the ELI report. We went on to say that the NRC should perform supplemental accident analyses for operating nuclear reactors giving highest priority to high risk reactors, particularly those near densely populated areas or reactors with unique features having a greater potential for accidents.
3.
The NRC's Recent Statement of Interim Policy Concerning Accident Analysis.
On June 13, 1980, the NRC published an Interim Policy for the consideration of severe reactor accidents in EISs.
45 Fed. Reg. 40101. The statement of policy announced the withdrawal of the old classification rystem for nuclear accidents and set forth the Commission's direction that NRC EISs
" include considerations of the site specific environmental impacts attributable to accident sequences that lead to releases of radiation and/or radioactive materials, including sequences that can result in inadequate cooling of reactor fuel and to melting of the reactor core."
Id.
In carrying out this policy, the NRC staff was instructed to consider relevant site features associated with accident riske, including population density. The staff was also directed to " consider the likelihood that substantive changes in pisnt design features which may compensate further for adverse site features may be more easily incorporated in plants when construction has not yet progressed very far." 45 Fed. Reg. at 40103.
The Legal Issues Under NEPA As with its other actions and decisions, th'e NRC's responsibilities under the Atomic Energy Act regarding its decision on NIPSCO's applica-tion for an extension of the construction permit are supplemented by the NEPA. Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F.2d
- This1nemorandum focusses-only on the developments cited by the Attorney General's Office that are national in scope.
Several other developments referred to in the Illinois letter, which are more of a local nature, may be appropriate for discussion and consideration in a supplement to the Bailly-l EIS, depending upon their significance. These " local" developments include (1) the drawdown of water during plant construction from the Indiana Dunes National Lakeshore and Cowles Bog, (2) increases in plant costs, and (3) decreases in the need for power.
I 1109, 1112 (D.C. Cir., 1971), cert. denied, 404 U.S. 942 (1972); Public Service Co. of New Hampshire v. Nuclear Regulatory Commission, 582 F.2d j
77 (1st Cir.,1978), cert, denied, 439 U.S. 1046. A decision to extend the NIPSCO construction permit and thereby allow the construction of Bailly-1, would be a major federal action necessitating compliance with NEPA's requirement for an EIS review. 40 CFR $51502.3 and 1508.18; Minnesota PIRG v. Butz, 498 F.2d 1314 (8th Cir.,1974). In this case ths NRC could adopt its prior EIS or portions thereof and issue a supplement to that EIS to disclose the significant new informatiot. discussed above.
40 CFR $51506.3 and 1502.9(c).
The Council's new NEPA regulations provide at 40 CFR 51502.9(c) (1979) that
"(c) Agencies:
(1) Shall prepare supplements to either draft or final impact statements if:
(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information, relevant to environmental concerns, bearing on the proposed action or its impacts."
In Essex County Preservation Association v. Campbell, which was decided prior to the adoption of the Council's new regulations, the Second Circuit affirmed a district court's order directing the Federal Highway Administration to prepare a supplemental EIS on significant new circum-stances involving a moratorium on certain highway extension work. The moratorium purportedly called into question the need for other highway construction at issue in the case. The Court of Appeals affirmed the district court, stating:
the (district] court held that a supplemental EIS had to be prepared in order to ef fectuate 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.
While we cannot determine with certainty what the ultimate environmental effects (of.hese new circumstances] will be, it would seem to constitute the type of 'significant new information...concerning (an] action's environmental aspects' that makes a :upplemental EIS necessary. 23 CFR 5771.15.
Such a supplemental statuent, which receives the same type of public comment and exposure as an original EIS, 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 (10th Cir., 1971),
mandated by NEPA." Essex County Preservation Association v. Campbell, 536 F.2d 956, 8 ERC 2156, 2159 (1st Cir., 1976).
The Court went on to hold that:
"In view of the fact that the reconstruction project at issue here is not yet completed and that certain agency decisions may ' remain
e s.
4 open to revision,' (citation omitted] we cannot say it was improper for the district court to require appellees to prepare and circulate a supplemental EIS.
Id.
In the past the Council has advised agencies to prepare supplemental EISs in order to fulfill the NEPA mandate identified by the Court of case, i.e., that agencies must 'oe aware of Appeals in the Essex County the potential consequences of their actions and that agencies such as the NRC should weigh all of their decisions in light of significant new Scenic Hudson Preservation Conference v. FPC, data and developments.
denied, 384 U.S. 941 (1966);
354 F.2d 608, 620 (2d Cir.,1965), cert.
Hudson River Fishermen's Association v. FPC, 498 F.2d 827, 832-33 (2d This should be done only after preparation of a supple-Cir., 1974).
mental EIS. As stated by the Second Circuit in interpreting 40 CFR 51500.11 of the Council's former guidelines:
Although an EIS may be supplemented, the critical agency decision of course, be made after the supplement has been circulated,
- must, considered and discussed in the light of alternatives, not before.
Otherwise the process becomes a useless ritual, defeating the NRDC v.
purpose of NEPA, and rather making a mockery of it.
524 F.2d 79, 92 (2d Cir., 1975).
- Callaway, Conclusion Consideration of the significant new information relating to the enviro 1-indicate, among mental consequences of severe reactor accidents might other things, the need to modify plant design, select an alternative site, implement certain emergency preparedness measures, or reconsider a construction permit altogether.
It is essential, therefore, that this information be discussed in a supplemental EIS and considered prior to the NRC's critical decision on the extension of the Bailly-1 construction permit.
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