ML20037B870
| ML20037B870 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 12/19/1980 |
| From: | Leithauser J AFFILIATION NOT ASSIGNED |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20037B869 | List: |
| References | |
| NUDOCS 8101050022 | |
| Download: ML20037B870 (1) | |
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In the Matter of
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Locket Nc. 50-155
( i.en t Fuel Pool Modification) f~ir Rock Point nucl+.:ar Plant)
C OR P.EC TI CNS, The follovcir.g corrections apply to the brief of John Leithaua r ir. support of the Licensing board finding that 42 U.S.C. 4332 (C) is applicatle tc the ' -wes t o f Cc:.c =.er I-cv u C ct.pany to expand tne
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. n le r e-w r -; r allov. t te pern t e.it maxi:aum capacity. "
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cara m pn 3 end.:.;en tenc e 1 shou'd read:
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.d tne cunecnc nereby expresseu cy Ine Licencing Board, is the extensiv; f.; u - ru i involvement during the plant's first 4-1/2 years of vpera, ion, curing which time it received i ts full te. or.eratine licens+.
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BRIEF C.? JCEN LEITV.AUSER IN St.? PORT OF LICENSING BOARD FINDING TuAT SEC. 102 ( 2)(C) (E2 U.S.C.
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"ief en the Need for Power Issue (docketed 3-17-c0.)
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sanctien, under such cafeguards as these maxims prescribe for the c ace of cases to which the one in cuestion celengs.g It seems clear that the questien before the Appeals Board today is essentially cne cf statutory interpretation Is the Nati.onal 7,._....o..._,_ r.., :
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In spite of the crabced and diche:c=cus interpretation given
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rec: viev of the National Environmental Felicy Act is far more in-clusive.
I am sure that the Appeale Board need not be reminded tha "a statute must be construed as a whole and a doubtful provi-sion (which is not here the case) must be read in connecti-on with
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provisien neaning censistent with the general purpose to be acccc-li s h e d. "'/
The purpose of the Mational E.vironnental Policy let is found in..2 '..Z.C. L321.
In part it... declare (c) a natienal policy 8
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. which will enccurage productive and enJoyacle harmony between man and his environment; to prc=ote efforts which will trevent or 3
aliminate damage to the environment and biosphere and stimulate the health and welfare of man..."(emphasis mine)
A brief review of Sec. 102 (2)(C) would perhaps here be en-34-w.e.4 s.
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Sec. 102 states: The Congress authorizes and directs that, to the fulles extent poscible: (2) all agencies of the federal government shall - (C) include in everv recor: en trorosals for...
major federal actions significantly affectinc the cualitv of the human environnent, a detailed statement by the responsihle official on
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v (ii) any adverse environmental effects which cannot be avcided chculd the prcpecal be implemented:
(iii) alter.arivas to the
.,mes ed acti er (emphasis mine);
(iv) the relationsnip between local short-term uses of mar.'s envircnment and maintenance and enhancement of long-
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(v) any irreversio2 e and irretrievable ccanitments of re-scurces which would be invclved in the preposed acticn snou2d it be imp.ecented. ( _ cmp.nasts m.,ne)
The sweep of 3.E.F.A.,
declared the court in Calvert Cliffs Cecrdinating Ccm.ittee, Inc. v ".S. Atcmic Ensrgy Ccamission
( 1971) 409 F2d 1109, 17 A. L.R.
Fed 1), "is extraordinarily broad, compelling concideration cf any and all types of environmental impact of federal action, with N.E.F.A. mandating a case-by-cr.as balancing judgement on the part of federal agencies so that in each individual case the particular economic and technical benefits of planned action must be assessed and then weighed against the environmental ecsts, and the alternatives must te considered which would affect the balance of value to insure that, the optimally beneficial action is finally taken."2/
Furthermore, "the environmental values must be censidered at every distinctive and ccmprehensive stage cf an agency'c process,"b!
and in any field of activity which "may affect the environment..."E!
The court in Conmittee to stop route 7 v Volpe ((1972 D.C.
Cc...) ; - o'..
e"py. 7'1) pointed out that "the whole point of
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- .. E. F. A. is that certain careful considerations... arc to be weighed before federal decision making occured..." Federal decision making su bj ect to N. EF. A. occurs "When an agency (was) is in the process of exercising its discretion between two or more alternatives open to it under the controlling law" (Getty Oil Co. (Eastern Operations) v Ruckelshaus (1972 D.C. De. ) 362 F. Supp.1006 h09 U.S. 1125).
Restated unequivocally in Calvert Cliffs, "The procedural duties, the duties to give full consideration to envircnnental' protection, are subject to a strict standard of compliance... By now the applicable principle should be absolutely clear.
NEPA requires that an agency must - to the fullest extent possible un' der its other statutory obligations - consider alternatives to its actions which would reduce envircnmental damage... a fall exercise of substantive discretion is recuired at every important, appropriate and non-dupli-cative stage of an agency's prcceedings."
It is by ne means necessary for the licensing 3 card to rely on N.E.F.A. 's applicability to any anc all exercises of discretion which may affect the environment.
For the courts have been anything but ambiguous in defining a " major federal action significantly affecting the quality of the environsent."
An initial reference to the CouncELon Environmental Quality
)
guicelines, is extremely clarifying.
In 5-iii-b, the C.E.Q. states:
"In considering what densitutes major acti c; s.gnificantly affecthg i
the environment, agencies should bear in mina that the effect of many
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federal decisions about a project or complex of projects can be indi-vidually limited but cumulatively considerable."
The C.E.Q.
has stated further in 3ec. II of its guidelincs that Sec. 102 (2)(C),
"s hould be applied to further major federal actions having a significant effect on the environment even though they arise from projects or programs initiated prior to enactment of the Act on January 1, 1970.
Wher2 it is not practicable to reassess the basic course of actions, it is still important that further incremental major actions be shaped so ar to minimize adverse environmental consequences not fully evaluated at the outset of the project or program."
In Environmental Defense Fund v Tennessee Valley Authority l
((1972 D.C. Tenn.) 339 F. Supp. 806, 468 F2d 1164) the court stated 1
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. that it was clear that the environmental impact statements are required for ongoing federal projects initiated prior to such date (Jan.1, 1970)... whether or not they represented simply the last phase of an integrated operation most of which was completed before that date."
Thus it is clear "that the fact that a project is ongoing at the time of N.E.F.A. 's effective date will have little effect on the obligation to comply with the mandates of 102 (2)(C)."5/ In Lee v Resor -((1972 D.C. Fla.) 348 F. Supp. 389), the court defined an encoinz uroject beuun before enactment of N.E.P.A. "as one which has a definite termination date which is known when the project commences".
The court juxtaposed this with a continuinc project begun before the enactment of N.E.F.A. which is, stated the court, a project "which has no definite termination date but is intend to continue indefinitely."
"It hat been stated that an ongoing project is subject to the requirements cf N.E.F.A. until the project has reached such a state of completion at which the cost of 3.bandoning or altering the pro-posed project would clearly outweigh the benefits enich could flow from compliance with N.E.P.A.*2!
Or stated another v'ay, it is only j
when the benefits derived from an ongoing project outweigh the costs of its centinued operation that it should meet with approval at those junctures at which the agency exercises its discretion.
l Thus the c ourt in Pizitz v Volpe ((1972 D.C. Ala.) 467 F2d 208) l stated that "there must be substantial compliance with the previs, ions of N.E.F.A. before beginning new construction on an old project."
Particularly relevant to the extant case is the holding in San Fran-cisco Tomorrow v Rcaney ((1972 D.C. Cal.) 3h2 F. Supp. 77) in which l
l "the court declared that if any consistent rule could be distilled t
l from those cas es involving the applicability of N.E.P. A.
to so-called ongoing projects, it is that 'if subsequent to January 1, 1970 there is any significant departure from the original design having eco-logical significance gr if, subsequent thereto, a design feature of ecological significance left open in the original design is resolved, or one previously provided for is sigr.ificantly changed an innac:
7,tenen: must be prepared.'" In Thompson v Fugate ((1972 D.C. va.)
367 F. Supp. 120) the court noted "that recent decisions have held that the Act (N.E.F.A.) applies to unexecuted portions of a plan er project."
The Appeals Board =cy, at this point, well wonder when N.E.F.A.
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is not applicable.
"Although N.E.P.A. is applicable to further in-cremental major federal actions occuring subsequent to its effective date, even though the project is initiated prior to that date, once the project is complete there can be no further major action because at time of completion croject was carable of overating at maximum caracity and agencies intended te operate it at full capacity."*/
R Sig Rock Point in the words of the staff (October 20, 1980, p.
- 22) "is permitted by its license to generate power
... for a period of approximately forty years from the date of its issuance."
In-the case before the board today, the applicant has clearly admited that it "must provide additional storage space 'for the Big Rock Point spent fuel to allow continued operation," (Sec. 1-0, p.
1-2: Censumere Power Co., Big Rock Point Plant Spent Fuel Rack Addition: Invironmental Impact Evaluation h-79).
Thus a full ten years befcre the full-term of its cperating license, major federal action is rsquired to allow it to operate at maximum capacity.
The Licensing Ecard is here in error both in its confusion of a trc5=ct v:ith " retorts en trocesals for major federal action" (Sec. 102 (2)(C),
(The detailed statement is to accompany any recort on crocosals for major federal action e.g. licensing be it submitted by a private party cr under the auspices of a federal project.) (Memo-randum and Crder en N.E.P.A. Revicw, September 12, 1980, p. 7) and l
alco in failing to classify Big Rock Point as an ongoing project, for i
the plant clearly falls within the definition expounded in Lee v
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Resor ( 3h8 F. Supp. 3S9), particularly in light of the extensive federal involvement during the plan 's first h-1/2 years of operation, durinc which time it received its full term oueratint license. (Con-struction of Big Rock was begun in the late 1950's under an agreement whereby Consumers Power Co. was to construct, supply the site and 1
cperate the plant and the A.E.C. would supply the technical expertise.
Under the agreement the federal government waived fuel use charges of over $1,c50,000.00 - and spent half-million dollars on research and development.
Moreover, General Electric built the reactor frca a 1
3 7 million dollar government award and then donated said investment te O cncuners Power Co. as a "gif t". )
The " Purposes of U.E.P.A. are frustrated when censiderations of alternatives and collateral effect are unreasonably ccnstrictedyE/
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c-L.2.F.A." mandates that any and all. types ef petential environmental l
impacts be. Ocnsidared by (the) ?.gency involved, ' including bothidirect effects of federal actions."*0/ If the requirements of and indirect i
the Act can feasibly be applied (to an ongoing project) then they should-in fact be applied, even if the project in question was begun prior to l
1 the enactment of N.E.F.A.-
Such application would not be retroactive, but prospective, "since it would seek to alter, within proper limits, been completed, and not to aspects of proposal which had not.ye.:
undo anything which had already proceeded to final construction."11/
To ascertain (the) significance of major federal action, (a) project must be assessed with view to overall cumulative impact of action proposed, of related federal action already taken La area and
'l further actiosn centemplated" (Sierra Club v Bergland ((N. D. Miss.)
i
'51 F. Supp. 120).
In Natural Resources Defense Ccuncil, Inc. v U.S. N.R.C.
(175 L
App. J.C. 336, 5h? F2d 633) the court stated that it is " clear that...
licensing of.: acte disposal facilities connected with nuclear power reactor is in itssif major federal action requiring a N.E.F.A.
s tate-i ment."
A collateral matter demanding compliance with N.E.F. A. has already been conceded by the staff en p. 22 of-its brief filed Cctober 20, 1980.
"The Spent Fuel Fool expansion would affect effluent releases."
It has been determined in Izaak ' dalton League v Schlesinger
((1971 D.C. Dist.II. ) 337 F. Supp. 287), "That the heated water that would be discharged from a nuclear-pcwer-generating facility. may sig-l nificantly affect the quality cf the human envircnment within the 102 ( 2) ( C ) o f N. E. F. A. "I2!
meaninr of Sec.
The National Envircnmental Policy Act requires that the (detailed) statement be subject to a rigorous review process. (Envircn. Diense c
Fund Inc. v Corp. of Engineers of U.S. Army (1972 D.C. Miss.) 348 I
F. Supp. 916)."
Perfunctory and conclusory language, "such as the expected negative declaration by the staff (note here for instance the Licensing Ecard's comment on p. 3 of its Memorandum and Crder en i
N.E.F.A. Review that the staff's negative declaration would be 'in the usual form.') simply did not suffice."13!
i It seems abundantly clear that in regards to the National En-vircnnental Policy Act that Eig Rock is in the same position as an i
I unlicensed faility, in so far as it has never had any of its impacts, of alternatives let alone its cumulative effects evaluated in light Y
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Clearly "due process of law" in the instant case requires complete ccmpliance with Sec. 102 (2)(C) of N.E.P.A.
Intervenor leithauser thus requests that the Appeals Board support fully the determination by the Lie ensing Board and remand the appli-cation to the Licensing Board for resolution.
I further request that if the Appeals Board overturns the Licensing Board on the Applicability of Sec. 102 (2)(C) of N.E.P.A. that intervenors be allowed to file separate briefs on the applicability of Sec. 102 (2)(C) not to be due before January 31, 1981.
These proceedings are quite taxing to those lacking the immense resources of the applicant and simple justice and fair play should compel the appeals Board to take such matters into account for scheduling.
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John A. Leithauser Decenber 4, 1960 levering, F.ichigrn i
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Gates 1/
Occley on Const. Limitations (7th Ed.) p. 506. Kennedy v State 3 card of Registration in Medicine 10$ N.t.'.
- 730, 2/
73 An. Jr. 2nd Statutes Sec.19h et. req. 275 J/
American Law Review Fed. 1 Annotation.p. 72.
4/
3reene County Planning Board v Federal Power Connission 1972
((1972, Ca. 2) 455 F2d h12) 1/
U.S. v 2h7 37 Acres of Land (1971 D.C. Chio) 3 E.R.C, 1098.
6/
17 A.L.R. Fed. 33, Sec.16, p.183 7f 17 A. L. R. Fed. 33, Seco Ja, p. 66.
1/
Sierra Club v Morton (D.C. Cal.) 400 F. Supp. 610.
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C-reene County Planning 3 card v Fed. Fev.er Cennission (CA2) ns
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can ec te spy 10/
EcDcwell v Schlesincer (D.C. 7.c.) 4GL F. Supp. 221.
11/ Jcnes v lynn (CA1 Mass) 477 F2d 585 12/
17 A.L.E. Fed. 33 Sec lb-b, p. 174, 13/ Hanly v :7.itchell (1972, CA2 NY) 460 Fed. 6h0.
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