ML20038A423
| ML20038A423 | |
| Person / Time | |
|---|---|
| Issue date: | 10/03/1980 |
| From: | Fitzgerald NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436, TASK-CA, TASK-SE SECY-A-80-149, NUDOCS 8110300044 | |
| Download: ML20038A423 (49) | |
Text
UNITED 3TATES NUCLEAR REGULATORY COMMISSION W ASHIN GTON,0. C. 20555 i
October 3, 1980__
SECY-A-80-149 COMMISSIONER ACTION The Commissioners For:
James A. Fitzgerald From:
Assistant General Counsel REVIEW OF ALAB-601 (IN THE MATTER OF
Subject:
COMMOMWEALTH EDISON COMPANY, ET AL._)
Carroll County Site Facility:
To inform the Commission of an Appeal
Purpose:
Board decision, review of which has y6 been sought,[~and which, in our opinion, v
7 October 20, 1980, as extended.
Review Time Expires:
Joint petitioners James Runyon, Edward Gogol Discussion:
and Citizens Against Nuclear Power have filed a petition for review (CANP) of ALAB-601 asserting that the decision is erroneous with respect to certain important questions of law and policy.
The Appeal Board decision had affirmed the Licensing Board in denying their joint petition for leave to intervene in the early site review proceeding for the Carroll County Station.
The Appeal Board agreed with the Licensing Board's conclusion that none of the fifteen contentions put forth by the petitioners is now litigable, and declined to reach the question of whether Mr. Gogol lacked standing to intervene as was found by the Licensing Board.
URC staff has b
filed a brief in opposition to the
~
pygg petition for review of ALAB-601.
Background _
1979, applicants filed for On August 15, permits to construct Units 1 and 2 of
Contact:
Martha A.
Torgow, GC liima'.!0n in tMs rxc:j va e.y 41465 in accordance with theYredom t! !drmation f
Act. cremptions FOI4 f2 _2'3)'
y 2
In re-the Carroll County Station.
sponse to the applicants' request for an early site review, hearing and partial J
initial decision on site suitability issues, the Commission issued a notice pur-of hearing which indicated that, suant to 10 CPR 2.606 and 2.761a, the Licensing Board was to "make findings on issues of site suitability for which early consideration is sought and [to)
The notice render a partial decision."
further set out the issues to be con-sidered in the early site review includ-ing those NEPA requirements applicable to a determination of site suitability.
Petitioners James Runyon and Edward Gogol subsequently filed a petition for leave to intervene on behalf of themselves and An amended petition as members of CANP.
later specified 15 contentions they wished to litigate in the proceeding.
a special prehearing conference onheld to consider At September 19, 1979, various intervention petitions, the applicants and NRC staf f urged that
!!r. Gogol lacked standing to intervene based on the 133-mile distance of his The residence from the proposed site.
time took the Licensing Board at that but standing question under advisement, 1979, the Board in an on October 10, unpublished order stated, without elab-oration, that Mr. Gogol lacked standing Mr. Runyon and CANP were to intervene.
found to have standing.
the prehearing conference, the Licens-Ating Board also ruled orally upon the acceptability for litigation in an early site review hearing of the petitioners' Fourteen were fifteen contentions.
the fif teenth, dealing with rejected; In its evacuation plans, was reserved.
October 10, 1979 unpublished order, the Board mentioned only the fif teenth of the petitioners' contentions, placing it in the category of contentions as toThe which judgment was being reserved.
3 order concluded by allowing that the participants could submit briefs in support of any contentions previously The filed and subsequently rejected.
petitioners then filed a brief arguing that consideration of their contentions is mandated by NEPA, a subject the Board's oral rulings had 'not addressed.
1980, the Licensing Board, in On May 30, a second unpublished order, denied the petition without addressing the NEPA It rejected all fifteen argument.
contentions for consideration in the early site suitability hearing, but if noted that many of the contentions, later offered, would be acceptable at hearings in this matter.
Appeal Board Decision The joint petitioners appealed both the standing and the contentions rulings, asserting that ten of their fif teen contentions raise issues that must be explored in the early site review pro-The petitioners claimed that ceeding.
NEPA requires the ten contentions be considered because an early site review is a " major Federal action significantly af f ecting the quality of the human environment."
After The Appeal Board did not agree.
criticizing the Licensing Board for its unilluminating orders and unexplained rulings, the Appeal Board proceeded to affirm the denial of the joint petition for leave to intervene.
The' Appeal Board af firmed the lower ruling -by finding that none of the contentions asserted were litigable in the early site review proceeding.
Therefore, the Appeal Board did not reach the questions of Gogol's standing.
The Appeal Board found the ten conten-tions at which the appeal was directed not to be litigable in the present proceeding because they were not within the scope of the issues identified for
4 4
consideration in the Commission's The Licensing Board notice of hearing.
must respect the terms of the published notice of hearing which was explicit in identifying the issues to be considered in this early site review proceeding, each issue being concerned with one or another aspect of the suitability of 10 CFR the Carroll County site.
2.604(a).
Under the regulations, any early review, hearing, and partial initial decision shall be confined to issues as to which applicant has-those such action and has supplied the sought information required to be furnished in its preliminary safety analysis report (PSAR) and environmental report (ER).
(a-1)(1).
The Appeal Board 10 CFR 2.101 found the ten NEPA-related contentions forth by Petitioners to be outside put of the scope of the early site issues noticed to be heard.
The Appeal Board further held that a complete NEPA review is not mandated for an early site suitability determination.
assert that an early site Petitioners' suitability determination is a " major federal action significantly affecting the quality of the human environment,"
and therefore a full NEPA environmental review is required in the course of a site proceeding under 42 USC 4332(2)(c)
(5102(2)(c) of NEPA).
The Appeal Board stated that an early site review is not by itself a " major federal actions" that is only a part of the larger licens-it The early site ing review process.
review cannot "significantly [ affect]
the quality of the human environment" within the meaning of Section 102(2)(c)
(42 USC 4332(2)(c)), because of NEPA such review does not and cannot author-ize any work on the site which might Such produce environmental ef fects.
work can only be authorized by a con-struction permit or limited work authorization af ter a complete environ-10 CFR 2.606(a).
mental impact review.
F 1
5 Ilowever, as the Appeal Board noted, l
those NEPA _ issues which pertain t in the early site review, as. recognized r
in the notice of hearing in ' this _ case..
The Appeal Board found that NEPA-i of a bifurcated: environmental ' review l
process-as embodied in our regulations..
Finally, the Appeal Board found that the petitioners presented no judicialautho that NEPA forbids an early site suit-The Board noted ability evaluation.that the CEQ had endorsed the site review procedure.
l The joint petitioners filed a petitionfo asserting that am early site review is a-major federal action " thusly, triggering the need for consideration of the re-They jected contentions at issue."further con review is not required in :this early"there m i
proceeding, the need for the proposed f acility att action such as an early site review."
OGC Analysis _
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Reconnendation:
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Jph.es A.
Fitzgerald
- -Tissistant General Counsel Attachments:
1.
ALAB-601 2.
Petition for 11RC Review 3.
Imc Staf f Opposition Brief l
8 Comissioners' coments should be provided directly to the Office of the Secretary by c.o.b. Monday, October 20, 1980.
Comission Staff Office coments, if any, should be submitted to the Commissioners If with an infomation copy to the Office of the Secretary.
NLT October 10, 1980, the paper is of such a nature that it requires additional time for analytical review and comment, the Comissioners and the Secretariat should be apprised of when coments ray be expected.
DISTRIBUTION Comissioners Comission Staff Of fices Secretariat t
' f 0).ab 4
' UNITED STATES OF~ AMERICA NUCLEAR REGULATORY ' COMMISSION co l 0)
Y DOCKETED ATOMIC SAFETY AND LICENSING APPEAL BOARD USNRC 9}
Jg g g g g,-
Alan S. Rosenthal, Chairman f
g, Dr. John H. Buck ggg I'/
gesuh d
Thomas S. Moore h,,RVEQ JUL 2 91980 s
Cv v
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i In the Matter of
)
et al.
)
Docket Nos. S50-599 COMMONFEALTH EDISON COMPANY, 550-600
)
)
(Carroll County Site)
)
for the Mr. Jan L. Kodner., Chicago, Illinois, appellants, citizens Against Nuclear Power, Inc., James Runyon and Edward.Gogol.
Messrs. Michael I. Miller and Alan P. Bielawski, f or the applicants, Common-
' Chicago, Illinois, wealth Edison Company, et al.
Messrs. Steven C. Goldberg and Bradley W. Jones
- for the Nuclear Regulatory Corrmssion statt.
DECISION July 29, 1980 (ALAB-601)
I on April 5,1979, the Commonwealth Edison Company, the 1
i Interstate Power Company and the Iowa-Illinois Gas _ and Electr c l
l applied for permits to construct Units 1 Company (applicants) f ll and 2 of the Carroll County Station on' a site located in Carro
- County, Illinois, approximately five miles southeast of Savanna The application and three miles east of the Mississippi River.
i was accompanied by a request for an early site review, hear ng and partial initial decision on site suitability issues.
the Commission issued a notice Acting upon this request, d
of hearing which established a licensing board and provide d.could seek that any person whose interest might be af fecte leave to intervene in conformity with the terms of 10 CFR 2.714(a).
44 Fed. Rea. 26229, 26230 (May 4, 1979).
The no-the pursuant to 10 CFR 2.606 and 2.761a, tice indicated that, for Board was to "make findings on issues of site suitability render a partial which early consideration is sought and Ito) it stated:
decision".
Id. at 26229.
In this connection, The application for construction permits withfor an issues of site suitability for which a request the following:
as the early consideration is soughtf rom both an environmental.and the Carroll County site is suita-whe the r,
standpoint, geology, hydrology, ble with respect to: meteorology, terrestrial and aquatic ecology, water use, regional demography, community characteristics, economy, historical and na-i tional landmarks, land use, noise considera-In the event the B tions, and aesthetics.
1 1
the rakes favorable findings on these issues, partial decision shall remain in effect either for a period of five years or until the appli-cant for the construction permit has made ly submittal of the remaining information
.equired to support the applicatioh and the proceeding for a permit to construct a f acility on the site identified in the partial decision has been concluded, unless the Commission, Atomic Safety and Licensing Appeal Board, or Atomic Safety and Licensing Board, upon its own initiative or upon motion by a party to the pro-finds that there exists significant
- ceeding, substantially af fects the new information that earlier conclusions and reopens the hearing record on site suitability issues.
to the Coradssion's responsibil-With respect and regardless of whether the ities under NEPA, the proceeding is contested or uncontested,in accordance with 10 Board will, determine whether the requirements of Sec-(1)
(C), and (E) of NEPA and 10 CFR tion 102 (2) 04),51 have been complied with in this proceed-independently consider the final bal-Part ing; (2) ance among conflicting factors contained in the and (3) determine, record of the proceeding; after weighing the environmental, economic, technical and other benefits against environ-mental and other costs, the suitability of the j
site with respect to the f actors reviewed.
i Ibid.
intervention petitions filed was that submitted Among the jointly by James Runyon, Edward Gogol and Citizens Against Nuclear Power (CANP), hereinafter " petitioners".
According to the peti-Mr. Runyon resides, owns property and is employed in tion, (1) some 40 miles south of the proposed site; Rock Island, Illinois, i
_4-
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]
Mr. Gogol lives and owns property in Chicago, approximately (2) both of these individuals 133 miles east of the site; and (3) an organization said to be concerned with pro-belong to CANP, i
tecting its menbers and the general public "from the env ron-i mental, economical and physical safety hazards of nuclear 1/
en e r gy,,. ---
l the petitioners filed an amended petition, Thereafter, in specifying the 15 contentions which they wished to litigate One or more of the contentions dealt with each the proceeding.
)
the need for the power to be gen-of the following subjects:
erated by the proposed f acility; alternative energy sources; f
feasibility of decom-financial qualifications; the applicants' missioning the f acility; economic costs of operating and decom-the overall cost / benefit balance for missioning the facility; availability to the applicants of the facility; waste disposal; uranium fuel; the applicants ' ability to build and operate nu-undue risk to the public health and safety; clear plants without and the ability to provide for adequacy of insurance coverage; emergency evacuation in the event of a serious accident.
Although the petition was filed a week af ter the deadlineit was a 1/
specified in the notice of hearing,In any event, it was an explanation of the tardiness.
not denied below on untimeliness grounds.
l 1
l l
. l*
At a special prehearing conference on September 19, 1979, the Licensing Board considered the various intervention peti-With regard to these petitioners, both the applicants tions.
and the NRC staf f urged (1) that Mr. Gogol lacked standing to intervene in view of the geographical distance between his Chicago residence and the proposed facility site; and (2) none of the 15 tendered contentions was appropriate for litigation in a early site review hearing (as distinguished from the later hearings which must precede a grant of the construction permit application). 2/
The Board took the standing question under advisement. 1/
It did, however, rule orally upon the contentions.
Fourteen acceptability of the joint petitioners' of them were rejected; judgment on the fif teenth (that dealing was reserved. II
)
with emergency evacuation)
On October 10, the Board issued an unpublished order.
Although finding (at p. 2) that CANP and Mr. Runyon had the recuisite standing to intervene, it stated (without elabora-
"Ed Gogol is not made a party hereto for lack of tion) th at the Insof ar as the contentions were concerned, standing".
I l
__2/
Tr. 6-9, 10-12.
_3/
Tr. 13, 16.
_4 /.Tr. 50-55.
j l
Board made no mention whatsoever of the fourteen which it had Rather, the orally rejected at the prehearing conference.
of order was confined to the identification (at pp. 3-13)
(1) those contentions (contained in other petitions) which those contentions as had been " tentatively accepted", and (2)
In the latter category to which judgment was being reserved.
fif teenth contention, as to which the Board was petitioners' that a determina-announced (consonant with its oral ruling) tion of its acceptability would be held in abeyance to await "the publishing of the Three Mile Island NRC Staff report or f urther Commission action" (id, at p. 12).
The order concluded with the notation that the partici-pants could " submit briefs in support of any contentions which were previously filed and which have now been rejected by the Board" (p[. at p. 13).
Subsequently, the petitioners filed a brief in which they argued at some length that consideration of their contentions is mandated by the National Environmental Policy Act -- a subject the Board's oral rulings had not ad-dressed.
the Licensing Board entered a second On May 30, 1980, In that order, unpublished order, denying the petition.
the Board made no reference whatever to the petitioners' NEPA
_7-the Board simply stated (at p. 11):
"Conten-claim.
- Rather, 10; 11; 12; 13; 14; and 15 are tions 1; 2; 3i 4; 5; 6; 7; 8; 9;
- Many, rejected as issues in the early site suitability hearing.
if not all, of these contentions will, if offered, be acceptable at later hearings in this matter".
the joint petitioners have taken Invoking 10 CFR 2.714a, They complain of both the rejection of their con-this appeal.
k d standing tentions b! and the determination that Mr. Gogol lac e the applicants and the staf f urge In response, to intervene.
i affirmance.
II the two orders below are not very illu-As has been seen, d by the minating insof ar as they relate to the questions raise i
To begin with, although the October 1979 appeal before us.
h t Mr.
order did announce the Licensing Board's conclusion t a it neither set forth spe-Gogol lacked standing to intervene, d to the cifically the basis for that conclusion nor referre
\\
More specifically, the appeal focuses on ten of those relate to contentions, which it is said (Br. p. 4)" issues whic 5/
~~
i The Carroll County proceedings pursuant to [ NEPAL".
remaining five contentions not embraced by the appeal were those dealing with such matters as economic bur-financial qualifications; uranium den on ratepayers; fuel availability; inadequacy of insurance coverage; and emergency evacuation.
(i.e.,
that f act which the Board presumably thought dispositive that petitioner resided at a considerable distance from the pro-posed facility site).
Nor does it appear that the Board passed upon Mr. Gogol's alternative argument that he should be allowed 6/
to participate in the proceeding as a matter of discretion.-
See Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614-17 (1976), see also, Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 114 3,114 5 (1977).
Much the same is true of the Board's treatment in both orders of the question of the present litigability of the con-tentions advanced in the petition.
The October 1979 order did not take note of the summary oral rejection of fourteen of those contentions during the course of the prehearing confer-let alone cite the pages of the conference transcript at
- ence, f
It was thus left to us to can-which that rejection appears.
l vass the entire transcript in search of the Board's rulings.
T With regard to the fif teenth contention (as to which' the Octo-ber order reserved judgment), the May 1980 order did not explain Further, the latter. order did why it was then being rejected.
the petitioners' NEPA argument which had been not confront
_6 /
Tr. 10.
(submitted with the Board's authoriza-advanced in their brief tion in the interval between October and' May).
We call attention to these matters for the purpose of enlisting the cooperation of the Board below in insuring explicate that its future orders in this proceeding either (1) in the foundation for each ruling contained therein; or (2) i d
the event that the ruling was earlier announced and expla ne orally, contain an express reference to where the explanation In this connection, we assume the Board's aware-can be found.
its ness of its obligation to make known the underpinnings of determinations on all significant matters of law and f act.
(Diablo Canyon Nuclear Power Pacific Gas and Electric Co.
Plant, Units 1 and 2), ALAB-504, 8 NRC 406, 410-11 (1978) and We might remand the matter for the Licens-cases there cited.
But no fully the basis of its decision.
li ing Board to exp a n For it is possible to decide such remand is necessary here.
the benefit of the reasoning the appeal at hand even without which led the Board to its undeveloped conclusions.
The appropriate starting point in our examination of A.
attack upon the the merits of the appeal is the petitioners' ble total dismissal of their petition for want of a now litiga In this regard, petitioners maintain that ten of contention.
r
~6 m
5
1/ raise issues which the fifteen contentions put forth by them-must be explored in this early site review proceeding -- rather i
Board than deferred for scrutiny at such time as the Licens ng may be called upon to address the issuance of a construction permit or limited work authorization.
in determining whether it is 1.
It is settled that, empowered to entertain a particular issue, a licensing board respect the terms of the notice of hearing published by must Public Service the Cor dssion for the proceeding in question.
(Marble Hill Nuclear Generating Station, Units 1 Co. of Indiana 3 NRC 167, 170-71 (1976); see also, Carolina and 2), ALAB-316, (Shearon Harris Nuclear Power Plant, Units Power and Light Co.
1, 2, 3 and 4), ALAB-577, 11 NRC 19, 25-26, reversed in part on l
11 NRC 514 (1980).
Here, the notice other grounds, CLI-80-12, in identifying the issues which of hearing was most explicit i
See are to be considered in this early site review proceed ng.
Each of them is concerned with one aspect or pp.
2-3, supra.
another of the suitability of the Carroll ' County site for the As is equally obvious, placement of a nuclear power f acility.
i hin none of the ten contentions currently before us comes w t Indeed, petitioners themselves implicitly so con-their scope.
H cede.
_7 /
See in.
5, supra.
i l
. ?
In thus delineating with some precision the ambit of the the Commission was giving effect to its regulations proceeding, See 10 CFR 2.101(a-1), 2.600-governing early site reviews.
We need not rehearse th6se regulations in detail here.
2.606.
Suffice it to say that they contemplate that any early review, hearing and partial initial decision will be confined to those (1) sought site suitability issues as to which the applicant has supplied the information required to be such action and (2)
(PSAR) and furnished in its pre.1 ainary safety analysis report (ER).- /
In keeping with this contempla-environmental report tion, Section 2.604 (a) provides that:
Where an applicant for a construction permit for a utilization facility subject to this subpart recuests an early review and hearing and an early partial decision on issues of site suitability pursuant to 62.101(a-1),
the provisions in the notice of hearing set-ting forth the matters of f act and law to be shall be considered, as required by 62.104, modified so as to relate only to the site suitability issue or issues under review._9/
1 An applicant invoking the early site review proce 8/
is-that PSAR and ER information "which relates to theo
~~
10 CFR sue (s) hearing and partial decision are sought *The remainder may b 2.101(a-1) (1).
L prescribes the content of a notice of Section 2.10403) hearing in a construction permit proceeding.
9/
~~
d
. however, that an early site 2.
The petitioners assert, tion suitability determination constitutes a " major Federal ac i
t" significantly af fecting the quality of the human env ronmen of NEPA, 42 USC 4332 within the meaning of Section 102(2) (C)
For this reason, we are told, it is not sufficient (2) (C).
an environ-(as it intends to do) for the staf f now to prepare statement confined to the site suitability is-mental impact h
p sues as to which an early decision has been sought by t e a -
Rather, according to the petitioners, fulfillment plicant.
tal of the NEPA command necessitates a full staff environmen including an appraisal of assessment of the proposed project, d by it.
By the need for the power which would be generate the Licensing Board has so the argument goes, the same token, i w in a statutory obligation to conduct a complete NEPA rev e the course of the site suitability proceeding.
and the staf f regard this thesis to be Ecth the applicant ite review an impermissible attack upon the Commission's early s We perceive no need, however, See 10 CFR 2.758.
regulations.
It is clear to us that the peti-to pass upon that question.
More particularly, tioners have misinterpreted the NEPA command.
l to the we are satisfied that the statute imposes no obstac es iw Commission's adoption of the bifurcated environmental rev e process sanctioned by the regulations in question.
To begin with, the fundamental premise undergirding a.
An early site review does petitioners' reasoning is faulty.
of itself, amount to " major Federal action significantly
- not, It neither af f ecting the quality of the human environment".
does nor can authorize any work on the site which might pro-In order for such work to com-duce environmental ef fects.
the applicant must have in hand either a construction
- mence, Neither of those permit or a limited work authorization.
documents can issue unless and until a full environmental re-view has been undertaken and completed by both the staff and the Licensing Board.
10 CFR 50.10 (e), 51. 5 (a) (1), 51.52.
This does not mean that NEPA has no bearing upon an early (see As recognized in the notice of hearing here site review.
the review has to be conducted in conformity p.
3, supra),
statute insofar as it encompasses issues pertaining with that i
t l to the suitability of the proposed site from an env ronmen a the Licensing Board will have be-standpoint.
For this reason, fore it so much of the staff's environmental impact appraisal The significance of our determi-as addresses those issues.
i nation regarding the operative ef fect of an early site rev ew simply that such a review need not entail an is, once again, h
assessment of environmental concerns which are unrelate suitability of the proposed site.
es The purpose served by an early site suitability review b.
is illumed by our decision in Potomac Electric Power Co_.
f (Douglas Point Nuclear Generating Station, Units 1 and 2),
(1975).1S/
As there pointed out, ALAB-277, 1 NRC 539, 546-47 such a review -- even if conducted well in advance of the ulti-mate determination on the construction permit application --
might disclose either that the site does not meet applicable safety standards or that it has environmental shortcomings which would very likely lead to its re-(at least if not remediable)
Such a disclosure at the threshold would benefit the jection.
In the instance of a site which public as well as the applicant.
for example, it would obviate was found unsatisfactory Eer se,
" wasteful expenditures of both time and money * *
- by alerting the applicant promptly to the need to find a better location for its plant".
Id. at 546.
The value of early findings on any licensing issue -- whether saf ety or environmental -- is heavily influenced by the degree of likelihood that those findings will lose their validity over to suitability findings based With respect the passage of time.
upon the physical characteristics of the site and its environs that risk would (e.g., local geological and wearher conditions),
supra, 1 NRC at 556.
But Douglas Point, not appear substantial.
the same is not true of early determinations on such issues ii as need for power, which has been singled out by the pet t oners consideration" at as the one "most urgently warrant [ing]
(Br. p. 7)
If recent experience teaches anything, it lays to rest this time.
i Douglas Point was specifically alluded to by th 10/
See 42 Fed. Reg. 22882 suitability review regulations.
(May 5, 1977).
any serious doubt that predictions of future electricity demand are fraught with uncertainty and, more probable than not, will require significant revision from year to year.
there is every practical reason why any early site
- Thus, review should be limited to issues of the type described in In this connec-the notice of hearing published in this case.
tion, the f act that an applicant has requested such review on a particular issue does not insure that it will be forthcoming.
The regulations reserve to the Commission the discretion to deny the request if, inter alia, it appears that an early partial decision on the issue "would not be in the public in-terest considering (i) the degree of likelihood that any early findings * *
- would retain their, validity in later reviews * * *".
Our attention has been directed by the petitioners c.
to no judicial authority which might lend any support to the notion that UEFA forbids an early appraisal of the suitability of a proposed nuclear power facility site unless accompanied by the evaluation of all other environmental aspects of plant construction and operation.11/
And there is evidence that, the Council on Environmental Quality does not for its part, discern any inconsistency between the statute and the Commis-In commenting upon the sion's early site review regulations.
Without belaboring the point, the decisions cited by 11/
them simply do not stand for that proposition.
~~
. \\
the Council expressly regulations when still in draf t form, t --
endorsed what it perceived to be their underlying concep "namely, that genuine consideration of alternative nuclear i
facility sites is more likely to occur if an applicant has i
t not invested substantial amounts in site-specific des gn a the time of site review".12/
follows from the foregoing that the Licensing I
f B.
It ii ers' Board correctly concluded that none of the joint pet t on Consequently, the outright i
contentions is now litigable.
denial of their petition was mandated.
f is unnecessary to reach the it In these circumstances, We question whether Mr. Gogol lacked standing to intervene.
/
k can also pass the. question whether, not having been ta en d
the appeal within ten days of the entry of the October or er, See 10 CFR 2.714a.
on that issue was untimely.
/
letter f rom the Council to the See April 27, 1977 Chairman of this Commission (appended to the staff'sThe Counci 12/
~~
at p. 1.
brief as Attachment A),on to note a few concerns respecting hich which the concept was implemented in the draf t win all respects j had been submitted to it.
its suggested revisions to accommodate those concerns were thereupon adopted by the Commission.
- rial,
17 -
The denial of the joint petition for leave to intervene is affirmed.
It is so ORDERED.
FOR THE APPEAL BOAPS O.
A
\\
C. Jegn Bishop Secretary to the Appeal Board e
~
fh coCKET5? '
1 rv'
' g AUG 2 0 G80 >
-h.*th! $mt'.m i
, 4 55 ' '
UNITED STATES OF At' ERICA 3
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF THE APPLICATION
) Appeal from Atomic Safety and
) Licensing Appeal Board 0F COMMONWEALTH EDISON COMPANY, (Allen S. Rosenthal, Chairman; INTERSTATE POWER COMPANY, AND
)
IOWA-ILLINDIS GAS AND ELECTRIC
) Dr. John H. Buck; Thomas S. Moore)
COMPANY FOR CONSTRUCTION PERMIT
)
AND EARLY SITE REVIEW, HEARING AND
) Docket Numbers:
550-599 550-600 PARTIAL INITIAL DECISION ON SITE SUITABILITY PETITION FOR NRC REVIEW Submitted on Behalf of:
Ci ti zens Against Nuclear Power, Inc.,
James Runyon and Edward Gogol By Jan L. Kodner, their Attorney g/6850 August 15, 1980
\\
j UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION IN THE MATTER OF THE APPLICATION
)
Appeal from Atomic Safety and 0F COMMONWEALTH EDISON COMPANY, Licensing Appeal Board INTERSTATE POWER COMPANY, AND (Allen S. Rosenthal, Chainnan; 10WA-ILLINDIS GAS AND ELECTRIC Dr. John H. Buck; Thomas S.
COMPANY FOR CONSTRUCTION PERMIT AND EARLY SITE REVIEW, HEARING
)
Moore)
AND PARTIAL INITIAL DECISION ON Docket Numbers: SS0-599 SITE SUITABILITY S 50-600 PETITION FOR NRC REVIEW _
Citizens Pursuant to 10 C.F.R. Section 2.786(b), Petitioners / gainst Nuclear A
Power, Inc., James Runyon, and Edward Gogol, hereby petition the Nuclear 29, 1980 Decision of the Atomic Regulatory Cormission for review of the July Safety and Licensing Appeal Board in the above captioned matter on the that the decision is erroneous with respect to certain important questions o law and policy.
BACKGROUND Citizens Against Nuclear Power, Inc. is a not-for-profit Illinois Corporation concerned with protecting the public and the individualsco the organization from the environmental, economic and physical safety Its members reside throughout Illinois, including the Carroll nuclear energy.
and Cook County Regions.
James Runyon resides, is employed, and owns property in Rock Island, 4
Illinois, about 40 miles south of the proposed site.
Edward Gogol resides and owns property in Chicago, Illinois, about 133 miles east of the proposed site.
On April 5,1979, Commonwealth Edison, Interstate Power Company and Iowa-Illinois Gas and Electric Company (Applicants) applied for a construction permit as to two proposed nuclear units in Carroll County, Illinois, and also requested an early site review, hearing and partial initial decision on site suitability issues. On May 4,1979, the Nuclear Regulatory Commission issued notice of the creation of a licensing board to make findings on issues of site suitability and to render a partial decision, and provided that persons D
The notice whose interests might be. effected could seek leave to intervene.
specified that the revie pertained to the suitability of the proposed Carroll
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County site with respect to:
geology, hydrology, meteorology, terrestrial, and aquatic ecology, water use, regional demography, community characteristics, economy, historical and national landmarks, land use, noise considerations, and aesthetics. See 44 Fed. Reg. 26229,26230(5/4/79).
Citizens Against Nuclear Power, Inc., James Runyon, and Edward Gogol i
(Petitioners) filed a Joint Petition for Intervention in said early site review.
Petitioners' Anended Petition set forth 15 contentions for the early site review, which rey be suar.arized very briefly asfollows:
1.
Inaccuracies of Applicants' Projected.Need for Power; 2.
(a) Availability of Alternative Sources of Energy; (b) Depletion of Uranium Supply;
I Financial Qualifications of Applicants; 3.
Invalidity of Costs - Benefit Analysis Based Upon 40-Year 4.
Operating Life; 5.
Financial Hardship on Rate Payers; Labor and Capital Efficiency of Alternative Sources of Energy; 6.
Amount of Spent Fuel to be Stored at Site and Duration of 7.
Said Storage; Possibility of Site Becoming Permanent Dump for Spent Fuel; 8.
Possibility of Site Becoming a Permanent low and Intermediate 9.
Level Radioactive Waste Dump; Failure of Applicants' to Indicate how Decomissioning Plan 10.
Would Occur; Invalidity of Costs - Benefit Analysis Based Upon Unknown and Uncertain Cost of Waste Disposal and Decommissioning; 11.
12.
Ability of Applicants to Obtain Fuel; Health Consequences of Licensing Power Plant; 13.
Inadequacy of Insurance to be Obtained by Applicants in Light 14.
of the Price - Anderson Act; Lack of Evacuation Plan and Improbability that Suitable Plan 15.
Would be Found.
At the September 19, 1979 Special Prehearing Conference, the Licens At that Board orally denied contentions 1 - 14, reserving ruling on contention 15.
time, the Board falso reserved ruling as to whether Petitioner Edward Gogol l distance between his residence and lacked standing because of the geographi the proposed facility site.
On October 10, the Board determined that Mr. Gogol lacked standing (presumably due to insufficient proximatey to the proposed site) and f.
6
ruled that its determination as to contention 15 would be held in abeyance pending the publishing of the Three Mile Island NRC Staff Report or further Comission action.
On May 30,1980, the Board ruled on ali 15 contentions, rejecting the same as issues in the early site suitability hearing, and thereby denied Petitioners' Joint Petition for Leave to Intervene.
On June 13, 1980, Petitioners filed their Notice of Appeal and Brief in Support of Appeal with the Atomic Safety and Licensing Appeal Board.
the Appeal Board affirmed the decision of the Licensing On July 29, 1980, Board.
SUMvARY OF DECISION OF WHICH REVIEW IS SOUGHT Petitieners seek review of the Appeal Board's affirmance of the Licensing Board decision which held that none of the contentions were litigable at the early site review and which denied Petitioners' Joint Petition for leave to Intervene.
WERE PETITIONERS' CONTENTIONS OF LAW PREVIOUSLY RAISED The Atomic Safety and Licensing Appeal Board decided Petitioners' Appeal solely upon Briefs filed by P.etitioners, Comission Staff, and There was no oral argument or record involved.
Pages 4 through Applicants.
B of Petitioners' Brief in Support of Appeal previously raised the questions of law as to the validity of contentions 1, 2, 4, 6, 7, 8, 9,10,11, and 13 under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 e_t seg.
t 29, 1980 The Appeal Board considered some of Petitioners' arguments in its July Opinion at Pages 12 through 16.
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WHY THE APPEAL BOARD'S DECISION IS ERR 0NEOUS l
In affirming the decision of the Licensing Board, the Appeal Board advanced several reasons for its affirmance. First it noted that a Licensing Board must respect the terms of the Notice of Hearing published by the Nuclear Regulatory Comission for the proceeding in question. As the Notice did not pertain to any of the issues raised in Petitioners' contentions, so reasoned the Appeal Board, all contentions were outside the purview of the proceedings. The Appeal Board held that NEPA did not impose any obstacle to the Comission's bifurcated environmental review process involved herein.
The Appeal roard specifically held that an early site review does not, of itself, amount to " major federal action significantly effecting the quality of human environment'!.
The Board further held that the sole bearing which NEPA has upon an early site review is that "the review has to be conducted in confonnity with that Statute insofar as it encompasses issues pertaining to the suitability of the proposed site from an environmental standpoint".
The Board further noted the benefits served by the early site review and the practicalities behind why the review should be limited to issues of the type de;cribed in the Notice of Hearing. Finally, the Board held that the case. cited by Petitioners do not lend any support to the notion that KPA requires the contentions at issue to be considered at an early site review.
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i Petitioners certainly do not q'uestion the wisdom of conducting a review as to the suitability of the proposed si'.e.
However, Petitioners do j
contend that NEPA, the Counsel on Environmental Quality Regulations, Nuclear Regulatory Comission Regulations and existing case law require a contrary decision as to whether an.early site review is a " major federal action" thusly,.
triggering the need for consideration of the rejected contentions at Petitioners further contend that even if the bifurcation of NEPA issue.
considerations is permissible to an extent, there must be a showing of the need for the proposed facility at the very inception of any major federal action such as an early site review.
WHY THE COMMISSION SHOULD GRANT REVIEW Petitioners believe that the question posed by their Appeal is Further, there is significant evidence that the a case of first impression.
proposed Carroll County Facility will not be needed due to the lagging grow rate in electrical consumption.
To pursue this early site review without Applicantsfirst showing that there is a need for this facility would be to waste millions of dollars at a time where Applicants are financially strapped As this and would further waste Commission financial and human resources.
Petition involves an important matter that could significantly effect the environment, public health and safety and involves an extremely important procedural issue, the Connission should exercise its discretion in granting Petitioners' Petition for. Review.
WHEREFORE, Petitioners respectfully request that the Commission grant their Petition for Review.
l Respectfully submitted.
DAN L. KODNER, ATTORNEY FOR PETITIONERS, l
CITIZENS AGAINST NUCLEAR POWER, INC.,
JAMES RUNYON, AND EDWARD GOGOL 230 West Monroe Street j
Suite 2026 Chicago, Illinois 60606 (312) 782-9466 )
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION IN THE PATTER OF THE APPLICATION
) Appeal from Atomic Safety _and 0F COMMONWEALTH EDISON C011PANY,
)
Licensing Appeal Board INTERSTATE POWER COMPANY, AND
)
( Allen S. Rosenthal, Chairman; IOWA-ILLIN0IS GAS AND ELECTRIC
) Dr. John H. Buck; Thomas S. Moore)
COMPANY FOR CONSTRUCTION PERMIT
)
AND EARLY SITE REVIEW, HEARING AND Docket Numbers:
S50-599 550-600 PARTIAL INITIAL DECISION ON SITE SUITABillTY NOTICE OF FILING AND PROOF 0F SERVICE On the 15th day of August,1980, I, Jan L. Kodner, Attorney for Petitioners, Citizens Against Nuclear Power, Inc., James Runyon, and Edward Gogol, filed a Petition for Review with the Nuclear Regulatory Comission by mailing the same to,the following parties:
Secretary, U.S. Nuclear Regu[atory Attorney General State of Iowa Hoover State Office Building Comission Washington, D.C. 20555 DesMoines, Iowa 50319 Attention:
Chief Docketing and James Dubert, Iowa Socialists Party Service Section 129 Ash No. 2 es, Iowa 50010 Staff, Nuclear Regulatory Comission Washington, D.C. 20555 John Cox, Esquire 4ttention: Richard Goddard, Esquire Jo Davies County Adhoc Committee on Nuclear Energy Information Isham, Lincoln and Eeale 206 North Main Street One first National Plaza Galena, Illinois 42nd Floor Chicago, Illinois 60603 Attorney General, State of Illinois Attention:
Philip Steptoe, Esquire 188 West Randolph Street
^
Ja s Sc
'a a Public Interest en n
u n u er Esquire 36 Memorial Union Edward Gogol lowa State University 6105 West Winthrop
I i
Thomas J. Sorg, Director James L. Runyon Carrolli County Environmental 1316 2nd Avenue Coalition P.O. Box 307 305 West Coal Rock Island, Illinois 61201 Mt. Carroll, Illinois 61053 3XN L. K0DNER, ATTORNEY FOR PETITIONERS, CITIZENS AGAINST NUCLEAR POWER, INC.,
JAMES RUNYON, AND EDWARD GOGOL 230 West Monroe Street Suite 2026 Chicago, Illinois 60606 (312) 782-9466
O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 8/29/80 BEFORE THE COMMISSION In the Matter of Docket Nos. S50-599 COMMONWEALTH EDISON COMPANY, et al. ))S50-600 (Carroll County Site)
)
NRC STAFF BRIEF IN OPPOSITION TO PETITION FOR REVIEW 0F ALAB-601 1.
INTRODUCTION intervention petitioners Citizens Against Nuclear Un August 15, 1980, Power, Inc. (CANP), James Runyon and Edward Gogol filed a petition, pursuant to 10 C.F.R. 6 2.785, for Commission review of the July 29, 1980 Decision of the Appeal Board in the captioned proceeding (ALAB-601).
The Appeal Board decision upheld the denial of their intervention petition 10, 1979 and by the Licensing Board in separate orders, dated October May 30, 1920.
Petitioners seek review of ALAB-601 on the apparent grounds that the Appeal Board erred in determining that an early site review is not a major federal action with a significant environmental impact within the 1/
meaning of i 102(2)(C) of the National Environmental Policy Act (NEPA)~
and that the rejected contentions 'specified on appeal do not require
,1/ 42 U.S.C. 4321, et. sec.
- o 6
h v /ed5
Petition at 5-6.
present adjudicatory consideration thereunder.
Petitioners further contend that, even if a full NEPA review is not required at the early site review stage of this construction permit proceeding, the need for power issue must receive present consideration.
Petition at 6.
Petitioners provide no legal authority for either pro-The position nor does the Staff believe that such authority exists.
Appeal Board decision on the challenged issues was compelled by the 2/
Comission's early site review regulations,~ the notice of hearing in this matter, and other cited authority. Petitioners have not made a satisfactory showing to warrant Commission review under the applicable provisions of 10 C.F.R. 5 2.786 and thus the Staff opposes the present petition.
II.
DISCUSSION Comission review of Appeal Board decisions and actions is governed by the provisions of 10 C.F.R. I 2.786. Pursuant thereto, a party may file a petition for review of an Appeal Board decision on the ground that the decision is " erroneous with respect to an important question of fact, law, 3/
or policy."
10 C.F.R. 1 2.786(b)(1).'~
The petition (and answer thereto) must address certain prescribed matters. 10 C.F.R. 1 2.786(b)(2), (3).
These matters are addressed serially below. The grant or denial of a petition is within the discretion of the Commission with certain specified exceptions.
10 C.F.R. 1 2.786(b)(4). The Staff submits that Intervenors have not met their burden of showing that the Appeal Board Decision herein was " erroneous."
2/ 10 C.F.R. El 2.101(a-1), 2.600-2.606.
Public Service Company of New Hampshire (Seabrook Station.
3/ See, T an,d 2), CLI-78-11, 7 NRC 735 (1978).
e.o.
Units
l i
l 9 1
1.
Sureary of Decision _
This proceeding was instituted upon publication of a " Notice of Hearing and Application for Construction Permits and Request for Early Site Review (44 Fed. Reg. 26229.)
by the Secretary of the Conmission on May 4, 1979.
In response to the notice of hearing, the Board received seven petitions to Four of the seven petitions were granted.
intervene.
As relevant to this petition, a petition for leave to intervene was filed by James Runyon and Edward Gogol on behalf of themselves and as m These same petitioners filed an amended petition, including a state-CANP.
A special prehearing conference ment of contentions, on September 4, 1979.
On was held on September 19, 1979 to consider intervention petitions.
the Board issued its Memorandum of Special Prehearing October 10, 1979, Conference in which it made certain tentative and final intervention rulings The Board ruled that Petitioner Gogol lacked standing to intervene in this 1
The Board consolidated the petitions of CANP and Mr. Runyon which matter.
The Board did not admit any of the fifteen conten-it tentatively granted.
tions advanced by Petitioners CANP and Runyon, but reserved judgment on (Order admissibility of proposed contention 15 regarding evacuation plans.
No notice of appeal was taken from the denial of the interven-at 2, 13.)
tion petition of Edward Gogol therein.
Petitioners CANP and Runyon moved the Board for leave On November 23, 1979, to file a second amended petition to intervene, containing four newly pro-e m
a
4 That motion was opposed by Commonwealth Edison Company posed contentions.
(Applicant) and the NRC Staff on the grounds that it failed to satisfy applicable requirements for untimely filings set forth in 10 C.F.R. E decision, all of the contentions of In the Licensing Board's May 30, 1980 Petitioners CANP and Runyon were rejected as falling outside the sco (Order at the early site review and their joint petition was thereby denied.
Petitioners' motion to amend their contentions was similarly denied.
11-12.)
The Board did indicate that CANP would have the right to submit a pe intervene at the later construction permit hearings, at which time man i
Id. The Board made no further its original contentions would be suitable.
reference to Mr. Gogol.
30, 1980 Petitioners appealed the Licensing Board's May On June 12, 1980, The appeal was denied by the Appeal Board in its Decision of J
4/
decision.
The instant
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following the submission of written briefs.
July 29, 1980 petition seeks review of that Decision.
f Statere_nt of Issues Presented Below 2.
(1)whethertheLicensingBoard The issues before the Appeal Board were:
correctly determined that Petitioner Gogol lacked standing to inte (2) whether the Licensing Board correctly rejected
)
this early site review; Petitioners' contentions because they fell outside the scope of this 27, 1980, and Staff br eif 4/ See Applicant brief in opposition, dated June in opposition, dated July 18, 1980.
i
i 4
-S-site review; and (3) whether the Licensing Board correctly interpreted the Comission's early site review regulations which provide for early assessment of site suitability issues.
Correctness of Appeal Board Decision 3.
The Appeal Board upheld the Licensing Board's denial of intervention on t 5/were outside the scope of
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grounds that Petitioners' rejected contentions this early site review as established in the Comission's notice of hearing.
6/ The Appeal Board rejected Petitioners' claim
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ALAB-601, s_ lip. oj. at 16.
i that an early site review, standing alone, constitutes a major Comnission action having a significant impact upon the environnent so as to invoke the ALAB-601,,s,_1_ip,,op.
i environnental impact statenent requirement under NEPA.
The Appeal Board concluded that the environmental review of a con-at 13.
struction permit application for which an early site review is requested m Id. at 12-13. The Staff believes that the properly be performed in two stages.
Appeal Board decision was correct in all respects and should be left Significantly, the issues designated for early consideration in the not hearing published by the Comission are:
whether, from both an environmental and safety standpoint, the Carroll County site is suitable with respect to:
geology, hydrology, meteorology, terrestrial and squatic 5/ In their appeal, Petitioners took exception to the rejection of ten of t fifteen proposed contentions.
See infra at 7.
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6/ In arriving at this conclusion, the Appeal Board fou Id.
intervene in this matter and whether his initial appeal was untimely.
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The Staff believes that these factors provide independent grounds fo See Staff appeal brief at 4-7.
denial of Petitioner Gogol's petition.
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ecology, water use, regional demography, community charac-teristics, economy, historical and national landmarks, land use, noise considerations and aesthetics.
(44 Fed. Reg. at 26229.)
These issues are derived from the Applicant's specification of issues of site suitability for which early evidentiary consideration is sought and,as the 7/flow logically from the provisions of the Commission's Appeal Board aptly noted, early site review regulations.
These regulations permit early consideration of site suitability issues as the 10 C.F.R. 12.101(a-1). The first part of a construction permit application.
Corxnission's environmental review is initially confined to an evaluation of thos 10 C.F.R. Si 2.101(a-1)(1), 2.604. The applicable notice of specific issues.
hearing setting forth the issues to be considered "shall be modified so as to 10 C.F.R.
relate only to the site suitability issue or issues under review."
These do not encompass specific safety and environmental issues 1 2.604(a).
associated with a specific plant of a specific design at a designated site.
These considerations will generally be considered at the construction permit phase of the proceeding.
At such latter stage in the application process, the balance of the information i
required of construction permit applicants must be submitted and the necessary A favorable partial decision on site environmental and safety review performed.
suitability issues does not authorize either preconstruction (limited work) or J_/ A!.AS-601~, slio. g. at 11.
i 7
No construction permit may be issued without comple-construction activities.
tion of a full environnental impact statement pursuant to the requirements of NEPA.
Petitioners argued before the Appeal Board that the Licensing Board had impro-perly rejected contentions 1 (need for power), 2 (alternative energy so 4 (cost-benefit balance), 6 (financial profitability of alternative energy sources), 7 (spent fuel storage), 8, 9 (longterm waste management),10 (decom missioning),11 (cost of waste management and decomissioning), and 13 (acc They claimed then and now that the need for power issue is particula analysis).
deserving of early consideration.
The Appeal Board found it " obvious" that none of the specified contentions 8/
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within the scope of this proceeding as delimited in the notice of hearing.
With regard to the need for power issue, the Appeal Board concluded that th is one of the issues least susceptible to early adjudication given the unlikeli 9/
~ The hood that findings on such issue would retain their validity over time.
Appeal Board contrasted this with issues involving the physical characte I
It thus found "every practical reason" of a site which remain generally constant.
why an early site review should be confined to those types of issues des 10/ The Staff agrees.
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for consideration in the notice of hearing.
Apart from this, Petitioners do not actually claim that the rejected co
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f all within the scope of the issues specified in the notice of hearing or the
_,8_/ ALAB-601, slip. co. at 10.
9/ Id. at 14 10/ Id. at 15.
i Applicant's proposed findings on site suitability issues. Rather, they contend that an early site review is a major Commission action significantly affecting the environment so as to require the preparation of an environmental impact statement pursuant to Section 102(2)(C) of NEPA that will presumably embrace consideration of the matters raised in the contentions.
The Appeal Board held otherwise observing that an early site review cannot 11/
authorize site activities which could effect the environment.
The Appeal
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Board recognized that such work cannot connence without a construction permit or limited work authorization which must be preceded by a complete impact st atement.
Id. The Staff acrees. An early site review comprises the initial part of an overall major Commission action, the issuance of a construction per-However, whether an early site review, standing alone, constitutes a major mit.
Conmission action significantly affecting the environnent is not of con-sequence in the context of the present case since as a matter of discretior, an environmental impact statement relative to that review will be prepared This statement will consider the site suit-by the Staff in this case.
ability issues for which an early decision is sought, including an evaluation When the balance of the construction permit applica-of alternative sites.
tion is filed, the Staff will prepare a completed impact statement.
This delineation in the NEPA review process is consistent with the Commission's present notice of hearing which provides that, as relevant to the Commission's responsibilities under NEPA, the Licensing Board will:
Nor do the Commission's regulations require an 11/ ALAB-601, slip op. at 13.
See 10 C.F.R. 6 51.5(a) and inpact staTF5ent for an early site review.
discussion in Staff appeal brief at 10-11.
C 9-(1) determine whether the requirements of Section 102(2(A),
(C), and (E) of NEPA and 10 C.F.R. Part 51 have been complied with in this proceeding; (2) independently consider the final balance among conflicting factors contained in the record of the proceeding; and (3) determine, after weighing the environ-mental, economic, technical and other benefits against environ-mental and other costs, the suitability of the site with respect to the factors reviewed.
(emphasis added) (44 Fed. Reg. at 26229.)
The Staff intends to fulfill these requirements in its impact statement regard-ing site suitability.
The Appeal Board further observed that this bifurcated environrental review has the apparent sanction of the Council on Environmental Quality as reflected 12/
The Staff
~~
in its comments upon the draf t early site review regulations.
13/
believes that federal case law is in accord."-
Comnission Review Should Not be Exercised 4.
Since the present proceeding is the first to arise under the Commission's early site review regulations, it can be argued that the application of those regulations LAB-601, slip. op. at 15-16. The Appeal Board cited approvingly from a 27, 1977, a
- etter froh G. Speth, CEq to then Chairman Rowden, dated AprilCEQ regulations 12 copy of which was attached to the NRC Staff appeal brief.
have also recognized that distinct but-sequential impact statements may be40 appropriate at different stages of a particular action.
1502.28.
13/ See Sierra Club v. Morton, 514 F.2d 856, 880 (2d Cir. 1975) wherein the Se Elrcuit prescribed four f actors to be applied to determine when the time is ripe for an impact statement to issue with respect to a particul
~~
action. These f actors are:To what extent is meaningful information presently how soon will that occur?
available on the effects of implementation of the program, and of alternatives To what extent are irretrievable commitments being made and their effects?
How severe and options precluded as refinement of the proposal progressesi will be the environmental effects if the program is implemented 7' The Staff believes that consideration of these f actors commend a completed impact state See Staff appeal brief at 14-17.
ment at the later construction permit stage.
J 1
+
g,
in the context of the intervention petition submitted by Petitioners herein presents an important issue of public policy.
Notwithstanding this, the i
legal issues underlying the petition are neither particularly novel nor pro-found. Their resolution, with which both the Licensing Board and Appeal Board were in accord, turns on elemental principles of environmental law and regula-tory construction. The application of these principles to the petition at bar is relatively straightfoward. This, coupled with the apparent approval by CEQ of the challenged regulations, considerably lessens whatever public policy importance might otherwise attach to this matter.
The Appeal Board decision in question was well-reasoned and gave the proper effect to the Comission's early site review regulations and the present notice of hearing.
Petitioners have presented no cogent reasons why that decision is erroneous as a matter of law or policy so as to warrant Com-mission review. Adoption of Petitioners' position would effectively negate the early site review regulations which the Comission itself promulgated after determining that they would have a salutory effect on nuclear licensing.
CONCLUSION In light of the above, the Staff recormends that the petition for review of ALAB-501 be denied.
Respectfully submitted, Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this 29th day of August, 1980.
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ffi!SSION BEFORE THE COMMISSION In the Matter of
)
C0f410NWEALTH EDISON COMPANY, et al.
Docket Nos. 550-599
)
550-600 (CarrollCountySite)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN OPPOSITION TO PETITION FOR REVIEW OF ALAB-f01" in the above-captioned proceeding have been served.
on the following by deposit in the United States mail, first class, or as-indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system,'this 29th day of August, 1980:
t Alan S. Rosenthal, Esq., Chairman Philip P. Steptoe, Esq.
Isham, Lincoln & Beale Atomic Safety and'Licensin9 One First National Plaza, 42nd Floor Appeal Board U. 5. Nucitar Regulatory Comission Chicago, Illinois ~60603
. Washington, D. C.
20555 Thomas J. Miller Attorney General of-Iowa Dr. John H. Buck State Capitol Complex Atomic Safety and Licensin9 Des Moines, Iowa 50319 Appeal Board U. S. Nu: lear Regulatory Commission Washington'. D. C.
20555 Jan L. Kodner, Esq.
230 W. Monroe Thomas S. Moore, Esq.
Suite 2026 i
Atomic Safety and Licensing Chicago, Illinois 60626 Appeal Board U. S. Nuclear Regulatory Comission Mr. John W. Cox, Jr.
Jo Daviess County Ad Hoc Comittee Washington, D. C.
20555 on Nuclear Energy Information 906 Campbell Street-John F. Wolf, Csq.. Chairman Galena, Illinois 61036 3409 Shepherd Street Chevy Chase, Maryland 20015 Mr. Jarres C. Schwab, Executive Director Iowa Public Interest Research Group :Inc.
- Mr. Glenn O. Bright Activities Center; iowa Memorial Union
' Atomic Safety and Licensing Board University of Iowa U.S. Nuclear Regulatory Comission Ioka City, Iowa ' ~ 52242 Washington, D.C.
20555 Nancy J. Bennett Dr. Robert L. Holton Assistant Attorney General-School of Oceanography Environmental Control Division Oregon State University 188 West Randolph, Suite 2315 Corvallis, Oregon 97331 Chicago, Illinois 60601 f
4 '
=
2'.
i Mr. James L. Runyon
- Atomic Safety and Licensing 1316 - Second Avenue Board Panel P. O. Box 307 U.S. Nuclear Regulatory Cocraission Rock Island, Illinois 61r01 Washington, D.C.
20555 Mr. Edward Gogol
- Atomic Safety and Licensing 610S W. Winthrop Appeal Board Panel U.S. Nuclear Regulatory Comission Chicago, Illinois 60660 Washington, D.C.
20555 Mr. Jim Dubert C/o Iowa Socialist Party
- Docketing and Service Section 2801h West Street Office of the Secretary U.S. Nuclear Regulatory Comission Ames, Iowa 50010 Washington, D.C.
20555 Mr. Tom Sorg David N. Howarth, Esq.
111 Broad Street RFD 2. Box 115 Mt. Carroll, Illinois 61053 Elizabeth, Illinois 61028 Leonard Bickwit, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C, 20555 AJn ~h &
~5teven C. Goldberg
(,>
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Counsel for NRC Staff 6
.