ML20052B749
| ML20052B749 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 04/26/1982 |
| From: | Gallo J, Thornton P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | |
| References | |
| ISSUANCES-OLA, NUDOCS 8205030531 | |
| Download: ML20052B749 (13) | |
Text
4/26/82
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD I
IN THE MATTER OF
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CONSUMERS POWER COMPANY
)
Docket No. 50-155-OLA
)
(Spent Fuel Pool ___
Big Rock Point Nuclear
)
Modification 4
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)
BRIEF OF CONSUMERS POWER COMPANY ON TIf[
EliTg STATUS OF REMAINING NEPA ISSUES l'
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fM INTRODUCTION g t:, e Consumers Power Company
(" Licensee") files thf pretrial brief pursuant to a telephone conference call held on March 1, 1982 among the members of the Licensing Board
("the Board"), Licensee, the Commission Staff, Intervenors Christa-Maria, et al., and Intervenor John O'Neill
(" Inter-venors").
During the conference call Judge Bloch stated that the Board had determined it wanted " briefs on the 1! issues left after the Appeal Board's outstanding NEPA decision."2/
(Tr. 267).
He indicated that this formulation of the issues would limit the briefs to discussion of the 1/
The National Environmental Policy Act, 42 U.S.C.A.
SS 4321 et seg.
-2/
Consumers Power Company (Big Rock Point Nuclear Plant),
ALAB-636, 13 NRC 312 (1981).
82050.30 53{
h
_ direct effects of the expansion of the spent fuel pool and exclude discussion of continued operation of the plant (Tr.
268).
He specified that the Licensing Board was interested in two NEPA issues after the Appeal Board's decision in A LAB-63 6 :
whether, in light of the Staff's EIA,1 an EISA! s i
required in this proceeding, and whether the Board is required to consider alternatives.EI During the conference call, counsel stated Licen-see's position that the question whether the facts demonstrate the need for an EI6 or a consideration of alternatives cannot n.aaningfully be briefed in advance of hearing.
He reasoned that because the Staff's EIA concluded there was no need for an EIS or a consideration of alternatives, the predicate for any contrary allegation should be developed at
-3/
Environmental Impact Appraisal By The Office Of Nuclear Reactor Regulation Relating To The Modification Of The Spent Fuel Storage Pool Facility Operating Lincense No.
DPR-6 Consumers Power Big Rock Plant Docket No. 50-155, May 15, 1981.
-4/
Section 102(2) (C) of NEPA, 42 U.S.C.A.
S 4332(2)(C),
requires preparation of an Environmental Impact State-ment ("EIS") with respect to every recommendation by a federal agency of a major federal action significantly affecting the quality of the human environment.
-5/
Section 102(2)(E) of NEPA, 42 U.S.C.A.
S 4332(2)(E),
provides that "all agencies of the Federal Government shall -- develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources."
. the hearing through a challenge to Staff's conclusions (Tr.
269).
Moreover, counsel stated that unless the Board deter-mines that an EIS or a consideration of alternatives is required, the discussion of alternatives contained in Staff's EIA at 17-19 and Table 7.0 is immaterial to this case and should not be admitted in evidence (Tr. 269-70).
Those positions are developed more fully in this brief.
~
ARGUMENT A.
The Question of the Continued Operation of the Big Rock Point Plant is not Material to a Determination Whether an EIS or a Consideration of Alternatives is Required in this Case In its Memorandum And Order On NEPA Review, LBP-80-25, 12 NRC 355 (1980), the Licensing Board held that Section 102 (2) (C) of NEPA, 42 U.S.C.A.
S 4332(2)(C), required the preparation of an EIS covering the effects of the pro-posed spent fuel pool expansion at the Big Rock Plant and the additional term of reactor operation that the expansion would permit.
The Board's holding was based on its reason-ing that the proposed pool expansion was directly linked to continued plant operation.
Because plant operation has a significant effect on the environment, the license amendment was held to constitute a majoi-federal action within the meaning of the statute.
12 NRC at 3 63-6 4.
The Board did not rule on the question whether Section 102(2)(E) of NEPA, 4 2 U.S.C. A.
S 4332(2)(E), requires a consideration of alter-natives in this cane, as argued by Intervenors, because it
. found Section 102(2)(C) more comprehensive.
12 NRC at 359.
Intervenors had based their arguments for the applicability of Section 102(2)(E) on Dairyland Power Cooperative (La Crosse Boiling Water Reactor), LBP-80-2, 11 NRC 44 (1980).
In La Crosse the Licensing Board held that although a proposed spent fuel pool expansion did not require preparation of an EIS, it did require consideration of alternatives under Section 102(2)(E) because there were unresolved conflicts about alternative uses of availabl'e resources.
Il NRC at 73.
The La Crosse Board reasoned that the nuclear plant itself was a resource within the meaning of the statute.
Because expansion of the spent fuel pool would permit continued plant operation, the Licensing Board concluded that the unresolved conflict centered on the use or non-use of the plant.
Id[. at 7 4.
The La Crosse Board therefore held that it must evaluate the alternative of "doing nothing", and that the need for the power the plant would produce was germane to this evaluation.
See Id,.
at 77.
Relying on this decision, Intervenors argued to the Board in this case that consideration of alternatives to continued plant operation was required, including an evalu-ation of the need for power.
See 12 NRC at 357-58.
5 The Appeal Board's decision in ALAB-636 did not preclude a finding on remand that either preparation of an l
6/
Consumers Power Company (Big Rock Point Nuclear Plant) l ALAB-636, 13 NRC 312 (1981).
l l
EIS of consideration of alternatives is required in this case.
The decision did, however, reject the ground asserted by the Licensing Board as requiring an EIS.
Moreover, the Appeal Board's reasoning would equally preclude a require-ment for the consideration of alternatives on the ground asserted in La Crosse.
The Appeal Board held that:
NEPA does not require consideration of the environmental impacts of the continued plant operation likely to result from expansion of the Big Rock spent fuel pool, assuming that expansion will not cause any changes in
, reactor operation.
If this assumption proves to be accurate, the scope of the agency's environmental inquiry may be confined to the effects of the expanded pool itself.
13 NRC at 329.
The Appeal Board's decision was limited to the requirements of Section 102 (2) (C).
Although the Appeal Board had requested briefs on the applicability of Section 102 (2) (E), it refrained from deciding that issue on the ground that a determination would be premature in the ab-sence of a record.
13 NRC at 332.
Implicit in this posi-tion, however, is a rejection of the La Crosse holding relied on by Intervenors before this Board.
Because con-tinued plant operation is beyond the scope of the environmental inquiry in this proceeding, there are no unresolved conflicts about the use or non-use of the plant, even assuming that the plant is an "available resource" within the meaning of
the statute.~7/ Hence the need to consider the alternative of "doing nothing" and the consequent evaluation of the need for power is not an open question after ALAB-636.
The only remaining NEPA issues are those dealing with the effects of the expanded spent fuel pool itself.
Thus, the Appeal Board refused to decide these issues because in the absence of the Staff's EIA, there was no record on them.
B.
The Appropriate Means of Developing the Remaining NEPA Issues is Through an Evidentiary Challenge to the Adequacy of the Staff's EIA The opinion of the Appeal Board in ALAB-636 not only defined the scope of the remaining NEPA issues, but also suggested the appropriate method of litigating them.
In regard to the applicability of Section 102 (2) (C), the Appeal Board noted that it was " unable to make any finding at this juncture as to whether this particular spent fuel pool expan-sion itself is or is not a major federal action requiring an EIS.
That is a matter initially for the staff's determination and subsequently for exploration during the hearing process."
13 NRC at 324n.
In regard to the applicability of Section 102 (2) (E), the Appeal Board stated:
-7/
Licensee, however, agrees with the position of the Commission Staff that a nuclear reactor is not a
" resource" within the meaning of Section 102 (2) (E).
See NRC Staff Brief In Opposition to Memorandum And Order On NEPA Review at 26-30.
l
. As is evident from our decision in Virginia Electric and Power Co. (North Anna Station, Units 1 and 2), ALAB-584, 11 NRC 451, 456-459 (1980), petition for review pending sub nom.
Potomac Alliance v. Nuclear Regulatory Com-mission (No. 80-1862, D.C. Cir., filed July 28, 1980), some factual basis (usually in the form of the staff's environmental analysis) is necessary to determine whether a proposal
' involves unresolved conflicts concerning alternative uses of available resources' --
[
the statutory standard of Section 102 (2 ) (E).
- See, e.g.,
Id. at 458n.14.
Since this pro-ceeding is in its incipient stages, there is little in the record that could provide the I
foundation for the conclusion that this par-ticular spent fuel pool expansion proposal does or does not involve such ' unresolved conflicts.'
Thus, until the record is more fully developed with the inclusion of such documents as the staff's environmental evaluation, a meaningful determination of the relevance of Section 102(2) (E) to this proceeding cannot be made.
13 NRC at 332.
Furthermore, the Appeal Board pointed out that challenges to the content or conclusions of the Staff's EIA are properly made during the course of the hearing, "which provides the vehicle for contesting any perceived deficiencies in the Staff's analysis.
See 10 CFR 2.718(g),
2.721(d), 51.52(d)."
13 NRC at 331.
Since the Appeal Board's decision, the Staff has issued its EIA.
With respect to the applicability of Section 102 (2 ) (C), the Staff concluded that the proposed license amendment would not significantly affect the quality of the human environment and that preparation of an EIS was therefore not necessary.
EIA at 19.
With regard to the l
l i
applicability of Section 102 (2) (E), the Staff resorted to a somewhat less straightforward procedure.
It concluded that expansion of the spent fuel pool "will not result in any significant change in the commitment of water, land and air resources."
EIA at 18.
The most significant use of resources will be that of the stainless steel used to fabricate the racks, but the Staff concluded that in comparison to the amount of stainless steel used annually in the United States the amount to be used in the racks is " insignificant" and there are no unresolved conflicts with respect to it.
EIA at 19.
Nonetheless, the Staff included a discussion of alternatives in Section 7 of its EIA, although it has con-sistently maintained that Section 102(2) (E) does not require a consideration of alternatives in this case.
.Thus, the present posture of the NEPA issues in this proceeding is such that they cannot usefully be liti-gated through briefs.
The NEPA issues remaining after ALAB-636, limited as they are to the effects of pool expansion itself, are more factual than legal.
It is open to Inter-venors, through cross-examination and direct testimony, to attempt to show, for example, that the radiological impacts of pool expansion will be greater than Staff has estimated to such an extent that the license amendment would be a
(
. major federal action requiring an EIS.
Similarly, Inter-venors can try to demonstrate that there are indeed unre-solved conflicts about the use of the stainless steel that will be used in the fabrication of the racks, so that a consideration of alternative uses would be required.8/
C.
Unless the Licensing Board Determines That an EIS or a Consideration of Alternatives is Necessary, the Staff's Discussion of Alternatives in its EIA is Immaterial and should not be Admitted in Evidence Licensee, as well as Intervenors, can challenge the contents and conclusions of the EIA during the course of
-8/
Intervenors face an uphill battle on both issues.
The environmental impacts of spent fuel pool expansions have been found to be negligible and to involve the commitment of resources respecting which there are no unresolved conflicts in Portland General Electric Co.
(Trojan Nuclear Plant), ALAB-531, 9 NRC 263 ( 197 9'),
and at least 39 other such spent fuel pool expansion requests.
See " Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel," NUREG-0575, Vol. 1 (August 1979) a t ES-5.
More recently, in Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451 (1980), the Appeal Board granted the Applicant's motion for summary disposition on the need for an EIS or a consideration of alterna-tives in a spent fuel pool expansion proceeding.
In l
regard to the latter issue, the Appeal Board commented that:
...the intervenors have never endeavored to ex-l l
plain why the installation of new racks in a spent fuel pool might engender a conflict concerning alternative uses of available resources.
And it is just as difficult now as it was a year ago (when Trojan was decided) to fathom how such a conflict might arise.
l 11 NRC at 458.
. the hearing.
In particular, unless the Board determines that an EIS or a consideration of alternatives is required, Licensee will move that Section 7 and Table 7.0 of the EIA, which discuss alternatives to pool expansion, be struck as immaterial.
The consideration of alternatives to a proposed action is not required under 10 C.F.R. S 51.7(b).
- Moreover, in Offshore Power Systems (Floating Nuclear Power Plants),
A LAB-4 89, 8 NRC 194, 216-18 (1978), the Appeal Board held that the guidance of the Commission's NEPA regulations is not flexible and does not allow any departure by the Staff.
1 The Staff has no responsibility for formulating environ-mental policy.
Thus, where consideration of environmental issues is not required, the Staff has no authority to con-sider them sua sponte.
CONCLUSION For the reasons stated above, the issues whether the direct effects of pool expansion itself require an EIS or a consideration of alternatives, the only NEPA issues remaining after ALAB-636, should be tested during the hear-ing process by challenges to the adequacy of the Staff's
. EIA.
Moreover, unless such challenges are successful, the Staff's discussion of alternatives should be excluded from evidence as immaterial to any issues in this case.
Respectfully submitted, Qb Y
foseph Gallo Peter Thornton
//
Two of the attorneys for Consumers Power Company ISHAM, LINCOLN & BEALE 1120 Connecticut Avenue, N.W.
Suite 840 Washington, D.C.
20036 202/833-9730 ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 312/558-7500 Dated:
April 26, 1982 i
i i
i 6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
) Docket No. 50-155-OLA CONSUMERS POWER COMPANY
) (Spent Fuel Pool
)
Modification)
(Big Rock Point Nuclear Power Plant)
)
l l
l CERTIFICATE OF SERVICE I hereby certify that copies of BRIEF OF CONSUMERS POWER COMPANY ON THE STATUS OF REMAINING NEPA ISSUES were hand-delivered to Judge Bloch, Judge Paris, Judge Shon, Herbert Semmel, and Janice Moore and.e_re served on the other persons listed below by deposit in the United States mail, first-class postage prepaid, this 27th day of April, 1982.
Peter B.
Bloch, Esquire Atomic Safety and Licensing Administrative Judge Board Panel Atomic Safety and Licensing U.
S.
Nuclear Regulatory Board Panel Commission U.. S. Nuclear Regulatory Washington, D. C.
20555 Commission Washington, D.
C.
20555 Atomic Safety and Licensing Appeal Board Panel Dr. Oscar H.
Paris U.
S. Nuclear Regulatory Administrative Judge Commission Atomic Safety and Licensing Washington, D.
C.
20555 Board Panel U.
S. Nuclear Regulatory Docketing and Service Section Commission Office of the Secretary Washington, D. C.
20555 U.
S. Nuclear Regulatory Commission Mr. Frederick J.
Shon Washington, D.C.
20555 Administrative Judge Atomic Safety and Licensing Board Panel U.
S. Nuclear Regulatory Commission Washington, D.
C.
20555 L:
J
. Janice E. Moore, Esquire Judd Bacon, Esquire Counsel for NRC Staff Consumers Power Company U.
S.
Nuclear Regulatory 212 West Michigan Avenue Commission Jackson, Michigan 49201 Washington, D. C.
20555 Ms. Christa-Maria Herbert Se,mmel, Esquire Route 2, Box 108C Urban Law Institute Charlevoix, Michigan 49720 Antioch School of Law 2633 16th Street, N.W.
Ms. JoAnne Bier Washington, D.
C.
20555 204 Clinton Charlevoix, Michigan 49720 Mr. John O'Neill, II Route 2, Box 44 Mr. James Mills Maple City, Michigan 49664 Route 2, Box 108 Charlevoix, Michigan 49720 M
d4seph/Galld
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