ML20052G822
| ML20052G822 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 05/17/1982 |
| From: | Bachmann R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 8205190029 | |
| Download: ML20052G822 (10) | |
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05/17/82 DESIGNATED ORIGINAI) ~
W Cortifica Dy UNITED STATES OF' AMERICA Q$O7 NUCLEAR REGULATORY COMMISSION BEFORETHEATOMICSAFETYANDLICENSINGBbRD In the Matter of
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CONSUMERS POWER COMPANY Docket No. 50-155 (Big Rock Point Plant)
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(Spent Fuel Pool Modification)
NRC STAFF BRIEF ON NEPA ISSUES I. INTRODUCTION On March 1, 1982, during an on-the-record telephone conference, the Chairman of the Atomic Safety and Licensing Board (Board) requested that pretrial briefs 1/ e filed by the parties "on the outstanding NEPA issues b
left after the Appeal Board's decision."2_/ Tr. at 267.
The briefs were to address two issues:
1.
In light of the Staff's Environmental Impact Appraisal (EIA), which was issued on May 15, 1981, whether an Environmental Impact Statement (EIS) on the expansion of the spent fuel pool is called for; and 2.
Whether the Board is required to consider alternatives to the expansion by Section 102(2)(E) of NEPA. Tr. at 268.
On April 27, 1982, Consumers Power Company (Licensee) filed its brief on the status of remaining NEPA issues.
The Licensee argued inter alia that (1) the decision to require an EIS should be made only after 1/ These briefs were originally scheduled to be filed with the written testimony on May IC, 1982.
During the conference held on May 6, 1982, the Bo_ard extended the filing date to May 17, 1982.
7 2_/ This statement refers to the Atomic Safety and Licensing Appeal b30 Board's (Appeal Board) decision on Consumers Power Company (Eig
/
Rock Point Nuclear Power Plant) ALAB-636,13 NRC 312 (1981)
(discussed infra) which involves issues concerning the National I/
Environmental Policy Act of 1969, 42 U.S.C. 9% 4321 et seq. (NEPA).
8205190029 820517 PDR ADOCK 05000155 G
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an evidentiary determination on the adequacy of the Staff's EIA, (2) a i~
discussion of alternatives is not proper prior to litiga-ting thw adequacy l
of the EIA's finding that there are no unresolved co'nflicts about n
alternative uses of available resources, and (3) the Staff's discussion of alternatives in the EIA should not be admitted into evidence absent a i
determination by the Board that an EIS must be prepared or consideration of alternatives is required by Section 102(2)E of NEPA. The Staff agrees with the Licensee on the first two points.
Furthermore, the Staff has removed its discussion of alternatives from the EIA.
]
For the reasons discussed below, the Staff's position is that an evidentiary hearing must be held before a decision on an EIS can be made l
and there is no need to consider alternatives to the proposed action.
1 II. DISCUSSION A.
The Licensing Board Should Consider the Record Developed at the Evidentiary Hearing on the Adequacy of the EIA's Findings Prior to Determining the Necessity for the Preparation of an EIS In Big Rock Point, ALAB-636, supra, the Appeal Board found that a l
reasonable application of NEPA did not require the preparation of an EIS on the continued plant operation likely to result from the proposed 4
expansion of the spent fuel pool, thus reversing the prior decision of l
the Licensing Board. 13 NRC at 333. The Appeal Board also directed the Licensing Board to reconsider its order to the Staff to prepare an EIS 1
on the spent fuel pool itself, and to await the issuance of the Staff's EIA before making a decision. Id.
)
As noted above, the Staff issued its EIA on May 15, 1981.
In the conclusion of-the EIA, the Sta'ff stated:
The NRC Staff has reviewed this proposed facility modification relative to the requirements set forth in 10 C.F.R. Part 51 of the Commission's regulations.
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The staff has determined, based on this assessment, that the proposed license amendment will not signifi,
cantly affect the quality of the human environment.
Therefore, the Commission has determined that an environmental impact statement need not be prepared,
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and that, pursuant to 10 C.F.R. 51.5(c), the issuance of a negative declaration to this effect is appropriate.,
EI A at 14.
Since the Staff has made that determination, the issue before the
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Board is whether the Staff's conclusion is supported by the evidence.
l The proper relationship between an adjudicatory board and the Staff i
should be analogous to that of a reviewing court and an administrative Offshore Power Systems, Inc. (Floating Nuclear Power Plants),
l agency.
ALAB-489, 8 NRC 194, 203 (1978). The documents prepared by the Staff are subject to review and amendment by a Board in an adjudicatory setting where all the parties to a proceeding n.ay participate in evidentiary hearings.E New England Power Co., (NEP Units 1 and 2), l.BP-78-9, 7 NRC 271, 279 (1978). The Board's review is expected to be independent, and to resolve the appropriate contentions of the various parties. Consumers Power Co. (Midland' Plant Units 1 and 2), ALAB-123, 6 AEC 331, 335 (1973).
The purpose of the Board's review is also for the Board to assure itself
- As stated in 10 C.F.R. % 51.52(d):
In an proceeding in which a hearing is held for the issuance of a permit, license, or order, or amendment thereto or re-newal thereof, where the Director of Nuclear Reactor Regula-tion or Director of Nuclear Material Safety and Safeguards i
or their designee, as appropriate has determined that no I
environmental' impact statement need by prepared for the parti-cular action in question, any party to the proceeding may take a position and offer evidence on the aspects of the proposed action covered by NEPA and this part in accordance with the provisions of Subpart G of Part 2 of this chapter.
In such proceedings, the presiding officer will decide any such matters in controversy among the parties.
. s that the Staff's review has been adequate, and to inquire further into areas in which the Board may perceive problems or find a'need f'or more elaboration.
Id.
If the Board finds the Staff's review in question inadequate, then the Board may reject the application before it or require further development of the record. H.
The only matter in controversy concerning the adequacy of the Staff's EIA is O'Neill Contention No. VIII which was restated and admitted by the Board in Consumers Power Company (Big Rock Point Nuclear Plant),
LBP-80-25, 12 NRC 355 (1980). As admitted the Contention is as follows:
An environmental review of the proposed spent fuel g
pool expansion is necessary under Section 102(2)(C) of NEPA and would indicate that the environmental costs of this expansion exceed the benefits.
Id. et 366.
Section102(2)(C)ofNEPAN requires the preparation of an EIS for any major federal action which significantly affects the quality of the human environment. Therefore, it is this determination that the Board must make before an EIS can be required.
In order to make the determina-tion, the Board should have the Staff's EIA on the record before it, i.e.,
allow the Staff to place the EIA into evidence.
Big Rock Point, ALAB-636 supra, at 331. Then the Board and parties would have the " chance to define or challenge the content and conclusions of the document during the course of the hearing." M.
Therefore, it is the Staff's position that any decision concerning the issuance of an EIS must await the introduction of the Staff's EIA into evidence and a resolution of its adequacy at the hearing.
U 42 U.S.C. 9 4332(2)(C).
. t B.
In The Circumstances Of This Case, The Consideration Of Alternatives Pursuant To Section 102(2)(E) Is Not Necessary In Bih Rock Point, ALAB-636, supra, the Appeal Board remanded the issue of the consideration of alternatives under Section 102(2)(E) of NEPA_/ to the Licensing Board. 13 NRC at 332. The Appeal Board noted 5
that if the Staff concluded that an EIS was appropriate, the consideration of alternatives would be mandatory.
Id.
Such is not the case. Therefore, unless the Licensing Board ultimately determines after an evidentiary hearing that an EIS is required, a discussion of alternatives must be based on Section 102(2)(E).
Section 102(2)(E) of NEPA requires the consideration of alternatives to an action by a Federal agency where the action involves an unresolved conflict in alternative uses of resources.
The statute does not define what is meant by tt)e term " resources".
However, the legislative history relating to Section 102(2)(E) provides some guidance in this area. The Senate, in its section-by-section analysis of the bill interprets Section 102(2)(E) as follows:
... Wherever agencies of the Federal government re;ommend courses of action which are known to involve unresolved conflicts over competing and incompatible uses of land, water, or air resources, it must be the agency's responsibility to study, develop, and describe appropriate alternatives to the recommended course of action..."
S. Rep.91-296, July 9, 1969, 91st Congress, 1st Sess. This analysis was adopted in the House-Senate Conference Report considered on December 20, 1969.
See 115 Cong. Rec. 40420 (1969).
5_/ 42 U.' L. 6 4332(2)(E).
. t In an earlier spent fuel pool modification proceeding, it was found that the proposed license amendment did not involve any tommitnient of available resources respecting which there was an unresolved conflict in their alternative uses, and thus the need to consider alternatives under Section 102(2)(E) was not triggered.
See Portland General Electric Co. (Trojan Nuclear Plant) ALAB-531, 9 NRC 263, 265 (1979). The Appeal Board in Trojan reviewed the " resources" in question as those which went into the construction of the racks for the spent fuel pool.
Id. at 266.
The Appeal Board's view is supported by court decisions on the applica-bility of Section 102(2)(E) of NEPA to particular projects. Trinity Episcopal School Corp. v. Romney, 523 F.2d 88 (2nd Cir.1975); City of New Haven v. Chandler, 446 F. Supp. 925 (1978).
Trinity, supra, involved a dispute over whether a particular parcel of land should be used for middle or low income housing. City of New Haven v. Chandler, supra, involved the construction of transmission towers next to a bridge in the New Haven harbor. The resource of concern in these cases seems to be land which would be in agreement with the definition of resources suggested by the legislative history of 6102(2)(E) of NEPA.
The resources in Trojan, ALAB-531, supra, namely the materials that go into making the new spent fuel racks, in part are derived from minerals which are natural resources j
taken from the Nation's land. It is this type of resource which NEPA was i
I intended to protect.
See Virginia Electric and Power Co. (North Anna Nuclear Power Station), ALAB-584,11 NRC 451, 458 (1980).
Since the Appeal Board in Big Rock Point, ALAB-636, supra, cited North Anna with approval, there is a strong implication that it agreed I
l with the characterization of " resources".
See ALAB-636, supra at 332.
. t The Staff applied this standard in t'he instan,t proceeding and made findings as follows:
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In order to carry out the proposed modification, the licensee will require racks fabricated of stainless steel. The construction of the new racks will require the commitment of 63,000 pounds of stainless steel. The amount of stainless gteel i
used annually in the U.S. is about 2.82 X 10 pounds. Thus, the amount of stainless steel required for fabrication of the new racks is a small fraction of this resource consumed annually in the U.S.
We conclude that the amount of stainless steel required for the racks for the proposed modification is insig-nificant and does not represent an irreversible com-mitment of natural resources. We also conclude that there are no unresolved conflicts in alte.rnative uses of available resources associated with the fabrication of the new stainless steel racks.
EIA at 13-14.~
The Courts have held and the Staff does not dispute, that Section 102(2)(E) could require consideration of alternatives whether or not an environmental impact statement is required.
Monarch Chemical Works, Inc.
- v. Thone, 604 F.2d 1083 (8th Cir. 1979). Trinity, supra; Joseph v. Adams, 467 F. Supp. 141, 158 (E.D. Mich. S.D. 1978).
The CEQ regulations also recognize that an environmental impact appraisal should contain: "an analysis of alternatives as required by Section 102(2)(E)." 40 C.F.R. 1508.9(b).
However, where as here, the action does not present an unresolved conflict of alte. native uses of resources, those resources to be defined as the materials to be used in manufacturing and installation of the new spent fuel stora5e racks, then it is the Staff's position that Section 102(2)(E) does not require con-l sideration of alternatives to the proposed action.E ee EIA at 13-14.
S O n view of the Staff's determination that Section 102(2)(E) does I
not apply in this proceeding, those sections of the EIA in which l
alternatives are discussed have been removed prior to the Staff's submittal of the EIA into evidence.
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. s Under these circumstances it is for this Board to determine whether unresolved conflicts in alternative uses of available resources., exist.
Based on the Staff's conclusion in the EIA, it is now up to the Inter-venors to bring into legitimate question the correctness of this conclu-sion.
North Anna, ALAB-584, supra at 458. When the record is eveloped with the inclusion of the EIA as evidence, and the Intervenors= have had the opportunity to challenge the Section 102(2)(E) conclusions, the Board could determine the need to consider alternatives.
See Big Rock Point,
'n ALAB-636, supra at 332.
III. CONCLUSION
' I.*
For the reasons stated above, (1) an evidentiary hearing is required on the Staff's EIA before a decision can be made on the need for an EIS, and (2) in the circumstances of this case, the considerationiof>alterna-tives pursuant to Section 102(2)(E) is not necessary unless the Board finds as a result of the record developed at the evidentiary hearing that i
an unresolved conflict exists over competing and incompatibls dses of resources.
Respectfully submitted, M
d Richard G. Bachmann Counsel for NRC Staff Dated at Bethesda, Maryland this 17th day of May,1982 r
UNITED STATES OF AMERICA 5
NUCLEAR REGULATORY C0191ISSION BEFORE THE ATOMIC SAFETY AfiD LICENSING B0ARD
_a In the Matter of
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CONSUMERS POWER COMPANY Docket No. 50-155
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np (Big Rock Point Plant)
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(Spent Fuel Pool Modification) j eh CERTIFICATE OF SERVICE n.:
I hereby certify that copies of "NRC STAFF BRIEF ON NEPA ISSUES" 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 Commission's internal mail system, this 17th day of May; 1982:
Peter B. Bloch, Chairman Joseph Gallo, Esq.
Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board 1120 Connecticut Ave,,N.W., #32S U.S. Nuclear Regulatory Comission Washington, D. C.,
20036 Washington, D.C.
20555
- t John A. Leithauser Dr. Oscar H.. Paris Leithauser and Leithauser, P.C.
Administrative Judge Opal Plaza, Suite 212 Atomic Safety and Licensing Board 18301 Eight Mile Road U.S. Nuclear Regulatory Commission East Detroit, MI 48021 Washingtcn, D.C.
20555
- John O'Neill, II Mr. Frederick J. Shon Route 2, Box 44
, Administrative Judge liaple City, Michigan 49664 Atomic Safety and Licensing Board i
U.S. Nuclear Regulatory Commission Christa-Maria Washington, D.C.
20555 *
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Route 2, Box 108c Charlevoix, MI 49720 Philip P. Steptoe, Esq.
Michael I. Miller Esq.
Ms. JoAnne Bier
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Isham, Lincoln & Beale 204 Clinton 4
One First National Plaza Charlevoix, MI 49720 6
Suite 4200 Chicago, Illinois 60603
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- Atomic Safety and Licensing Mr. Thomas Dannann Appeal Board Panel Route 3, Box 241 Y
U.S. Nuclear Regulatory Commission Charlevoix, MI 49720
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Washington, D. C.
20555 Judd L. Bacon, Esq.
- Atomic Safety and Licensing Consumers Power Co.
Board Panel 212 West Michigan Avenue U.S. Nuclear Regulatory Comission Jackson, MI 49201 Washington, D. C.
20555 Mr. Gordon Howie
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- Docketing and Service Section 411 Pine U.S. Nuclear Regulatory Comission Boyne City, MI 49712 Washington, D. C.
20555 Mr. Jim Mills '
Herbert Semmel, Esq.
Route 2 Box 108 Urban Law Institute of Charlevoix, MI 249720 The Antioch School of Law II
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1624 Crescent Place, N.W.
Washington, D. C.
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