ML20054K470
| ML20054K470 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 07/01/1982 |
| From: | Finamore B, Weiss E HARMON & WEISS, National Resources Defense Council |
| To: | Ahearne J, Gilinsky V, Palladino N Atomic Safety and Licensing Board Panel |
| References | |
| 74-1586, 77-1448, 79-2110, 79-2131, NUDOCS 8207020231 | |
| Download: ML20054K470 (16) | |
Text
_
Natural Resources Defense Council,Inc. '
1725 I STREET, N.W.
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- 8 949-0049 July 1, 1982 415 482-6 6:
5 Nunzio J.
Palladino, Chairman John Ahearne, Commissioner Victor Gilinsky, Commissioner Thomas Roberts, Commissioner James Asselstine, Commissioner U.S. Nuclear Regulatory Commission Washington,' D.C.
20555 Leonard Bickwit, General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
Subject:
NRDC, et al. v.
U.S.N.R.C.,
et al.,
Nos. 74-1586, 77-1448, 79-2110, and 79-2131 (D.C. Circuit, April 27, 1982)
Dear Commissioners and Mr. Bickwit:
The District of Columbia Circuit Court of Appeals issued a decision in the above-captioned matters on April 27, 1982.
That decision, as you are aware, invalidated the Commission's Table S-3 rule insofar as it purported to treat the environ-mental impacts of reprocessing and radioactive waste disposal.
The NRC has as yet taken no action whatsoever to implement the decision of the Court of Appeals.
Although the NRC has petitioned the Court for rehearing and the mandate of the Court has therefore not yet issued, the decision has legal effect even in the absence of the mandate and cannot simply be-ignored by NRC.
See FTC v.
Beatrice Foods Co.,
587 F.2d 1225 (D.C. Cir. 1978); Stern v.
U.S.
Gypsum, Inc., 560 F.2d 865 (7th Cir. 1977).
Certainly, NRC cannot proceed to do that which has been judged unlawful by the Court.
A stay of mandate serves solely to keep the case in the appellate court pending disposition of the petition for rehearing.
Although the judgment is not " final" so long as the mandate has not issued, this does not mean that the law is as it was before judgment was entered, and the losing party is not free to proceed in disregard of the law as declared by the Court.
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Commission rs & Gnnsral Counsol July 1, 1982 Page Two For, although the appellate court'" retain [s] control of the judgment until the mandate issue [s]", Sethy v. Alameda County Water District, 602 F.2d 894, 897 (9th Cir. 1979) (per curiam),
citing Aerojet-General Corp. v. American Arbitration Ass'n, 478 F.2d 248, 253-54 (9th Cir. 1973), judgment is " entered" when the opinion is filed.
Cf. Laffey v. Northwest Airlines, Inc., 587 F.2d 1223, 1224 (D.C. Cir. 1978) (per curiam) (stay of issuance of mandate by pendency of rehearing petition does not toll filing period for bills of cost).
Based upon the court's decision, invalidating the generic rule, no new construction permits or operating licenses should issue in the absence of case-by-case consideration of the environmental impacts of waste management.
This much would seem to be clear from the decision in Vermont Yankee Nuclear Power Corp. v. N RDC, 435 U.S. at 538-39.
See also, NRDC v. NRC, D.C.
Circuit, April 28, 1982, S1. Op. at 18, n.
38.
Directions to Licensing and Appeal Boards to this effect should be issued immediately.
As for currently operating plants which were licensed pursuant to the original, interim, or final Table S-3 Rule, the Commission is obliged to consider whether construction or operation may continue pending consideration in those cases
'of the environmental impacts of nuclear waste management.
In our view, that threshold determination should be made within 30 days and is dependent upon whether there is a demonstrable need for the power generated by the facility in question during the period of time necessary to do the required consideration.
A copy of a position statement recently filed with the Court of Appeals by NRDC and the New England Coalition on Nuclear Pollution, in NRDC v. NRC, No. 74-1385, is attached.
The legal basis for our position is given at pages 9-12.
In any case, NRC should now take action to implement the Court's decision and to prevent actions which would frustrate its effect.
We are awaiting your prompt response.
Very truly yours,
. W' Ellyn R. Weiss HARMON & WEISS 1725 I Street, NW, Suite 506 Washington, D.C.
20006 (202) 833-9070
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Commissioners & General ~ Counsel July 1, 1982 Page Three 1
J Barbara A. Finamore NATURAL RESOURCES DEFENSE COUNCIL Attorneys for Natural Resources Defense Council', Inc.
Enclosure l
l I
4
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m.w e _
P230 IN THE i
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
? ^ I.. g ['
)
NATURAL RESOURCES DEFENSE COUNCIL, INC.)
and
)
NEW ENGLAND COALITION ON NUCLEAR
)
POLLUTION, INC.,
)
)
Petitioners, )
)
v.
)
No. 74-13 85
)
UNITED STATES NUCLEAR REGULATORY
)
~ COMMISSION
)
and
)
UNITED STATES OF AMERICA,
)
)
Respondents. )
)
STATEMENT BY NATURAL RESOURCES DEFENSE COUNCIL, INC.
AND NEW ENGLAND COALITION ON NUCLEAR POLLUTION, INC.
IN RESPONSE TO COURT ORDER DATED JUNE 9, 1982.
1.
Preliminary Statement On June 9, 1982, this Court issued an Order requiring each party in the various cases involving the Nuclear Regulatory Commission's Table S-3 Rule to file a pleading setting forth l
the status of their particular proceeding in light of prior l
l decisions by this Court and the Supreme Court.
Th is. S ta temen t is the response of Natural Resources Defense Council, I n c.'
l (NRDC), and New England Coalition on Nuclear Pollution, Inc.
l (NECNP), in relation to No. 74-1385, involving review of the l
license for the Vermont Yankee Nuclear Pober Plant, f
I 1
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1
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2.
Statement of Factual Background The f acts of this case have previc usly been set f orth in great detail in prior briefs filed in this Coord,$/ and in
~
opinions by this Court 2/andtheSuprdimeCourb.3/
In
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particular, this Court's decision of April 27, 1982 in Nes.
s
/
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74-1586 et al., sets out the f acts as relevant to the[ Vermont r,
Yankee licensing proceeding (Slip Opinion, pp. 12-28).
As a result, the facts will be repeated here only as directly, e
pertinent to the current posture of the Vermont Yankee r
proceeding, and to our request herein that this Court, without further briefing, promptly set aside and remand the licensure j
order for the Vermont Yankee plant to the Commission for further proceedings.
NRDC and NECNP originally brought this review proceeding asking that the full-power, full-term operating license of
/
Vermont Yankee "be set aside as unlawful and that the proceeding be remanded to the Commission for preparation of a 1/
- See, e.g.,
Brief f or Petitioners NRDC and NECNP, pp. 3-8 TD.C. Cir., No. 74-1385) (hereaf ter "NRDC Brief"). ~
2/
Natural Resources Defense Council, Inc. v. NRC, F.2d (D.C. Cir., April 27, 1982), Nos. 7 4-15 86, 7 7-14 4 8, 79-21]D7 and 79-2131 (hereaf ter " Slip Opinion"); Natural Resources ~ Defense Council, Inc. v. NRC, 547 F.2d 633.(D.C. Cir.
3976).
3/' Vermont Yankee Nuclea Poker Corp. v. NRDC, 4 3 5 U. S. 519 '
T1978).
i
/
' /,,
4 p
I i
f 4 revired FES that would include a detailed statement of the full i
/- /
environmental impact of the spent fuel reprocessing and high level waste disposal which would result from operation of the Vermont Yankee nuclear power f acility."
NRDC Brief, p. 33.
NRDC and NECNP argued that these impacts were required by law
-to be considered in the final environmental statetent (FES) and waighed by the Commission in the balance when deciding whether to license the Vermont Yankee plant.
In fact, the Commission had excluded consideration of these impacts both in the FES and in the decision process on the Vermont Yankee license.
Indeed, the genesis of the Table S-3 i
Rule occurred in the Vermont Yankee proceeding as a result of
. Appeal Board rulings excluding consideration of the effects of fuel cycle activities.
NRDC and NECNP had served i
i interrogatories seeking to elicit information on the environmental effects of the reprocessing and disposal of l
Vermont Yankee's high-level racioactive wastes.
The Licensing Boa:d sustained objectio's to the interrogatories, reasoning n
that they went to Matters not at issue in the licensing procee"ing.
(Joint Appendix, "J.A." 8.)
On intarlocutory appeal, the Appeal Board affirmed the 1
Licensina Board on the theory that reprocessing and waste i
disposal were not required by NEPA to be considered in connection with an individual plant.A/
On this basis, the l
l 4/
Vermont Yankee Nucleac sower Corp., ALAB-56, 4 AEC 930 (June G,: 1972).
The Appe'Ti Board's decision on this was final under delegation of authority from the Commission.
10 CFR 5 2.785 (a) (1).
____u
_ revised impact statement on the Vermont Yankee plant, filed July 10, 1972, contained no information on the environmental effects of the back end of the nuclear fuel cycle.
Nevertheless, in response to the Appeal Board ruling, the Commission by Notice of November 15, 1972, initiated a rulemaking to determine whether and how the environmental ef fects of the fuel cycle should be considered in the cost / benefit analysis of individual plants.
37 Fed. Reg. 24191 (Nov. 14, 1972).
But while this rulemaking was in progress, the Appeal Board on February 28, 1974, granted a full-power, full-term license to Vermont Yankee.
The Appeal Bc rd rejected NRDC's continuing objection to the f ailure to include the environmental costs of the back end of the fuel cycle in the impact statement or the cost / benefit balance.E!
NRDC then sought review of the issue in this Court in No. 74-1385.
Thus, when the Vermont Yankee license.was issued, absolutely no consideration had been given to the effects of the back end of the fuel cycle in the Vermont Yankee proceeding.
Subsequently, the Commission has been straining to develop a valid, generic Table S-3 Rule.
But, as this Court ruled on April 27, 1972, none of the Table S-3 versions is lawful under NEPA.
And in fact only the interim Rule was ever applied in 5/
Vermont Yankee Nuclear Po wer Corp., ALAB-179, 7 AEC 159, 763 (1974).
?
, the Vermont Yankee proceeding.5/
While the Commission engaged in considerable backing and filling in reviewing the Vermont Yankee license af ter the decision in Vermont Yankee I,1/ in April 1977 the Commission ordered the Appeal Board to reconsider the cost-benefit balance of several nuclear power plants, including Vermont Yankee.
As this Court has noted, "the Board strongly implied that its interpretation of that aspect [ treatment of uncertainties) of the Table could alter the outcome of particular decisions."
(Slip Opinion, pp. 23-24.)
Nevertheless, the Boara believed that the Commission's vision of the interim Rule did not allow consideration of uncertainties, and held that application of the interim Rule did not change the cost-benefit balance of the Vermont Yankee plant.S/
l 6/
The original Table S-3 Rule was not applied to the Vermont Yankee plant because the Commission specifically exempted an t
FES if previously circulated in draft form.
39 Fed. Reg.
14188, 14919 (April 22, 1974).
No attempt was made to apply the final Table S-3 Rule to Vermont Yankee.
The final Rule was applicable only to environmental reports submitted on September l
4, 1979, or thereafter.
44 Fed. Reg. 45371, col. 3 (Aug. 2, 1979).
7/
See the discussion at Slip Opinion, pp. 21-24.
8/
Vermont Yankee Nuclear Poker Corp., ALAB-392, 5 NRC 759, 765 n.7 (1977), ALAB-421, 6 NRC 25, 30-32 (1977) (Farrar concurring).
The Supreme Court held that the NRC's application of the interim S-3 rule to the Vermont Yankee proceeding (ALAB-421, 6 NRC 25 (1977) does not render moot,the issue of wnether the NRC must now reexamine Vermont Yankee's license in light of this Court's April 27, 1982 decision.
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519, 535 n. 14 (1978).
l
. As this brief recitation of the f acts shohs, the uncertainties and the health, socioeconomic, and cumulative effects of fuel cycle activities have never been factored into
' the decisional process on the Vermont Yankee plant.
3.
Suggestions For Disposition We start with the fundamental proposition, on which there now can be no serious disagreement, that the National Environmental Policy Act (NEPA) requires that the environmental effects of the waste generated by individual nuclear power reactors must be subject to analysis in an impact statement.
This Court ruled in Vermont Yankee I:
Decisions to license nuclear reactors which generate large amounts of toxic wastes requiring special isolation from the environment for several centuries are a j
paradigm of " irreversible and irretrievable commitments of resources" which must receive
" detailed" analysis under $102(2) (C) of NEPA.
Natural Resources Defense Council, Inc. v. NRC, 178 U.S. App.
D.C.
336, 344, 547 F.2d 633, 641 (1976).
The Commission has accepted this ruling, has stated that its Appeal Board's decision to the contrary "had no further i
precedential significance," 44 Fed. Reg. 45363, col.
1-2,
45365, n. 7 (J. A. S. I-7 3, 75), and specifically adopted the Table S-3 technique as its method to comply with NEPA.
l l
, The Supreme Court did not disturb this Court's ruling, finding no need to pass on it due to the Commission's acquiescence in it.
Nevertheless, the Court cautioned that "it is hard to argue that these wastes do not constitute ' adverse environmental effects which cannot be avoided should the proposal be implemented,' or that by operating nuclear plants we are not making ' irreversible and irretrievable commitments o5 resources'."
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S.
519, 539 (1978).
Equally unarguable is the proposition that the impact statement for the Vermont Yankee plant contained no discussion of the environmental ef fects of the plant's waste, and that no lawful Table S-3 Rule has ever been applied to the Vermont Yankee proceeding.
This is because the original Table S-3 Rule l
was promulgated af ter the Vermont Yankee license issued, and exempted previously draf ted impact statements.
The interim Rule, which was applied to Vermont Yankee to determine whether the cost-benefit balance
~x os a f fected, has now been ruled legally invalid on two grounds:
(1) that it failed to properly allow in individual licensing proceedings consideration of the uncertainties surrounding ultimate waste disposal, and (2) tha t it did not properly account for the health, socioeconomic, and cumulative effects of fuel cycle activities.
And the final Table S-3 Rule, now also unlawful based on its preclusion of consideration of uncertainties in individual licensing proceedings, has never been applied to Vermont Yankee.
l
C
. In this context, it seems clear to us that the Court must set aside the Vermont Yankee license as unlawfully issued and remand it to the Commission for preparation of an impact statement which proper 3y takes into account the uncertainties as well as the health, socioeconomic, and cumulative effects of the back end of the fuel cycle.
Presumably, the Commission could do this by requiring an individual presentation in this case, or by application of a new Table S-3 Rule complying with this Court's directive in Nos. 74-15 6 6, et a l., provided a new rule is promulgated expeditiously.EI After properly accounting for these effects, the Commission should once again balance the costs and benefits of the Vermont Yankee plant with these additional impacts and costs now weighed in the balance.
This much would seem commanded by prior proceedings in this case.
In Vermont Yankee I, this Court held that the environmental impact of the back end of the fuel cycle must be considered in individual licensing proceedings unless a valid I
generic rule had been properly applied.
And since the Vermont Yankee license had been granted without individual l
i consideration or the application of a valid generic rule, the 1
relief described by this Court was a remand to the Commission.2E/
5 4 7 F. 2d a t 6 41.
{
9/
Compare Vermont Yankee I, 547 F.2d at 641, n.17.
10/
As this Court has noted, the Commission has not argued teat the enviror..nental ef fects of f uel cycle activities are insignificant, and such an argument would appear unsound.
Slip l
Opinion, p. 33.
I i
, Vermont Yankee II confirmed that a remand of the Vermont Yankee license is the appropriate relief in this case if the 9
interim Rule is invalid.
Addressing what might occur on remand to this Court, the Supreme Court observed:
Should [this Court] hold the interim rule invalid, it appears in all probability that the Commission will proceed to promulgate a rule resulting from rulemaking proceedings currently in progress.
[ Citation omitted.]
In all likelihood the Commission would then be required, under the compulsion of the Court's order, to examine Vermont Yankee's license under this new rule.
[ Emphasis added.]
435 U.S. at 536.33/
In short, a prompt remand is the only disposition which is consistent with the law of this case.
NRDC does not seek at this time to have the Court effect a halt to the operation of Vermont Yankee.
We do ask the Court to order the NRC immediately to address the preliminary question of whether or not Vermont Yankee should be permitted to operate and generate nuclear waste although the issuance of its license did not comport with NEPA and no valid consideration of the environmental effects of nuclear waste management has ever been made.
1 11/ The Table S-3 Rules, in all versions, are invalid for failure to allow for a full accounting of environmental costs i
and effects in individual licensing proceedings.
Therefore, any assertion that Table S-3 need not be applied to previously
[
licensed plants because the costs tabulated are relatively insignificant is without merit.
A plant may be lawfully l
licensed only when all costs are included in the balance on an j
individual plant.
. When NRC weighs the environmental costs of the licensing of nuclear plants against the benefits, pursuant to NEPA, the benefits side of the equation is satisfied only by
- demonstrating a public need for the power to be generated by the plant in question.
A demonstration by the applicant that "there is 'a genuine need for the electricity to be produced' is an essential element in approval of a license for a nuclear g
facility."
Niagara Mohawk Power Corp.
(Mine Mile Point i
Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 352 (April, 1975); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-179, RAl-74-2, 159, 175 (February, E
f.
1974); United States Energy Research and Development i
i Administration, et al.
b (Clinch River Breeder Reactor, Plant),
[
. CL I-7 6-13, 4 NRC 67, 77-78 (August, 1976).
h The NRC Appeal Board 's seminal ruling on the application of NEPA established that, unless there is a demonstrable need for the power, there is no justification for incurring the environmental costs associated with a facilityi J
At the outset, inquiry must be made into whether there exists a genuine need for the electricity to be produced.
This inquiry involves not only an analysis of existing 5
generating capacity and of projections of g
l expected growth, but also consideration of 6
the possibility that measures to curtail s
consumption will be initiated.
In this e
regard, appropriate attention must be given B
to energy conservation considerations, 5
insofar as they affect the likelihood that iri predicted demand will in fact occur.
$1 At the same time, however, cognizance can be taken ij of the effect which a shortage of fossil g
fuel, or a need to divert that fuel to other si uses, might have upon demand for non-fossil se fueled generating sources, Q
f5
==
=b 1
P a On the basis of this information, a preliminary decision can be made as to the extent to which some f orm of gen ? rating facility appears to be justified.
Even a decision favorable to the applicant on this e
score does not, of course, mean chat a 4
proposed nuclear facility designed to meet the predicted demand will pass muster.
The Commission must still examine the proposal in light of all of NEPA's purpose.
At that stage, however, the focus shif ts to the relative costs and benefits of alternatives to the proposed facility.
Consideration of alternatives to the proposed project must be wide-ranging, embracing, inter alia, alternative generating methods, alternative sites, and alternative auxilary equipment (e.g., cooling towers).
Consideration of these subjects requires a comparison of the relative benefits achieved and costs incurred under each of the alternative proposals, so that the optimum alternative may be selected.
Finally, an overall balancing of costs and benefits occurs, but it is not necessary for this purpose to attempt to place a dollar value on the benefits of the electricity to be produced.
Instead, on a qualitative basis, the costs associated with the optimum alternative selected must be balanced against the benefit achieved by meeting the degree of demand anticipated.
To be sure, if the f acility will satisfy a real demand for electricity that cannot be met by the purchase of power from other systems, then the result of the balancing may be a foregone conclusion in that, as indicated above, the alternative of not meeting the demand is unthinkable.
Vermont Yankee Nuclear Poker Corp., supra, a t 17 5-17 6 (emphasis added).
l Thus if there is no need for the facility, the inquiry l
stops and the license may not issue.
Only if there is a need l
does the remainder of the NEPA analysis -- the consideration of alternatives and the overall cost-benefit balancing -- become necessary.
Since the Vermont Yankee licensing decisions have l
. never included any meaningful consideration of the environmental costs of reprocessing and waste disposal, the operation of that plant and the consequent generating of nuclear waste should not be permitted to continue unless it can be established now that its operation is essential to ensuring an adequate supply of power to the customers served by the plant during the period of time required to assess the environmental effects of waste management.
This approach is consistent with the dictates of NEPA as described by NRC in the above-quoted decision:
the environmental costs of nuclear waste generation, of as-yet uncertain dimension, are not justifiable in any case absent a genuine need for the plant.
Therefore, NRDC and NECNP ask the Court to direct the NRC to determine within one month whether the continued operation of the Vermont Yankee plant is necessary, considering all factors relevant to current energy demand and capacity and the availability of measures to control consumption, and/or to increase capacity.
If NRC does not determine that the operation of Vermont. Yankee is necessary, it should be directed to cease operation until the NRC has, pursuant to NEPA, fully i
considered the environmental effects of nuclear waste reprocessing and disposal in accordance with the Court's decision of April 27, 1982.
CONCLUSION For the foregoing reasons, NRDC and NECNP respectfully request that this Court issue an Order setting aside the
' t *..,
., Vermont Yankee license, and remanding the proceeding to the Nuclear Regulatory Commission to prepare an FES which includes all the environmental effects of fuel cycle activities, as set forth in this Court's April 27, 1982, decision in Nos. 74-1586, et al., and to recalculate the cost-benefit balance on the basis of the additional information.
In addition, a prompt determination should be made on whether there are alternative sources of power available to replace that now being generated by the Vermont Yankee plant, and, if so, the license should be suspended pending the outcome of the remand proceedings.
Respectfully submitted, N
Ronald J. Wilson ' N.W. {
/
810 18th Street, Washington, D.C.
20006 (202)628-3160 I
Ba'rbara A.
Finamore 1725 I Street, N.W.,
Suite 600 Washington, D.C.
20006 (202)223-8210 Attorneys for Natural Resources Defense Council, Inc., and New England Coalition on Nuclear Pollution, Inc.
l June 24, 1982
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Dated:
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