ML20054K506
| ML20054K506 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 07/01/1982 |
| From: | Edgar G, Silverstrom L ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP. |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8207020264 | |
| Download: ML20054K506 (39) | |
Text
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DillGINAL UNITED STATES OF AMERICA , -
P7;O NUCLEAR REGULATORY i:0MMISSION M[
In the Matter of )
)
UNITED STATES DEPARTMENT OF ENERGY )
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PROJECT MANAGEMENT CORPORATION ) Docket No. 50-53 7
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TENNESSEE VALLEY AUTHORITY )
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(Clinch River Breeder Reactor Plant) )
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APPLICANTS ' MEMORANDUM IN SUPPORT OF REQUEST TO CONDUCT SITE PREPARATION ACTIVITIES R. Tenney J ohnson Leon Silverstrom Warren E. B ergholz Attorneys for United S tates Department of Energy George L. Edgar Thomas A. S chmutz Attorneys for Proj ect Management Corporation DATED: July 1, 1982 ,
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UNITED STATES DEPARTMENT OF ENERGY )
) f PROJECT MANAGEMENT CORPORATION ) Docket No. 50-53 7
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TENNESSEE VALLEY AUTHORITY )
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(Clinch River Breeder Reactor Plant) )
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APPLICANTS' MEMORANDUM j IN SUPPORT OF REQUEST TO CONDUCT SITE PREPARATION ACTIVITIES The United States Department of Energy (DOE) and Project Management Corporation, acting for themselves and on behalf of the Tennessee Valley Authority (the Applicants),
hereby submit this memorandum in support of request for autho-rization to conduct site preparation activities pursuant to 10 C .F .R. S 50.12 BACKGROUND f
The Clinch River Breeder Reactor Plant (CRBRP) 2-m project was originally authorized by the Congress in 1970, and is the subject of an application to the Nuclear Regulatory 4
Commission (NRC) for a Construction Peruit under Section w
104(b) of the Atomic Energy Act of 19 54, as amenced, 42 U.S.C.
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Section 2011 jui seg. Af ter the application was docketed in $
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April of 19 75, the NRC review progressed to the point that by h
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J March 28, 1977, the NRC had: (1 ) issued a Final Environmental Statement (FES) which recommended the grant of a Construction
. P e rmit; (2) issued a Site Suitability Report which found that the site is suitable from the standpoint of radiological health and safety; and (3) ordered hearings to commence on June 14,1977 and run in continuous session until comple-tion. On this basis, it was anticipated that the project would obtain NRC authorization to commence site preparation activities no later than March, 1978.
On April 20, 1977, President Carter announced the previous Adminis tration's decision to cancel the CRBRP pro-ject, and in response, the Energy Research and Development Adminis tration (ERDA) reques ted and obtained suspens ion of the hearings from the Licensing Board. Subs equently, th,e NRC S taf f discontinued its review of the application, and disbanded the organization it had assembled for that review.
During each of the ensuing four years, the previous Administration sought to cancel the project, while the Congress acted to preserve it by providing subs tantial funding. In the meantime, the project continued design and
- engineering R&D to near comple* i -o. By April,19 82, more than l
S600 million of hardware Ft> eco placed on order. The p roj ect , however, was unable to make any progress in the NRC licensing process which would lead to commencecent of site p repa ra tion. As a result, the proj ect schedule was extended f
by more than four years and its cos ts increased by more than S800 million.
lDn October 8, 19 81, Pres ident Reagan in a major policy statement, stated that he was " directing that gove rnment agencies proceed with the demons tration of breeder reactor technology, including completion of the Clinch River B reede r Reactor. "
In response to the Congressional and Executive directives, on November 30, 19 81, the Secretary of Energy reques ted NRC authorization to begin site preparation activities pursuant to 10 CFR s 50.12. Although the Commission found that the firs t three factors under Section 1/
50.12 had been met,- a majority of the Commission voted agains t the reques t on the ground that the Department had not demonstrated that grant of the reques t was in the public 2/
i nt e res t.-
In May, 1982, the DOE issued a Final Supplement to the LMFBR Program Environmental Statement. The DOE program called for in the LMFBR Program Environmental S tatement is i
construction of CRBRP as expreditiously as possible.
-1/ United S tates Department of Energy (Clinch River Breeder Reactor Plant) CLI-82-4 (March 16, 19 82)
(Separate views of Chairman Palladino at 1, C ommis-stoners Ahearne at 13-15, Roberts at 2, Bradford at 2).
2/ Id. Separate views of Commissioners Ahearne at 39, Bradford at 2, Gilinsky at 9.
On June 11, 1982, the NRC staff issued a revised Site Suitability Report (SSR) for the CRBRP. The SSR again
- found that the site is suitable from the s tandpoint of radiological health and safety.
SUMMARY
In granting Applicants' reques t to begin site preparation activities pursuant to 10 C.F.R. S 50.12, th e
' Commission would not waive any requirements of the National Environmental Policy Act, (NEPA) or the Atomic Energy Act (AEA) . In light of the conclusions of the 1977 FES, the analysis in the SPAR, the NRC Staf f's favorable of review of Applicants site preparation activities, and the Commission's finding that the activities will not cause signficant envi-ronmental impacts, all requirements of NEPA have been satisfied. In addition, the AEA does not contain any pro-visions or requirements which prohibit the conduct of site preparation activities at this time. Finally, grant of this reques t would not obviate any step of the Commission's established licensing pr.ocess -- all environmental and safety findings required by NRC regulations will be made prior to the issuance of a Construction Permit.
Under these circumstances and for the reasons stated below, the Commission should exercise its authority under Section 50.12 and grant Applicants' r eq ues t. In light of the exhaustive environmental analysis of the proposed
site preparation activities, the Commission is assured that the impacts of the proposed activities will not be signifi-cant.
In addition, the Applicants have clearly demons trated that the activities are redressable and that no alternatives will be foreclosed. In light of es tablished national policies and the programmatic, informational and monetary benefits resulting from grant of the reques t, and the absence of any countervailing factors, grant of the reques t is clearly in the public interes t. F inally, the Executive Branch considers the prompt initiation of site preparation activities to be a very high priority element of national energy policy, which now requires only NRC approval. On balancing of all the factors under Section 50.12, this is a compelling case for the Commission's exercise of its Section 50.12 authority.
ARGUMENT I.
IN LIGHT OF THE EXISTING ENVIRONMENTAL AND SAFETY REVIEWS FOR THE PROJECT, THE COMMISSION HAS THE DISCRETION TO AUTHORIZE SITE PREPARATION ACTIVITIES In seeking relief under 10 C.F.R. S 50.12, the Applicants are,not requesting that the Commission waive any s tatutory requirements arising from the two relevant statutes -- the National Environmental Policy Act of 1969 (NEPA) and the AEA. As will be shown, the requirements arising from those statutes have been satisfied in this case i
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insof ar as site preparation activities are concerned. In the following, it will be shown that: (a) the Commission's environmental reviews for the project have satisfied all requirements arising out of NEPA; (b) no hearings are required by NEPA or the AEA prior to commencement of site preparation activities; and (c) grant of the request will not obviate any s tep of the Commission's es tablished licensing process.
A. NRC Reviews of the Proj ect Have Satisfied All Requirements Arising Out of NEPA NEPA requires the preparation of an environmental impact statement prior to undertaking a major federal action significantly af fecting the quality of the human environ-ment. See 42 U.S.C. S 4332. Af ter docketing of the CRBRP application in April of 1975, the project sought authoriza-tion to commence site preparation activities under 10 C.F.R.
S 50.10 (e) of the Commission's regulations. S ection 50.10 (e) requires: (1) completion of a Final Environmental Statement (FES); (2) NRC Staff review and findings as to site suitability;-3/ and (3) completion of hearings, Licensing Board findings required by 10 C.F.R. 5 51. 52 (b) -
and a finding that the proposed site is a suitable location for a reactor of the general size and type proposed from the 3J S ee 10 C.F.R. S ect ion 50.10 (e) (2) .
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standpoint of radiological health and saf ety.- The firs t 5/
rec,uirement arises out o f N EPA.-- The second and third
- requirements arise not from NEPA, but from the Commission's 6/
r e gu la t ior.s .~- Although the first two requirements were completed by March of 1977, the previous Administration's decision to cancel the project led to suspension of the hearing process. Consequently, although the requisite FES and SSR had been completed for the project, the Applicants were unable to complete the hearings and progress toward commencement of site preparation.
The FES itself was based upon the Applicants' five volume Environmental Report which presents detailed informa-tion concerning s ite characteris tics, environmental impacts of cons truction and operation, and the cost / benefit analysis for the proj ect. Af ter docketing of the application in April of 197 5, the Draf t Environmental Statement was issued in February 1976. Af ter consideration of comments by interested federal, state, and local agencies, and the public, the Final Environmental S tatement was issued in February of 1977.
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4] 10 C .F .R. S ect ion 50.10 (e) (2) .
SJ See 102 (2)(c) of NEPA.
6f See discussion in Section IB at 10-12, i nf ra.
4 NRC's 1977 FES concluded that the environmental effects of site preparation activities would not be significant (FE S a t 9 -23 ) . Moreover, the Project has within the las t year, undertaken an extensive reevaluation of the proposed site preparation activities, which is contained in the Site Preparation Activities Report (SPAR) . The SPAR demons tra tes that both the environmental conditions of the site and the proposed site preparation activities have not changed significantly from those described in the FES, and the conclusion in the FES that the ef fects of the proposed site preparation activities would not be significant (SPAR at 4-1) remains valid today.
On February 8, 1982, the NRC S taf f fully reviewed Applicants' proposed site preparation activities and agreed with Applicants' conclusion that the proposed activities would not give rise to any significant adverse environmental 7/
cons eq ue nces .- On March 16, 1982, a majority of the Commission similarly concluded that the site preparation activities would not result in significant environment al 8/
inpacts.-
-7/ See NRC S taf f Report, CRBRP: Reques t for Authorization Under 10 C.F.R. Section 50.12 to Conduct Certain Site Preparation Activities , 11-26, Februa ry 6, 19 82.
8f United States Department of Energy (Clinch River Breeder Reactor Plant), CLI-82-4 (March 16, 19 62)
(separate views of Chairman Palladino at 1, Commis-
- sioners Roberts at 2, Ahearne at 15, Bradford at 2.
t l
l L
In this case, where the FES for the project has been completed and where the NRC Staff and a majority of the Commission have determined that the site preparation activities will not cause significant adverse environmental impacts, the Commission is assured that all relevant requirements arising out of NEPA have been satisfied.9 /
B. Hearings Are Not Required By NEPA or the AEA Prior to Commencement of Site Preparation Activities The Commission's requirement for a hearing prior to commencement of site preparation activities is not based on the National Environmental Policy Act or the Atomic Energy Act. Rather, the hearing requirement is based solely on the Commission's regulations. See 10 C.F.R. Sections 5 0.10 (c) , (e).
The National Environmental Policy Act only l requires " full environmental disclosure and review", Bucks 1
County Bd. of Commissioners v. Inters tate Energy Co. , 403 F.
Supp. 805 (E.D. Pa. 1975), and does not require a federal agency to convene hearings. As the court s tated in Upper West Fork River Watershead Assoc. v. C o rp s of Engineers, 414 i
9] Letter to J ames B. Edwards, Secretary of Energy from A.
Alan Hill, Chairman, Council on Environmental Quality (J an. 27, 1982) in which Chairman Hill stated that if the Commission finds that the proposed activities will not result in significant environmental impacts,
" granting the requested exemption would be consistent with the requirments of NEPA '.
F. Supp. 908 (N.D. W. Va. 1976), aff'd. 556 F.2d 576 (4 th Cir. 1977), cert. denied, 434 U.S.1010 (1978):
. .. neither NEPA nor the CEQ Guidelines make public hearings a mandatory proce-dural requirement in the preparation of an environmental impact statement.
S ee also J icarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973).
As with NEPA, the AEA does not require hearings or any other form of approval prior to the commencement of site 10 preparation activities.- / Indeed, prior to the enactment of NEPA, applicants routinely initiated site preparation activities without any AEC action whatsoever. 11/ As the Ccrmission stated in Kansas Gas and Electric Co. (Wolf Creek Nuclear Generating S tation, Unit No. 1 ), CLI-77-1, 5 NRC 1 (1977):
Prior to enactment of NEPA, implement ing regulations reflected the principal thrust of the Atomic Energy Act ar/
barred safety-related cons truction activities on a proposed facility site until a construction permit was issued. The bar on cons truction extended to " pouring the foundation for, or the ins tallation of any portion of 10/ Int e rvenors , at the previous hearing, candidly admitted that no hearing was required. (Transcript of Commis-sion hearing December 16, 19 82, at 48. ) ,
11' / i There was no requirement for site suitability findings i
prior to commencement of site preparation activities.
Those findings were made in connection with the issuance of a cons truct ion pe rmit. S ee 10 C.F.R.
Section 50.34 (a)(1); 10 C.F.R. Section 50.35 (a). 3 l
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the permanent f acili ty . " 10 C.F.R. 5 0.10 (b) . However, there was no bar to site activities that might have a substantial environmental impact but
. which had no safety significance.
Construction permit applicants willing to assume the risk that their applica-tions might be denied were specifically allowed to proceed with " site excava-tion, preparation of the site for con-s truction of the facility, including the
... cons truction of roadways, railroad spurs, and transmiss ion lines . " S ect ion 50.10 (b) (1 ) . (Emphasis in original).
I c!. a t 6 .
Thus, in reques ting authorization to allow site preparation activities to run in parallel with the hearing process, the Applicants are asking that the Commission exer-i cise its lawful discretion -- where the requirements of NEPA have been met --
to permit site preparation activities prior to completion of the hearing process required solely by Commission regulations.
j C. Applicants Will Complete All NRC Licensing Procedures Applicants request to begin site preparation act ivities , if granted, will not obviate a single s tep in the NRC licensing procedures. Should the Commission grant this reques t, the CRBRP will still undergo and satisfy all elements of NRC 's licensing procedure. Specifically, the CRBRP will:
m (a) Seek and obtain all findings including environmental findings, for a Limited Work Authori-necessary(LWA-1 zation-1 ) pursuant to 10 C.F.R.
- S ect ion 50.10 (e) (1 )- (2) as a prere-quisite condition to an LWA-2. See 10 C .F .R . S e ct ion 5 0.10 (e) (1 )- (3 ) .
(b) Seek and obtain all findings necessary for a Limited Work Authori-zation-2 (LWA-2) pursuant to 10 C.F.R.
S ect ion 50.10 (e) (3 ) (i)- (ii) .
(c) Seek and obtain all necessary findings for a Cons truction Permit (CP). See 10 C.F.R. Section 50.35.
(d) Seek and obtain all necessary findings for an Operating License (OL). See 10 C.F.R. S ection 50.57.
In short, should the Commission grant this request, the CRBRP will still undergo all NRC Staff reviews and hearings related to all applicable environmental and radiological health and safety matters under NEPA and the AEA.
II. IN VIEW OF THE EXIGENT AND FlCEPTIONAL CIRCUMSTANCES OF THIS REQUEST, THE COMMISSION SHOULD EXERCISE ITS SECTION 50.12 AUTHORITY TO GRANT THE REQUEST In promulgating Section 50.12, the C ommi c c ion recognized its obligation to ensure that its regulatory requirements do not cause undue hardship. See National Broadcasting Co. v. United S tates, 319 U.S. 190, 225 i (1943). Indeed, Section 50.12 reflects a conscious Commis-sion policy decision to preserve its discretion to authorize
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site preparation 12 in exceptional cases involving undue hard-ship.- / In this regard, Section 50.12 establishes an explicit set of conditions which assure that any Commission decision authorizing site preparation will comport with sound discretion and full consideration of environmental values.
In reviewing its Section 50.12 authority to grant requests for authorization to conduct site preparation acti-vi t ies , the Commission in Shearon-Harris, supra at 944, stated:
The ques tion presented here is whether NEPA bars altogether any preliminary work on a proposed tive agency - project which when an administra-carefully weighs and balances specific environmental criteria before allowing the work -- has not yet completed its full environmental review of the entire project. We find that NEPA contains no such prohibition, and that the ,
site preparation work was properly author-ized in the circumstances of this case.
The Commission recognized that the Section 50.12 framework assures that all relevant environmental matters y are fully and fairly considered: i-(
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12f 37 Fed. Reg. 5746 (March 21 1972); 39 Fed. Reg. 4583
(
(Feb. 5, 1974). See also Applicants' Response to h l
! Natural 28, 1982).Resources Def ens e Council, Inc. , 13-16 (J anua ry 's l 50.12 procedureThere canisbe noapplied seriousto doubt that the Section the CRBRP. n United $
States Department of Energy, supra (separate views of g l Commissioners Palladino, Roberts and Ahearne). if l
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The regulations enable this Commission to determine what the environmental impact of site preparation work will be; whether redress can be achieved if necessary; whether the work will leave open the subsequent adoption of alterna-tives if necessary; and whether that preliminary work will serve the public int eres t. In short, the regulations help us assess relevant environmental factors at the site preparation s tage.
Ijl. at 945.
In regard to the ins tant req ues t, S ection 50.12 provides a framework which assures that all relevant environmental factors are carefully assessed, while at the same time enabling the Commission to minimize the effect of I the four year delay, avoiding unnecessary cos t increases, preserving the informational and programmatic benefits from acceleration of the project, and furthering the Congress' i i
o and Pres ident 's mandate that the project be completed in an !
expeditious and timely manner.
The Commission has s tated that the exercise of its Section 50.12 authority would be limited to truly exigent and excep tional cases. This case is both exigent and exceptional in at least three respects: (1 ) there are national policies in favor of expeditious completion of the I
proj ect; (2) the project is in an advanced stage of develop- .
ment, and unless relief is granted, undue hardship will -
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inevitably result; and (3) in light of the proj ect's unique nature, the grant of relief in this case would not be
- precedent-setting and would be entirely cons istent with- the 14/
Commission's sparing use of its Section 50.12 authority.--
A. G rant of the Request Would Advance Established National Policies Applicante submit that the Section 50.12 public interes t factor and the balance of all four Section 50.12 factors should not and cannot be evaluated in a vacuum.
Rather, they must be cons idered in light of prevailing national policies, and a determination should be made which advances those policies. In particular, the Commission's determination should advance the policies expressed by the C ongres s , the Pres ident, and NRC's own case law.
The intent of Congress, as reflected in the Omnibus Budget Reconciliation Act of 19 81, can be summarized as follows:
l l a. The plant must be cons tructed in a timely and expeditious manner; construction must be undertaken as expeditiously as possible; the l
cooperation of all agencies is required; 13/ 37 Fed. Reg. 5746 (March 21, 1972).
14f Id.; 39 Fed. Reg. 45 83 (Feb. 5, 1974).
- b. Unrecoverable delays resulting from the 1977 decision to stop the project must be minimized; cons truction must be undertaken with as little delay as discretion will allow; and
- c. The CRBRP is a kep step in the development of the 15/
Liquid Metal Fas t Breeder Reactor (LMFSR ) .---
The Pres ident's October 8, 1981, policy statement reflects a similar policy on the part of the Executive:
I am directing that government agencies aroceed with the demonstration of 3reeder reactor technology, including completion of the Clinch River Breeder Reactor. This is es sential to ensure our preparedness for longer-term nuclear power needs. 17 Weekly Compilation of Presidential Documents, 1101-02 (19 81).
The DepartEent of Energy has implemented Congres-sional and Presidential policy and its own independent statu-tory responsibility for energy research and development, by determining that CRBRP should be completed as expeditiously as pos s ible. The program called for in the Environmental Impact Statement for the Liquid Metal Fast Breeder Reactor l
l Program (Supplement to ERDA-1535, DOE /EIS-0085-FS , May 19 82) is construction of CRBRP as expeditiously as possible.
t i
15] Applicants' Memorandum in Support of Reques t to Conduct Site Preparation Activities, November 30, 19 81, at 7-1 3 ; Appendix A. Most recently, the House rej ected an amendment to the First Budget Resolution which would have eliminated funding for CRBRP by a vote of 265 to 159. Cong. Rec. H 3067 (May 27, 19 82).
The Commission's determination here should advance these policies and should adhere to prior Commission case
. law in two fundamental respects. F irs t, the Commission should not rely upon a judgment that economic factors have diminished the urgency of the CRBRP and LMFBR program.
The need for CRBRP is a matter which has been conclusively established by Congress. Second, the timing of Clinch River, as expressed by Congressional, Presidential, and D epa rtment of Energy policy, is similarly a matter outside 17/
the scope of review by the NRC,-- which by statute does not 18/
have programmatic nor developmental respons ibility. In short, the timing of Clinch River -- as expeditiously as pos s ible -- is a matter on which the Commission should give 19 /
complete deference.
Applicants do not maintain that either the CRBRP legislative history or established national policy mandates the Commission's use of Section 50.12 per se. Rather, we 16/ Gilinsky at 5; Bradford at 1.
17] U.S. Energy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976).
18/ Energy Reorganization Act of 19 74, 42 U.S.C. S 5801 eg:_
seq.
19/ U.S. Energy Research and Development Adminis tration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976.
r.. .
have cons is tently maintained that the Congressional, Presi-dential, and Department of Energy's clear determination to complete the project as expeditiously as possible should guide the Commission's evaluation of the public interest factor. Applicants have maintained that:
(1 ) the Commis-sion should defer to the Congress, President, and the Department 20 of Energy in regard to the need for and timing of CRBRP;- / (2) the Commission should exercise its discretion to advance the es tablished national policies f avoring expe-ditious completion; and (3) Section 50.12 is an established mechanism for advancing these policies.
The Commission can and should factor Congressional, Presidential, and Department of Energy policy into its evaluation of the Section 50.12 public interes t factor. In this context, those policies are far from neutral. They unequivocally favor expeditious project comple t ion, and the Commission should exercise its discretion to advance, rather than impede those policies. In short, national policies 20/ Id. at 83.
If nothing else, the Energy Reorganiza-tion Act makes clear that we must not decide the present issue so as to put the Nuclear Regulatory Commission in the position of scrutinizing afresh the judgments on long-range energy research and development issues made by the agency to which such . judgments were primarily confided.
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f avoring expeditious proj ect completion are entitled to great, if not controlling, weight in connection with the Section 50.12 public interes t factor.
B. The Project is in an Advanced Stage of Development and Unless Relief is Granted, Undue Hardship Will Inevitably Result As previously indicated, as of April of 1977, the NRC had issued an FES which recommended the grant of a Construction Permit and there was every reason to expect Commission authorization to commence site preparation by no later than March of 1978. As a result of the previous Administration's April 1977 decision to cancel the project, the project has been unable to make any substantial progress toward commencement of site preparation, while design and R&D activities have proceeded to their present status of near comple tion.
P roj e ct design and hardware f abrication are now in an extremely advanced stage of development. As of April, 1962, des ign work, and engineering research and development work were approximately 90% complete and more :han $600 million worth of hardware was delivered or on order with suppliers and fabricators. Because of the advanced stage of the des ign work, the proj ect has los t its ability to work around delays in the licensing process. Accordingly, the licens ing activities and in particular authorization to I begin site preparation, are now on the critical path. The
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project will be ready to proceed with site preparation as soon as approval of this request can be obtained from the {
- Commis s ion. If the Commission does not grant the reques t, the project must mark time while awaiting authorization to proceed with s ite preparation. This will force the project to maintain its design team throughout the period of delay, and to spread that manpower over the remaining limited design and engineering R&D requirements, thus precluding the cos t productive use of proj ect funding, and inevitably increasing project costs.
This Administration is s trongly committed to project completion. The Congress has directed that "unre-coverable delays resulting from the 1977 decision to stop the project should be minimized. ... 123 Cong. Rec. H5 816
- (19 81 ). The four year suspension of licensing has added tore than four years to the project schedule. Approval of l
this reques t to allow the start of site preparation activi-ties as soon as possible would avoid additional delays in the proj ect schedule, and avoid subs tantial additional 21/
c os t s .---
The consequences of further delay extend beyond the substantial immediate ef fects on the project. Unlike a i
l l 21 / See SPAR l-6.
commercial reactor, where the impacts of delay extend only to immediate costs to ratepayers, additional delays in this project will extend further to adversely affect: (1) the national policy in favor of rapid completion; (2) the nation's preparedness for longer-term nuclear power needs 22/
and (3 ) vital international policies and programs.-- As discussed in Section 7 of the SPAR, the CRBR is a critical milestone in the LMFBR program. The information derived f rom the des ign, cons truction and operation of CRBR is vital to the LMFBR Base Research and Development Program, the Large Development Plant and the LMFBR Fuel Cycle Program.
Further delays not only jeopardize CRBR but also jeopardize the Adminis tration's entire LMFBR Program.
Unless timely relief is granted, the project and the nation's taxpayers will continue to suf fer additional project delays and cost increases. In the longer term, the delays will be reflected in the Nation's lack of prepared-ness for future nuclear power needs. Further, the national policies in favor of expeditious project completion will be f rus trated. In short, the circumstances attending the present reques t clearly are exceptional and deaand relief under Section 50.12.
22f See SPAR at 7 7-3.
C. In Light of the Project's Unique Nature, the Grant of Relief Would Not be Precedent Setting and Would be Entirely Consistent With the Commission's Sparing Use of its Section 50.12 Authority In light of the exceptional circumstances dis-cussed in the preceding section of this memorandum, the grant of relief here would not be precedent-setting, and would be entirely consis tent with the Commission's policy of using its Section 50.12 authority sparingly. In addition, the project has a combination of characteristics which is unique and which' offers additional assurance against precedent-setting action. The plant will be licensed as a research and development reactor. Its primary mission is development of information, and not production of power. It is a key step in the development of the LHFBR, and thus must be cons tructed in a timely and expeditious manner to support the nation's preparedness for longer-term nuclear power needs. Moreover, it will be owned by the United S tates Government, managed by DOE, located on government-owned land, and operated by another federal agency (the Tennessee Valley Authority) under contract to DOE. It is relatively small (375 MWe), compared to modern commerical reactors.
(1200 MWe) . It is the only demonstration plant now authorized by the Congress in the government's long-range LMFBR research and development program and is essential to preserve the LMFBR program. This unique set of proj ect characteristics, coupled with the exceptional circumstances
s previously discussed, assures that approval of this reques t would not be precedent-setting, but entirely consistent with the Commission's longstanding policy of granting such requests sparingly and only in exceptional circumstances.
III. THIS IS A COMPELLING CASE FOR A FAVORABLE DETERMINATION UNDER THE SECTION 50.12 FACTORS In cases of requests under Section 50.12 to per-form site preparation work prior to completion of the entire review process, the four factors in Section 50.12 must be balanced and a f avorable determination made. S ect ion 50.12(b) provides that the Commission may permit the conduct of site preparation activities upon consideration and balancing of the following factors:
(1 ) Whether conduct of the proposed activities will give rise to a s ignif icant adverse impact on the environment and the nature and extent of such impact , if any; (2 ) Whether redress of any adverse environment impact from conduct of the proposed activities can rea-l sonably be ef fected should such redress be necessary; (3 ) Whether conduct of the proposed activities would foreclose subse-quent adoption of alternatives; and l
! (4 ) The effect of delay in conducting such activities on the public interest, including the power needs to be used by the proposed facility, the availability of alternative sources, if any, to meet those needs on a timely basis and delay cos ts to the applicant and to consumers.
I
10 C.F.R. S ect ion 50.12(b) .
As will be shown below, there is a compelling case
. for relief under each of the Section 50.12 factors.
A. The Proposed Activities Would Not Give Rise to Significant Adverse Environmental Impacts In reviewing the site preparation acr8 vities pro-posed by Applicants, the NRC Final Environmental S tatement of February 1977, concluded that the environmental effects of site preparation activities would not be s ignif icant.
In the event the applicant is permitted to proceed with site preparation under a Limited Work Authorization, it is the S taf f's opinion that the environmental impacts of such work would not be signi-f icant .
FSS at 9-23. As noted earlier, this conclusion has been reaffirmed by' both the NRC Staff in its environmental review of the proposed activities and by a majority of the 23/
C ommis s ione rs .--
The exis tence of a valid environmental review for this project presents a s trong parallel to the circumstances of Carolina Power & Light Co. (Shearon-Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-74-22, 9 AEC 939 (1974)
(S h ea ron-H a rri s ) . In that case, the Commission identified 23] See footnotes 7 and .8, supra and accompanying text.
the advanced stage of the environmental review as a circum-stance which weighed heavily in favor of a decision to per-mit site preparation to commence pursuant to S ect ion 50.12. In this regard, the Commission stated:
In the circums tances of this case, it was particularly appropriate to authorize Carolina Power to perform such work. As explained above, even though the staf f had issued a final environ-mental statement recommending a grant of cons truction permits for the Shearon-Harris reactor, the original licensing schedule had been substantially delayed because of design revisions which Carolina Power had to make to satisfy new requirements of the EPA. Moreove r, a draf t environmental statement based on these revisions (recommending a grant of cons truction permits) had been issued.
And shortly af ter approval of the site-preparation work, a final environmental statement of the revised plant was issued also recommending granting the permits. In essence, this agency's environmental consideration of the proposed reactor was far from incomplete at the time the site preparation work was authorized.
Id. at 945.
This case in on all fours with Shearon-Harris. In light of the exhaustive reviews of the proposed activities l the requirements of NEPA have been fully met, and the record I
amply demonstrates that the environmental af fects of site preparation activities will be ins ignif icant . These recent reviews reaffirm the 1977 FES finding that site preparation activities would not have significant environmental impacts
and therefore granting of the reques t would be entirely 24/
consistent with the requirements of NEPA.---
B. The Impacts of the Proposed Activities Would be Easily Redressable The impacts of the proposed site preparation acti-vities could, if necessary, be easily redressed. As the SPAR (Section 5) details, the site can be substantially returned to its original condition at modest cos t. The significance of the environmental impacts and the degree of redress necessary must also be viewed in the context of the intended future alternate uses for the site. The site of the proposed activities is within an area of governed-owned land which is managed by the TVA. As noted at page 5-2 of the SPAR, the area is dedicated to industrial use; all alternative uses for the area proposed by the Oak Ridge City Planning Department in its land use plan involte clearing, road cons truction, railroad service, and water and sewer li nes . In addition, mos t of the harves table timber in the area has been removed due to considerations no: related to CRBRP. Thus, not only are the environmental inpacts of the proposed activities insignificant, but they are redressable i
l 24/ Letter to J ames B. Edwards, Secretary of Energy from A.
- Alan Hill, Chairman, Council on Environcental Quality
( (J an. 27, 19 82) .
I 1
both to the sice's original condition or to a condition appropriate for alternate use.-- 25/
In this regard, it should be advantageous to future alternative industrial uses of the site to leave
- intact the basic service facilities. DOE is fully committed to complete redress of the site, if necessary, at a cost of approximately 49.6 million.
If the basic service . facilities are left intact, howeve r, the cost of redress would be reduced to about J7 million, resulting in a savings of V2.6 million for redress of the site and substantially benefiting .
future alternative industrial users of the site. These service facilities would have a replacement ' cost to any future industrial user of about S30 million.
C.
No Reasonable Conduct Alternatives of the Proposed Will Be Foreclosed By Activities g g
Because no safety related or permanent cons truc-f tion activities are proposed, an appropriate range of design f
4 alternatives will not be foreclosed by conduct of the pro- I posed activities. See SPAR, Section 6.1 L ikewis e, a S e
e reasonable range of alternative site uses can be completely E d~
25/ Both the NRC Staff as well as a majority of the a
B Commissioners agree that yk activities are redressable.the impacts of the proposed See NRC S taff Report, p) m supra at 28-29; United States De~partment of Energy, 3 supra (separate views of Commissioners Palladino, $
Roberts, Ahearne and Bradford).
3_
h s
b
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preserved by substantially res toring the site to its original condition. See SPAR, Section 6.2.
- The alternctive of abandonment of the proj ect also 26/
would not be affected by the proposed activities.-- The expenditures for the proposed site preparation activities are less than 8% of the project cost accrued to date, and less than 3% of the es timated total project cos t. The rela-tively small investment for site preparation ac:ivities will not cause an irretrievable tilt of the cos t-benefit balance toward project completion and thereby keeps the alternative of complete abandonment of the project economically 27/ See Carolina Power & Light Co. (Shearon-Harris viab le .--
Nuclear Power Plant, Units 1, 2, 3, and 4) LBP-74-18, 7 AEC 538 (1974); Commonwealth Edison Co. (Byron Station, Units 1 and 2), AEC Directorate of Licensing letter of January 14, 28/
1974.--
26/ In Coalition for Saf e Nuclear Power v. AEC, 463 F.2d 954 (D.C. C ir. 19 7.2 ) (Davis-Besse), the Court of Appeals, while approving the four f actor tes t of Section 50.12, added an additional refinement. The Court required that the Commission cons ider whether adoption of the alternative of abandonment would be precluded by additional inves tment in the project.
27f See NRC Staf f Report, supra at 32-33; United States Department of Energy, supra (separate views of Commissioners Palladino, Roberts, Ahearne and B radfo rd) .
28/ See also United S tates Department of Energy, supra.
D.
The PublicofInteres By Grant t Would Be Bes t Served the Request As discussed in detail in Section 7 of the SPAR, grant of this request will promote or support a number of important national policies. F i rs t , as noted above, the P res ide nt , the Congress and the Department of Energy have made the national policy determination that the public interes t is bes t served by expeditious completion of CRBRP.
This determination should not be scrutinized afresh by the NRC but should be given conclusive weight in its consideration of the public interest. This policy can be d e
s bes t promoted and the public interes t bes t served through the Commission's grant of this reques t. I i
Second, the grant of this reques t will further the I Department of Energy 's LMFBR Program, and accelerate the E informational and programmatic benefits from that program. E E
The CRBRP is an integral part of the program and the tech- a-g nical information which will be obtained from cons truction M E
E and operation of CRBRP are necessary to the continued p::.
development of the LMFBR Program. In particular, grant of the Section 50.12 request will permit CRBRP ff.
to provide
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information in a timely fashion necessary to support the h LFMBR Base Research and Development Program, and Large te BO
!s5 Developmental Plant, and the LFMBR Fuel Cycle Program, and
$l will substantially enhance the prospects for success in E1) bG those programs. l@
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Third, the grant of the reques t will have a substantis.1 positive impact on a number of international
. policy issues. Those issues include: (1) the development and implemention of an international safeguards system, (2) advancement of an ef fective non prolif eration policy, and (3) revitilization of the U.S. leadership role and influence in nuclear technology.
Fourth, the grant of the reques t will result in substantial cost savings to the nation's taxpayers. Thos e savings, when viewed from the appropriations, financial or economic perspective are substantial, and are entitled to cons iderable weight under the public interes t f actor.
Finally, it is important to emphasize thac there are no countervailing public interes t factors. The proposed site preparation activities involve no safety related cons truct ion, and because of the limited scope of the activities, no design or other alternatives will be fore-closed. In addition, the CRBRP will undergo a full and complete licensing review. Finally, this reques t has the support of the city of Oak Ridge and other local juris-29 /
diction as well as the State of Tennessee.--
29/ See, e.g., Tes timony of Mayor Bissell City of Oak Ridge, Transcript of NRC Hearing 105-foo (r ebruary 16, 1982); State of Tennessee Senate Resolution No. 205 (April 22,19 82)
Under these circums tances, Applicants submit that the public interest clearly favors grant of this reques t.
IV. ON BALANCE OF ALL RELEVANT FACIORS, THE COMMISSION SHOULD GRANT THE SECTION 50.12 REQUEST Although the Commission must assess all four f actors under Section 50.12, no one factor is controlling.
Rather the decision to grant a Section 50.12 request can be "made only af ter a careful balancing of the factors enumerated in Section 50.12 (b). ...
Washington Public Power Supply Sys tem (WPSSS Nuclear Porject Nos. 3 and 5)
CLI-77-11, 5 NRC 719 (1977). s As demons trated in the SPAR and the Staff evalua-tion of the SPAR, (1) the proposed site preparation ,
activities will not result in any significant adverse I environmental impacts, (2 ) the site can be restored to a condition similar to the surrounding environment, and (3) conduct of the site preparation activities will not fore-close alternatives. Moreover, the Applicants have agreed to undertake the activities at their own risk and have com- t, mitt 2d themselves to redress should a cons truction permit be 1 denied. Thus, Applicants h' ave made a strong case under the firs t three S ection 50.12 factors. -
5
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In considering the public interes t criterion of Section 50.12, the Commission must weigh that factor in the balance along with the considerable weight attributable under the first three factors.- Applicants su sit that the following f actors conclusively demons trate that grant of this request will serve the public interest:
- 1. Grant of the Section 50.12 reques t will result in 30 the avoidance of a 6-12 month delay;- /
2 Subs tantial informational and other 'tenefits will result from avoidance of a 6-12 month delay;
- 3. Established national policies require expeditious completion of the CRBRP;
- 4. The unique nature of CRBRP assures that the granting of Applicants request will not be precedent setting; and
- 5. All elements of licensing process will be pre-served and a full NRC licens ing review will be i
conducted.
These factors, when properly balanced, clearly favor the grant of this request. Because the impacts are not s ignif icant , the environmental ef fects are redressable I
and grant of the request will not foreclose any reasonable i
l 3_0) SPAR at 7-2.
3_1_/ SPAR at 7 7-13.
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a lt ernative , grant of the request will be entirely con-sistent with FRC's primary responsibility to protect the
. public health and saf ety and the environment. At the same time, grant of the request will yield substantial program-matic benefits and advance the Department's ability to carry out its primary responsibility for energy research and development and policy. In this regard, the Commission, which by statute does not have programmatic nor develop-mental respons ibility, should af ford the Department sub-stantial if not controlling deference under the Section 50.12 public interes t factor and on balance grant the request.
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. . . _ _ . ~ - . _ - - _ _ .
V. CONCLUSION On balance of all four factors under Section
. 50.12, Applicants respectfully request that the Commission exercise its Section 50.12 authority and authorize Applicants to begin site preparation activities as soon as pos s ib le .
Respectfully submitted, L~ eon S ilve rs troa Attorney for Department j of Energy l
M/ ^
eorge L A ttorn dgar ~f for Proj ecr Management Corporation DATED: July 1, 19 82 l
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i L
UNITED STATES OF AMERICA ,
. 9 7.' '
NUCLEAR REGULATORY COMMISSION'N BEFORE THE COMMISSIONERS s 1
)
In the Matter of )
)
UNITED STATES DEPARTMENT OF ENERGY )
)
PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537
) (Section 50.12 Request)
TENNESSEE VALLEY AUTHORITY )
)
(Clinch River Breeder Reactor Plant) )
)
CERTIFICATE OF SERVICE Service has been effected on this date by personal delivery or first-class mail to the following:
- The Honorable Nunzio J. Palladino Chairman Nuclear Regulatory Commission Washington, D. C. 20555
- The Honorable Victor Gilinsky Commissioner Nuclear Regulatory Commission Washington, D. C. 20555
- The Honorable Thomas F. Roberts Commissioner .
Nuclear Regulatory Commission Washington, D. C. 20555
- The Honorable James K. Asselstine Commissioner Nuclear Regulatory Commission Washington, D. C. 20555
- The Honorable John F. Ahearne Commissioner Nuclear Regulatory Commission Washington, D. C. 20555
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- Marshall E. Miller, Esquire Chairman i Atomic Safety & Licensing Board
- U. S. Nuclear Regulatory Commission Washington, D. C. 20545 (2 copies)
Dr. Cadet H. Hand, Jr.
Director Bodega Marine Laboratory University of California P. O. Box 247 Bodega Bay, California 94923
- Mr. Gustave A. Linenberger Atomic Safety & Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20545
- Daniel Swanson, Esquire Stuart Treby, Esquire Office of Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C. 20545 (2 copies)
- Atomic Safety & Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20545
- Atomic Safety & Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20545
- Docketing & Service Section l Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20545 (3 copies) l William M. Leech, Jr. , Attorney General William B. Hubbard, Chief Deputy Attorney General Lee Breckenridge, Assistant Attorney General State of Tennessee Office of the Attorney General 450 James Robertson P'rkway a l Nashville, Tennessee 37219 l
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.* h Oak Ridge Public Library Civic Center Oak Ridge, Tennessee 37820 Herbert S. Sanger, Jr., Esquire Lewis E. Wallace, Esquire W. Walter LaRoche, Esquire James F. Burger, Esquire Edward J. Vigluicci, Esquire Office of the General Counsel Tennessee Valley Authority 400 Commerce Avenue Knoxville, Tennessee 37902 (2 copies).
$ **Dr. Thomas Cochran, Esquire Barbara A. Finamore, Esquire Natural Resources Defense Council 1725 Eye Street, N. W.,
1 Washington, D. C. 20006Suite 600 (2 copies)
Ellyn R. Weiss, Esquire Harmon & Weiss 1725 Eye Street, N. W.,
Washington, D. C. 20006 Suite 506 Lawson McGhee Public Library '
500 West Church Street ,
Knoxville, tennessee 37902 ,
)
William E. Lantrip, Esq Attorney for the City of Oak Ridge Municipal Building P. O. Box 1 Oak Ridge, Tennessee 37830 Leon Silverstrom, Esq.
Warren E. Bergholz, Jr., Esq.
U. S. Department of Energy 1000 Independence Ave. , S. W.
Room 6-B-256, Forrestal Building f Washington, D. C. 20585 (2 copies)
'Eldon V. C. Greenberg Tuttle & Taylor 1901 L Street, N. W., Suite 805 Washington, D. C. 20036
=
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4 Commicsioner James Cothan Tennessee Department of Economic and Community Development Andrew Jackson Building, Suite 1007 Nashville, Tennessee 37219 Georgeg%. Edgar g Attorney for Project Management Corporation DATED: July 1, 1982 i
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- Hand delivery to 1717 "H" Street, N.W., Washington, D. C.
- Hand delivery to indicated address.
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- Hand delivery to 4350 East-West Highway, Bethesda, Md.
l l **** Hand delivery to Maryland National Bank Building, Bethesda, Md.
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