ML20054M719
| ML20054M719 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 07/01/1982 |
| From: | Edgar G, Silverstrom L ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP. |
| To: | |
| References | |
| NUDOCS 8207140297 | |
| Download: ML20054M719 (37) | |
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UNITED STATES OF AMERICA L O' l f
NUCLEAR REGULATORY COMMISSION In the Matter of )
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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 The United S tates 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 The Clinch River Breeder Reactor Plant (CRBRP )
project was originally authorized by the Congress in 1970, and is the subj ect of an application to the Nuclear Regulatory Commission (NRC) for a Construction Permit under Section 104(b) of the Atomic Energy Act of 19 54, as amenced , 4 2 U .S .C .
S e ct ion 201 1 _e_t seq. After the application was docketed in April of 19 75, the NRC review progressed to the point that by 8207140297 820701 PDR ADOCK 05000537 G PDR
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t, 2-March 28, 19 77, the NRC had: (1 ) issued a Final Environmental Statement (FES) which recommended the grant of a Cons truction P e rmit; (2) issued a Site Suitability Report which found that the site is suitable from the standpoint of radiological health and saf ety; and (3) ordered hearings to commence on J une 14, 1977 and run in continuous session until comple-tion. On this bas is, it was anticipated that the proj ect 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 revi ew.
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 completion. By April, 19 82, more than S600 million of hardware had been placed on order. The p roj e ct , however, was unable to make any progress in the NRC licensing process which would lead to commencement of site preparation. As a rescit, the proj ect schedule was extended
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, by more than four years and its cos ts increased by more than
$800 million.
1 On 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 1 Breeder Reactor."
In response to the Congressional and Executive directives, on November 30, 1981, 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 S ection 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 request was in the public interest.
In May, 1982, the DOE issued a Final Supplement to the LMFBR Program Environmental Statement. The DOE program i
i called for in the LMFBR Program Environmental S tatement is construction of CRBRP as expreditiously as possible.
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-1/ United S tates Department of Energy (Clinch River Breeder Reactor Plant) CLI-82-4 (March 16, 19 82)
(S eparate views of Chairman Palladino at 1, Commis-sioners Ahearne at 13-15, Roberts at 2, Bradford at 2) .
I f 2f Id. Separate views of Commissioners Ahearne at 39, Bradford at 2, Gilinsky at 9.
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On June 11, 1982, the NRC s taf f 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. 6 50.12, the 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 Staff's favorable of review of
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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 process -- all environmental and l s af ety 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 S ection 50.12 and grant Applicants ' reques t. In light of the exhaustive environmental analysis of the proposed
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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 S ection 50.12, this is a compelling case for the Commission's exercise of its Section 5 0.12 au tho ri ty.
ARGUMENT
- 1. 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 statutory 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 l
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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 of site required by NEPA or the AEA prior to commencement preparation activities; and (c) grant of the request will not obviate any step of the Commission's es tablished licensing process.
A. NRC Reviews of the Project Have Satisfied All Reauirements Arising Out of NEPA NEPA requires the preparation of an environmental impact s tatement 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.
l 5 50.10 (e) of the Commission's regulations. Section l
50.10 (e) requires: (1 ) completion of a Final Environmental Statement (FES ); (2) NRC Staff review and findings as to 3/
site suitability; 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 3] S ee 10 C .F .R. S ect ion 5 0.10 (e) (2 ) .
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s tandpoint of radiological health and saf ety.- The firs t 5/
requirement arises out of NEPA.- The second and third requirements arise not from NEPA, but from the Commission's 6/
regulations.- Although the first two requirements were completed by March of 1977, the previous Adminis tration's decision to cancel the project led to suspension of the hearing process. C ons equently, 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 construction and operation, and the cost / benefit analysis for the proj ect. Af ter docketing of the application in April of 1975, the Draf t Environmental Statement was issued in February 1976. Af ter cons ideration of comments by interested federal, state, and local agencies, and the public, the Final Environmental S tatement was issued in February of 1977.
4f 10 C .F .R. S ect ion 50.10 (e) (2 ) .
- 5) See 102(2)(c) of NEPA.
6f See discussion in Section IB at 10-12, inf ra.
, e NRC's 1977 FES concluded that the environmental ef fects of site preparation activities would not be s ignif icant (FES at 9 -23) . Moreover, the Proj ect has within the last year, undertaken an extensive reevaluation of the proposed s ite preparation activities , which is contained in the Site Preparation Activities Report (SPAR) . The SPAR demons trates 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 effects of the proposed site preparation activities would not be significant (SPAR at 4-1 ) remains valid today.
On February 6, 19 82, 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/
consequences.- On March 16, 1982, a majority of the Commission similarly concluded that the site preparation activities would not result in significant environmental l 8/
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imp a ct s .--
-7/ S ee NRC S taf f Report, CRBRP: Reques t for Authorization Uncer 10 C.F.R. Section 50.12 to Conduct Certain Site Preparation Activities , 11-26, F ebrua ry 8, 1982.
8f United States Department of Energy (Clinch River Breede r Reactor Plant), CLI-62-4 (March 16, 19o2)
(separate views of Chairman Palladino at 1, Commis-sioners Robe rts at 2, Ahearne at 13, B radford at 2.
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 s ite preparation activities will not cause significant adverse environmental impacts, the Commission is assured that all relevant 9/
requirements arising out of NEPA have been satisfied.-
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 50.10 (c) , (e).
The National Environmental Policy Act only requires " full environmental disclosure and review", Bucks County Bd. of Commiss ioners v. Inters tate Enerav Co. 403 F.
Supp. 805 (E .D . P a. 1975), and does not require a federal agency to convene hearings. As the-court s tated in Uoper i
W es t Fork River Wate rshead As soc. v. Corus of Engineers, 414 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 '.
, r F. Supp. 908 (N . D . W . V a . 19 76 ) , af f' 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 (9 th C ir. 19 73 ) .
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. As the Commission 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, implementing regulations reflected the principal thrust of the Atomic Energy Act and barred safety-related cons truction activities on a proposed f acility 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. (T ranscript of Commis-s ion hearing December 16, 19 82, at 46. )
- 11) There was no requirement for site suitability findings prior to commencement of site preparation activities.
Those findings were made in connection with the issuance of a cons truction permit. S ee 10 C.F .R.
Section 50.34 (a) (1 ); 10 C.F'.R. Section 50.35 (a) .
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the permanent f acili ty . " 10 C.F.R. 50.10 (b) . H oweve r, there was no bar to site activities that might have . a substantial environmental impact but which had no safett 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 therf acility, including the
.. . . cor.s truction of roadways , railroad spurs, and transmission lines. " S ect ion 50.10 (b) (1 ) . (Emphasis in original) .
Id. at 6.
Thus,' in reques ting a thorizction' to allow site preparati'on activities to run in parallel with the hearing process, the Applicants are as' ding that the Commission exe r-cise its lawful ' discretion ---shore the rdquirements of NEPA have been met -- to permit site' preparation-activities prior to completion .of the hearing.6rocess ' required solely by Commission regulations. -
I C. Applicants Wi_ll Complete All HRC Licens ing Procedures Applicants request to begin site preparation act ivi ties , if granted, will not obviate a single s tep in the NRC ..licerping procedures. Should the Commission grant l
this reques t, the CRBRP will still undergo and satisfy all elements of NRC 's licensing procedure. Specifically, the
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CRBRP will:
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I (a) Seek and obtain all findings including environmental findings, necessary for a Limited Work Authori-zation-1 CLWA-1 ) to 10 C.F.R.
S ection 50.10 (e) (pursuant 1 )-(2) as a prere-quisite condition to an LWA-2. See 10 C .F .R. S ect ion 50.10 (e) (1 )- (3 ) .
(b) Seek and obtain all findings for a Limited Work Authori-neces s ary (LWA-2 )
zation-2 to 10 C.F.R.
S ection 50.10 (e) (pursuant
- 3) (i)- (11) .
(c) Seek and obtain all necessary findings for a Construction Permit (CP). See 10 C.F.R. Section 50.3 5.
(d) S eek and obtain all necessary findings for an Operating License (OL). S ee 10 C .F .R. Section 50.57.
In short, should the Commission grant this r eques t. the CRBRP will s till undergo all NRC S taf f 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 EXCEPTIONAL CIRCUMSTANCES OF THIS REQUEST, THE COMMISSION SHOULD EXERCISE ITS SECTION S0.12 AUTHORITY TO GRANT THE REOUEST In promulgating S ect ion 50.12, the C ommi = = ion recognized its obligation to ensure that its regulatory requirements do not cause undue hardship. See National United States, 319 U.S.190, 225
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Broadcasting Co. v.
(1943). Indeed, Section 50.12 reflects a conscious Commis-sion policy decision to preserve its discretion to authorize
1 site preparation in exceptional cases involving undue hard-12/
s h ip .-- 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 S ection 50.12 authority to grant requests for authorization to conduct site preparation acti-vities , the Commission in Shearon-Harris, supra at 944, s tated:
The ques tion pres ented here is whether NEPA bars altogether any preliminary work on a proposed proj ect when an adminis tra-tive agency -- which carefully weighs and balances specific environmental criteria before allowing the work -- has not yet completed its full environmental review cf the entire project. W e find that NEPA contains no such prohibition, and that the site preparation work was properly author-ized in the circums tances of this cas e.
The Commission recognized that the Section 50.12 framework assures that all relevant environmental matters are fully and fairly considered:
12/ 37 Fed. Reg. 5746 (March 21. 1972); 39 Fed. Reg. 4583
- (Feb. 5, 1974). See also Applicants' Response to Natural Resources Def ense Council, Inc. , 13-10 (J anua ry 28, 1982). There is no serious doubt that the Section 50.12 procedure can be applied to the CRBRP . United States Department of Energy, suora (separate views of Commissioners Palladino, Roberts and Ahearne).
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-t ives if necessary; and whether that preliminary work will serve the public interes t. In s ho rt , the regulations help us assess relevant environmental f actors at the s ite preparation s tage.
Id. at 945.
In regard to the ins tant reques t, Section 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 the four year delay, avoiding unnecessary cos t increas es ,
preserving the informational and programmatic benefits from acceleration of the project, and furthering the Congress' and President's mandate that the project be completed in an expeditious and timely manner.
The Commission has s tated that the exercise of its
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! 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 1
l national policies in favor of expeditious completion of the project; (2) the project is in an advanced stage of develop-i ment, and unless relief is granted, undue hardship will l
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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 consis tent with the 14/
Commission's sparing use of its Section 50.12 authority.--
A. Grant of the Request Would Advance Established National Policies Applicants 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 considered in light cd 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 ongr es s , the Pres ident, and NRC 's own cas e law.
The intent of Congress, as reflected in the Omnibus Budget Reconciliation Act of 1981, can be summarized as follows:
- a. The plant must be cons tructed in a timely and expeditious manner; construction must be undertaken as expeditiously as possible; the cooperation of all agencies is required; j 13/ 37 Fed . Reg. 5746 (March 21, 1972).
14/ Id. ; 39 Fed. Reg. 4583 (F eb. 5, 19 74 ) .
- 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 (LHFBR) .---
The Pres ident's October 8, 19 81, policy statement reflects a similar policy on the part of the Executive:
I am directing that government agencies aroceed with the demonstration of breeder reactor technology, including completion of the Clinch River Breeder Reactor. This is essential to ensure our preparedness for longer-term nuclear power needs. 17 Weekly Compilation of Presidential Documents, 1101-02 -(1981).
The Department 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 ib le . The program called for in the Environmental Impact Statement for the Liquid Metal Fast Breeder Reactor i
Program (Supplement to ERDA-1535, DOE /EIS-0085-FS , May 19 d2) is construction of CRBRP as expeditiously as possible.
15/ Applicants' Memorandum in Support of Reques t to Conduct Site Preparation Activities, November 30, 19 81, at 7-1 3 ; Appendix A. Mos t 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).
R The Commission's determination here should advance these policies and should adhere to prior Commission case law in two fundamental respects. Firs 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 epartment of Energy policy, is similarly a matter outside the scope of review by the NRC, which by e _atute does not have programmatic nor developmental respons ibility. In short, the timing of Clinch River -- as expeditiously as possible -- is a matter on'which the Commission should give 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 i 16/ Gilinsky at 5; Bradford at 1 121 U.S. Energy Research and Develcoment Administration (Clinch River Breeder R actor P'lant), CLI-76-13, 4 NRC 67 (1976).
18/ Energy Reorganization Act of 19 74, 42 U.S.C . S 5 001 et i sea, l
19/ U.S. Energy Res earch and Development Adminis tration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC l 07 (1976.
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have cons is tently maintained that the Congressional, Pres i-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 i
factor. Applicants have maintained that: (1 ) the Commis-sion should defer to the Congress, President, and the :
D epartment of Energy in regard to the need for and t 0 ming of 20/
CRBRP ;-- (2) the Commission should exercise its discretion to advance the es tablished national policies favoring expe-dicious completion; and (3) Section 50.12 is an established j mechanism for advancing these policies.
l l The Commission can and should factor Congressional, P res ide nt ial, and Department of Energy policy into its evaluation of the Section 50.12 public interest factor. In this cont ext, those policies are far from neutral. They unequivocally favor expeditious project complet 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
- pos ition of scrutinizing af res h 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 S ection 50.12 public interes t f actor.
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 197 8. As a result of the previous Administration's April 1977 decision to cancel the proj ect, the project has been unable to make any su'bstantial progress toward commencement of site preparation, while design and R&D activities have proceeded to their present status of near comple tion.
P roj ect design and hardware fabrication are now in an extremely advanced stage of development. As of April, 1982, des ign work, and engineering research and development work were approximately 90% complete and more than $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 licensing activities and in particular authorization to begin site preparation, are now on the critical path. The l
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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 C ommis s ion. If the Commission does not grant the reques t, the project must mark time while awaiting authorization to proceed with site 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 mos t productive use of proj ect funding, and inevitably increasing project costs.
This Adminis tration 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 810 (19 61 ). The four year suspens ion of licens ing has added more than four years to the project schedule. Approval of this reques t to allow the s tart of site preparation activi-1 ties as soon as possible would avoid additional delays in the proj ect schedule, and avoid subs tantial additional l 21/
l costs.-
The consequences of further delay extend beyond the substantial immediate effects on the project. Unlike a 21f See SPAR 1 -6.
f i 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 Dqvelopment 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 suffer 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 proj ect completion will be f rus trated. In short, the circumstances attending the p res ent reques t clearly are exceptional and demand relief under Section 50.12.
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22] See SPAR at 7 7 -3 .
C. In Light of the P roj ect 's Unique Nature, the Grant of Relief Would Not be Precedent Setting and Would be Entirely Cons is tent With the Commiss ion's Sparing Use of its Section 50.12 Authority l 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 consistent with the Commission's policy of using its Section 50.12 authority sparingly. In addition, the proj ect has a combination of characteristics which is ,
i unique and which offers additional assurance against j 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 LMFBR, 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 (37 5 MWe), compared to mode rn commerical reactors .
(1200 MWe) . It is the only demonstration plant now authorized by the Congres s in the government 's long-range LMFBR research and development program and is essential to pres erve the LMFBR program. This unique set of proj ect characteristics, coupled with the exceptional circumstances
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 favorable determination made. Section 50.12(b) provides that the Commission may permit the conduct of site preparation activities upon consid,,eration 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-sonably be ef fected should such redress be necessary; (3 ) Whether conduct of the proposed activities would foreclose subse-quent adoption of alternatives; and (4 ) The effect of delay in conducting such activities on the public interest, including the power needs to be used by the proposed f acility, 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.
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10 C .F .R. S e ct ion 5 0.12 (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 Imoacts In reviewing the site preparation ac*ivities pro-posed by Applicants, the NRC Final Environmental S tatement of February 1977, concluded that the environmental ef fects of site preparation activities would not be significant.
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 .
FES 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/
Commissioners.
The exis tence of a valid environmental review for this project presents a strong 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 hea ron-H a rris ) . In that cas e , the Commission identified 23/ See footnotes 7 and 8, suora and accompanying text.
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the advanced s tage 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 ection 50.12. In this regard, the Commission stated:
In the circumstances of this case, it was particularly appropriate to authorize Carolina Power to perform such work. As explained above, even though the staff 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 s tatement based on these revisions (recommending a grant of cons truction permits) had been 1ssued.
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 cons ideration 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 the requirements of NEPA have been fully met, and the record amply demonstrates that the environmental af fects of site i
i preparation activities will be ins ignificant. These recent reviews reaffirm the 1977 FES finding that site preparation l
l activities would not have significant environmental impacts l
l
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 modes t cos t. The significance of the environmental impacts and the degree of redress necessary must also be viewed in the context of the The site of intended future alternate uses for the site.
the proposed activities is within an area pf 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 involve clearing, road construction, railroad service, and water and sewer lines. In addition, mos t of the harves table timber in the l related to area has been removed due to considerations not CRBRP. Thus, not only are the environmental impacts of the l
l proposed activities ins ignificant, but they are redressable 24/ Letter to J ames B . Edwards, Secretary of Energy from A.
f Alan Hill, Chairman, Council on Environmental Quality l
(J an. 27, 19 62 ) .
both to the site's original condition or to a condition appropriate for alternate use. ,
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 approximat sly 49.6 million. If the basic service facilities are left intact, however, the cost of redress would be reduced to about $7 million, resulting in a savings of 42.6 million for redress of the site and substantially benefiting
~ future alternative industrial users of the site. Thes e service facilities would have a replacement cost to any future industrial user of about $30 million.
C. No Reasonable Alternatives Will Be Foreclosed By Conduct of the Proposed Activities Because no safety-related or permanent cons truc-tion activities are proposed, an appropriate range of design l
t alternatives will not be foreclosed by conduct of the pro-posed activities. See SPAR, Section 6.1. L ikewis e , a ,
reasonable range of alternative site uses can be completely i
t .
25/ Both the NRC S taf f as well as a majority of the Commissioners agree that the impacts of the proposed activities are redressable. S ee NRC S taf f Report ,
suora at 28-29; United States Department of Energy, suora (separate views of Commissioners Palladino, Roberts, Ahearne and Bradford).
preserved by subs tantially res toring the site to its original condition. See SPAR, Section 6.2.
The alternative of abandonment of the proj ect also 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 proj ect cost. The rela-tively small investment for site preparation activities 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 proj ect economically viable. See Carolina Power & Light Co. (Shearon-Harris 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 72) (Davis-Besse), the Court of l Appeals, while approving the four f actor tes t of
! S ection 50.12, added an additional refinement. The Court required that the Commission consider whether adoption of the alternative of abandonment would be precluded by additional inves tment in the proj ect.
27] See NRC Staff Report, suora at 3 2-33 ; United States D epa rtment of Energy, suora (separate views of Commissioners Palladino, Roberts, Ahearne and B radfo rd) .
25/ See also United S tates Department of Energy, suora.
i e
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D. The Public Interes t Would Be Bes t Served By Grant of the Request As discussed in detail in Section 7 of the SPAR, grant of this reques t will promote or support a number of important national policies. F irs t , as noted above, the P res ident , 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 CRB RP . 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 bes t promoted and the public interes t best served through the Commission's grant of this reques t.
Second, the grant of this reques t will further the Department of Energy's LMFBR Program, and accelerate the informational and programmatic benefits from that program.
The CRBRP is an integral part of the program and the tech-nical information which will be obtained from cons truction and operation of CRBRP are necessary to the continued development of the LMFBR Program. In particular, grant of the Section 50.12 request will permit CRBRP to provide information in a timely fashion necessary to support the LFMBR Base Research and Development Program, and Large Developmental Plant, and the LFMBR Fuel Cycle Program, and will substantially enhance the prospects for success in those programs.
l
1
- t 30 -
Third, the grant of the reques t will have a substantial 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 effective non proliferation policy, and (3 ) revitilization of the U.S. leadership role and influence in nuclear technology.
F ourth, 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 that 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 105-100 (F eb ruary 16, 1982); S tate of Tennessee S enate Resolution No. 205 (April 22, 1982) l
- 31 -
Under thes e circums tances, Applicants submit that the public interest clearly favors grant of this reques t.
IV. ON BALANCE OF ALL RELEVANT FACTORS, THE COMMISSION SHOULD GRANT THE SECTION 50.12 REQUEST Although the Commission must assess all four f actors under Section 50.12, no one f actor is controlling.
Rather the decision to grant a Section 50.12 request can be "made only af ter a careful balancing of the f actors enumerated in S ection 50.12 (b). ... " Washington Public Power Supply Sys tem (WPSSS Nuclear Porj ect Nos. 3 and 5)
As demons trated in the SPAR and the S taff evalua-tion of the SPAR, (1 ) the proposed site preparation activities will not result in any significant adve rs e 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-mitted themselves to redress should a cons truction permit be denied. Thus, Applicants have made a strong case under the f irs t three S ection 50.12 f actors.
l l
I
In cons idering 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 thre? f acto rs .- Applicants submit that the following factors conclusively demons trate that grant of this reques t will serve the public interest:
1 Grant of the Section 50.12 reques t will result in the avoidance of a 6-12 month delay;
- 2. Subs tantial informational and other benefits 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 reques t will not be precedent s etting; and
- 5. All elements of licensing process will be pre-l served and a full NRC licensing review will be conducted.
Thes e factors , when prope rly balanced, cle arly favor the grant of this reques t. Because the impacts are not s ignif icant , the environcental ef fects are redressable and grant of the request will not foreclose any reasonable l 30f SPAR at 7-2.
l 31/ SPAR at 7 7-13.
s , i alt ernative , grant of the reques t will be entirely con-sistent with NRC's primary responsibility to protect the public health and safety 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 Commiss ion, 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 reques t. .
m - - -
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 ible .
Respectfully submitted,
-=-
Leon S ilvers trom Attorney for Department of Energy
~
eorge L.- dgar' A ttorn for Proj ec Management Corporation DATED: July 1, 19 82 l
t I
l . _.
. , 6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONERS
)
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 l
. r6
- Marshall E. Miller, Esquire Chairman 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 Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20545 (3 copies)
William M. Leech, Jr., Attorney General l William B. Hubbard, Chief t
Deputy Attorney General Lee Breckenridge, Assistant Attorney General State of Tennessee l Office of the Attornev General 450 James Robertson P'arkway Nashville, Tennessee 37219 l
I
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, Tennessae <37902 (2 copies)
- Dr. Thomas Cochran, Esquire Barbara A. Finamore, Esquire Natural Resources Defense Council 1725 Eye Street, N. W., Suite 600 Washington, D. C. 20006 (2 copies)
Ellyn R. Weiss, Esquire Harmon & Weiss 1725 Eye Street, N. W., Suite 506 Washington, D. C. 20006 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, Tennessec 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 Washington, D. C. - 20585 (2 copies) <
Eldon V. C. Greenberg Tuttle & Taylor 1901 L Street, N. W., Suite 805 Washington, D. C. 20036
l e of Commissioner James Cotham Tennessee Department of Economic l and Community Development
, Andrew Jackson Building, Suite 1007 ,
Nashville, Tennessee 37219 Georgegr. Edgar g Attorney for Proj ect Management Corporation DATED: July 1, 1982 i.
- Hand delivery to 1717 "E" Street, N.W., Washington, D. C.
- ** Hand delivery to indicated address.
- Hand delivery to 4350 East-West Highway, Bethesda, Md.
- Hand delivery to Maryland National Bank Building, Bethesda, Md.
I v-