ML20058A508
| ML20058A508 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 05/13/1981 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, TASK-AINV, TASK-SE SECY-81-303, NUDOCS 8110290089 | |
| Download: ML20058A508 (6) | |
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SECY-81-303 May 13, 1981
/ DJUDICATORY ISSUE (Notation Vote)
For:
The Commissioners Fron:
James A. Fitzgerald Assistant General Counsel REVIEW OF ALAE-636
Subject:
(In the Matter of Consumers Pcser Company)
Facility:
Eig Rock Point Nuclear Plant To inform the Ccmmission of an Appeal Board deci-t
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sion{and to reccmmend
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~'l EV 6
~Furccse.
Review: Time prires:
May 26, 1921.
In ALAE-636 the Atomic Safety and Licensing Appeal Discussicn:
Board reversed the Atomic Safety and Licensing Board i
on a certified question involving the application of the National Environmental Policy Act to an amend-ment for a plant licensed before the effe_ctlyL_dite of NEPA..fWe do not_believe f)
Eackcround On September 12, 193C, the Licensing Board held that a license amendment authorizing the expansion of a
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spent fuel pool is a major federal action triggering the preparation of an environtental impact statement
$02 on the effects of the expansion itself and the addi-l 9 930412 tional term of operation allowed by the anendment.
GILINSK92-436 PDR LEF-30-25,12 NRC 335.1/
The Beard's ruling rested primarily,on its determfnation that the purpose cf the amendment was to enable the " licensee to utilize a greater term of the license than would otherwise be possible..."; therefore the direct and indirect s,,.
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effects of continued plant operation must be consid-4 ered.
12 NRC at 363 Since it is a well-established Mi
'I ccnclusion that operation of a nuclear power plant Nuclear Flant, a 72 MWe reactor, was provi-The Big Rock Point
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siona21y licensed in 1962 and fully licensed in 1964, more than five years prior to the effective date of NEPA (January 1, 1970).
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li:maka b !Y.s re::d on 6:eSJ h0;;0:53nte with the fr?2%n cf In.'orm3! ion CONTACT:
Act, cy.cmptions 8
Marian E. Moe, 030 FOIA f l--- D d -
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2 involves significant envircnmental impacts, (See Calvert Cliffs v. AEC, 449 F.2d 1109) and these impacts had never been assessed previously for Big Ecek Point, the Board ruled that NEPA required preparatien of an EIS in this case.
Following briefing and oral argument, the Appeal E c ar.d reversed the Licensing Board's ruling en.
March 31, 1981.
The Appeal Board's decision was based en the assumption that no modifications affecting reactor operation were authorized by the license amendment and that only environmental changes resulting from the amendment need be evalu-i ated in determining whether to proceed with an EIS.
Although one consequence of the amendment was to allow continued operation, the Appeal Board focused on the expansion authorized by the license amendment and found that it was not a major federal action with'significant environmental impacts because it did not alter the environmental status quo.
Therefore, in the Appeal Board's view, the threshold requirement to prepare an EIS was never met and the Licensing Board's order to prepare one was in error. _2/
NEPA ;uestien The major questien raised by ALAE-636 is whether, in a case where no environmental review has ever teen ecnducted on a nuclear plant's cperation tecause it was licensed pre-NEPA, an amendment to 211cw 5?? expansion and continued plant operation is a najcr federal actior with significant envircn-mental effects requiring preparatien of an EIS.
- n finding that the proposed amendment meets the thresh:1d requirement for NEPA review, the Licensing Ecard relied primarily on the reasoning of Minnescta Futlic Interest Research Group v. Butz, h98 F.2d 131c (5th Cir. 1974) [ hereinafter "MFIEG"] and Jicarilla Apache Tribe of Indians v. Kerton, 471 i
1 1
-2/
Three petitions for review and a responsive pleading by staff were j
i c4 ea However petitions from decisions on certification are not a55ohed under UkC's rules of practice.
They have not been considered in our analysis of ALA3-630.
3 F.2d 1275 (9th Cir. 1973).
In both cases EIS's i
were required for Federal actions taken post-NEPA on projects initiated pre-NEFA.
In MPIRG, the Fcrest Service was required to " approve locations cf tinter roads, logging camps and buildings; mark trees to be cut; and negotiate payments for the tim-i ber cut" as part of contract extensions after January 1, 1970.
498 F.2d at 1322.
The ecurt locked to the fact that the administration of the i
contracts required continual involvement of Forest Service personnel and that certain post-NEPA con-tractual modifications were made for " environmental" reasons in ruling that the logging contracts had a significant environment effect.
Jicarilla likewise involved post-NEPA permit appro-vals of an existing project which triggered an environmental assessnent under NEPA.
There, Depart-cent cf Interier approvals for rights-of-way, stack.
heights and pollution control devices were necessary before a coal power plant could operate.
The Court held that the fact that it is not practicable to reassess the basic course of action by itself does not mean that a full envircnmental review can be evaded when a "further major action [is] taken pursuant to the basic course of action."
E71 F.2d at 1253 However, it was because the further actions taken in Jicarilla were themselves najor federal actions having a significant environmental impact that an EIS was required.
The court noted that because the further actions could still be
" shaped so as to mininire adverse envirennental l
effects" at the time the perrit approvals were r
cade, it was more likely that the approvals had a significant impact on the amount of pollution coming frer the ccal plant.
471 F.2d 1282-53 In deciding that an EIS was required fer Eig Rock icint, the Licensing Board distinguished two NRC Appeal Board decisions which held that no EIS was each required for SFP expansions on the basis that cf those plants had previously undergene a full envircnmental review.
See Fortlanc General Electri:{
Company (Trojan Nuclear Flant), ALA5-531, 9 NRC 2c3 J
(1979) and Ncrthern States Power Company (Frairie Island Generating Plant, Units 1 and 2), ALAB 455, 7 NRC 41 (1978), recanded on other grounds sub nom.
Minnesota v. NEC, 602 F.2d 412 (D.C. Cir. 1979).
The Licensing Board read those cases as deciding
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i that no EIS was required because the proposed-action would have "no significant effect other than that which had already been assessed in an Environ-i nental Irpact Statement."
12 NRC at 362.
Since NEPA does not require cuplicative environmental evaluations, no EIS was needed for those amendments.
l The Licensing Board carefully limited the scope of its EIS mandate to the incremental effect of.the proposed action beyond what was in existence pre-viously, but analyzed the " Federal action" involved as permission for the additional term of operation.
l The Appeal Board franed the issue differently, with a contrary result.
In the Appeal Ecard's view, the fact that the SFP modification dces not affect the basic plant operation neans that it does not signi-l ficantly affect the quality of the human environment.
The centinued cperation is considered an " indirect" effect of the proposed federal action, as opposed to the. environmentally insignificant " primary" effects of the expansion itself.
While conceding that it is a reasonable possibility that the plant l
would have to shut down in the near future without the SF? amendment, the Appeal Board considered the status quo to be the plant in its current operating condition - not as a plant shut down in the future l
due to lack of SFF storage space.
In support of its analysis, the Appeal Board relied t
upcn several Court of Appeals NEFA decisions.
In a recent :.C. Circuit case, Committee for Auto Respon-l sibilit:. v. Solocen, 603 F.2d 992 (D.C. Cir. 1979),
i cert. denied, Ah5 U.S.
915 (1980), the General Service Administration's decision to lease a parking c
let to a ranagenent firm was challenged en the ground,
that an E!S was required prier to the leasing decisic,
The Ccurt held that since the level of pollutants wcu te unchanged and the environmental status que wculd rena'n the sane, no duty to prepare an EIS arose.
The Court noted that since the project was completed well before 1970 apparently no EIS had ever been pre pared for the parking lo,t facilities.
See also 1
Westside Property Cwners v. Schlesinger, 597 F.2d 1214, 1217-lc (9th Cir. 1979) (no EIS required on environmental effects of mere continued operation t
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5 of a facility under a new ranager); Sierra Club v.
Hassell, 636 F.2d 1095 (5th_Cir. 1981) (no EIS required for reconstruction of bridge destroyed by hurricane; status quo was envirorsent with bridge l
in place).
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I Remaining Issues (1) The Appeal Board also remanded to the Licensing Board for its reconsideration its order thap the i
staff prepare an EIS on the SFF exoansion. lWhile we think (2) The Licensing Board had decided that since Section 102(2)(C) of UEFA required an EIS (including l
a discussion of alternatives to the proposed action) it need not decide the issue whether Section 102(2)(I ;
independently required consideration of alternatives to the SFP expansion.
The Appeal Board, on the other hand, requested the parties to-brief the 102 l
(2)(E) issue and decided that it would be premature to rule on the question before the staff completes its environmental analysis. fke think l
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)
(3)
Finally, the Appeal Board granted the appli-cant's motion to strike certain materials submitted i
by the Council en Environnental Quality following pral_ argument as imoroper supplemental argument.
6Y.$
Recomr.endation:
0 h,.. '.) N A.. / V lames A. F1 gerald
\\/ Assistant General Counsel
Attachment:
ALAE-636 Commissioners comments should be provided directly to the Office of the Secretary by c.o.b. Friday, May 22, 1981.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT May 20, 1981, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the
' Commissioners and the Secretariat should be apprised of when comments may be expected.
SECY NOTE:
Review time expires May 26, 1981.
DISTRIBUTION:
Commissioners Commission Staff offices P
- - J c o,
0otVITED UNITED STATES OF AMERICA ssne NUCLEAR REGULATORY COMMISSION 2
APR 21981 >. r ATOMIC SAFETY AND LICESSISG APPEAL BOARD
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0e.r~., a at M t'n s
W.-; 4 h3 j/
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Administrative Judges:
d' h>
s Thomas S.
M ore, Chairman Dr. John H. Buck gI'fD Christine N. Kohl l$$f
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In the Matter of
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)
CONSUMERS POWER COMPA'Y
)
Docket No. 50-155 OLA
)
(Spent Fuel Pool Expansion)
(Eig Rock Point Nuclear Plant))
)
Mr. Joseph Gallo, Washington, D.
C.,
and Mr. Peter Thornton, Chicago, Illinois, for the applicant, Consumers Power Ccapany.
Ms. Janice I.
Moore for the Nuclear Regulatory Commis_sion m,
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Mr. Jchn P.
O'Neill II, Maple City, Michigan, intervenor pro se.
Mr. Eerbert Se-el, Washington, D.
C.,
for intervenors Cnr sta-Maria, JoAnne Bier, and Jir E. Mills.
Mr. John A.
Leithauser, Levering, Michigan, non-party participant prc se.
Messrs.
C.
Foster Fr.ight and John F.
Shea III and Ms. Gail Osherenko, Wasnington, D.
C.,
for a.icus curiae Council on Edvironmental Ouclity.
DECISION March 31, 19El (ALAS-636)
In its m morandum and order of Septerber 12, 1980, the Licensing Board held that where a reactor has never undergone an environmental review, Section 102 (2) (C) of
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. the National Environmental Policy Act (NEPA), 42 U.S.C.
4 332 (2) (C), requires the preparation of an environmental impact statement (EIS) covering the effects of a proposed spent fuel pool expansion and the additional term of reactor cperation that such expansion would perdit.
LBP-80-25, 12 NRC 355, 259, 366 -1/
We accepted the Licensing Board's rsferral of this interlocutory ruling, and the parties have 2/
~~
briefed and argued the matter.
See 10 C.F.R. 2.730 (f).
.;/
Section 102(2) (C) provides, in pertinent part:
The Congress authorizes and directs that, to the
- all agencies of the fullest extent possible:
Federal Government shall --
include in every recommendation or report on pro-posals for legislation and other major Federal actions significantly af fecting the quality of the human environment, a detailed statement by the responsible official on --
(i) the environmental impact of the proposed
- action, (ii) any adverse environmental effects which-cannot be avoided should the proposal be imple-
- rented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commit-ments of resources which would be involved in the proposed action should it be implemented.
2/
We invited the Council on Environmental Quality (CEO) to participate as an a:nicus curiae.
It accepted our invitation and appeared in support of the Licensing Board's decision.
I 1
For the reasons explained below, we cenclude that the Beard erred.
Unless the proposed spent fuel pool expansion will change reactor operation, the agency's environmental review for this license amendment need -not consider the con-tinued plant operation that the expanded pool might' permit.
I.
A.
Intervenor John O'Neill II, in his Contention VIII, first raised the issue of continued plant operation occasioned by the proposed expansion of Big Rock's spent fuel pool.-3/ At a special prehearing conference on December 5, 1979, Mr. O'Neill contended further that a cost-benefit analysis would show that closing the i
plant would not cause undue hardship because the small amount of power it produces could be easily replaced.
Tr. 215-216.
Applicant Consumers Power Company (CPC) argued, on the other hand, that continued plant operation is not the object of the proceeding and thus should not be considered.
CPC also noted
_3/
Mr. O'Neill's Contention VIII, as submitted, stated:
Granting of the license is the only way the plant can operate past the year 1981 as things stand now, 3
and thus allow an extension of plant activity that would otherwise be halted.
Bence, it is a tacit approval of such extended operation, and should include a review of general plant safety.
- The Kemeny Commission has recommended
" periodic relicensing of existing atomic i
plants on the basis of hearings, inspections and performance criteria."
Big Rock produces very little electricity compared to modern nuclear generators, 73 megawatts at most; the closing of Big Rock would not cause great hard-ship.
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_4-b that it expected the staff to issue an environ.r. ental impact a.c. ora isa l (IIA) with a " negative declaration" ( i. _e.,
no significant environmental impact from the expanded spent fuel pool itself).
Tr. 217.
Apparently concerned about the ade-
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quacy of an EIA because Big Rock was licensed before the enact-ment of NEPA and thus had never had an EIS, the Licensing Board deferred ruling on Mr. O'Heill's contention.
Instead, it requested the parties to brief the following question (LBP-80-4, 11 NRC 117, 133 (19 8 0) ) :
Where the facility has never been subjected to a National Environmental Policy Act of 1969 (NEPA) review because it was licensed before NEPA, does a license amendment which would permit the con-tinued operation of the f acility either require or permit considering a cost-benefit analysis or the need for power in the license amendment proceeding, notwithstanding that the staff may issue a negative 6eclaration?
Although the staff had not yet issued any environmental statement, all of the parties briefed the question, assuming ar uendo that the staff would eventually issue a " negative j
declaration" IIA similar to those in other spent fuel poo' proceedings.-4/ In its decision, the Licensing Board first i
--4/
The participating parties include a group of intervenors (Ms. Christa-Marig et al.) as well as the applicant, NRC staff, and Mr. O'NeIl1~~ The Licensing Board also permitted Mr. John Leithauser to brief the NEPA question even though it had already denied his petition to intervene.
11 NRC at 133, 123.
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concluded that the full environmental review of both the expanded spent fuel pool and the continued plant operation t
it would permit would not result in an illegal retroactive c
h application of NEPA.
Although the Board determined that I
the continued operation of Big Rock was not an " ongoing Federal project" -- which in many cases necessitates an EIS --
it viewed the proposed license amendment "as requiring a new Federal action for the sole purpose of enabling [ applicant) to make a fuller utilization of its operating license than it r
could otherwise. "
12 NRC at 359.
It further characterized
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r this as "a new Federal action.
required to enable a 1
private party to complete a project initiated prior to the i
effective date of NEPA," citing Minnesota Public Interest j
t Research Group v. Butz, 498 T.2d 1314 (8th Cir. 1974) [here-i inafter "MPIRG").
_I _d. at 360.
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I The Licensing Board also concluded that ordering an EIS for the continued operation of Big Rock would not conflict j
with the holdings of Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 2 63 (1979), and Northern States t
Power Co. (Prairie Island Generating Plant, Units 1 and 2),
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l ALAB-4 55, 7 NRC 41 (1978), remanded on other grounds sub nom.
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Minnesota v. Nuclear Regulatory Commission, 602 F.2d 412 I
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J (D.C. Cir. 1979).
It viewed the Appeal Board's finding that no IIS was required in either Trojan or Prairie Island "as l
i being based merely upon the principle that NEPA does not I
require the preparation of duplicative environmental reviews for every najor Federal action."
Id. at 361.
Unlike Big t
Rock, both nhe Trojan and Prairie Island reactors were the subject of an EIS prepared for their original permit and f
licensing proceedin gs.
But here the Licensing Board reasoned 1
that "because no environmental review was made at the time of the granting license, there would be no duplication, and the f
rederal action sought, for the sole purpose of permitting i
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a fuller utilization of the license, must be assessed."
Ibid.
i Another important element of the Licensing Board's de-I l
V cision was its finding that approval of this license amend-i ment -- which ostensibly would permit applicant "to utilize i
t a greater term of the license than would otherwise be possible --
i would be a major federal acticn with a significant impact on i
J the environment.
_I _d. at 3E3-3f4.
The Board directly linked l
i the spent fue2 pool expansien with continued operation.
- Then,
[
by noting that "[i]t is well-established that operation of j
a nuclear power plant has a significant effect upon the t
human environment," id. at 364 n.2, the Board easily made I
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j the critical finding that triggers NEPA's EIS requirement.
The Licensing Board thus ordered the staff to prepare an EIS l
l but explicitly limited the scope of that analysis to the incre-f mental envircnmental effects of the pool expansion and the l
increased term of plant operation.
Id. at 365, 366v /
b i
Intervenors had also argued that Section 102(2) (E) l of NEPA, 42 U.S.C. 4 332 (2) (E), requires the consideration of alternatives to the pool expansion (including plant shut-even when no EIS is required. E/
But because the Li-down),
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censing Board grounded its holding on Section 102 (2) (C) of i
i NEPA, which it characterized as more comprehensive, it found j
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The Board also admitted Mr. O'Neill's Contention VIII and
)
restated it as follows (12 NRC at 366).
l An environmental review of the proposed j
spent fuel pool expansion is necessary under Section 102 (2) (C) of NEPA and would l
indicate that the environmental costs of j
this expansion exceed the benefits.
j i
_6/
Section 102(2) (E) provides:
l l
The Congress authorizes and directs that,
- *
- all i
to the fullest extent possible:
agencies of the Federal Government shall --
l study, develop, and describe appropriate i
alternatives to recommended courses of action in any proposal which involves l
unresolved conflicts concerning alter-native uses of available resources.
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1 8-it unnecessary to determine the independent applicability 3
of Section 102(2) (E) to this case.
Id. at 359.
After i
accepting the Board's referral, however, we directed the parties to brief the Section 102(2) (E) point along with their other arguments on appeal, t
B.
Eefore us, applicant CPC first argues that the Licensing Eoard misconstrued the scope of this proceeding.
The proposal, it asserts, is sinply to expand Big Rock's spent fuel pool capacity, not to continue plant operation.
The notice of hear-ing (which reiferred only to the spent fuel pool) and the Appeal Board decisiens in Trojan and Frairie Island assertedly rein-force CPC's " limited scope" argument.
The " relevant incuiry,"
in CpC's view, "is not whether the original license was pre-ceded by NEPA review, but whether the acendment sought signif-icantly changes the environnental impacts of the projects as originally approved."
Er. 12.
2 Second, in an effort to distinguish cases such as !!PIRC, J
on which the Licensing Board relied, CPC contends that
- supra, the pcs:-nEPA modifications of pre-SEPA projects at issue there i
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-- unlike the Big Rock spent fuel pool expansion -- were them-4 h
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selves further major federal actions necessarily requiring a full environmental review.
It therefore asserts that scrutiny of Big Rock's continued operation, which was ori-ginally licensed in 1962, would result in an improper retro-7/
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active application of NEPA.
Third, assuming arguendo that the Board correctly con-i cluded that continued plant operation must be considered in an environmental review, CPC argues that the Board failed I
to comply with the Commission's regulations, 10 C.F.R. 51, by not awaiting the staf f's environmental analysis.
Conse-quently, CPC contends that this " procedural irregularity" (Br. 20) deprives the Board's conclusion of factual and record support.
Finally, CPC urges us to decide whether Section 102 (2) (E) is applicable.
Relying on the brief it filed before the Licensing Board, CPC contends that this section of NEPA does not apply where, as here, there are no " unresolved con-flicts concerning alternative uses of available resources" and the involved proposal has only " negligible" environmental edfects.
7/
Big Rock received a " provisional" operating license in 1962, followed by a full-term operating license in 1964.
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o The NRC staf f argues that the Licensing Board's decision l
does not comport with the Commission's regulations (10 C.F.R.
l
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51), which, in both their present and proposed (amended) form, do not require an IIS for a spent fuel pool expansion.
Relying on Andrus v. Sierra Cip,b, 442 U.S.
347 (1979), the staff con-tends further that requiring an EIS in this proceeding would improperly "trivialize" NEPA.
The staff asserts that con-sidering the environmental impacts of plant operation, whether past or future, would result in an illegal retroactive appli-cation of NEPA as well.
The staf f views the Licensing Board as lacking authority l
to order the preparation of an EIS before the staff submits r
l its own independent appraisal.
Like CPC, it also argues that l
the scope of the proceeding is defined by the notice of hear-ing.
The environmental effects of continued plant operation, it argues, are beyond the scope of an application to install afditienal racks in a spent fuel pool.
With respect to Section i
i 10 2 ( 2 ) (E), the staff urges us, if necessary, to determine its r
relevance, rather than to remand the issue to the Licensing Board.
The staf f believes that although Section 102(2) (E) may require concideration of alternatives regardless of whether j
an EIS is required, there are no " unresolved conflicts" in h
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b this proceeding to invoke that requirement.- /
8 In support of the Licensing Board, Ms. Christa-Maria, et al., argue that because authorization of this spent fuel pool expansion would permit the plant to continue operating, t
it is a major federal action with a significant impact on the environment. -~9/
Because the plant's operation has never been evaluated for environmental impict, NEPA, in their view, recuires such an evaluation now (in the' form of an EIS) for continued reactor operation.
Intervenors thus' emphasize that such an environmental review would not be the duplicative one held to be unnecessary in the Trojan and Prairie Island decisions.
Intervenors also contend that requiring an EIS on con-tinued plant operation is not a retroactive application of SEPA because (1) tne EIS ordered by the Licensing Board would concern only prcspective plant operation, and (2) the governnent is being asked here, as in MPIRG, supra, to S/
The staff points out (Br. 30), however, that it "has traditionally considered some alternatives to spent
~~
fuel pool expansion in the environmental impact apprais-als which have been issued" and that it " presently intends to consider alternatives in whatever environ-uental document it produces with relation to the Big Rock facility."
The staff proposes to rely on the Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, NUREG-0575 (August 1979), for this purpose.
Id. at 31.
~"f Intervenors emphasize that CpC itself stated in its i
o application that the expansion of the spent fuel pool was "to allow continued plant operation."
Br. 1, 20.
. J approve a further major action "' required to enable a pri-vate party to complete a project initiated prior to the effective date of NEPA.'"
Br. 16. Ms. Christa-Maria, et al.,
vigorously dispute the arguments of the staff and CPC that the Board exceeded either its jurisdiction or the proper scope of the hearing, arguing not only that NEPA requires an EIS in this case, but also that the Board and Commission have discretion to order its prep ration.
Id. at 21-24.
They point out that no agency regulation " deprives the Licensing Board of its authority to require an EIS," and they note NEPA's broad mandate to federal agencies to carry out its provisions "to the fullest extent possible" (42 U.S.C. 4332).
Id. at 23, 7.
With respeer to the notice of hearing, intervenors state that its purpose "is simply to advise the public that f
a proceeding concerning a particular f acility has been com-menced and {to describe) its general nature, not to set forth a pleading delineating the issues. "
Id. at 26.
Thus, the argument goes, the notice of hearing in no way limits the scope of environnental inquiry in this spent fuel pool proceeding.
Intervenors also reject the argument that the Licensing Board improperly interfered in the staff's performance of its duties by requesting an EIS, instead of the allegedly forth-t coming EIA.
Chey contend that the Board acted wholly in accord 1
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with its authority and obligation to avoid delay by ordering the staff to do now what it believed NEpA would inevitably l
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require as a matter of law.
Id. at 30-31.
Finally, Ms. Christa-l Maria, et al., argue that the Licensing Board, if necessary, t
should have the initial opportunity to decide the applicability c
of Section 10 2 (2) (E).
In the alternative, however, they request
[
f an extra two weeks in which to brief the issue.
t i
The position of intervenor O'Neill parallels, in large measure, that of Ms. Christa-Maria, et al.
He also presses several points not raised by the other intervenors.
For instance, Mr. O'Neill suggests (Er. 5-9) that the spent i
fuel pool expansion itself -- apart from the continued plant 7
operation it might permit -- is a major federal action with a significant impact on the environment, thus requiring an l
t EIS.
In this regard, he discusses certain technical aspects l
of the pool and contends that this pool expansion proposal is "part of a' major new federal policy on' spent fuel reprocessing."
Id. at 8.
Mr. O'Neill expresses his confidence that an EIS 7
"will find significanr issues of fact that weigh heavily in favor of an alternative to pool expansion, including the al-ternative of doing nothinc."
Id. at 22.
Finally, relying l
r on his arguments to the Licensing Board, Mr. O'Neill asserts L
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that Section 102(2) (E) clearly requires consideration of alter-10/
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natives in this case.
_I_d. at 28.
In its amicus brief, CEO expresses views generally consistent with those of the intervenors.
It argues that because a new federal action is involved, the Licensing Board's decision to require an EIS on the spent fuel pool expansion and continued plant operation does not result in a retroactive application of NEPA, citing P_:IRG, supra, as support.
CEO states that the continued plant operation 10/
Mr. Leithauser, who as a consequence of the denial of his petition to intervene is not a party to this pro-ceeding (see note 4, supra), also filed a brief, al-though he failed to move for leave to do so.
See 10 C.F.R. 2.715(d).
No party, however, has objected to his continued participation.
We therefore accept his brief and accord him the status of non-party participant (essentially " amicus curiae") for the purpose of this appeal.
(Several procedural orders of this Board re-ferred to Mr. Leithauser as an "intervenor."
Those orders were not intended as sua sponte reversals of the Licensing Board's denial of his petition to inter-vene.
Rather, cur references simp 1v reflected Mr.
i
~
Leithauser's own characterization of his status in this case in :ne pleadings he filed that were the subject of the procedural orders.
- See, e.c.,
Leithauser Motion to Postpone Hearing, filed December 19, 1980; Br.
1, 7.)
Mr. Leithauser argues generally that NEPA is broad enough in its reach to require the preparation of an EIS on this spent fuel pool expansion.
In somewhat of a de-r parture from the position of both the Licensing Board and the intervenors, however, he seems to argue that Big Rock is an ongoing Federal project," governed by the line of cases holding that NEPA applies to any con-tinued federal involvement in such projects, even if the latter were initiated well before the enactment of NEPA.
Lastly, like Ms. Christa-Maria, et al., Mr. Leithauser requests additional time to brief the Section 102 (2) (E) issue.
1
- -r
. permitted by the pool expansion makes the proposal a " major Federal action
" and finds the absence of a prior EIS on the plant a significant factor further militating in favor i
11/
of a full environmental review of plant operation now.
It also addresses the applicability of Section 102(2) (E), contend-ing that certain court decisions, as well as CEQ's own regula-tions, require agencies to consider alternatives to a proposed action even when that action does not otherwise warrant an EIS.--12/
Applying Section 102 (2) (E) to the instant case, CEO concludes that there are indeed " unresolved conflicts concerning alternative uses of available resources," irrespective of whether the word " resources" is limited to " natural" ones (e.c.,
- land, air, water) or is given a broader construction.
II.
Soon after we held oral argument in this case, amicus CEO submitted a letter ("the January 19 letter") with several
~~11/ In another part of its brief, however, CEO states that the amendment involved here requires "a t a minimum, an environmental assessment to determine whether the pro-posed action significantly af fects the environment, and furthermore, the likely outcome of an environmental assessment for this action would be a decision to prepare an EIS." Br. 4 (emphasis added; footnote omitted).
12/
In this case, consideration of alternatives "would of necessity include the alternative of 'no action.'"
Id.
at 10.
4
. ~
attachments, purporting to relate to matters raised at the argument.
This material can be categorized as follows:
1 1.
Discussion in the January 19 letter of CEQ's special amicus role, its " mandate
'to review and appraise various programs and activities of the Federal Government in the light of the policy set forth in'"
NEPA, and the " binding" nature of the Council's regulations on other agencies (p. 1, paragraph 2; p.
2, paragraph 1; and the attached report of the Environmental Law Institute, NRC's Environmental Analysis of Nuclear Accidents:
Is it Adequate? (1950));
i 2.
Discussion in the January 19 letter concerning three letters from CEO to the NRC and others that express the Council's views on the adequacy of the Commission's NEPA incuiries in other cases (p.
2, paragraph 2), with the attached three letters, dated March 20, August 12, and August 14, 1980; 3.
Citations for and brief descriptions of four cases to which CE0's counsel referred during oral argument; and 4.
Corrections to the oral argument transcript.
Ap licant CPC has moved to strike essentially the matter l
described in items 1 and 2 above.13/
It argues that ineach instance this matter constitutes " supplemental argument" and is thus " impermissible af ter en appeal has been submitted for 13/
CPC does not mention the Environmental Law Institute
~~
report in its motion.
But since CEQ's reference to the l
report f alls within that portion of the January 19 letter i
that CPC moves to strike, we assume CPC objects to the report as well.
J P
y
,y-
decision absent an opportunity for all parties to respond 14 /
11/
thereto."
The NRC staf f supports the motion.
~~
We agree with CPC that those portions of the January 19 letter and enclosures to which CPC objects are improper sup-plemental argument.
He therefore strike them from the record.
See Consumers Power Co. (Midland Plant, Units 1 and 2), ALAS-115, 6 AEC 257 (1973).
Insofar as the references to CEQ's "special" relation-ship to other agencies are concerned, we recognize that the issue of the " binding" nature of the Council's regulations arose briefly during oral argument.
Tr. 65, 88, 96.
How-ever, we requested no further briefing of the matter, and, as shown below, the resolution of this issue is of no relevance to our ultimate decision.
It is clearly supplemental argument and is of no particular value in the disposition of this case.
yj/
- n lieu of our striking the matter, CPC reluctantly suggests that all parties be permitted to reply to the tendered matter.
15/
We recently received a letter from CEO urging us to deny applicant's motion.
Because the letter was an untimely
~~
response in opposition to -th.e motion (22 days late) and was not in proper pleading form, we must reject it for filing.
See 10 C.F.R. 2.708, 2.709, 2.710, 2.730(c).
The material submitted by CEO dealing with its views on the adequacy of the NRC's environnental reviews in other cases is similarly improper supplemental argument and is, in any event, not relevant to this case.
CEO itself injected this matter into the oral argument.
Tr. 66-67.
While we do not see its relevance, CEO had the opportunity to pursue this line of argument or policy position in its brief, but it 16/
failed to co so.
Fairness to the other parties precludes permitting CEO to pursue it new.
CPC's motion to strike is granted.
III.
A.
The situation presented by this case is unusual, if l
not unique. Big Rock Point nuclear plant, a private project, has been fully constructed and operative since 1962 and li-censed by the federal government for a full term since 1964 17/
-~
-- years before the effective date of NEPA.
The plant 16/
For example, the three letters of March 20, August 12, and August 14, 19 80, were in existence many months
~~
before CEO filed its brief with us.
1_7/
see note 7, supra.
--m._---
owner has now determined that a modification of the spent fuel pool is necessary and desirable for continued plant operation beyond 1984.
Although the change purportedly would not af fect the basic project (reactor operation) or 1.LI the term of the license, it nonetheless requires a license amendment and thus federal approval.
1 The need for government approval invokes the agency's cbligations under NEPA.
We perceive no real dispute among the parties that the Commission must make a threshcid deter-mination whether a " major Federal action significantly af-fecting the quality of the human environment" is involved here.
The disagreement, of course, centers on the outcome f
of that determination, for that in turn may trigger other cbligations and consequences for the Commission and the parties.
Because of the unusual nature of this case, it does not fit neatly into the categories or analytical framework sug-of the cases cited to us or discovered in our gested by most own research.
Those cases generally involved the issue of whether certain post-NEPA federal action on a project initiated
_1_8/ Big Rock's operating license is to expire in the year 2000 l
i 1
l 4
~
before NEPA, but not yet completed, constituted "further major action" so as to require an EIS.
- See, e.c.,
port of Astoria v. Hodel, 595 F.2d 467 (9th Cir. 1979); Sierra Club v.
Hodel, 544 F.2d 1036 (9th Cir. 197'6); MPIRG, supra; Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1.13);
j Jones v. Lynn, 477 F.2d 885 (1st Cir. 1973).
The government's suggestion in many of these cases was that projects underway or even simply planned before the enactment of NEPA were totally immune to the future prescriptions of that statute.
The courts, however, rej ected that notion, at least insof ar as any changes or additions to the projects were l
concerned.
If a further major federal action signifi.cantly af fecting the quality of the human environment is involved --
irrespective of the date of commencement of the basic project --
then NEpA perforce requires the preparation of an EIS for that further maj or action.
19/
~~
Given the nature of the matter before us, we find these cases inapposite.
The federal action sought here is approval of a license amendment to expand the capacity of the Big Rock Point spent fuel pool by the addition of extra racks 19 /
The first step in any NEpA inquiry is to define the
" Federal action" requested or involved.
Aberdeen and
~~
Rockfish R.R.
- v. SCRAP, 422 U.S.
289, 322 (1975).
1 1
i for the fuel assemblies; it is not approval to alter any other aspect of the f acility or the tenn of the license.
Moreover, the situation in Big Rock is unlike that in many
~
i of the cases cited above.
For example, Big Rock is not a government-sponsored housing program that evolves over a period of years.
See Jones v. Lynn, supra.
Nor is it a federal power project that similarly and typically undergoes r.any metamorphoses l
over a decade or longer.
See Port of Astoria, supra. Renewal of old contracts and negotiation of new ones - for activities on 1
federally-administered land are not involved.
See.33IRG, supra.
Further, we agree with the Licensing Board that this is not "an i
reevaluation to ongoing Federal project which requires constant determine whether it should continue."
12 NRC at 359.
l Thus, the object of this proceeding does not readily lend itself to characterization as a "further major Federal action."
No spen fuel pool expansion at any other facility has been found to be a " major Federal action," and no party to this proceeding save Mr. O'Neill, contends that the expansion per se is such an 20/
action.
Rather, the intervenors and CEO contend that the 20/
As discussed inf ra, we are unable to make any finding at fuel-this juncture as to whether this particular spent
~~
pool expansion itself is or is not a major federal action requiring an EIS.
That is a matter initially for the staf f's determination and subsequently for exploration during the hearing process m
continued plant operation intended to result from the pool expansion must be taken into account, and that it is this continued operation that makes the pool expansion a major action with significant environmental effects.
The parties offer no real support for their. view that continued plant operation must be considered, other than the argument that it is the necessary and intended result of the license amendment and is therefore within the scope of the proposal.
As such, the environmental ef fects or impacts associated with continued plant operation are best described i
as " secondary" or " indirect" effects of the proposed federal action, in contrast with the " primary" effects direct'ly as-sociated with the spent fuel pool expansion itself (the addi-tional racks, increased concentration of spent fuel, etc. ).
The critical cuestion then is whether NEPA requires con-l sideration of the secondary, indirect impacts associated with 21/
The Commission's environmental regulations, 10 C.F.R. 51, do not categorize an action's impacts in this canner.
As
~~
discussed infra, hcwever, a number of courts have employed this terminology and analysis.
CEQ's regulations provide useful guidance in this area as well.
" Direct effects" are defined as those "which are caused by the action and occur at the same time and place. "
40 C.F.R. 1508.8(a).
" Indirect ef fects" are those "which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.
40 C.F.R. 1508.8(b).
i i
i
22/
continued plant operation.
Many courts have concluded
~-
that "NEPA is concerned with indirect effects as well as direct effects," MPIRG, supra at 1322 -- providing one does not stray "beyond reasonable ' forecasting" into "the realm of pure speculation."
North Dakota v. Andrus, 4 83 i
2 'V Again, the Commission's environmental regulations do not address this matter.
We therefore reject the staff's lead argument that 10 C.F.R. 51, in either its present i
or its proposed form, somehow provides the solution to this probler.
We also reject applicant's argument that the notice of hearing forecloses consideration of anything other than the spent fuel pool itself.
As we recently pointed out in Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALA3-616, 12 NRC 419, 426 (1980), the hearing i
may enccmpass " issues fairly raised by the application to modify the spent fuel pool (Emphasis added.)
Continued plant operation, the intended result of an expanded spent fuel pool, is clearly an issue " fairly raised" by the application to modify the pool.
Although it may not necessarily be within the ambit of the environ-mental analysis recuired by NEPA in this case (see dis-cussion infra), we cannot say continued plant operation is beyond the Licensing Board's " jurisdiction."
Compare Public Service Co. of Indiana, Inc. (Marble Bill Station, Units 1 and 2), A LAS-316, 3 NRC 167 (19 76) (antitrus t issues beyond scope of hearing instituted to consider health, safety, and environmental effects of plant construction) ;
Portland General Electric Co. (Troj an Nuclear Plant),
ALA5-534, 9 NRC 2 5 7 (1979) (general safety issues and need for power beyond scope of special proceeding convened to consider interin operation of control building); Zion, supra (modification of overall plant emergency plan beyond scope of application to expand spent fuel pool).
i
l 24 -
23/
F.Supp. 255, 260 (D. M.Dak. 1980).
CEQ's regulations also suggest that, once an EIS is to be prepared, it should l
t include discussion of both direct and indirect effects.
40 C. F. R. 150 2.16 ( a) and (b).
(The Council's regulations do
~
not explicitly address, however, whether indirect ef fects should be considered when determining if an action is " major.")
In this case, assuming that no alternative storage for fuel is found -- such as a government-operated away-f rom-spent reactor ( AFR) f acility -- and that Big Rock is not shut down j
for a substantial period of time for other reasons, expansion of the spent fuel pool is necessary to permit the plant to continue operating beyond 1984.
Cral argument, Tr.
9'.
Although we do not believe that a denial of this license t
amendment would necessarily make shutdown a certainty, we reasonably characterize continued plant operation also cannot as a remote or speculative indirect consequence of a grant of the amendment.
Thus, one might quickly conclude that, in this case, NEPA indeed recuires consideration of the secondary impacts associated with continued plant operation.
--23/
But see, e.g., National Ass 'n of Government Employees v.
Rumsfeld, 4T8 F.Supp. 1302, 1305-1306 (E.D. Pa. 1976), and
~
cases cited therein, holding that NEPA is not concerned with " social or economic" impacts.in the absence of a primary significant environmental impact.
r-i
25 -
l The " rule of reason," which guides our interpretation and application of NEPA, however, precludes us from reaching so hasty -- or simple -- a conclusion.
See Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 834, 837 (D.C.
Cir. 1972).
We would be remiss in our responsibilities were we to fail to scrutinize carefully the realities of this matter.
CIQ has urged us not to "isolat[e] the action of the agency from the impacts."
Oral argument, Tr. 64.
We believe this is sound counsel, and,for that reason,we next consider the real impacts of the Big Rock spent fuel pool expansion.
We assure that, as in the case of other spent fu'el pool expansions, the applicant will undertake no modifications that will affect reactor operation or any other aspect of 24/
the facility.~~
Thus, after the addition of more racks for I
the fuel assemblies, Eig Rock Point will continue to operate i
as it has since 1962.
To be sure, such operation will have the usual environmental impacts, but they will be the same i
i 24/
We make this assumption in the absence of a thorough search of the record (in particular, the application)
~~
for support for this " fact."
We leave that function to the Licensing Board.
We note, however, that applicant asserts this on brief (at 13), and no other party cuarrels with the notion that increasing the capacity of a spent fuel pool does not effect any changes in reactor operation.
i
[
b
26 -
ones that have been present since the first day of operation.
Continued plant operation simply results in maintenance of the environmental status quo.
Insofar as this secondary or indirect effect is concerned, t'here are no environ-25/
mental changes to evaluate.--
We believe that in these circumstances, a reasonable application of NEPA does not recuire consideration of the continued plant operation permitted by the pool expansion.
Indeed, the whole purpose in considering primary or secondary impacts of an action is to determine if they have a cause-and-26/
effect relationship with any environmental chances.~~
- Where, as here, there is no change in the environmental stat'us quo, that purpose need not be served.
25/
Compare virginians for Dulles v. Volpe, 541 F.2d 442, 445 (4th Cir. 1976), where the court found "the FAA's accuiescence in the vastly expanded use of the airports j
require [d] an impact statement" (emphasis added).
26/
CEQ's definition of " indirect effects" reflects a siellar concern with measuring changes.
40 C.F.R.
(
1508.8(b) states (emphasis added) : " Indirect effects 2
may include growth inducing'ef fects and other ef fects i
related to induced changes in the pattern of land use, population density or crowth rate, and related ef fects on air and water and other natural systems, including ecosystems."
)
1 I
i j
27 -
several court of appeals decisions support this analysis.
In Committee for Auto Responsibility v. Solomon, 603 F.2d 992 (D.C. Cir. 1979), cert. denied, 445 U.S. 915 (1980), the court concluded that a General Services Administration de-l cision to lease a parking lot to a parking management firm did not require an EIS.
The court noted GSA's finding that the level of pollutants would not be altered from its existing level as a result of the new icase.
Since GSA's proposal would not alter the environmental status quo, the I
court held that no EIS was required.
As the District of Columbia Circuit stated, "[t]he duty to prepare an EIS normally is triggered when there is a proposal to cha.nge the status que."
Id. at 1002-1003.
Significantly for purposes of the instant case, an EIS apparently had never been prepared for the particular federal facility involved in Solomon.
_I_d. at 1002 n.43.
The Ninth Circuit also supports the view that NEPA does not require an EIS when an action does not directly or indi-rectly bring about any change in the environmental status quo.
In Westside Property owners v. Schlesinger, 597 F.2d 1214 (9th Cir. 1979), one of the issues was whether the formaliza-tion of a German-American pilot training program (which began
.m_
__-___mm_.-___-.___m_-.-_
in 1964) through a 1971 diplomatic agreement constituted a "maj or Federal action" recuiring an EIS.
The court concluded that it did not.
Id. at 1225.
Its decision was influenced by, inter alia, the following fact's:
(1) the United states approved the design of the training program long be-i i
fore NEPA; (2) "the 1971 agreement did not affect the pol-lution produced by the training"; and (3) a substantial amount of training had already occurred and was "in the same manner as the future training of German pilots."
Id. at 1224.
Strikingly similar factors exist in this case as well:
(1) Big Rock received its full-term license from j
the Atomic Energy Commission in 19 64 ; (2) the proposes spent fuel pool expansion, while permitting the plant to continue operating beyond 19 84, presumably will not result in any operational changes and thus will not affect the existing level of the environ ental impacts attributable to reactor 27/
operation;--
and (3) Big Rock has been operating for over 18 years and, if the amendment is approved, will continue to do so for the remaining term of its license (subject, of course, to other unrelated circumstances that may develop).
f 27/
See note 24, supra.
i
[
f i
- =.., - -
s
' i See also Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116-117 (9th Cir. 1980), cert. denied, 49 U.S.L.W.
3636 (U.S. Mar.
2, 1981); San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1025 (9th Cir. 1973').
Greene County Planning Board v. Federal Power Commission, 455 F.2d 412 (2d Cir. ), cert. denied, 409 U.S.
849 (1972), is similarly instructive, particularly because it concerns a hydroelectric power plant.
The basic project (i.e., the powerhouse and reservoirs) was planned, licensed, and under construction for six months before the effective date of NEPA, but the FPC specifically withheld approval of the transmission lines associated with the plant, pending further consideration of their ef fect on the environment.
Approval of the lines came af ter NEPA, and the ccurt held that the agency was bound to comply with the statute in that regard.
Insofar as the basic project (which was 80 percent complete) was concerned,-
)
however, the court found "no basis for applying NEPA retro-actively."
Id. at 424.
Although the Greene County court's approach differs somewhat from ours here, the case nonetheless provides a -
i useful precedent and analogy.
There, an environmental i
i analysis of the impacts of a power plant, not yet completed
. but licensed just six months before NEPA, wec not required in connection with the post-NEPA approval, soon thereafter, of related transmission lines.
It follows, therefore, that in connection with a proposal to expand a plant's spent fuel pool, NEPA does not require consideration of the environmental impacts of continued reactor operation where the plant was completed and licensed years before promulgation of that statute and has since been in operation for almost two decades.
Our conclusion is further fortified by the very purpose of a NEPA inquiry -- to identify aspects of a project that can still be changed to mitigate possibly detrimental environ-mental effects.
See Virginians for Dulles, supra at 446.
For example, in Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1332 (4th Cir. 1972), approval for the federal highway involved had "not been given, construction contracts
[had] not been awarded, and actual construction on the high-way itself [had) not begun" at the time of the NEPA challenge.
Since the project was f ar from complete, modifications to mitigate environmental effects were easily possible, and 28/
the court therefore required an EIS for any further action.--
l 28/
The same is true of Henry v. Federal Power Commission, 513 F.2d 395 (D.C. Cir. 1975), upon which CEO relies for its view that NEPA requires consideration now of (FOOTNOTE CONTINUED ON NEXT PAGE) l l
31 -
9 In this case, however, the reactor at Big Rock has been fully completed and operative since 1962, and the necessary " Federal action" (i.e., approval of the license amendment to expand the spent fuel pool) purportedly would not provide any opportunity to alter plant operation.
NEPA "is not an authorization to undo what has al-ready been done."
Jones v.
Lynn, supra at 890.
And just as we concluded in Troj an, supra at 266 n.6, and Prairie Island, supra at 46 n.4, that NEPA does not require dupli-cative environmental analyses, so too must we conclude that "to formulate an EIS [on continued plant operation] under these circa= stances would trivialize NEPA's EIS requirement and diminish its utility in providing useful environmental analysis for major federal actions that truly af fect the environment."
solomon, supra at 1003.
l 4
28/
(TOOTNOTE CONTINUED FROM P?IVIOUS PAGE) the environmental impacts of che entire Big Rock project.
Apart from the fact that tht court's actual holding in the case was that petitioners raised the NEPA issue prematurely, it is not without significance that the gasification project involved in Henry was neither licensed nor constructed at the time.
Thus, again, an EIS would serve a very useful purpose in identifying aspects of the total project still susceptible to modification on environmental grounds.
29/
Nothing in our holding is intended to suggest, however, that the Commission itself could not, as a matter of policy, require evaluation of the environmental impacts of the con-tinued plant operation resulting from a spent fuel pool (FOOTNOTE CONTINUED ON NEXT PAGE)
. 4 We believe our judgment here represents "a just and practicable balance" between the spirit of NEPA and the 31/
realities of this case.~~
Hence, we conclude that NEPA 29/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) expansion.
Neither NEPA nor the agency's environmental regulations, 10 C.F.R. 51, preclude such an exercise of discretica.
Cf. Offshore Power Systems (Floating i
Nuclear Power Plants), CLI-79-9, 10 NRC 257, 261 (1979).
In this connection, Ms. Christa-Maria, et al.,
contend that the Licensing Board had discretion to order the preparation of an EIS on continued plant operation.
Br. 21-25.
Because the Board did not
~
purport to exercise discretion but rather held that NEPA requires an EIS, we do not reach the issues of i
whether such discretion was the Board's to exercise and, if so, whether it properly exercised it.
30/
Jones v.
Lynn, supra at 887 31/
We note that the Supreme Court's most recent NEPA cases evicence a trend toward construing that statute in a manner consistent with our approach here.
Although these cases are not on point as to the issue before us, the Court's guidance is useful.
For example, Andrus v.
Sierra Club, supra at 349, 364-365, held that Section 10 2 ( 2) (c) of NEPA does not require federal agencies to prepare EIss to accompany appropriation requests be-i cause the latter are neither " proposals for legislation" nor " proposals for.
. major Federal actions. "
In Vermont Yankee Nuclear Power Corp.
- v. Natural Resources Defense Council, Inc., 435 U.S.
519, 551 (1978), the Court noted that "[t]o make an impact statement some-thing more than an exercise in frivolous boilerplate the concept of alternatives [in Section 102 (2) (C)] must (FOOTNOTE CONTINUED ON NEXT PAGE) i
- ~
. does not require consideration of the environmental impacts of the continued plant operation likely to result from expansion of the Big Rock spent fuel pool, assuming that expansion will not cause any changes in reactor operation.
If this assumption proves to be accurate, the scope of the agency's environmental inquiry may be. confined to the effects of the expanded pool itself.
We therefore reverse the 32/
~
Licens ing Board.~-'
i 31/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) be bounded by some notion of feasibility."
And in Kleppe v. Sierra Club, 427 U.S.
390, 399 (1976), the Court held that NEPA does not require " regional" in-pact statements where the proposed federal action is not regional in scope.
Such an EIS would be an exercise in the " impossible," "little more than a study.
containing estimates of potential develop-ment and attendant environmental consequences," and a document lacking in the "f actual predicate for the pro-duction of an environmental impact statement of the type envisioned by NEPA."
Id. at 402.
These decisions share in common one anoEner and this case a construction of NEPA that res not require an endeavor destined to be of little utility.
32/
Many of the arguments made and cases cited to us in this proceecing concerned the matter of retroactivity --
i.e.,
~
whether the Licensing Board's decision constitutes an improper retroactive application of NEPA.
In view of the approach we take in this opinion, we do not reach, and accordingly do not decide, that issue.
As we see it, our inquiry logically led us to determine first whether the impacts associated with continued plant operation were even a required area of consideration under NEPA.
We have determined that they are not.
Had we decided otherwise, our next step would have been to decide whether such consideration would violate the pro-scription against applying NEPA retroactively.
t B.
Our conclusion that NEPA does not require the agency to consider the environmental impacts of continued plant operation neither ends our inquiry nor provides a complete disposition of the rulings that the Licensing Board referred i
to us.
The Board ordered the preparation of an EIS " covering the environmental impacts of an expanded spent fuel pool" as well as "the additional term of operation of the facility i
that such expansion would permit."
12 NRC at 366.
Having determined that the Scard erred in finding that NEPA re-quires an EIS on continued plant operation, we now must decide whether the Scard also erred in finding that an EIS on the expansion of the pool itself is necessary.
There are two f actors of significance in the Licensing 9
Ecard's ruling on this point.
First, its order to prepare an i
EIS on the pool expansion is closely tied to its order to r
33/
i prepare an EIS on continued plant operation.--
Second, the i
31/ Indeed, the Board's conclusion that approval of a license amendment to expand a spent fuel pool is a major federal action with a significant ef fect upon the environment -- the finding necessary to trigger NEPA's EIS requirement -- is grounded on its belief that (1) the amendment's " cole purpose" is to enable CPC "to utilize a greater term of the license than would otherwise be possible" (12 NRC at 363; see also id. at 359, 360, 361), and (2) " making such operation possI51e for a period of ten years clearly con-stitutes a major Federal action" (id, at 364 n.2).
Y w
r i t t
i P
i Board had no " record" upon which to support its finding of l
significant impact because the staff has yet to prepare an EIA or any other environmental document.
In view of these f actors, we believe that the Board should reconsider its order to the staff to prepare an EIS l
on the proposed spent fuel pool expansion.
We therefore LLI reverse this ruling as well.
t As to the first factor (the linkage between the EIS l
ordered for the spent fuel pool and that for the additional term of plant cperation), our decision in the preceding I
section effectively eliminates continued plant operation i
from the scope of the environmental review NEPA requires in this case.
The Board should therefore rethink its decision in light of our opinion by focusing on the need vel non for an EIS on the pool itself.
r We also believe that the Board, in reconsidering its i
decision, should await the preparation of the staff's en-i vironmental analysis, whether that turns out to be an EIA or i
I 34/ The Board will also necessarily have to reconsider its restatement and admission of Mr. O'Neill's Contention VIII.
~-
f l-e v
.. A
. 35/
En EIS.-~
It is unwise, if not improper, to decide without the record support provided by the staff's environmental review, whether a given action significantly affects the environment.
See Jones v. Lynn, supra at 891.
35/
While this case was pending, the Commission approved the Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, NUREG-0575 (August 1979), and indicated that this document is now applicable to proposed spent fuel storage licensing actions.
46 Fed. Reg. 14506 (February 27, 1981).
The staff has already indicated its intent to rely to scme extent on this document.
Br. 30-31.
We note in this regard that NUREG-0575 itself states that "[blecause there are many variations in storage pool designs and limitations caused by spent fuel already in some pools, the licensing reviews must be done on a case-by-case basis."
NUREG-0575, Vol.
1, S-1.
Moreover, in approving the document, the Commission noted that its
" action does not affect any other requirements which may exist to address specific environmental and safety issues for individual licensing action."
Thus, presumably the staf f 's environmental review will take account of any factors that distinguish Big Rock f rom other plants -- e. g., its use of mixed oxid' fuel.
See Consumers Power Co. ~(Big Rock Point Nuclear Plant),
The extent to which NUREG-0575, with its generalized approach to spent fuel storage, is relevant to Big Rock, therefore, re-mains to be determined.
36/
In this vein, it does not seem logical to suggest, as the Licensing Board's opinion does, that an action that otherwise may not have a significant effect on the envi-ronment is transformed into one that does have such effect simply by the absence of an environmental review of a different, prior action.
l i
' i We appreciate the Licensing Board's desire and ef fort 37/
to avoid unnecessary delay in this proceeding.--
The Board believed that an EIA was forthcoming and that, as a matter of law, it would be inadequate, regardless of its content.
~
It therefore issued its ruling before ever seeing the docu-ment and in an obvious attempt to expedite the case.
How-ever worthy such an ef fort may be, this action must be balanced against the integrity of the hearing process.
And, in our view, the latter outweighs the former.
First, we find the assumption that precipitated the Board's action -- that the staff would issue its " usual" EIA on spent fuel pools -- to be an inappropriate prejudgment of the 38/
staff's position on an important issue.--
The Board, staff counsel, applicant, and all other parties should not encourage such prognostication, as it could have a chilling effect on the staff's ultimate recommendation.
The staff should be permitted to do its job in an honest and objective fashion, 37/
Indeed, we share this concern and trust that when the
[
Licensing Board resumes this proceeding, the staff will endeavor to complete its environmental review quickly.
The assumption apparently originated with applicant's 38/
counsel at the December 5, 1979, prehearing conference (Tr. 217), was later promoted by the Board (11 NRC at 133),
i and was eventually acquiesced in by the staff and other
- parties, i
-~ ~
I without being inhibited by perhaps the self-serving pre-dictions of one party or another.
Second, if the Licensing Board had permitted the staff to complete and submit its environmental analysis (whether an EIA or EIS), the Board would have had the benefit of a 39 /
" record" to aid it in reaching its conclusions.~~
- Moreover, the parties (and the Board) would have had the chance to defend or challenge the content and conc 3 usions of the document during the course of the. hearing, which provides the vehicle for contesting any perceived deficiencies in the staff's analysis.
See 10 C.T.R. 2. 718 ( g), 2.721(d), 51.52(d).
prematurely con-cluding that such a document is inadequate before it is even j
produced deprives the participants of their opportunity to explore the matter during the hearing, as the Commission's regulations contemplate.
I i
We emphasize that cur comments are not intended to reflect a judgment on our part as to whether this proposed i
spent fuel pool expansion is or is not a major action with a i
39 /
To illustrate, if the staff prepares an EIA and the f
Board agrees with its " negative declaration," the
~-
required explanatory text in the appraisal can, if adequate, provide the record support for the Board's conclusion.
See 10 C.F.R. 51.7(b).
I
l 1 j i
significant effect on the environment.
Rather, our purpose is to underscore the importance of not bypassing the j
staff's function and of permitting the hearing to take l
its natural course.
i l
C.
The final issue posed in this case is whether Section i
10 2 ( 2) (E) of NEPA requires the consideration of alternatives i
40/
i
~~
to this spent fuel pool expansion.
The Licensing Board concluded that it was unnecessary to reach this issue be-cause of its decision that the "more comprehensive" Section 102 ( 2) (C) required an EIS here.
12 NRC at 359.
We, on the other hand, conclude that it would be premature to decide this issue now, in the absence of a record upon which to base such a finding.
As is evident from our decision in Virginia Electric and Power Co. (North Anna Station, Units 1 and 2), ALAB-584, 11 NRC 4 51, 4 56-4 59 (1980), petition for review pending sub i
l 40/
Although the Licensing Board did not reach this issue, we nevertheless asked the parties to address it in their briefs on appeal.
While most did, Mr. Leithauser and intervenors Christa-Maria, et al., have requested additional time to brief the matter.
In view of the disposition of the Section 102 (2) (E) issue we make here, l
it is unnecessary to rule on their requests.
l
)
i f
\\
4 nom. Potomac Alliance v. Nuclear Regulatory Commission (No.
80-1862, D.C. Cir., filed July 28, 1980), some factual basis (usually in the form of the staff's environmental analysis) is necessary to determine whether a proposal
" involves unresolved conflicts concerning alternative uses of available resources" -- the statutory standard of Section 41/
10 2 ( 2) (E).
- See, e.g.,
id, at 458 n.14.--
Since this pro-ceeding is in its incipient stages, there is little in the i
record that could provide the foundation for the conclusion that this particular spent fuel pool expansion proposal does or does not involve such " unresolved conflicts."
Thus, until the record is more fully develcped with the inclusion of such documents as the staf f's environmental evaluation, a meaning-ful determination of the relevance of Section 102(2) (E) to this proceeding cannot be made.
Upon return of this case, however, the Licensing Board may once again be able to avoid entirely resolution of this
--4 L/
As we also observed in North Anna, supra at 457, Section 102 ( 2) (E) of NEPA is not limited to major federal actions with significant effects on the environment and may re-quire consideration of alternatives even when an EIS is not otherwise required.
See Trinity Episcopal School Corp. v.
Romney, 523 F.2d 88, 93 (2d Cir. 1975), on remand, Trinity Episcopal School Corp. v. Harris,~T45 F.
Supp. 204 (S.D.N.Y.
1978), rev'd and remanded sub.
nom. Karlen v. Harris, 590 F.2d 39 (2d Cir. 1978), rev'd i
sub. nom. Strycker's Bay Neighborhood Council, Inc. v.
Karlen, 444 U.S.
223 (1980); California v. Bergland, 483 F. Supp. 465, 488 (E.D. Cal. 1950).
i l I
4 issue.
If the staff concludes that this pool expansion license f
emendment requires an EIS, then the mandated consideration of alternatives therein should suf fice insofar as Section 102(2) (E) is concerned.
Moreover, the staff has indicated that it i
" intends to consider alternatives in whatever environmental document it produces with relation to the Big Rock facility."
Br. 30.
Thus, if the staf f prepares an EIA, the parties 1
can apparently expect discussion of the " alternative uses of available resources."
IV.
For the foregoing reasons, we find that a reasonable application of NEPA does not require the preparation of an EIS on the continued plant operation likely to result from the proposed expansion of the Big Rock spent fuel pool, assuming that the expansion will not effect any change in reactor operation.
We therefore reverse the Licensing Board's contrary finding.
We also direct the Licensing Board to reconsider its companion order to the staff to prepare an EIS on the spent fuel pool itself.
Before doing so, however, the Board should await the submission of the staff's environmental evaluation.
Similarly, the Board should await the filing of that document before determining the applicability of Section 102 (2) (E) to this case.
i i
42 -
1 l
l Applicant's motion to strike certain material sub-mitted by CEO following cral argument is granted.
The rulings referred to us in the Licensing Board's September 12, 1980, " Memorandum and Order on NEPA Review" are reversed.
r It is so ORDEFID.
t FOR THE APPEAL BOARD r
Q % b)
C. Qean Bishop
\\
Secretary to the Appeal Board k
f
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