ML20058J676
| ML20058J676 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 08/09/1982 |
| From: | Finamore B, Weiss E HARMON & WEISS, National Resources Defense Council, Sierra Club |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8208110159 | |
| Download: ML20058J676 (21) | |
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00CMETED August-9, 1982 M EC l[g .0 p5gj
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of )
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) Docket No. 50-537 UNITED STATES DEPARTMENT OF ENERGY )
PROJECT MANAGEMENT CORPORATION )
TENNESSEE VALLEY AUTilORITY )
)
(Clinch River Breeder Reactor Plant) )
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NATURAL RESOURCES DEFENSE COUNCIL, INC.
AND THE SIERRA CLUB PETITION j FOR DIRECTED CEBTIFICATION On August 5, 1982, the Atomic Safety and Licensing Board in the above-captioned proceeding issued an Order Following Conference with Parties, ruling on the matters to be considered and schedule for commencement of the Limited Work Authorization
( LWA-1) proceeding for the Clinch River Breeder Reactor (CRBR). Intervenors, Natural Resources Defense Council, Inc.
(NRDC) and the Sierra Club (hereafter "Intervenors") hereby i
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petition the Appeal Board pursuant to 10 CFR SS2.718(i) and 2.785 (b) (1) to direct the Licensing Board to certify to it certain legal issues encompassed by the Licensing Board's August 5 Order. The legal issues that Intervenors submit the Board decided incorrectly are:
i) the proper interpretation of Commission regulations, namely 10 CFR SS 2.761a and 51.52(a); and 1
- 11) the question of the legal " finality" of a substantially supplemented environmental impact statement pending issuance of the supplement in
" final" form.
Background
On February 14, 1982, the Licensing Board in this case issued an Order establishing August 24, 1982 as the date for commencement of the LWA evidentiary hearings for the Clinch River Breeder Reactor. That schedule was based on the assumption that the Staff's environmental " update" would be issued by June 22, and that it would not be recirculated for public comment before being finalized. See attached Motion to Reschedule Hearings, Appendix A, at 2-4. On July 19, 1982, the Board issued a Notice of Evidentiary Hearing and Prehearing Conference setting August 23 for commencement of the Evidentiary Hearing. Also on July 19, Intervenors received a
e copy of the 390-page Draft Supplement to the Final Environmental Statement Related to Construction and Ope ; Lion of the Clinch River Breeder Reactor Plant (hereaf ter "Draf t FES Supplement"), together with an indication that it was being recirculated for public and agency comment prior to issuance of a " Final" FES Supplement.
Subsequently, Applicants filed a Motion to Enforce the Hearing Schedule on July 26, 1982, and Intervenors filed a Motion to Reschedule Hearings on July 27, 1982. NRC Staff filed its Response to " Applicants' Motion to Enforce the Hearing Schedule" and NRDC's " Motion to Reschedule Hearings" on July 30, 1982.
The Licensing Board scheduled a conference with parties for August 2, 1982 in Bethesda, Maryland, at which the Board heard arguments and ruled on the motions of the parties concerning the scope and scheduling of the LWA-1 hearings. At the conference and in its August 5 Order (attached as Appendix B),
the Board rejected the arguments of Applicants and Staff that Applicants and Intervenors should go forward with all matters despite recirculation of the FES Supplement. Order at 4. The Board also rejected the arguments of Intervenors that an
! evidentiary hearing may not commence on any LWA-1 issues until issuance of the final FES Supplement. Id. Rather, the Board ruled that i
the evidentiary hearing will commence as scheduled on August 23, 1982 in Oak Ridge, Tennessee and will be limited to those contentions relating to site suitability . . . .
id., and that contentions relating to NEPA and the final FES Supplement should await hearing until af ter issuance of the Final Supplement by the Staff. Therefore, all testimony and cross-examination relating to the FES may be postponed to the second phase hearings where the FES will be offered into evidence.
Thebcopeoftheevidentiaryhearingscommencingon August 23, 1982 (Phase 1) is defined by the SSR (NUREG-0786).
Id. at 5. As to site suitability matters which are entwined with matters treated in the FES, the Board ruled:
In general, parties will not be prohibited from putting forth testimony and evidence with respect to the FES, at the time of the environmental or second phase hearings (insofar as they are relevant and admissible as to those matters) , on the grounds that they could have been produced at the hearings on site suitability issues.
Id. at 5-6.
For a more detailed statement of the factual background, see Appendix A at 2-5. See also the Licensing Board's complete August 5 Order at Appendix B.
Argument In our Motion to Reschedule Hearings and at the August 2, 1982 Conference with Parties, Intervenors argued that no evidentiary hearings may commence prior to issuance of a final FES Supplement as a matter of NRC regulations and precedent as
1 well as Council on Environmental Quality (CEQ) regulations implementing the N,.tional Environmental Policy Act (NEPA).
Motion to Reschedule Hearings at 6-15. The discussion in the Motion to Reschedule Hearings is incorporated herein by reference. Intervenors wish to emphasize the following points for purposes of the instant Petition for Directed Certification.
I. 10 CFR S 2.761a REQUIRES COMMENCEMENT OF LWA-1 HEARINGS AS SOON AS PRACTICABLE AFTER ISSUANCE BY t
STAFF OF THE FINAL EIS.
10 CFR S 2.761a is the specific NRC regulation which provides for LWA hearings and partial initial decisions on NEPA and site suitability matters. Public Service Company of Oklahoma, et al. (Black Fox, Units 1 and 2) LBP-77-17, 5 NRC 657, 668, (1977); Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit No. 2) , ALAB-27 4, 1 NRC 497, 498 (1975). As such, its applicability in the instant case could not be more clear. Section 2.761a provides, in pertinent part:
[T]he presiding officer shall unless the parties agree otherwise or the rights of any party would be prejudiced thereby, commence a hearing on issues covered by S 50.10 (e) (2) (ii) and Part 51 of this chapter as soon as practicable after issuance by the staff of its final environmental impact statement but no later than thirty (30) days after issuance by the staff of such statement. . . .
10 CFR S 2.761a (emphasis added). The interpretation given this language by the Applicants, the Staff, and the Licensing
Board render the emphasized passage utterly superfluous. In their collective reading, the regulation provides only a deadline for commencement of hearings, not a limitation on how early they may commence. However, if such were the true intent of the regulation, that purpose would be thoroughly accomplished if it read simply:
The presiding officer shall unless the parties agree otherwise or the rights of any party would be prejudiced thereby, commence
[an LWA] hearing no later than thirty (30) days after issuance by the staff of its final environmental impact statement.
This language completely and unambiguously accomplishes the deadline purpose which the Licensing Board sees as the only purpose of this . port of the regulation. By this
.ir.t er p r e ta' t io n , the phrase "as soon as practicable after issuance by the staff of its final (EIS]" is made a nullity.
The policy intent of the regulation urged by Applicants aad Staff--that the hearing commence as soon as possible--is unarguable. This purpose of not delaying the hearing unnecessarily after issuance of the final EIS is consistent ,
with the LWA purpose of allowing applicants to commence with limited work at their odn risk prior to issuance of a , t construction permit. However, the purpose of not d,elaying the , ,
, e hearings unreasonably following issuance of the final EIS is in',
no way inconsistent with the complementary policy purpose, expressed by the emphasized clause, supra, which the Licensing t
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Board treats as superfluous, not to commence the hearing on 1 :
NEPA and site suitability issues until the final EIS has been issued. Neither Applicants nor Staff nor the Licensing , Board haveprovidedtheslightestsupportfortheirimplicit'drgument that a deadline on delaying too long and a prohibition on beginning too early are somehow mutually exclusive.
Quite the contrary, it is most reasonable to suppose that the regulation provides both a latest possible date and an earliest possible date; otherwise there would be no legal-reason why the LWA hearing could not commence after issuance of the draf t EIS, even if the final EIS were still years from completion. Reading Section 2.761a as providing no earliest possible date for hearing, as the Licensing Board has done, makes for absurd results such as these. On the other hand, reading Section 2.761 to provide both a deadline and prohibition, as Intervenors argue it should be, gives meaning and effect to each passage of the regulation. The deadline furthers the LWA purpose of allowing timely site work before lengthy construction permit reviews are completed, and the '
t prohibition furthers the LWA purpose of a complete NEPA analysis at the LWA stage by requiring that the primary environmental document be finalized and available for thorough consideration by the parties at the hearing. No party disputes that the Staff must offer the final EIS in evider.ce at the LWA ~'
hearing, 10 CFR S 51.52 (b) (1) . In light of this requirement,
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1 it is reasonable to read the language of Section 2.161a as requiring completion and filing of the final EIS ac is normally the case for the direct testimony-in-chief of all the parties--prior to the beginning of the hearing.
The Licensing Board offered no. explanation for its ruling rejecting Intervenors' logical and straightforward reading of Section 2.761a. The Board stated only that it accepts Staff's and Applicants' interpretation of that rule, without explaining why it did so.* / Order at 4.
The Staff had this to say about Section 2.761a in their response to the scheduling motions of Applicants and NRDC:
The [ cited] section could be interpreted in either of two ways. First, as Intervenors argue, it might be interpreted as being a prohibition on conducting a proceeding prior to the issuance of the FES. Second, however, it might be interpreted as 1
providing a deadline by which hearings must c be initiated. That is, once you have an FES you must begin a hearing as soon as practicable but not later than 30 days af ter the issuance of the FES.
NRC Staff Response at 4 (emphasis added) . In the last sentence, which purports to paraphrase the deadline interpretation which Staff prefers, the Staff inadvertently
- / In its quotation of the rule, Order at 2, fn 1, the Board included ' the last sentence: "This section shall not preclude separate hearings and decisions on other particular issues."
If the Board intended to suggest that the instant situation falls'within this provision, it must be pointed out that "other particular issues" can only refer to issues other than those
" covered by S 50.10 e) (2) (ii) [ site suitability] and Part 51
[NEPA 'i'ssues) " .
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expressed the very time frame--bounded on both ends--which Intervenors argue is the proper reading of the regulation. The 30-day period certainly provides a deadline, but that very deadline is triggered by issuance of the FES. Intervenors cannot improve on Staff's expression of the rule: "Once you have an FES you must begin a hearing as soon as practicable but not later than 30 days after issuance of the FES." The Staff has identified two possible purposes of Section 2.761a (prohibition and deadline) , failed in its attempt to distinguish them in a manner which generates a conflict, and inadvertently conceded that both purposes are in fact being served by the regulation.
Applicants' Motion to Enforce the Hearing Schedule does not even mention section 2.761a. At the August 2 Conference, in response to Intervenors' arguments, Counsel for Applicants stated, like the Staff, that the rule was not prohibitive, tha t it merely furthers the policy of reducing the time required for licensing. Tr. at 694. As explained above, Intervenors do not quarrel with the argument that an underlying policy of the rule is to reduce the time required for hearings. We do argue that the rule does not press that policy to the point of allowing hearings to begin before issuance of the final EIS when the rule explicitly states that the hearings shall be commenced as soon as practicable after issuance of that very document which
is by definition the fulcrum around which the entire proceeding takes place. The rule does not say "before or as soon as practicable after issuance. . . . . "; it does not say simply "not later than 30 days after issuance. . . . Rather, the rule says, in plain English, "as soon as practicable after issuance. . .but not later than 30 days after issuance. . . ."
In moderation of the seeming inflexibility of this 3-day period for commencement of LWA hearings, the whole rule is qualified by the clause "unless the parties agree otherwise or the rights of any party would be prejudiced thereby. . . ." It is the essence of reason: unless the parties agree otherwise or would be prejudiced, the LWA hearing shall commence sometime between issuance of the final EIS and 30 days thereafter.1/
Both Applicants (Motion to Enforce the Hearing Schedule at
- 10) and Staff (Response to Scheduling Motions at 3-4) rely on
- / Chairman Miller suggested at the August 2 Conference that the "unless" clause modifies something else, so that the 30-days is an absolute deadline which would provide " precious little discovery" on the final EIS. Tr. at 722-23. In the context of the rule, it is difficult to imagine what the "unless" clause would modify if not the period for commencement of the hearing. Judge Miller's interpretation would seem to make the rule unrqasonably inflexible. Under Intervenors' interpretation, if the parties do not agree otherwise or succeed in demonstrating prejudice, then it appears that the period for discovery on the Final EIS is limited to something less than 30 days. Indeed the second sentence of Section 2.761a provides explicitly that prehearing procedures regarding LWA issues, including discovery, "shall be scheduled accordingly." In any event, this argument goes to the interpretation of the deadline, which all parties agree is a
~11-10 CFR S 51. 52 (a) for the proposition that parties other than the Staff may proceed with presentation of their case on NEPA and other matters prior to issuance of the final EIS. That regulation provides:
(a) In any proceeding in which a draft
[EIS) is prepared pursuant to this part, the draft [EIS) will be made available to the public at least fifteen (15) days prior to the time of any relevant hearing. At any such hearing, the position of the Commission's Staff on matters covered by this part will not be presented until the final [EIS] is furnished to the [ EPA) and commenting agencies and made available to the public. Any other party to the proceeding may present its case on NEPA matters as well as on radiological health and safety matters prior to the end of the fifteen (15) day period.
10 CFR S 51.5 2 (a) .
The Licensing Board cited this regulation, Order at 3, fn.2, and implicitly accepted Staff's and Applicants' interpretation of it as controlling in this instance. Staff, Applicants, and apparently the Board all read the third sentence of this rule as allowing commencement of this LWA evidentiary hearing prior to issuance of the final EIS. As fn. contd./ : purpose of the rule. It does not go to the prohibition aspect of the rule which is at issue here. The Chairman seemed to be urging Counsel for Intervenors to eschew all use of Section 2.761a now because some unrelated aspect of it might later militate against our interests. Intervenors suggest that is an extraordinary legal position for a Licensing Board Chairman to put forward.
NRDC pointed out in our Motion to Reschedule Hearings, at 12, fn 2, Section 51.52(a) is internally inconsistent. The first sentence requires at least 15 days between issuance of a drait EIS and any relevant hearing. The third sentence, which has been embraced as an excuse to commence evidentiary hearings prior to issuance of the final EIS in the instant cace, purports to allow presentation of a party's case prior to the expiration of that 15-day period when hearings may not have commenced under the first sentence. Intervenors are at a complete loss as to how this provision applies to an LWA proceeding so as to yield the result sought by Applicants and Staff. Applicants and Staff seem to read the sentence as if it read " prior to issuance of the final EIS." It does not so read. Even if the provision made sense, the most that could be said for it is that it allows presentation of other parties' cases during the 15-day period following issuance of a draft EIS.
As Intervenors pointed out, Motion to Reschedule Hearings at 11, Section 51.52 (a) is facially inapplicable to an adjudicative evidentiary proceeding such as an LWA. By its terms, it applies to a hearing relevant to a draft EIS: "In any proceeding in which a draft [EIS) is prepared pursuant to this part, the draft [EIS] will be made available to the public at least fifteen days prior to the time of any relevant hearing." References to "any relevant hearing" and "any such
hearing" imply hearings which are discretionary, as is the case for hearings about draft EISs. LWA evidentiary hearings are not discretionary, they are mandatory under Section 189(a) of the Atomic Energy Act and 10 CFR S 2.761a. Section 51.52(a) clearly owes its genesis to Council on Environmental Quality (CEQ) regulations concerning public hearings on draft EISs, 40 CFR S 1506 (c) (2) . See Motion to Reschedule Hearings at 11.
There is no conflict betweeen Section 2.761a and Section 51.52(a) in the instant situation, because the latter provision is simply incapable of rational application here. It has never been applied to an LWA proceeding, and its proponents, including the Board, have cited no authority for the novel proposition that it permits the commencement of an evidentiary hearing prior to issuance of the final EIS.
II. THE FINAL EIS ISSUED IN 1977 NO LONGER CONSTITUTES A VALID FINAL EIS WHERE A DRAFT SUPPLEMENTAL EIS HAS BEEN ISSUED WHICH SUBSTANTIALLY ALTERS IT The Licensing Board ruled: "[E]ven if there be any requirement to await commencement of the hearings until after the issuance of a FES, the issuance of the FES by Staff in 1977 satisfies that requirement." Order at 4. This position exalts form over substance, treating issuance of an FES as an arbitrary hurdle which must be traversed. To treat the FES which was issued in 1977 as still final in light of issuance of a draft supplement which substantially alters its factual and
analytical content--in some cases supplanting entire sections with wholly new material--is to completely ignore the plain meaning of the word final.
If the 1977 FES is final for purposes of the hearing prohibition in section 2.761a, then logically those hearings should proceed on the basis of the 1977 document alone, and the 1982 supplement should be ignored. Obviously that is an absurd result; the Board cannot possibly make its NEPA findings without considering the final FES supplement together with the 1977 document. To hold that the 1977 FES alone is sufficient to trigger the commencement of hearings, but that the newly supplemented FES will be considered at those hearings, is patently illogical.
In Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Commission, 539 F.2d 824, 840 (2d Cir. 1976), a case relied on by Applicants, the Court of Appeals held that the Commission should not be required to withhold its Final Generic Environmental Statement on Mixed Oxide Fuels (GESMO) until such time as a supplement on safeguards was completed. However, j that decision, which applied to a supplement on a wholly new l
subject not previously discussed in GESMO, does not extend to the instant case, where the supplement alters the factual and analytical content of the original statement extensively. In GESMO, the original statement was still putatively valid for all the subjects it treated. That is clearly not the case l
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here. See Motion to Reschedule Hearingr at 16-24 for discussion of how the Draft FES Supplement extensively alters the 1977 FES.
Finally, it is obvious that the NRC Staff does not consider the 1977 FES to be a valid, sufficient, final EIS for CRBR. If it did. it would not have issued a 400-page draft supplement which is as voluminous as the original, and it would not have decided to circulate the new document as a draft supplement rather than simply issue it in final form as an update, as originally envisioned.
III. THE LEGAL QUESTIONS PRESENTED HERE ARE APPROPRI ATE FOR DIRECTED CERTIFICATION.
A licensing board may certify questions to the Commission in its discretion or "on direction of the Commission," 10 CFR S 2.718(1), Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2) , ALAB-271, 1 NRC 478, 482-83 (1975).
The Licensing Board in the instant case declined Intervenors' request to certify the questions here raised to the Appeal Board, Order at 6. The Appeal Board is vested with the Commission's authority to direct certification to it by 10 CFR S 2.785 (b) (1) .
Numerous Commission decisions have established that interlocutory review would be undertaken where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact
which, as a practical matter, could not be alleviated by later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner.
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2) , ALAB-405, 5 NRC 1190, 1192 (1977), Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980).
While the Board's ruling on deferral of issues related to NEPA somewhat mitigates the adverse impact on Intervenors of its order to commence the hearing prior to issuance of the final FES supplement, the bifurcation between NEPA and site suitability issues is so ambiguous and non-exclusive that serious irreparable impact to Intervenors remains a distinct possibilty. For example, it is not clear that Intervenors will have a right to recall Applicants' and Staff's witnesses on the sufficiency of the site suitability source term during phase 2, after the supplemental FES material on class 9 accidents is available in final form for purposes of cross-examination.
In any event, the second alternative standard for interlocutory review--pervasive or unusual effect on the basic structure of the proceeding--is unquestionably met in the instant case. Indeed, it is difficult to imagine a ruling which more pervasively affects the structure of a proceeding than the August 5 Order does here, or a proceeding which is more unusual than that which will result from the Order. For the first time in NRC history, an evidentiary LWA hearing will
commence prior to issuance by Staff of a conuplete, final EIS.
During phase 1, the scope is supposed to be defined by the Site Suitability Report. However, the SSR treats many of the same issues as the FES (such as accidents, meteorology and population characteristics) which are deferred until Phase 2.
It is apparent from the discussion at the August 2 Conference that the parties have widely divergent views as to the division of issues between the two phases. Conflicts regarding the proper interpretation of the right to defer FES-related issues are inevitable, and if resolved at the hearing unfavorably to Intervenors, are likely to result in serious irreparable injury. The appeal process would help only i f new hearings were ordered on remand--a highly unlikely prospect.
There is no precedent for LWA evidentiary hearings on any issues prior to issuance of the final EIS. Indeed, as argued supra, it is specifically proscribed by 10 CFR S 2.761a. Thus the " pervasive or unusual effect" standard for interlocutory review is clearly met in this case.
IV. CONCLUSION Intervenors have shown above that the clear meaning of the language of 10 CPR S 2.761a prohibits commencement of the LWA evidentiary hearing prior to issuance by Staff of the final EIS. This interpretation is supported both by the language of the provision, and by policy considerations of the LWA rule.
Unless the rule is read as establishing both a latest and an earliest date for commencement of the proceeding, a large portion of the language is rendered superfluous, and absurd results are made possible in terms of how early hearings may commence.
In addition, Intervenors have demonstrated that the Staff's 1977 FES for CRBR can no longer be considered a sufficient, final EIS where a draft supplement has been issued and circulated for agency and public comment which substantially alters the factual and analytical content of the 1977 document--particularly as it relates to Intervenors' contentions in this proceeding. Just as it would be absurd to consider only the substance of the 1977 FES in the hearing, it would be absurd to consider that 1977 FES " final" for purposes of meeting the prohibition on commencement of hearings in section 2.761a.
Finally, Intervenors submit that these legal questions are appropriate for directed certification, as the Licensing Board's August 5 Order undeniably has a pervasive and unusual effect on the basic structure of the proceeding, and the potential for serious irreparable harm to Intervenors at the hearing as a result of that Order is manifest.
For all the above reasons, Intervenors petition the Appeal Board to direct certification of these issues to it by the Licensing Board.
Respectfully submitted, El]Qn)R. Weiss Dean Tousley HARMON & WEISS 1725 I Street, N.W., Suite 506 Washington, D.C. 20006 (202) 833-9070
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"lTarbara A.'Finamore S. Jacob Scherr Natural Resources Defense Council, Inc.
1725 I Street, N.W.
Washington, D.C. 20006 (202) 223-8210 Attorneys for Intervenors Natural Resources Defense Council, Inc.
and the Sierra Club l
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hc APPENDIX A
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July 27, 1982
" " P *2 STATES OF AMERICA
.. . LEAi< REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Marshall E. Miller, Chairman Gustave A. Linenberger, Jr.
Dr. Cadet H. Hand, Jr.
)
In the Matter of )
)
) Docket No. 50-537 i UNITED STATES DEPARTMENT OF ENERGY )
{ PROJECT MANAGEMENT CORPORATION )
TENNESSEE VALLEY AUTHORITY )
)
(Clinch River Breeder Reactor Plant) )
)
MOTION TO RESCHEDULE HEARINGS Intervenors, Natural Resources Defense Council, Inc. and l
the Sierra Club (hereinaf ter "Intervenors) hereby move the I l
l Board to reschedule the evidentiary hearing, prehearing conference and remaining prehearing deadlines set forth in the Board's Prehearing Conference Order (Schedule) , dated February 11, 1982,1/ and the Notice of Evidentiary Hearing and 1/ This document will not be available for public and agency comment until July 30, 1982.
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Prehearing Conference, dated July 19, 1982. As demonstrated below, such a rescheduling is required by the Staffs' issuance on July 19, 1982 of a Draft Supplement to the Final Environmental Statement related to construction and operation of the Clinch River Breeder Reactor Plant (NUREG-0139, Supplement No. 1, Draf t Report) (hereinafter " Draft FES Supplement").
I. Statement of Facts On February 9-10, 1982 the Board held a prehearing conference in Oak Ridge, Tennessee to develop a schedule governing the course of this proceeding for evidentiary hearings on the application for issuance of a limited work authorization ("LWA") for the Clinch River Breeder Reactor Plant (the "CRBR"). During that conference, the Staf f set June 22, 1982 as the scheduled date for release of either a final environmental update document or a draft supplement to the 1977 CRBR Final Environmental Statement (Transcript of Feb. 9, 1982 Prehearing Conference at 1009) . Counsel for Staf f, Mr.
Swanson, stated that in the staff's view, in the event that significant changes have occurred that would i
necessitate filing a supplement, of course, l that would shif t the schedule back considerably because then there would have
, to be built in a comment period on the l supplement and it would probably shift the schedule back a period of perhaps as much as five, five-and-a-half months.
t-Transcript at 1011. Mr. Swanson also noted that
[I] n f act, the schedule that you have before you submitted by Applicants is based on the, I guess the faster of the two tracks, planning for the possibility that in fact a supplement will not be issued.
Transcript at 1009.
Counsel for Applicants Mr. Edgar agreed that issuance of a Draft FES Supplement would alco shift the hearing schedule:
If in fact there is significant new information which has substantial environmental implications, then that would be mirrored in the staff's update document and they would have to recirculate and once you have gone the recirculation path, then you're going to have a void in time where you can pick up pleading and contentions.
Transcript at 1014.
The Board decided to set a schedule based on the assomption i that no draf t FES Supplement would be issued, but explicitly
! agreed to substantially reconsider the schedule if a supplement were issued and recirculated:
I am only pointing out that if there is a decision at that time, recirculate or whatever it may be, if it is not consistent with the schedule that we are now l developing, obviously it is going to be a l series, as matter of months, five or six, it doesn' t make that much dif ference. We will just have to sit down and re-evaluate the whole thing, a prehearing conference or whatever, but very obviously all of the i material, the situation with regard to
! timing, the schedule, the deadlines of l
discovery, the commencement of another entry and all of that, but we prefer to develop a schedule which contemplates the ability to proceed reasonably along those lines.
s, Transcript at 1132. All the parties and the Board, therefore, were in agreement that recirculation of the FES would trigger an entirely new schedule for hearings and discovery.
The schedule published by the Board on February 14, 1982 set June 22 as the deadline for issuance of the Staff's environmental update, August 6 as the deadline for discovery on that environmental update, and August 24 for commencement of the LWA evidentiary hearings. On July 19 the Board issued a Notice of Evidentiary Hearing and Prehearing Conference setting August 23 for commencement of the Evidentiary Hearing, which would " continue until completion of taking evidence on the issues and contentions admitted for the purpose of a limited work authorization (LWA-1) hearing, pursuant to 10 CFR 50.10 (e) . "
Later that same day, and one month after the scheduled deadline, Intervenors received a xeroxed copy of the 390-page Draf t Suppigment to the Final Environmental Statement Related to Construction and Operation of the Clinch River Breeder Reactor Plant (the " Draft FES Supplement"). An attached Staff
! letter to the Board indicated that printed copies of the l
statement would be available "in about a week," then circulated for public and agency comment. Letter from Geary S. Mizuno, Counsel for NRC Staf f, to Administrative Judges, dated July 19, 1982. The letter also stated the Staff's new position that issuance of the Draft FES Supplement would not prohibit
Applicants or Intervenors from " going forward with their presentations on environmental matters nor with any party going forward with its presentations on matters relating to the suitability of the site at the scheduled August hearing." Id.
Intervenors have been unable to reach any agreement with Staf f and Applicants regarding a revised hearing and discovery schedule. Staff counsel refuses to consider any extension of the deadline for discovery on the Draft FES Supplement, despite the fact that the Staf f was one month late in issuing the document, the document contains 390 pages of new material, and despite the fact that, since the document is issued as a draft FES Supplement, Intervenors will now also be preparing extensive public comments on the document, in addition to interrogatories and testimony based on its contents. See letter, dated July 23, 1982, from Bradley Jones to Barbara Finamore. Applicants would agree to nothing more than "several days" extension of the schedule. See Applicants' Motion to Enforce the Hearing Schedule, July 26, 1982, at 7.
For reasons stated below, Intervenors hereby move that the l
Board reschedule the Evidentiary Hearing and associated l
prehearing deadlines to account for the delay in issuance of
( the draft FES Supplement, and the absolute legal requirement that the NRC Staff complete a final FES Supplement before the LWA hearings begin.
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II. The LWA Evidentiary Hearings Must Await Completion of l the Final FES Supplement It is clear from the outset that the Board has the general authority to regulate the timing and course of evidentiary hearings. 10 C.F.R. 5 2. 718 (e) . Yet it is also clear that, when the hearing in question is for purposes of deciding on a limited work authorization, the Board's authority to conduct and regulate that hearing arises only after a final environmental impact statement has been made available.
Section 50.10 (e) , the Commission's LWA regulations, require compliance with sections 51.52(b) and (c), which in turn provides that parties must take positions and offer evidence on the aspects of the proposed action covered by NEPA (and its implementing regulations) in accordance with the provisions of Subpart G of 10 CFR Part 2. That Subpart contains Section 2.761a, which specifically refers to hearings on LWA issues.
Section 2.761a clearly prohibits the commencement of any LWA hearings before a final environmental impact statement is issued. It provides that:
[T] he presiding of ficer shall, unless the l
parties agree otherwise or the rights of any part would be prejudiced thereby, commence a hearing on issues covered by S 50.10 (e) (2) (ii) [ site suitability findings]
and Part 51 [NEPA findings] as soon as practicable after issuance by the staff of its final environmental impact statement, but no later than 30 days after issuance of such statement.
l_-
6 s.
10 CFR $2761a (emphasis added) . That this section contains the specific mandatory procedures for LWA hearings is reinforced by another portion of 10 CFR, Part 2, which states that:
In any proceeding relating to the issuance of a construction permit for a facility, which is subject to the environmental impact statement requirements of [NEPA) and which is a utilization facility for industrial or commercial purposes or is a testing facility, separate hearings may be held and decisions may be issued on National Environmental Policy Act and site suitability issues and other specified issues as provided by Subpart F and $2.761a.
10 CFR Part 2, Appendix A, par. I. (c) (2) (emphasis added) .
It seems clear that both Applicants and Staf f had the ,
Section 2.761 prohibition in mind during the February 9, 1982 prehearing conference, when both parties admitted that issuance of a draft FES Supplement would shift the hearing schedule on both NEPA and site suitability issues back several months. The NEPA regulations of the Council on Environmental Quality
("CEQ"), which are binding on the NRC, also prohibit commencement of adjudicatory hearings prior to issuance of the final EIS. 40 CFR S 1502.5(c) states:
For adjudication, the final environmental impact statement shall normally precede the final staff recommendation and that portion of the public hearing related to the impact study. In appropriate circumstances the statement may follow preliminary hearings designed to gather information for use in the statements (emphasis added).
The CEQ regulations make it clear that the only time a final
. i l
l EIS need not precede an adjudicatory hearing is when the hearing is a preliminary one for the purpose of gathering information for the EIS itself. That is obviously not the purpose of the upcoming LWA hearing.
The CEQ regulations also make it clear that this EIS cannot be treated differently because it is a supplement:
Agencies ... [s] hall prepare, circulate, and file a supplement to a statement in the same fashion (exclusive of scoping) as a draft and final statement unless alternative procedures are approved by the Council.
40 C.F.R. $150 2.9 (c) (4) . Thus, issuance of this supplemental EIS in final form must precede commencement of the adjudicatory hearings. See also Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 320, 95 S. Ct. 2336, 2356 (1975).
Commission precedent is clear that despite the Licensing Board's discretion in scheduling hearings, LWA hearings cannot begin until after a final FES is issued. In Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277, 1 NRC 539 (1975), a case cited by Applicants, the Appeal Board acknowledged the Licensing Board's l authority to schedule an LWA evidentiary hearing in the manner and time frame it thought appropriate, but only after the FES l '
l was made available. Discussing whether LWA hearings should t
proceed notwithstanding the applicant's postponement of I
construction and operation of the Douglas Point facility for several years, the Appeal Board held:
I
i l
4 Once the Final Environmental Statement has been released, however, it may well be possible both to pinpoint and to measure, with reasonable precision and certainty, l many of the environmental costs which will be involved in constructing and operating the reactor. When this can be done, a useful purpose conceivably would be served by having those costs considered at an early hearing....
Id. at 546 (emphasis added). To underscore the importance which the Appeal Board placed upon having a final, up-to-date impact statement, one which has been reviewed by the public and other agencies, in place before any LWA hearing commences, the Appeal Board added a second requirement. It held that before any second LWA hearing was held to consider remaining or reopened issues, the NRC Staff must recirculate the final impact statement (in normal circumstances, only the draf t statement is circulated) together with (1) any adjudicatory environmental determinations made on the basis of the early l hearing and (2) the supplement which the staff had volunteered j to prepare. Id. at 552. The Appeal Board noted that " [ t] hat supplement, according to the staff, will bring up to date and assess the continuing validity of the information contained in the FES (as modified by disclosures at the early hearing)."
Id. The Appeal Board required circulation of the FES and its supplement before the hearing began because:
This procedure will insure that interested agencies and the public will have the opportunity to reassess the environmental impacts of the facility in the light of any augmentation of data or changed
i
~
~
circumsta nces--which, in turn, should minimize the risk that stale information will be used in striking the final NEPA balance.
Id. at 553. Thus, the Douglas Point case demonstrates that a final, up-to-date environmental impact statement must be in place before any LWA hearing can begin--whether it be an early hearing on site-related issues or a second hearing on reopened or remaining issues.
Both Applicants and Staff have developed a novel theory which attempts to avoid those clear LWA requirements, as set forth in the regulations and Commission precedent. They claim that 10 C.F.R. $ 51. 5 2 (a) allows various parties to present their case at an LWA evidentiary hearing before issuance cf a final, updated EIS. That regulation provides:
, (a) In any proceeding in which a draft environmental impact statement is prepared pursuant to this part, the draft environmental impact statement'will be made available to the public at least fifteen (15) days prior to the time of any relevant hearing. At any such hearing, the position of the Commission's staff on matters covered by this part will not be presented until the l final environmental impact statement is furnished to the [ EPA] and commenting agencies and made available to the public.
Any other party to the proceeding may present its case on NEPA matters as well as on radiological health and safety matters prior to the end of the fifteen (15) day period.
It is apparent that $51.52(a) is not intended to apply to an LWA proceeding. The LWA rule explicitly requires complete compliance with subsections (b) and (c) of $51.52, but conspicuously does not mention subsection (a). And, as noted
above, Section Sl.52 (b) provides that proceedings under it shall be conducted "in accordance with the provisions of Subpart G of Part 2 of this chapter", which includes $2.761a, proscribing commencement of LWA hearings prior to issuance of the final EIS. Furthermore, the Douglas Point Appea.1 Board explicitly cited Part 2, Appendix A, par. I. (c) as controlling l
in the LWA hearing situation, but completely failed to mention S51.52(a). And Part 2, Appendix A, par. I. (c) (2) , itself specifically requires LWA hearings to be held in accordance with $2.761a, rather than $51.52(a).
Whereas Section 2.761a specifically applies to LWA hearings, Section 51.52(a) applies to every NRC action for which a draft environmental impact statement is prepared, whether or not a formal adjudicatory hearing is held. It is clearly modelled after a CEQ regulation concerning informal public hearings, 40 C.F.R. S150 6 (c) (2) , which states, in pertinent part:
If a draft environmental impact statement is to be considered at a public hearing, the agency should make the statement available to the public at least 15 days in advance (unless the purpose of the hearing is to provide information for the draft [EIS]).
See also Statement of Consideration for 10 C.F.R. Part 51, 39 Fed. Reg. 26279 (July 18, 1974) (intent of regulations is to implement the revised CEQ regulations on preparation of environmental impact statements) .
In resolving any apparent contradiction between S2.761a and S 51. 5 2 ( a) , the Board must be guided by the specific provisions
U of $2.761a, which prevail over the more general provisions of
$51.52(a). Sun Ins. Co. of New York v. Diversified Engineers, Inc., 240 F. Supp. 606 (D.C. Mont. 1965), In re Brown, 329 F.
Supp. 422 (D.C. Iowa 1971). Section S51.52(a) has never been applied to an LWA hearing, is not required to be applied, and if applied to an adjudicatory hearing such as the LWA, is internally inconsistent.2/ To rely on Section $51.52(a) rather than S2.761a would violate the specific requirements of the LWA rule itself. !
2/ There is an apparent conflict between the last and first sentences of $51.52(a) . The first sentence requires that the EIS be issued at least 15 days prior to any relevant hearing, yet the last sentence purports to allow presentation of a party's case prior to the expiration of that 15 day period. It is not explained how a party is to present its case before the hearing begins.
3/ Since we believe $51.52(a) is inapplicable to LWA hearings, we do not reach Staff's argument that it may also present its case under S51.52(a) before the final FES Supplement is issued in light of the Memorandum and Order (Concerning Objections to June 1, 1982 Special Prehearing Conference Order) , Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2) ,
Docket Nos. 50-352, 50-353 (July 14, 1982). We submit, .
however, that such an argument flies in the f ace of the clear language of S51.52(a) that "[ alt any such hearing, the position of the Commission's staf f on matters covered by this part will not be presented until the final environmental impact statement is furnished to the Environmental Protection Agency and commenting agencies and made available to the public." In any case, the Limerick Licensing Board's only support for proposing early hearings is the Douglas Point case, which, as noted above, allows early hearings only af ter a final and up-to-date FES is issued.
s Applicants also cite Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility) ALAB-296, 2 ;
l NRC 671 (1975) as providing support for their argument that LWA hearings may commence before the final impact statement and supplement are issued. This reliance is misplaced. To begin
! with, the Final FES for the Barnwell facility had already been issued, before the hearings were scheduled, and the only contentions of Intervenors concerned its adequacy, not its existence. Id. at 674-75. The Appeal Board permitted the hearings to commence since one major purpose of those hearings was to investigate the merits of Intervenors' claims that the FES was inadequate. Id. at 679. The Appeal Board made it clear, however, that if it became apparent recirculation of a FES supplement was required, the licensing board could give "no further consideration to the subjects involved" until a final supplement was issued. Id. at 680 (emphasis added). The Appeal Board also noted that in certain cases, hearings on issues related to the ones being supplemented should also await the final supplement. Id. at 681.
Since the Barnwell hearing was not an LWA evidentiary hearing, and was therefore covered by $51.52(a) rather than S2.761a, the Appeal Board found no bar to proceeding with certain FES subjects while others were being redone in a draft FES Supplement. Id. at 681. Yet there is no indication that l
the same result would obtain if the LWA rule, Section 2.761a, had been controlling, and in fact the Douglas Point Appeal Board reached an opposite result. This case therefore provides no support whatsoever for Applicants' argument that LWA hearings may proceed absent a final FES. To the contrary, the Barnwell case demonstrates that even under S51.52(a), no party may proceed with its case on issues that are being supplemented, or on issues sufficiently related to the ones being supplemented.4/
Intervenors therefore submit that Applicants and Staff have no basis in law, regulation, or Commission precedent for departing from their earlier position that issuance of a draft FES Supplement for the CRBR would necessarily require postponement of the LWA hearings until the final supplement is issued.
Every case cited by Applicants in its Motion to Enforce the Hearing Schedule underscores this proposition -- that the Board's discretion to schedule hearings and reduce delay arises only in "the absence of any limitation on a relevant statute or regulation." Public Service Company of New Hampshire (Seabrook 4/ The Barnwell Appeal' Board's application of certain balancing factors to determine whether hearings should proceed on several issues absent a final programmatic impact statement is irrelevant here. -Id. at 681-83. Such balancing is explicitly allowed by the CEQ Regulations, 40 C.F.R.
S 15 0 6. l (c) , as long as a final, adequate impact statement on the individual project is in place. In the instant case, the project FES is not yet final, whereas the programmatic LMFBR is complete and up-to-date.
4 4
i Station, Units 1 and 2) , AVAB-293, 2 NRC 660, 661 (1975). U Where a bar exists to commencement of hearings, as it does in i
this case, no amount of exhortation by Applicants can erase'it.
III. LWA Hearings May Not Commence on-Intervenors' Contentions, Which Are Based on.FES Sections Now Being Updated Since $51.52(a) does not appl.y co LWA hearings, the Board may not segment the hearings by allowing certain parties to present their case even though other parties must await a final impact statement. If any segment i on at all is > permissible (a i
proposition with which we total., alsagree) such segmentation s
must be by issue, .rather t'han by party. See Barnwell, Iupra, and cases cited by, Applicants in Motion to Enforce Hea' ring j ,e Schedule at 9. And, as the cases cited by Applicant make ,
/
clear, the Board may only hear.an issue when it,is entirelk
'l n .
t independent and unrelated to other, issues for which hearingeis 4
l postponed. Public Servics Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2) ALAB-371, 5 NRC 409 (1977). ,
~. ,
Applicants' attempts ,in its Motion to slice Intervenors' contentions into small pieces, force some parties to proceed on '
t 1 some of the subcontentions, and other parties'to proceed on
/
other subcontentions has no basis in law or precedent. The Board must instead examine each contention to determine if the FES Section it challenges is in the process of revision. If t ,> A, , ,
l / Fr 1 * ; _s l. ._
_. _ _ _ _ _ _ _ _ . _ _ _ _ __ .__ . ~ . _ - - _ . _ _ .
! so, hearings on that contention must be postponed until
! i revision is complete, since no final impact statement exists relating to that contention. See National Indian Youth Council
- v. Watt, 501 F. Supp. 649 (D.N.M. 1980), aff'd F.2d ,
12 ELR 20112 (No.80-209, 10th Cir. Nov. 12, 1981).
A. The Issues Raised By Intervenors Contentions Are All i Substantially Updated in the Draft FES Supplement i
! The Board's July 19, 1982 Notice of Evidentiary Hearing and Prehearing Conference stated that the CRBR LWA l l hearing will cover contentions 1(a) , 2 (a) - (d) , ( f) - (h) , and 3 (b)-(d) , as limited in the Board's Order dated April 22, 1982, i
and contentions 4, 5, 6, 7, 8, and ll(b)-(d) as set out in the Order dated April 14, 1982. An examination of these contentions and the Draft FES Supplement indicates that every I
one of these contentions challenges the adequacy of some j section of the FES, that every challenged FES section is now being revised in the Draft FES Supplement, and that further i revisions will likely occur in the Final FES Supplement.
1 l
Contentions 1, 2 and 3 i
Concentions 1 tnrough 3 all challenge the Staf f's analysis and treatment of core disruptive accidents (CDAs) and their consequences for both NEPA and site suitability purposes.
Applicants' argument that Contentions 1-3 are related only to l
site suitability issues is totally erroneous. Core disruptive accidents constitute the largest potential environmental impact
t of the CRBR plant, and our challenge to the adequacy of Staff's discussion o* those accidents in FES Chapter 7 is a major i
portion of Conts.ntions 1, 2 and 3. The Board's Order Following Conference with Pa ties, dated April 14, 1982 makes it absolutely clear that those contentions are environmental L ones. In that Order, the Board held that Intervenors' proposed Contention 20 was subsumed under Contentions 1, 2, and 3. Id.
at 9. That proposed contention stated:
- 20. Neither Applicants nor staff have adeouately described the risks and consequences associated with CRBR accidents beyond the design basis.
- a. The Staff concludes in the FES that CRBRP accident risks can be made acceptably low with the incorporation of certain features and design requirements, yet neither Applicants nor Staf f have adequately described these additional features and requirements, nor demonstrated that they will sufficiently lower the risks of CRBR accidents.
- b. NRC policy, reflected in 45 Fed.
Reg. 40401 (June 30, 1980),
requires a discussion of consequences substantially greater in scope and detail than that contained.
Revised Statement of Contentions and Bases of Intervenors Natural Resources Defense Council, Inc. and the Sierra Club, March 5, 1982 at 22. Intervenors described that contention to the Board as "relat[ing) to the failure of the FEs adequately
to discuss risks and consequences associated with CRBR accidents beyond the design basis." Id. at 35.
Under the April 14, 1982 Order, it is clear that the Contentions 1, 2, and 3 relate to both NEPA and site suitability issues. It is also clear that the NEPA and site suitability issues on these contentions are inextricably intertwined, since every party would present the same evidence, use the same witnesses and make the same arguments regarding the probability, prevention, and mitigation of CDAs, to prove both ultimate NEPA and site suitability issues.
The new material in the Draft FES Supplement further reveals the overlap between Staff's FES and Site Suitability Report discussions of CDAs. The Draf t FES Supplement not only revises Chapter 7, but adds as an Addendum to Section 7.1 an entire new chapter, Appendix J, entitled " Plant Accidents Involving Radioactive Materials." This lengthy chapter contains completely new material regarding the Staff's analysis of the proper CRBR design basis envelope, the frequency of CDA accidents and initiators, the response of the primary coolant system and the containment, and the risks of radiological releases through atmospheric and liquid pathways. Much of the discussion is taken f rom the Site Suitability Report, although some analysis, such as the Staff's probabilistic risk assessment, appears for the first time in the FES and is extremely relevant to Intervenor's site suitability case.
s o.
Since there is no way tnat the evidence on core disruptive accidents can be divided into that relating to NEPA issues and that relating to site suitability, the extensive revisions and new material in the Draf t FES Supplement preclude any hearing on Contentions 1, 2, and 3 absent a final FES Supplement.
Contention 4 Contention 4 challenges the FES discussion of the risks, costs, and benefits of CRBR safeguards in Section 7.3 and Appendix E. These sections have been completely replaced in the Draft FES Supplement (see Draf t FES Supplement at 7-6) to take into account new information on fuel cycle facilities and new NRC physical security requirements. The Staff has also revised its safeguards cost / benefit analysis in Section 10.4.
Applicants concede that revision of FES material on this contention is substantial. Applicants' Motion at 18.
Contention 5 Contention 5 questions the suitability of the proposed CRBR site, particularly its meteorology and population characteristics, and the presence of nearby facilities.
Discussions of these parameters have been substantially updated in Sections 2.2, 2.6, 2.19, 6.13, 9.2, Appendix J, and an entirely new 50-page Appendix L. Applicants admit that Staf f has added an entirely new alternative site to its discussion, and that much updated information has been included about previously considered sites. Id. at 16. Applicants' claim
that Contention 5 (b) relates more closely to site suitability is erroneous since it specifically relates to the Contention 5 discussion of alternative sites.
Contention 6 Contention 6 challenges the FES analysis of the environmental impact of the fuel cycle associated with the CRBR in Appendix D, which has been completely replaced and expanded in the Draft FES Supplement. Applicants concede that the revisions to this material are substantial. Applicants' Motion at 18.
Contention 7 Contention 7 challenges the FES discussion of alternative sites (substantially updated by Section 9.2 and Appendix L) ,
alternative design features (updated by the addition of Section 8.4.7, " Nonproliferation Alternatives") and the ability to meet LMFBR objectives (updated by Section 8.3).
Contention 8 Contention 8 questions the adequacy of the FES discussion on decommissioning, which has been replaced by new and updated information in Section 10.24. Applicants concede that the Draft FES Supplement contains much new information from generic studies of decommissioning.
Contention 11 Contention 11 challenges the discussion of radiological impacts on public and plant employees, which has been updated
in Sections 5.7, 10.4, and Appendix J. Applicants concede that a discussion of the radiological doses attributable to CRBRP operation "would be dependent upon the Final FES", Applicants Motion at 17, but attempt to disengage other portions of this contention for purposes of the hearing. As stated above, such
" salami-slicing" of our contentions into smaller subparts is i.mpermissible under the Commission's rules and would serve no purpose other than to prejudice Intervenors, who would be unable to engage expert witnesses willing to return repeatedly to Oak Ridge to testify on these subcontentions.
As this list demonstrates, the Staff has updated every FES section challenged by Intervenors, in several cases adding entire chapters in response to our contentions. Those sections can in no way be considered final for purposes of a hearing before the final FES is issued.
l B. The Final FES Supplement May Differ Greatly From the l Draft Version l
Applicants have no legal or factual basis, other than speculation, for arguing that the final FES Supplement will not dif fer greatly f rom the Draf t FES Supplement af ter the Staf f receives and responds to public and agency comment.
The Draf t FES Supplement contains 390 pages of new material reflecting five years of developments and new information regarding the environmental impacts, safety, and health effects 1
t . - . _ __.
l l
of breeder reactors and their supporting fuel cycle. Recent letters to the Commission indicate substantial public interest in and willingness to comment on the FES Supplement. The fact that Staff is aware of NRDC's position on the CRBR does in no way indicate that no further expert comments are forthcoming from agencies and the public. In fact, the Staf f received comments on the Draft 1977 FES from eleven federal agencies, five state and local governments, and eight other groups or individuals. 1977 FES, Appendix A. 40 C.F.R. $1503.4(a) reouires agencies to assess and consider each comment, responding in the final statement by one or more of the means listed below:
(1) modify alternatives including the proposed action; (2) develop and evaluate alternatives not previously given serious consideration by the agency, j (3) supplement, improve, or modify its analyses, (4) make f actual corrections; or (5) explain why the comments do not warrant further agency response, citing the sources, authorities, or reasons which support the agency's position and, if appropriate, indicate those circumstances which would trigger agency reappraisal er further response.
The Staf f is on record as acknowledging the importance of agency comment to its FES preparation efforts. Less than a month ago, the Staf f argued to another Licensing Board that:
.l Consideration of the role of other agencies in the review and approval of the Point Pleasant Diversion bears out the wisdom of the more deliberative approach which the regulations envision. It can be expected that the comments of such agencies as DRBC, the Corps, and DER will be of significant assistance to the Staff in the preparation of its Limerick FES. Additionally, the Staf f's environmental review would be assisted by the consultations which the Corps has instituted in its permit proceeding.
NRC Staff's Request for Reconsideration of Licensing Board's Special Prehearing Conference Order, Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2) . Docket Nos. 50-352, 50-353 at 12 (June 28, 1982) (emphasis added) . In the same way, comments on the Draft FES Supplement may cause the Staff to revise substantially portions of those documents related to Intervenors' contentions, possibly in a manner that will satisfy some or all of those contentions, and obviate altogether the need for a hearing on these issues.
The Supreme Court has recently stressed that the function of an impact statement is to inform the public that the agency has followed NEPA's mandate and considered environmental concerns in its decisionmaking process. Weinberger v. Catholic Action of Hawaii, US , 50 U.S .L.W. 4027, 4028 (Dec. 1, 1981). The commenting process allows public criticue of the agency's performance in considering environmental values. See Essex County Preservation Ass'n v. Campbell, 536 F.2d 956, 961 (1st Cir. 1976). If the agency performance as reflected in the
l
.' l
. l l
Draft Supplement has been inadequate, the commenting process guards against " objective error and excessive bias" that must otherwise go undetected. I-231 Why? Ass'n v. Burns, 372 F.
Supp. 223, 245-46 (D. Conn. 1974), aff'd 517 F.2d 1044 (2d Cir. ,
1975).
The Staff and indeed the NRDC must have access to and consider the public's comments on the adequacy of NRC's consideration of environmental values before the hearing begins. It is wrong to assume that such comments would be frivolous; and it would be fundamentally unfair to deny Intervenors the benefit of comments which might highlight
" objective error or excessive bias" in the draf t.
C. Until the Final Draft Supplement is Issued, No Party Adequately Can Present Its Case on Intervenors' Contentions Until the Final FES Supplement is issued, it would make a mockery of the LWA hearing process to permit or require any party to present its case on Intervenors' contentions. As stated above, every one of these contentions relates to the adequacy of the FES discussion of issues that are now being completely redone. There is no way that Intervenors can meaningfully challenge the adequacy of the final FES Supplement before it even exists. And since neither the 1977 FES nor the Draf t FES Supplement represents the legal document at issue in this proceeding, see 10 C.F.R. $ 51. 5 2 ( b) and (c), a challenge
by Intervenors to those documents would have no value wha tsoe ve r. Furthermore, to force Intervenors to present their )
case without the benefit of agency input and public comment on the Draft FES Supplement would work a substantial hardship on Intervenors, who have limited resources and depend heavily on the expertise of outside agencies and the public in developing their case.
Similarly, it would violate NEPA and the entire purpose of the supplement recirculation process to permit Staf f to present its case before it reaches a final position in the FES Supplement. As stated above, the updated environmental information now being presented for public comment is massive and it is by no means certain that any of the information in the Draft FES Supplement will remain untouched by the recirculation process. To proceed on a contrary assumption
- would effectively shortcircuit the ability of agencies and members of the public, other than Intervenors, to participate in the environmental review process as required by NEPA.
Finally, to allow Applicants or Staff to present their case before the final FES Supplement is issued would deprive Intervenors of their full rights to cross-examination, based on the information contained in the final statement and the comments of expert agencies. See Giant Foods, Inc. v. FTC, 322 F.2d 977 (D.C. Cir.), cert. denied, 376 U.S. 967, 84 S.Ct. 1111 (1963). Intervenors would be denied procedural due process if the hearings commenced before we had an opportunity to evaluate
the comments received on the Draft FES Supplement in order to utilize those comments in our cross-examination of Applicants and Staff. Cf. Ralpho v. Bell 569 F.2d 607, 628 (D.C. Cir.
1977). We would be substantially prejudiced in our presentation of evidence and its ability to make compelling arguments if we were forced to operate in a vacuum, ignorant of the public's critique of the Draft Supplement. See Ka Fung Chan v. Immigration & Naturalization Service, 634 F.2d 24 8, 258 (5th Cir. 1981).
The mere assertion by Applicants that it is more
" efficient" to proceed now rather than after the Draft FES Supplement has been circulated for comments should not outweigh Intervenors' right to a meaningful hearing. See Philadelphia Welf are Rights Org 'n v. O' Bannon, 525 F.Supp. 1055, 1060 (E.D.
Pa. 1981) l IV. The Need to Extend the Hearing and Discovery Schedule Regardless of the order and timing of the LWA hearing l
l on Intervenors' contentions, to require Intervenors to meet the i
- February 14, 1982 schedule in light of the Staff's dilatoriness would cause us substantial prejudice. Intervenors have met every discovery deadline until this point, and the only reason they will not be able to meet the August 6, 1982 discovery deadline is because of Staff's one-month rardiness in meeting their own deadline. The SSS and FES dealines are not
. . - . . . . ~ _ __ ___ _. . - _ _ _ _
l l
l l
interchangeable, since the FES Supplement is over six times l
longer than the SSR, and contains almost completely new information. The original schedule allowed for two rounds of discovery on the FES, and one round on the SSR. Furthermore, the FES requires us to prepare public comments on the Supplement in order to preserve our right to challenge its adequacy in court. We simply cannot prepare FES interrogatories, comments, and testimony in the time originally alloted, and should not be required to bear the burden of Staff's tardiness.
This case has proceeded on a schedule that has strained NRDC's resources to the breaking point. The Board's original schedule which did not contemplate one substantial alteration of the FES, and which was based on an FES update to be issued on June 22, represented the outer bounds of the possibl e. We i
have now been presented on 5:30 p.m. of July 19 with nearly 400 pages of new material. At least one section of that material, Appendix J of the Draft FES Supplement, contains the first attempt on the part of either the Staf f or Applicant to predict the numerical probability of both the initiation and progression of CDA. This material has come as a complete surprise to NRDC, yet it is crucial to at least Contentions 1, 2 and 3.
We have endeavored in every conceivable way, including depositions, interrogatives and to determine whether either
l 1
l party will be presenting such probability estimates, so that we could be prepared to respond and so that we might know how to prepare our case. The answer has consistently been "no". Both Staf f and Applicant have resolutely refused up until today, throughout discovery, to associate themselves with any numerical estimates of either the probability that a CDA will occur or the probability that the CRBR systems designed to "accomodate" such an event will fail. Indeed, the Board's Order rejecting portions of Contentions 1 and 3 (see, particulsely 1(b) and 3(a)) was based on the assertion that no such evidence would be presented.5! Yet that is precisely what the Staff has done in Appendix J. Moreover, it has explicitly relied on a WASH-1400 type analysis -- at least comparable to CRRBRP-1 -- the effort at probabilistic risk assessment that was ruled outside the scope of the LWA-1 hearing.5! -- to support the probability figures presented.
! See Appendix J at J J-7. In addition, NRDC has just discovered that the Staff's probability estimates were substantially prepared by Science Applications Inc., the same consulting firm that aesisted in the preparation of CRBRP-1 and the PRA for the CRBR, part of the Applicant's " reliability 5/ We are in the process of further detail and documenting this for the Board and will have a pleading in the Board's hands as soon as possible.
6/ See NRDC Contention 1(b) and the Order, Following Conference with Parties, April 22, 1982, Sl. Op. at 5.
.I l
program." We will argue to the Board in a forthcoming pleading that this lith hour development requires reconsideration of the rulings on the scope of the LWA-1 hearing. However, whether or not that motion is successful, it is utterly unreasonable to expect NRDC to do discovery, prepare its case and file its testimony on this material as well as other issues by August
- 13. Even a ruling would make NRDC's effective participation impossible. It would also reward the Staf f for sandbagging NRDC. The Board must also be aware that NRDC must in addition prepare comments on the FES in the next 45 days.
The Applicants ask the Board to do what is completely without precedent in NRC practice. They have cited no case l where LWA hearings proceeded without a final FES, to do so would gravely prejudice NRDC and would on its f ace violate NRC t
regulations for no legitimate reason. There is no grave need for power that must be met. There is no event that will occur in the next few months that would otherwise not occur. THere is, moreover, no way that proceeding immediately would identify problems that need to be corrected the asserted rationale for such decisions as Douglas Point, since all parties concede that the Board cannot issue a decision until the FES is final.
Thus, the Applicants seek the most extraordinary relief from this Board on what amounts to the ground of convenience.
This is no reason to deny NRDC a minimally reasonable amount of time to do discovery and to prepare its case on issues of central importance to NRDC contentions.
V. Conclusion There is nothing sacrosanct about a hearing date of August 24, 1982 which was scheduled on the explicit assumption that the Staff would meet its milestone document deadlines and would not recirculate a FES supplement. Since Commission regulations and precedent prohibit commencement of LWA hearings before a final EIS is issued, and since Intervenors would be severely prejudiced by adherence to the criginal schedule, we respectfully submit that these hearings be rescheduled until after the final FES Supplement is issued.
Respectfully submitted, Barbara A. Finamore S. Jacob Scherr 1725 I S treet, N.W., #600 Washington, D.C.-20006 (202)223-8210 i
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Harmon & Weiss 1725 I Street, N.W.
Washington, D.C. 20006 (202)833-9070 Dated July 27, 1982
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IL Ic UNITED STATES OF AMERICA v'
0d2 NUCLEAR REGULATORY COM14ISSION
jCE OF $zc357p,qy ATOMIC SAFETY AND LICENSING BOARD
' MI[i))E"CC Before Administrative Judges ..
Marshall E. Miller, Chairman SE?llE AUG 31292 Gustave A. Linenberger, Jr.
Cadet H. Hand, Jr.
)
In the Matter of ) Docket Nos. 50-537 UNITED STATES DEPARTMENT OF ENERGY PROJECT MANAGEMENT CORPORATION )
TENNESSEE VALLEY AUTHORITY )
) August 5, 1982 (Clinch River Breader Reactor Plant)
A f3DERFOLLOWINGCONFERENCEWITHPARTIES A conference with parties was held pursuant to telegraphic notice in this proceeding on August 2,1982 at Bethesda, Maryland. Counsel representing the United States Department of Energy, Project Management Corporation, and Tennessee Valley Authority (Applicants), the Staff, and Natural Resources Defense Council and Sierra Club (Joint Intervenors) participated in the conference.
The Board heard arguments on and considered the following motions and responses conc.erning the scope and scheduling of the LWA-1 (Limited Work Authorization) hearings:
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All parties agreed that Staff's decision to issue a draft FES Supplement instead of a final FES Supplement necessitated some change in the hearing schedule, but differed as to the extent of the change.
Intervenors argued in their Motion to Reschedule Hearings and at the conference with parties that commencement of the LWA hearing must await completion of the final FES Supplement. Intervenors urged that Comission regulations, in particular 10 CFR s2.761a,1 Coninission precedent, and CEQ (Council on Environmental Quality) regulations prohibited the commencement of the hearing on any of the LWA issues prior to an issuance by Staff of the final FES Supplement.
Both Applicants and Staff argued in their pleadings and at the conference that Commission regulations and precedents do not prohibit t the commencement of LWA-1 hearings prior to the issuance of the final FES Supplement and that the hearings should commence as schedulted on l
August 23, 1982.
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1/ 10 CFR 2.701a provides in pertinent part: "the presiding officer shall, unless the parties agree otherwise or the rights of any party would be prejudiced thereby, commence a hearing on issues covered by 550.10(e)(2)(ii) and Part 51 of this Chapter as soon as practicable after issuance by the Staff of its final environmental i
impact statement but no later than 30 days after issuance nf such statement, and complete such a hearing and issue an initial decision on such matters.... This section shall not preclude separate hearings and decisions on other particular issues."
M Applicants and Staff argued that 10 CFR s2.761a is not prohibitive, but rather provides a deadline by which a hearing must be initiated. In addition, Staff and Applicants urged that 10 CFR 51.52(a) applies to LWA-1 proceedings, and that Intervenors' interpretation of 10 CFR 92.761 would make the two regulations inconsistent with each other.E Applicants and Staff argued that regulations should be interpreted so as to be mutually applicable and not repugnant to each other.
l l Applicants proposed that all parties proceed to hearing on all site suitability issues, that the Applicants and Intervenors proceed to hearing on all contentions, and that the NRC Staff proceed to hearing on Contentions 1, 2, 3, 5, 7 and 11. (Tr.705)
Staff agreed with Applicants' proposal that Applicants and Intervenors go forward on all contentions, but differed with respect to those contentions which Staff should go forward on. Staff proposed that 2/ 10 CFR 51.52(a) provides: "In any proceeding in which a draft environmental impact statement is prepared pursuant to this part, the draft environmental impact statement will be made available to the public at least fifteen (15) days prior to the time of any relevant hearing. At any such hearing, the position of the Commission's Staff on matters covered by this part will not be j presented until the final environmental impact statement is furnished to the Environmental Protection Agency and commenting agencies and made availat,le to the public. Any other party to the proceeding may present its case on NEPA matters as well as on radiological health and safety matters p. ior to the end of the fifteen (15) day period."
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4 it should proceed to hearing only on those contentions which are not dependent on Staff's analysis in the FES -- Contentions 1, 2, 3, 5(b),
7(a) and 7(b). (Tr.706)
In addition to general objections to the commencement of hearings prior to the issuance of the Final FES Supplement, Intervenors objected to segmentation of the hearings in the manner proposed by Staff and Applicants. Intervenors argued that the Board is prohibited from, commencing hearings on any issue which is related to other issues for which hearing is postponed.
. Af ter consideration of the motions and argum.ents of counsel, the Board decided that the evidentiary hearing will comence as scheduled on August 23, 1982 in Oak Ridge, Tennessee and will be limited to those contentions relating to site suitability: 1(a); 2(a), 2(b), 2(c), 2(d),
2(e); 2(f), (g) and (h) with respect to the computer codes used for performing the 10 CFR Part 100.11(a) site suitability analysis; 3(b),
3(c) with respect to the codes useo for site suitability analyses, 3(d) and 5(b). (Tr.859) The Board accepts Staff's and Applicants' interpretation of 10 CFR j2.761a and finds that it is authorind to proceed with hearing some site suitability LWA-1 issues prior to Staff's l
issuance of the final FES Supplement. In addition, the Board is of the opinion that even if there be any requirement to await commencement of the hearings until after the issuance of a FES, the issuance of the FES by Staff in 1977 satisfies that requirement.
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The Board believes that it may use its discretion to segment hearings in a reasonable way and rejects Intervenors' arguments that only issues which are entirely independent from those which are.being postponed may be heard at this time. (Tr.835) The Board holds that contentions relating to NEPA and the final FES Supplement should await hearing until after issuance of the Final FES Supplement by the Staff.
Therefore, all testimony and cross-examination relating to the FES may be postponed to the second phase hearings where the FES will be offered into evidence. Since a complete and up-to-date SSR (Site Suitability Report) has been issued by the Staff, the Board believes it is reasonable and appropriate to commence hearings on the site suitability issues at this time. The scope of the evidentiary hearings commencing on August 23, 1982 (Phase 1) is defined by the SSR (NUREG-0786).
(Tr.819)
Intervenors suggested that Contention 5(b) addresses NEPA issues and not site suitability issues [Tr. 831-83,837). The Board ruled that if 5(b) is shown to be relevant to of the FES, then Intervenors will not be penalized for not introducing evidence on that issue during the site suitability phase of the hearings. (Tr. 839) In general, parties will not be prohibited from putting forth testimony and evidence with respect to the FES, at the time of the environmental or second phase hearings
, l
! l l l
. (insofar as they are relevant and admissible as to those matters), on the grounds that they could have been produced at the hearings on site suitability issues. (Tr.863) Parties will be required to show reasonable relevance as defined by the Federal Rules of Evidence as well as materiality. (Tr.863)
The Board denied the Intervenors' Motion to Reconsider Rulings on Contentions dated July 29, 1982. All limitations regarding the scope of issues remain as set forth in the Board's Order following conference with parties, entered April 22, 1982. The Board is not aware of any changes that would convince'it to alter its prevfous decision. (Tr.
(Tr.864-65)
The Board declined Intervenors' request to certify to the Appeal Board the question raised by their motion. (Tr.865) All discovery related to the site suitability report and to those contentions related to it is to be concluded by August 6,1982, as scheduled. (Tr.8'59)
Formal discovery on the Supplement to the FES will commence when a final document is issued. Informal discovery on environmental impact statements may commence at any time. (Tr. 873)
The Board granted Intervenors' request to extend the date for the prefiled written testimony on those issues to be heard at the first phase of the hearing from August 13 to August 16. (Tr.862-63) 1
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The Board suggested that the parties confer and make reconnenda-tior.s for a discovery schedule and commencement of hearing on the final Supplement to the FES. (Tr.874)
The Board indicated that the order of presentation of evidence will be for Applicants to proceed first, followed by Staff and then by Intervenors, except when the Staff takes a position which is significantly different from that of Applicants. In that case the Board might reconsider the order of proof as to such issues or witnesses..
(Tr. 866.869)
IT IS 50 ORDERED.j
- FOR THE ATOMIC SAFETY AND LICENSING BOARD GbA Y r
' Marsnall E. Miller, Chairman ADMINISTRATIVE JUDGE August 5, 1982
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CERTIFICATE OF SERVICE 0 %a, LkiNCH"*
I hereby certify that a copy of the foregoing PETITION FOR DIRECTED CERTIFICATION was served this 9th day of August, 1982, on the following:
- Marshall E. Miller, Esquire
- R. Tenney Johnson, Esquire Chairman Leon Silverstrom, Esquire Atomic Safety & Licensing Board Warren E. Bergoholz, Jr. , Esquire U.S. Nuclear Regulatory Commission Michael D. Oldak, Esquire Washington, D.C. 20555 L. Dow Davis, Esquire Office of General Counsel
- Mr. Gustave A. Linenberger U.S. Department of Energy Atomic Safety & Licensing Board 1000 Independence Ave., S.W.,
U.S. Nucle'ar Regulatory Commission Rs. 6A245 Washington, D.C. 20555 Washing ton, D.C. 20585
- Daniel Swanson, Esquire
- George L. Edgar, Esquire Stuart Treby, Esquire Irvin N. Shapell, Esquire Bradley W. Jones, Esquire Thomas A. Schmutz. Esquire Of fice Of Executive Legal Director U.S. Nuclear Regulatory Commission Gregg A. Day, Esquire Washington, D.C. 20555 Frank K. Peterson, Esquire Morgan, Lewis & Bockius
- Ruthanne Miller 1800 M Street, N.W.
Office of Atomic Safety & Licensing Board Washington, D.C. 20036 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Cadet H. Hand, Jr.
Dir ector
- Atomic Safety & Licensing Appeal Board Bodega Marine Laboratory U.S. Nuclear Regulatory Commission University of California Washington, D.C. 20555 P.O. Box 247 Bodega Bay, California 94923
- Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Herbert S. Sanger, Jr. , Esquire Washington, D.C. 20555 Lewis E. Wallace, Esquire James F. Burger, Esquire
- Docketing & Service Section W. Walker LaRoche, Esquire Office of the Secretary Edward J. Vigluicci U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C. 20555 Tennessee Valley Authority (3 copies) 400 Commerce Avenue Knoxville, Tennessee 37902
Lawson McGhee Public Library william M. Leech, Jr. , Esquire 500 West Church Street Knoxville, Tennessee 37902 Attorney General william B. Hubbard, Esquire William E. Lantrip, Esquire Chief Deputy Attorney General City Attorney Lee Breckenridge, Esquire Assistant Attorney General Munic Pal Building
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State of Tennessee Oak Ridge, Tennessee 37830
! Office of the Attorney General 450 James Robertson Parkway Nashville, Tennessee 37219 Oak Ridge Public Library Civic Center Oak Ridge, Tennessee 37820 Mr. Joe H. Walker 401 Roane Street Harriman, Tennessee 37748 Commissioner James Cotham Tennessee Department of Economic and Community Development Andrew Jackson Building, Suite 1007 Nashville, Tennessee 32219
- / Denotes hand delivery ha'rbara A. Finamore