ML20062D932

Applicant'S Memorandum in Opposition to Recirculation of a Fes Suppl.Reasons That It Is Not Req by NEPA

ML20062D932
Person / Time
Site:	05000471
Issue date:	10/20/1978
From:	BOSTON EDISON CO.
To:	NRC COMMISSION (OCM)
Shared Package
ML20062D902	List: ML20062D896 ML20062D906 ML20062D910 ML20062D920 ML20062D926 ML20062D932 ML20148R759
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NUDOCS 7812010059
Download: ML20062D932 (12)

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. APPLICANTS' MEMORANDUM IN OPPOSITION TO , ,

RECIRCULATION OF AN FES SUPPLEMENT IN '

BOSTON EDISON COMPANY ET AL. (PILGRIM NUCLEAR GENERATING STATION, UNIT 2)

Docket No. 50 471 The Question: When in the course of proceedings on a con-struction permit application a Licensing

. Board has " satisfied itself that the staff's '

[FES] alternate site analysis [is] not ade-quate . . . [and] has in effect called upon the staff to supplement its efforts in this particular regard"l/, must the staff first prepare and circulate an'FES alternate-site- -

analysis supplement prior to'further develop-ment of the record. .

Response: No. As we demonstrate in the discussii5n that follows, short of a complete alteration in what was initially proposed, recirculation . -

need not be considered. Nothing in NEPA re-

. . quires a different result.

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1/ Boston Edison' Company (Pilgrim Nuclear Generating Station, Unit 2), ALAB-479, 7 NRC CCH 1 30,301 (May 25, 1978).

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. o-e DISCUSSICN n

In Midland2 / the Appeal Board drew a distinction be-

. tween impact statements prepared in conjunction with the ~ -

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Commission's activities which were not subject to evalua tion through an adjudicatory hearin6, and impact state- -

ments prepared for licensing proceedings where the oppor- --

tunity for such a hearing is available. As the Board recounted in Maine Yankee 3/, it held in Midland'that in the case of an impact statement prepared for Commission activities, it was governed by Committee for Nuclear Responsibility v. Seaborg, 463, F.2d.783,787 (D. C. Cir. .

1971). However, in the case where an impact statement ,

waspreparedforlicensingproceedg7gs,itconcluded, there is nct the same. requirement._. .

. This dichotomy is sanctioned not only, by reason of

'the fact that intervenors and'other parties have an op-portunity to make their submissions on points in issue in .

every licensing proceeding 5/ but by the force of Commis-sion regulation as well.6/ .

~

2/ - Consumers Power Company (Midland Plant,

• Units 1 and 2), ALAS-123, 6 AEC 331, 334, reversed, sub nom Aeschliman v. NRC

~

547 F.2d 622 (D. C. Cir. 1976), reversed, sub nom Vermont Yankee Nuclear Power Corp.

v. NRDC, U. S. , 55 L. Ed. o0 (1978). , ,

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3/ Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station) ALAS-161, 6 AEC 1003, 1013; reconsideration denied, ALAB-166, 6 AEC 1146 (1973); remanded other grounds CLI-74-2, 7 AEC'2, reaffirmed, ALAB-175, 7 AEC 62 (1974); affirmed _sub nom.

Citisens for Safe Power v. NRC, 524 F.2d 1291 (D. C. Cir. 1975). .

b/ Id. 6 AEC 1013 2,/ Ibid. Cf.. Kleppe v. Sierra Club, 427 U. S t 392, 419 n. 1 (dissentine opinion).

6/ 10 CFR 51 52(b)(3). -

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. n-The Commission's different NEPA requirements in those actions which it initiates and in licensing pro-cedures are in no way at odds with NEPA. Indeed, in re-sponding to a challenge in Seabrookl/ that 10 CFR 51 52(b)(3),

• in providing that the FES is deened modified by subsequent .

decisions of its adjudicatory tribunals violates NEPA, the' Commission observed in its January 6, 1978 decision that, . . .

t "Two courts of appeal hate approved of that rule'. The Court of Appeals for ,the District of Columbia Circ' lit has ap- .

. proved our practice as not departing .

. 'from either the' letter or the spirit of

[NEPA]. . ' Citizens For Safe Power v. NRC, . .

524 F.2d 1291, 1294 n. 5 (D. C. Cir.

1975). See, also Ecolcgy Action v. -

AEC 1974)492 whereF.2d 998,Friendly Judge 1001-02recognized (2nd Cir.

,that omissions from an'FES can be cured by subsecuent consideration of the issue in an agency hearing." (Emphasis added).

The application of 10 CFR 51 52(b)(3) to " cure omis-sions" in an-FES has not been infrequent. While we do'not .

purport to have made an exhaustive search of the cases, the following examples serve to make the point. We can

~

begin with Maine Yankee, supra, wherein FEE modification by the Appeal Board without recirculation was affirmed in Citizens For Safe Power suora. Next we find that the .

Appeal Board in LaSallek/ remanded that proceeding to the ' -

Licensing Board for a new NEPA balancin's and for such ad- .

ditional findings and conclusions as were warranted by .

the existing record as supplemented by evidence to be adduced during the proceedings on remand.2/ -

2/ Public Service Comnany of New Hampshire (Seabrook Station, Units 1 and 2) CLI-78-1, '

7 NRC 1, 29 n.43; affirmed sub nom New -

England Coalition on Nuclear Pollution v.

• F. 2d NRC (1st Cir. Aug. 22, 1978).

8/ Commonwealth Edison Comoany-(LaSalle ,

County Nuclear Station, Units 1 and 2) '

ALAB-153, 6 NRC 821, Oct. 19, 1973 - -

Id. at 825 L

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. 's-It appeared in that proceed'ing that in the staff FES, the netiloss in agricultural production attributable to the LaSalle station could be offset by increa: ed pro-duction or by returning to' production acreage in the . .

county currently in a Federal Feed Grain Program. How- .

ever, prior to the initial decision in that case, the federal program had been discontinued.10/ Further, the -

• recreational benefits attributed to the station's cool-ing lake in the FES were left in dou'at with the reduc-tion in the size of the proposed lake as a result of a -

settlement with intervenors in that proceeding.ll/

In Comanche Peak 1 2/ the Appeal Board found that the staff FES failed to give adequate consideration to the . .

consequences of the loss of the station reservoir site for agricultural use. The Board tentatively concluded that a remand was necessary for the fulfillment of the Commission's NEPA responsibilities and invited memoranda from the parties as to.why it should not give effect to its tentative conclusion._13/. The Applicant responded to the Board's invitation but the staff did not lE/ The Applicant urged the Board to make the necessary NEPA findings on the record before it which had been spon-sored by the Applicant. This the Board declined to do "

stating that,

• 10/ Id. at 823 -

11/ Id. at 824. -

12/ Texas Utilities Generating C'omoany et al.

(Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-225, 1 NRC 4 (January 23, 1975).

1]/ Id,. at 5-6.

14/ Texas Utilities Generating Comoany et al. ~

(Comanche Peak Steam Electric Station,

. Units 1 and 2), ALAB-260, l NRC 51 (February 26, 1975). -

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"[T]he FES stands as the product of the study made by that segment of the agency which has the specific function of fer-reting out the baseline facts upon which ,

the final environmental judgments re-

• quired by NEPA must be made. That being '

so it necessarily is a prime ingredient -

in the ultimate fashioning of the agency's NEPA determinations by the adjt'.dicatory

. tribunals."ll/

Instead the Board requested the, staff to submit to it in affidavit form its own evaluation of the nature and quality of the land involved.15/ On receipt of the staff's .

affidavit, the Board concluded that a remand was no longer required. It declared that, .

, "The FES is, however, to be deemed modi-fled to include the* contents of the

[ staff] affidavit."ll/

' Limerick Generating Station 1E/ presents a case where consideration of an environmental issue, the " river follower" alternative (which the Appeal Board found -

13/ Id,. at 55-56. .

16/ Id. .

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12/ Texas Utilities Generating Company et al.

(Comanche Peak Steam Generating Station, Units 1 and 2), ALAB-266, 1 NRC 377, 378-79.

(April 23, 1975.) -

18/

Philadelphia Electric Comenny (Limerick Generating Station, Units 1 .

.,' and 2), ALAB-262, 1 NRC 163 (March 17, 1975) 4

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necessary for a full.NEPA revieu) was not specifically discussed in the FES but was presented and rej ected during the course of the hearings before the Licensing Board.19/ - ..

The Appeal' Board saw "no reason why the ' river . . ,

follower' alternative as presented by 'a federal agency for NEPA purposes' could not have been first considered ~

at the [ Licensing Board] hearing thus avoiding a delay which would have been occasioned by a recasting of the .

FES and a recirculation of it.n20/ The Appeal Board in .

so modifying the Initial Decision (FES) noted that its research had uncovered no judicial decision applying to -

NEPA which cuts against the conclusion it reached. This '

.the Board found " scarcely surprising in view of the rule of reason which' governs in the administration of- -

that statute, Natural Resources Defense Council Inc. '

v. Morton, 458 F.2d 627, 034 (D. C. cir. 1972)".

"To us at least there would be nothing .

reasonable about an iron-clad require-ment that the FES be redone, in advance -

. of an adjudicatory hearing on environ- .

, mental issues, whenever a late develop-ment raises the possibility that the project may be somewhat less beneficial than previously thought"31/

. Although not cited by the intervenors in support of "

their contention for a supplemental FES recirculation, -

the Board distinguished its holding from the decisions in -

• NRDC v. Morton, 337 F. Supp. 170 (D.D.C. 1972) and -

I-291 Why? Association v. Burns 372 F. Supp. (D. Conn. -

1974) noting that:

g/ Id. at.171. ,

20/ Id. at 196. - -

21/ Id. at 196-97 - . .

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"In the former, the ' court held that an addendum prepared to cure a deficiency .

in the original envircnmental impact statement had to be reci'rculated for' -

" comment'and review". In I-291 Why?, '

a highway project was enjoined in cir- ,

]

cumstances where the results of belated i studies made of certain environmental consequences of the project (e.g., in- .

creased noise and impact on air quality) -

were neither included in the environ-mental impait statement nor considered by any one other than the official (an '

engineer in the employ of the , Federal Highway Administration) who had the authority to approve federal funding of .

the project. ,

A E E

[N]ot having been circulated, the

. NRDC and I-291 Why? evaluations were available for appraisal only by the .

agency officials making the ultimate

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decision on the proj ect. Not so here. .

Under the procedures of this agency, the analysis was put forward at a public, ,

adjudicatory hearing and was fully tested. And' Commission regulations not ,.

only contemplate that the ultimate NEPA judgments be made on the basis of the entire record before the adjudicatory tribunals but, as well, that the findings ,

and conclusions of those tribunals be -

deemed to amend the FES (insofar as dif-ferent therefrom). 10 CFR (1974 ed.) '

Part 50, Appendix D, Section A.ll; -

10 CFR 51.52(b)(31 39 F.R. 26285 (July 18. 1974)".11/

4 22/ Id. at 197 - -

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In Barnwell 3 because of an assertedly deficient FES and the incomplete nature of the Commission's generic .

environmental study of the use of mixed oxide fuel (GESMO), the intervenors moved-the Appeal Board to stay .

the Licensing Board hearing. .

b One deficiency in the FES, according to the inter-  :

venors, wac that the statements contained in the FES ,

differed from the staff testimony at the hearing. ."

Addressing this contention, the Appeal Board declared: ,

"The Commission's regulations, however, recognize that evidence presented at a .

hearing may cause a licensing board to arrive at conclusions different from those in the FES. In that event, the FES is

• simply deemed amended pro tanto. '

10 C.F.R. 551.52(b)(3). To be sure, this provision ordinarily comes into play when -

other parties' evidence requires the board *

. to reject or modify a staff position adopted in the FES. But we have been told no reason why the staff itself must be forever frozen .

in its FES pori; ion. Nor would there be any wisdom in such a rule. To the contrary, we think the staff is obliged in the per-formance of its duties to bring to the .

attention of the Board significant new or updated information. The staff's'(and the . .

ective Commission's) truth, not to the obligation.istoob{/

printed word."2_

"Of course, in a given instance, the staff's evidence may depart so markedly .

from the positions espoused or information .

reflected in the FES as to require formal

'2],/ Allied-General Nuclear Services et al. ,,

(Barnwell Nuclear Fuel Plant Separation Facilities), ALAB-296, 2 NRC 671. J (October 30, 1975). '

24/ Id. at 680. ,

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redraftinC and recirculation for comment .

of the environmental statement (or at laast -

those portions which are affected by,the changes) before the licensing board gives . i any further consideration to the subjects involved. [ Citing Limerick, suora, 1 NRC ,

at 196-97] In this conr.ection, howev.er, , 6 we are not persuaded that the changes em- i bodied in the staff testimony are so sig- -

e nifica  ;

here."_gg/astorequirethattobedone

^ ' ~

Lastly, we focus on St. LucieS$[ which the Pilgrim -

j Appeal Board has characterized as "an analogous situation", *

• and observed that what was "said in St. Lucie applies with ' equal vigor here".21/ While it was determined that the staff alternate site analysis had to be augmented so as to' include at least one actual site (5 NRC 1044-45) there was never entertained nor do we find even the hint .

of a suggestion that the St. Lucie FES had to be recast ~

and recirculated prior to the remanded hearings in that -

proceeding. *

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A general principle can thus be distilled from the l foregoing cases. Unless the hearing record discloses a

- complete or major alteration of what was initially pro -

posed (Limerick, supra)or that the staff _ evidence departs so markedly from its position as espoused in the FES -

(Barnwell, supra), there is no need to start all over '

again, but reliance on 10 CFR 5 Sl.52(b) procedures can -

and'should be had to cure omissions or deficiencies in an FES. -

25,/ Ibid. -

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'26/

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Florida Power & Light Co. '('St. Lucie  !

Unit 2) LBP-75-5, 1 NRC 101, LBP-75-5,  !

'l NRC 463 (1975) reversed, ALAB-335, - l 3 NRC 830 (1976), on remand, LBP-77-27, i 5 NRC 1038, 1041-47, affirned, ALAB-435,'

6 NRC 541 (1977). -

gl/ Pilcrim, supra, ALAB-479, CCH 1 30,301.07 .

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~ Further, on our review of the cases involving FES modification' by the Commission's Licensing and Appeal Boards, we can readily join the Limerick Appeal Board in stating that our research likewise has uncovered no .

Judicial decision applying NEPA which cuts against an FES modification p'ursuant to 10 CFR S 51 52(b)(3). -

Rather, the judicial decisions which have considered such

. modification have, to the contrary, affirmed the. practice . .

under the rule. '

. . ' Earlier in this discussion, we noted:the Commission's observation in Seabrook: supra, 7 NRC at 29 n.43 to the effect that two courts of appeal have approved of that rule and its implementa ion vis-a-vis the Commission NEPAresponsibilities.2_g/ A third 29,/ can now along with the~ .

Supreme Court by virtue of its decision in the analogous

. case of Aberdeen & Rockfish R. R. Co. v. SCRAP,.422, U. S. .

. 289, 320. ,

The First Circuit's decision in NECNP, suora, in' conjunction with the decision of the Supreme Court in

, SCRAP II, supra, merit close attention. The court.in NECNP began with a recount of NEPA impact statement requirements along with the Commission's implementing -

re gulations .- It then observed that the issue raised by -

the intervenors arose because between.the time the FES -

was prepared and the time the Licensing Scard held its hearings EPA decided that the originally proposed intake structure location was not acceptable and required its -

relocation. The staff called upon the Applicant-to revise its environmental report accordingly but chose not to  :

redo the FES.30/ , ,

28,/ Citizens for Safe Power v. NRC' ' '

524 F.2d 1294 n. 5, supra, and Ecolozy Action v. AEC, 492 F.2d 1001-02, supra. , ,

2_9/ .New England Coalition on Nt clear

' Pollution v. NRC f.2d CCH 1 20,092, (1st Cir. 1973T,;suora, affirming Public Service Company of '

New Hamoshire (Seabrock Station ,

Units 1 and 2) CLI-78-1; 7 NRC 1.

I 30,/ New England Coalition on Nuclear .

l Pollution v. URC, CCH i 20,092 at l . 16,556. . .

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The Licensing Board'went ahead'with the hearings and evaluated the EPA location on the basis of the record before it. It then issued an initial decision. In doing' '

so, the Board relied on 10 CFR S 51 52(b)(3) . 31/ ,

The Court in, addressing the issue before it declared.: -

"We must decide whether this pro-cedure, on the facts of this case, satis-fie,d the requirement of NEPA. We ha.ve no -

. trouble finding that it did. The Supreme Court has held that the provision of NEPA

[$ 102(2)(C)] quoted above does not affect .

the time when the statement must be pre-pared; rather, it says what must be done ,

with the statement when it is prepared. -

Aberdeen & Rockfish R.R. Co. v. SCRAP,

, 422 U.S. 269, 320 (1975). As the Court .

pointed out, 'the time at which-the agency '

must prepare the ' statement' is'the time at which it makes a recommendation or report

. on a proposal for federal action.' Id. i (emphasis omitted); 42 U.S.C. S 4332T2)(c). -

In that case the ICC was required to prepare "

aTstatement, at the earliest, after an oral -  ;

hearing when the agency issued a decision. i Similarly, in our case, the earliest recom-mendation or report of the NRC as distin-guished from one by its staff [j2/3 was the .

t Licensing Board's initial decision. At that '

point, of course, the FES was in its final .

i form, modified by the decision, and discussed the new intake location. (Footnotes omitted)

\

J 31,/ Id. at 16,557. '

32,/ The footnote to the Court's decision . .- .

reads as follows: .

. t "12 Functionally, the staff is a party at the -

hearing. It takes its position as an adversary, and the Commission does not ~

adopt any position officially until ufter the hearing." (CCH 1 20,092 at 16,557.)

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1 Continuing the Court noted: , , .

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"The Distric't of Columbia Circuit has , *

reached a similar conclusion, upholding .

application of 10 C.F.R. 5 51.52(b)(3) to i

modify a final environmental impact state-3 ment in compliance with NEPA. Citizens For i Safe Power, Inc. v. NRC, 524 F.2d 1291, -

1294 & n.5 (D.C. Cir. 1975)"33/

( The decisions ar4 of particular significance in that they_ squar.e_10_CFR 5_51 52(b)( 3) with the letter of 5 102(2)(c) of NEPA (42 USCS 5 4332(2)(c)) as well as with .

its spirit and intent. What is more, the Supreme Court in SCRAP II, supra, 422 U. S. at 321, n.20' declared:

"To the extent to which Calvert C11res' Coordinating Committee v. AEC, 146 U. S.-

App. D. C. 33, 449 F. 2d 1109 (1971);

Greene County Planning Bd. v. FPC, 445 F. 2d 412 (CA2), Cert denied, 409 U. S. 849 (1972);

and Harlem Valley Transp6rtation Assn. v.

Stafford, 500 F. 2d 320 (CA2 1974), read the .

. requirement that the statement accompany the proposal through the existing agency review

- - processes differently, they would appear to conflict with the statute." ,.

While as pointed out in Kleppe v. Sierra Club, suora, -

427 U. S. at,406 n.15: -

"This is not to say th'ta 5 102 (2)(C) , ,

imposes no duties upon an agency prior to its making a report or recommendation on a proposal for action. The section states that prior to preparing the impact state- , .

ment the responsible official 'shall con-sult with and obtain the comments of any

.; Federal agency which has jurisdiction by law or special expertise with respect to ,,

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