ML20062M500
| ML20062M500 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 12/15/1981 |
| From: | Finamore B, Finnamore B, Greenberg E AFFILIATION NOT ASSIGNED, National Resources Defense Council, Sierra Club, TUTTLE & TAYLOR |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8112170267 | |
| Download: ML20062M500 (43) | |
Text
~~
v a t?t / ,e 9.u -
.1 ..
- ,.C9 f \f n ,% - -
l lh m
,. /C f _U p i Before the 97 DEC161981> & ' #fs? i UNITED STATES ]\ ,,,, ,,*,,u
- "m NUCLEAR REGULATORY COMM ION 1 DEC 15 -P4:54 Washington, D.C. 205 4 g
- 0) ~
In-the Matter of ) . /. .
)
N.$?Mf'y' M!CS" UNITED STATES DEPARTMENT OF ENERGY )
PROJECT MANAGEMENT CORPORATION )
TENNESSEE VALLEY AUTHORITY ). Docket No. 50-537
)
(Clinch River Breeder Reactor Plant) )
MEMORANDUM OF INTERVENORS, NATURAL RESOURCES DEFENSE COUNCIL, INC.
AND THE SIERRA CLUB, IN OPPOSITION TO APPLICANTS' hEQUEST TO CONDUCT SITE PREPARATION ACTIVITIES Intervenors, Natural Resources Defense Council, Inc. and the Sierra, Club (the "Intervenors"), 1! submit this
~ memorandum in opposition to the request, filed November 30, 1981, by the Department of Energy and its co-applicants, Project Management Corporation and the Tenn'essee Valley Authority (the
" Applicants"), for an' exemption, pursuant to 10 CPR 550.12, from the Commission's limitations on and procedures for the conduct of site preparation activities prior to issuance of a construction permit. In accordance with the Commission's directive, S/ this memorandum will address primarily the 1! East Tennessee Energy Group, previously an intervenor in these proceedings, is no longer in existence and its intervention will formally be withdrawn shortly.
S! Transcript of the Commissioners' meeting, 1 December 9, 1981, at 3-4.-
pS O 68 1 L
8112170267 911273
{DRADOCK 05000537 PDR:
/ .;
E .
~
I l
procedural issues raised.by the Applicants' request'. However, it will also necessarily touch on the merits, for, in our view, they illuminate the proper procedure to follow.
~
In a nutshell, tne Applicants' argument is that they should be able to spend more than $88 million $! in major construction activities at the site of the Clinch River Breeder Reactor (the "CRBR"), without having to complete licensing procedures designed to ensure compliance with the Commission's mandates under the National Environmental Policy Act of 1969, 42 U.S.C. 54321 et seg. ("NEPA") and the Atomic Energy Act of 1954, as. amended, 42 U.S.C. S2011 et seq. to protect the environment, the health and safety of the public, and the common defense and security. Their request is premised, in large part, on the proposition that, because of delay due to substantial doubts with respect to the desirability of the entire project, most if not all of which still linger, A/ the Commission should now expedite licensing through an extraordinary variance from normal procedures. -
S! See Applicants' Site Preparation Activities Report
- l. 18-(November 1981) (hereinafter cited as the " SPAR"). Given the magnitude of the expenditure, it is perhaps not surprising that it l is never mentioned in the Applicants' Memorandum In Support of
- Request to Conduct Site Preparation Activities, dated November 30, 1981 (hereinafter cited as " App. Mem.")
l A/ See discussion infra at pages 18-21.
-y
w In Intervenorc'. view, the delay of the past four years, if anything, militates in f avor of proceediag most cautiously and deliberately, and Applicants' request is wholly without. merit.
4 Indeed, it make's no. sense at all in the context of a proceeding to
. demonstrate the licensability of an untested reactor design. In the following sections of this memorandum we will demonstrate that: (1) the Commission itself can and should decide that there are major poli'cy and legal issues raised by the request, the resolution of which conclusively calls for its denial; (2) if the
~ Commission determines that policy and legal grounds do not bar further consideration of the request, then an adj udicatory hearing is necessary to resolve contested issues of fact and determine if relief is authorized under the terms of 10 CFR S50.12; and (3) should an adjudicatory hearing be deemed necessary, . the Atomic Safety and Licensing Board (the " Board") seized with this matter is the proper entity to make an initial decision on the merits of the request. n I. THE COMMISSION CAN AND SHOULD DECIDE THAT THERE ARE MAJOR POLICY AND LEGAL ISSUES RAISED BY THE REQUEST, THE RESOLUTION OF WHICH CONCLUSIVELY CALLS FOR ITS DENIAL Intervenors agree that this request raises significant issues of law and policy which can and should be decided in the 1
.e' 4:
- first instance by the Commission itself. E/ It makes little sense, and is a wasteful expenditure of time and resources, for the Board'to go through a hearing process and determine the factual' issues ~ raised by Applicants' request 5! where resolution of major . legal and policy questions is determinative of a negative outcome. In this case, as set forth below, there are at least six specific legal and policy grounds which compel denial of the request: (1) it is highly questionable- whether the exemption provision has any applicability'to a project whose licensing began after 1974; (2) there is no mandate,. congressional or otherwise, for the Commission to deviate from standard licensing practice; (3) such a deviation would undercut a fundament'al purpose of the CRBR project, which is to demnastrate 5/ There is no question that the Commission can and has intervened in advance of board decisions on "important issues of law and policy." See, e.g., Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977). In deciding such issues, the Commission should, of course, provide an opportunity for all parties to be heard. See Transcript of the Commissioner's meeting, December 9, 1981, at 19 (statement of Mr. Bickwit).
5/ As we point out in Section II below, if thc Commission should determine that policy and legal grounds do not bar further consideration of the request, it is still necessary to determine whether each of the four specific criteria set forth in 10 CPR 550.12 is met. This requires the resolution of contested
, fact issues -- resolution which.can only be satisfactorily obtained through an~ adjudicatory hearing. Cf., Washington Public Power Supply System, (WPPSS Nuclear Project Nos. 3 and 5),
< 4
'the'-licensability of fast breeder reactors; (4) grant of an exemption would 'substantially undermine public confidence in the CRBR;-(5) a waiver is impermissible, where, as here, it would result in the predetermination of Intervenors' environmental contentions; and (6) an ' exemption cannot be approved where, as here, the environmental record is incomplete. 1!
(a) The Applicability of 10 CFR 550.12 to Post-1974 Licensing Is Highly Questionable.
The exemption authorized under 10 CFR 550.12 is an exceedingly narrow one, to be granted only in exceptional an'd 1/ Intervenors' concern for procedural regularity --
a matter of utmost importance in this highly controvers.ial proceeding -- is heightened by the procedural posture of the entire request. This licensing proceeding has been formally suspended since April, 1977, and, to date, the Applicants have not
, requested the Commission to reactivate the Boatd or'reinitiate the licensing process. The presen,t request is thus made in a vacuum, and it is logical to argue that a more orderly procedure would be to reopen the proceeding and submit the request to the Board for initial consideration. Indeed, as far as we are aware, there is no precedent for requesting an exemption outside the context of an ongoing proceeding. Intervenors, however, do not press this argument. for three reasons. First, Applicants have manifested their intent to reactivate the licensing process in the near future. See Memorandum, dated November 12, 1981, from the Under l Secretary to the Deputy Secretary of the Department of Energy. .
Second, it is our view that the request presents law and policy questions which can and should be decided by the Commission.
l Finally, it appears that the Commission may have inherent power to I
consider at any time an application of this sort, or to direct the
! initiation of a hearing on such a request. See Houston Lighting l
and Power Co., The City of San Antonio, The City of Austin, Central Power and Light Co. (South Texas Project, Unit Nos. 1 and 2), ALAB-381, 5 NRC 582 (1977).
.i J exigent circumstances where time is of the essence. SI When the Commission, in response to the passage of NEPA, amended its regulations in 1972 to prohibit the conduct of any preliminary site work with significant environmental impacts, it S/ 10 CFR 550.12 provides:
(a) The Commission may, upon application by any interested person or upon its own initiative, grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest.
(b) Any person may request an exemption permitting the conduct of activities prior to the issuance of a construction permit prohibited by S50.10. The Commission may grant such an exemption upon considering and balancing the following factors:
(1) Whether ' conduct of the proposed activities will give rise to a significant adverse impact on the environment and the nature and extent of such impact, if any; .
(2) Whether redress of any adverse environment impact from conduct of the proposed activities can reasonably be effected should such redress be necessary; (3) Whether conduct of the proposed ac'tivities would _
foreclose subsequent adoption of alternatives; and (4 ) The ef fect of delay in conducting such activities on the public interest, including the power needs to be
, used by tne proposed facility, the availability of alternative sources, if any, to meet those needs on a timely basis and delay costs to the applicant and to
. consumers. .
Issuance of such an exemption shall not be deemed to constitute a commitment to issue a construction permit.
During the period of any exemption granted pursuant to this paragraph (b), any activities conducted shall be carried out in such a manner as will minimize or reduce their environmenta1 impact.
O a - ,.,n.
t g -
.4. _
'N .
~ 7- -
~
. incl.uded= SectionJ50.12 to provide'. relief -to those applicants ' !
~
- -conducting site work! at the f time the amendments were promulgated.. .
Its purpose esssent'ially was to avoid the unf airness .during the.
period of.~NEPA- transition which would result from holding up p-
- . those . applicants which had . started' th'e ir work ~under obviously
i
' ~
different rules of-the game. The Commission' fully. intended that
~
" specific ~ exemptions will be used only sparingly.for-this- j purpose." 37 Yed. Reg.' 5746 (March 121, 1972).
'It is clear that f', this exemption'was not orig'inally' intended to apply to all
. i
. :t applicants, but-only to those which were-in the middle of site 1,
l preparation activities when the new NEPA regulations were
}. promulgated.
I In April, 1974, the Commission decided to adopt a complete -
t
- i. set of standard procedures for the authorization of . limited site i l
l preparation work in accordance with~NEPA requirements.
39 Fed. -
l .
j Reg. 14506 (April 24, 1974). The Commission felt that amendments I 4
were needed to " reduce the time required to bring on line nuclear ;
} power plants" in "a time of deep national concern ov'er energy i
1 sources and supply . . . . Id. at 14508. According to the i t
!. Commission, the Limited Work Authorization ("LWA"), then adopted, j "with its provisions for full review of and public participation f on' relevant. issues . . . . reflects a reasonable approach toward i r .
! timely decisionmaking within the framework of the present Act."'
l Id. at 14507. The Commission did consider amending. Section 50.12 ,
l at -the same time to adopt a more liberal policy for granting .
- L T
r
't e 5
, .._o, ,e ,- -w,, -- --o y,, w -y,-a.w. --w -c.,--.rw---,,.y,,w...,<,<p.g.. ,,--,e- - , , . . . ~ . , . ,.y....----ev.w. --...J.. -- ..w, . , . , -pm..n-w, .--e. ,y-..w--,we --.
i! l l
o j exemptions under that'section, but expressly rejected that approach. Instead, it reiterated the settled Commission policy "of granting such [S50.12] exemptions sparingly and.only in cases of undue hardship." Id. E/
The lesson which we draw from this history is that, with the adcption of the LWA procedure in 1974, the application of Section 50.12 to any subsequent licensing is dubious. It is thus not surprising that the only exemptions ever granted occurred either prior to adoption of the LWA procedure or during periods when.it was not in effect. The case most heavily relied upon by Applicants, The Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), LBP-74-18, 7 AEC 538 (1974),
where an exemption was granted, was considered prior to the effec.tiveness of the LWA regulations. Subsequently, the only other grant occurred in an uncontested proceeding, where the only activities for which permission was sought were to take place under an existing LWA and the provisions for amending a LWA had been temporarily suspended. Gulf States Utilities Co. (River Bend .
Station, Units 1 and 2), CLI-76-16, 4 NRC 449 (1976).
The policy of not granting an exemption when the LWA procedure is available is also reflected in Kansas Gas and E/ The Commission retained Section 50.12 as a general exemption mechanism in 1975 when it amended its regulations based on the Energy Reorganization Act of 1974, 42 U.S.C. S5801 et seq.
I Yet it nowhere indicated any change in its policy of rarely using the exemption. See 40 Fed. Reg. 8774 (March 3, 1975).
k
_9_ i 1
Electric Co., Kansas City Power and Light Co. (Wolf Creek Generating Station, Unit 1), CLI-76-20, 4 NRC 476 (1976). In September, 1976, the Kansas Gas and Electric Company requested a Section 50.12 exemption for site preparation activities after the LWA regulations were temporarily suspended. Yet as soon as the Commission lifted its LWA suspension, it sent the Section 50.12 request to the Licensing Board with a direction to treat it as an application for a Limited work Authorization.
Finally, to the extent the exemption survives at all, the
. standard used by the Commission is an exceedingly narrow one. As the Commission stated in Washington Public Power Supply System (WPPSS Nuclear Project Nos. 3 and 5), CLI-77-11, 5 NRC 719, 723 (1977):
We regard this method as extraordinary, and we reiterate that it should be used sparingly
. . . . Parties should resort to this" method of relief only in the presence of exigent circumstances, such as emergency situations in which time is of the essence and relief from the Licensing Board is impossible or highly unlikely.
While it is conceivable that an emergency warranting relief might be hypothesized in some circumstances, it is difficult to see how delay resulting from the previous Administration's considered national policy, not to mention this Administration's own deliberate slowness in seeking to reopen the proceeding, could meet this exacting standard.
. (b) There Is No Mandate For the Commission to Deviate From Standard Licensing Practice.
When the rhetoric is stripped away from Applicants' request, it is clear that they advance just one substantial
~. '
non-factual ground as a-basis for the grant-of an exemption: the asserted Congressional mandate for the project's expeditious completion. See App. Mem., pp. 14-22. IS/ Contrary to Applicants' assertion, however, it is absolutely clear that Congress, while appropriating monies for the CRBR project, in no way mandated extraordinary deviations from standard licensing procedure.
The argument that there is an Administration and Congressional mandate for the grant of the extraordinary relief which Applicants seek simply blinks reality. It is no secret that it was a hair's breadth deciclon, in both the Administration and Congress, to move forward with the CRBR at all, and at no time was IS! In his letter of November 30, 1981 to Commission Chairman Palladino (the " Edwards Letter"), Secretary of Energy Edwards listed six grounds purportedly supporting the request.
The first -- Congressional support -- is concededly of a policy nature. The second -- the extensiveness of prior review -- which might also be characterized as, such, relates to the completeness of the environmental record. As explained in Section I(e), infra, on legal grounds the _ incompleteness of the current record requires denial of thr: request. In any event, even if environmental review -
were completed, in itself this would provide no grounds for concluding that emergency or exigent circumstances exist. The third and fourth grounds -- relating to alleged hardship, delay,
! increased costs, maintenance of the design team, application of
! taxpa'yer dollars, etc. -- and the sixth -- meeting the four i factors of 10 CFR S50.12 -- are obviously factual and cannot be properly resolved without recourse to a hearing. See pp. 28-35, l
infra. The fifth ground -- consistency with Commission policy --
is perfect nonsense. There is no precedent for exemptions of
! one-of-a-kind, untested reactors -- all other exemption cases
! involved conventional reactors with none of the special problems l attributable to the CRBR -- and, if anything, this absence of l precedent cuts in f avor of a more restrictive standard in this j case.
there any indication that emergency deviations,from standard licensing practice should be allowed.
First, although the Administration has expressed support for completion of the CRBR, the Administration itself has not even directed that the CRBR be completed in an " expedited" manner.
President Reagan's nuclear energy policy statement of October 8, 1981 simply directed that the Government " proceed" to complete the CRBR. See Statement of President Reagan, Nuclear Energy Policy, 17 Weekly Comp. of Pres. Doc. 1101-1102 (October 12,.
(1981). Further, despite this Presidential decision, there are significant views of Administration advisors expressing great l
hesitancy about proceeding. Thus, for example, in November , 1981, the Energy Research hdvisory Board to the Department of Energy recommended delay of the project. 12/
Second, there is plainly no Congressional mandate that the Commission grant regulatory exemptions to the CRBR or waive application of environmental, health and safety or common defense and security requirements. In fact, despite the long legislative history recited by the Applicants, see App. Mem., pp. 14-22, i
11! See Report of the Energy Research Advisory Board, November, TF81, at 19, 43. The Board stated, "The ERAB Delieves that construction of a breeder reactor demonstration at this time l is not an urgent priority and thus, under current budget i
constraints, recommends that such a demonstration be delayed until a further time." It might also be noted that there were fierce disputes in the budget process'over the advisability of further funding for the CRBR, and the project itself was narrowly '
i supported over the objections of the Director of the Office of Management and Budget. See Greider, "The Education of David Stockman," The Atlantic Monthly, De cember , 1981, at 36.
f
Appendix A, Congressional support for the CRBR has eroded from year to year and is probably at an all-time. low. 12/
The erosion of Congressional support is perhaps best reflected in the most recent votes on CRBR,_ funding. In the fall of 1981, despite a favorable Administrati-on stance on the project for the first time in four years, measures in both the Senate and House which would have deleted funding for the CRBR in fiscal year 1982 were only narrowly defeated. For example, on May 7,1981, the House Science and Technology Committee voted 22-18 to termin-ate the project. On July 24, 1981, the House of Representatives upheld continued funding by a margin of only 20 votes. See 127 Cong. Rec. H4839-4862 (July 24, 1981). In the Senate, on November 4, 1981, the vote was only 48 to 46 for continued fund-ing. See 127 Cong. Rec. S12858 (Nov. 4, 1981). The CRBR, in other'words, is before the Commission today not because of an overwhelming Congressional mandate, but because of the narrowest victory of its Congressional supporters.
Even taking the Congressional authorization,at face value, it is impossible to find in that authorization any support for egulatory exemptions for this project. The Conference Report 12/ Margins of support for continued CRBR funding
, have in fact declined from year.to year. One of the first efforts to delete funding for the project, for example, the so-called Tunney Amendment in 1975 (no. 553), was defeated in the Senate by a vote of 66-30. See 121 Cong. Rec. S14604-14637 (July 31, 1975).
By 1977, the margin on a similar proposal, which would have reduced funding to $33 million for FY 1978, was 38 to 49. See 123 Cong. Rec. S11564 (July 12, 1977). In May, 1979, an amendment to the Department of Energy Authorization Bill to defund the CRBR in FY 1980'was passed by the Senate Energy and Natural Resources Committee by a vote of 10 to 8, although it never became law.
on 'the Omnibus Budget Reconciliation Act of 1981 does call for
. construction of the CRBR in a " timely and expeditious manner." H.
Rep. No.97-208, 97th Cong., 1st Sess. 827 ( 19 81 ) .- But " timely and expeditious" completion can in no way be equated with a mandate to short-circuit required licensing procedures. Indeed, '
because the Conference Report itself speaks of making a " decision on the commercialization and deployment of breeder reactors . . .
made on the basis of information ootained in the operation of the plant," id., it can be readily inferred that Congress had no.
3 expectation that procedures other than those employed in the licensing of commercial reactors should be used.
This understanding of Congressional intent is reflected in the letters o' many members of Congress which have already been submitted to the Commission on this issue. As* Senators Tsongas, Humphrey, Bumpers, Bradley and Hart stated in their letter of December 9, 1981, to the Commission Chairman:
l Congress has never . . . indicated any support for regulatory exemptions for this project.
This (conference] report language is not a request for regulatory exemptions. To the contrary, it reaffirms the need to go through all steps of established regulatory procedure now to pave the way for possible future commercialization.
1 Intervenors submit that the views of the Senators are precisely -
in point.
i -
,-. , _ . - - , . - , - _ _ r-. -
--r-m - - m.ees --
l Pinally, it must be emphasized that, as the Comm'ission
-itself has recognized, authorizations or appropriations for projects do not eliminate or nodify the need for environmental reviews. As the Commission has stated in connection with this-very project:
As a general rule, the mere fact that Congress has enacted authorization or appropriations legislation for a particular project does not eliminate or substantially modify the environmental review of that project that would otherwise be required by NEPA.
United States Energy Research and Development Administration, Project Management Corporation, Tennessee Valley Authority (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 87 (1976), see
. generally, Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783 (D.C. Cir. 1.971). The wisdom of this rule is most relevant in a project such as the CRBR, which* involves a first time, untested reactor design, whose environmental, health and safety, and nonproliferation effects have been the subject of substantial public controversy.
(c) A Deviation From Standard Licensing Practice .
Would Undercut A Fundarnental Purpose of the CRBR Project, Which Is to Demonstrate the Licensability of Fast Breeder Reactors.
A fundamental purpose of the CRDR is to demonstrate i the licensability of a large scale liquid metal fast breeder reactor. We believe that the Commission can and should decide, i
therefore, that any variant from normal licensing procedures should be rejected.
(
s
. . . , - . , . - . _ - .,, ,.n,. -,n, - - - . . .
, The demonstration plant concept has a long history in the Commission and its predecessor, the Atomic Energy Commission (the "AEC") 11!. The purpose of these projects has been to
" demonstrate" to industry and the public that a new technology- can be safely developed and will be commercially viable. SS/
Implicit in this concept is the notion that the new project must undergo the same kind of scrutiny and follow the same procedures as would its sventual commercial successor. Otherwise, the demonstration effect is lost.
There is no dispute that one of the central goals of the CRBR is the demonstration of the commercial licensability of fast breeder reactors. In 1970, pursuant to Section 106 of Public Law No.91-273, 91st Cong., 1st Sess., Congress authorized the AEC to enter into a cooperative arrangement wlAh a reactor manufacturer and others for the development of a demonstration liquid metal fast breeder reactor. Implementing this mandate, the AEC, in August of 1972, executed a " Project Agreement" with the Tennesse Valley Authority, Commonwealth Edison Company, and l
Project Management Corporation for the design, construction and l
d2! The Cooperative Power Reactor Demonstration l Program was originally established by law in 1959 pursuant to l Section 110 of Pub. L. No. 86-50, 86th Cong., 1st Sess.
IS/ For a general description of the program, see l Hearings Before the Joint Committee on Atomic Energy on ERDA Authorizing Legislation, FY 1976, 94th Cong., 1st Sess. 618 (Part I, February 4, 1975).
l 1
l
operation of the CRBR. One of the five objectives of the CRBR as stated in the Project Agreement ie to:
verify certain key. characteristics and 1
capabilities of breeder power plants for ~
operation on utility systems such as licensability and safety, operability, reliability, availability, maintainability, flexibility, and prospect for economy (emphasis added).
This same language, without change, carried through modification of the Project Agreement in May, 1976.
Congress, for itt, part, has reaffirmed the importance of a demonstration of "licensability" in the CRBR project. In 1974, the Energy Reorganiz'ation Act, Public Law No.93-438, 93d Cong.,
2d Sess., 42 U.S.C. S5801 et seq., was enacted. That law broke up the old AEC and created the Commission and the Energy Research and Development Administration ("ERDA"). While aJthorizing ERDA to conduct research and development and to demonstrate commercial fnasibility and practical application of nuclear energy sources, and while excluding Government research and test reactors from licensing, the Energy Reorganization Act specifically vested in the Commission licensing and related regulatory authority over demonstration breeder reactor systems designed for commercial application. See section 202, 42 U.S.C. S5842. Indeed, the purpose of allowing the Commiss' ion to develop expertise in all phases of the new reactor development, see S. Rep. No.93-980, 93d Cong., 2d Sess. 59 (1974), would be undermined if specific
-l
~
portions of any licensing" proceeding were not followed in connec-tion with such projects. The intent of Congress was thus plain that,'even though the applicant might be a sister government agency, :nonetheless a complete, independent environmental. review would be required before the project coul. be finally con-structed.
It is significant, moreover, that in the extensive legislative history cited by'the Applicants, see App. Mem., pp.
14-22, Appendix A, there is no indication anywhere that Congress, at any time, wished to alter.the licensability component of'the program. Thus, for example, presentations to the Joint Committee on Atomic Energy repeatedly emphasized, " Characteristics such as licensability . . . must be confirmed through operation of a demonstration plant if the breeder is to become a reliable future option for the production of electric power." Hearings Before the Joint Committee on Atomic Energy on ERDA Authorizing Legislation, FY 1976, 94th Cong., 1st Sess. 611 (Part I, Feb. 4, 1975). Three years later, on June 1, 1978, in reporting an appropriation for the CRBR, the House Appropriations Committee specifically noted the "need to determine at an early date the' licensing, technical and economic issues that must be resolved in order to establish a viable breeder reactor option for the Nation" (emphasis added) . H. Rep. No. 95-1247, 95th Cong., 2nd Sess. 40 (1978). The tangled history of the breeder program since 1977 is
~
replete with continuing references to " licensing" as an integral
- element af the program. See, e.g., statement of Rep. Beard, 127
Cong. Rec..H4857 (July 24, 1981). Indeed, as recently as November,-1981,1 supporters of the project, such as Senator McClure, have cited favorably conclusions that demonstration of.
licensability is integral to the success of the program. See 127 Cong. Rec. S12868, S12870 (Nov. 4, 1981).
Just.how licensability will be demonstrated if, at the very first' opportunity, an extraordinary exemption from licensing procedures is granted, is something of a mystery. We fully agree with the statement of Congressman Udall, in his letter of December 8, 1981, to the Commission:
[T)o the extent that Clinch River is intended as a demonstration of the commercialization potential of breeder reactors (including their ability to be licensed by NRC), it appears somewhat self-defeating to shortcut the normal licensing process at the first opportunity.
(d) A Waiver of Standard Licensing Practice Would Sub-tantially Undermine Public Confidence in the CRBR One purpose of taking what is essentially a Government project, such as the CRBR, through an independent licensing prccess is to promote public confidence in the project. The -
presumption is that the grant of a license, after rigorous review, will provide assurance that the environment, the health and safety of the public, and the common defense and security are protected, that the project is cost effect~ive, and that ultimate licensing is in the p'ublic interest. Public confidence in the CRBR is not e
,m - + - - - - -~ n -
. _19_
high; 15/ it would be fundamentally impaired by a deviation from licensing procedures of the sort that the Applicants seek.
On July 20, 1981, the Subcommittee on Oversight and
- Investigations of the House Committee on Energy and Commerce held a hearing to investigate some of the cost , schedule, and technical problems of the CRBR. The preliminary report of the Subcommit-tee's staff includes findings that the estimated cost of the project has gone from $669 million in 1973 to over $3.2 billion in 1981 --
a 450% overrun. The staff also found that the taxpayers' liability in this project has grown from "about $100 million" to about $3 billion -- more than 30 times the original estimate. The staff report found that these cost overruns were due not solely to bureaucratic delay, but rather to lack of contract definition and enforcement, technical problems, "over 100 unresolved safety issues," fraud, and abuse. Memorandum to John D. Dingell, Chairman, Subcommittee on Oversight and Investigations, from Subcommittee Staff, Preliminary Findings -- The Clinch River Breeder Reactor Project: A Cost and Technical Fiasco (July 16, 1981). Although these issues are not directly implicated in IE/ That doubts are widespread can scarcely be gain-said. Quite apart from the fact that the previous Administration wished to cancel the project, the CRBR is routinely referred to in the press as a "S3.2 billion boondoggle," Time, Dec. 14, 1981, at 33, and columnist Anthony Lewis of the New York Times has characterized the CRBR as one of "the biggest jokes in the federal budget." The New York Times, De c . 3, 1981, at A27.
t
Applicants' ' request for an _ exemption, granting of such an exemption at this time will only fuel the fears of the public that the safety, cost and tschnical issues raised in the licensing will not be addressed M a comprehensive and thorough manner as required by law.
Doubts with respect to the costs, schedule and technical status of the project are matched on the environmental, safety and nonproliferation side. Indeed, the literature is.so immense one barely knows where to begin. Virtually every dispassionate assessment of the Nation's energy needs has pinpointed -
uncertainties about the breeder. See, e.g., A Time To Choose:
America's Energy Future 216 (Final Report by the Energy Policy Project of the Ford Foundation 1974) (emphasizing need to resolve LMFBR safety and environmantal questions); Nuclear Power Issues and Choices 335 (Report of the Ford / Mitre Nuclear Energy Policy Study Group 1977); Stobaugh and Yergin, ed., Energy Fut'tre 153 (Ballantine ed. 1979). Obviously, these uncertainties are far from resolved.
It is the Intervenors' position that the only way that there will be any public confidence in the CRBR is for the l
l Commission to require the Applicants to follow standard licensing procedures, in an orderly manner, with full public participation.
l
! The sentiments of Congressman Udall, in his letter of December 8 to the Commission, are precisely in point:
l I .
e
. - _._ _ - _ . ~ , _ . _ . _ - - - - - ,
e
- u -
In the event that the Commission. grants the
- exemption ~ sought by the Secretary, public confidence in the regulatory process as it applies to Clinch River and future breeders may suffer unnecessary end irreparable harm.
(e) Granting An Exemption would Prematurely Foreclose Important Contentions Raised by Intervenors.
Where environmental issues are seriously contested, an
-exemption from ordinary licensing procedures is inappropriate.
This rule is well' stated by the Commission in Louisiana Power and Light Company (Waterford Steam Electric Generating Station, Unit 3), CLI-73-25, 6 AEC 619 (1973). In that case, s request for an exemption-was denied. The Commission stated:
The construction permit application is the subject of two contested adversary proceedings dealing with safety, environmental, and antitrust issues. Our regulations require certain environmental findings before such an exemption may be. granted (10 CFR S50.12). Where, as here, environmental issues are seriously contested, it would be inappropriate for us t.o circumvent normal adjudicatory procedures by granting the exemption. In the circumstances of this case, we conclude that the request must be denied.
6 AEC at 622, note 3.
In this case, two environmental-contentions presented by l
l l
., ~
the Intervenors-in the suspended CRBR licensing proceedings are critical.i lb! First, and most importantly, Intervenors have contended that even the LWA procedure is inapplicable to untested, first-of-a-kind reactors such as the CRBR where safety and environmental issues are inextricably intertwined or where, as here, because of important safety issues, completion of_the site suitability report and resolution of safety issues are essential components of an adequate NEPA review. See Project Management Corp., Tennessee Valley Authority (Clinch River Breeder Plant),
LBP-76-14, 3 NRC 430, 434 (1976) (discussing Intervenors' Contention 1(e)). A, fortiori, if the LWA procedure is inapplicable, so, too, is the more extraordinary exemption pursuant to 10 CFR 550.12. Yet, if an exemption were granted, Intervenors' ability to present their LWA arguments to the Board would be eliminated and the Board's licensing functions preempted.
, 16/ It must be emphasized, moreover, that additional .
environmental contentions may be asserted once the licensing is formally reopened. This proceeding has been suspended for more than four years. Plainly, as discussed more extensively in the next section, substantial updating of the Preliminary Safety Analysis Report, the Site Suitability Report, and the Final Environmental Statement (the "FES") will be required before the Board can take further action in this proceeding. Commission
. pre <:edent makes it clear that, should new information be revealed in these revised and updated environmental documents, an intervenor has the right to petition to amend its contentions to reflect such new information. Detroit Edison Company (Greenwood Energy Center, Units 2 and 3), LBP-75-56, 2 NRC 565 (1975). This possibility alone in the instant case should bar granting an exemption.
9
l~
Second, site suitabilit) is a key issue in this case.
Inhervenors have contended' that it has not been established that the. site selected for the CRBR provides adequate protection'for the-public. health.and~ safety, the environment, national security and national energy supplies because of unf avorable meteorology.
and the proximity of other facilities. See Project Management' Corp., Tennessee Valley Authority, (Clinch-River Breeder Plant),
LBP-76-14, 3 NRC 430, 435-(1976)(discussing Intervenors' Contentions 6(b) and 6(c)). 12/ While theoretically, even .
if an exemption were granted, it might be possible for the Board later to pass'on site suitability questions, nonetheless prudence dictates that, given the highly controversial nature of the site i suitability determination, not even minimal risks of preempting that decision be taken. dE!
11! In fact, even the FES acknowledged that there are l
preferable alternatives to the Clinch River site. FES at 9-22 to 9-23.
dE! Intervenors also note that their Contention
!' 10(a)(5) questions the likelihood that the CRBR will demonstrate
" environmental acceptability". See Project Management Corp., U.S.
Energy Research and Development Administration, Tennessee Valley Authority, (Clinch River Breeder Reactor Plant), LBP-76-36, 4 NRC l
419,'423 (1976), Environmental acceptability, of course, depends in part upon the appropriateness of conditions at the site.
4 l
b I
.. (f) An Exemption Cannot Be Granted on an Incomplete Environmental Record.
In their memorandum Applicants argue at length that
" existing environmental and-safety reviews for the project" ,
provide the Commission with discretion to grant an exemption under 10 CPR S50.12. See App. Mem., pp. 5-9. Applicants' memorandum leaves tce impression that no further environmental review related to the site need be undertaken. This is simply not the case.
Commission precedent makes it quite clear that an exemption is
" authorized by law" within the meaning of 10 CFR 550.12 if, and only if, the requested site work can be assessed on the basis of a
" complete environmental reccrd." Washington Public Power Supply System (WPPSS Nuclear Project Nos. 3 and 5), CLI-77-11, 5 NRC 719, 722 (1977). lA/ In this proceeding the Commission's environmental reviews are stale and must be updated before any site work can be allowed.
We are only aware of two cases in which an exemption under 10 CFR 550.12 has been granted. The Carolina Power & Light Co. -
' (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), LBP-1E/ By " complete environmental record", we understand the Commission to mean a record covering all aspects of a project,
! not just site characteristics. Clearly, such a record does not l now exist in this proceeding. But even if completeness of the l site review were the only issue, we do not believe that, after a
! lapse of four years, the Commission can simply rely on its prior i analyses.
l
(
l v -
18, 7 AEC 538 (1974); Gulf States Utilities Co. (River Bend Station,. Units 1 and 2), CLI-76-16, 4 NRC 449 (1976). In each, the environmental record was complete and, perhaps more important, fresh.
In Shearon Harris, even though there was only a ten month delay in the schedule, the Commission staff had nonetheless gone about revising the environmental impact statement, a new draft environmental impact statement had in fact been issued, and a final environmental impact statement was imminent. Indeed, the Commission, in looking back on the sequence of events, emphasized that a new, final environmental impact statement was eventually issued and that such statement recommended granting of permits.
See 7 AEC at 945. Plainly, in the instant case, we are far from a situation where even a revised draft is imminent.
Likewise, in River Bend, a LWA had already been granted based upon a final environmental impact statement. Indeed, the applicant, when it applied for the exemption, had already completed most of the work authorized by the LWA and simply wanted a minor modification to allow the placing of engineared backfill into an authorized and completed excavation. This incremental, additional work, based on a completed environmental record, can scarcely be equated with the $88 million-plus of new activities O
e- +
2p/
proposed by the Applicants in this case.
Applicants' assertion to the contrary notwithstanding, the environmental record is far from complete in this case. The only-current analysis of the. impacts'of construction activities is the Site Preparation Activities Report (SPAR) presented to the Commission by the Applicants. The Site Suitability Report and the FES are more than four years old. While the Applicants are given to characterizations of changes in the scope of work, environmental impacts and site conditions as " insignificant", see, e.g., App. Mem., pp. 7-8, the Commission obviously cannot accept these assertions on faith. Yet its own environmental record is obviously insufficient.
The regulations of the Council on Environmental Quality (the "CEQ") specifically call for preparation of a supplement to an environmental impact statement if "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 CFR S 150 2.9 ( c) (1 ) (ii) . The CEQ has recently elaborated on that 2p/ It is obvious that pre-1970 cases in which site
- construction activities were conducted prior to issuance of a l construction permit are not relevant precedents in-this
! proceeding. As the Commission noted in Kansas Gas and Electric l . Co., Kansas City Power and Light Co. (Wolf Creek Nuclear
- Generating Station, -Unit No. 1), CLI-77-1, 5 NRC 1, 6 (1977),
these activities took place prior to the enactment of NEPA, at which time "there was no bar to site activities that might have a substantial environmental impact but which had no safety significance."
i f
!. Y
.'o l
I f provision, noting that "if the proposal has not yet been ,
implemented, . . . EISs that are more than five years old should be carefully reexamined to determine if the criteria in Section 1502.9 compel preparation of an EIS supplement." 46 Fed. Reg. 18036 (1981).
It is well established that a supplemental impact statement must be prepared when significant new information becomes available af ter the preparation of the original statement.
See, e.g., Society for Animal Rights, Inc. v. Schlesinger, 512 F.2d 915, 917-918 (D.C. Cir. 1975); Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 91-92 (2nd Cir. 1975);
Essex County Preservation Ass'n. v. Campbell,, 536 F.2d 956, 961 (1st Cir. 1976); Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1023-1024 (9th Cir. 1980); Red Line Aleft v.-Adams, 10 ELR 20314, 20316 (D. Mass. 1980); Monarch Chemical Works, Inc. v.
Exon, 452 F.Supp. 493, 500 (D. Neb. 1978). In this case it is obvious that the nuclear universe has virtually been turned upside down since the issuance of the FES in February 1977. Most pertinently, as regards the exemption request, the Commission's siting criteria are undergoing intensive review, see 45 Fed. Reg. 50350 (July 29, 1980), and the Commission has indicated an intention "to reemphasize the desirability of site isolation
. . . . " 45 Fed. Reg. 50351. This review plainly has a direct bearing upon a prcject whose site has always been subject to doubt. See FES at 9-22 to 9-23. Beyond these siting issues,
' - ' i-
.~
moreover, it is apparent that our understanding of reactor safety issues, the economic costs and benefits of nuclear power generally and this program in particular, waste management options, and safeguards risks has changed drastically over the past several -
years. See generally letter dated August 21, 1981, from the Natural Resources Defense Council, Inc. to James Edwards, Secretary of Energy (requesting revised LMFBR programmatic statement). 31/ In such circumstances, it is manifest that the record before the Commission cannot and should not provide a basis for the exemption sought by Applicants.
II. IF THE COMMISSION DETERMINES THAT LEGAL AND POLICY GROUNDS DO NOT BAR FURTHER CONSIDERATION OF THE REQUEST, THEN AN ADJUDICATORY HEARING IS NECESSARY TO RESOLVE CONTESTED ISSUES OF FACT AND DETERMINE WHETHER RELIEF IS AUTHORIZED UNDER THE TERMS OF 10 CFR 550.12 Even if the Commission should decide as a matter of law-and policy that there is no bar to the grant of an exemption under 10 CFR 550.12, there still remain specific factual issues which must be resolved before any exemption can be granted. At this point, except for the incomplete and outdated environmental record ,
referred to in the previous section, all the Commission has before it are the Applicants' assertions with respect to and characterizations of the facts in this case. That is simply not a
, sofficient basis upon which an exemption can be granted.
23/ A copy of this letter is being placed on file with the Commission.
I i
L 1
H 1
a !
Applicants' assertions must be subject to testing by Intervenors and the staff. See generally Georgia Power Co. (Alvin W. Vogtle '
Nuclear Plant, Units 1.and 2), ALAB-276, 1 NRC 533 (1975). Not surprisingly, in every contested case in which the exemption issue has been raised, 22/ adjudicatory hearings have been considered necessary to sift the facts relevant to the request.
See Washington Public Power Supply System (WPPSS Nuclear Project Nos . 3 and 5 ) ; -CLI-77-ll, 5 NRC 719 (1977); Louisiana Power and Light Co. (Waterford Steam Electric Generating Station, Unit 3),
CLI-73-25, 6 AEC 619 (1973); Kansas Gas and Electric Co., Kansas City Power and Light Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), CLI-76-20, 4 NRC 476 (1976); The Carolina Power &
Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-74-9, 7 AEC 197 (1974). 2]/ _
SS! In Gulf States Utilities Co. (River Bend Station, Units 1 and 2), CLI-76-16, 4 NRC 449 (1976), the only case where no hearing was held, intervenors did not contest the exemption l request.
S$! Whether hearings are actually required, see The Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), ALAB-184, 7 AEC 229, 237 (1974), is somewhat beside the point. The question is whether a hearing is the most effective way to elucidate the facts bearing on the exemption request. Indeed, in Shearon Harris itself, no less than a three day full evidentiary hearing was held. See The Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), LBP-7 4-18, 7 AEC 538 (1974). And, on other occasions, the Commission has gone out of its way to' emphasize the importance of scrutinizing the factual issues on an exemption application in the context of a formal hearing. See Washington Public Power Supply System (WPPSS Nuclear Project Nos. 3 and 5),
CLI-77-11, 5 NRC 719 (1977). ,
i i.
4 Es In this case, Intervenors do not see how it would be possible for an exemption to be granted without a hearing on the underlying factual issues. Not only do the asserted delay, and associated cost, were an exemption not to be . granted , deservc the closest scrutiny, but there is an entire range of environmental issues which must be addressed in the context of the four criteria set out in 10 CPR 550.12.
(a) Delay and Cost -- If the Applicants had their way, presumably the Commission would take on faith their claim that, if no exemption were granted, there would be " undue hardship in the form of another 1-2 years of delay and $120-240 million of increased costs." Edwards Letter at 2. Likewise, Applicants have asserted that design, research and development activities are "about 90% complete," and that delay of approval would force a
" stretch-out [of] remaining design and R&D activities, while maintaining the project's technical team intact throughout the period of delay." Id. at 2-3. Plainly, however, it is necessary to probe how costs were calculated, precisely what ~R&D work can still be done productively, to what other uses funds might be put ,
and so forth. Indeed, in the Shearon Harris case, relied on so heavily by Applicants, it was just these issues of cost and delay
, which took up a major part of th adjudicatory hearing. See The Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, i Units 1, 2, 3 and 4), LBP-74-18, 7 AEC 538 (1974).
I
(b)- Significant Adverse Environmental Effects - .
Applicants admit that circumstances have changed since the LWA application was filed, that the proposed scope of site work has
~ increased, and that the environment itself has been altered to some extent. 21/ While they characterize til these changes and differences as " minor" or " insignificant," the very narrowness of the standard which the Commission must use in assessing the impact of site preparation activities compels a skeptical approach to such characterization. As the Commission emphasized in Kansas
_ Gas and Electric Co.( Kansas City Power and Light Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), CLI-77-1, 5 NRC 1, 12 (1977), in the slightly different context of a claim under 10 CFR S50.10(c) that certain preparatory activities did not
" adversely affect the environment," the inquiry must be whether the activities at issue have an impact "so trivial" that "no conceivable harm" can be done to the interests sought to be protected by NEPA.
In this case, while the Applicants assert th'at their activities on-site are " essentially the same as those included in the construction activities considered by the NRC in preparing Chapter 4, ' Environmental Impacts Due to Construction,' of the 23/ The conclusion that the site itself has not materially changed in the past four years is found in an August, 1980 site reconnaissance survey, which even the Applicants concede is " limited". SPAR at 2-30.
---w -m -
FES", SPAR at 3-1, in fact there are a number of changes in the scope of' site preparation activities. Most inportantly, the acreage disturbed has grown from 195 acres to 260 acres -- more than a 25% increase -- and the excavation volume has almost -
doubled, increasing from 1,445,000 cubic yards to 2,790,00 cubic ;
i yards. SPAR at 3-1. A quarry of 45 acres, 40 to 140 feet deep, I will be required. SPAR at 3-1, 3-18. The change in the scope of the activity will result in almost a five fold increase in the amount of disturbed land involving the hardwood community. SE! SPAR at 4-2. Moreover, all these activities may be taking place concurrently with the possible construction of the Koppers " synfuels' project located approximately 2.5 miles from the site. SPAR at 2-10.
Conceivably, although it has the ring of inherent incredibility, in some circumstances spending $88 million on construction activities might not be significant. We think it best to test this proposition properly in a hearing process.
(c) Easy Redressability of Proposed Activities -- When one moves from the question of environmental impact to the question of redressability, conclusions are even more problematic. At least, in 1977, the Commission staff did conclude
,in the FES that the environmental impacts of site preparation S5! Presumably there will also be water management effects of the activities, which involve penetrating the water table, although these are not discussed in SPAR.
=
"would not be'significant." -FES at 9-23. The staff, however, made_no similar determination with respect to redressability. The Commission, therefore, has no environmental record to go on in this regard.
The SPAR states, as . if the proposition were unassailable, that dismantling f acilities and relandscaping the area af fected "can be accomplished at a small cost." . SPAR at 5-2. Moving approximately 1.3 million cubic yards of' fill to eliminate depressions throughout the disturbed areas also appears to pose. no ,
I problems. SPAR at 5-3. The total cost of all this work is estimated at only $8.2 million for labor -- less than 10% of l construction cost -- while the salvage value of temporary facilities and construction equipment is estimated at $14.9 million. SPAR at 5-6. Intervenors do not believe that these blithe assertions and fiscal calculations can be accepted at face value. Backup data must be presented to show how they were derived, while, at the same time, it would seem necessary to demonstrate the feasibility of redress.
~
(d) Foreclosure of Reasonable Alternatives -- Applicants assert that " proposed site preparation activities do not entail any foreclosure of land use alternatives or irreversible commitment of natural resources." SPAR at 6-2. This assertion is presumably premised, at least in part, upon the assumption that redressability will cost approximately $8 million -- an assumption which, as pointed out above, deserves to be tested.
Beyond the question of redressability, however, is the question of cost / benefit tilt. While the Applicants characterize the investment in site preparation as "relatively small",
App. Mem., p. 34, it is difficult, by any stretch of the -
imagination, to dismiss the expenditure of $88 million as having no impact on project momentum. Indeed, we are unaware of any case authorizing an expenditure of this magnitude for construction activities, prior to completion of an environmental review, as consistent with the F.andates of NEPA. b!
( f) The Public Interest -- The basic public interest arguments put forward by the Applicants -- that approval of the exemption will save money and avoid delay, see App. Mem. p. 35,
-- are essentially factual in nature, as noted above. See page 30 supra. But it is worth noting, in addition, that the factors other than delay specifically mentioned in subst tion 4 of 10 CFR 550.12 are plainly inapplicable in this case. When the exemption was originally adopted, one of its central purposes was to avoid 2{/ In the Shearon Harris case, although delay costs would have been $110 million according to the Commission's estimates, the actual expenditure by the applicant on site preparation activities was only $4.5 million -- a tiny fraction of what Applicents here propose -- and the costs of redress were only
$1.5 million, also much less than in the instant case. See
. The Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), LPB-74-18, 7 AEC 538, 550 (1974).
Under NEPA, of course, even small expenditures of funds have been held.to tilt the balance and, therefore, be impermissible. See, e.g., Stop H-3 Ass'n. v. Volpe, 349 F.Supp. 1047 (D.C. Hawaii 1972).
l
+
i
' delay in meeting consumer needs for -power.- In a case such as _ j
~
Shearon Harris, power needs, the availability of alternate sources to meet'those needs on a timely basis, and delay costs "to consumers" were important factors influencing the outcome of deliberations on the request. See The Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4),
LBP-74-18, 7 AEC 538, 550-552 (1974). In this case, by contrast, they are irrelevant. Indeed, the Conference Peport on the Omnibus Budget Reconciliation Act of 1981 specifically states that the.
CRBR should not be constructed "on the basis of providing nseded power in this specific region of the Clinch River site." H. Rep.97-208, 97th Cong., 1st Sess. 827 (1981).
In summary, it is apparent that, even if law an'd policy d
did not bar the granting of an exemption, a hearing on the underlying factual basis for such an exemption is absolutely necessary. 22/ Indeed, without it, the Commission would not be in a position to evaluate as it should the merits of the request.
22/ Applicants' arguments against holding a hearing, see App. Mem., pp 10-13, or submission of the matter to the Board, see App. Mem., p. 40, seem based on the contention that to do so would render timely relief impossible or highly unlikely, not on any inappropriateness, as such, in holding a hearing. We address these arguments in the next section.
N
C III. 'SHOULD-AN ADJUDICATORY HEARING BE DEEMED NECESSARY, THE BOARD SEIZED WITH THIS MATTER IS THE PROPER-ENTITY-TO MAKE AN INITIAL DECISION ON THE MERITS OF THE REQUEST If the Commission does not determine that dictates of law and policy bar further consideration of the exemption request, .
then Intervenors submit that it should direct the Board to hold an evidentiary hearing on the request and make an initial decision thereon. In our judgment, not only is the Board the proper forum for such an adjudication, but there is no indication that it cannot provide timely relief.
The application for the CRBR was initially docketed in April, 1975. Adjudicatory proceedings were initiated before the Board in June, 1975. Those proceedings lasted almost two years, until April, 1977. During that period, extensive discovery was undertaken, and. numerous procedura. and substantive questions A
were argued before the Board. In particular, the Board ruled on the admissibility of all of the Intervenors' contentions. A'nd, at some future point, the Board will have to make an initial decision i
with respect to those contentions, including the two contentions .
discussed above, see pp. 21-23, supra, relating to construction activity and site suitability which are directly relevant to this ext :ap' tion request. In such circumstances, the Board is well cuited to consider the Applican,ts' request.
At the same time, we must emphasize that it is the policy of tile Commission to have the Board, and not itself, cecide factual issues. The Commission's decision in WPPSS is in point'.
i There the Commission stated:'
l
f i
The Licensing Boards exist for the very purpose of
. compiling a factual record in a particular proceeding, analyzing the record, and making a determination based on l the record. Not only is WPPSS asking us-to-grant authorization preliminary to'an LWA, which itself is preliminary in nature, but it is asking-us to displace the Board's function prior to a final order of the Board.
Absent extraordinary. circumstances not readily apparent in the present case, we would be extremely re'luctant to assume the function of the Board and scrutinize the factual issues ourselves, particularly without benefit of an initial decision by the Board.
Washington Pub'.ic Power Supply System (WPPSS Nuclear Power Project Nos. 3 and 5), CLI-77-11, 5 NRC 719, 722~(1977). And, on other occasions, the Commission has noted that, while it is certainly capable of performing the function of a licensing board, it is generally not practical for it to do so. See, e.g., Public Service Company of New Hampshire (Seabrook Station, Uni'ts 1 and 2), CLI-76-17, 4 NRC 451 (1976). 28,/
28/ With regard to the appropriate role of the Commissioners the words of Congressman Udall deserve consideration:
In addressing the Secretary's request that the Commission bypass the licensing board and decide itself on pre-LWA site work at Clinch River, consideration should be given to as whether this is the most appropriate use of the Commissioners' time during a period when the Commission's resources are strained by the pressure to
, issue operating licenses for large numbers of reactors in the f ace of increasing indications of signifiuant unresolved safety issues and major defects in quality assurance programs conducted during the construction process.
Letter, dated December 8, 1981, from Congressman Udall to Chairman Palladino.
-m , ., 2 _ m
, While conceivably there might be circumstances 'in which relief from a licensing board is " impossible" or " highly unlikely", Washington Public Power Supply System, supra, 5 NRC at, 722, this is not such a case. 21/ While the Applicants stress the importance of starting site preparation activities in March, 1982, see App. Mem., p. 24, there is obviously no magic 'to tnis date. It is purely arbitrary. Site construction activities, at least as far as appears from the record, could start at_any
-time between March, 1982 and some date farther in the future. The only difference would presumably be some marginal increase in cost.
At the same time, there is no indication that the Board cannot provide relief, if appropriate, within a reasonable timeframe. The proceedings in Shearon Harris are instructive on this point. Following a Commission order of March 4, 1974, mandating that a board hear contested issues on an exemption' request, see CLI-74-9, 7 AEC 197, the board was able to conduct all the required hearings within one month and hand down a decision by April 3, 1974. LBP-74-18, 7 AEC 538. That decision, in turn, was reviewed by the Commission, which rendered its own opinion on June 11, 1974. CLI-74-22, 7 AEC 939. The entire 22/ While Applicants profess concern about delay before the Board, it should be noted that, if there is now any problem with obtaining timely relief, it is because Applicants i themselves have deliberately put off reopening this proceeding for j a substantial period. See Memorandum, dated November 12, 1981, I from the Under Secretary to the Deputy Secretary of the Department l of Energy.
e pro" cess,- in other words, took little more than.three months-to complete. It is difficult to see how a similar approach in the-instant' case could prejudice the Applicants in any way.ES/
IV. CONCLUSION For all the reasons set forth above, Intervenors respectfully submit that the Commission itself, for overriding reasons of law and policy, can and should deny the Applicants' request. However, should the Commission determine that further consideration of the factual basis for the request is appropriate, then we respectfully urge that the Commission order a full adjudi-catory hearing thereon before the Atomic Safety and Licensing Board.
Respectfully sub$itted, Eldon V. C. Greenber TUTTLE & TAYLOR 1901 L Street, N.W.
Washington, D.C. 20036 (202) 861-0666 SE/ Given the relative ease with which the Board could handle'the exemption request, we see no need to consider alternative solutions, which would almost surely create greater procedural uncertainty. We should also note, given the importance ,
of this request, that it would seem necessary for the Commission itself to make the final decision, not the Director of Nuclear Reactor Regulation, even though a decision by the Director is permissible under Section 0123-038 of the NRC Manual.
- o' ~
, _40_
w un M
/-
Barbara A. Finamore ,
S. Jacob Scherr Natural. Resources Defense Council, Inc. -
1725 Eye Street, N.W.
Washington, D.C. 20006 (202) 223-8210
, . Attorneys for Intervenors Dated: Washington, D.C.
December 15, 1981 p.
e 5
)
)
I .
I 4
4 4
e l e s
9 9
- - - - - - , , - - - , , - . . ~ . . - - - . . - , - . - . . . , , -
, - . , - - - . - , . , ...n.,-n g --
W ccgED CERTIFICATE OF SERVICE
'81 DEC 15 P4:54 I hereby certify that _ copies of the Memorandum of
- Ic2 T;.*. .
Intervenors, Natural Resources De'ense Council, Inc. and th'e 3fjj[gkECWCE Sierra Club, in opposition to Applicants' Memorandur in Support of Request'to Conduct-Site Preparation Activities, together with my Notice of Appearance as counsel to Intervenors, were delivered by hand this 15th day of December, 1981, to the following:
The Honorable Nunzio J. Palladino Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555 The Honorable Peter Bradford Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 The Honorable Victor Gilinsky Commissioner U.S. Nuclear Regulatory Commigsion Washington, D.C. 20555 The Honorable John F. Ahearne Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 The Honorable Thomas F. Roberts Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Marshall E. Miller, Esquire Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission-Washington, D.C. 20545 Mr. Gustave A. Linenberger Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20545 .
, .: o-a Leonard Bickwit, Esquire ,
Of fice of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20545 Daniel Swanson, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission .
Washington, D.C. 20545 Stuart Trebey, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20545 Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20545 Atomic Safety & Licensing Board Panel' O.S. Nuclear Regulatory Commission Washington, D.C. 20545 Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20545 (3 copies) ,
R. Tenney Johnson, Esquire Leon Silverstrom, Esquire Michael D. Oldak, Esquire L. Dow Davis, Esquire Office of General Counsel U.S. Department of Energy Washington, D.C. 20585 George L. Edgar, Esquire Morgon, Lewis & Bockius 1800 M Street, N.W.
Washington, D.C. 20036 and by mail, postage prepaid, to:
' ~
Dr.-Cadet H. Hand, Jr.
Director
. Bodega Marine Laboratory University of California P. O. Box 247 Bodega Bay, California 94923 1
.. t~o
,e o
Herbert S. Sanger, Jr. , Esquire
~
- General Counsel-Tennessee Valley Authority Knoxville, Tennessee 37902 Lewis E. Wallace, Esquire Division of Law Tennessee Valley Authority Knoxville, Tennessee 37902 William B. Hubbard, Esquire Assistant Attorney General State of Tennessee Office of the Attorney General
, 422 Supreme Court Building Nashville, Tennessee 37219 Lawson McGhee Public Library 500 West Church Street Knoxville, Tennessee 37902 Luther M. Reed, Esquire Attorney for the City of Oak Ridge 253 Main Street, East Oak Ridge, Tennessee 37830 Oak Ridge' Public Library Civic Center .
Oak Ridge, Tennessee 37820 Mr. Joe H. Walker 401 Roane Street Harriman, Tennessee 37748 LV Eldon V. C.'Greenberg 6
L