ML20066L181
| ML20066L181 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 11/17/1982 |
| From: | DEL-AWARE UNLIMITED, INC. |
| To: | |
| Shared Package | |
| ML20066K378 | List: |
| References | |
| NUDOCS 8211290765 | |
| Download: ML20066L181 (3) | |
Text
(1977).
Such practical foreclosure of " action to avoid" environ-mental impacts would be inconsistent with the teachings of Calvert Cliffs.
This Board, therefore, proceeded to avoid such a result by insuring that those environmental impacts raised by Del-AWARE which merit full consideration in an EIS are,'in fact, considered to the extent they would be considered in an EIS prior to action which would render attempts to avoid or mitigate such impacts meaninglesr.
In order to determine which contentions raised by Del-AWA9E presented "sdbstantial environmental issues" requiring consideration in or at a par with that in an EIS -prior to the ' commencement of construction, the Board has relied on an allocation of burdens be-tween Del-AWARE and the Applicant.
Under the Commission's
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regulations governing proceedings on license applications, the applicant had the burden of proof on any admitted conten-tions.
In this particular proceeding, with respect to the NEPA component, Del-AWARE should bear a somewhat lesser burden than that imposed on a petitioner who seeks to show that an agency " finding of no significant impact" with respect to proposed agency action is in error, and that an EIS must be prepared.
Under that test, the petitioner must simply allege fact which, if shown to be true, would establish the existence of a " substantial environmental issue".
Del-AWARE's burden here should be lighter as here no such negative finding has yet been made.
Once Del-AWARE has met its burden, Applicant, mst cstablish by a preponderdnce of the evidence that no such i, pac t will a ri se and tha t, accordingly, an EIS is not necessary for 8211290765 821117 PAGE 8D
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PDR ADOCK 05000352 O
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that im,cact prior to construction.
Hiram Clar):e civic Club, Inc.
v.
Lynn, 476 F. 2d 421,425 (5th Cir. 1973); Save our Ten Acres v.
Kreger, 472 F.2d 463. 466-67 (5th Cir. 1973).
Pursuing the analogy, Del-AWARE-met its burden when we accepteu i ts contentions.
Our review of the record, then, must determine
{
whether PEco has satisfied its burden of showing that formal NEPA 3
consideration via an EIS.is not warranted by having carried its
- burden to show that no significant impact will occur.
Absent such a finding, the Boaird must act to preclude a permit to operate LGS J
utilizing the facility.
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o ANALYSIS In essence, the Board has had to evaluate the potential effects of the proposed intake in the Delaware River at Point Pleasant, taking into account a' number of variables, each of which is subject to some uncertainty in predictive ability, _to some extent because of the nature of predicting, and to some extent because of the inadequacy of data.
The ultimate question is the extent to which the
- intake, in operation, is likely to adversely impact on
- -seri can Shad and
-shortnose sturgeon.
The-subsidiary ele:.ents in determining this evaluation
- are, in logical
- sequence, the presence of shad and shortnose sturgeon at
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times that they would be vulnerable to entrainment and/or.
impingement in the intake, the time of vulnerability, and i
the likely characteristics of the intake that wou]d increase or decrease the extent of loss.
The latter factor includes such matters as the location and operation of i. h e intake with rcepect to ambient water f]cw, and therefore, the J
direction and speed of the flow of the water in the area of the intake, and characteristics of the intake itself as it operates in relationship to the ambient water, e.g.,
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