ML20070N279

Proposed Conclusions of Law Re Use of NEPA to Influence NRC Licensing Actions Concerning Minimizing Adverse Environ Effects.Certificate of Svc Encl

ML20070N279
Person / Time
Site:	Clinch River
Issue date:	01/21/1983
From:	Pearigen M TENNESSEE, STATE OF
To:
References
NUDOCS 8301250461
Download: ML20070N279 (16)

Text

- _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'83 JM 24 A11 M4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ..

In the Matter of )

)

UNITED STATES DEPARTMENT OF )

ENERGY PROJECT MANAGEMENT ) Docket No. 50-537 CORPORATION TENNESSEE VALLEY )

AUTHORITY )

)

)

(Clinch River Breeder )

Reactor Plant) )

PROPOSED CONCLUSIONS OF LAW

l. As the Atomic Safety and Licensing Appeal Board recognized in Project Mgmt. Corp., (Clinch River Breeder Reactor Plant) , ALAB-354, NRCI-76/10 383, 391 (Oct. 29, 1976), "the State has a manifestly discernible interest in the well-being of its political subdivisions and in the ade-quacy of the services which they provide to their residents."

2. As the United States Court of Appeals for the District of Columbia Circuit recognized in Carolina Environmen tal Study Group v. U.S. , 510 F.2d 796, 799 (D .C.

Cir. 1975), "Because each statement on the environmental impact of a proposed action involves educated predictions rather than certainties, it is entirely proper, and necessary, to consider the probabilities as well as the con-sequences of certain occurences in ascertaining their 8301250461 830121 PDR ADOCK 05000537 O PDR g60}$

l environmental impact."

3. Although it is true, as the Carolina Environmental Study Group Court recognized, that "[t]here is a point at which the probability of an occurence may be so low as to render it almost totally unworthy of consideration," 5.01 F.2d at 799, the possibility of premature plant closure is not so speculative that it can be ignored.

4. Indeed, a review of the history of this project clearly shows that such a possibility is very real:

April - 1977 - President Carter

" indefinitely" defers project, citing it as uneconomic and a risk to nuclear pro-liferation. See Statement of President Jimmy Carter, Nuclear Power Policy, 13 Weekly Comp. of Pres. Doc. 506-507 (April 11, 1977). Licensing Proceedings Suspended. See Order of the Atomic Safety & Licensing Board, April 25, 1977.

July, 1981 - Continued funding for project upheld in the House of Representatives by a mere twenty vote margin. See 127 Cong. Rec. H4839-4862 (July 24,1981) .

Nov., 1981 - Continued funding for the project upheld in the Senate by only two vo tes . See 127 Cong. Rec. S12858 (Nov. 4, 1981).

September,1982 - Vote to delete funding fn: the project for fiscal year 1983 failo by only one vote. See 128 Cong. Rec. S12468-9 (September 29, 1982).

December, 1982 - House of Representatives votes, 217 to 196, to provide no funding for the CRBR for Fiscal Year 1983. See 128 Cong. Rec.

H9745 (Dec . 14, 198 2) . Continued funding

_a

for the project upheld in the Senate by only one vote. See 128 Cong. Rec. S15064 (Dec . 16, 198 2) . The Conference Committee "strongly urge [s] the cognizant authorizing committees in the House and Senate to consider . . . [f ur ther funding] early in the 98th Congress."

See 128 Cong. Rec. H10636 (Dec . 20, 1982).

5. In the Supplement to Final Environmen tal Statement, the NRC Staff has concluded in its " Discussion of Comments Received On The Draf t Supplement To The Final Environmental S tatemen t" S 12.4.5 at 12-20:

The Staff had considered imposing a for-mal mitigation process on the Applicants as a requirement on the construction per-mit and license. However, because the Applicants would be the only party to the mitigation process subject to NRC regula-tions, this approach was rejected.

The Court rejects the Staff's conclusion with the obser-vation that the conclusion is a nonsequitur.

6. The NRC has the authority, indeed, since Calvert Cliffs' Coordinating Comm. v. United States Atomic Energy Comm'_n., 146 U.S. App. D.C. 33, 449 F.2d 1109 (1971), the obligation, to require that the adverse environmental effects (including socio-economic effects) of projects over which it has licensing responsibility are minimized. If the Applicants' license is granted, it should be conditioned to require the Applicants to mitigate adverse socio-economic

. . . . . . .J

impacts by financial assistance which is not limited to the in-lieu-of-tax payments the Applicants are authorized to make pursuant to 42 U.S.C. S 2301 et seg. See, infra.

7. At the outset, it is clear that "socio-economic effects do fall within the environmental effects of proposed action of which NEPA mandates agency evaluation and consideration." McDowell v. Schlesinger, 404 F.Supp. 221, 245 (W.D. Mo. 1975) . See also People Against Nuclear Energy i

v. United States Nuclear Reg. Comm'n., 678 F.2d 222, 230 (D.C. Cir.), cert, granted, (1982); Image of Greater San Antonio, Tex. v. Brown, 570 F.2d 517, 522 (5th Cir.

1978). Thus, such eff ects f all within the purview of Calvert Cliffs', supra, and require the NRC's attention in the exercise of its licensing responsibility.

8. NEPA carries with it a requirement that the mitiga-tion of adverse environmental impacts be undertaken. Thus, as the CEQ Binding Regulations State, it is the policy of NEPA to ensure that federal agencies:

i I [u]se all practicable means . . . to . . .

i avoid or minimize any possible adverse i

effects of their actions upor the quality i

of the human environment.

l l

40 CFR S 1500.2(f) (1981).

9. As stated in Sierra Club v. Froehlke, 359 F.Supp.

i 1289, 1339 (S.D. Tex. 1973), rev'd. on other grounds, 499 i

F.2d 982 (5th Cir .1974) , "NEPA states indirectly, but 2

affirmatively, that under some circumstances federal agen-cies must mitigate some and possibly all of the environmen-tal impacts arising from a proposed project." Accord, Stop H-3 Assoc. v. Brinegar, 389 F.Supp.1102,1111 (D. Haw.

1974), rev'd. on other grounds sub nom. Stop H-3 Assoc. v.

Coleman, 533 F.2d 434 (9th Cir.1976) .

10. The CEQ Binding Regulations seek to implement NEPA's mitigation policy by requiring mitigation measures to be included in the agency's discussion of alternatives and environmental consequences. See 40 C.F.R. SS 1502.14(f) &

150 2.16 (h) . However, the agency's mitigation responsibility does not end with mere discussion in the environmental statement of the need for mitigation. The CEQ Regulations indicate that mitigation is :o be an important factor in the agency decision-making process. Thus, the agency's announced decision is required to:

l State whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not.

( A monitoring and enforcement program l

shall be adopted and summarized where applicable for any mitigation.

l 40 C.F.R. S 1505.2(c). See also 40 C.F.R. S 1505.3 (implementing the decision) .

11. The NRC has the obligation to ensure that the I

l

Applicants will mitigate adverse socio-economic impacts of the CRBRP. As stated in Public Service Co. v. United States Nuclear Reg. Comm'n., 582 F.2d 77, 85 (1st Cir. ) , cert, denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 705 (1978),

once "the Commission has jurisdiction over the [ project] . . .

it [is] clear that, under the dictates of NEPA, it [is) obliged to minimize adverse eavironmental impact flowing therefrom."

12. More recently, the U.S. Court of Appeals for the D.C. Circuit, in People Against Nuclear Energy v. United States Nuclear Reg. Comm'n., supra, wrestled with the issue of the cognizability under NEPA of impacts on psychological health. In reaching its decision, the Court noted that socio-economic anxieties (as opposed to effects) have con-sistently been rejected as environmental impacts under NEPA.

However the Court stated:

The agency fulfills its responsibilities under NEPA in this context if it con-siders and mitigates the underlying causes for alarm, such as the possibility 4

of increased noise, increased crime, and increased congestion.

678 F.2d at 229 (emphasis added) .

13. The NRC has previously recognized its duty to

" consider and seek to mitigate significant environmental impacts . . .." Kansas Gas & Electric Co. (Wolf Creek, Unit

~

No. 1) CLI-77-1, 5 NRC 1, 7 (Jan. 12, 19 77) . As stated by the Appeal Board in Detroit Edison Co. (Greenwood Energy Ctr. , Units 2 & 3) ALAB-247, RAI-74-12 936, 944 (Dec. 20, 1974), the NRC under NEPA "is obliged to minimize to the extent reasonably practicable environmental af termath of its actions."

14. The requirement to mitigate adverse socio-economic impacts should expressly be made a condition of licensure.

The NRC clearly has authority to " issue conditional licenses for regulatory purposes. There can be no objection to its use of the same means to achieve environmental means as well. Detroit Edison Co. v. United States Nuclear Reg.

Comm'n., 630 F.2d 450, 454 (6th Cir. 1980) (citation omitted).

15.

The Commission itself has stated that there "can be no serious dispute" as to its authority, in considering environmental impacts, to "where necessary impose license conditions to minimize those impacts." Kansas Gas &

Electric Co. (Wolf Creek, Unit No.1), supra, 5 ?lRC at 8.

See also Tennessee Valley Auth. (Phipps Bend, Units 1 & 2)

ALAB-506, 8 NRC 533, 550 (Nov. 9,19 78) ("NRC . . .

indisputably possesses the right to grant conditional licen-ses and construction permits . . . to implement the purposes of NEPA.").

16. The Board disagrees with the Applicants' assertion that the Board has "previously considered the question of

,, , - , , --m ,- -,

~

whether mitigation can be a mandatory condition of the license" and has ruled that it cannot be made a licensure condition. Applicants' Response To Tennessee Attorney General And City Of Oak Ridge at 6-7. The Applicants' reliance on Project Mgmt. Corp., LBP-76-31, 4 NRC 153, NRCl-76/8 (Aug . 26,1976) for this proposition is misplaced.

That decision did not hold that mitigation, as a general proposition, cannot be made a condition of licensure; rather, that the Board lacked authority to order DOE to make payments in-lieu-of taxes pursuant to the Atomic Energy Community Act. As the Licensing Appeal Board noted in Project Mgmt. Corp., ALAB-354, NRCl-76/10 383, 392 n. 13 (Oct. 29, 1976), "Even if . . . the Board is right in that conclusion (regarding in-lieu-of tax payments), it does not necessarily follow that this Commission is devoid of power to require any form of ameliorative action." In any event, as no ted , infra, the Board has reconsidered its August 26, 1976 decision and concludes that the Atomic Energy Act does not limit financial mitigation measures that may be ordered as to DOE.

17. To the exten t, if at all, that TVA and/or PMC are not considered by the Applicants as sources for financial assistance for mitigation because of contractual arrange-ments between them which delineates responsibilities (financial and otherwise) between DOE, TVA, and PMC, the Board holds, first, that the Applicants cannot rely on

contractual arrangements among themselves to defeat the pur-poses and mandates of NEPA. All three of these entities are 1

Applicants and all must meet licensing conditions, including the requirements of NEPA. Any attempt to insulate NEPA obligations under a facade of a contractual inability to perform is a shocking violation of public policy and the Board has the authority to order mitigation to be provided by all of the Applicants.

18. Secondly, even assuming for the sake of argument that mitigation measures are limited to being provided by DOE, 'the Board has reconsidered its decision in Project Mgmt. Corp. (Clinch River Breeder Reactor Plant), LBP-76-31, NRCl-76/8 153 (Aug. 26, 1976) and rejects the argument that DOE's ability (and consequently, its liability) to provide financial mitigation is limited to the Atomic Energy t

Community Act for the reasons discussed, infra.

l 19. NEPA provides, in pertinent part:

1 The Congress .. . declares that it is the continuing policy of the Federal Governmen t . . . to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the i general welf are, to create and maintain l

conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other require-

, ments of present and future generations

,' of Americans.

i 4

e

- , - , -,.n- - , -

, - - - - -,-------n - - ,

42 U.S.C. S 4331(a) (emphasis added) . Further, Congress has declared:

In order to carry out the policy set forth in this chapter, it is the con-tinuing responsibility of the Federal Government to use all practicable means

. . . to improve and coordinate Federal plans, functions, programs, and resources 42 U.S.C. S 4331(b) .

20. The above-quoted policy statement of NEPA clearly illustrates the congressional intent for the Federal Government to mitigate the adverse social and economic impacts of federal projects. Congress specifically directed l

that financial and techr.ical assistance should be provided towards this end. As the Court in Detroit Edison Co.,

supra, 630 F.2d at 452 observed, "A congressional directive to ' consider' environmental factors is meaningless unless agencies can also act to minimize the environmental damage attributable to their licensees."

21. All federal agencies are to comply with the 1

requirements of Section 102 of NEPA (4 2 U.S.C. S 4332) "to the fullest exten t possible . . ..

As stated in Flint Ridge Dev. Co.

v. Scenic Rivers Assoc. of Oklahoma, 426 U.S.

776, 787-8, 96 S.Ct. 2430, 2438, 49 L.Ed.2d 305 (1976):

1

1 The purpose of the new language is to make clear that each agency of the Federal Government shall comply with the directives the existingset out law in [S 102(2)]

applicable unless to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible . . .. Thus, it is the intent of the conferees that the pro-vision 'to the fullest extent possible' shall not be used by any Federal agency as a means of avoiding compliance with the directives set out in section 102.

Accord 40 C.F.R. S 1500.6. As stated in Calvert Cliffs' Coordinating Comm., supra, 449 F.2d at 1115, n.12 "only when such specific obligations conflict with NEPA, do agencies i

have a right under S 104 and the ' fullest extent possible' language to dilute their compliance with the full letter and spirit of the Act."

22.

It is true that "NEPA was not intended to repeal by 4

implication any other statute," United States v. SCRAP, 412 U.S. 669, 694, 93 S.Ct. 2405, 2419, 37 L.Ed.2d 254 (1973),

and that "Section 102 recognizes . . . that where a clear l

and unavoidable conflict in the statutory authority exists, NEPA must give way," Flint Ridge Dev. Co. v. Scenic Rivers Assoc. of Oklahoma, 426 U.S. 776, 788, 96 S.Ct. 2430, 2438, 49 L.Ed.2d 305 (1976).

23. However, "Section 102 exempts agencies from compliance only when other statutory authority under which the agencies are proceeding expressly precludes compliance."

Environmen tal Defense Fund v. Tennessee Valley Auth., 468 l

F.2d 1164, 1176 (6th Cir.1972) (emphasis added) . Accord, Tennessee Valley Auth. (Phipps Bend, Units 1 & 2) , supra, 8 NRC at 545. The Board sees no conflict between DOE's authority to make in-lieu-of-tax payments pursuant to the Atomic Energy Community Act and a requirement that DOE pro-vide financial mitigation measures in addition to such in-lieu-of-tax paymen ts. Nothing in the Act indicates that the statute " expressly precludes compliance" with NEPA.

_24. section 105 of NEPA (42 U.S.C. S 4335) provides:

The policies and goals set forth in this chapter are supplementary to those set forth in existing authorizations of Federal agencies.

Thus, as stated in Detroit Edison Co. (Greenwood Energy Ctr., Units 2 & 3) , ALAB-247, RAI-74-12 936, 938 (Dec. 20,

, 1974), "NEPA's enactment substantially broadened the 1

environmental responsibilities of the Federal Government by l

making the policies of that Act ' supplementary to those set for th in existing authorizations of Federal agencies. '"

Accord Kansas Gas & Electric Co. (Wolf Creek Station, Unit No. 1), ALAB-321, NRCI-76/4 293, 305 & 306 (Apr . 7, 19 76 ) ,

aff'd., CLI-77-1, 5 NRC 1 (Jan. 12, 1977).

25. In sum, NEPA does not prevent NRC f rom conditioning a project by requiring DOE to provi3e financial assistance l

to mitigate adverse impacts, above and beyond in-lieu-of-tax

~

payments, although such financial assistance is not expressly authorized by the Atomic Energy Act. As the Appeal Board made clear in Tennessee Valley Auth. (Phipps Bend, Units 1 & 2) , s upra , 8 NRC at 5 44 :

NEPA added to the Commission's ori-ginal responsibilities in the sense that it must now consider and act to prevent or minimize the adverse environmental . . .

consequences of the facilities it licen-ses. And . . . the Atomic Energy Act in l

general . . . (does not bar] the inclu-sion in licenses for government-owned plants of conditions designed to achieve such results.

l (emphasis added) .

Respectfully submitted,

' A MICHAEL D.' PEARIGEN ()

Ar sistant Attorney GeneTal 450 James Robertson Parkway Nashville, Tennessee 37219 (615) 741-7085 l

i l

.=

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

UNITED STATES DEPARTMENT OF )

ENERGY PROJECT MANAGEMENT ) Docket No. 50-537 CORPORATION TENNESSEE VALLEY )

AUTHORITY )

)

)

(Clinch River Breeder )

Reactor Plant) )

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been mailed to the following via expedited mail where indi-cated by an asterisk and otherwise via first-class U.S.

mail,postageprepaidonthisthes2fgh-dayofJanuary,1983:

Marshall Miller, Esq. George L. Edgar, Esq.

Chairman Frank K. Peterson, Esq.

Atomic Safety and Licensing Gregg A. Day, Esq.

Boa rd Thomas A. Schmutz, Esq.

U.S. Nuclear Regulatory Irvin A. Shapell, Esq.

Commiss ion Morgan, Lewis & Bockius 4350 East West Highway 1800 M Street, N.W.

Bethesda, MD 20814 Washington, D.C. 20036 (2 copies)

• Gustave A. Linenberger, Esq. Herbert S. Sanger, Jr.,

Atomic Safety & Licensing Board Esq.

U.S. Nuclear Regulatory James F. Burger, Esq.

Commis s ion Lewis E. Wallace, Esq.

4350 Ea'st West Highway Edward J. Vigluicci, Esq.

Bethesda, MD 20814 W. Walter LaRoche, Esq.

Office of General Counsel Tennessee Valley Authority 400 Commerce Avenue Knoxville, TN 37902

• Dr. Cadet H. Hand , Jr. Warren E. Bergholz, Jr.,

Director Esq.

Bodega Marine Laboratory Leon Silverstrom, Esq.

University of California L. Dow Davis, Esq.

P.O. Box 247 Michael D. Oldak, Esq.

Bodega Bay, California 94923 R. Tenney Johnson, Esq.

Office of General Counsel U.S. Department of Energy 1000 Independence Ave. ,

S.W.

Washington, D.C. 20585

• Scott W. Stucky, Chief Barbara A. Finamore, Esq.

Docketing and Service Section S. Jacob Scherr, Esq.

Of fice of the Secretary Ellyn R. Weiss, Esq.

U.S. Nuclear Regulatory Dr. Thomas Cochran Commiss ion Natural Resources Defense 1717 "H" S tree t, N.W. Council, Inc.

Washington, D.C. 20555 1725 Eye S tree t, N.W.

(3 copies) Suite 600 Washington, D.C. 20006 Atomic Safety & Licensing Eldon V.C. Greenberg

! Appeal Board Panel

! Galloway & Greenberg U.S. Nuclear Regulatory 1725 Eye Street, N.W.

Commiss ion Suite 601 Washington, D.C. 20555 Washington, D.C. 20006 l

l Atomic Safety & Licensing Joe H. Walker, Esq.

Board Attorney at Law U.S. Nuclear Regulatory 401 Roane Street Washington, D.C. 20555 Harriman, TN 37748

Daniel T. Swanson, Esq. Lawson McGhee Public Stuart A. Treby, Esq. Library Geary S. Mizuino 500 West Church Street Office of Executive Legal Knoxville, TN 37902 Director Maryland National Bank Bldg.

7735 Old Georgetown Road Bethesda, MD 20814 William E. Lantrip, Esq. Oak Ridge Public Library City Attorney Civic Center Municipal Building Oak Ridge, TN 37830 P.O. Box 1 Oak Ridge, TN 37830 William P. Snyder Dean R. Tousley U.S. Dept. of Energy Harmon & Weiss Office of Chief Counsel 1725 "I" Stree t, N.W.

Oak Ridge Operations Suite 506 P.O. Box "E" Washington, D.C. 20006 Oak Ridge, TN 37830 Mr. Percy Brewington, Jr. ,

Acting Director Mr. Ken Yates Mr. Dick Baker CRBR Project Office Dept. of Energy Oak Ridge Operations P.O. Box U Oak Ridge, TN 37830 i

. JW (7"- ^

MICHAEL D.'PEARIGEN Assistant Attorney Gene l

1 i Date: January 1983 Nashville Tennessee l