ML20114F711
| ML20114F711 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/02/1971 |
| From: | Mccool W US ATOMIC ENERGY COMMISSION (AEC) |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| Shared Package | |
| ML093631134 | List:
|
| References | |
| NUDOCS 9210130264 | |
| Download: ML20114F711 (1) | |
Text
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[$ /j b GT Files us:Tr0 STARM ATOMIC ENERGY COMMISSION WASHING 1VN 10$45 gpit0PSCDII Date Merch 2.1071 NO2E FOR THE COMMISSIONDS Ret Consoliioted Edison Cn-nny of New York, Inc.
(Tndien inint 2)
Docket No: 50-247 The attached filing is for your information. The matter is presently before the Atactic Safety and Licensing Board.
W. B. McCool Secretary of the Cce=tission Attachment I
9210130264 920520 PDR ORG NRCHIST PDR
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Before the DOCKET NUMCER
' MAR 1 1971
- 1 UNITED STATES OF AMERICA MONSED RULE hk-50
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In the Matter of
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CONSOLIDATED EDISON COMPANY
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Docket No. 50-247 OF NEW YORK, INC.
)
(Indian Point Unit No. 2)
)
)
MOTION OF ENVIRONMENTAL DEFENSE FUND, INC.
FOR DETERMINATION OF ENVIRONMENTAL ISSUES a
Intervenor, Environmental Defense Fund, Inc., hereby requests that this Board determine that:
- 1) 'This hearing will include consideration of all aspects of the environmental impact of Indian Point Unit No. 2 prior to issuance of an initial decision for a license to operate the plant as required by the National Environmental Policy Act.
2)
The Board will fully explore all environmental issues related to the operation of Indian Point Unit No. 2 regardless of whether these issues are raised by intervenors and regardless of whether the applicant has submitted certificates of compliance with state, regional or federal environmental standards or requirements.
3)
If the Board grants this motion or any part of it the Board will schedule a conference type hearing 60 days after action on this motion at which hearinc, inter-venor, EDF, will identify in detail the environmental issues it intends to raise in this proceeding including any issues related to the legal adequacy of the App 12. cants Environmental Report and the Detailed Environmental Statement.
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If the Board denies all-other aspects of this motion, it will schedule a conference type hearing no less than 30 days after action on this-motion at which hearing intervonors, EDF, will identify in detail the radiological environmental issues it intends to raise in this proceeding.and the additional legal issues _it intends to raise related~to compliance by Applicant and the Commission with all. aspects of Appendix D other than Para-4 graph lla.
l A Memorandum in Support of this Motion is attached.
Respectfully submitted, BERLIN, ROISMAN AND KESSLER Counsel for-Intervenor, Environmental l' Defense Fund, Inc.
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Anthony /Z.iRoisman-t
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Date.d:
February 26, 1971.
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f1DD. & WIL, fAC. 30- M7
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. MAR 1 197I "
Defore the
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UNITED STATES OF AMERICA W[,75'*
ATOMIC ENERGY COMMISSION C'G "
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u NEPh In the matter of
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CONSOLIDATED EDISON COMPANY
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Docket No. 50-247 OF NEW YORK, INC.
)
(Indian Point Unit No. 2)
)
)
MEMORANDUM IN SUPPORT OF MOTION OF ENVIRONMENTAL DEFENSE FUND, INC.
FOR DETERMINATION OF ENVIRONMENTAL ISSUES The motion now before the Board seeks a decision by the Board that the environmental impact of this plant may be fully explored in this proceeding ac required by the National Environmental Policy Act.
At issue is the legal validity of those portions of Appendix D of
.10 CFR, Part 50 which exclude environmental issues from this hearing I
and even if such issues were before the Board, exclude examination of certain facts and evidence relevant to those issues.
The question for decision by this Board are:
1)
Does the Doard have the authority to review the validity of Appendix D of 10 CFR, Part 50?
2)
If sc-what parts if any of Appendix D are invalid?
I The answer to the first question depends upon the meaning of the AEC's d
Memorandum in the Matter of Baltimore Gas & Electric Company (Calvert Cliffs Nuclear Power Plant, Units 1 and 2)' (hereinaf ter Calvert Cliffs 9
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4 Memorandum, a copy of which is attached) where the Ccmmission set forth the scope of. review of an AEC regulation by an Atomic Safety and Licensing Board.
The answer-to the second question; depends upon:
an analysis of the requirements of the National Environmental Policy Act as applied-to the AEC.
The relevant arguments have been pre-sented -in the brief. for Petitioners in the case Calvert Cliffa Coordinating Committee v. AEC (CA D.C. No. 24,871) now pending before:
the United States Court of Appeal's for the District of Columbia Circuit.-1/
Rather than reiterate those argenents here a copy of that brief is attached to this memorandum and incorporated herein by ref'erence.
Turning then to the first question and the Calvert Cliffs Memorandum it appears quite clear that the Board has the power to j
review Appendix D on the grounds raised here.
The Calvert Cliffs Memorandum arose-as the result of a statement contained in the Initial-Decision for issuance of a construction permit.
In that statement.the Board remarked that where evidence is produced at a hearing which draw i
into question the validity of Part 20, the board "might '_not b'e able te rely upon [that Part) 'as establishing the outer limit of acceptable ri I
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The pendency of that case should not inhibit.this Board's-decision.
The decision of the Court of Appeals will of course control this, as well as all other AEC proceedings concluded on of'after. January 1, 1970 (when the National Environmental Policy Act became. effective).
But this Board can avoid the delay in-i herent in waiting for that. decision by reaching its own judt-nt and allowing the parties here-to proceed to act on that judgment.
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The-Commission responded by indicating that the Part 20 standards are general rules and not subject to amendment on a case by case basis based upon the evidence produced at a hearing.
(Calvert Cliff s Memorandum, p.
3)
In short,,the Board was not free to substitute its judgment for that of-the AEC on the f actual ques tie 2/
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of the adequacy of Part 20 safety s tandards.-
However, the AEC specifically-acknowledged that the Board does have the. authority to challenge the validity of a. Commission s
regulation on (Calvert Clif fs F.emo'randum, p. 3 ).:
limited grounds, !f the contested regulation relates to an issue in the proc eding.
By limited-grcunds we mean, whether the mgulation was within the Commission 's authority; whether it was promulgated in accordance with applicable procedural requirements;.and, as respects the Commission's radiological cafety standards, whether the standards estab-i lished are a_ reasonable exercise of-the broad discretion given 1
to the Commission by the Atomic Energy Act for implementation' of'the statute's radiological safety objectives."
f This standard of review clearly includes the challenge to Appr D now before the Board.
The essence of that challenge is that the National Enviornmental Policy Act l) requires-the AEC to include y
i consideration of environmental issues in-all of its hearings where tl-initial decision (i.e. the major federal action) does not occur unti:
2/
The precise scope of this limitation is not at issue here but
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it would appear to acknowledge that where, as a general matter.,-
substantial evidence does not exist to sustain the Par 20' standards then the Board may set,aside those standards and appl:
more stringent' standards.
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after January 1, 1970, and 2) requiresLthe AEC to permit evidence to be introduced at those hearings on all possible adverse environ-:
mental effects of the plant regardless of what state, regional or federal environmental standards are met by the plant.
In short the!
AEC was without authority to require in Appendix D that consideratis of environmental issues not occur at any hearing noticed before l
March.4, 1971 and that even after-March 4, 1971, an Atomic Safety _
and Licensing Board is prohibited from receiving e'tidence on any adverse environmental impact if the adverse impact relates to an j
impact of the plant which has been certified as coming within any applicable state, regional or federal environmental standard or requirement.
The concept that the Board can hold invalid a Commission regulation which exceeds the Commission's authority (as expressed in the Calvert Cliffs Memorandum) is comparable to the usual standar.
of review applied by the Courts in determining whether' federal agenc action is valid.
See for instance Sections 10 (e) (2) ( A) and (C) of the Administrative Procedure Act (5 U.S.C. Sec'tions 706 (2) ( A) and (C)) which require a reviewing court to hold unlawful and set aside agency action found-to be:
(A) arbitrary, capricious,- an abuse of discretion, or otherwise not in accordance
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4 (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.
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The early cases on judicial review have applied the same standard.
In S,EC v. Chenery Corp. 318 U.S. - 80, 94 (1943) the Court observes that while factual decision of agencies are subject to great deferen an agency decision based upon an erroneous legal theory must be~re-versed.
See also Kovac v. Immigration and Naturalization Service, 407.F. 2nd 102, 104 (CA 9th, 1969):
Ramapo Bank v. Camp, 425 F.
2d
{
333, 347-348 (CA 3rd, 1970);
In Re Hooper's Estate, 359 F.
2d 569,-
4 575 (CA 3rd, 1966).
In the latter case.the Court, in language particularly relevant-here, defined the standard of review (359 F..
23 at 575 fn. 7) :
Administrative Action is arbitrary if it is taken without any authority of law or upon a miscon-struction of the statutory authority under which it purports to be taken.
1 It is our contention that Appendix D violates the National
~
Environmental Policy Act and that ' the AEC, therefore, exceeded its authority by attempting to postpone tne statutorily me.ndated ef fecti date of the National Environmental Policy Act and by attempting to
-3/
Where 'the action taken is on a record' with public heat (sutl as issuance of a construction permit or operating lice. e or a nuclear plant) the standard for review is whether the
_s st stantial evidence to support the decision.
5 U.S.C., Section 706 (2) (e)
That standard and its applicability to the Board's
~
review of AEC regulations is not at issue her7.
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G narrow the statutorily mandated broad ~ inquiry into environmental issues.
That ch411onge falls sauarely within the scope of permissible review of AEC regulations by this Board as promulgated in the Calvert Cliffs Memorandum.~/
4 Early in this troceeding the Staff attempted to introduce into evidence the Detailed Environmental Statement for the limited purpose of proving compliance with Section 102(2) (C) of NEPA.
At that-time i
we opposed its introduction as premature and the Board agreed.
P.egardless of the disposition of this Motion, wo feel that the Staff has properly acknowledged that one issue which is before this Board is whether the Staff has complied with Section 102(2) (C) of NEPA by preparing a sufficiently thorough and scientifically and technically adequate Detailed Environmental Statement.
If this Motion is not granted the Board will not be able to resolve substantive non-radiological environmental issues.
But it will and must be able to decide whether these non-radiological environmental issues-have been adequately exat ined by the Staf f or whether instead the Detailed Enviernmental Statement is a cursory and conclusory document which fails to fully invectigate all environmental issues and thus is an inadequate justifi-cation for the decisions made by tia Staff with respect to environ-mental protection.
4/
Appendix.D could also -e challenged by' this Board under the standard that it is not a teasonable exercise of the broad dis-cretion given to the Commission" because any regulation which _ violate:
a statute (here the National Environmental Policy Act) is unreason-able and an abase of discretion.
See for instance Moss v. CAD, F.
2d (C.A.
D.C.,
1970); Citizens Committee for the liudson Valley v. Volpe, 425 F.
2d 97 (C.A. 2nd,-1970); Wilderness Society v. Hickel, F.
Supp.
(D.
D.C.,
1970);
Environmental Defense Fund v. Finch, 426 F.
2d 1083.
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7 This inquiry into the legality of the Detailed Enviornmental Statement is similar to the inquiry permitted under the Calvert Clif f s Memorar.d-m related to AEC regulations.
If the Detailed Environmental Statement does not reflect sufficient examination of the relevant environmental considerations then the conclusions reached by the Staff on the basis of that Statement are arbitrary and capricious and beyond the Staff's authority.
Environmental Defense Fund, Inc. v. Ruckelshaus, __U.S.
App. D.C.
F.
2d (C.A.
D.C.,
decided January 7, 1971);
Greater Boston
~
l'elevision Corp. v. FCC (decided November 13, 1970)
(C.A.-D.C.,
No. 17,785 slip op. at 15-22);
Medical Com. for Human Rts. v.,SEC, U.S. App. D.C.
432 F.
2d 659, 673-676 (C.A.
D.C.,
1970);
i Moss v. CAD, U.S. App. D.C.
430 F. 2d 091 (C.A.
3.C.,
1970);
We11 ford v. Ruckelshaus, U.S. App. D.C.
F.
2nd (decided January 7, 1971)
(C.A.
D.C.,
No. 24,434).
'The measure of the legality of the Statement depends upon Section 102 ( 2) (C) of NEPA.
Thus regardless of the disposition of this motion, the Board can and should set a date for a conference type hearing at which EDF can set forth the issues to be raised with respect to the legality of the-Detailed ~ Environmental Statement and also to outline the-issues related to the radiological environmental 4
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i Respectfully submitted Berlin, Roisman and Kessler Counsol for Intervonor
. i Environmenta,1 Defense Fun,d y
i By dd N l [jt% 1 w -es%
i Anthony Z. Reismank
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