ML20126C294

Response to ASLB Question Re NEPA Requirement to Consider Need for Power.Consideration of Issue Essential Per Case Law Requiring Decisionmakers to Develop Alternatives Involving Unresolved Conflicts.Certificate of Svc Encl

ML20126C294
Person / Time
Site:	Big Rock Point File:Consumers Energy icon.png
Issue date:	03/03/1980
From:	Sheldon K BIER, MILLS, CHRISTA-MARIA, ET AL
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8003280606
Download: ML20126C294 (9)

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l b I960 4 2' UNITED STATES OF AMERICA 9" ' NUCLEAR REGULATORY COMMISSION of b s. BEFORE THE ATOMIC SAFETY AND LICENSING BOARD [

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In the Matter of )

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CONSUMERS POWER COMPANY ) Docket No. 50-155

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(Big Rock Point Nuclear ) Power Station) )

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Response of Christa-Maria et al to the Licensing Board's Question Concerning the . NEPA Requirement to Consider Need for Power in This Proceeding In its Order Following Special Prehearing Conference, t the Licensing Board deferred ruling on John O'Neill's Conten-tion VIII, which argued, in effect, that a cost-benefit analysis would show no need for the Big Rock plant. Not satisfied with the argument that a " negative declaration" 1 expected from the staff would obviate the National Environ-mental Policy Act (NEPA) requirement to perfotm a cost-  ; i benefit analysis, the Board asked the parties no brief the I l' following question: Where the facility has never been subjected ' to National Environmental Policy Act of 1969, (NEPA) review because it was licensed before NEPA, does a license amendment which would permit the continued operation of the facility either require or permit consider-ing a cost-benefit analysis of the need for power in the license amendment proceeding, notwithstanding that the staff may issue a negative declaration? i 8008280 (o0b

l l l Consideration of the need for the power to be produced l 1 by Big Rock is an essential element of the decisionmaking l l process for the license amendment, regardless of whether the I staff issues an environmental impact statement or simply a negative declaration. Reduced to its simplest terms, the task before the Licensing Board is to decide whether to allow Consumers l Power Company to amend its operating license to permit l i expansion of the capacity of the spent fuel storage pool at j l the Big Rock Point plant. To make this decision requires a  ! consideration of the costs and benefits of the proposed l action and the alternatives to it. Dairyland Power Coopera-tive (La Crosse Boiling Water Reactor) Docket No. 50-409 (SFP License Amendment) (January 10, 1980), hereafter re-ferred to as Dairyland, slip. op. 51. Given the current unavailability of nuclear fuel reprocessing or off-site waste disposal, the major alternative to issuing the license amendment is not issuing it, which will result in plant shutdown. This alternative is only viable if the power to be produced by the plant is not needed, since power is the predominant benefit of plant operat2on. The Licensing Board cannot properly decide whether the benefits of granting the license snendment outweigh the costs unless it examines the need for the plant.

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The Board need only follow the logic of the Dairyland opinion to reach this conclusion. The Licensing Board in Dairyland set forth a number of basis on which it relied for

its conclusion that it had the authority to consider need for power in the context of a spent fue l pool expansion proceeding, notwithstanding the fact that a negative de-claration, and not an environmental impact statement, was prepared. Three of these are applicable to Big Rock.

1. Specific NEPA Requirements Two distinct provisions of NEPA direct the consideration of alternatives to proposed actions. S102 (2) (C) calls for the inclusion of a discussion of alternatives in the en-vironmental impact statement prepared when the proposal is a

        " major federal action significantly affecting the quality of the human environment."      Assuming that the negative declara-tion expected from the staff will be valid, S102 (2) (C) does not apply here.

5102 (2 ) (E) requires the federal decisionmaker to study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alterna-tive uses of available resources. 5102 (2) (E) has been held to be "more extensive in its commands "than 102 (2) (C) . Environmental Defense Fund v. l Corps of Engineers, 492 F.2d. 1123, 1135 (5th Cir. 1974). The section applies " irrespective of the magnitude of the environmental impacts in question and irrespective of whether an environmental impact statement must be prepared."  ! l Dairyland, supra, slip. op. 53, Trinity Episcopal School v. Romney, 523 F.2d. 88 (2nd Cir. 1975). (See also cases cited l l l

_4 . . l by Dairyland Licensing Board at page 52.) Its purpose is to ensure that each agency decision-maker has before him or her and takes into proper account all possible approaches to a particular project, including total abandonment of the project, which would altet the environmental impact and the cost-benefit balance. Calvert Cliffs Coordinating Comm. v. AEC, 449 F.2d. 1109, 1114 (D.C. Cir. 1970). The question of whether the expansion of the capacity of a spent fuel storage pool " involves unresolved conflicts concerning alternative uses of available resources" so that S102 (2) (E) applies was answered in the affirmative by the Dairyland Licensing Board. The Board found that the choice between incurring the sutstantial cost of the expansion and shutting down the plant clearly represented such an unresolved conflict. The same is certainly true for Big Rock. A deci-sion to permit expansion of the capacity of the spent fuel storage pool, and thereby to allow continued operation of the plant will involve not only the cost of the expansion itself, but also the cost of upgrading the entire plant to meet the standards of the Systematic Evaluation Program and other reviews. Upgrading the plant will entail, inter alia, basic improvements to the containment, which will undoubtedly be extremely expensive. The costs and environmental impacts of continued plant operation, although not sufficient to require preparation of an impact statement, are significantly greater than the , costs of refusal to grant the license amendment. The Board l l l l

1 must balance the costs of continued operation against the benefits in order to determine whether the costs are justi-fled. The question is whether the power produced by Big Rock, which represents only 1% of the generating capacity of a system with a reserve margin of 37%, is needed to supply that system. (Limited Appearance of Gerald Drake, M.D.) If the power is not needed, there is no benefit to justify the costs, which include not only the economic costs of the fuel pool expansion and basic improvements to the plant, but health, safety and environmental risks as well.

2. Commission Regulations and Practice 10 CFR 51.7, which governs the issuance of negative declarations, does not explicitly require the performance of a cost-benefit analysis or a discussion of alternatives in an environmental impact appraisal prepared when the Staff determines that no impact statement is called for. However, the Dairyland Licensing Board found the inclusion of these subjects proper, and presumably directed by $102 (2) (E) of NEPA.

Furthermore, it is routine Staff practice to provide a cost-benefit balance and a discussion of alternatives, in-cluding the option of plant shutdown, in environmental impact appraisals prepared for proposals to expand the capacity of spent fuel pools. Counsel for Christa-Maria et al are unaware of any environmen'.al impact appraisal on this subject which did not include a discussion of alternatives

and the costs and benefits of each. The environmental impact appraisal for Vermont Yankee, for example, is typical of the appraisals prepared for fuel pool expansion requests. It sets forth both a discussion and a table, entitled Sum-mary of Cost-Benefits, in which a variety of alternatives are considered. The benefit of increasing the capacity of the plant's fuel pool is shown as continued plant operation and the production of electrical energy. The costs include those necessary to purchase replace' ment power. This balanc-ing reflects the analysis of the need for Vermont Yankee which was completed when the impact statement for the facility was prepared. (See also page 54 of the Dairyland opinion for the relevant portion of the environmental impact apprai-sal prepared by the Staff for the La Crosse facility.) Unless and until the need for the power to be produced by Big nock is examined, the cost-benefit balancing task em-phasized as crucial by the Dairyland Licensing Board cannot te carried out. The Board will have nothing to fill in on the benefit side of the equasion. Thus it will not be able to determine whether justification exists for the signifi-cant costs which must be incurred by the ratepayers as a condition of further plant operation.

3. Continuing Project Rationale The licensee and staff may argue that Big Rock is different from La Crosse because it received an operating license prior to the passage of NEPA, and prior to the appli-

cation for a license amendment. However, as the Dairyland Licensing Board noted, even projects licensed prior to NEPA may still be subject to an environmental review if they are continuing in some respect. The fact is that Big Rock is not complete. In order to operate, it will require altera-tions to the spent fuel pool and other basic improvements that could cost as much as the original price tag for the plant. In terms of NEPA, therefore, Big Rock is an ongoing project. The courts have not hesitated to apply NEPA to partially finished projects. In Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d. 1164 (6th Cir. 1971), for , example, the Court ordered the Tennesee Valley Authority to prepare an impact statement on the Tellico Dam, despite the fact that the project was one-third completed before NEPA was passed. Quoting the District Court's decision, the Court stated,

                 ...[A]s the Court interprets NEPA, the Congress of the United States is intent upon requiring the agencies of the United States government, such as the defendants here, to objectively evaluate all of their projects, regardless of how much money has already been

! spent thereon and regardless of ( the completion of the work. 468 i F.2d. at 1179. l This interepretation of NEPA was later explicitly approved in Hil_1 v. TVA, 549 F.2d 1064 (6th Cir. 1977), when the Tellico Dam project was halted again in accordance with the l

Endangered Species Act. This decision was affirmed by the Supreme Court. TVA v. Hill, 437 U.S. 153 (1978). Accord., Hart v. Denver Urban Renewal Authority, 551 F. 2d. 1178 (10th Cir. 1977) (NEPA held applicable to urban renewal project agreed to before NEPA was passed.); Arlington Coalition on Transportation v. Volpe, 458 F.2d. 1323 (4th Cir. 1972). NEPA held applicable to highwsy project approved and in progress prior to the enactment of the statute.) Conclusion To decide whether to allow Consumers Power Company to expand the capacity of the Big Rock Point stortge pool, the Licensing Board must balance the costs and benefits of the action and consider the alternatives. The major alternative is not to issue the amendment, which will result in plant shutdown. Such an alternative is only appropriate if the power to be produced by the plant is not needed. Considera-tion of the need for power is, therefore, an essential ele-ment in the Licensing Board's decisionmaking. NEPA and Commission ruling and practico require that it be examined. Respectfully submitted i Karin P. Sheldon Sheldon, Harmon & Weiss 1725 "I" Street, N.W., Suite 506 Washington, D.C. 20006 (202) 833-9070 1 l Dated: March 3, 1980

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3 BEFORE THE ATOMIC SAFETY AND LICENSING EOARD $ T-{$.Y,';d D N " vf , __~ fd - In the Matter of )

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CONSUMERS POWER COMPANY ) Docket No. 50-155

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(Big Rock Point Nuclear ) Power Station) )

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l CERTIFICATE OF SERVICE I hereby certify that copies of " Response of Christa-Maria et al to the Licensing Board's Question Concerning the NEPA Requirement to Consider Need for Power in This Proceed-ing," was mailed postage pre-paid this 3rd day of March, 1980, to the following: Herbert Grossman, Esq. Janice E. Moore, Esquire Atomic Safety and Licensing Counsel for NRC Staff Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Oscar H. Paris Joseph Gallo, Esquire Atomic Safety and Licensing Isham, Lincoln & Beale Board Panel 1050 17th Street, N.W. U.S. Nuclear Regulatory Commission Suite 701 Washington, D.C. 20555 Washington, D.C. 20036 Mr. Frederic J. Shon John O'Neill, II Atomic Safety and Licensing Route 2, Box 44 Board Panel Maple City, Michigan 49664 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section U.S. Nuclear Regulatory Commission , Washington, D.C. 20555

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K_r Karin P. Sheldon, Esquire

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