ML20140E406
| ML20140E406 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 06/05/1997 |
| From: | Walker N CITIZENS AGAINST NUCLEAR TRASH, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., SIERRA CLUB LEGAL DEFENSE FUND, INC. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#297-18357 91-641-02-ML, 91-641-2-ML, LBP-97-08, LBP-97-8, ML, NUDOCS 9706120039 | |
| Download: ML20140E406 (24) | |
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C UNITED STATES OF AMERICA 00CKETED l
NUCLEAR REGULATORY COMMISSION USNRC BEFORE THE COMMISSION W JUN -9 A10:16 1
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Docket No. 70-3070-MfflCE OF SECRETARY l J0CKETING & SERVICE l l
In the Matter of
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ASLBP No. 91-641-02-ML l
LOUISIANA ENERGY SERVICES, L.P.
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(Special Nuclear Materials License) l (Claiborne Enrichment Center)
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June 5,1997 l
l ANSWER OF INTERVENOR, CITIZENS AGAINST NUCLEAR TRASII, IN OPPOSITION TO THE PETITIONS FOR REVIEW OF LBP-97-8 FILED BY APPLICANT AND TIIE NRC STAFF 1
INTRODUCTION l
Pursuant to 10 C.F.R. I 2.786(b)(3), Intervenor, Citizens Against Nuclear Trash i
(" CANT"), opposes the petitions for review of LBP-97-8 (May 1,1997) (addressing the NEPA issues raised in Contention J.9), filed by Applicant, Louisiana Energy Services, L.P. ("LES")
on May 27,1997 and the NRC Staff on May 28,1997.
In LBP-97-8 (May 1,1997), the Licensing Board held that, contrary to the mandates of the National Environmental Policy Act, 42 U.S.C. $ 4321 el stq. ("NEPA"), the negative impacts of LES's proposed Clifoorne Enrichment Center (" CEC") on the African-American communities of Forest Grove and Center Springs were not adequately disclosed and assessed.
Contrary to LES's and the NRC Staff's contentions, the Licensing Board's decision raises no substantial questions of law, policy, discretion, or clear error. Accordingly, th' petitions by e
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l LES and the NRC Staff must be rejected because they fail to meet the Commission's standard in 10 C.F.R. 6 2786(b)(4) for taking review.'
FACTUAL BACKGROUND LES seeks a 30-year materials license to possess and use byproduct, source, and special nuclear material in order to enrich uranium using a gas centrifuge process at the proposed CEC.
After a supposedly neutral, nationwide search for a site for the project, LES selected a location in Claiborne Parish, Louisiana, immediately adjacent to and between the unincorporated African-In the htroduction to its Petition for Review (but notably, not in the argument itself),
LES attempts to make an equitable argument for review by claiming that the proposed CEC would bring " sorely needed" jobs and tax revenues to the community. This argument is neither legally cognizable nor factually correct. First, even assuming for purposes of argument that the CEC would yield significant tax revenues and jobs to the community, the existence of some benefit to the community does not cure the Final Environmental Impact Statement's ("FEIS'")
failure to adequately consider adverse impacts caused by the CEC. Second, LES's argument is factually incorrect.
As CANT's expert witness, Dr. Robert Bullard testified, given the i
educationallevel of the general population of Forest Grove and Center Springs, most of the high paying jobs at the proposed facility would not go to residents of these communitics. (Bullard at 36-39 fol. Tr.1018). In fact, LES never really says that the residents of Forest Grove and Center Springs will get any jobs, merely noting that "LES would employ up to three-quarters i
from the [ sic] Claiborne Parish and the surrounding area...." LES Petition at 2. With respect to alleged tax revenues, LES overlooks the fact that it will receive a property tax exemption of at least $7.9 million every year for at least ten years (FEIS at 4-84), and that even if there were going to be significant tax revenues, such monies do not normally flow to communities like Forest Grove and Center Springs anyway, as evidenced by the poor level of governmental services historically rendered. LBP-97-8 at 75, 79; Bullard at 36 fol. Tr.1018.
4 Equally specious is LES's assertion that the " Board ignored evidence oflocal support for the economic opportunities created by the CEC, including a black representative [Emma Hilliard] on the Claiborne Parish Police Jury from the Forest Grove community." LES Petition at 2. Ms. Hilliard was resounding'y voted out of office by local residents at the first election after CANT organized to oppose the LES project, and was replaced by Roy Mardis, who to this day continues as a police juror and a CANT leader.
Thus, none of these issues constitaus grounds for review.
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American communities of Forest Grove and Center Springs, some 5 miles from the town of Homer, Louisiana.
The community of Forest Grove was founded by freed slaves at the close of the Civil i
War and has a population of about 150. Center Springs was founded around the turn of the century and has a population of about 100. LBP-97-8 at 3. Many of the residents of these o
commimitin are descendants of the original settlers, and a large portion of the landholdings remain with the same families that founded the communities. From kindergarten through high school, the children of these communities attend schools that are largely racially segregated. Ii Forest Grove and Center Springs are among the poorest and most disadvantaged communities in the United States. Ii at 4. Over 69% of the African-American population of Claiborne Parish earns less than $15,000 annually,50% earn less than $10,000 and 30% earn less than $5,000.11 Over 31% of the African-American households in the parish have no motor vehicles, and over 10% live in households that lack complete plumbing. Approximately 58% of this population has less than a high school education, including almost 33% over the age of 24 years who have not attained a ninth grade education.11 Nearly all of the roads in Forest Grove and Center Springs are either unpaved or poorly maintained. There are no stores, schools, medical clinics, or businesses in these communities.
Many of the residents are not connected to the public water supply. Some of these residents rely on groundwater wells, while others must actually carry their water because they have no potable l
water supply.11 at 3.
In the hearing, CANT presented testimony by Dr. Robert D. Bullard - "one of the l
leading experts on environmental justice" (LBP-97-8 at 19) -- that the site selection process for 3
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. the proposed CEC was biased, and that the Final Environmental Impact Statement ("FEIS")
l failed to adequately assess the negative impacts of the proposed facility.
Based on a thorough review of the record, the Licensing Board found that CANT had j
presented "[s]ubstantial evidence," the "most significant portions of which are largely unrebutted
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or ineffectively rebutted," sufficient to raise a " reasonable inference that racial considerations played some part in the site selection process such that an additional inquiry is warranted."
i LBP-97-8 at 46.
In particular, the Licensing Board cited statistical evidence presented by Dr. Bullard, showing that "as the site selection process progressed and the focus of the search narrowed, the level of minority representation in the population rose dramatically," culminating in "a chosen site with a black population of 97.1% within a 1-mile radius of the LeSage site, which is the site with the highest percent black population of all 78 examined sites."2 11 at 47. The Licensing 2
In an apparent attempt to portray the site selection process as directed purely by objective factors, LES asserts that:
the site selection responded directly to the Ieuisiana Enterprise Zone Act passed unanimously in 1981 with the leadership of then-State Senator (now U.S.
Representative) William Jefferson to encourage business and industrial i
development in economically disadvantaged areas.
LES Petition at 2. However, as Dr. Bullard testifled, Forest Grove and Center Springs do not even fall within the enterprise zone. Bullard at Tr. 984-987. Moreover, the communities of Forest Grove and Center Springs were never consulted as to whether they desired this alleged boon to be placed in their midst. Bullard at 13-14 fol. Tr.1018. Finally, as the Board concluded, the record was rife with unrebutted evidence of discrimination in the site selection process.
Thus, LES's self-righteous statements about being " appalled" and "stunningly offen[ded)" (LES Petition at 3) by the Board's finding that siting criterica were applied in a biased and irregular fashion, have a hollow ring. There can be no dispu'.e that the record fully supports such a finding.
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Board also held that the FEIS failed to adequately assess the negative impacts associated with the closing and/or relocation of the road bisecting the proposed site, as well as the negative impacts from the proposed facility on property values Jn the communities of Forest Grove and Center Springs.
LEGAL ARGUMENT i
L LES IIAS FAILED TO JUSTIFY REVIEW OF LBP-97-8.
Pursuant to 10 C.F.R. 6 2.786(b)(4), a petition for review must demonstrate a
" substantial question" with respect to at least one of the following considerations:
(i)
A finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding; (ii)
A necessary legal conclusion is without governing precedent or is a departure from or contrary to established law; (iii)
A substantial and important question of law, policy, or discretion has been raised; (iv)
The conduct of the proceeding involved a prejudicial procedural error; or (v)
Any other consideration which the Commission may deem to be in the public interest.
LES and the NRC Staff fail to show that any such " substantial question" exists.
Moreover, LES is entirely incorrect in asserting that the Licensing Board's decision requires "the NRC to search the motives of those responsible for the CEC site selection, and to adjudicate whether racial animus played a part in that selection." LES Petition at 2. Nowhere in its decision does the Licensing Board mention " racial animus" or " intentional discrimination" nor does Dr. Bullard in his testimony. The main focus of the Licensing Board's decision, and CANT's evidence, is on the question of whether the site selection process was biased - whether that bias was intentional or not - and thus failed to adequately disclose and assess adverse impacts on Forest Grove and Center Springs. The bias alleged by CANT is " effects based".
Practices with a disproportionate adverse impact on racial minorities constitute " discrimination" regardless of whether discriminatory intent motivates the practices or not.
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A.
LES And The NRC Staff Raise No Substantial Question With Respect To An Unprecedented Legal Conclusion.
LES argues that the Commission should take review because LBP-97-8 presents "significant agency issues of first impression... for which no Commission direction exists."
LES Petition at 3. However, by itself, the mere fact that the Licensing Board's decision is unprecedented is insufficient to warrant review under 10 C.F.R. l 2.786(b)(4)(ii). Petitioners must show a " substantial question" with respect to the cbeision's unprecedented nature, but they have failed to do so. LBP-97-8 is a thorough, well-reasoned decision which is fully consistent with NEPA and the Executive Order on environmentaljustice. LES and the NRC Staff fail to point to any substantial question raised by the Board's determination that CANT presented substantial, largely unrebutted evidence regarding bias in the site selection process, or by the i
Board's finding that the FEIS failed to adequately discuss the negative impacts associated with I
the proposed road closure and the devaluation of property values.'
The mere fact that LES does not like the decision, or even is offended by the decision, constitutes no basis for reviewing a decision which is entirely in accordance with governing 4
law.4 8
Mixing apples and oranges, LES asserts that it is " ironic" that in a prior decision the Licensing Board excluded certain secondary " socioeconomic benefits" of the proposed facility from the cost / benefit analysis, while, "in dramatic contrast, the Board has now made extensive findings on socioeconomic impacts in considering environmentaljustice." LES Petition at 4 n.1 (emphasis in original). LES improperly compares NEPA's requirement for a cost / benefit analysis, which excludes consideration of secondary socioeconomic benefits (LBP-96-25,44 l
NRC 331,375 (1996)), to NEPA's requirement for disclosure and analysis of significant adverse impacts on the environment, which includes secondary impacts. Sec 40 C.F.R. 661502.16, l
1508.8.
Nor does LES's objection that it has not received the " streamlined" licensing process it desired constitute a cognizable basis for review under 10 C.F.R. 5 2.786. In any event, the 6
B.
LES And The NRC Staff Fall To Show A Substantial And hnportant Question Of Law.
Petitioners argue that the Licensing Board made an inappropriate inquiry into whether the site selection process for the CEC was discriminatory.5 LES Petition at 5-6; Staff Petition at 4-6. They contend that it was improper for the Commission to rely on Section 202 of the Executive Order, because the protection of that Section is limited by Title VI of the Civil Rights Act to " persons benefitting from federal assistance programs." Sm LES Petition at 5 and n.2.
basis for LES's complaint about not receiving its entitled " faster process" is unfounded. In the late 1980's, interests related to LES successfully lobbied then-Senator L Bennett Johnston to amend the Atomic Energy Act in order to get a combined construction permit / operating license proceeding -- which undoubtedly resulted in the licensing process advancing faster than it would have under a two-step licensing mechanism. Accordingly, LES has, in fact, received the streamlining benefit to which it claims entitlement. Furthermore, this complaint by LES entirely ignores the fact that the public is entitled to a full and fair hearing on whether the LES application meets NRC safety requirements, and whether the N'RC Staff's NEPA review was adequate.
5 Relying on caselaw in employment discrimination actions, LES argues that "the Board's analytical framework is badly flawed, as it places on LES the burden" of proof with respect to the biased site selection process. LES Petition at 7 n.4. Sg alm 11 at 9, charging the Board with " confusion" over the burdens of persuasion and proof. The confusion lies with LES, not the Board. In an NRC licensing proceeding, the burden of proof rests squarely with the Applicant. 10 C.F.R. Q 2.732. Therefore, "in order for the Applicant to prevail on each contested factual issue, the Applicant's position must be supported by a preponderance of the evidence." LBP-97-8 at 8 citing LBP-96-7,43 NRC 142,144-45 (1996).
As LBP-96-25 indicates, with respect to NEPA issues, the burden of proving that the FEIS complies with NEPA on contested issues rests principally with the NRC Staff, and the burden of proving the adequacy of the ER rests with LES. 44 NRC at 338-339 (1996). Because the FEIS is based on the applicant's environmental report, as a practical matter the burden of I
proof on contested NEPA issues is shared.11 Thus, in order to prevail over CANT's NEPA l
contentions, it is LES and the Staff who must support their position by "a preponderance of the evidence." 11 7
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According to Petitioners, the Board had no authority to order a further inquiry into whether consideration of the CEC's impacts was biased.
- This argument fails to justify Commission review, because Petitioners make no showing that the Board's inquiry into potential bias in the site selection process for the CEC is impermissible under NEPA, the governing statute and controlling law in this case.' It is beyond dispute that if NEPA's requirement for disclosure of all significant adverse impacts on the human environment is to have any meaning, then the inquiry into those impacts must be fair,
' dispassionate and unbiased. A discriminatory environmental analysis fatally taints the reliability of such an evaluation by presuming the acceptability of arbitrarily allocating environmental risks to one particular group.
As Dr. Bullard pointed out in his testimony, if a site selection process which entails the consideration of socioeconomic impacts and the avoidance or mitigation of undue adverse i
I impacts is not procedurally consistent and objective, then the ultimate assessment of the potential impacts of a proposed facility cannot be characterized as equitable and accurate. Thus, evidence r
of racial bias in the site selection process for the CEC, and the subsequent evaluation of whether i
sites in the Homer area satisfied the " low population" criterion, (sc LBP-97-8 at 47-57) cast l
an unacceptable pall of doubt over the general validity of the assessment and comparison of impacts in the FEIS.
l Thus, the question of whether Title VI of the Civil Rights Act authorizes the NRC to inquire into whether a NEPA decisionmaking process was discriminatory, is beside the point.
o In any event, there is no language whatsoever in the Executive Order which asserts a limitation on governmental authority under NEPA.
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e Moreover, bias or discrimination in a NEPA analysis impermissibly defeats the statute's goal of ensuring that "all Americans" be provided with " safe, healthful, productive, and culturally pleasing surroundings." 42 U.S.C. Q 4331 (b)(2). Discrimination in environmental decisionmaking unlawfully excludes some groups of people from the " human environment" protected by NEPA's requirements. Thus, for example, the biased application of the nationwide screening criteria and the " low population" criterion illegally excluded the communities of Forest Grove and Center Springs from the protection provided by an unbiased and objective assessment of the environmental risks of the project. 7 In short, if the site selection criteria are not applied uniformly and objectively, the entire process for disclosing and assessing such impacts becomes tainted.'
7 Curiously, the NRC Staff argues that "even if the Staff were to find that racial discrimination tainted the selection process, there is nothing for the Staff to do....* Staff Petition at n.7. ("[A]bsent a manifestation of that discrimination in a disproportionately high and adverse impact, there is nothing to be addressed....") 11 The Staff entirely fails to understand the basic thrust of the Licensing Board's decision: given the "largely unrebutted or
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ineffectively rebutted evidence" (LBP 97-8 at 46) presented by CANT concerning the inconsistent and irregular fashion in which the site selection process was implemented, the Staff must now do a thorough review of that site selection process in order to assess the extent to which such irregularities resulted in disproportionately high and adverse impacts, so that the Staff can then address such impacts, as required by NEPA, and reiterated in the Executive Order.
LES complains that the Board's decision to require a review of the site selection process 8
for bias "impermissibly transforms NEPA into a decisionmaking statute." LES Petition at 6-7; ice also Staff Petition at 7 n.10. LES argues that the Board is dictating a decision -- license denial -- because the Board found that if " racial considerations played a role in the site selection process" the Board's findings on the disproportionately high and adverse health and environmental impacts of two particular items discussed in the FEIS (the road closure and depressed property values) would become moot."
LBP-97-8 a'.
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LES entirely mischaracterizes the Board's decision on this point.
l The Board did not find -- or dictate a decision - that the license must be denied if the site selection process was discriminatory; rather, the Board merely found that the question of 9
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C.
LES And The Staff Raise No Substantial Question As To Whether The Board Clearly Erred.
i Pursuant to 10 C.F.R. f 2.786(b)(4)(i), the Commission will not take review of factual determinations unless there is a " substantial question" with respect to whether the factual determinations are " clearly erroneous." LES and the NRC Staff fail to meet this standard.
1.
The Board Did Not Clearly Err In Finding Apparent Racial And Economic Blas In The Site Selection Process.
LES argues that " rational criteria adequately rebutted any inference of a racially tinged l
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motive in selecting the CEC site purportedly created by the statistical evidence relied upon by the Licensing Board." LES Petition at 8. LES entirely misses the mark here. As discussed in l
footnote 2, sup.Ia, nowhere did the Licensing Board mention ractal motive or intent in its l
decision. The bias alleged by CANT is " effects based." Practices - such as biased site selection processes -- that have a disproportionately adverse impact on racial minorities constitute 1
" discrimination" regardless of whether discriminatory intent motivates the practices or not.
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Furthermore, LES completely fails to rebut the evidence that its site selection criteria I
were applied in a biased and inconsistent manner. For example, LES invokes the " low population" criteria to demonstrate the " rational" nature of the site selection process. However, i
LES's argument ignores the fact that the Board squarely addressed this issue, and found that the bias in the site selection process must be addressed. LBP-97-8 at 44. Regarding the issue of l
mootness, if and when it is determined that the site selection process was biased, the objectivity l
and reliability of the FEIS would be fundamentally called into question, thus requiring a re-examination of the FEIS' evaluation of adverse environmental impacts. Accordingly, the Licensing Board's findings on the adverse impacts caused by the road closing and depressed property values would become moot.
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" low population" criterion was applied in a biased fashion to protect the white, middle class lifestyles of other candidate communitie's. LBP-97-8 at 52-56. The Board found the testimony of LES's witness on this issue "neither credible nor persuasive." It at 54-55.
Moreover, in a fairly lengthy discussion, the Board noted many other discrepancies in l
the supposedly rational application of the site selection's criteria - including the fact that if the nrigim1 siting criteria of not having roads bisect the site had been applied evenly, the site which LES ultimately chose near Forest Grove and Center Springs would have been disqualified.11 j
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l Finally, LES's suggestion that the Licensing Board's decision regarding bias in the site selection process "will further distance low-income minority families from the mainstream of l
l American commerce" (LES Petition at 8), is offensive, patronizing, and specious. As the Board l
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correctly noted in dismissing this meritless claim, a finding that the site selection process for the
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proposed CEC was biased is a determine. tion of fact, with no implications whatsoever for other commercial ventures in depressed minority communities where there are no indicia of bias.
LBP-97-8 at 50 n.15.
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The Board Did Not Clearly Err In Finding Disproportionately High Adverse Impacts On i
The Communities of Forest Grove and Center Springs.
LES and the NRC Staff claim that the Board erred in concluding that the FEIS failed to give sufficient consideration to the impact on the surrounding communities of relocating the road between Forest Grove and Center Springs. LES Petition at 8; Staff Petition at 8-9. Petitioners contend that the Board lacked any evidence of "old, ill or infirm pedestriads" who must
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regularly commute between the communities. However, Petitioners ignore :he fact that the 11
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central - uncontested -- evidence relied on by the Board in making this finding was that " Forest Grove Road is a vital and frequently u' sed link between the communides" and "over 31% of black households in the parish have no motor vehicles." LBP-97-8 at 76-77. "Neither the Staff l
nor the Applicant presented any evidence disputing Dr. Bullard's testimony in this regard." IL l
Like any other communities, Forest Grove and Center Springs have people in a range of ages withphysical abilities and disabilities. However, as the Board noted, because of the high level i
of poverty and low level of automobile ownership, a disproportionately high number of people i
in the community, who might otherwise be able to cover the 0.38 mile distance in an automobile, will have to walk. The burden falls heaviest on people who have difficultly walking j
- the old, ill, and infirm.' LES shows no clear error in this finding - indeed, there is no error at all.
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LES and the NRC Staff also claim that the Board erred in concluding that the FEIS failed i
to give sufficient consideration to the impact of depressed property values on the communities of Forest Grove and Center Springs, and that the Board improperly credited Dr. Bullard's testimony on this point. LES Petition at 8-9;. Staff Petition at 9-10. This argument is completely without merit. Petitioners offer no basis whatsoever for finding any error, much less l
Petitioners' suggestion that such elderly, ill, and infirm persons should have no difficulty l
lengthening the distance of the foot trip by an extra 0.38 mile (LES Petition at 8; Staff Petition at 8-9), is both cavalier and unsupported by any record evidence. Petitioners have provided no l
basis to disturb the Board's sound factual determination that lengthening the walking distance l
between the two communities by over a third would be a hardship to people who are neither j
young and fit, nor car owners.
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clear error, in the Licensing Board's determination. Duly noting Dr. Bullard's expertise in this area, the Board observed that his testimony was unchallenged: '
Dr. Bullard is a recognized expert on the subject of environmentaljustice who for years has conducted research, lectured, and written extensively in the areas of housing and community development. He has presented a reasoned, persuasive, and unchallenged explanation why the CEC will negatively impact property values in these minority communities.
Additionally, even a cursory look at the references cited by Dr. Bullard in his prefiled direct testimony show there has been substantial research indicating the negative impacts on minority communities in analogous circumstances.
LBP-97-8 at 86.
LES is flat wrong in asserting that "no expert testified that the CEC would have an adverse impact upon local housing values." LES Petition at 9 (emphasis in original). Dr.
Bullard unequivocally testified that " negative impacts on property values will occur in the immediate area of the plant,' and that this economic effect will be borne disproportionately by the minority communities that can least afford it. Bullard at 35, 37 fol. Tr.1018; LBP-97-8 at 78.
l Finding that Dr. Bullard's testimony on this issue was " reasonable" " persuasive and
" convincing" (LBP-97-8 at 84, 86), the Licensing Board discussed Dr. Bullard's testimony at great length:
[Dr. Bullard further testified] that, because of the housing barriers faced by African Americans, the residents of Forest Grove and Center Springs will not have the same opportunities to relocate as do whites living in the parish. He asserted that the general beneficial effects on local housing values from the plant cited in the FEIS will have little, if any, effect on the minority communities of Forest Grove and Center Springs. In this regard, Dr. Bullard testified that the general " benefit streams" to counties with large industrial taxpayers do not have Elsewhere, the Board specifically observed that the NRC " Staff witnesses made no l'
attempt to explain how or why Dr. Bullard might be mistaken." LBP-97-8 at 85.
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significant positive effects on low-income minority communities, which are already receiving a disproportionately low share of the services offered by the county. Further, he stated that the increased demand for property and housing attributable to the facility from migrants coming into the area is unlikely to affect the minority communities of Forest Grove and Center Springs very much, if at all. Dr. Bullard explained that, at the period of peak employment when the proposed facility is expected to have its greatest effect on the local population, which is during the fourth year of construction when some operation already has started, the FEIS states migrants will amount to only 12% of the work force, or 65 workers. He further observed that the FEIS indicates these workers will all be at the very upper end of the skill and pay scale and are expected to be predominantly white. Therefore, according to Dr. Bullard, these workers are extremely unlikely to seek housing in the poor, isolated African American communities of Forest Grove and Center Springs that already receive a relatively low level of services from the parish. [Bullard at 35-37 fol. Tr.1018.]
[Dr. Bullard] thus concludes that, although the FEIS acknowledges the proposed facility will depress some property values and increase others, the Staff has failed to address the central fact that in all likelihood the negative impacts of depressed property values will disproportionately affect the minority communities next to the plant. Similarly, he asserts the FEIS fails to address the fact that the minority residents of Forest Grove and Center Springs are among the poorest residents of the parish and are less likely to be able to absorb the diminution in property values than other wealthier, more mobile residents of Claiborne Parish. Dr.
Bullard states that the FEIS should have analyzed and discussed these adverse, inequitable impacts. (IL at 37.)
LBP-97-8 at 78-80.
LES argues that only the testimony ofits experts was credible on this issue, and that such i
testimony demonstrated that property values would actually " increase in the immediate vicinity
...." LES Petition at 9 (emphasis in original). LES ignores the fact that the Board directly addressed, and dismissed, that testimony as "far too general" and "neither useful nor i
reasonable":
Nor is the Applicant's evidence about property value increases persuasive here.
Applicant's ER undoubtedly is correct in predicting that a number of adjacent properties will increase in value as sites for food service and equipment v'endors l
supporting the plant. But the number ofimmediately adjacent properties involved l
will be relatively few, most likely on State Road 9. The thmst of contention J.9 l
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and Dr. Bullard's testimony is the impact on the minority communities of Forest l
Grove and Center Springs as a whole, rather than on two or three individual parcels of property. The Applicant's ER simply does not address that impact.
By the same token, the opinion of Mr. Dorsey and Mr. Schaperkotter to the effect that industrial facilities often increase property values in the vicinity of a facility are far too general to draw any reasonable conclusions about the impacts on property values in the circumstances presented here. Likewise, Mr. I2Roy's l
testimony about the positive impact on lakefront vacation home values from the construction of nuclear power plants is neither useful nor reasonable in making a comparison with the economically disadvantaged minority communities of Forest Grove and Center Springs. Certainly, the reality of Forest Grove and Center Springs hardly seems comparable to the description of Lake Wylie in Applicant's Exhibit 19, which states that "[t]he Catawba plant was built on a beautifullake, dotted with hundreds of expensive homes and homesites." (App.
Ex.19 at 7.) Nor do these communities resemble the description of Lake Keowee in Exhibit 19 as "[o]ne of the most prestigious resort / retirement communities in the United States [which] is less than a mile from Oconee Nuclear Station. At Keowee Key more than 1500 people golf, boat, fish, relax and retire next door to a nuclear plant." (11 at 8.)
LBP-97-8 at 87-88.
l Invoking the testimony of only its own witnesses as credible, LES's asserts that "the predicated assumption of depressed property values was never proven." LES Petition at 9. This argument is wholly without merit. As discussed above, the only credible evidence in the record proves just that." Moreover, in urging this argument, LES presumes an incorrect burden of proof. CANT was required to do no more than demonstrate that the depression of property values in Forest Grove and Center Springs was a reasonably foreseeable adverse impact of the The NRC Staff argues that " fear of property devaluation... is a psychological l
concern" not cognizable under NEPA or in Commission proceedings. Staff Petition at 9 n.13.
In support of this proposition, the Staff states that only " injury to economic interests" that are
" environmentally related" are cognizable. However, it is the reasonably foreseeable adverse impact of the proposed CEC on property values -- an economic interest that is clearly environmentally related - that forms the basis of CANT's Contention in this regard, not some hypothetical psychological fear about property devaluation.
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proposed CEC Swain v. Brinegar,542 F.2d 364 (7th Cir.1976). The burden of proof was then on LES and the NRC Staff to show that this reasonably foreseeable adverse impact was considered and weighed. Petitioners utterly failed in this regard.
Finally, the NRC Staff argues that the record does not support the Board's change in position from LBP-91-41, in which it previously rejected a contention relating to reduced J
property values. NRC Petition at 9-10, ridng LBP-91-41, 34 NRC 332, 352 (1991). However, the Staff's argument is contradicted by its own FEIS. The contention rejected by the Licensing Board (Contention J.8), was based on LES's Environmental Report ("ER") 6 8.1.2.9, which asserted that property values "may be enhanced" by the presence of the facility. Challenging this conclusion in Contention J.8, CANT charged that it is more likely that property values will be deoressed, due to contamination, the presence of toxic and radioactive waste on the site, and public perception of pollution and danger.i2 LES and the NRC Staff challenged this contention on the ground that it was unsupported." Based on LES's and the Staff's argumenta, the Licensing Board rejected the contention. 34 NRC at 352.
Three years later, however, the Staff issued an FEIS which made an about-face in its position on the issue of property values. Conceding that "some" property values may be adversely affected by the proposed plant, the FEIS also stated that: "Aside fmm the crime issue
" Citizens Against Nuclear Trash's Contentions on the Construction Permit / Operating License Application for the Claiborne Enrichment Center at 40 (October 3,1991).
" Sec NRC Staff's Response To Contentions On The Construction Permit / Operating License Application For The Claiborne Enrichment Center Filed By Citizens Against Nuclear Trash at 31 (November 4,1991); Answer of LES To CANT's Contentions On The Construction Permit / Operating License Application for the Claiborne Enrichment Center at 80-81 (October 25, 1991).
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l and pmpgny values, the costs of CEC to the local population and municipalities should be minimal," thus inferring that the costs of depressed property values to the local population would be significant." Accordingly, the FEIS itself provides " record evidence" supporting a change in the Board's position on whether property values are likely to decrease upon the licensing of the CEC.
Moreover, having admitted Contention J.9, which generally challenges the Staff's failure to consider disparate impacts of the CEC in the FEIS, the Board had the authority to inquire into anything material in the Staff's testimony, including the FEIS, which was the prime exhibit to the Staff's testimony. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
Public Service Co. of New Hampshire (Seabrook Station Units 1 and 2), ALAB-422,6 NRC 33, 67, 94 (1977) (" Permissible inquiry" at a hearing " extend [s] to every matter within the reach of the testimony submitted by the applicants and accepted by the Board"). Here, the FEIS's description ofimpacts on property values was "some positive, some negative." FEIS at 4-86.
Thus, the Board was both authorized and required to consider CANT's evidence demonstrating that the " negative" impacts described in the FEIS were likely to fall on the minority communities of Forest Grove and Center Springs, while the " positive" benefits would accrue to more distant white neighborhoods.
D.
LES And The Staff Fall To Show A Substantial And Important Question of Policy or Discretion.
LES contends that LBP-97-8 has " sweeping ramifications" deserving Commission review, because the Licensing Board incorrectly interpreted Executive Order 12898 in a way that gives l
l
" NUREG-1484, Final EnvironmentalImpact Statement for the Construction and Operation of Claiborne Enrichment Center at 4-86 (1994) (emphasis added).
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l intervenors like CANT " substantive or procedural" rights that are " enforceable at law" and l
l judicially reviewable. LES Petition at 9. This argument is meritless.
First, LBP-97-8 conferred no substantive rights on any party, but rather found that the i
NRC Staff had not fulfilled its procedural obligations under NEPA.
These procedural i
obligations to evaluate the adverse environmentalimpacts of a proposed action in an objective and unbiased manner flow from NEPA, not Executive Order 12898. The Executive Order creates no new obligations upon thr, NRC that were not already authorized by the statute. By the same token, the Executive Order confers no new rights of review that do not already exist i
under NEPA.
Similarly, there is no merit to LES's argument that the Licensing Board applied Executive Order 12898 in such a way as to create a "new licensing criterion" requiring that LES show its siting decision was not " motivated by race." E at 10. As discussed previously, i
notljing in the Licensing Board's decision requires an investigation into racial animus or 1
discriminatory intent. Moreover, the Board's evaluation of biased decisionmaking in the NEPA
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process is fully consistent with, and encompassed by, existing requirements in NEPA and 10 l
CFR part 51. All nuclear license applicants, including LES, must evaluate the environmental impacts of their proposed projects. Implicit in these requirements is the presumption that such analyses must be truthful and objective, otherwise they cannot be relied upon as the basis for j
the Staff's own environmental analysis, which is required by NEPA. E In short, the Board's decision imposes no new regulatory obligations on LES. Rather, it holds both LES and the l
l NRC Staff to their existing responsibility to conduct the analyses of environmental impacts l
required by NEPA and 10 C.F.R. Part 51 in an impartial and objective manner that does not 18 r
l exclude any group of people from the " human environment" sought to be protected by NEPA's l
disclosure requirements. 5 CONCLUSION l
LES' inflammatory rhetoric fails to mask the fact that neither it nor the Staff demonstrated that LBP-97-8 raises a substantial question with regard to any legal error,
. precedent, or substantial and important question oflaw. The Board's decision is fully authorized by and consistent with NEPA. Rather than creating new law, it affirms the fundamental l
principle that an agency's evaluation of environmentalimpacts under NEPA, and the Applicant's j
analysis on which it relies and which it approves, must be conducted in a fair and unbiased manner. This is necessary to assure both that all adverse impacts are objectively described and j
l weighed, and that no group of people is excluded from NEPA's procedural protections solely because of their economic or racial status. Moreover, neither LES nor the Staff demonstrates that the Board made any factual error, let alone a clear error. The Board's consideration of the facts was thorough and well-reasoned, and thus should be left undisturbed. Accordingly, the petitions for review should be denied.
Respectfully submitted, SIERRA CLUB LEGAL DEFENSE FUND, INC.
400 Magazine Street, Suite 401 New Orleans, Louisiana 70130 Telephone: (504) 522-1394 By:
akt.tIo k. [
Nathalie M. Walker i
LES also charges that there are " sweeping ramifications" flowing from the Board's 5
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" confusion" over the burdens of persuasion and proof. However, as discussed in n. 5, IUPR, l
l the confusion lies with LES, not the Board.
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Diane Curran i
HARMON CURRAN & SPIELBERG l
i 2001 "S" Street N.W., Suite 430 Washington, D.C. 20009 t
(202) 328-3500 l
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Attorneys for Intervenor, l
Citizens Against Nuclear Trash t
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UNITED STATES OF AMERICA USNRC l
NUCLEAR REGULATORY COhBilSSION l
BEFORE THE COMMISSION 97 JtN -9 A10:22 0FFICE OF SECRETARY
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Docket No. 70-307048CXETlHG & SERVICE In the Matter of
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BRANCli
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ASLBP No. 91-641-02-ML l
LOUISIANA ENERGY SERVICES, L.P.
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' (Special Nuclear
'(Claiborne Enrichment Center)
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Materials License)
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June 5,1997 CERTIFICATE OF SERVICE I hereby certify that copies of the " ANSWER OF INTERVENOR, CITIZENS AGAINST NUCLEAR TRASH, IN OPPOSITION TO THE PETITIONS FOR REVIEW OF LBP-97-8 FILED BY APPLICANT AND THE NRC STAFF" have been served on this 5th day of June, i
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1997, as follows:
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Office of the Secretary By first class mail U.S. Nuclear Regulatory Commission original plus 2 copies l
Washington, D.C. 20555-0001 Attention: Rulemakings and Adjudication Staff Shirley Ann Jackson, Chairman By first class mail l
U.S. Nuclear Regulatory Commission 1 copy Washington, D.C. 20555 Kenneth C. Rogers, Commissioner By first class mail U.S. Nuclear Regulatory Commission 1 copy Washington, D.C. 20555 Greta J. Dieus, Commissioner By first class mail U.S. Nuclear Regulatory Commission 1 copy Washington, D.C. 20555 4
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Nils J. Diaz, Commissioner By first class mail U.S. Nuclear Regulatory Commission 1 copy Washington, D.C. 20555 Edward McGaffigan, Jr., Commission By first class mail U.S. Nuclear Regulatory Commission 1 copy Washington, D.C. 20555 Administrative Judge By first class mail Thomas S. Moore, Chairman 1 copy Atomic Safety and Licensing Board
'II.S." Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge By first class mail Richard F. Cole 1 copy Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge By first class mail Frederick J. Shon 1 copy Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of Commission /gpellate By first class mail i
Adjudication 1 copy U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l
Eugene Holler, Esq.
By first class mail Office of the General Counsel I copy U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Joseph DiStefano By first class mail Quinn, Racusin & Gazzola 1 copy 1401 H Street, N.W.
Suite 510 Washington, D.C. 20005 l
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Robert G. Morgan - WC26B By first class mail Licensing Manager' 1 copy Duke Engineering & Services, Inc.
400 South Tryon Street Charlotte, NC 28201-1004 l
l Marcus A. Rowden By first class mail 1
Fried, Frank, Harris, Shriver 1 copy
& Jacobsen 1101 Pennsylvania Avenue, N.W.
Suite 900 South
" Washington, D.C. 20004 i
l Diane Curran By first class mail l
Harmon Curran & Spielberg 1 copy 2001 S St NW Suite 430 Washington, DC 20009 Ronald Wascom, Deputy Asst. Sec.
By first class mail l
Louisiana Dept. of Enytl. Quality 1 copy l
Office of Air Quality & Radiation Protection P.O. Box 82135 Baton Rouge, LA 70884-2135 i
J. Michael McGarry, III By first class mail i
Winston & Strawn 1 copy 1400 L Street, N.W.
Washington, D.C. 20005 Adjudicatory File By first class mail L
Atomic Safety & Licensing Bd. Panel' Icopy U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i
Robert W. Bishop By first class mail i
Nuclear Energy Institute 1 copy 17761 I Street, N.W.
Washington, D.C. 20006 i
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Jay E. Silberg By first class mail i
Shaw, Pittman, Potts & Trowbridge 1 copy 2300 N Street, N.W.
j Washington, D.C. 20037 1
Thomas J. Henderson 12wyers' Committee For Civil Rights By first class mail l
Under Law Icopy 1450 G Street NW Suite 400
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. ashington D C 20005.
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Nathalie M. Walker SIERRA CLUB LEGAL DEFENSE FUND, INC.
i Attorneys for Intervenor, Citizens Against Nuclear Trash
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