ML20148G737
| ML20148G737 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 05/28/1997 |
| From: | Bachmann R, Holler E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#297-18335 LBP-97-08, LBP-97-8, ML, NUDOCS 9706060123 | |
| Download: ML20148G737 (13) | |
Text
y)}8335
'i 00CKETED UNITED STATES OF AMERICA USNRC
~
NUCLEAR REGULATORY COMMISSION
'97 MAY 28 P4 :03 -
BEFORE THE COMMISSION OFFICE OF SECRETARY DOCKETING & SERVICE l BRANCH l In the Matter of )
)
- Louisiana Energy Services, L.P. ) Docket No. 70-3070-ML l )
(Claiborne Enrichment Center) )
)
r NRC STAFF'S PETITION FOR REVIEW OF LBP-97-8 1
I I
1 I
l l
l l
l l Richard G. Bachmann Eugene Holler
, Counsel for NRC Staff i May 28,1997 so3 9706060123 970528 7 PDR ADOCK0700gO C -
. ~ . - .- - - . , . - _ . . . - -. - - - . - . _ - - - . . . - -
L May 28,1997 i 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION !
I i BEFORE THE COMMISSION i
- In the Matter of ) !
)- l LOUISIANA ENERGY SERVICES, L.P. ) Docket No. 70-3070-ML
)
(Claiborne Enrichment Center) ) i
)
NRC STAFF'S PETITION FOR REVIEW OF LBP-97-8 INTRODUCTION Pursuant to 10 C.F.R. f 2.786 of the Commission's regulations, the staff of the Nuclear Regulatory Commission (Staff) hereby petitions the Commission for review of Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-97-8,45 NRC (May 1,1997). For the reasons set forth below, the Commission should grant review, because substantial questions exist with respect to the considerations set forth in the Commission's regulations at 10 C.F.R.-
f 2.786(b)(4).
BACKGROUND In this combined construction permit-operating license proceeding, Applicant Imuisiana Energy Services, L.P. (LES) seeks a 30-year materials license to possess and use byproduct, source, and special nuclear material to enrich uranium using a gas centrifuge process at the proposed Claiborne Enrichment Center (CEC) to be constructed in Claiborne Parish, Iouisiana.
Citizens Against Nuclear Trash (CANT) opposes issuance of the license and, after establishing standing and proposing several admissible contentions, was granted leave to intervene and 1
i .
, l i
admitted'as a party to the proceeding. On May 2,1997, the Atomic Safety and Licensing Board (Board) designated to preside over the proceeding issued a partial initial decision, LBP-97-8, )
resolving the last of these contentions.2 The Board addressed Contention J.9, which asserted that LES's environmental report (ER) does not adequately describe or weigh the various .
environmental, social, and economic impacts and costs of operating the CEC. LBP-97-8, slip op at 1, 6.
The Board found that the President's environmental justice directive, Executive Order (E.O.) 12898, has a " nondiscrimination component" and that the Staff's final environmental impact statement (FEIS), in limiting its consideration of the Applicant's siting process to what it characterized as a facial review of the information in the environmental report, had failed to comply with the E.O. LBP-97-8, slip op at 43-44. The Board also concluded that relocation ,
i 8
This was the fourth of four partial initial decisions in this proceeding. In its first partial initial decision, the Board resolved three safety contentions in favor of the Applicant. Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-%-7,43 NRC 142 (1996); petition for review granted in part and denied in part, CLI-%-8, 44 NRC 107 (1996); motionforpartial reconsideration denied, CLI-97-2, 45 NRC 3 (1997). In its second partial initial decision, i resolving Contentions J.4 and K, dealing with LES's environmental report (ER), the Board concluded that the Staff's treatment of the need for the facility and the no-action alternative in the final environmental impact statement (FEIS) is inadequate. Louisiana Energy Services, L.P.
-(Claiborne Enrichment Center), LBP-%-25,44 NRC 331,404 (1996). The Board also sustained Contention Q which challenged LES's financial qualifications to construct the CEC. Id. In response to petitions filed by LES and the Staff, the Commission has taken review of LBP 25. In its third partial initial decision, the Board found that LES has a plausible disposal
. strategy for depleted uranium tails disposal, that LES's estimate for transportation and disposal l of the depleted uranium is reasonable, but that LES's estimate of the cost of conversion of the
- depleted tails prior to disposal is not reasonable. Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-97-3,45 NRC (March 7,1997) slip op. at 20, 31, 35, and 49.
Petitions for review of LBP-97-3 are pending before the Commission.
4 2
The Board also denied the Applicant's request for a construction permit and operating license without prejudice to the Applicant amending the license application in accordance with the partial initial decisions in this proceeding. LBP-97-8, slip op. at 89-90.
~
-4 of the road bisecting the proposed CEC site and the~ impacts from the CEC on property values in the neighboring African-American communities had not been adequately reflected in the FEIS and factored into the weighing of the costs and benefits of the facility and in the Staff's environmente.1 justice determination. Id. at 88-90. On the other hand, the Board found that the FEIS adequately treated the other impacts of the facility and that none of those impacts would cause a disproportionately high and adverse impact on the residents of the neighboring communities. Id. at 69-70, 88-89.
DISCUSSION Pursuant to 10 C.F.R. I 2.786(b)(4), a petition for review must raise at least one of the -
following kinds of substantial questions to merit Commission consideration:
(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.
A. The " Nondiscrimination Comoonent" of Executive Order 12898 In resolving Contention J.9, the Board found that the Commission had voluntarily agreed to implement the President's environmental justice directive, E.O.12898. LBP-97-8, slip op.
at 13. For this reason, the Board determined that the E.O. was fully applicable to the NRC to ;
- the same extent as if the NRC were an executive agency. Id. Further, the Foard determined I that the E.O. has a " nondiscrimination component" that " requires that the NRC conduct its licensing activities in a manner that ' ensures' those activities do not have the effect of subjecting
i i
t Id. at 43. The any persons or populations to discrimination because of their race or color."3 Board ruled that the record is inadequate to make a determination regarding discrimination in the siting process and that the Staff must conduct a professional investigation of the siting ~
process aided by whatever outside experts may be necessary.' Id. at 44, 46, 57, 60, 89.
This is a matter of first impression. In the Staff's view, the Board misinterprets the E.O., and the NRC's obligations thereunder, when it fmds the " nondiscrimination component" f
'of the President's E.O. require,s that the NRC conduct investigations to " ensure" that a license t
applicant ha not allowed discreicion to taint any of the applicant's activities associated with the application. LBP-97-8, slip op. at 43-44. The Board finds the " nondiscrimination j i
i f
3 The Beard notes that the Staff attempted to determine if racial discrimination played a role in the site selection process by reviewing the information in the Applicant's environmental l report. LBP-97-8, slip op. at 43. ' The Board's view is that "[i]n taking this action, the Staff j r
necessarily recogrhed the agency's obligation under the nondiscrimination component of the i President's environmentaljustice directive to make sure the site selection process conducted by ;
the original venturers in what subsequently became the LES project was free from racial t
discrimination." Id. In making this inference, the Board disregards the fact that Contention J.9, l as admitted by the Board more than two years before the President's E.O.12898, alleged that placing the CEC "in the dead center of a rural black community consisting of over 150 j
7 l-families," was one of the sources ofimpacts on the communities. Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-91-41,34 NRC 332,352-353 (1991). Therefore, the Staff's examination of the matter was not intended to concede the Staff's recognition of a nondiscrimination component in the President's environmental justice directive. !
l )
! ' The Board also determined that the record is inadequate to make a determination regarding l discrimination in the siting process. Finding that the Staff limited its consideration of the !
applicant's siting process to a " facial review" of the information in the environmental report, the j Board determined that the Staff must conduct a professional investigation of the siting process 1 L
aided by whatever outside experts may be necessary. Slip op. at 44, 46, 57, 60, 89. The ;
i Board, however, has had the opportunity to hear those responsible for site selection testify under ;
I oath and answer questions under oath. Further, the Intervenor presented to the Board all the j evidence it found during discovery regarding the siting process and the opinion of its recognized l
' expert in this field regarding the process. Thus, even if a " nondiscriminatory component" of
[
the E.O. might exist, as the ' Board suggests, 'the policy question of whether sufficient ;
justification exists, in the instant case, to expend more NRC resources on a Staff investigation merits Commission review pursuant to 10 C.F.R. f 2.786(b)(iii). l i
r
component" in Sec. 2-2 of the E.O. Id. at 10,43. Sec. 2-2 of the E.O., however, is directed at programs receiving federal funding, a point underscored by the President in his memorandum which accompanied the E.O.5 The President draws a distinction between the prohibition, in Title VI of the Civil Rights Act of 1964, on federal agencies discnminating in " programs or activities receiving Federal financial assistance" and the obligation of federal agencies to
" analyze the environmental effects ... of Federal actions." Memorandum at 1-2. Clearly, the purpose of Section 2.2 is to remind federal agencies that the federal agency may not be discriminatory in administering funds in federal programs.
This distinction of an agency's obligation under Title VI from that under the National Environmental Policy Act (NEPA) was recognized by the Staff in the agency's Environmental Justice Strategy sent to the Environmental Justice Interagency Working Group.' The NRC EJ Strategy emphasizes that the E.O. and accompanying memorandum affects the NRC primarily in the agency's fulfillment of its NEPA responsibilities. NRC El Strategy at 1. The only reference to racial nondiscrimination on the pan of the NRC, in the NRC EJ Strategy, is Principle Five of the strategy's five principles for implementation which addresses the NRC's financial assistance programs, under Section 274 of the Atomic Energy Act of 1954, as amended i
)
l l
5 Memorandum for the Heads of All Depanments and Agencies, Subj: Executive Order on Federal Actions to Address Environmental Justice in Minority Populations and low-Income Populations, dated February 11,1994. 30 Weekly Comp. Pres. Doc. 279 (Feb.14,1994).
6 U. S. Nuclear Regulatory Commission Environmental Justice Strategy, dated March 1995, l (NRC EJ Strategy). A copy of the NRC EJ Strategy and the March 24,1995 memorandum !
forwarding the strategy to Carol Browner, EPA, Chair of the Environmental Justice Interagency Working Group was provided to the Board and Parties by the Staff in Board Notification 95-07 on March 30,1995.
l 1
~
(AEA), concerning training and travel in connection with States assuming certain regulatory !
authority over specified nuclear materials. NRC EJ Strategy at 3. !
i Further, there is no indication that the Commission understood the E.O. to contain the !
" nondiscrimination component," as defined by the Board, when the Commission volunteered to 'l implement the E.O. The Board correctly states that the then-Chairman Selin of the Commission wrote the President on March 31,1994, that the NRC would carry out the measures in the E.O.
LBP-97-8, slip op. at 11-12. The Chairman's letter, however, pointed out that the E.O. and the accompanying memorandum "seem most likely to apply to our efforts to fulfill the requirements of the National Environmental Policy Act." The Chairman's letter contains no reference to a
" nondiscrimination component," as defined by the Boant in LBP-97-8, in the E.O.7 Finally, the E.O. is not enforceable as a matter of law or equity, a fact which both the E.O. and the memorandum from the President accompanying the E.O. clearly state.8 The i
I 7 Even if the Staff were to find that racial discrimination tainted the selection process, there )
is nothing further for the Staff to do pursuant to the E.O. The E.O. order. declares that "each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental j
- . effects of its programs, policies, and activities on minority populations and low-income l i populations in the United States." 59 Fed. Reg. 7629. The E.O., therefore, contains two steps
- the identification of disproportionately high and adverse impacts, and the addressing of any such ,
i impacts. Thus, if no " disproportionately high and adverse human health or environmental l
- effects" are identified with the proposed action, the second part, addressing the impacts (e.g., l 4 considering mitigation of the impacts) does not come into play. Assuming the evidence supports j
{ a finding that racial discrimination tainted the selection process, which the staff does not i concede, absent a manifestation of that discrimination in a disproportionately high and adverse ;
{ impact, there is nothing to be addressed pursuant to the E.O. Thus, there is no point in the Staff l
- conducting a further investigation of the Applicant's siting process. l l
s : The E.O. states:
j This order is intended to improve the internal management of the executive ,
l branch and is not intended to, nor does it create any right, benefit, trust, or trust I
- (continued...)
i
i 1
7 .
l Board purpoits to recognize the non-enforceability of the E.O.' LBP-97-8, slip op. at 14.
However, in turning to the NEPA concerns in Contention J.9, the Board states that: !
l Although the Staff now must undertake a thorough investigation of whether racial l considerations played a part in the CEC site selection process, we nevertheless, ,
l turn to address the second concern of the Intervenor's environmental justice j contention. In the event it is ultimately determined that racial considerations l played a role in the site selection process, thesefindings would become moot. ;
Should the opposite prove to be the case, however, these issues will have been i decided so that any appropriate Staflicensing action can proceed. l l LBP-97-8, slip op. at 60 (emphasis added). By determining that findings necessary for :
proceeding with the licensing action "would become moot" if it is determined that racial !
I considerations played a role in the site selection process, the Board has made compliance with .
l l- the E.O. an issue material to NRC licensing decisions. If it is a material issue to licensing, l i j as the Board's decision states, then the Commission cannot exclude the issue from license l i
hearings. Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.1984), cert. denied 1 L :
l
- (... continued) :
l l responsibility, substantive or procedural, enforceable at law or equity by a party i L against the United States, its agencies, its officers, or any person. This order j i shall not be constmed to create any right to judicial review involving the ,
compliance or noncompliance of the United States, its agencies, its officers, or l
any other person with this order. l l -
l 59 Fed. Reg. 7629,7632-7633 (1994). The President's February 11,1994 memorandum repeats ;
essentially the same statement in its concluding paragraph. l l
I
' The Board also states an obligation of the Staff to conduct a thorough investigation of the applicant's site selection process "to avoid the Constitutional ramifications of the agency I L becoming a participant in any discriminatory conduct through the grant of a license." BP-97-8, slip op. at 44. The Board cites no authority for this assertion and nowhere in its initial decision ]
does the Board explain what it means by a " constitutional ramification." i 1
38 The Board's conclusion that a license would be denied if racial considerations played a l
! role also exceeds the NRC's obligations pursuant to NEPA. NEPA is a disclosure law and "it l l- is now well settled that NEPA itself does not mandate particular results, but simply prescribes i the necessary process." Rchertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).
l 1
)
)
\
sub nom. Arkansas Power &. Light Co. v. Union of Concerned Scientists,469 U.S.1132 (1985). l 1
Further, judicial review of the licensing decision would be available pursuant to section 189b.
F of the AEA, which incorporates the judicial review provisions of the Hobbs Act. 28 U.S.C. !
2341-2352. Accordingly, if allowed to stand, the Board's decision will have a result clearly not f
intended by the President, nor anticipated by the Commission when the then-Chairman Selin !
wrote to the President on March 31,1994, that the NRC would carry out the measures in the E.O. For this, and the other reasons discussed above, the Board's conclusions regarding the
" nondiscrimination component" of the President's E.O. raise substantial questions oflaw, policy, and discretion meriting Commission review pursuant to 10 C.F.R. I 2.786(b)(4)(iii).
F. Imoacts on the Communities of Forest Grove and Center Sorinos The Board found that the proposed action would have impacts on the communities of ,
i Forest Grove and Center Springs which had not been adequately reflected in the FEIS. First, the Board determined that relocation of a road bisecting the proposed CEC site had not been adequately considered in that the FEIS did not take into account the impact of the additional 600 meters distance (approximately .38 mile) on residents who must walk rather than drive. LBP-97-8, slip op. at 77. The Board concluded that adding approximately 600 meters to "the 1 or !
2 mile walk between these communifles" may be more than a very small impact especially if the walkers "are old, ill or otherwise infirm." Id. at 77. This finding is unsupported by the record. l The Board based its conclusion on an Intervenor witness's testimony that the road was a regularly used pedestrin link between the communities, and Bureau of Census statistics that 8
The Board nlso directed that any constmetion permit and operating license must be )
conditioned to compe! the applicant's commitment to relocate the road before closing the existing road. Slip op. at 75. 7hc 5taff does not oppose such a license condition. I
- _ _ _ . _ _ . ~ . _ . _ . _ . _ _ _ _ . _ _.____ _ _ _ _.. . _ . _ _
l e'
31% of black households in the parish have no motor vehicles.12 LBP-97-8, slip op. at 76-77.
There is nothing in the Intervenor witness's testimony, or in the record, to suppon the Board's conclusion that the "old, ill or otherwise infirm" regularly travel the road between Forest Grove I
and Center Springs by foot. Further, there is no basis in the record to suppon the conclusion that adding 600 meters would have a significant impact on anyone who regularly walks 1 to 2 i
miles (1,609 to 3,218 meters).
]
Second, the Board determined that impacts from the CEC on property values in the neighboring African-American communities must be considered in the FEIS and factored into i i
~ the weighing of tt: costs and benefits of the facility and in the Staff's environmental justice ;
determination. 3 LBP-97-8, slip op, at 88. In its mling on the admissibility of contentions in f I
this proceeding, the Board previously rejected depletion of property values as a contention (J.8) i 12 Under cross examination, Intervenor's witness admitted that he had spent only one day at the proposed site and the surrounding communities. Tr. at 855.
1 25 For the reasons previously discussed in this petition, Executive Order 12898 depends on {
Title VI, NEPA and other statutes for substantive requirements. Economic interests, to be 3 recognized under NEPA, must be environmentally related, that is the injury to the economic j interests must result from environmental damage. Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 NRC 47, 56 (1992). The Board, however, ;
makes no assenion of, and the record does not suppon a finding of, environmental damage related to propeny values. LBP-97-8, slip op. at 69-70, 88-89. The fear of property I devaluation attributed solely to public and buyer attitude alone, because of location near an NRC licensed activity, is a psychological concern. Babcock and Wilcox Co. (Pennsylvania Nuclear Services Operations, Parks Township, PA), LBP-94-12, 39 NRC 215, 218-219 (1994) (Granting Request for Hearing), LBP-95-1, 41 NRC 1 (1995) (Initial Decision), petitionfor review denied, PU-95-4,41 NRC 248 (1995). The Commission has decided that the NRC's administration of ne AEA will not include psychological effects. Metropolitan Edison Co. (Three Mile Island r Aar Station, Unit 1), CLI-82-6.- 15. NRC 407 (1982). Further, with respect to NEPA, the Supreme Coun has held that the NRC need not consider psychological effects. Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983). The Board's decision regarding the negative economic impact of the CEC on property values because of psychological concerns is in conflict with these holdings and raises a substantial question meriting Commission review pursuant to 10 C.F.R. f 2.786(b)(iii).
l
. ]
3 1
t j on the basis that it constitutes " pure speculation." LBP-91-41, 34 NRC at 352. Now, in ,
- 1. !
resolving Contention J.9, the Board disregards this previous ruling and finds that the Staff must .
1
- consider an' admittedly speculative matter into the weighing of the costs and benefits of the
- i facility. LBP-97-8, slip op. at 88. The Board states no reason for its change in position other than it finds the testimony of Intervenor's witness regarding property values " reasonable and j . persuasive" while discounting the testimony of Applicant's witnesses as "far too general." Id.
[ at 84, 87. The record does not support the Board's change in position, or its conclusion discussed above, and merits Commission review pursuant to 10 C.F.R. f 2.786(b)(i).
CONCLUSION As demonstrated above the Board's initial decision raises substantial and important
- questions meriting Commission review. Accordingly, the Staff's petition for review should be i
l~ granted pursuant to the Commission's regulations in 10 C.F.R. I 2.786(b)(4).
Respectfully submitted, i
f Richard G. Bachmann
- Counsel for NRC Staff
?
i i ge Holler
! Cou 1 for NRC Staff L
, Dated at Rockville, Maryland this 28th day of May,1997
i
. DOCKETED l UNITED STATES OF AMERICA USNRC '
NUCLEAR REGULATORY COMMISSION
]
1 BEFORE THE COMMISSION VI MAY 28 P4 :03 j
)
' In the Matter of ) 0FFICE OF SECRETARY -1 00CKETlHG & SERVICE' I
- LOUISIANA ENERGY SERVICES, L.P. Docket No. 70-3070 d 4
) l l (Claiborne Enrichment Center) )
} CERTIFICATE OF SERVICE l I hereby certify that copies of "NRC STAFF'S PETITION FOR REVIEW OF LBP-97-8" in the above captioned proceeding have been served on the following through deposit in the Nuclear Regulatory Commission's internal mail system, or by
- deposit in the United States mail, first class, as indicated by an asterisk, this 28th day i of May,1997:
- Office of the Secretary (16) Richard F. Cole !
ATTN: Rulemakings and Adjudications Administrative Judge I L Staff Atomic Safety and Licensing Board
. U.S. Neclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Thomas S. Moore, Chairman Frederick J. Shon Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 ,
Mr. Ronald Wascom* J. Michael McGarry, III, Esq.*
Deputy Assistant Secretary Winston & Strawn !
Office of Air Quality & 1400 L Street, N.W.
Radiation Protection Washington, DC 20005 P.O. Box 82135 Baton Rouge, LA 70884-2135 Robert G. Morgan
- Roland J. Jensen*
Duke Engineering & Services, Inc. Louisiana Energy Services, L.P.
P.O. Box 1004 2600 Virginia Avenue, N.W. ;
Charlotte, NC 28201-1004 Suite 608 Washington, DC 20037 i I
l 1
. Marcus A. Rowden, Esq.* Office of the Conunission Appellate g Fried, Frank, Harris Adjudication Shriver & Jacobsen Mail Stop: 16-G-15 OWFN 1101 Pennsylvania Avenue, N.W. U.S. Nuclear Regulatory Commission l Suite 900 South Washington, DC 20555 Washington, DC 20004 Atomic Safety and Licensing Board Nathalie M. Walker, Escy
- Panel Sierra Club Legal Defense Fund i U.S. Nuclear Regulatory Commission 400 Magazine Street, Ste. 401
. Washington, DC 20555 New Orleans, LA 70130 l
Diane Curran, Esq.* Joseph DiStefano, Esq.*
Harmon, Curran, & Spielberg Urenco Investments, Inc.
2001 S Street, N.W., Suite 430 Suite 610 Washington, D.C. 20009-1125 2600 Virginia Ave., N.W.
Washington, DC 20037 David S. Bailey, Esq.*
Thomas J. Henderson, Esq.
Lawyers' Committee for Civil Rights Under Law 1450 G Street N.W., Ste. 400 Washington, DC 20005 i
i EugenVoller l Counsel for NRC Staff I'
l-l l
a
_ -