ML20198C412
| ML20198C412 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 11/07/1985 |
| From: | Brenner L Atomic Safety and Licensing Board Panel |
| To: | COMMONWEALTH EDISON CO., NEINER, B. (BOB NEINER FARMS, INC.), NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| CON-#485-118 LBP-85-43, OL, NUDOCS 8511120084 | |
| Download: ML20198C412 (18) | |
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD
- -a Before Administrative Judges
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/.,p ; e:'1 Lawrence Brenner, Chairman Dr. A. Dixon Callihan gEVED NOV 81985 Dr. Richard F. Cole
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In the Matter of
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Docket Nos. 50-456
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50-457
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l C020NWEALTH EDIS0N COMPANY
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(Braidwood Station, Units 1 and 2)
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November 7, 1985
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MEMORANDUM 0F RATIONALE FOR
SUMMARY
DISPOSITION OF NEINER FARMS CONTENTION 1 Material Facts By unpublished order dated August 12, 1985, this Licensing Board granted Applicant Commonwealth Edison's motion, which had been supported by the NRC Staff, for summary disposition of Neiner Farms Contention 1.
This memorandum gives the reasons for our ruling and determines that an operating license condition providing for notice in the future is appropriate to assure the integrity of the hearing process and Neiner 0
Farms' rights to due process. We do not adopt more extensive license conditions sought by Neiner Farms.
Neiner Farms Contention 1 alleged that there would be specified adverse operational effects from a 765 kV transmission line which was 85111200gf gOS
2 being proposed to transport electricity from the two unit Braidwood nuclear power plant.
Applicant's June 11, 1985 motion for summary disposition, as supported by affidavit of its System Planning Manager, Alfred H. Getty, establishes the following material facts as to which there is no genuine issue to be heard (See 10 CFR 9 2.749):
1.
Applicant does not now plan to build a 765 kV transmission line to transmit power from Braidwood, Units 1 and 2.
Getty Affidavit, at p.
1.
2.
Applicant might in the future build and operate a 765 kV transmission line connected to the Braidwood Station or elsewhere on the existing rights-of-way running to and from Braidwood only if additional i
generating plants (beyond those now being constructed) were constructed and operated at Braidwood or at other nearby sites such as the LaSalle site (locatedwestofBraidwood),oratotherlocationswhichcould require a 765 kV line on the existing rights-of-way east of Braidwood.
O Id. at pp. 1-2, 4.
See Applicant's Environmental Report (ER) Fig.
3.9-1.
t 3.
Based on present load. projections, Applicant does not now foresee the need for such additional electrical generating capacity for at least 25 years. Therefore, Applicant does not now plan to install a 765 kV transmission line connected to Braidwood or elsewhere on the
3 existing rights-of-way running to and from Braidwood for at least 25 years. Getty Affidavit, at pp. 4-5.
Material facts 1 and 2 are clear, unambiguous commitments by Applicant. These commitments are sufficient to establish that any future 765 kV transmission line which may be connected to Braidwood Units 1 and 2, or otherwise installed on the existing Braidwood rights-of-way, would be attributable to a future generating unit and not sufficiently attributable to the present subject of the application for operating licenses -- Braidwood, Units 1 and 2 -- to be considered under the National Environmental Policy Act (NEPA) as part of this operating license hearing. This lack of attribution, which we will discuss below, includes elements of lack of reasonable certainty of future plans, lack of foreclosure of future transmission line alternatives by the proposed action before us, and the substantial. independent utility of Braidwood Units 1 and 2 and its associated transmission lines.
In light of material fact 2, material fact 3 is not truly material to our determination. Applicant has promised under oath that any 765 kV transmission lines associated with the Braidwood site or rights-of-way would be built only if future generating plants were built. Material fact 2.
If Applicant had not made this commitment, then the long period of time before any such 765 kV lines might be built could have been sufficient by itself to find that such a future possibili.ty.should not now be considered under NEPA in this operating license hearing.
1
t 4
However, given material fact 2, our decision to grant summary disposition does not depend directly or strongly on material fact 3.
We view material fact 3 as a supporting " makeweight" fact which establishes that Applicant has no nefarious scheme, vaguely alluded to by Neiner Farms, of putting a 765 kV line on the Braidwood rights-of-way in the near future for purposes of serving Braidwood Units 1 and 2, under the subterfuge of asserted need for such a transmission line by another generating unit which would be built in that near future time-frame.
Given our limited, contextual reliance on material fact 3, we place no importance on high accuracy for the prediction that it will be at least 25 years before any additional generating capacity might be needed at or sufficiently near the Braidwood site so as to require 765 kV transmission lines in the Braidwood region of the Applicant's transmission grid system.
It is sufficient for our purposes to rely on the fact that it will be many years before such future generating capacity will be needed. Moreover, as set forth below, we establish a notice requirement for the Applicant which will protect Neiner Farms' opportunity to argue that it should be entitled to litigate its contention before the NRC if Applicant materially changes its consnitments in material facts 1 and 2 as we have them set forth above, or in material fact 3 to the extent we have relied on it.
Factual Background Neiner Farms is concerned with a transmission line right-of-way which runs through its property. This right-of-way extends from the
5 Braidwood Station site, generally east for about 23 miles to the Davis Creek Transmission Substation, and then north for about 71 miles to the Wilton Center Transnission Substation (apparently point "J" on ER Fig.
3.9-2), for a total distance of about 301 miles. ER $ 3.9.1 and Fig.
3.9-2.I The Neiner Farr:s' properties are located in Manteno, Illinois, which is in Kankakee County on the portion of the right-of-way in question between Davis Creek and Wilton.
Mr. Getty states that Applicant has never planned to build a 765 kV transmission line to transmit power from Braidwood Units 1 and 2.
Getty Affidavit, at 1.
However, the Applicant deemed it prudent to plan for the ultimate development of the rights-of-way between LaSalle and Braidwood (running west from Braidwood) and those running to Wilton to include a future 765 kV line which would parallel the two circuit 345 kV lines associated with Braidwood, Units 1 and 2.
I_d. at 1-2.2 Applicant believed, at the time those long-range planning studies were performed 1
It is not a material difference, but Mr. Getty's affidavit, at p.
1, reports thit the distance from Braidwood to Wilton is about 38.3 miles. From Wilton, new rights-of-way were acquired to the east and then north to the Crete Substation, for transmission lines of 345 kV and lower voltage. Part of these rights-of-way involved the widening of an existing 765 kV transmission line right-of-way. ER 6 3.9.1 and Fig. 3.9-2.
2 Neither Mr. Getty's affidavit, nor the ER, discloses whether Applicant's long-range planning also included the possible addition of a 765 kV line on the Braidwood to East Frankfort Substation 345 kV line right-of-way, which runs in a general northeast direction from Braidwood. See ER Fig. 3.9-1.
6 in the early-to mid-1970's, that a 765 kV line would be needed if additional generating units were added at the Braidwood site, or at other nearby sites, such as LaSalle. Given the estimated electrical load growth at the time of those plcnning studies, Applicant believed such additional generating capacity, and therefore a new 765 kV transmission line system in the vicinity of Braidwood, would be needed in six or seven years after the Braidwood 345 kV lines were needed. Id.
at 2.
Therefore, at least along the Braidwood to Wilton route, Applicant sought to acquire a right-of-way wide enough for both the 345 and 765 kV sets of lines. All of the rights-of-way necessary for the 345 kV circuits needed for Braidwood Units 1 and 2 have been acquired.
Applicant has also acquired adequate width for the possible future 765 Id. at 2-3.3 The
.kV circuit for more than 97% of the route to Wilton.
d 3
On the Davis to Wilton portion of the route, the 345 kV circuits require a right-of-way about 145 feet wide. A future 765 kV circuit would require additional width of about 170 feet, for a total of about 315 feet. Getty Affidavit, at p. 3; ER Fig. 3.9-2.
Other sactions of the Braidwood to Wilton right-of-way acquired by o
Applican*, range as wide as 330 to 405 feet. ER Fig. 3.9-2.
Possibly because almost all of the transmission line route crosses nearly flat cleared farmland, no issue has been raised before us regarding clearing of the right-of-way to the width required for the possible future 765 kV line. ER 5 3.9.1.
Cf. Virginia Electric and Power Co. (North Anna, Units 1 and 7), LBP-75-70, 2 NRC 879, 891 (1975), and LBP-76-1, 3 NRC 37 (1976). We do not know whether clearing is necessary to acconnodate the wider rights-of-way for a possible 765 kV line. If it is, we do not know (Footnote. Continued)
I 7
right-of-way easement through the Neiner Farms' property had to be obtained by eminent domain. Since only the 345 kV circuits were immediately required, this easement awarded by the Illinois Commerce Commission does not permit installation of a 765 kV line. Applicant would have to obtain a Certificate of Convenience and Necessity from the
' Illinois Commerce Commission before a 765 kV line could-be built.
Id.
at 3.
As set forth above, the three material facts show that Applicant might build and operate 765 kV transmission lines on the route from Braidwood to Wilton, or on other rights-of-way running to and from Braidwood, only if additional generating plants were built and operated at Braidwood or other nearby sites. Moreover, it will be trany years before such future generating capacity will be needed.4 (FootnoteContinued) whether clearing has or will be done before the Applicant seeks and obtains the Certificate of Convenience and Necessity from the Illinois Commerce Commission which is prerequisite to building any future 76E kV line. Getty Affidavit, at p. 3.
Given the absence of any such, issue raised before us, we do not pursue it. This is probably a matter also within the domain of the Illinois Commerce Connission.
4 As discussed above, Applicant represents its present' plan will not require additional capacity which would require 765 kV circuits on rights-of-way running to'and from Braidwood for at least 25 years.
Affidavit (at p. 4)y the Getty Affidavit (at pages 4-5).
This is supported b The Getty also states that there are tentative plans fob new generating capacity in about 12 years at Applicant's Langham site. These statements in the affidavit would be consistent if additional plants at Langham would not require new 765 kV (Footnote Continued)
8 We have set forth the factual circumstances at some length, because when' combined with the applicable law, there springs directly from the facts a clearly mandated result: Applicant's possible future construction and operation of 765 kV transmission lines are not part of the proper scope of a NEPA evaluation of the proposed action of operating Braidwood, Ur.its 1 and 2.
Application of the Law Along with another Licensing Board's determination, we recognize that "[c]aution is necessary in dividing a project into segments for NEPA purposes in order to avoid arbitrary divisions which may hide 1
significant total impacts." Philadelphia Electric Co. (Limerick, Units I and 2), LBP-82-43A, 15 NRC 1423, 1473 (1982). The test for whether an agency may confine its environmental analysis to the portion of the plan for which approval is being sought is:
(1) whether the proposed portion
'has substantial independent utility; (2) whether approval of the proposed portion either forecloses the agency from later withholding approval of subsequent portions of the overall plan or forecloses alternatives to subsequent portions of the plan; and (3) if the proposed
.c-
-(Footnote Continued) transmission lines on rights-of-way running to and from Braidwood.
We do not know if this is the case. However, it does not matter, because:
(1) a new 765 kV line associated with a plant at Langham would not be attributable to Braidwood Units 1 and 2 for NEPA purposes; and (2) 12 years easily fits under a label of "many
- years", which is the material time period used for our limited
-reliance.on material fact 3.
9 portion is part of a larger plan, whether that plan has become sufficiently definite such that there is high probability that the entire plan will be carried out in the near future. Swain v. Brinegar, 542 F.2d 364, 369 (7th Cir. 1976) (en banc). See eg. Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 439 (5th Cir. 1981); Sierra Club v. Froehlke, 534 F.2d 1289, 1297-98 (8th Cir. 1976); Trout Unlimited v. Morton, 509 F.2d 1276, 1285 (9th Cir. 1974).
See also Duke Power Co. (Transportation of Spent Fuel from Ocoree Nuclear Station for Storage at McGuire Nuclear Station), ALAB-651, 14 NRC 307, 313 (1981).
Clearly, the generation and delivery of electricity by the Braidwood Station, Units 1 and 2, over its 345 kV (and lower voltage) transmission circuits has substantial independent utility. This is decidedly not a situation like those of a highway segment with no logical termini unless and until an additional connecting segment is added (Cf. Swain v. Brinegar, supra, at 370), or of an electrical generating plant without the transmission lines necessary to make the plant useful by the delivery of its electricity. Detroit Edison Co.
(Greenwood, Units 2 and 3), ALAB-247, 8 AEC 936, 939 (1974). Cases a
which have found a lack of sufficient independent utility of a proposed project have found that the project was dependent on subsequent phases "such that it would be irrational, or at least unwise, to undertake the first phase if subsequent phases were not also undertaken [faotnote omitted]." Trout Unlimited v. Morton, supra, at 1285. This is not the case here.
w' 10 Approval of the proposed project does not preordain that 765 kV transmission lines will be constructed in the future or otherwise foreclose future alternatives. Neiner Fams argues that because
' Applicant is maintaining the option of installing 765 kV lines on the rights-of-way to and from Braidwood within the lengthy period of time that Braidwood Units 1 and 2 would still be operating, the issue of effects of such possible future 765 kV lines is now ripe for litigation.
Intervenor's Answer, July 10, 1985, at p. 2.
We disagree.
If and when approval to build such future 765 kV lines is actually sought, its impacts can then be evaluated by the governmental authority with jurisdiction (which could vary or overlap depending on the type of generating plant or plants with which the lines would be associated).
For example, if operational effects of 765 kV lines are found unacceptable even with mitigation, the lines could be disapproved, and lowervoltagelin$sapprovedinstead.
The particular routing was not in issue in Neiner Farms' contention although we imagine that Neiner Fams would prefer that any 765 kV lines which might be approved in the future not traverse its property.
Sensibly, future routing decisions would take into account existing 8
rights-of-way and the location of the new and existing generating plants on the Applicant's electrical transmission system. However, this does not foreclose alternatives to any future proposals. The fact that future projects may be correlated with past projects and the project pending before us does not bring.such future projects within the scope l
s 11 of environmental review of the present proposal. See Sierra Club v.
Callaway, 499 F.2d 982, 987 (5th Cir. 1974). Thus, there is no requirement to assess the impacts of an overall transmission grid system long-range plan when considering a presently proposed part of the transmission system. Sierra Club v. Hodel, 544 F.2d 1036, 1040-41 (9th Cir.1976); Columbia Basin Land Protection Ass'n v. Kleppe, 417 F. Supp.
46, 52 (E.D. Wash.1976), aff'd in part, rev'd in part on other grounds, sub nom. Columbia Basin Land Protection Ass'n v. Schlesinger, 643 F.2d 585 (9th Cir. 1981). The same reasoning has been applied in the analogous factual setting of an independently useful highway, which may be built without the need for an environmental evaluation of:
... a network of highway routes comprising a statewide highway plan,... [S]uch plans must of necessity be projected over a relatively long span of time and be flexible in order to allow modifications to meet unforeseen and untoward developments [.] [W]edo not think the.overall project is subject at the outset to the requirements of NEPA. Such plans usually are and should be visionary, subject to extensive modification and dependent to a large degree upon [ future circumstances].
[A]s a practical matter it is necessary to permit the division of a state highway plan into segments for the purpose of environmental considerations.
Indian Lookout Alliance v. Volpe, 484 F.2d 11, 19 (8th Cir. 1973), cited by Sierra Club v. Callaway, supra, at 987.
.4 12 The third prong of the Swain v. Brinegar test, suprc, 542 F.2d at 369, is not explicitly set forth in the string of cases we have cited above after Swain v. Brinegar, or by the Appeal Board in Duke Power Co.,
supra.
It appears to us that the fact that a future larger plan is definite would not necessarily bar segmented consideration of a smaller portion of the plan if the first two prongs of the test, discussed above, are met. However, the facts pertinent to the future prospects of a larger plan could also be viewed as relevant indicia in applying the first two prongs of the test. In any event, our decision that a possible future 765 kV line on rights-of-way to and from Braidwood need not be evaluated as part of the decision regarding the operation of Braidwood Units 1 and 2 easily satisfies the third prong of Swain.
In the first place, it is arguable whether there even is a sufficiently formed larger "overall plan" in existence so as to come within the prerequisite conditional clause of the third prong - "H the proposed action is part of a larger plan" (emphasis added). See Kleppe
- v. Sierra Club, 427 U.S. 390, 400-406 (1976); Sierra Club v. Hodel, supra, 544 F.2d at 1040-41. Moreover, as is clear from the factual O
context discussed above and set forth in the material facts, Applicant is engaged in long-range planning for the future expansion of its electrical capacity and associated transmission system.
It is not definite that 765 kV lines will be needed on rights-of-way running to and from Braidwood.
It is definite that additional electrical units, which possibly might have 765 kV transmission lines associated with
9 13
- them, will not be needed for many years (perhaps about 12, perhaps about 25). Moreover, the routes and voltages of such future transmission lines will dapend on the location of future generating plants, and probably on other future circumstances such as the location and distribution of electrical demand by customers on the Applicant's system.
For the first time, and with no explanation, Neiner Farms in its
- July 10, 1985 opposition to summary disposition of its contention, at p.
2, states "there is a possible nexus between a 345 kV line and an already existing 765 kV line." An existing 765 kV line runs east-west for about 17 miles between the Wilton Substation and a point in Washington Township. ER 6 3.9.1 and Fig. 3.9-2.
See note 1, above.
The new 345 kV circuits running between Braidwood Units 1 and 2 and the Crete Substation parallel this existing 765 kV line along this 17 mile
. portion of the 55 mile route to Crete. Neiner Farms' contention, and its stated basis, focuses on 765 kV lines which would transport power from Braidwood Units 1 and 2 and which would be placed in the new rights-of-way acquisitions testified to before the Illinois Commerce O
Commission and discussed by us above.
Indeed, the Neiner Farms' contention appears to be limited to the Braidwood to Wilton right-of-way given its stated basis in the second paragraph, although we have assumed
14 in this memorandum that it would be broad enough to include any new 765 kV lines transmitting power from Braidwood Units 1 and 2.5 An already operational 765 kV line transmitting other power over the grid would not be attributable to Braidwood Units 1 and 2.
Although not referred to in Neiner Farx ' July 10, 1985 answer, if the reference to the existing line meant to allege cumulative or synergistic 5
The contention states:
Intervenors contend that the 765kV transmission lines that will be used to transport the electrical output from the Braidwood Station create an unacceptable, hazardous and dangerous condition to persons living or working on a daily basis within 600 feet from the closest line, and that the 765kV transmission lines should not be placed closer than 600 feet from any structure or area in which people can be expected to be present six or more hours per day. The hazardous and dangerous conditions include: audible noise impairing hearing, increasing tension, interfering with sleep, inter-fering with speech, interference with the operation of cardiac pacemakers; biological effects on humans because of exposure to electric fields excluding the use of nearby areas for working, living or recreation, and the danger of shock to persons and
- animals, o.
The basis for this contention is that Comonwealth Edison testified before the Illinois Commerce Commission that as of March 3, 1978, approxi-mately 60% of all transmission right-of-way acquisitions included right-of-way for 345kV and 765kV transmissions lines. Opinion No. 78-13, involving Case No. 26529, issued by the Public Service Commission of New York discusses the hazards associated with 765kV lines.
15 operational impacts caused by adding the Braidwood Units 1 and 2 345 kV lines parallel to the existing 765 kV line, Neiner Farms has never raised any such contention, let alone a timely one with reasonable specificity and basis.
Condition To protect Neiner Farms' ability to pursue whatever legal action it deems appropriate before forums with jurisdiction, if and when Applicant does seek to build additional 765 kV transmission lines on rights-of-way to and from the Braidwood site, we direct that a notice condition be made part of any operating licenses which may be issued for Braidwood, Units 1 and 2.
The notice condition could also serve to protect the integrity of the hearing process in the event future actions by Applicant provide the basis for arguing that material facts 1 and 2, and 3 to the extent relied upon by us, have changed materially. Therefore, we include the NRC Staff as a recipient of the notice required by the condition. Neiner Farms would in any event receive notice if Applicant were to seek an easement for a 765 kV line on Neiner Farms' property since, as noted above, the present easement does not include permission 0
to erect 765 kV lines. However, the condition we impose is not limited to the particular right-of-way which passes through Neiner Farms' property, or for that matter, to existing rights-of-way. The condition is:
Commonwealth Edison Company will give notice to Bob Neiner Farms, Inc. and the NRC Staff of any
16 application to construct, or of other firm action in advance of construction if an application to construct is not required, 765 kV transmission lines on present or future rights-of-way routed to or from the site of the Braidwood Station.
Appealability As discussed in our unpublished Order of August 14, 1985, today's memorandum completes our action dismissing Neiner Farms Contention 1.
Dismissal of Contention 1 has the effect of terminating Neiner Farms' participation as a party in this case. Therefore, Neiner Farms may now appeal our summary disposition of its Contention 1.
Neiner Farms may also appeal any earlier rulings against it in this case. The nature of our action does not neatly fit under the initial decision category of decisions for which appellate procedures and schedules are provided for in 10 CFR 9 2.762 of the Commission's Rules of Practice, or under the category of appeals of rulings on petitions to intervene and requests for hearing governed by 10 CFR 9 2.714a.
In the circumstances that:
(1) Neiner Farms can now appeal all prior rulings against it; (2) we desire to resolve doubt in favor of giving Neiner Farms and other parties the longer time period of Section 2.762 if they so desire; and 0
(3) the fact that we referenced Section 2.762 in our August 14, 1985 Order, we presently advise, subject to change by the Atomic Safety and Licensing Appeal Board, that Section 2.762 shall govern.
0 17 As before, we offer no opinion on whether any appeal of this memorandum by the Applicant or NRC Staf f would be ripe, since their participation in the case has not been terminated.
It seems the better course that these parties should appeal now, if they desire to do so.
The Appeal Board could always hold their appeal in abeyance if it so desires. If a party desires to wait for the issuance of the next appealable initial decision by the Licensing Board aefore deciding whether to appeal, that party promptly should seek such permission from the Appeal Board.
Finally, courtesy would suggest, in the peculiar circumstances at hand, that a party which does not wish to file an appeal should so inform the Appeal Board within the ten day period of service of this memorandum specified in Section 2.762 for a Notice of Appeal.
Therefore, pursuant to 10 CFR 9 2.762, any party may take an appeal from this grant of summary disposition by filing a Notice of Appeal within ten (10) days after service of this memorandum. Each appellant must file a brief supporting its position on appeal within thirty (30) o days after filing its Notice of Appeal (forty (40) days if the Staff is the appellant). Within thirty (30) days after the period has expired for the filing and service of the briefs of all appellants (forty (40)
18 days in the case of the Staff), a party who is not an appellant may file a brief in support of or in opposition to the appeal of any other party.
A responding party shall file a single responsive brief, regardless of the number of appellants' briefs filed.
2~
FOR THE ATOMIC' SAFETY AND LICENSING BOARD itML
' Lawrence Brenner, Chairman
-ADMINISTRATIVE JUDGE Bethesda,' Maryland November 7, 1985 i
e
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