ML20198L166

NRC Staff Reply to Opposition Brief of Intervenor,Citizens Against Nuclear Trash,On Appeal of LBP-97-08.* Staff Should Reverse LBP-97-08,for Reasons Discussed.W/Certificate of Svc

ML20198L166
Person / Time
Site:	Claiborne
Issue date:	09/30/1997
From:	Bachmann R, Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#497-18534 LBP-97-08, LBP-97-8, ML, NUDOCS 9710240265
Download: ML20198L166 (12)

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' DOCKETED USilRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION w c -1 P5 :09 BEFORE THE COMMISSION OFF2 OF SECRi"M/

RULE M J E 3 M O ADJUDiC/0" ,N 3 L NF in the Matter of )

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LOUISIANA ENERGY SERVICES, L.P. ) Docket No. 70 3070 ML

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(Claiborne Enrichment Center) )

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NRC STAFF REPLY TO OPPOSITION BRIEF OF INTERVENOR,

, CITIZENS AGAINST NUCLEAR TRASH, ON APPEAL OF LBP 97 8 Richard G. Bachmann Ann P. Hodgdon Counsel for NRC Staff September 30,1997 h

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b September 30,1997 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

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LOUISIANA ENERGY SERVICES, L.P. ) Docket No. 70-3070-ML

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(Claiborne Enrichment Center) )

NRC STAFF REPLY TO OPPOSITION BRIEF OF INTERVENOR, CITIZENS AGAINST NUCLEAR TRASH. ON APPEAL OF LBP-97-8 INIRQDUCTION Pursuant to the Commission's Order ofJune 30,1997, CL197 7, Intervenor Citizens Against Nuclear Trash (CANT) filed its Brief' opposing the briefs2 filed by the other parties and the Nuclear Energy Institute (NEI) as Amicus Curiae on Commission review of LBP 97-8,45 NRC 367 (1997).

As permitted by CL197 7, the Staff files this reply brief.

8 Opposition Brief of Intervenor, Citizens Against Nuclear Trash, on Appeal of LBP 97-8, dated September 18,1997 (" CANT Bdef").

' Applicant's Brief in Support of Its Petition for Review of LBP-97-8, dated August 7, 1997 ("LES Brief"); NRC Staff's Brief in Support of Commission Reversal of LBP-97-8, dated August 7.1997 ("Sta!Y Brief"); NEI Amicus Brief on Review of Licensing Board Decision LBP-97 8, dated August 8,1997 ("NE! Brief").

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.- 2-DISCUSSION

1. CANT's Position That NEPA Has A Nondinerimination Comnonent is Without Medt.

The main thmst cf CANT's argument is that the National Erwironmental Policy Act (NEPA) itself requires a finding that the site selection process is nondiscriminatory, in its brief, CANT cites a number of cases to support its position. Pefore tuming to its main argument, however, CANT first assens that, as a procedural matter, the Board did not abuse its discretion in determining that the scope of Contention J.9 includes bias and discrimination in the site selection process. - CANT Brief at 9. CANT cites Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB.868,25 NRC 912,930 (1987)in support of this position. CANT Brief at 9. CANT'S ,ellance on the Comanche Peak decision is misplaced. As here relevant ,

Comanche Peak merely held that the basis requirement of a contention is a pleading requirement to determine if an issue is litigable, arJ a party is entitled to introduce evidence not strictly enunciated in those bases. Comanche Peak at 930-31. Comanche Peak can in no way be read to support the expansion of the scope of a contention to inch.de an issue which is not mentioned, or cannot be inferred, from' the wording of the contention or its supporting basis. The issue of bias and discrimination in the site selection process is such an issue.

CANT next argues that an a Final Fnvironmental Statement (FEIS) based on racially biased and discriminatory analyses of environmental factors fails to guarantee NEPA's procedural protections to "all" people, citing Calvert Clifs Coordinating Comm. v. AEC,449 F. 2d,1109,1115 (D.C. Cir.1971) and Em'ironmental Defense Fund v Corps ofEngineers of The US Army, 492 F. 2d,1123,1129 (5th Cir.1974). CANT Brief at 11. These cases do not support CANT's position. Calvert Clifs stjected the AEC's regulations implementing NEPA because those

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. 3 regulations neglected the mandated balancing analysis of environmental factors. See Calvert Clifs at 1123. Likewise, the court in Environmental Defense Fund held that NEPA requires a full good faith consideration of the environment. Environmental Defense Fund at 1129. Here, in keeping with thex cases, the Staff fully and fairly considered and appropriately balanced the emironmental impacts and benefits of LES's proposed project.

CANT also refers to Cedar Riverside Environmental Defense Fund v. Hills,422 F.Supp.

294 (D. Minn 1976), as an example of the rejection of an environmental impact statement (EIS) due to its biased consideration of environmental impacts, arguing that an EIS must be sensitive to racial discrimination and racial bias. CANT Brief at 11 12 & n.14. CANT's reliance oc this particular case is, once again, misplaced. The Cedar-Riverside decision contains a lengthy catalogue of deficiencies in a housing development EIS, primarily conceming the lack of discussion in the section of the document addressing attematives to the proposed action, of reasonable options that would have significantly different environmental effects and could reduce negative emironmental aspects of tne project which was the subject of that case. See Cedar-Riverside at 300 (low rise versus high rise apartments). The Special Master found a pattem showing " bias...

justifying a previously made decision," and that the "EIS demonstrates a biased selection of evidence." Cedar-Riverside at 322. There is not a hint, in the decision, that the bias with which the case is concemed is racial basis, in fact, it is quite clear that the decision does not concem racial bias at all but rather concems the general inadequacy of the EIS with respect to altematives. The Staff's EIS and the record in this proceeding are consistent with the Cedar Riverside decision.

CANT does not point to any altemative to the proposed action which would have significantly smaller environmental impacts, and which were not discussed in th: EIS; in NRC proceedings, a

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4 proposed site may not be re,)ected unless an ahemate site is "obviously superior." See Public Service Co. ofNew Hanpshire (Seabrook Station, Units 1 & 2), CL177 8,5 NRC 503,526 (1977). In this proceeding, the uncontroverted testimony by the Staff was that none of the other sites in the final rounds of site selection were obviously superior to the selected site. Testimony of Merri Hom, et al. fol. Tr. 904 at 12. '!hus, Cedar Riverside does not support CANT's position. 8 In summary, none of the cases cited by CANT in its brief provide legal support for CANT's position that NEPA requires a look at discriminatory intent.'

8 The "blas" found in Cedar-Riwrside went to the skewing of evidence to support a predetennined decision on the form of the proposed development.

• CANT makes a general argument that the NRC has obligation to prevent discrimination pursuant to the Fin Amendment of the Constitution. This argument is raised by CANT for the first time on appeal. When issues are not raised before a licensing board, they will not be entertained on appeal. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691,16 NRC 897,907 (1982). Even if the Commission were to entertain CANT's untimely argument, the Staff submits that the cases cited by CANT in support of this argument are inapposite. They deal with direct govemment action taken pursuant to decision criteria alleged to be discriminatory. The NRC's regulatory scheme does not contain discriminatory decision criteria. Furthermore, CANT has not made such an argument.

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, 5 IL CANT's Brief Does Not Confront The Staff s Arguments Regarding The Licensing Board's Findincs And Conclusions On Pedestrian Traffic And Pronerty Values.

A. Pedestrian traffic In its Brief, CANT purports to answer a Staff argument that neither the issue of road relocation nor property values is cognizable under NEPA. CANT Brief at 31. CANT mischaracterizes the Staffs argument. The Staff s argument was that neither pedestrian traffic nor diminution of property values was admitted as an issue in the proceeding. It was only with respect to property values that the Staff additionally argued that they were not cognizable under NEPA unless the diminution was related to environmen'.al damage. Staff Brief at 11 - 13.

With regard to impacts of the relocation of a section of Parish Road 39, CANT states that Staff offered "various theories as to why the impacts of the road relocation" were not cognizable under NEPA. CANT Brief at 31. Contrary to CANT's characterization, the Staff did not theorize i

reganiing that matter but rather offered testimony on the impacts of the road relocation. Testimony of Merri L. Hom er. al., fol. Tr. 904. The Staffs argument on appeal went to the Board's finding that the FEIS was inadequate in not having considered the effect of road relocation on pedestrian traffic. The Applicant and the Staff had no notice of CANT's interest in pedestrian traffic. The concern was not mentioned in the scoping meeting, where persons living in the two communities had ample opportunity to make their concems known, nor was it mentioned in comments on the DEIS or in limited appearances. Ftuther, the concem is not an explicit part of the admitted contention,it is not stated in the basis of the admitted contention, and it was not raised in discovery.

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The only mention of pedestrian traffic made in Dr. Bullard's testimony is that, "had LES consulted these residents, it would have found that this road is a vital and frequently used link between the two communities, with regular pedestrian traffic" Bullard at 34, fol. Tr. 853. His s

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. 6 is not factual testimony and does not provide a basis for factual findings made by the Board based on Dr. Bullard's testimony. 45 NRC at 405. De Board relies on Dr. Bullard's testimony because, as the Board states, neither the Staff nor the Applicant presented any evidence disputing Dr. Bullard's testimony in this regard,45 NRC at 405-06. Dr. Bullard's speculative opinion regarding what LES would have found ifit had inquired is not substantive evidence here is no evidence in the record that Dr. Bullard, hhnself, consulted with the residents regarding this matter.

The Board's reliance on Census statistics regarding motor vehicle ownership to infer pedestrian status is also misplaced. No statistics were offered for the two communities of concem.

The Board faults the S' aff and LES for not conducting interviews regarding these matters, but it relies on what Dr. Lullard offered in this regard, even though that testimony establishes nothing with respect to car ownership and pedestrian status in the two communities. CANT states that

"[n)owhere do LES or the Staff point to a shred of evidence in the record that the impacts of road relocation on pedestrians have been addressed in the FEIS." CANT's Brief at 36. However, CANT misses the Staffs point, which is that there is nothing in Dr. Bullard's testimony or in the remainder of the record to support the Board's findings in LBP 97 8, regarding pedestrian traffic, CANT's argument that the impacts on pedestrians and property values are "high and adverse," too,is specious. See CANT's Brief at M. According to CANT, the Staffs position is that the impacts on pedestrians and property values were not high and adverse and, thus, need not be addressed under the Executive Order. Id. As discussed more fully in the Staffs Brief on Appeal, what the Staff, in fact, did argue, was that, as far as road relocation was concemed, the FEIS presented a reasonable discussion of the impact given that the additional 0.38 mile distance attributable to the relocation would be an inconvenience, but a minor impact. See Staff Brief at 13.

. 1 With respect to propeny values, the Staff argued that as neither the Atomic Energy Act nor NEPA suppons the consideration of impacts not attributable to environmental impacts of the facility, Executive 0.tler 12898 cannot require such a consideration. Id. at 15. CANT's argument does not successfully contradict either of these assentons and should be rejected.

B. Propeny Values in regard to the loss of piegity value, contrary to CANT's representation (See CANT's Brief at 28), the Staffs argument was that the basid t CANT's Contention J.9 regarding property values was rejected by the Licensing Board in 1991 when it ruled on the admissibility of the contention. LBP 91-41,34 NRC at 352(1991) citedin Staffs Brief at 14.

CANT now argues that even though Basis 8 of Contention J.9 was rejected by the Licensing Board in 1991,"the FEIS itself acknowledged that progity values will be d.piad" CANT Brief at 28, citing FEIS at 4 86. CANT argues further that because the FEIS addressed piegity values, that matter was again in contention, even though previously rejected by the Board and "Dr. Bullard was fully entitled to address negative impacts on propeny values." 14.

CANT cites the Board's denial of LES's motion to strike Dr. Bullard's testimony as support for its argument that Basis 8 was reinstated because the Staff addressed propny values in the FEIS.

However, the Board did not explain the basis for its denial of LES's motion to strike, nor did it otherwise rule to reinstate this aspect of the contention. Tr. at 379. 'Ihus, it is not clear to what extent the Licensing Board agreed with CANT that Dr. Bullard was free to addren any matter discussed by the Staffin the FEIS. - In addition, it should be noted that in discharging its NEPA obligation the Staff does not limit its FEIS only to matters raised by admitted contentions. That does not mean, however, that an intervenor is free to raise matters in testimony which the intervenor

. 8 did not attempt to raise by amending its contentions aRer issuance of the FEIS.

A petitioner for leave to intervene has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any infonnation that could serve as the foundation for a specific contention.

Neither Section 189a of the Atomic Energy Act nor Section 2.714 of the Rhies of Practice permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or Staff. Duke power Co.(Catawba Nuclear Station, Units 1 and 2), ALAB 687,16 NRC 460, 468(1982), vacated in part on other grounds. CLI 8319, 17 NRC 1041 (1983) - Environmental contentions, to the extent possible, must be submitted on the basis of the licensee's Environmental Report (ER) and may not await the Staff's environmental document, ne contentions may be amended or expanded if there are data or conclusions in the NRC issuance that differ significantly from data or conclusions in the ER. Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-93 23,38 NRC 200,251(1993).

Thus, an intervenor has an obligation to narrow, expand or focus an admitted contention if data or conclusions in documents issued subsequent to the admission of the contention so warrant.

With respect to rejected contentions, these are not revived simply by the issuance of Staff documents addressing matters addressed in the rejected contentions. Basis 8 of Contention J.9 regarding property values was rejected by the Board and CANT did not resubmit it aAer issuance of the FEIS. Rus, the fact that the FEIS discussed property values should not be viewed as support for CANT's argurnent that it was appropriate 'or Dr. Bullard's testimony to address that matter.

. 9 CONCLUSION For the reasons discussed above and in the Staff Brief, the Commission should reverse LBP 97 8.

Respectfully submitted, y J Richard O. Bachmann Counsel forNRC Staff Ann P. Hodgdon Counsel forNRC Staff Dated at Rockville, Maryland this 30th day of September,1997 9

UNITED STATES OF AMERICA 00CKETED o

NUCLEAR REGULATORY COMMISSION ysHRC BEFORE ' rIE COMMISSION 9 g g p5 09 In the Matter of )

OF GECRHW LOUISIANA ENERGY SERVIC.1 L.P. ) Docket No. kb

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(Claiborne Enrichment Center) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF REPLY TO OPPOSITION BRIEF OF INTERVENOR, CITIZENS AGAINST NUCLEAR TRASH, ON APPEAL 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 30th day of September,1997:

Thomas S. Mccre, Chairman Richard F. Cole 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 Frededek J. Shon Mr. Ronald Wascom*

Administrative Judge Deputy Assistant Secretary Atomic Safety and Licensing' Board Office of Air Quality &

U.S. Nuclear Regulatory Commission Radiation Protection Washington, DC 20555 P.O. Box 82135 Baton Rouge, LA 70884-2135 J. Michael McGarry, III, Esq.* Peter 12Roy*

Winston & Strawn Duke Engineering & Services, Inc.

1400 L Street, N.W. P.O. Box 1004 Washington, DC 20005 Charlotte, NC 28201-1004

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i Dr. W. Howard Arnold

• Marcus A. Rowden, Esq.*

1.ouisiana Energy Services, L.P. Fried, Frank, Harris 2600 Virginia Avenue, N.W. Shriver & Jacobsen Suite 608 1101 Pennsylvania Avenue, N.W.

Washington, DC 20037 Suite 900 South Washington, DC 20004 Office of the Commission Appellate Office of the Secretary (16)

Adjudication ATTN: Rulemakings and Adjudications Mall Stop: 05-G 15 OWFN Staff U.S. Nuclear Regulatory Commission Mall Stop: 05-G 15 OWFN Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Board Nathalie M. Walker, Esq.*

Panel Earthjustice Legal Defense Fund U.S. Nuclear Regulatory Commission 400 Magazine Street, Ste 401

'Vashington, DC 20555 New Orleans, LA 70130 Diane Curran, Esq.* Joseph DIStefano, Esq.*

Harmon, Curran, Gallagher & 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

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Richard G. Bachmann Counsel for NRC Staff 1