ML20210J040

NRC Staff Brief in Support of Commission Reversal of LBP-97-08.* Commission Should Reverse LBP-97-08

ML20210J040
Person / Time
Site:	Claiborne
Issue date:	08/07/1997
From:	Bachmann R, Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#397-18431 LBP-97-08, LBP-97-8, ML, NUDOCS 9708140313
Download: ML20210J040 (5)

Text

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g DOCKETED USHRC UNITED STATES OF AMERICA '97 pm -8 A8:07 NUCLEAR REGULATORY COMMISSION OFFICE'0F SECRETARY BEFORE THE COMMISSION 00CKElIHG & SEnsICE BRANCH In the Matter of )

)

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

)

(Claiborne Enrichment Center) )

)

NRC STAFF'S BRIEF IN SUPPORT OF COMMISSION

. REVERSAL OF LBP-97-8 Richard G. Bachmann Ann P. Hodgdon Counsel for NRC Staff August 7,1997 -

9708140313 970807 PDR ADOCK 0700307C C PDR 7

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TABI E OF CONTENTS P.aac TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 INTRODU CTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 L ACKG ROUN D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 DI SC U S SI O N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

- STATEMENT OF ISSUES ....................................3

1. The Board's Finding of a " Nondiscrimination Component" in Executive Order 12898 as Applied to NRC Licensing Actions Is Erroneous . . . . . . . . . . . . 4 A. The Board Impermissibly Expanded the Scope of the Executive Order to Cover NRC Licensing Actions . . . . . . . . . . . . . . . . . . . . , . . . 4 B. Under Executive Order 12898 There Would Be No Remedy for _

Discrimination in the CEC Site Selection Process. . . . . . . . . . . . . 9 C. The Board's Interpretation of Executive Orde: 12898 as Creating Rights of Enforcement and of Review Is Erroneous . . . . . . . . . . . . . . . 10 II. The Board's Conclusion that the Effects of the Road Relocation Had Not Been Adequately Addressed in the FEIS Is Erroneous. . . . . . . . . . . . . . . . . . 11 III. The Board's Conclusion that Impacts on Property Values Must Be Considered in the FEIS Is Erroneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CO N CLU SI ON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 o

p

. - l TABLE OF AUTIiORITIES EARC COURT CASES Metropolitan Edison Co. v. People Against Nuclear Energy,460 U.S. 766 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Robertson v. Methow I' alley Citisens

. Council, 4 90 U.S. 3 3 2 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Chowdhury v. Reading Hospital, i

677 F.2d 317 (3rd Cir.1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 i-ADMINISTRATIVE DECISIONS Commission:

Babcock and Wilcox Co. (Pennsylvania Nuclear Services Operations, Parks Township, PA),CLI-95-4,41 N.R.C. 248 (1995) . . . . . . . . . . . . . . . . . . . . . . . 15

. Louisiana Energy Services, LP. (Clniborne Enrichment Center), CLI-97-7, 45 NRC ._. (June 30,1997), granting review of LBP-97-8,45 NRC 367 (May 1,1997) ....................................... 1 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-82-6, 15 N . R.C. 40' (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station),

CL1-92-2, 3 5 N.R.C. 47 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 I Icencine:

Babcock and Wilcox Co. (Pennsylvania Nuclear Services Operations, Parks Township, PA), LBP-95-1,41 N.R.C.1 (1995) .......................15

e

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i TABLE OF AUTHORITIES i

EAST e

4 Babcock and Wilcox Co. (Pennsylvania Nuclear Senices Operations, Parks

Township, PA), LBP.94 12, 39 N.R.C. 215 (1994) . . . . . . . . . . . . . . . . . . . . . 14 Loulslana Energy SenIces. LP. (Claibome Enrichment Center), LEP-97-8,45 NRC 367 (May 1,1997) . . . . . . . . . . passim Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-97-3, 45 N.R.C. 99 (March 7,1997) . . . . . . . . . . . . . . . . . ........... 2 Loulslana Enery Senices, LP. (Claibome Enrichment Center), LBP-96-25, 44 N.R.C. 3 31 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

.. Loulslana Energy Services, LP. (Claibome

,- Enrichment Center), LBP-96-7, 4 3 N.R.C. 142 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Loulslana EnergyServices, LP. (Claibome 1 Enrichment Center), LBP-91-41, 3 4 N.R.C. 3 3 2 (1991 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 STATUTES Title VI, { 601, 42 U.'. C. { 2000d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Title VI, { 602, 42 U.S.C. { 2000d-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 National Environmental Policy Act of 1%9 [NEPA). a U.S.C. 6 4321 et. seg, , . . . . . . . . . . . . . . . passim Title VI of the Civil Rights Act of 1964 ...................... 5,7,8,9

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TABLE OF AUTHORITIES '

. P.ast l

REGULATIONS 1 0 C .F.R. ) 4 . 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 10 C.F.R. Part 4 .......................................................8 t

i MISCELLANEOUS 1

29 Fed. Reg.19277 ..................................................,8 56 Fed. Reg. 23310 ..................................................,4 l

59 Fed. Reg. 7629 ............................................. 7,9,10

Executive Order 12 898 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim i

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August 7,1997 UNITED STATES OF AMERICA ,

NUCLEAR REGULATORY COMMISSION BEFORE THB COMMISSION In the Matter of )

)

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

)

(Claiborne Enrichment Center) )

)

NRC STAFF'S BRIEF IN SUPPORT OF COMMISSION REVERSAL OF LBP-97-8 INTRODUCTION On June 30,1997, the Conunissionissued an Order granting petitions filed by Louisiana Energy Services, L.P, (LES or Applicant) and the staff of the Nuclear Regulatory Commission (Staff) for review of the Final Initial Decision (Addressing Contention J.9) by the Atomic Safety and Licensing Board (Board) designated to preside over this proceeding.8 The Staff hereby files its brief in this matter. For the reasons set forth below, the Board's Final Initial Decision in LBP-97-8 should be reversed.

BACKGROUND In this combined construction permit-operating license proceeding, LES seeks a 30-year license to possess and use byproduct and source materials, and special nuclear material (SNM),

to enrich uranium using a gas centrifuge process at the proposed Claiborne Enrichment Center 3

Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-97-7,45 NRC (June 30,1997), granting review of LBP-97-8,45 NRC 367 (May 1,1997).

1 l

2-

- (CEC) to be constructed in Claiborne Parish, Imislana. 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 admitted as a party to the proceeding. On May 1 - 1997,- the Board issued a panial initial decision, LBP-97-8, resolving the last of these contentions.2 The Board addressed Contention J.9, wHQ userted 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.8 45 NRC at 370,372 73.

The Board found that the President's environmental justice directive, Executive Order 12898, has a " nondiscrimination component" and that the Staff's fmal environmental impact statement (FEIS), in limiting its considerationof the Applicant's siting process to what the Board ,

^

2 This was 'the fourth of four panial initial decisions in this pr-ading. In its first partial .

initial decision, the Board resolved three safety contentions in favor of the Applicant.

Louisiana Energy Services, L.P. (Clait>orne Enrichment Center), LBP-%7,43 NRC 142 - '

(1996); petitionfor review granted in port and denied in part, CL1-W8, 44 NRC 107 (1996);

motionforpanial reconsideration denied, CL1-97-2,45 NRC t 627). h & wond panial- '

initial decision, 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) was iradaquate.

Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-96-25,44 NRC 331, .

404 (1996). The Board also sustained Contention O which challenged LES's fmancial qualifications to construct the CEC,14. In response to petitions filed by LES and the Staff, the Commission has taken review of LBP-%25. In its third panial initial decision, the Board -

found that LES has a plausible strategy for depleted uranium tails disposal, that LES's estimate for transportation and disposal 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 99 (March 7, 11997). " Petitions for review of LBP-97-3 are pending before the Commission.

3 The Board also denied the Applicant's request for a construction permit and operating-license without prejudice to the Applicant's amending the license application in accordance with the panial initial decisions in this proceeding. 45 NRC at 412.

3

characterized as a " facial" review of the information in the environmental report, had failed to comply with the Executive Order. 45 NRC at 390-91. The Board also concluded titat relocation of the road bisecting the proposed CEC site and the impacts from the CEC on property values in the neighboring African-Americancommunities had not been adequately reflected in the FEIS and I

factored into the weighing of the costs and benefits of the facility and in the Staff's environmental justice determination 45 NRC at 406-411. On the other hand, the Board found that the FEIS l_ _ 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.

- 45 NRC at 411.

DISCUSSION i-STATEMENT OF ISSUES

1. Whether the Board's Finding of a " Nondiscrimination Component" in Executive Order

- 12898 as Applied to NRC Licensing Actions Is Erroneous.

II. Whether the Board's Conclusion that the Effects of the Road Relocation Had Not Been ,

Adequately Addressed in the FEIS Is Erroneous.  !

III. LWhether the Board's Conclusion that Impacts on Property Values Must Be Considered in the FEIS Is Erroneous.

The Board's finding that the Applicant (and through its FEIS, the Staff) failed to counter the allegations of Contention J.9 is erroneous. The gist of Contention J.9 is that, under the:

National Environmental Policy Act (NEPA), the environmental and social impacts of locating the

CEC in a minority community were not adequately addressed.

I. The Board's Finding of a " Nondiscrimination Component" in Executive Order 12898 as Anolied to NRC Licensine Actions Is Erroneous. i I

A. The Board Impermissibly Expanded the Scope of the Executive Order to Cover NRC Licensinc Actions.

The Board correctly stated that Contention J.9 "is grounded in the requirements of the National EnvironmentalPolicy Act of 1%9 [NEPA],42 U.S.C. I 4321 et seq." 45 NRC at 371.

The Board further stated that, in the hearing notice,' the Commission had directed the Board "to determine whether the Staff's environmental review conducted pursuant to 10 C.F.R. Part 51 was adequate and whether the agency had complied with the requirements of sections 102(2)(A), (C),

and (E) of NEPA." 45 NRC at 374. The Board also alluded to its responsibility to independently consider the cost benefit balance among the conflicting factors contained in the record of the proceco;ig. Id.8 In defining a " nondiscrimination component" of Executive Order 12898 as being compelled by NEPA, the Board er.eeded the NRC's responsibility to consider environmental impacts. The Board's conclusion that a license would be denied if racial considerations played a role in siting exceeds the NRC's obligations pursuant to NEPA. NEPA is a disclosure statute, and it is now well settled that NEPA itself does not mandate particular results, but simply

' Notice of Receipt of Application for License; Notice of Availability of Applicant's Environmental Report; Notice of Consideration ofIssuance of License; and Notice of Hearing and Commission Order; Louisiana Energy Services, L.P.; Claiborne Enrichment Center.

56 Fed. Reg. 23310 (May 21,1991).

5 Although not mentioned by the Board in LBP-97-8, the Commission also indicated in the hearing notice that the purpose of balancing costs and benefits was to determine what, if any, action would be necessary for the protection of the environment. See 56 Fed. Reg. 23310 (May 21,1991).

n - _ _ _ _

5 prescribes the necessary process. Robertson v. Methow Valley Citizens Council,490 U.S. 332,

- 350 (1989). As discussed below, the Board exceeded its authority, and attributed to the NRC obligations that are not supported by any legal basis.

The Board determined that Executive Order 12898 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 any persons or populations to discriminationbecause of their race or color." 45 NRC at 390. In resolving Contention J.9, the Board found that the t

Commission had voluntarily agreed to implement the President's environmental justice directive, Executive Order 12898. 45 NRC at 376. The Board correctly states that then-Chairman Selin .

= wrote the President on March 31,1994, to the effect that the NRC would carry out the measures.

s a Lin the Executive Order. 45 NRC at 375. For this reason, the Board determined that the

, Executive Order was fully applicable to the NRC to the same extent as if the NRC were an executive branch agency. 45 NRC at 376. It is clear, however, that the Chairman never intended to expand the applicability of the Executive Order to NRC actions insofar as the Executive Order concerns " federal agency program [s), polic[ies), or activit[ies)," a phrase which echoes the language of Title VI of the Civil Rights Act of 1964 and defines the scope of the Executive Order.

By its language, the Chairman's letter limits the NRC's participation to its NEPA responsibilities, The leuer states, "Given the nature of our responsibilities as a licensing and regulatory agency,

' the memorandum seems most likely to apply to our efforts to fulfill the requirements of the National Environmental Policy Act. Because we have for many years evaluated the social, economic and health effects of our actions through the preparation of environmental documents, j

we respectfully request that an NRC representative be permitted to participate in the initial

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meeting of the Working Group so that we have the opportunity both to share our experiences with te designated members of the Group and to gain insights from the experiences of others."

The Board mied that the record was inadequate to make a determination regarding discriminationin the siting process and that the Staff must conduct a professional investigation of the siting process aided by whatever outside experts might be necessary to determine whether the process was discriminatory. 45 NRC at 390,391,396-97,412. The Board 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 environmentalreport. 45 NRC at 390. The Board's E

view is that "[i]n taking this action, the Staff necessarily recognized the agency's obligation under the nondiscriminationcomponent of the President's environmental justice directive to make sure the site selection process conducted by the original venturers in what subsequently became the

. LES project was free from racial discrimination." Id. In making this inference, the Board disregards the fact that Contention J.9, as admitted by the Board more than two years before the President's Executive Order 12898, alleged that piscing the CEC "in the dead center of a rural

- black community consisting of over 150 families" was one of the sources of impacts on the communities. Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP 9141, 34 NRC 332, 352-353 (1991). The Staff's examination of the matter was in response to

_ Contention J.9 and was undertaken pursuant to NEPA. The Staff concluded that there was no evidence that race considerations played a part in the site selection process. FEIS,4 34,4-35.

The Board would have the Staff prove a negative, that race considerations did not play a role in the site selection process.

Am_ -&

7 The Board based its entire interpretation of the " nondiscrimination component" on one sentence in Executive Order 12898, and overlooked all' evidence contrary to its ibterpretation.

That sentence, found in Sec. 2 2, " Federal Agency ResponsibilitiesFor Federal Programs," reads:

Each Federal agency shall conduct its programs, policies, and activities that substantially affect human health or the environment, in a manner that ensures such programs, policies, and activities do not have the effect of excluding persons

-(including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to-discriminationunder, such programs, policies, and activities, because of their race,

_ color, or national origin, 1

L 59 Fed. Reg 7629,7630 (February 11,1994); 45 NRC at 374.

The Board then cited (see 45 NRC at 375) the President's Memorandum for the Heads of

=All Departments and Agencies' accompanying Executive Order 12898,8 but appears to have overlooked the paragraph clarifying the sentence quoted above. That paragraph reads:

In accordance with Title VI of the Civil Rights Act of 1964, each Federal agency.

7-shall ensure that allprograms or activities receiving Federalfinancial assistance that affect human health or the environment do not directly, or through contractual or other arrangements.use' criteria, methods, or practices that discriminate on the basis of race, color, or national origin.

Memorandum at 1.(emphasis added). Based on the similarity of language between Executive Order 12898 and the Memorandum, it is clear that the " nondiscrimination component" that the Board found in Executive Order 12898 is based on Title VI of the Civil Rights Act and,-

8:. Memorandum for the Heads of All Departments and Agencies, Executive Order on Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, dated February 11,1994. 30 Weekly Como. Pres. Doc. 279 (Feb.14,1994).

l . . . . _ . _ . - - . . .

therefore, applies only where Federal financial assistance is involved.' Section 601 of Title VI provides that:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participationin, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

42 U.S.C. 6 2000d (emphasis added).

The Commission's regulations implementing Title VI,10 C.F.R. Part 4, specifically target "any program for which Federal financial assistance is authorized under a law administered by NRC." 10 C.F.R. I 4.3. When Part 4 was promulgated, its purpose was "to effectuate the provisions of Title VI of the Civil Rights Act of 1964...to the end that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or l activity receiving Federal financial assistance from AEC." 29 Fed. Reg. 19277 (December 31,1964).

Against this background of Title VI, it is clear that the Board misinterpreted the Executim Order, and the NRC's obligations thereunder, when it found that the "nondiscrhnination component" of the Executive Order requires that the NRC conduct investigations to " ensure" that a license applicant has not allowed discrimination to taint any of the applicant's activities sciated with the application. 45 NRC at 390-91. The Board cited no legal authority for its view that "such a thorough Staff investigation is needed not only to comply with Executive 6

Title VI is the only Federal statute that generally prohibits discrimination with regard to Federal agencies and " programs" and " activities." As a result, were the nondiacrimination clause not based on Title VI, it would have no legal foundation.

'='

9 49 Order 12898, but to avoid the constitutional ramifications of the agency becoming~a participant in any discriminatory conduct through its grant of a-license." Id. Indeed, the Board's interpretation ofits responsibilkies and the Staff's is not consonant with the statutes, regulations and case law under which the Commission reviews licensing applications. Executive Order 12898 specifically states that federal agencies shall implement the executive order consistent with exisths law. Executive Order, Subsection 6-609. Since existing law does not contemplate that NRC

' licensing actions are subject to the provisions of Title VI of the Civil Rights Act concerning federal activities, the Board's conclusions are inconsistent with the directives of the Executive Order.

B. Under Executive Order 12898 There Would Be No Remedy for Discrimination in

, the CEC Site Selection Prncece 4

Even if the Staff were to find that racial discrimination tainted the site selection process, there is nothing further for the Staff to do pursuant to either Executive Order 12898 or NEPA.'

Independent of the issue of racial discrimination, the Staff fully discharged its obligations under the Executive Order and NEPA. The Executive Order speaks of " identifying and addressing,

. as appropriate, disproportionatelyhigh and adverse human health or environmental effects." 59 p Fed. Reg.- 7629. The Executive Order, therefore, contains two steps: the identification of disproportionately high and adverse effects and addressing any such effects. Thus, if no

" disproportionately high and adverse human health or environmental effects" are identified, the

- ' There is a similar problem under Title VI. By its very terms, Title VI, 6 602 (42 U.S.C. f 2000d-1) provides that the remedy for discrimination is the termination of Federal financial assistance. Chowdhury v. Reading Hospital, 677 F.2d 317, 319-20 (3rd Cir.

1982).- This, of course, is not available in an NRC license proceeding.

s second pan, addressing the effects (e.g., considering mitigation of the effects) does not come into l

play. Assuming the evidence supports a finding that racial discriminationtainted th'c site selection i process, which the Staff does not concede, absent a manifestation of that discrimination in a disproportionatelyhigh and adverse human health or environmental effect, there is nothing to be addressed pursuant to the Executive Order. Since the Staff found no high and adverse effects arising from construction and operation of the CEC (See, generally, FEIS), and the Board agreed with the Staff's conclusions (45 NRC at 411-12), there would be no point in the Staff's conductirg a further investigation of the Applicant's siting process.

C. The Board's Interpretation of Executive Order 12898 as Creating Rights of Enforcement and of Review Is Erroneous.

By its own terms, the Executive Order is not enforceable as a matter oflaw or equity. The Executive Order states:

This order is intended to improve the internal management of the executive branch and is not intended to, nor does it create any right, benefit. trust, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any person. This order shall not be construed to create any right to judicial review involving the compliance or noncompliance of the United States, its agencies,its officers, or any other person with this order.

'A Fed. Reg. 7629, 7632-7633 (1994) (emphasis added). The President's February 11, 1994 memorandum repeats essentially the same statement in its concluding paragraph.

The Board purported to recognize the non<nforceabilityof the Executive Order. 45 NRC at 375. However, in turning to the NEPA concerns in Contention J.9, the Board stated that:

Although the Staff now must undertake a thorough investigation of whether racial considerations played a part in the CEC site selection process, we nevertheless, nirn to address the second concern of the Intervenor's environmental justice contention. In the event it is ultimately determined that racial considerations

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played a role in the site selection process, these findings muld become moot.

Should the opposite prove to be the case, however, these issues will have been decided so that any appropriate 5:aflicensing action can proceed.

• 45 NRC at 397 (emphasis added). By determining that 11ndings necessary for procceding with the licensing action *would become moct" if it is determined that racial considerations played a role in the site selection process, the Board has made compliance with the Executive Order an issue material to NRC licensing decisions. If allowed to stand, the Board's decision will have a result clearly not intended by the President and not anticipated by the Commission when then-Chairman Selin wrote to the President on March 31,1994, that the NRC would carry out the measures in Executive Order 12898, II. The Board's Conclusionthat the Effects of the Road Relocation Had Not Been Adequately

,- Addressed in the FEIS Is Erroneous.

The Licensing Board found that the FEIS had not adequately considered the relocation of Parish Road 39, which bisects the CEC site and connects the commurJties of Fore:t Grove and J - Center Springs, in that the FEIS failed to discuss the impact of the additional 600 meters distance (approximately 38 mile) on residents who must walk rather than drive the distance between the two communities 45 NRC at 405. The Board concluded that adding 600 meters (.38 mile) to "the 1 or 2 mile walk between these communities" might be more than a very small impact, especially if tBe pedestrians were "old, ill or otherwise infirm." 45 NRC at 406. This finding is without record support.

The Board relied for its conclusion on the testimony of an Intervenor witness, who testified that there was no indication that the NRC consulted any of the residents of Forest Grove and Center Springs before concluding that the impacts of road relocat - n were "very small," and that, s , c. .

g . . . . . . . . . .

I "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 33, 34, fol.

Tr 853; 45 NRC at 405. Dr. Bullard's testimony is silent as to how he reached the conclusion -

that Parish Road 39 is."a vital and frequently used link between the two communities, with regular pedestrian traffic." He did acknowledge that his visit to the area was limited to a single day. Tr 855.

Dr. Bullard's testimony regarding the use of the road by pedestrians is inconsistent with his testimony concerning the increase in traffic that the construction and operation of the facility -

would entail. Regarding that matter, Dr. Bullard's prefiled testimony states as follows: " Based on my visit there, both Center Springs and Forest Grove are very quiet rural communities, with Very little traffic on Pat hh Rnad 39, the road which connects them." : Bullard at 32, fol. Tr 853.

The Board ignored this apparent inconsistency in Dr. Bullard's testimony and relied on /

Dr. Bullard's " vital link" statement, despite its lacking any apparent basis..

The Board also based its finding of pedestrian traffic on Census figurt;s showing that 31 % '

of black households in the parish have no motor vehicles. 45 NRC at 406. Elsewhere in the decision the Board stated that the population of Claiborne Parish in 1990 was 17,405, of which 46.09 per cent was African American. 45 NRC at 371. The two communities of Forest Grove-and Center Springs'are said to have a total population of 250, of which 97% is African-American. Id. However, there is nothing in the record that shows how the Census figures for the parish relate to motor vehicle ownership per household in the two communities.

The Board ignored the testimony of Staff witness, Merri Horn, who in answer to a question posed by the Board based on " statistical data in Dr. Bullard's testimony that a great many

of the residents of Forest Grove and Center Springs do not have automobiles," Tr. 912, stated, "I believe the statistics were actually for Claiborne Parish and not specifically fof Forest Grove and Center Springs." Horn, Tr. 913.

- The Board's fmding that it is " obvious" that a significant number of the residents of the two communities must walk (45 NRC at 405) is without record support. It was improper for the Board to draw any conclusion regarding the number of households in the two communities that lack motor vehicles based on the statistics for the parish. Even the conclusion tLt there are any

- households in the two communities that lack motor vehicles is not a permissible inference. - Thus, it was error for the Board to accept Dr. Bullard's unsubstantiated and contradictory testimony regarding pedestrian traffic between the communities and to buttress its fmding with Census figures concerning motor vehicle ownership regarding the parish that permits of no conclusion

_, whatsoever regarding the two communities. Further, there was no testimony that any of the I

members of the two communities were "old, ill or otherwise infirm," much less that any such residents lived in households that were without vehicular transportation and, thus, were necessarily pedestrian.

The Staff's FEIS presented a reasonable discussionof the impacts of the relocation of the road: . the additional .38 mile would be an inconvenience but a minor impact. NEPA's requirements for consideration of impacts in an FEIS is that the discussim ts casonable. The Staff met thow requirements in discussing the impacts of the relocation of the road and the

' Board's conclusioa to the contrary is clearly erroneous.

III, The Board's Conclusion that Impacts on Property Values Must Be Considered in the FEIS is Erroneous. -

1 The Board determined that impacts from the CEC on property values in the neighboring communities of Forest Grove and Center Springs must be considered in the FEIS ard factored into the weighing of the costs and benefits of the facility and the Staff's environmental justice determination. 45 NRC at 411. This conclusion is erroneous for several reasons, First of all, in its earlier ruling on admissibility of contentions, LBP-91-41, the Licensing Board had rejected proposed Contention J.8, which alleged that the constmeticn and operation of the CEC would depress property values, on the basis that it constituted " pure speculation,"

LBP-91-41,34 NRC at 352 (1991). That earlier ruling was currect not only because, as the Board stated in rejecting the contention, proposed Contention J.8 was " pure speculation," but also because it concerned an economic matter not re' _a to an environmental impact. To be recognized under NEPA, economic interests must be environmentally related, i.e., the injury to the economic interest must arise from envirotunental damage, Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CL1-92-2, 35 NRC 47, 56 (1992), There is nothing in the Board's decision in LBP-97-8 or in the record of the proce-ding to support a finding that any diminution in the value of properties proximate to the CEC site would result in any way from environmental impacts associated with the operation of the CEC, See 45 NRC at 406-411.

The fear of property devaluation attributed solely to public and buyer attitude, because of

. location near an NRC licensed activity, is a psychological concern. Babcock and Wilcar Co.

-(Pennsylvania Nuclear Services Operations, Parks Township, PA), LBP-94-12, 39 NRC 215,

218 219(1994)(Granting Request for Hearing), LBP-951,41 NRC 1 (1995)(Initial Decision),

petitionfor review denied, CLI 95-4,41 NRC 248(1995). The Commission has deteiinined that the NRC's administration of the Atomic Energy Act will not include psychological effects.-

Metropolitan Edimi Co. (Three Mile Island Nuclear Station, Unit 1), CLI 82-6,15 NRC 407

. (1982). Further, with respect to NEPA, the Supreme Court has held that the NRC need not consider psychological etfccts. Metropolitan Edimn 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 psychologicalconcerns is in conflict with these holdings and shouki be reversed.

In resolving Contention J.9, the Board has disregarded its earlier ruling on proposed Contention J.8 and has now found that the Staff must consider those " impacts" irJ its -

environmentaljustice determination and factor them into its weighing of the costs and benefits of the facility. As discussed above, an Executive Order cannot prescribe beyond tne statutory requirements on which it is based. As neither the Atomic Energy Act nor NEPA supports the

- consideration of impacts not attributable to the environmental impacts of the facility Executive

' Order 12898 carnot require such a consideration.

Nothing in LBP-97-8 explains the Board's reversal of its earlier ruling rejecting proposed ContentionJ.8. It was not necessary for the Staff to consider property values in its FEIS. Such consideration is not required by NEPA or any other statute and, therefcre, cannot be required by -

Executive Order 12898.

CONCLUSION For the reasons discussed above, the Commission should reverse LBP-97-8 The Staff

- does not belleve that a remand is necessary to resolve the issues on appeal, as these matters, although decided by the Board, were not before the Board as matters raised in admitted contentions or as matters necessary for the full disclosure that NEPA requires.

l l Respectfully submitted, l

-_ A ,x-Richard G. Bachmann  ;

Counsel for NRC Staff f

g,1 A ,

6Hc CW i- Ann P. Hodgdon -

Counsel for NRC Staff ,

l Dated at Rockville, Maryland 4 this 7th day of August,1997

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