ML20209F002
| ML20209F002 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 07/08/1985 |
| From: | Jay Dougherty CONCERNED CITIZENS OF LOUISA COUNTY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20209F008 | List: |
| References | |
| CON-#385-771 OLA-1, NUDOCS 8507120371 | |
| Download: ML20209F002 (9) | |
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- . UNITED STATES OF AMERICA NUCLEAR REGULATORY-COMMISSION Before the Atomic Safety and Licensing Board 7.
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Docke t Nos.
BSCMETED In]the 'Ma tter of.
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50-338 OLA-1 USNRC-
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50-339 OLA-1 VIRGINIA ELECTRIC-AND POWER CO.
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'85 JUL 11 P3 33 (North Anna Power Station,
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Units'l and 2)
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0FFICE OF SECRf.1ARY 00CKETING & SERVICF.'
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BRANCH CONCERNED CITIZENS.OF LOUISA COUNTY'S POST-HEARING BRIEF
-This brie 5, which is accompanied by proposed findings of h
' fact and conclusions of law, addresses issues raised at the
~ evidentiary hearing. held by the Atomic Safety and Licensing Board
-- ("the Board") - on May 21-and 22, 1985.
These papers do.not, however, address all of the issues raised at the hearing.
Spe-
-cifically,. the issues of " sabotage" and " human error" have been.
given only passing mention.
This is. due largely to the f ac t tha t '
d
'these issues were never the subject of specific con te n tion s submitted by the Concerned Citizens of Louisa Coun ty (" Concerned t-Ci tize n s").
Though the Concerned Citizens have contended from the outset that the license amendment sought by Virginia Electric n
and Power (" Licensee") nece ssi ta ted the prepara tion of an en-of the risks vironmental impact statement ("EIS")(in part because the essence of this n
associated with sabotage and human error),
claim concerned the likelihood of and consequences associa ted f
The Board's Order of with 'transporta tion-rela ted accidents.
8507120371 850708 PDR ADOCK 05000338 G
PDR-A
. January 7, 1985, which gran ted the Licensee's and the N.RC S ta f f's motions for partial summary disposition, struck from the conten-tion all reference to transporta tion accidents.
The e f fect of this ruling was to eviscerate the Concerned Citizens' EIS conten-tion.
The Concerned Citizens have not a ttempted to prove tha t the risks of sabotage and human error, standing alone, crea te such significant environmental ef fects that they trigger the EIS requirement of the Na tional Environmental Policy Act ("NEPA") and they do not advance tha t argument here.
The Concerned Citizens remain of the view that the Board's January Order is bottomed on an incorrect in terpreta tion of the applicability of Table S-4, and-they urge the Board to reconsider that ruling for the reasons set out in their pleadings of September 21 and 28, 1984.
In this brief the Concerned citizens assert tha t the NRC l
Staff was required by $ 102(2)(E) of NEPA to evalua te, within the environmental assessment of the Licensee's license amendment a pplica tion, the alternative of constructing and opera ting a dry cask storage facility a t the Surry Power S ta tion.
Further, the S ta f f viola ted this obligation by failing to perform even a cursory review of this alterna tive.
I. The NRC S ta f f was Required by 102(2)(E) of NEPA to Evaluate the Dry Cask Alterna tive.
From the beginning of this proceeding the parties have l
disagreed over whe ther the S ta f f is required by { 102(2)(E) to i
evalua te, within its Environmenta1 Assessmen t of the Licensee's l
l transshipmen t proposal, the dry cask alterna tive.
Indeed, in a brief submitted on April 1, 1983, the Concerned Citizens made
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~ their. argument on -the issue to the Board.
They ask the Board's forgiveness if this. argument seems repetitive - of the brief sub-mitted in 1983..
It is clear tha t,$_lO2(2)(E) of NEPA imposes af firmative analytical requirements upon agencies not only with respect to
" major. Federal actions'significantly affecting the quality of the human environment," but also with respect to " lesser" ac tions tha t.: may not ~ trigger NEPA's EIS' requirement because their envi-ron men tal e f fects ' will not be "significant."l/
This is evident-not only from the' structure of the sta tute --
102( 2 )( E), unlike
$ 102(2)(C),. con tains no language limiting its application to actions with " s'ig n i f ica n t" effects -- but as well from the fac t
' tha t any. o ther interpre ta tion would render 102(2)(E) super-fluous of $ 102(2)(c).
The question, then, is w ha t is the thres-hold that, when crossed, triggers the requirements of 102(2)(E)? ~
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-See, e.g.,
Environmental Defense Fund v. Costle, 657 F.2d 275, 296 (D.C. Cir.1981)("[Section 102(27(E)]. requires the
~developmen t and analysis of alterna tives apart from those usually found in an ' environmental im pac t s ta te men t"),
a f f'g 8 ELR 20786, - 20788 ' ( D.D.C.
1978 )( " t h e requirement of 102(2)(E) is. independent of and broader than the EIS re-quirement of 5.102( 2 ) ( C)( iii)") ; Aertsen v.
Landrieu, 637 F.2d 12, 20 (1st Cir. 1980); Nucleus of Ch1Tago Homeowners v.
Lynn, 524 F.2d-2 2 5, 232 (7th CirT 1975); Na tural Re-Tources Defense Council v.
Callaway, 524 F. 2 d 79, 93 (2d Cir. 1975); Trinity EpiscTpal School Corp. v. Romney, 523 F.2d 88, 93 (2d.Cir. 1975); Environ men tal Defense Fund v.
Corps of Engineers, 492 F.2d 1123, 1135 (5th Cir. 1974TT Hanly v7Kleindiens t, 471 F.2d 823, 834 (2d Cir.1972).
See
.also CTnsumers Power Co. (Big Rock Poin t Nuclear Plant),
AL AB-e J o,. i3 lWC n z, 3TI n.41 (1981).
. The language of 102(2)(E) provides that agencies must:
study, develop, and describe appropria te alterna tives to.
recommended courses of action in any proposal which involves unresolved conflicts concerning al terna tive uses of available resources.
42 U.S.C.
{ 4332(2)(E).
Since "the s ta tu tory language 'might encompass an almost limitless range' of federal action," City of New ~ York v.
Departmen t of Transporta tion, 539 F.
Supp. 1239, 1276
( S. D.N.Y. 19 8 2 ), it seems that virtually any federal action with environ men tal im plica tions is covered by $ 102(2)(E).
According to one authority, the provision applies "whenever an action can be achieved in one or more ways having dif feren t impacts on the e n v i r on m e n t. " 2_/
A district court has held tha t there is no threshold of environmental impact which to serves to trigger $
102(2)(E); rather, it applies to any " major f ede ral a c tion."3,/
This is essentially the position adopted by the Appeal Board, which declared in Lacrosse that 102(2)(E) applies " irrespective of the magnitude of the environmen tal im pac ts in question."4/
In its post-hearing brief the Licensee ad mi ts that the proposed transshipmen t scheme involves a use of resources, but argues tha t such use will be " miniscule".
B rie f a t 8.
But it points to no authority for its implicit argument tha t, not-
-2/
W. Rodgers, Environmental Law $ 7.9 at 795 (1977).
- Accord, Trinity Episcopal School Corp. E Romney, 523 F.2d 8 8, 93 (2d Cir. 1975).
i 3/
City of New Haven v.
Chandler, 446 F.
Supp. 925, 929 (D.
l C onn. 19 7B.
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Dairyland power Coopera tive, (Lacrosse Boiling Wa ter l
Reac tor), LBP-80-2,11 NRC 44, 73 (1980).
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.. withs tanding ' the plain language of $ '102(2)(E), it should be read to apply only to " unresolved conflicts concerning major uses of available resources."
It is clear that the Licensee's transshipmen t proposal im-plicates different uses of resources.
The proposed action will cost from $10 to 20 million and will require extensive commit-ments of personnel, equipment, gasoline, and the like.
It will require the "use" of sta te and federal transpor ta tion corridors in Virginia, as well as considerable planning and coordination
.with sta te and local agencies.
Moreover, as acknowledged by the Licensee's w i tne s s, Mr. Smibh, it will tie up the " resource" represented by the available storage capacity at North Anna. Tr.
a t 259.
But all of this argumen t misses the forest for the trees.
The issue involved in this case is how best to store nuclear-waste.
One option is to shuttle the stuf f around Virginia, if
.not the entire country, based on the Licensee's views as to wha t will save it the most money and inconvenience.
The other option is to place the spent fuel in sta tionary, e ssen tially invulner-able casks at the Surry s ta tion.
If these questions do not involve al te rna tive uses of resources, then what does?
The Concerned Citizens are not arguing that { 102(2)(E) mandates the denial of the Licensee's license amendment applica tion on the grounds tha t the dry cask option is preferable.
They submit only tha t $ -102(2)(E) requires that this alterna tive means of spent fuel management be at least acknowledged in the S ta f f's environ-men tal documen ts.
F; r, City of New York v. Depa rtmen t of Transporta tion,,/ may be 5
the only. federal court case to exa mine the applicability of $
102( 2 )( E) in the con text of spent f uel transporta tion.
In tha t
~
case-the Court of Appeals for the Second Circuit considered a litigant's claim tha t $ lO2(2)(E)'s requirements were triggered by a. Department of Transportation regulation ("HM-164") governing the highway transporta tion of spent fuel.
In essence the court e mbraced the position taken here by the Concerned Citizens:
c Section 102(2)(E) of NEPA obliges agencies to " study, develop, and describe appropria te alternatives to recom-mended courses of action in any proposal which involves unresolved conflicts concerning al te rna tive uses of avail-able re sou rce s."
The Secre ta ry [of Transportation] suggests preliminarily that HM-164 does not even encoun ter this re-i quirement because it does not propose a "use of a " resource" within the meaning of section 10 2 ( 2 ) ( E ).
This Court, how-ever, has not construed section 102(2)( E) narrowly to apply only to agency actions that propose an identifiable use of'a limited resource like park land or f resh water.9
- Instead, we have ruled that federal agencies have a duty under NEPA to study alterna tives to any actions tha t have an impact on the environment, even if the impact is not significant enough to require a full-scale EIS.
HM-164 is an agency action with some impact on the environment.
The rule establishes the manner in which high-ly toxic substances will be moved around the country.
Even apart f rom the risk of a possible acciden t, the permitted transportation will cause some contribution to the amount of low-level ' radia tion on the in tersta te highway system.
Under the standards developed in [past decisions], we conclude tha t HM-164 has aufficlent i m pa c t on the environment to require DOT to consider alterna tives to the action.(cita-tions 'and footnote omitted).
9/
Arguably, HM-164 sa tis fies the literal meaning of j
section 102( 2 )( E ) since the movement of radioactive l
ma terials along highways can be considered a "use" of the surrounding a ir.6_/
5_/
715 F.2d 732 (2d Cir.1983).
6_/
Id. a t 742 ( ci ta tions o m i t ted ).
e
. The Concerned Citizens urges the Board to adopt the Second
. Circui t's au thorita tive in terpre ta tion o f $ 102( 2 )( E)'.
The li-cense _ amendment at issue in this proceeding, like the reg ula tion on review in City of New York, will clearly have "some impact on the environ men t."
'II.
The Staf f has Performed no Analysis of the Dry Cask Alternative As explained above, NEPA { lO2(2)(E) required the S taf f to examine the dry cask storage alterna tive in detail.
Here, how-ever, there is no occasion to argue over the scope or content of the required analysis, because no such analysis has ever been a tte m p ted.
The environmental assessment prepared by the Staff in 1982 con tains no discussion of alterna tives a t all, not to men-tion the alternative of relying on dry cask storage technology at Surry.
And in the Staf f's pre-filed testimony witness Roberts was asked for the S ta f f's view of the dry cask alterna tive.
His response, in pertinent part, was "I cannot give a definitive answer; I could only specula te." f f. Tr. 346, at 21.
Evidently the S ta f f declined to conduct any analysis of alternatives in reliance on its assumption that a review of alterna tives was not required by $ 102(2)(E).
This was more than a tactical error on the S taf f's part.
Indeed, it was contrary to the requirements of the Act.
For this reason the environ men tal assessment must be remanded to the S ta f f f or supple men ta tion regarding dry cask storage.
Al though the S ta f f, a t the Board's urging, moved in to evi-dence an environmental assessment tha t it prepared in April of
1985 concerning the Licensee's application for authority to con-struct and operate the surry dry cask storage f a c i l'i ty, this document is not a substitute for the analysis required by {
10 2 ( 2 )( E ).
This document does contain much analysis of this al te fna tive to transshipment.
But it was prepared in a different proceeding, doubtless by different members of the S ta f f for the benefit of different decision makers.
I t. is fair to assume tha t with respect to virtually any alterna tive proposed by an in te rvenor in a licensing proceeding, there exists some documentary evidence regarding that alternative somewhere within the archives of the NRC.
However, NEPA does not permit the NRC, or any other agency, simply to point to some other document, produced in a different context, as evidence tha t it ha s considered alterna tives.
Rather, the Act requires tha t a discussion of alternatives to a given proposal be included within the environmental assessment of the same, and not some other, proposal.
Only in this way can it be assured that a complete environmental review has been presented to the Staf f of ficials who will pass on the transshipment proposal.
For all we know, opera ting licensing amendments involving transshipment may be reviewed by Staf f of ficials wholly separate from those who review dry cask storage applica tions under 10 C.F.R. Part 72.
By intro-ducing the Surry dry cask e nv iron me n tal assessment into the record in this case, counsel for the S ta f f has provided this Board with informa tion regarding alterna tives, but it has not l
shown tha t the S taf f officials reviewing the transship men t pro-I posal have seen tha t document, or that they have given good faith conside ra tion to the dry cask alterna tive as required by NEPA.
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>, Similarly, the e x tensive testimony given by the Licen'see's wit-nesses may shed light on the comparative merits of the two alter-natives, but it says nothing about whether the Staff has complied with its statutory duties.
For these reasons the Concerned Citizens submit tha t Con-solidated Contention 1 should be resolved by the Board in their favor with respect to the question of the dry cask alterna tive.
Respectfully submitted, A
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Jpes Bf DoghertyQ Counsel for Concerned Citizens of Louisa County 3045 Porter St. NW Washington DC 20008 (202) 362-7158 R
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