ML19210E876
| ML19210E876 | |
| Person / Time | |
|---|---|
| Site: | 05000599, 05000600 |
| Issue date: | 11/26/1979 |
| From: | Kodner J CITIZENS AGAINST NUCLEAR POWER, KODNER, J.L. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7912130128 | |
| Download: ML19210E876 (6) | |
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. UNIIED STA!I3 CF M ZRICA , ,
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NUCLIAR ?.ZGULAT03Y COL ISSION CI
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John F. Wolf, Chai'r: an Dr. Robert L. Holton Glenn 0. Eright In the Matter of )
) Docket No.'s S50-599 C07P.09.'IALTH EDISON COMPANY, ET. AL. ) S50-600 (Carroll County Site) )
BRIEF p SUPPCRT 02 STRfDING _OF EDWARD G0GOL CID REJECTED CONTENTIONS 2ACXGROU:iD Cn October 10, 1979 this Board entered a "Eenorandun of Special Prehearing Conference and Order
- relative to the Special Prehearing Conferen e held on Septe-ber 19, 1979 in the above captioned case. This Board tentatively acceptad certain contentions of the intervenors for the adversary proceadings to take place to* determine whether early site suitability approval will be given to the Applicant's proposed site, his Board further " held in abeyance pending tha publication of the Ihree Mile Island NRC Staff report on further Co=ission action", Fetitioners' Gogol, Runyon and Citicens Against Nuclear Power (herein-af ter "CMTP") contention No.15, relative to the nonexistence of a federally approved evacuation plan for the Carroll County area and the likelihood that no suitable evacuation plan for the area could be found.
In its Order, this Board ruled that Petitioner Gogol could not be a party to this proceeding because of lack of star. ding. Be Board also rejected as
...trenature .apd inappropriats for the earfy _ site review C%iP contentions No.'s 1 - 14 These contentions are set forth .in -the CA'i? t . ended Petition for Leave to -Ints- ene, which i s incorpora_ted by reference herein. These contentions 27 be su .-aricH '-v- y bri? fly as folFovs : - ... . . .
- 1) Inaccuracies of Aeplicants' projected Esed for power; .. .
- 2) (a) Availab4.15ty of alternative sources of ener g; -
(b) Depletion of _uraniun. supply; .
- 3) Financial qualifications of Applicants;
. 4) Invalidity of cost-benefit analysis based upon 40-year operatinz life; ~
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- 5) Finmh1 hardship on ratepsyers:
- 6) labor tnd esnital offici ency of alternstive sources of energy:
- 7) t znt of spant fusi to be storid at site ard for how long:
- 8) Possibility of site beconing pernanent dunp for spent fuelt
- 9) Possibility of site beconing a pern2nent low and internediate level ridiosctivs vsste dumps
- 10) Failure of Applicants to indicate how deco .nissioning the plant would occur
- 11) Invalidity of cost-benefit analysis based upon unknown and uncertsin cost of vaste disposal ard deco:.nissioning:
- 12) Ability of A plicsnts to obtain fuels
- 13) Health consequences of licensing nucletr power plant:
- 14) Inadequacy of insursnee to be obtained by Aeolicants in light of the Price-Anderson Act.
AR3UME'IT -- PETITIONZR GOGOL WAS IP ROPERLY REFUSED PARTICIPATION FOR LACK OF STANDING. Petitioner Gogol was presumably refused participstion from this proceeding due to his zeozraphical proxicity to the proposed site, a proximately 133 niles esst thereof. This was the principal reason advsneed by Applicants for his dismissal - lack of starding. Applicsnts conterded that Fr. Gogol resides outside the foreseeable cone of interest to be protected (currently a 40 mile proxi:iity to the site). This conclusion is invalid for several reasons. In the event of a teltdown or other nuclear disaster, airborne radioactivity could be transported well over 133 miles from the stricken facility by wind. Releases from a nuclear power plant do not simply vanish at an imaginary barrier 40 miles away from the site. Finally, the Kemeny Comnission and a NRC Commissioner both admit the substantial chances of the occurence of another nuclear accident sinilar to or even worse than Three Mile Island within the next twenty yesrs. For these ressons, it is sub-itted that Petitioner Gogol has standing to participate (or be consolidated with.CA'IP and J1ces Runyon) in thess proceedings. AR7oM NT 1- - NIPA RE;UIRE3.CONEDERATION.0F.TRI- REJECT 3D CC:ITI:iTIO:13
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Contentions i, 2, 4, - ;-7, 8,4, ~0, il and 13 are issues which must be
-considerM at 'sohiltire in the Carroll County proceedings pursdant to the -
Nstional Environmental. Po,licy .Act_ (NEPA), 42 ;USC 4321 et. sec. The ststute ~"
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provides that "all agencies of the Federal Government shall... (E) include in - every-reco =endation or reportton preposals- for hgislation ard other m.'or Neral actions. significantly:affacting the quality of the human env'ron ent, a._detailad statenent by the responsible official on -- (i) the environmental
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inpact of the proposed action, (ii) any adverse environnental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to 000OfdOhj_. 1543 335 O"W'h- D
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-Me . g emy w s em. mWh e ep p. we.Oh@ e e e @ "
- the proc 33-d action, (iv) the relationship between local short-ter= use of man's en~ironmnt snd the maintensnee and enhancement of long-ter= productivity, and (v) any irreversible and irretrievsble concitments of resources which would be involved in the proposad action should it be inplenented..." (enph2 sis supplied). 42 USC L332 In its regulations, the Nuclear Regulatory Comnission (NP.C) sets forth setions which require ! EPA errriron= ental impact statements. 10 CFR 51 5 (a)
Esrly site review is not specifically included in the Section 51.5 (a) list of activities. However, a EPA environmental impact report is mandsted by the statute and the regulations because an early site review is "a eajor Comnission action", "which significantly sffects the quality of the hunan environment." 10 CFR 51.5 (a)(10); 42 USC 4332. This conclusion is amply supported by existing esse law interpreting IEPA. In Scientists' Institute for Public In#orr_stion, Inc., v. A.E.C., 481 F2d 1079 (D.C. Cir., 1973), plaintiffs brought an action for declaratory relief that the AEC was required to issue a NEPA environmental i=cact state-nent for its Liquid Metal Fast 3reeder Reactor Program (LM733). The AEC's position was that a ! EPA statement would not be required for the development program but rather for individual fast breeder facilities. The AEC further contended that even if such a statement was required for the program, it would not be neaningful or even necessary until the program had developed further. Lc Appellate Court held that a ! EPA environ-ental inpact statement was indeed equired at the infancy of the program:
"The Commission takes an unnecessarily crabbed approach to ! EPA in assuning that the impact statement process was designed only for particular facilities rather than for analysis of the overall effects of the broad agency programs. Indeed, quite the contrary is true. Irriividual actions that are related either geographically or as logical parts in a chain of cohte= plated actions may-be more appropriately evaluated ih a single, -
program statement." 481 F2d at 1087. The Court then held that "the program constitutes 'najor federal action' within the meaning of the statute." E. at 1083.
"Thus there is ' Federal action' within the meaning of the statute not only when an agency proposes to build a facility itself, but also whenever an agency nakes a decision which permits action by other parties which will .
affect the quality of the environment. NEPA's impact statement procedure hss been held trapply where a federal agency approves a lease of land to privste parties, grsnts licenses and permits to privste psrties, or
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approves and" funds' state highwsy projects. '(citations it.d- footnotes omitised) =
~ ; In each of-these iv. stances the.-federal agency took action affecting ths -
environsent in the sense that the agency nade a decision which permitt.ed ._ ~ ~. scr.e- other. marty .ntvate or;.governcental.E_to_ts'ce..actiod.. affeetintthe__ _ _ environnant. Ihe cow ssion does.pr*cisely the s2 e thing her.e by-
. . . . develocing a. technaloay which'.will. permit..ntility co:-eanies.-toutaka action affecting the environment..hy luilding.I2232_ power.plsntst. D veloem nt f . _ .
. the technoloev serves as much to sffect Ethe environnent 23 d cas a, Comission 7 decisien granting s construction permit for a specific plant. Developr.ent' of' the technology it a necessxry procondition of construction of any -
plants." (erphasis supplied) 1543 336 N017BMg.. . . .- . _ . . . _ _. __
. 4 The anslorf of the Appellste Court's decision to the earl'f site sale:tia..
nroceadinz is s parent. Comnission (or ASL3) approv11 of the aoproprin ensaa of a site serves ss r:uch to affect the environcent as does a Commission deciaton to er2nt a permit to construct a specific clant. Le site selection proces : la a logical p2rt of the chain of contenplated actions herain. Approv11 of a site is a necessary preconditian of construction of a nuclesr power plant. Courts hsv3 found major federal sction where the proposed activity would "t9.p the scale" towards an activity which would clearly affect the environ- .e nt . See Nstural Resou ces Defensa Council v. United States Nuclear Recul tor - Co:- .ission 539 F2d 624 (2nd. Cir. ,1973, cert, granted, 430 US 9-+4 (1977), vacated and reminded to consider question of mootness, 434 US 1030 (1973)), (interim NRC licensing of use of plutonium in light water reactors and interin licensing of relsted nuclear fuel recycle activities prior to completion of generic environ . ental impact statement on uranium and plutoniun nixed oxida fuel).
"This is not a case where the proposed activity has independent utility, or where the proposad interin act4.vity is "substantially independent" of the issue of wide-scale use. Rather, the interim activity is clearly tied to the anticipsted wide scale use and would co . nit substantial resources to the nixed oxide fuel technology. Here the activity which will be permitted involves construction of nuclear separstion and reprocessing facil4. ties, conversion of light water reactors to use of mixed oxide fuel, and the implementation of " interim" s2feguards for the transportation of a deadly and highly radiotoxic nuclear material. Each of these steps will tip the scale towsrds a favorable final decision on wide-scale use. Fach of these steps will move the nation towards the use of a hazardous nuclesr fuel the imolications of which are not fully understood. We accordingly conclude that the order below constitutes major federal action which hss not been accompanied by an adequate ! EPA analysis."
539 F2d at 8%. See also Scientists' Institute, suora, 481 F2d at 1093-94 ("by the time commercial feasibility of the technology is conclusively demon-strsted, ani*the effects of application of the technology certain, the purposes of ! EPA will already have been thwarted. Substantial investments will have been rzde in development of the technology and options will have been precluded without consideration of environmental factors.") Once again, analogies abound between these rules and the instant situation. If Apolicants procead with the site suitability proceeding, they will be diverting manhours and capital.away from possible alternatives, such as coal and solar energy. If the Carroll County site is approved, the sesle will be tipped towards construction.of ~a nuclear- facilityp-! EPA requires -that-environmental factors ', be considerad befor+-options ara precluded. by the Applicants' and Commission's actions harein. N - ,- - T T Finally, the case of-Gam v;-Common.realth' 7d4 con"Co ciny-356 F.-Supp.- 8Cm (N.D.111. , ic72) is rirticulably worthf of note. ~ In ' thst case,' plaintiff '
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landowners sought injunct.ive relikf against deferdant Co: monwealth Edison Co'. from acquiring certain property for its proloossd LaSalle' County nuclear plant-prior to thi AFC environnental' analysis. - The District Court ruled against .. .. the-ph4 ntiffs,_ hcl:iing that there had been no federal ictio t by the AEC,. as it had done no more than receive Edison's applicstion for .a construction permit in that case. However, the Court did set forth what would constitute federal di -under ! EPA:
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"Ju Cwrt notes than in h Pact, suora, the casa upon which plaintiffs princ* pally rely, and in the other essas considered uhich h2ve found federal action present, the cr- .on denoninstor v2s the factor of location accroval_
bv sn tunev of the f-+ral govern ent. Ihus, it appears that the AIC's alleged failure to prepara an environment 11 impact statement prior to an applicant's land acquisition cannot constitute federsl sction absent either orior federal action (anountinz to location aceroval) or a clear statutory duty so to act." (emphasis supplied) 356 F. Supp. at 85
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The previously cited authorities elesrly demonstrste thst an early site suitability proceeding is a major Federal (Co .nission) action as warrants apolicability of : EPA. Of the ten rojected : EPA-relsted contentions, that one relative to the need for power most urgently warrants consideration. " ':Ised for power' is a shorthand expression for the ' benefit' side of the cost benefit balance which ' EPA mandates for a proceeding considering the licensing of a nuclear rower plant. A nuclear plant's principal ' benefit' is of course the electric power it generates. Hence, absent sone 'n=ed for cover', justifiestion for building a facility is eroblematical." (enohssis sucplied) Duke Power Co. (Catawba Nuclear Station 7 Units 1 and 2), ALAN 355, 4 !aC 397, 405 (10/29/76). The nead for building a nuclear facility must be the threshhold issue for a licensing board to tackle. Way go through the bother of all other actions ralstive to appropriateness of the site, safety considerations, etc., if the plant is not needed? Further, the Commission's own regulstions rel2tive to the site selection process marriate consideration of this issue. 10 CFR 2.101 (a-1)(1) fequires information as to the range of postulated facility design and overation carameters. Under 10 CFR 2.603, the applicant =ust describe its long range plans for ultimate develoceent of -the site. The preliminary safety analysis report must analyze and evaluate major structures, systems and components of the facility which bear significantly on the acceptability of the site, assuming that the facility will be operated at the ultimate oower level contemulstad h the acclicant. 10 CFR 50.34 (a)(1). How can operstion parameters, extent of ultimate site development, or ultimate power levels be responsibly computed if it is not known how much power will need to be generated? The answer is they cannot; hence any atte= pts at comoliance with 10 CFR Sections 2.101 (a-1)(1), 2.603, arri 50 34(a)(1) are invalid unless the need for power to be generated by the proposed facility is first calculated. CONCLUSION - -
- . IjPetit".oner Edward Gogol possessefst'andi~nTaB should' ~ceJalIcheT to' -
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pa'rticipate-(or be consolidated wi th CA:!P and James -?.unyon) in these proceedings. .-
- EPA requires full. consideration at the esrly site review stags of rejected
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contentions.1,' 2,% $3X9_, .10,_11, and 13. -ftitticE211._YuclearJRegulatory 7 - , iCornission regulations ruuire a.shc.fing of a reed for.the pc::e:i to be .;;enerated __
.,_by the proposed fscility 3r.d. calculation _o'_the , extent,of.the demand. ~For 'these '
reasons, Interienor-Petfti6ner'CA:~P' respectfully recuests that these contentions-- - be reinstated. ' T ~ ~ '
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.A.
M y _tizens Against !!uelcar Power, Inc., J2:.es Runyon Edward Gogol by their attorney Jan L. Kodner 230 'd. Monroe, Suite 2026 Cnicago E., 40506 (312/732-9466) I
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