ML20079J602

Response Supporting Intervenor 821213 Motion to Clarify & Amend Contentions 7 & 8.Quantification of Environ Impacts Not Practicable Due to Subjective Nature.Certificate of Svc Encl

ML20079J602
Person / Time
Site:	Skagit
Issue date:	12/23/1982
From:	Frantz S LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, PUGET SOUND POWER & LIGHT CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8212280289
Download: ML20079J602 (11)

Text

- -

y

.t 6

UNITED STATES OF AMERICA 00tKETED NUCLEAR REGULATORY COffiISSIONM BEFORE THE ATOMIC SAFETY AND LICENSING, SQARm :40 44 Lw u In the Matter of ) , '% ~U

) .1: ;

PUGET SOUND POWER & LIGHT ) Doc'ket Nos? STN 50-522 COMPANY, et al. ) STN 50-523

)

(Skagit/Hanford Nuclear ) 2 Project, Units 1 and 2) ) December 23, 1982 APPLICANTS' RESPONSE TO INTERVENORS' MOTION TO CLARIFY AND AMEND CERTAIN CONTENTIONS On December 13, 1982, the National Wildlife Federation /

Gregon Environmental Council (NWF/OEC), the Yakima Indian Nation (YIN), the Columbia River Inter-Tribal Fish Commission (CRITFC), and the Coalition for Safe Power (CSP) jointly submitted "Intervenors' Motion To Clarify And Amend Cert.ain Contentions." The Applicants hereby submit their response to this motion.

The motion requests that Contentions 7 and 8 in the Licensing Board's Memorandum and Order of November 2, 1982 be ame.ded to carify that each of these contentions encom-passes the factual bases presented in various environmentally related contentions of the intervenors. In essence, the intervenors are arguing that these factual allegations give ggg rise to three different legal conclusions regarding (1) the act N8 adequacy of the assessment of environmental impacts, (2) the EE

@ results of the cost / benefit balance for S/HNP, and (3) possible oM violation of Indian treaty rights. Since the motion only e5 N" seeks to clarify the legal issues which are raised by the

~E

% e l I

s. %J

l O

{, i factual bases, and not to expand the number of factual issues to be heard in the* hearings, the Applicants have no objection to the motion.~/

The motion would also amend Contentions 7 and 8 to direct the intervenors to designate one of the intervenors as lead party for each of the factual bases asserted whenever the bases presented by the intervenors overlap.

The Applicants appreciate this offer by the intervenors and urge the Licensing Board to adopt it. The Applicants also invite the intervenors to make such a designation early to avoid possible duplication of effort in matters ruch as discovery.

Finally, the Applicants believe that one additional comment is warranted with respect to the proposed amend-ment to Contention 8.

Amended Contention 8 generally alleges that the Applicants have used an inaccurately low estimate of the environmental cost of S/HNP in the cost / benefit balance. The intervenors imply that environ-mental costs should be quantified and perhaps converted into a dollar value. Although the Applicants agree that that environmental impacts should be taken into account

• / According to the Commission's rules of practice, the granting of a motion to amend contentons must be predi-cated S 2.714upon (a) a balancing of the five factors of 10 CFR if the motion is filed after fifteen days prior to the holding of the special prehearing confer-ence.

See 10 CFR S 2.714(b). Although the intervenors' motion did not contain the requisite consideration of these five factors, the Applicants submit that such a balancing would be favorable to the intervenors given the nature of the proposed amendment.

)

in the cost / benefit balance, the National Environmental Policy Act (NEPA), 42 U.S.C. S 4321, et seq., does not

~

require that every environmental impact be quantified or

• /

converted into a dollar value.~

Nothing in the lar.;uage of NEPA requires that environ-4 mental costs be assigned a dollar value or otherwise quantified.

Section 102 (2) (B) of NEPA does state that

,i federal agencies shall " insure that presently unquantified t environmental amenities and values may be given appropriate I consideration in decisionmaking along with economic and $

technical considerations." However, the courts have not interpreted this section as requiring an agency to place un economic price on environmental impacts or to convert environmental impacts into mathematical terms for insertion into a cost / benefit balance. Robinson v. Knebel, 550 F.2d ~

422, 426 (8th Cir. 1977); Sierra Club v. Stamm, 507 F.2d 788, 794 (10th Cir. 1974); Environmental Defense Fund, Inc.

1 v. Corps. of Engineers, 492 F.2d 1123, 1133 (5th Cir. 1974);

i Environmental Defense Fund, Inc. v. Costle, 439 F.Supp. 980, 993 (E.D.N.Y. 1977); Environmental Defense Fund v.

! Tennessee Valley Authority, 371 F.Supp. 1004, 1013 (E.D. Tenn.

1973), aff'd, 492 F.2d 466 (6th Cir. 1974). Moreover, the fact that an environmental impact statement (EIS) does not contain

*/

The intervenors suggest that that Pacific Northwest

Electric Power and Conservation Planning Council will i develop a methodology to calculate quantifiable environ- l mental costs of generating resources such as S/HNP.

i However, it is not clear that this methodology will i be either applicable or useful to a quantification of I the impacts of S/HNP for use in a cost / benefit balance  !

under NEPA.

s a cost / benefit analysis with quantified environmental impacts does not render it invalid. Cady v. Morton, 527 F.2d 786, 757 (9th Cir. 1975); Sierra Club v. Morton, 510 F.2d 813, 827 (5th Cir. 1975); Trout Unlimited v. Morton, 509 F.2d 1276, 1286

'9th Cir. 1974); Sierra Club v. Lynn, 502 F.2d 43, 61 (5th Cir. 1974). All that is required by NEPA is that sufficient consideration of environmental impacts be ,

presented in an EIS to enable the agency and the public to conduct a reasoned evaluation and weighing of the benefits and costs of a project.

Robinson v. Knebel, supra; CadL

v. Morton, supra; Sierra Club v. Morton, supra; Trout Unlimited v. Morton, supra; EDF v. Corps. of Engineers, supra.

The reasoning behind the court's interpretation of NEPA is not difficult to discern. Placing a value upon environ-mental impacts is often dependent upon subjective opinion and, in the final analysis, any decision whether or not to pro-ceed with a project "is not strictly a methematical determina-tion." Trout Unlimited v. Morton, supra; EDF v. Costle, supra; see also EDF v. Corps. of Engineers, supra. In short, s quantification of environmental impacts may well be nothing  !

j

• /

~

This is not to suggest that an agency is prohibited from

quantifying balance. The environmental impacts in its cost / benefit courts have reco quantification in some cases. gnized the value of Columbia Basin Land Protection Association v. Schlesinger, 643 F.2d 585, 594 (9th Cir. 1981); Robinson v. Knebel, supra; Sierra Club

v. Morton, supra; State of Alabama ex rel. Daxley v.

Corps of Engineers, 411 F.Supp.1261, 1269 (N.D. Ala.

1976); EDF v. TVA, supra.

t i

r than an academic exercise or an exercise in futility wl.Ach does not materially contribute to the NEPA process.

The courts are not the only bodies which have inter-preted NEPA thusly. For example, the regulations of the Council on Environmental Quality state as follows:

To assess the adequacy of compliance with sec.102 (2) (B) of the Act the

[ environmental impact] statement shall, when a cost-benefit analysis is prepared, discuss the relationship between the anlaysis and any analyses of unquantified environmental impacts, values, and a!.tenities. For purposes of complying wich the Act, the weighing of the merits and drawbacks of the various alternatives need not be dis-played in a monetary cost-benefit analysis and should not be when there are im tions.portant qualitative considera-40 CFR S 1502.23. Similarly, the Commission's own regulations state that

[t]he cost-benefit analysis shall, to the fullest extent practicable, quantify the various factors considered.

To the extent that such factors cannot be quantified, they shall be discussed in qualitative terms.

10 CPR S 51.20(b). As the Appeal Board has noted, this does not require that "all costs or benefits must, or can, be quantified," and a cost / benefit analysis is not deficient if it does not attempt to quantify environmental impacts which are amenable only to qualitative or broadly subjectivo social assessment. Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 855-56 (1973).

Other opinions by the Appeal Board are in the same vein.

l

\

1* For example, in Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 350-51 (1973), rev'd sub nom. on other grounds Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976),

rev'd sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), the following discussion appears:

It is clear the staff, in its Final in thisEnvironmental case that both Statement, and the Board, in its deci-sion, have balanced the costs of the pro-posed plant against its benefits. In doing so, the Board found that it was "not possible" to quantify all costs and

. benefits, and to reach an arithmetical balance, since "more often than not the quantifications are so speculative and non-objective as to be worse than useless." The Board then applied its rationale to particular aspects of the environmental review. For example, it found serious difficulties with inter-venors' attempts to quantify the value of the' flora and fauna to be disturbed by construction, concluding that their

"[is]

method whollyofinsupportable."

evaluation and calculation .

But it considered these non quantifiable factors in reaching its final conclusion that the " benefits outweigh the costs."

Intervenors have pointed to nothing which would indicate that costs which were considered only qualitatively could have been adequately quantified, or which would indicate that the Licens-ing Board did not take the nonquantifi- 1 able' factors into account. '

exception IV.B. is rejected. Accordingly,  ;

(Footnotes omitted). And in Vermont Yankee Huclear Power Corp.

1 (Vermont Yankee Nuclear Power Station), ALAB-179, 7 AEC 159, 172 (1974),

the Appeal Board agreed with the NRDC's general argument that environmental costs and benefits should be quantified in monetary terms to the fullest extent practicable, l

. but nevertheless held:

We have concluded that the placing of a monetary value on the benefit of electricity is not mandated either by NEPA or by Commission regulations, and that attempting such a task serves no useful purpose. If anything, the appearance of precision resulting from such an exercise tends to divert scrutiny from the difficult judgmental decisions involved in performing an accurate cost-benefit analysis and, specifically, in determir.ing whether a genuine need for the facility exists.

Accordingly, we are vacating the modifi-cation concerning the dollar value of electricity made by the Board to the cost-benefit analysis.

See also Illinois Power Co. (Clinton Power Station, Unit Nos. 1 and 2), ALAB-340, 4 NRC 27, 46-47 (1976).

In summary, UEPA does not require that all environmental impacts be quantified. If quantification is not practicable or if quantification would not be meaningful due to the subjective nature of such quantification, NEPA only requires a qualitative balancing of the costs and benefits of the project.

Thus, to the extent that the intervenors may be arguing that the environmental impacts of S/HNP must be quantified, they bear a heavy burden to demonstrate that such quantification is both practicable and meaningful.

In regard to quantification, the Applicants see several problems which, in total, appear to be insurmountable.

For example, with respect to the intervenors' contentions that construction and operation of S/HNP will adversely affect J i

various species of wildlife, the following questions immediately arise: i Is it realistically possible to provide i a precise estimate of the number of individuals i within each species which will be affected by S/HNP? I Is it meaningful to place a monetary .

value on the life of one individual of a species, [

j especially if the species is not traded as a  !

commodity in the market? r' Should cublethal effects be monetized and, if so, how is thic accomplished? i What value, if any, should be placed l

upon the loss of individuals which are not t mature adults; e.g., ichthyoplankton?

What value, if any, should be placed upon temporary effects? I' Should the loss of individuals within  !

~

i a species be assigned any monetary value if I the species as a whole will not be adversely ,

affected in the area around S/HNP?

The Applicants submit that, even if it proves possible to  !

answer some of these questions, it is unreasonable to expect i that all of these questions can be answered with respect to  !

every species. i Consequently, the Applicants recommend that l

the parties and the Board abandon any esoteric attempt to place a value upon all potential environmental impacts of i S/HNP and instead concentrate upon determining the nature

- _ _ . . . _ . . ._..,_._._-_.m.. . . . _ , _ . . . . . . . _ . - _ . _ _ _ , _ . . . . . _ _ . . , , . . _ . _ _ . . . . _ _ _ , , - . . . . . . . ~ . _-m,,-

and extent of the impacts for inclusion in a qualitative t cost / benefit analysis. NEPA requires no more. l Respectfully submitted, Of Counsel: k ./l W Steven P. Frantz, EsqJ F.

Theodore Thomsen, Esq. David G. Powell, Es Perkins, Coie, Stone, Olsen Lowenstein, Newman,q.Reis

& Williams & Axelrad 1025 Connecticut Avenue, N.W.

1900 Washington Building Washington, D.C. 20036 1325 4th Avenue Twenty First Flcor Telephone:

Seattle, WA 98101 202-862-0400 -

Telephona: 206-682-8770

ce#

t

. UNITED STATES OF AMERICA  %.e

~

NUCLEAR RE3ULATORY COMMISSION g N ,

4 BEFORE THE ATOMIC SAFETY AND LICENSIN I In the Matter of )

.)

h PUGET SOUND POWER & LIGHT )

COMPANY, et al. Docket Nos. STN 50-522

) STN 50-523

)

(Skagit/Hanford Nuclear )

1 Project, Units 1 and 2) ) December 23, 1982 CERTIFICATE OF SERVICE I hereby certify that copies of Applicants' Response to Intervenors' Motion to Clarify and Amend Certain Contentions, datad December 23, 1982, have been served on the following i Jndividuals and entities by deposit in the United States mail, tirst class, postage prepaid, on this 23rd day of December, 1982.

Secretary of the Commission Docketing and Service Branch Christine N. Kohl l.

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D. C. 20555 Appeal Board U.S. Nuclear Regulatory Commission '

John F. Wolf, Esq.- Washington, D. C. 20555 Chairman Administrative Judge Dr. Reginald L. Gotchy Atomic Safete $nd Licensing Board 3409 Shepherd 6creet Atomic Safety and Licensing Appeal Board Chevy Chase, Maryland 20015 U.S. Nuclear Regulatory Commission Dr. Frank F. Hooper Washington, D. C. 20555 Administrative Judge Lee Scott Dewey Atomic Safety and Licensing Board School of Natural Resources Counsel for the NRC Staff University of Michigan Office of the Executive Legal i

Ann Arbor, Michigan 48190 Director U.S. Nuclear Regulatory Commission l

Gustave A. Linenberger Washington, D. C. 20555

< l Administrative Judge Atomic Safety and Licensing Board Washington Evaluation Energy Facility Site Council U.S. Nuclear Regulatory Commission Nicholas D. Lewis, Chairman Washington, D. C. 20555 Mail Stop PY-ll Stephen F. Eilperin Olympia, Washington 98504 Chairman Atomic Safety and Licensing Kevin M. Ryan, Esq.

Appeal Board Washington Assistant Attorney General U.S. Nuclear Regulatory Commission Temple of Justice Washington, D. C. 20555 4

Olympia, Washington 98504 l

_ .._ _.. . . . . - - _ _ . - , _ - . , _ . , , . , _ . _ _.~..~..._-..m,_...._. . _ _ _ _ - , . . _.

y

\

Frank W. Ostrander, Jr., Esq. Ralph Cavanagh, Esq.

Oregon Assistant Attorney General 500 Pacific Building Natural 25 KearnyResources Street Defense Council 520 S. W. Yamhill San Francisco, California 94108 Portland, Oregon 97204 Bill Sebero, Chairman Terence L. Thatcher, Esq.

Benton County Commissioner NWF and OEC P. O.. Box 470 708 Dekum Building Prosser, Washington 99350 519 S. W. Third Avenue Portland, Oregon 97204 F. Theodore Thomsen Mr. Robert C. Lothrop Perkins, Cole, Stone, Olsen & Attorney for Columbia River Williams 1900 Washington Building Inter-Tribal Fish Commission

, Seattle, Washington 98101 Suite 320 8383 h. E. Sandy Blvd.

James W. Durham, Esq. Portland, Oregon 97220 Senior Vice President James B. Hovis General Counsel and Secretary Yakima Indian Nation Portland General Electric Company c/o Hovis, Cockrill & Roy 121 S. W. Salmon Street 316 North Third Street Portland, Oregon 97204 P. O. Box 487 Warren G. Hastings, Esq. Yakima, Washington 98907 Associate Corporate Counsel Portland General Electric Company Canadian Consulate General 121 S. W. Salmon Street Donald Martens, Consul Portland, Oregon 97204 412 Plaza 600 6th and Stewart Street Richard D. Bach, Esq. Seattle, Washington 98101 Stoel, Rives, Boley, Fraser & Wyse 2300 Georgia Pacific Building 900 S. W. Fifth Avenue Portland, Oregon 97204 Nina Bell, Staff Intervenor Coalition for Safe Power Suite 527, Governor Building 408 S. W. Second Avenue "

Portland, Oregon 97204 A0vnh

.