.)4 / 9 [' N

'' N(pe < G ili'\!i ', , N1 3,f A'

~'

; Dor;q'

_

b f .'UNITED STATES OF AMERICA

()p / o &g

NUCLFAR REGULATCRY COMMISSION - -

-Cj %,

"tk'y_

S '

/BEFORE THS ATCMTC SAFETY AND LICENSING BOARD

#g:sIN THE MATTER OF ~

Docket No. 50-155 :CONSUMERS PCUER CCMPANY )(Big Rock Nuclear )Power Plant) )

.. -

BRIEF OF JOHN LEITHAUSER IN SUPPORT OF LICENSING BOARD; 3

FINDING THAT SEC. 102 (2)(C) (42 U.S.C. 4332(C)) IS J 3 ~

APPLICABLE TO THE REQUEST OF CONSUNERS PO!ER COMPANYFOR A LICENSING AMENDMEi;T TO INCREAGE THE DENJITY OFSPENT FUEL STCRED GN GITE. AND INCREASE THE CAPACITY OFTHE SPENT FUEL POOL FROM 103 TO 441 SPENT FUEL __ RODS.

Intervenor Leithauser restates as if incorporated herein,

#Lr Brief en the Need for Power Issue (docketed 3-17-80.)Aan it is declared that a person shall not be deprived of his

preterty v.ithout "due process of law" it means such an exercise of

the powers of government as the settled maxims of laws permit and

sanction, under such safeguards as these maxims prescribe for the

class of cases to which the one in question belongs.

It seems clear that the question before the Appeals Board today

is essentially one of statutory interpretation. Is the' NationalEnvironmental Policy Act applicable in the instant case.

In epite of the crabbed and dichotomous interpretation given

by the applicant and the staff in their repective briefs, the cor-

rect view of the National Environmental Policy Act is far more in-

clusive. I am sure that the Appeals Board need not be reminded

that "a statute must be constuuad as a whole and a doubtful provi-

sion (which is not here the case) must be ra d in ec mection withother pertinent provisions of the stn' :te to give the doubtful

provision meaning consistent with the general purpose to be accom-

lished." '

The purpose of the National Environmental Policy Act is found

_in. 42 U .S .C . 4321. In part it Y.. declare (s) a national policy

gf8012 3"

-.

- .. .

Y'$-

'-2 io'd ' ~ ' " Ob

which will encourage productive and enjoyable harmony between manand his environment to promote efforts which will prevent or

eliminate damage to the environment and biosphere and stimulate thehealth and welfare of man..."(emphasis mine)

A brief review of Sec.102 (2)(C) would perhaps here be on-

lighteninE.

Sec.102 states: The Congress authorizes and directs that, to

the fullest oxtent possibles (2) all agencies of the federal

government shall - (C) include in every renort on_pronocals for ...

maior federal netions sicnificantly affecting the nuclity of the

human environment, a detailed statement by the responsible officialon:

(i) the-environmental impact of the proposed actions(ii) any adverse environmental effects which cannot be

avoided should the proposal be implementads(iii) alternatives to the pronosed action (emphasis mine):(iv) the relationship between local short-term uses of man's

environment and maintenance and anhancement of long-term productivity, ands

(v) any irreversible and irretrievable commitments of re-

sources which would be involved in the proposed actionshould it be implemented. (Emphasis mine)

The sweep of N.E.P. A. , declared the court in Calvert Cliffs

Coordinating Committee, Inc. v U.S. Atomic Energy Commission(1971) 449 Fi i 1109,17 h.L.E. Fed 1), "Is extraordinarily broad,compelling consideration of any and all types of environmental

impact of federal action. with N.E.F.A. mandating a case-by-case.

balancing judgement on the part of federal agencies so that in

each individual case the particular economic and technical benefits

of planned action must be assessed and then weighed against theenvironmental costs, and the alternatives must be considered which

would affect the balance of values . . . to insure that, the optimallybeneficial action is fk 11y taken."%

Furthermore, "the environmental values must'be considered at

every distinctive and comprehensive stage of an agency's process,"b!-and in any field of activity which "may affect the environment..."5/

The court in Committee to stop route 7 y Volpe ((1972 D.C.Donn.) 346 F. Supp. 731) pointed out that "the whole point of

.

.

- . . .

'D } ' ' b ,

'

~3- .

"

N.E.P.A. In that certain careful considerations ... are to bo *c16hedbeforo federal deciciencaking occured ..." Federal decicien=akinccubject to N.E.P.A. occurc "then nn agency (wac) in in the processof exercisinc its discretion between two or coro alternatives opento it under the controlling law" (Octty 011 Co. (Eastern Cporations)v Ruckerchaus (1972 D.C. Del.) 342 F. Supp. 2006 409 U.S.1125).

Rostated unequivocally in Calvert Cliffc. "The procedural dutico,

the duties to give full consideration to environmental protection,

are subject to a ... ctrict standard of compliance ... By nor the

applicable principle cheuld be absolutely clonr. N.E.P.A. requirco

that an acency cust - to the fullect extent poccible under its other

statutory obligations - conaldor alternatives to its actions which

would reduce environmental damage ... a full exercico of cubstantive

diacrotion is required at every important, approprinto and non-dupli-cativo stage of an agency's proceedings."

It is by no means necoccary for tho Licensing Board to rely onN.E.P.A. 's applienbility to any and all exercicoc of dicerotion which

nay affect the environment. For the courta have been anything but

anbiguous in defining "a nnjor fodoral action cignificantly affecting

the quality of the environ =ent."

An initial reference to the Council on &.vironmental Quality

cuido11nen, in extronely clarifying. In 5-111-b. the C.E.Q. stateci"In concidering what conctituten major action significantly affectinc

the environment no;cncioc chould bear in mind that the offect of cany

federn1 decisions about a project or conplex of projects can be indi-

vidually limited but cunulatively considernble." The C.E.Q. hno ctatedfurther in sec. II of its guidelinen that dec.102 (2)(C). "should

be applied to further =njor federal actions having a cignificant

effect on the environment even though they crice from projects or

progracc initiated prior to enactment of the Act on January 1. 1970.

Where it is not practicable to renoccan the bacic courco of notien,

it is still important that further incrocental cajor actionc be

chaped no as to minimizo adverso environmental concequences notfully cynluated ct the outset of the project or procran."

In Environmental Defenco Fund v Tonneocco Valley Authority

((1972 D.C. Tenn.) 339 F. Supp. 806, 468 P2d 1164) the court stated

.

. . .

.

-4-

that it was clear that the environmental impact .tements are required

for ongoing federal projects initiated prior to such date (Jan.1,

1970) . .. whether or not they represented simply the last phase ofan integrated operation most of which was completed before that date."

Thus it is clear "that the fact that a project is ongoing atthe time of N.E.P.A.'s effective date will have little effect on theobligation to comply with the mandates of 102 (2)(C)."b! In Leev Resor ((1972 D.C. Fla.) 348 F. Supp. 389), the court defined anongoine project begun before enactment of N.E.P.A. "as one which hasa definite termination date which is known when the project commences".The court juxtaposed this with a continuine project begun before theenactment of N.E.P.A. which is, stated the court, a project "whichhas no definite termination date but is intend to continue indefinitely."

"It has been stated that an ongoing project is subject to therequirements of N.E.P.A. until the project has reached such a stateof completion at which the cost of abandoning or altering the pro-posed project would clearly outweigh ( the benefits which could flow

from compliance with N.EiP.A.*2/ Or stated another way, it is only

when the benefits drived from an ongoing project outweigh the costsof its continued operation that it should meet with approval at thosejunctures at which the agency exercises its discretion.

Thus the court in Pizits v Volpe ((1972 D.C. Ala.) 467 F2d 208)stated that "ther s must be substantial compliance with the provisionsof N.E.P. A. before beginning new construction on an old project."Particularly relevant to the extant case is the holding in San Fran-

cisco TEmnorrow v Romney ((1972 D.C. Cal.) 342 F. Supp. 77) in which"the court declared that if any consistent rule could be distilled

from those cas es involving the applicability of N.E.P.A. to so-calledongoing projects, it is that 'if subsequent to January 1, 1970 there

is any significant departure from the original design having eco-logical significance er if, subsequent thereto, a design feature of

ecological sighificance left open in the original design is resolved,or one previously provided for is significantly changed an imnactstatement must be prepared.'" In Thompson v Fugate ((1972 D.C. Va.)347 F. Supp.120) the court noted "that recent. decisions have heldthat the Act (N.E.P.A.) applies to unexecuted portions of a plan or

project."

The Appeals Board may, at this point, well wonder when N.E.P.A.

.-. _ _ _ _ _

.

- . .

D mmh]-5-

in not applienble. "Although ".2.r.A. Ja cpplicable to further in-

crencntn1 enjor federal netiens cecuring cubccquent te its effective

dato, even thout:h the project ic initinted pricr to that date, ence

the project is cecplete there enn be no further enjer actien becaucent tine of cenpletien proiegf_ inn cppnblo of_ppstJpg_At_nn;e

c;pDSI.ty and naencico intendcd to opernte it at full enpacity."i

Dir; Rock Toint in the words cf tho etnff (tctober 20, 19C0, p.22) "10 pernitted t"t itt liccnne to cencrate pceer ... for n period

cf approxicately forty yenra fron thn date of it0 incunnce."

In the cacc bcfore the beard toony, the applicant han clearly

cdni'ted that it "nuct provido additional etorace cynce for the Big

i:cek ; cint tpent fuel to n11ov continued oporation." (5.cc.1-0 p.

1-2: Cencuncrc pracr Co., 31C Rock Toint T1 ant 3 pent Tuc1 RnchAdditient Fnviren=cntnl != pact Evnluntion 4-70). '; hun a full ten

,

yearc before the full-tert of itc crerating licence. nnjer federal

act!on le recuired to allet it to operate at enxinun capacity.

The licensinr; Ecord in here in error both in its confucion of

a rrn'rct vith "MItD En vreresaln for major federal actico" (.3ec.

102 (2)(C). ("he detailed ctatenent is te accenpany anv repor_i_cnprprennlr fer ccjer fcderal action c.g. licencinr; be it cubnitted by,

n private party cr under the Punpicen of a federni projcet.) (reco-

randut and Crder en IT.E.T. A. Povicw. Joptenbor 12, 1960, p. 7) and

alco in fniling to clasnify Dig Rock Foint ac on onEcing project, for

the plant clearly falls rithin the definiticn expcunded in Lee v

Ecccr (3':8 T. lupp. 3E9), particularly in licht of the extensivo

federal involvetent during the pinnt'n first 4-1/2 years of operation.4

during thic]Ltire it r< calv7(JtE fyll_tcrn erryntin/C.llCfnDr. (Con-

ctruction of Ult; Rcch tun begun in the inte 1950's under an ccreccentthereby Concurerc Power Co. wns to construct. cupply the cito andcperate the plant and the A.E.C. would cupply the technical expertice.

Undcr the agreenrnt the federal gevornment salved fuel une charcou ofover 01.(50.000.00 - nnd cpent half-nillien dollarn on reccarch anddevelepnent. "creever. Cencral "Icetric built the reactor froc n

,

3 7 clllion dollar govern =ce.t stard and then donated enid invectcent.

to Con':uners Fewer Co. ac a " gift".)'

2e "Turpocec of fi.E.F.A. are frustrated then considorntions of

alternativec and collateral effect are unrcasonably constrictedk

__ _ ._ . __ , . _ - - __ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - --

i.

| . .

~6-

N .E. P. A . " mandates that any and all typee of potential environnental

irracts be censidered by (the) acency involved, including beth direct

and indirect effects of federal actions."1E! If the requirenents fof

the Act can feasibly be opplied (to en ongoing project)then they thould

in fact be applied, even if the project in quentien was begun prior to

the enactcent of N.E.P.A. Such application wculd not be retroactive,

; but proepectivo, "since it would teek to alter, within proper limits,l espects of propenal which hsd not yet bacn completed, and not to

undo anything which had already proceeded to final construction."11/"To accertain (tha) eigni ficance of najor federal action, (a)

project must be ansecced with view to overall conulative inpact of

action propeced, of related federal action already taken in area and

further actions contemplated" (Sierra Club v Bergland ((N.D. Miss)451 F. Supp. 120).

In Natural Recources Unfenne Council, Inc. v. U.3. N.R.C. (178App. D.C. 336, 547 F2d 633) the court stated that it is "clonr that . . .

licensing of vaste dispenal facilities connected with nuclear power

reactor in in itself major federal action requirinc a N.H.F.A. state-

ment." A collateral natter d2nanding compli?nce with N.E.P.A. has

alresdy been conceded by the staff en p. 22 of its brief filed Cetober

20, 19"O. "The Stent Fuel Fool expension would affect .. . offluent

release?." It has been determined in Izaak Nalton Lesgue v Schloringer

((!971 D.C. Dict. Col.) 337 F. Supp. 287), "that the heated water that

would be dtscharced frn.n n nuclear-power-generating facility nay sig-

nificantly affect the quality of the htunen envirennent within the

meaning of Sec.102 (2)(C) of N.E.P. A."12Th a Nationn1 Znvironmental Policy Act requires that the (detailed)

stetenent be cubject to e rigorous revier procees. (Environ. Defense

Fund Inc. v Corp. cf Engineern of U.S. Army (197? D.C. Uieu.) 346F. Supp. 916)." Forfnnetory and cenclusory languace, "such ac the

expected n?cative declaration by the etsff (not? harn for instanceth? Licensinc Zonrt coment en p. 3 of ite W nornndun end Crder en

N.E.F.A. Reviet that the staff'n negative declaration wculd be 'in

the usual forn.") sinply did not cuffice."

It seems abundantly clear that in regardo to the National En-

vironmental Felley Act that Big Rock is in the came pcsition n3 anunlicensed facility, in co far as it has never had any of its impacts,lot alone its cumulative effects, evaluated in light of alternatives

- ___ _

-. ... . . _ - - . _ - . . _ . - - - .

.

i

*

7-

:

or their damage to the environment. '

j Clearly "due process of inw" in the instant cace requires complete| compliance with Sec.102 (8)(C) of f!.E.P. A .

Intervenor Leithouser thua requesto that the Appeals Deard supportfully the doteminaticn by the Licensing Board and remand the appli-cation to the Licensing Board for resolution. I further request that;

| if the Appeals Board evererno the Licensing Board on the Applicabilityi of Sec.102 (2)(C) of N.E.P. A. that intervenors be allowed to file

separate briefs on the applicabilit'/ of Sec.102 (2)(C) not to bei due before January 31, 1981. These proceedings are quite taxing to

! those lacking the immense resources of the applicant and simple' justice and fair play should compel the appealc Beard to take such

matters into account for scheduling.

i /

i - 6d 4|\j ~~ _Q s f L

.

j--,_

John A.- Lel'thnuser1

December h, 1980 ;

Lovering, Michigan:

|!

I

|

,

|

!-

'

1

:

, .

t

. . . _ , , _ _ . . . . . . _ __ _ . _ ._ . . . - -

- ._-. ._. . _ - . . _ . - . . - - - -

- o ..

Notes

1/ Cooley on Const. Limitations (7th Ed.) p. 506. Kennedy y State

Board of Registration in Medicine 108 N.tl. 730.

2/ 73 An. Jr. 2nd Statutes Sec.194 et. seq. 275

J/ lAnerican Iaw Review Fed. 1, Annotation p. 72.4/ Greene County Plan'i.ng Board v Federal Power Commission 1972

((1972, Ca. 2) *); . d 412)

| J/ U.S. v 247 37 Acres of Land (1971 D.C. Ohio) 3 E.R.C. 1098.6/ 17 A.L.R. Fed. 33, Sec.16, p.183

,

2/ 17 A.L.R. Fed. 33, Sec. 3a, p. 66.

8/ Sierra Club v Morton (D.C. Cal.) 400 F. Supp. 610.2/ Greene County Flanning Board v Fed. Power Commission (CA2)

559 F2d 122710/ McDowell v Schlesinger (D.C. Mo.) 404 F. Supp. 221.1.1] Jones v Lynn (CA1 Mass) 477 F2d 88512/ 17 A . L.R. Fed . 33 S ec 14-b, p . 174.ij/ Hanly v Mitchell (1972, CA2 NY) 460 Fed. 640.

i

!

.

!

|

. _ . _. . .