Mid-America Coalition for Energy Alternatives, Inc. v. Nuclear Regulatory Commission

No. 78-1294 (D.C. Cir. January 15, 1979)

The court denies a petition for review of the granting by the Nuclear Regulatory Commission (NRC) of a permit for construction of a nuclear power plant. Petitioner's argument that the Atomic Safety and Licensing Appeal Board violated the National Environmental Policy Act (NEPA) by failing to consider an alternative to the proposed plant, namely the conversion of existing gas-fired power plants to coal operation, is rejected by the court on procedural grounds. Because petitioner first raised this issue before the Appeal Board and not the Atomic Safety and Licensing Board, it was faced with a very heavy burden of reopening the hearing record and the Appeal Board did not abuse its discretion in declining to do so. This burden did not relieve the agency of its obligation to consider alternatives under NEPA, but it did have a bearing on whether the coal-conversion proposal was a readily identifiable alternative. While the court finds that the petitioners failed to raise this alternative with sufficient force to trigger an agency obligation to subject it to full-scale NEPA analysis, it concludes that the Appeal Board did evaluate this proposal in sufficient depth to satisfy the requirements of NEPA and to support its conclusion that no different result would have been reached had the Licensing Board considered this alternative.

This memorandum opinion is designated "not to be published." Rule 8(f) of the Rules of the United States Court of Appeals for the District of Columbia provides in relevant part:

Unpublished orders including explanatory memoranda of this Court are not to be cited in briefs or memoranda of counsel as precedents. However, counsel may refer to such orders, and memoranda, for such purposes as application of doctrines of res judicata, collateral estoppel, and law of the case, which turn on the binding effect of the judgment, and not on its quality as precedent.

Counsel for Petitioners
William H. Ward
5130 Mission Road, Shawnee Mission KS 66205
(913) 232-3871

Counsel for Respondents
James L. Kelley, Acting General Counsel; Stephen F. Eilperin, Solicitor; Marjorie S. Nordlinger
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3288

Peter R. Steenland, Larry A. Boggs
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2753

Before McGowan and Wilkey,^* C.J., and Flannery,^** J.

[9 ELR 20147]

Per Curiam:

Judgment

This cause came on to be heard on a petition for review of an order of the Nuclear Regulatory Commission and was argued by counsel. On consideration of the foregoing, it is

ORDERED AND ADJUDGED by this court, that the order of the Nuclear Regulatory Commission under review herein is hereby affirmed, for the reasons set forth in the attached memorandum.

Memorandum

This is a petition for review of an order of the Nuclear Regulatory Commission (NRC) granting a permit for construction of a nuclear power plant to two applicant utilities, Kansas Gas and Electric Company and Kansas City Power and Light Company. Petitioner Mid-America Coalition for Energy Alternatives, Inc., an intervenor in the proceedings before the NRC, argues that the NRC failed of its duty under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., to consider an alternative to the proposed project, namely, conversion of existing gas-fired plants to coal operation.

In part, petitioner's grievance is procedural. It first raised the coal conversion issue before the Atomic Safety and Licensing Appeal Board (Appeal Board) some months after the final decision and closing of the adjudicatory record of the Atomic Safety and Licensing Board (Licensing Board). Petitioner moved the Appeal Board to reopen the record to allow the taking of further evidence on the feasibility of coal conversion. The Appeal Board denied the motion, In the Matter of Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320 (1978), and petitioner challenges that decision before this court.

The Appeal Board, in our view, did not abuse its discretion in concluding that petitioner failed to satisfy the heavy burden of reopening the administrative hearing record. For one thing, petitioner should have been aware of the coal conversion alternative at the time of the licensing hearing because an explicit discussion of the subject was contained in applicants' environmental report, ER 4.2.1.1.3, pp. 9.2-5, -6. More significantly, petitioner has failed to demonstrate, as required under NRC's precedents, that "a different result would have been reached initially had [the material submitted in support of the motion] been considered." 7 NRC at 338, quoting Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-227, 8 AEC 416, 418 (1974). The Appeal Board found, on the basis of the evidence, that (a) the conversion option would not be cost-effective,¹ (b) a coal facility would not be preferable from an environmental standpoint, 7 NRC at 339 & n.36, and (c) removing the Evans No. 2 unit from service for the conversion period would adversely affect system reliability if done before the Wolf Creek station came on line, id. at 339 n.37. Although the Appeal Board's reasoning on this issue is perhaps not a model of clarity, it does set forth sufficient reasons to support its conclusion that no different result would have been reached had the coal conversion issue been considered by the Licensing Board.

Petitioner's failure to raise the coal conversion issue, however, did not relieve NRC of its obligation under NEPA independently to consider alternative to the proposed action. NEPA § 102(c), 42 U.S.C. § 4332(c). It does, however, have considerable hearing on whether coal conversion was a "readily identifiable" alternative within the meaning of NEPA's rule of reason, see NRDC v. Morton, 458 F.2d 827, 837 [2 ELR 20029] (D.C. Cir. 1972). See also Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553 [8 ELR 20288, 20296] (1978) ("[W]hile it is true that NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action, it is still incumbent upon interventors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions.").

NRC, on the facts of record in this case, was not required by NEPA to give coal conversion more extensive consideration than this issue received. Coal conversion was simply not an "alternative" to the proposed nuclear plant in any meaningful sense. The Licensing Board found as a fact that the Wolf Creek plant was needed for operation in 1982 in order to serve peak demand and meet reserve power responsibilities. In the Matter of Kansas Gas and Electric Co. and Kansas City Power and Light Company, (Wolf Creek Generating Station Unit No. 1), LPB-77-3, 5 NRC 301, 357-359 (1977). This finding was affirmed by the Appeal Board, ALAB-462, 7 NRC at 326-333, and petitioner does not challenge it before this court. Yet conversion of existing gas-fired units to coal would not add capacity to the utilities' generating capabilities. Even were the applicants to convert existing gas-fired plants to coal, there would still exist a need for additional generating capacity. Thus, coal conversion, in our view, is not an "alternative[] to the proposed action" within the meaning of NEPA § 102, 42 U.S.C. § 4332(c).²

* Circuit Judge Wilkey did not participate in this decision.

** U.S. District Judge for the District of Columbia. Sitting by designation pursuant to 28 U.S.C. § 292(a).

1. Petitioner argues in its brief that the $500/kW figure relied on by the Appeal Board as the conversion cost was overstated, and suggests several lower figures. See Petitioner's Brief at 15-17. Even assuming, arguendo, that petitioner's figures are accurate, we see no reason to conclude that the Appeal Board abused its discretion. Petitioner has simply made no demonstration that even the lower figures would be cost-effective. Moreover, the environmental and system reliability rationales advanced by the Appeal Board would independently justify its conclusion not to permit reopening of the record.

2. Our decision here is guided by the Supreme Court's recent statement in Vermont Yankee, supra, 435 U.S. at 551 [8 ELR at 20295], that a court should not fault the NRC:

. . . simply because [it] failed to include [in its NEPA statement] every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.