Opposition — Porter County Chapter of the Izaak Walton League of America, Inc. v. Nuclear Regulatory Commission

Supreme Court, U. %

riLSa we

No. 76-291 OCT 27 3975

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In the Supreme Court of the United States

OCTOBER TERM, 1976

PORTER COUNTY CHAPTER OF THE IZAAK WALTON

LEAGUE OF AMERICA, INC., ET AL., PETITIONERS

V.

NUCLEAR REGULATORY COMMISSION,

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE NUCLEAR

REGULATORY COMMISSION IN OPPOSITION

ROBERT H. BorK,

Solicitor General,

PETER R. TAFT,

Assistant Attorney General,

EDMUND B. CLARK,

EvA R. DATz,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

PETER L. STRAUSS,

General Counsel,

Nuclear Regulatory Commission,

Washington, D.C. 20555.

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-291

PORTER COUNTY CHAPTER OF THE IZAAK WALTON

LEAGUE OF AMERICA, INC., ET AL., PETITIONERS

V.

NUCLEAR REGULATORY COMMISSION,

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE NUCLEAR

REGULATORY COMMISSION IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 2-13)

is reported at 533 F. 2d 1011.' The initial decision of April

5, 1974, by the Atomic Safety and Licensing Board

of the Atomic Energy Commission is set forth at Pet.

App. 65-186.2 The decision of August 29, 1974, of the

'The first opinion of the court of appeals (Pet. App. 23-61) is re-

ported at 515 F. 2d 513. The instant decision follows this Court's

remand of the proceeding to the court of appeals (Pet. App. 15-18;

423 U.S. 12).

*The Nuclear Regulatory Commission succeeded to the Atomic

Energy Commission's licensing powers on January 19, 1975. Energy

Reorganization Act of 1974, 88 Stat. 1233-1254. See 40 Fed. Reg.

3242, 3520. ,

(1)

2

Atomic Safety and Licensing Appeal! Board, affirming

the initial decision, is set forth at Pet. App. 187-219.

JURISDICTION

The judgment of the court of appeals was entered

on April 13, 1976 (Pet. App. 1). Timely petitions for re-

hearing and suggestions for rehearing en banc were

denied on June |, 1976 (Pet. App. 14). The petition for

a writ of certiorari was filed on August 27, 1976. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether the Nuclear Regulatory Commission had

jurisdiction to license the construction of a nuclear power

plant on land bordering the Indiana Dunes National

Lakeshore, despite a minimal environmental impact on

the Lakeshore.

STATEMENT

This action was brought to review final orders of

the Atomic Energy Commission, now the Nuclear Regu-

latory Commission (NRC), authorizing the issuance to

the Northern Indiana Public Service Company (NIPSCO)

of a construction permit for a 685-megawatt nuclear

plant (the Bailly Generating Station) to be built on

privately owned land on the southern shore of Lake

Michigan in Porter County, Indiana, abutting the Indiana

Dunes National Lakeshore (Pet. App. 66, 70).

NIPSCO filed an application for a construction permit

on August 27, 1970 (Pet. App. 3). Pursuant to 42 U.S.C.

2241, an Atomic Safety and Licensing Board (ASLB)

was constituted to hold hearings with respect to radio-

logical health and safety and environmental issues. An

environmental analysis was undertaken under the

National Environmental Policy Act of 1969 (NEPA), 83

wa

Stat. 852, 42 U.S.C. 4321 et seg. Pet App. 8-9. The

ASLB heard almost 10,000 pages of testimony concern-

ing NIPSCO’s application (Pet. App. 12). An Assistant

Secretary of the Department of the Interior appeared

and testified. The ASLB issued its initial decision author-

izing the issuance of a construction permit on April 5, 1974

(Pet. App. 65-186). Following an appeal by petitioner

Porter County Chapter of the Izaak Walton League, the

Commission’s Atomic Safety and Licensing Appeal

Board (ASLAB) affirmed the initial decision on August

29, 1974 (Pet. App. 187-219). The Department of the

Interior was invited to submit its views, but did not do

so. The ASLAB’s decision is the final Commission

decision (10 C.F.R. 2.786).

In its decisions, the Commission found that the im-

pact of the Bailly plant on the adjoining Indiana Dunes Na-

tional Lakeshore would be insubstantial (Pet. App. 203).

The construction methods proposed by NIPSCO will

avoid a significant reduction in the water table level of

the Lakeshore (Pet. App. 117).? The Lakeshore is bounded

by an industrial area containing severai large smokestacks

that are clearly visible from within the Lakeshore (Pet.

App. 208, n. 46). Three generating plants are now lo-

cated on the Bailly site; a Bethlehem Steel mill is located

immediately to the south and west; and another steel

mill and other industrial plants are nearby (Pet. App. 130,

201). These plants emit sulfur dioxide which becomes

sulfuric acid when it combines with water; the addi-

tional moisture from the cooling tower for the proposed

Bailly plant might result in a minor increase of sulfuric

acid, but it could not have a significant recognizable

‘Currently, these methods include the construction of a slurry wall

and the direct addition of water to any area in which a need is disclosed

by prescribed monitors (Pet. App. 176, 116-117).

effect on local vegetation (Pet. App. 119-125). Simi-

larly, as regards salt deposition from water droplets in

the drift from the cooling tower plume, the Commis-

sion found that the projected salt deposition is small

in comparision to natural deposition and less than that

which results in damage (Pet. App. 125-128). |

The Commission also considered the possibility of pol-

lution from the operation of four ash ponds which are

already present on the Bailly site. These ash ponds act as

a series of settling basins to remove ash from the water

pumped from existing units. Certain wastes from the pro-

posed Bailly plant will also be discharged to the ash pond

system. These wastes will include the filter backwash

water and demineralized regenerate waste from the

nuclear plant’s demineralized water system. In addition,

sanitary and sewage wastes will be routed to the ash

ponds (following treatment). The Commission found that

the ash ponds will be operated as a closed system and

no wastes will be returned to Lake Michigan (Pet. App.

137-138). NIPSCO’s license specifies that, if there should

be seepage from the ash ponds during operation, NIPSCO

will be required to institute remedial measures (Pet.

App. 140, 176).4

Initially, the Seventh Circuit set aside the approval

of the construction permit on the ground that the Atomic

Energy Commission failed to follow its own regulations

governing “population center distance” in relation to

nuclear power plant siting. 515 F. 2d 513. This Court

*Moreover, as the court below noted (Pet. App. 5), NRC has imposed

restrictions and controls as conditions to approval of the construction

permit that include two monitoring programs to detect changes in

chemical composition and water levels in the dunes area. These

programs are designed to reveal problems as they arise, thereby enabling

NRC to prescribe timely corrective measures (Pet. App. 112, 125,

176-177).

reversed and remanded, holding that the court of appeals

was bound by the agency’s interpretation of its own

regulations. 423 U.S. 12.

On remand, the court of appeals denied the petition

for review holding that the Commission had authority

to issue the NIPSCO construction license, and that the

decision to do so is supported by substantial evidence

(Pet. App. 13).

ARGUMENT

The decision of the court of appeals is correct. It pre-

sents no conflict with prior decisions of any other court,

and no issues meriting review by this Court.

NRC has full authority to license the construction of

nuclear plants on privately owned land in the United

States. See Power Reactor Development Co. v. Electri-

cians, 367 U.S. 396. Nowhere in “the pervasive regulatory

scheme embodied in the Atomic Energy Act of 1954”

(Train v. Colorado Public Interest Research Group,

No. 74-1270, decided June |, 1976, slip op. 22), is there an

exclusion pertaining to lands adjacent to a national

park or lakeshore.

Petitioner argues that the Commission was deprived

of its licensing jurisdiction under the Atomic Energy Act

as soon as it determined that the construction and opera-

tion of the Bailly plant would have any adverse impact

on the Indiana Dunes National Lakeshore (Pet. 16).

None of the relevant statutes provides support, express

or implied, for this argument. Neither NEPA, the Atomic

Energy Act of 1954, 68 Stat. 919, 42 U.S.C. 2011 ef seq.,

nor any provisions of the national park service organic

act (39 Stat. 535, 16 U.S.C. | et seq.), or the Indiana Dunes

6

National Lakeshore Act, 80 Stat. 1309, 16 U.S.C. 460u

el seq., SO provide.>

The provisions of NEPA have not created a bar to

licensing plants near national parks or lakeshores. In

fact, “NEPA was not intended to repeal by implication

any other statute.” United States v. SCRAP, 412 U.S. 669,

694. Section 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C),

requires only that the responsible federal agency “shall

consult with and obtain the comments of any Federal

agency which has jurisdiction by law or special expertise

with respect to any environmental impact involved.”

Thus NEPA requires coordination among federal agencies,

and this coordination was carried out.6 NEPA does not

‘When Congress intends to limit the jurisdiction of federal

licensing agencies on federal lands, it knows how to do so expressly.

See, e.g., 16 U.S.C. 1278, 42 U.S.C. 2097, 16 U.S.C. 797a.

*The Department of the Interior originally opposed the issuance

of the construction permit, as petitioners note (Pet. 8-9). But the

Department has never suggested that the alleged impact of the pro-

posed plant on the Lakeshore deprived the Commission of jurisdiction

to issue the permit, and, although invited to do so, elected not to

express its views on the permit to the ASLAB, thus evidently

deferring to the Commission's judgment on the matter. ;

One of the predominant concerns of the Assistant Secretary of

the Interior who testified as a witness before the ASLB was that

the “low population zone” surrounding the plant, which included

about one and one-half miles of the National Lakeshore, would

interfere with the Department's management of the area (Pet. App.

203). However, as the ASLAB expressly found, the “low population

zone” is a site planning guideline, not a land use restriction (Pet.

App. 204). 10 C.F.R. 100.1. Furthermore, the parts of the Lakeshore

within the “low population zone” have been designated by the

National Park Service as lands that will not be subjected to intensive,

high population density use (Pet. 7, n. 6). In short, the zone

that here embraces: part of the Lakeshore will in no way interfere

with the Interior Department's management of the Lakeshore. The

Assistant Secretary acknowledged that there are other federal lands

throughout the country under the Department's jurisdiction which

fall within the low-population zones of other existing nuclear plants;

the Department has encouraged the inclusion of recreational facilities

within such zones (Tr. 7590-7596).

aa» cme >

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7

authorize, much less require, a federal agency to abdicate

its regulatory duties to any federal agency having

jurisdiction or special expertise with respect to any

environmental impact involved.

If the issue were otherwise in doubt, the legislative

history of the Indiana Dunes National Lakeshore Act,

16 U.S.C. 460u ef seg., shows that Congress intended

that industrial growth outside the boundaries of the

National Lakeshore not be impeded. As the ASLAB

observed (Pet. App. 205-207; footnotes omitted):

The unique features of the Indiana Dunes and

wetlands have long been recognized by conserva-

tion-minded individuals. Nevertheless, over the

years responsible public officials have reacted

cautiously to proposals to reserve the area for recrea-

tional and scientific purposes exclusively. They did

so not from lack of appreciation of the special dune-

land environment, but out of strongly held views

that the people of northern Indiana would be better

served by industrial development in the area. Re-

spected Indiana representatives reiterated in

congressional hearings and debates their belief,

right or wrong, that creation of new industry and

new jobs took priority over establishment of new

parks on the Indiana shores of Lake Michigan. [See,

e.g., Testimony of Congressman Madden in Hearings

Before the Subcommittee on Rivers and Harbors,

et al. of the House Committee on Public Works,

on Burns Waterway, etc., 89th Cong., Ist Sess.,

Part Il, 637-638 (1965); see also the remarks of

Congressman Halleck of Indiana, 112 Cong. Rec.

26103-26104 (1966); remarks of Congressman

Roush, id. at 26108.] For this reason those in favor

of the National Lakeshore had to overcome the

opposition of legislators preferring a new Indiana

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: CONCLUSION

industrial lakeport, to be known as Burns Harbor, For the foregoing reasons, the petition for a writ of

in this same general area. The proponents of certiorari should be denied.

the harbor and the supporters of the lakeshore

ultimately reached a compromise. The Indiana Respectfully submitted.

Dunes National Lakeshore Act was one part, the ROBERT H. Bork,

other was an authorization of federal funding for Solicitor General.

the Burns Habor development west of the Lakeshore

near the Bailly site. Even strong congressional sup-

porters of the Lakeshore agreed that its authorizing

PETER R. TAFT,

Assistant Attorney General.

legislation “would not in any way be an impediment EDMUND B. CLARK,

to industrial growth on privately held land beyond the Eva R. Datz,

Lakeshore boundaries.” Attorneys.

* * * The act in so many words limits the Secre- PETER L. STRAUSS,

tary of the Interior to acquiring land and easements General Counsel, |

only “within the boundaries of the Lakeshore.” Nuclear Regulatory Commission.

16 U.S.C. § 460u-1. Those boundaries were not left

to the Secretary to adjust but were literally mapped OcTOBER 1976.

by Congress itself. 16 U.S.C. §460u. In contrast, where

Congress has intended to place restrictions on sur-

rounding properties to insure extra protection to the

lands inside a park, it has so provided in unmistakable

terms. For example, the Redwood National Park

Act permits the Secretary of the Interior, to assure

“the preservation of the scenery within the bounda-

ries of the national park,” to modify the park bounda-

ries within certain limits, 16 U.S.C. § 79b(a), and to

acquire easements over lands “on the periphery of

the park” if deemed necessary for its protection.

16 U.S.C. § 79c(e). Similar discretion has been granted

to the Secretary by Congress in connection with

other parks.

DOJ-1976-10