20

VIEWS OF COMMISSIONER RAMEY

W. B. MCCOOL,

Secretary, Atomic Energy Commission:

OCTOBER 4, 1971.

At Commission Regulatory Meeting 304 on Friday morning, September 3, 1971, the Commission approved, with revisions, Appendix D to Part 50, implementing the National Environmental Policy Act of 1969, to comply with the decision of the U.S. Court of Appeals for the District of Columbia Circuit on July 23, 1971.

The purpose of this memorandum is to state for the record my reservations and partial dissent which I expressed orally from the action taken by the Commission in this regard. Since I left for an extended trip abroad on the afternoon of Friday, September 3, this is the first opportunity I have had upon my return to set forth my position in writing.

While I agree with most of the revisions made in Appendix D on September 3, I am concerned that several aspects of the revised regulation may reflect an over-reaction to the Court's decision.

Specifically I have the following comments:

1. I would have preferred that the Commission and its staff have devoted their attention to a greater extent to providing a summary procedure in Section D of the Appendix (relating to plants which have been completed or substantially completed) which would permit power plants which have been reviewed and approved from the radiological standpoint to go into operation pending the development of additional environmental information. Such a summary procedure could include a brief show-cause hearing to determine the urgency of the need of the public for electric power from the plant and the question of whether irreversible damage would result from interim operation of the plant. Subsequently, a full hearing could be held to consider any additional environmental considerations.

2. I believe that one sentence from subsection 2 of Section D of the Appendix should have been placed in the Statement of Considerations. The sentence (italicized for emphasis) reads in context as follows:

In addition, the Commission recognizes that there may be other circumstances where, consistent with appropriate regard for environmental values, limited operation may be warranted during the period of the ongoing NEPA environmental review. Such circumstances include testing and verification of plant performance and other limited activities where operation can be justified without prejudice to the ends of environmental protection.

Since it is understood that the sentence was intended to be essentially illustrative, it should have been included in the Statement of Considerations; otherwise it may be thought to be substantive and hence become overly restrictive. I hope this will not be the case.

3. The Statement of Considerations in the amended regulation states in part:

Sections B, C and D provide that the Commission or the presiding Atomic Safety and Licensing Board, as appropriate, may prescribe the times within which the proceedings subject to those sections will be completed. These provisions are in keeping with the Commission's continuing objective of minimizing undue delay in the conduct of its licensing proceedings. They would not impinge upon the basic requirements for a fair and orderly hearing on the NEPA issues.

In my opinion, the following quotation of the Commission's continuing policy regarding delays in licensing should also have been included, either in the Statement of Considerations or as a footnote to the Statement:

The Commission expressly recognizes the positive necessity for expediting the decision-making process and avoiding undue delays in order to provide adequate electric power on reasonable schedules while at the same time protecting the quality of the environment. It expects that its responsibilities under the Atomic Energy Act of 1954, the National Environmental Policy Act of 1969, and other applicable statutes, as set out below, will be carried out in a manner consistent with this policy in the overall public interest.

In my opinion, had the above changes been included, the regulation would have given better balance to the means of implementing NEPA considerations during an extremely critical period. I particularly believe that the lack of summary procedures to take care of review of virtually completed plants or plants already complete and ready for operation may result in serious delays in the availability of nuclear power. Therefore, it may be necessary for the Congress, in connection with its consideration of the Commission's early site hearing proposals or otherwise, to consider and enact legislation to cover these serious interim problems.

I would hope that the Commission together with the Council on Environmental Quality and the Federal Power Commission will provide leadership with the Congress in solving these very serious problems.

JAMES T. RAMEY,
Commissioner.

21

AEC ISSUES AMENDMENTS TO NEPA REGULATIONS

For purposes of clarification, the Atomic Energy Commission is publishing amendments to its recently revised regulations implementing the National Environmental Policy Act.

The revised rules under which the Commission will consider the total environmental impact of nuclear power plants were issued September 3 and became effective on September 9.

The three amendments are as follows:

A clause has been added to Section C to insure that every plant-for which a construction permit was issued prior to January 1, 1970, which is not the subject of a pending hearing or of an already issued notice of opportunity for hearing-is subect to the requirement for early submission of a supplemental environmental report and to the suspension consideration procedures of Section E. Section C is applicable to plants for which construction permits were issued prior to January 1, 1970, but operating licenses have not yet been issued. Section E outlines procedures for consideration of suspension of construction permits and operating licenses pending completion of the broadened NEPA review.

A footnote has been added to Section D to make the criteria of this section applicable to an applicant's Environmental Report previously circulated for Federal and State comment in lieu of an AEC detailed Environmental Statement. Section D concerns plants for which public hearings are pending or are to be noticed for hearing soon.

An amendment to Section E further defines the construction permits or operating licenses which are subject to suspension consideration. A new clause has been added to include cases in which the Commission estimates that construction, under a permit, will not be completed by January 1, 1972.

These amendments will be effective upon publication in the Federal Register.

Attached is a list of all reactor projects which are affected by the Commission's revised regulations.

(224)

J

AMENDMENTS TO REVISED REGULATIONS*

TITLE 10-ATOMIC ENERGY*

CHAPTER I-ATOMIC ENERGY COMMISSION

PART 50-LICENSING OF PRODUCTION AND UTILIZATION FACILITIES

IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

On September 9, 1971, the Atomic Energy Commission published in the Federal Register (36 F.R. 18071) a revision of Appendix D of its regulation in 10 CFR Part 50, effective on publication. Revised Appendix D as published is an interim statement of Commission policy and procedure for the implementation of the National Environmental Policy Act of 1969 (NEPA) in accordance with the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Calvert Cliff's Coordinating Committee, Inc., et al. v. United States Atomic Energy Commission, et al., Nos. 24,839 and 24,871. The procedures in Appendix D apply to licensing proceedings for nuclear power reactors; testing facilities; fuel reprocessing plants; and other production and utilization facilities whose construction or operation may be determined by the Commission to have a significant impact on the environment. The procedures also apply to proceedings involving certain specified activities subject to materials licensing.

Revised Appendix D is divided into five sections. Section A deals with the basic procedures for implementing NEPA, while sections B, C, and D deal with procedures applicable to certain categories of permits or licenses already issued or for which applications are pending. Section E defines the categories of proceedings in which the Commission will consider and determine whether a permit or license already issued should be suspended pending completion of the NEPA environmental review and sets out the factors to be considered by the Commission in making its determinations.

The Commission has adopted the amendments to revised Appendix D which follow to correct revised Appendix D and clarify the intent of the Commission with respect to proceedings subject to section C, D, and E.

Section C. Procedures for review of certain construction permits for production or utilization facilities issued prior to January 1, 1970, for which operating licenses have not been issued, has been amended to cover such permits issued prior to January 1, 1970 for facilities for which neither an operating license nor a notice of opportunity for

*36 F.R. 19158, September 30, 1971.

hearing on the operating license had been issued prior to September 9, 1971 (the effective date of revised Appendix D). The exclusion of holders of construction permits subject to section D, which is appli cable to proceedings in which hearings were pending as of September 5, 1971, or in which a draft or final detailed statement of environmental considerations had been circulated prior to that date, has been deleted. This has the effect of making proceedings such as the Calvert Cliffs proceeding, Dockets Nos. 50-317 and 50-318, subject to sections C and E, as the Commission originally intended.

In section D.1., a footnote has been added to provide that in proceedings in which an applicant's environmental report, rather than a draft detailed statement, was circulated by the Commission that environmental report shall be deemed a draft detailed statement for the purposes of that paragraph.

Section E, which presently applies to proceedings subject to sections B and C, has been amended to apply to (a) proceedings subject to section B other than those in which a hearing on an operating license application has commenced, (b) proceedings subject to section C involving nuclear power reactors and testing facilities, and (c) proceedings in which the Commission estimates that construction under a permit will not be completed by January 1, 1972. This amendment will exclude one fuel reprocessing plant from consideration of NEPA environmental review. Since that plant has already been completed, and will be subject to section C procedures before the issuance of an operating license will be considered, no useful purpose would be served by suspension of the construction permit. The amendment will, on the other hand, subject to consideration of suspension, in addition to cases involving nuclear power reactors and testing facilities for which construction permits were issued prior to January 1, 1970, for which operating licenses or notice of opportunity for hearing on the operating license application have not been issued proceedings in which the Commission estimates that construction will not be completed by January 1, 1972, even though a notice of opportunity for hearing on the operating license application or a draft or final detailed statement of environmental considerations has been issued.

Because these amendments relate solely to correction and clarification, the Commission has found that good cause exists for omitting notice of proposed rule making and public procedure thereon as unnecessary. The Commission has also found that since the amendments correct and clarify previous amendments which have already become effective, good cause exists for making the amendments effective without the customary 30-day notice.

Accordingly, pursuant to the National Environmental Policy Act of 1969, the Atomic Energy Act of 1954, as amended, and sections 552 and 553 of Title 5 of the United States Code, the following amendments to Title 10, Chapter 1, Code of Federal Regulations, Part 50, are published as a document subject to codification to be effective upon publication in the Federal Register (9-30-71):

1. In Appendix D, the phrase "effective date of this amendment Appendix D" in sections B and D is changed to read "September 9, 1971” where it appears.