must be received, within 30 days from Federal agencies, State and local officials and interested persons on environmental reports and draft detailed statements. This change conforms paragraph 3 of section D to paragraph 1 of section D in this respect.

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 I, Code of Federal Regulations, Part 50, are published as a document subject to codification to be effective upon publication in the Federal Register (11-11-71).

In Appendix D, sections C.1, D.1, and D.3 are amended to read as follows:

“APPENDIX D-INTERIM STATEMENT OF GENERAL POLICY AND PROCEDURE: IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 (PUBLIC LAW 91-150)

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*

*

*

*

"C. Procedures for review of certain construction permits for production or utilization facilities issued prior to January 1, 1970, for which operating licenses or notices of opportunity for hearing on the operating license applications have not been issued. 1. Each holder of a permit to construct a production or utilization facility of the type described in section A.1 issued prior to January 1, 1970, for which neither an operating license nor a notice of opportunity for hearing on the operating license application had been issued prior to October 31, 1971, shall submit the appropriate number of copies of an Environmental report as specified in sections A.1-4 of this appendix as soon as possible, but no later than sixty (60) days after September 9, 1971, or such later date as may be approved by the Commission upon good cause shown. If an environmental report had been submitted prior to September 9, 1971, a supplement to that report, covering the matters described in sections A.1-4 to the extent not previously covered, may be submitted in lieu of a new environmental report.

"D. Procedures applicable to pending hearings or proceedings to be noticed in the near future. 1. In proceedings in which hearings are pending as of September 9, 1971, or in which a draft or final detailed statement of environmental considerations prepared by the Director of Regulation or his designee has been circulated prior to said date 11 in the case of an application for a construction permit, or in which a notice of opportunity for hearing on the application has been issued prior to October 31, 1971, in the case of an application for an operating

:

license, the presiding Atomic Safety and Licensing Board will, if the requirements of paragraphs 1-9 of section A have not as yet been met, proceed expeditiously with the aspects of the application related to the Commission's licensing requirements under the Atomic Energy Act pending the submission of environmental reports and detailed statements as specified in section A and compliance with other applicable requirements of section A. A supplement to the environmental report, covering the matters described in sections A.1-4 to the extent not previously covered, may be submitted in lieu of a new environmental report. Upon receipt of the supplemental environmental report, the procedures set out in sections A.6-9 will be followed, except that comments will be requested, and must be received, within thirty (30) days from Federal agencies, State and local officials, and interested persons on environmental reports and draft detailed statements. If no comments are submitted within thirty (30) days by such agencies, officials, or persons, it will be presumed that such agencies, officials, or persons have no comment to make. In any subsequent session of the hearing held on the matters covered by this appendix, the provisions of sections A.10 and 11 will apply to the extent pertinent. The Commission or the presiding Atomic Safety and Licensing Board, as appropriate, may prescribe the time within which the proceeding, or any portion thereof, will be completed.

"3. This paragraph applies to proceedings on an application for an operating license for which a notice of opportunity for hearing was issued prior to October 31, 1971, and no hearing has been requested. In such proceedings an environmental report or a supplement to the environmental report, covering the matters described in sections A.1-4 to the extent not previously covered, shall be submitted. Upon receipt of the supplemental environmental report, the procedures set out in sections A.6-9 will be followed, except that comments will be requested, and must be received, within thirty (30) days from Federal agencies, State and local officials, and interested persons on environmental reports and draft detailed statements. If no comments are submitted within thirty (30) days by such agencies, officials, or persons, it will be presumed that such agencies, officials, or persons have no comment to make. When the requirements of the pertinent provisions of paragraphs 1-9 of section A have been met, the provisions of section B.3 will be followed. If in such proceedings, the requirements of paragraphs 1-9 of section A have not as yet been met, the Commission may issue a license authorizing the loading of fuel in the reactor core and limited operation within the scope of § 50.57 (a), upon a showing that such licensing action will not have a significant, adverse impact on the quality of the environment and upon making the appropriate findings on the matters specified in § 50.57(a). 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. Accordingly, the Commission may issue a license for limited

operation after consideration and balancing of the factors described in paragraph 2. of this section and upon making the appropriate findings on the matters specified in § 50.57(a): Provided, however, That operation beyond twenty percent (20%) of full power will not be authorized except in emergency situations or other situations where the public interest so requires. Any license so issued will be without prejudice to subsequent licensing action which may be taken by the Commission with regard to the environmental aspects of the facility, and any license issued will be conditioned to that effect.

"(Sec. 102, 83 Stat. 853; secs. 3, 161; 68 Stat. 922, 948, as amended; 42 U.S.C. 2013, 2201)"

Dated at Germantown, Md., this 29th day of October 1971.
For the Atomic Energy Commission.

W. B. McCOOL, Secretary of the Commission.

..[FR Doc. 71-16469 Filed 11-10-71; 8:48 am]

24

MOTION BY CONSOLIDATED EDISON

Before the United States Atomic Energy Commission

Docket No. 50-247

IN THE MATTER OF

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. (INDIAN POINT STATION, UNIT No. 2)

MOTION OF APPLICANT FOR AN ORDER ESTABLISHING FURTHER PROCEDURAL REQUIREMENTS TO IMPLEMENT THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

Consolidated Edison Company of New York, Inc., Applicant in the above-captioned proceeding, pursuant to section 161 and 189 of the Atomic Energy Act of 1954 and the National Environmental Policy Act of 1969 (“NEPA”), respectfully moves the Atomic Energy Commission for an order (a) establishing further procedural requirements, including a specific time schedule therefor, that shall be followed in order to implement the decision of the United States Court of Appeals for the District of Columbia Circuit in the Calvert Cliffs case; (b) directing the Atomic Safety and Licensing Board to continue promptly the hearing on the issues specified in the Notice of Hearing as published on November 17, 1970 and to issue its Initial Decision notwithstanding any pendency of proceedings required by NEPA; and (c) requiring that any operating license issued for the facility shall be subject to continuance, suspension, modification or revocation in accordance with proceedings required by NEPA.

1

A proposed form of order is appended to this motion together with an affidavit of Charles F. Luce, Chairman of the Board of Applicant, dated August 17, 1971, in support hereof.

In further support of this motion Applicant states as follows: 1. Applicant filed its Application for Licenses for Indian Point Unit 2 ("Unit 2") with the Commission in December 1965 and received a construction permit in October 1966. Applicant is now seeking authority to operate Unit 2. A Notice of Hearing on this Application was published on November 17, 1970 and since that date a prehearing conference, extensive discovery and hearings have taken place. Construction of the plant is nearly complete and on July 20, 1971 the Atomic Safety and Licensing Board granted Applicant's motion seeking authority to load fuel and to conduct subcritical testing, subject to completion of certain items of work.

2. In accordance with the Commission's regulations in effect at the time, Applicant filed an environmental report with the Commission on August 6, 1970. This report was circulated to Federal and

1 Calvert Cliffs' Coordinating Committee, Inc. v. U.S. AEC, No. 24,871 (D.C. Cir., decided July 23, 1971)

State agencies for comment and a Detailed Statement was prepared by the Regulatory Staff dated November 20, 1970. Pursuant to paragraph 11(a) of the Commission's regulations (10 CFR 50, Appendix D2 December 4, 1970) parties to this proceeding have not been permitted to raise as an issue whether the issuance of the license would be likely to result in a significant, adverse effect on the environment. 3. In its decision in the Calvert Cliffs case the Court of Appeals determined that 10 CFR 50, Appendix D does not comply with NEPA in certain respects and remanded the matter to the Commission for further rule making. Applicant will file, in addition to this motion, a petition for rule making seeking an interim amendment to Appendix D consistent with the Court's decision. In order to provide guidance to the Atomic Safety and Licensing Board and the parties and to avoid unnecessary delay pending the completion of rule making actions by the Commission, the Commission is authorized to, and should, establish for this proceeding the steps necessary to carry out the Court's decision, recognizing the particular status of Unit 2 at the present time.

4. In accordance with the Court's decision all NEPA procedural steps which have not heretofore been taken by Applicant and the Commission are expected to be taken forthwith. However, the Court does not state in its decision how the Commission should proceed to implement these procedures with regard to plants which, like Unit 2, are nearly ready for operation and close to the end of the hearing on issues prescribed in the Notice of Hearing. Nor did the Court state that the Commission must refuse to allow a plant to operate while the procedures required by NEPA are being completed notwithstanding that the plant is substantially ready for operation and significant aspects of its environmental impact are already an accomplished fact. In fact, the Court noted with approval a lower court opinion which read in part "The NEPA does not require the impossible. Nor would it require, in effect, a moratorium on all projects which had an environmental impact while awaiting compliance with § 102 (2) (B)." (Slip op., p. 23). The Commission is authorized, therefore, under NEPA and the Court's decision to consider whether any purpose would be served in delaying the operation of Unit 2 until completion of all NEPA considerations. if the operation of the plant is otherwise permissible under the provisions of the Atomic Energy Act.

5. No purpose whatsoever would be served by delaying the operation of Unit 2 pending completion of all NEPA requirements. The plant has been built to comply in all respects with environmental requirements. However, should modifications be necessary to comply with NEPA, which Applicant believes will not be the case, the status of completion of Unit 2 is such that it is already too late to mitigate the costs of any such modifications. Just as the Court did not direct the Commission to suspend the licenses of operating nuclear power plants while the Commission carries out any NEPA requirements not previously complied with, so also the decision permits a plant in the condition of Unit 2 to proceed to operation subject to subsequent NEPA compliance.

6. As shown in the attached affidavit, the effects of any delay in the operation of Unit 2 threaten to produce a severe shortage of electric power in Applicant's service area with disastrous consequences to the entire populace of the largest city in the United States. Indeed, so