issued; provided that in such event the Commission may grant one or more extensions of the license upon good cause shown." A memorandum in support of this petition is attached. Respectfully submitted, LEBOEUF, LAMB, LEIBY & MACRAE, Washington, D.C., Attorneys for Petitioner. LEONARD M. TROSTEN, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., PETITIONER MEMORANDUM IN SUPPORT OF PETITION FOR RULE MAKING On July 23, 1971, the United States Court of Appeals for the District of Columbia Circuit issued a decision in the Calvert Cliffs case1 remanding to the Commission for further rule making its implementation of the National Environmental Policy Act of 1969 (NEPA). This petition seeks a rule for a very narrow and special class of proceeding affected by the Court's decision. The class here involved is limited to those pending proceedings which meet the following tests: 1. The notice of hearing must have been issued prior to December 4, 1970. 2. The hearing must have still been in progress on the date of the Court decision. 3. The hearing must be one on an operating license, thereby limiting the applicability of the rule to facilities essentially completed on the date of the Court decision. Petitioner's Indian Point Unit 2 generating facility is the subject of one such proceeding (AEC Docket 50-247). The proposed rule is based upon the premise that the Court's decision leaves the Commission with discretion as to the mechanism for conducting a full NEPA review for this special category of proceeding. It treats the proceedings involved believed to be only two in number--on the same basis as those in which operating licenses had been issued after January 1, 1970 and prior to an unidentified deadline acceptable to the Court for full rule making compliance with NEPA. The policy justification for the proposed rule is that neither the public interest nor the Court decision requires the Commission to penalize applicants for operating licenses when such applicants (1) had complied in good faith with the Commission's regulations in effect prior to December 4, 1970, (2) had by then made the major investment in the facility, (3) had continued to complete the facility 1 Calvert Cliffs' Coordinating Committee, Inc. v. U.S. AEC, No. 24,871 (D.C. Cir., decided July 23, 1971). in accordance with the Commission's regulations, including the Appendix D of December 4, 1970, and (4) were involved in the hearing process both on December 4, 1970 and on July 23, 1971. On July 23, 1971 a new element in the procedural requirements for determining the acceptability of these facilities appeared, an element which the Applicants involved could not have included in their licensing submissions without contravening the regulations of the agency responsible for the licensing of the facilities. The Court decision recognizes that realistically the scope of all the environmental considerations prescribed by NEPA narrows depending upon the state of completion of the plant and, most of all, when the plant is completed. No purpose would be served by requiring the review to be entirely finished prior to allowing an otherwise licensable plant to operate since the cost of any modifications of the plant could not be reduced by such a delay. It is reasonable to conclude that the nature of environmental review for a completed plant (otherwise subject to the Court decision) should be the same whether or not the plant has been licensed. Any incremental adverse environmental effect resulting from such a limited period of operation as contemplated by the proposed rule could not be great, taking into account that the non-operational environmental impact of the facility already exists and further taking into account that the environmental effect of facility operation as related to radiological matters will be evaluated and approved by the Commission before any power operating license is issued. The applicants benefited by the proposed rule will gain no vesteď rights from its adoption. Any operating license issued after a favorable decision on the radiological issues will contain a condition subsequent that the license may be modified, conditioned, revoked, or suspended as a result of a later hearing on environmental considertions. The time beyond which the operating license may not continue without completion of the environmental hearing provides assurance of prompt resolution of these matters. The scope of the environmental questions which might be raised by intervenors will be no more and no less than it would be now for those proceedings. The only advantages to an applicant covered by the rule will be its ability to minimize the costs otherwise involved in having a power generating facility ready for use and unuseable and in its ability to supply needed power to its customers-for whatever period the license to operate continues. In the case of this Petitioner, the need to meet the power requirements of its customers is particularly compelling, as shown in the attached copy of an affidavit dated August 17, 1971 filed with the Commission in support of a motion in the above-mentioned Indian Point 2 proceeding. Submitted with that affidavit is an order of the New York Public Service Commission, which further demonstrates the urgent need for the proposed rule with respect to the Indian Point 2 proceeding in order to help alleviate the power crisis in the New York metropolitan area. The affidavit also shows the substantial costs and the detrimental environment effect of a delay in the operation of the plant which is the subject of that proceeding. One of the Court's principal criticisms of the Commission was that by its policies it had delayed or would delay full compliance with NEPA until irretrievable commitments had been made and thus reduce the effectiveness of a full environmental review. In the proceedings covered by the proposed rule the irretrievable commitments have been made no less than if full power licenses had been issued. It is this salient fact, Petitioner submits, that justifies the issuance of the proposed rule with the precise restrictions noted. The equitable considerations mentioned justify the grant of the requested relief. Respectfully submitted, LEBOEUF, LAMB, LEIBY & MACRAE, By LEONARD M. TROSTEN, Partner. 26 AEC ACTION ON THE PETITION FOR RULE MAKING Dated: August 18, 1971. Attachment. UNITED STATES ATOMIC ENERGY COMMISSION, Mr. EDWARD J. BAUSER, Washington, D.C., October 20, 1971. Executive Director, Joint Committee on Atomic Energy, Congress of the United States DEAR MR. BAUSER: Enclosed for the information of the Joint Committee on Atomic Energy is a Notice of Filing and Denial of Petition for Rule Making. The notice relates to a petition for rule making filed by Consolidated Edison Company of New York, Inc., requesting that the Commission amend Appendix D of 10 CFR Part 50 to provide for the issuance of facility operating licenses in cases in which a notice of hearing was issued on or before December 4, 1970, before the hearing on environmental issues is complete, such license to be subject to continuance, suspension, modification or revocation based on the outcome of the environmental hearing, and expiration one year from the date of issuance if at that time an initial decision on environmental matters has not been issued. The Commission believes tht the revision of Appendix D published in the Federal Register on September 9, 1971, deals appropriately with the proceedings that are the subject of the petition, although somewhat differently than the petition suggests, and that it is unnecessary to initiate a further rule making proceeding with respect to the matters in the petition. Accordingly, the Commission has denied the petition for rule making. The notice will be published in the Federal Register. Sincerely, Enclosure: Federal Register Notice. HAROLD L. PRICE, Director of Regulation. Atomic Energy Commission Consolidated Edison Company of New York, Inc. NOTICE OF FILING AND DENIAL OF PETITION FOR RULE MAKING Notice is hereby given that Consolidated Edison Company of New York, Inc., has filed with the Atomic Energy Commission a petition for rule making, dated August 18, 1971, together with a supporting memorandum, to amend Appendix D of the Commission's regulation "Licensing of Production and Utilization Facilities" 10 CFR Part 50. Appendix D in effect on the date of the petition for rule making was a statement of general policy and procedure for the implementa tion of the National Environmental Policy Act of 1969 (NEPA). The petitioner requested that the Commission amend Appendix D by adding thereto an addendum, providing that, notwithstanding the other provisions of Appendix D, in a proceeding on an application for a facility operating license for which a notice of hearing was issued on or before December 4, 1970 and for which a full power operating license has not been issued as of the effective date of the addendum: 1. A hearing will be held to consider the environmental impact of the facility in accordance with NEPA, such hearing and actions preliminary thereto required to comply with NEPA to be undertaken and completed promptly in accordance with such orders as the Commission shall issue with respect to such proceeding. 2. The fact that a hearing on environmental issues is to be held will not be cause for delaying the completion of any hearing now in progress on issues specified in a notice of hearing published prior to December 4, 1970. Upon completion of such hearing, the atomic safety and licensing board is authorized and directed to issue an initial decision with respect to such issues and, if its findings so warrant, to authorize the issuance of an operating license. If the hearing on environmental issues has not been completed at that time, the license shall be issued with a condition that it is subject to continuance, suspension, modification or revocation based on the outcome of the environmental hearing, and shall expire one year from the date of issuance if at that time the environmental hearing and related procedures have not been completed and an initial decision with respect to environmental matters has not yet been issued, provided that, in such event, the Commission may grant one or more extensions of the license upon good cause shown. A supplemental affidavit in support of the petition for rule making was filed on August 25, 1971. After the above petition for rule making was filed, the Commission published in the Federal Register (36 F.R. 18071, September 9, 1971) a revision of Appendix D of 10 CFR Part 50, effective on the date of publication, that set forth Commission policy and procedure for the implementation of NEPA in accordance with the decision of the United States Court of Appeals for the District of Columbia Circuit in Calvert Cliffs' Coordinating Committee, Inc., et al. v. United States Atomic Energy Commission, et al., Nos. 24,839 and 24,871 (July 23, 1971). Section D of revised Appendix D deals specifically with proceedings in which hearings were pending as of September 9, 1971, which would include the proceedings that are the subject of instant petition. Section D of the revised Appendix D states that the atomic safety and licensing board will proceed expeditiously with the aspects of the application related to the Commission's licensing requirements under the Atomic Energy Act of 1954, as amended, pending compliance with the other applicable requirements of revised Appendix D related to environmental matters. It also permits the applicant, in a proceeding for the issuance of an operating license in which the requirements of other applicable provisions of Appendix D pertaining to environ |