mental matters have not been met, to make a motion, pursuant to 10 CFR § 50.57 (c) for the issuance of a license authorizing the loading of fuel in the reactor core and limited operation within the scope of § 50.57 (c). The atomic safety and licensing board may grant such a motion upon finding that the proposed licensing action will not have a significant, adverse impact on the environment and upon satisfaction of the requirements of § 50.57 (c). It is also provided that, under other circumstances where limited operation may be warranted during the period of ongoing NEPA review, consistent with appropriate regard for environmental values, the board may, upon satisfaction of the requirements of § 50.57 (c) grant a motion for authorization to operate at less than full power after consideration and balancing on the record of certain specified factors. Operation beyond 20 percent of full power, however, may not be authorized except under specific prior approval of the Commissioners. (The provisions of § 50.57 (c) apply to the resolution of objections by any opposing party and the making of findings pursuant to that section.) Any license so issued will be without prejudice to subsequent action that 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.

The Commission believes that the recent revision of Appendix D of 10 CFR Part 50 deals appropriately with the proceedings that are the subject of the instant petition, albeit in a manner somewhat different from that suggested by the petitioner. Furthermore, it should be noted that the notice of rule making published on Sepember 9, 1971 invited the submission of comments and suggestions on revised Appendix D within 60 days of publication. In view of the foregoing, the Commission deems it unnecessary to initiate a further rule making proceeding with respect to the matters in the petition for rule making. Accordingly, the petition for rule making filed by Consolidated Edison Company of New York, Inc. is denied. For the Atomic Energy Commission.

W. B. McCOOL, Secretary of the Commission.

Dated at Germantown, Maryland, this 8th day of October 1971.

27

COMMENTS ON AEC REVISED REGULATIONS*

Dr. JAMES R. SCHLESINGER,

Chairman, U.S. Atomic Energy Commission.

AUGUST 31, 1971.

DEAR MR. CHAIRMAN: An AEC press release of August 26, 1971, stated that the Commission "will issue soon, hopefully next week..." revised regulations designed to implement the National Environmental Policy Act (NEPA). A preliminary Staff Draft, dated August 23, 1971, of those revised regulations, entitled: "Appendix D-Interim Amendments to Statement of General Policy and Procedure: Implementation of the National Environmental Policy Act of 1969 (Public Law 91-1900)", was discussed at a meeting which representatives of the staff of the Commission held with interested members of the public on Friday, August 27, 1971. At the meeting AEC staff representatives made it clear that they intend to issue revised Appendix D regulations this week in an immediatelyeffective form.

Because of these considerations, we are taking this means of advising the Commission with respect to one matter of great urgency affecting the proposed regulations and respectfully requesting an appropriate change in the proposed regulations as set forth in the Preliminary Staff Draft.

Proposed Section D.2 of the Preliminary Staff Draft relates to facilities for which applications for operating licenses are pending, and purports to establish a means whereby a license to operate at less than full power may be issued under 10 CFR § 50.57 while the NEPA review required by Appendix D goes forward. As drafted, however, D.2 requires as a condition precedent to issuance of such an interim license "a showing on the record that the proposed licensing action will not significantly affect the quality of the environment...." At the public meeting on August 27, 1971, there seemed to be agreement that this referred to significant adverse effects. If there is opposition to the Applicant's motion this section will be of little or no value, since a full-blown contest can be expected to take as much time as the NEPA procedures. And even if there is no contest, this section will be of little or no value because the quoted pre-requisite establishes a standard that is more stringent than that required by NEPA. If operation of the plant may result in any significant adverse impact upon the environment, such operation will apparently not be permitted under any circumstances. The draft rule does not even authorize a balancing of the environmental impact of plant operations against the countervailing benefits to be derived from the proposed operations. This is in sharp contrast with proposed Section E, which contemplates such a balancing in order to determine whether existing construction permits and operating

See page 513 for additional comments.

licenses should be suspended pending completion of the NEPA reviews.

The problems which this proposed regulation will create will be particularly acute with respect to Consumers Power's Palisades Plant, construction of which was authorized in March of 1967. That Plant was 95% completed on January 1, 1970, when NEPA went into effect, and is now fully completed at a cost of about $130,000,000. The Plant is loaded with fuel, having completed a zero power testing program pursuant to a 1 MWt operating license issued in March, 1971. The Plant is sitting idle at a cost to Consumers Power of $1,000,000 per month in overhead alone. Yet, under the newly proposed regulations the Palisades Plant cannot be permitted to go into either full or partial operation pending completion of the NEPA review if such operation involves any significant adverse environmental consideration or if there is any opposition from any party. This will apparently be so notwithstanding countervailing considerations such as the area's need for power, the possibility of retiring older fossil fuel plants (the continued operation of which may have substantial adverse environmental effects), the fact that the environmental contentions of all intervenors in our licensing proceedings have been settled by agreement, and similar appropriate factors.

We believe that neither NEPA itself nor the July 23, 1971, opinion of the United States Court of Appeals for the District of Columbia in the Calvert Cliffs case dictates so rigid and unrealistic a result. In our view, they permit the Commission to exercise discretion to authorize operation pending completion of full NEPA compliance, at least during some reasonable transition. We would suggest as an alternative to proposed Section D.2 of the Preliminary Staff Draft a provision which would permit the start of operations unless it is demonstrated on the record that significant and substantially irreversible adverse environmental effects will result from such operations, and that those adverse effects are not out-weighed by countervailing benefits.

To effectively accomplish the purpose of D.2 we suggest that at this stage the proceeding be a summary one, appropriate for the temporary nature of the proposed authorization to operate.

We respectfully request that proposed Section D.2 of the regulations be modified accordingly.

Because of the limited time available and the special urgency of the one matter to which this letter is addressed, this letter is confined to that matter and reserves all of Consumers Power's rights with respect to all of the proposed regulations, including the specific proposed regulation to which this letter is addressed. Consumers Power does have additional serious questions about a number of other aspects of the proposed regulations and intends to comment upon them when the Commission indicates it is ready to receive such comments.

Sincerely yours,

CONSUMERS POWER COMPANY, /s/ A. H. AMOND,

Chairman of the Board of Directors.

SECRETARY,

LEBOEUF, LAMB, LEIBY & MAcRae,
Washington, D.C., September 18,1971.

U.S. Atomic Energy Commission,

Washington, D.C.

Attention: Chief, Public Proceedings Branch.

DEAR SIR: This letter is in response to the Commission's invitation for comments conrerning the revisions of Appendix D to 10 CFR Part 50, which became effective upon publication in the Federal Register on September 9, 1971 (36 Fed. Reg. 18071). We believe that these and related regulations should be modified in several respects, as discussed below.

Paragraph 3

SECTION A

With respect to the preparation of cost-benefit analyses, the Commission should provide further guidance, through rule making action, of the scope of "alternatives available for reducing or avoiding adverse environmental effects" which must be considered. Apart from the available alternatives to constructing (or operating) the facility at all, there are an almost unlimited number of alternative design features that conceivably might have to be considered under the present regulations. This poses an acute problem for an applicant and the Staff and for the Board which must eventually consider these matters. We suggest that the Commission further define and limit the categories of alternatives and the extent to which these must be explored. Paragraph 10

In order to avoid problems at the hearing stage concerning the admissibility of environmental reports, comments thereon and detailed statements, this paragraph should provide that these documents will be "received", rather than simply "offered", in evidence.

Paragraph 11

This paragraph provides that the fundamental determinations to be made by the Atomic Safety and Licensing Board are the same at the construction permit and the operating license stages. We believe the regulations should clearly separate the issues which may be raised by intervenors at the operating license stage, in accordance with the principle reflected in the next to last sentence of Section A.8. While it is undoubtedly true that the stage in plant construction at which environmental issues are being considered itself weighs heavily in the balancing decision to be made, experience in past licensing hearings shows that the regulations should more clearly indicate which issues are not the proper subject of a hearing once a plant has been completed.

We also believe the regulations need to be clarified with respect to the extent to which the Board needs to consider uncontested issues in reachin its decision in contested proceedings.

Paragraph 12

As explained further in connection with Section D we believe the Commission should adopt a procedure for issuance of permits to perform a limited amount of construction during the course of a hearing

on a construction permit, based upon findings and conclusions under Section A.11.

Paragraph 3

SECTION B

In our view there is no reason to delay the publication of a Notice of Hearing or a notice of opportunity for a hearing on environmental issues until the preparation of the detailed statement. Such a notice should be published immediately upon receipt of the Applicant's environmental report, thereby starting the period running for consideration of any petitions to intervene. An earlier Notice of Hearing would also facilitate the process of defining the issues to be raised by any intervenors and undertaking appropriate discovery. This com ment also applies to Section C.2 and D.3.

We also believe it would be desirable to clarify the regulations concerning the circumstances under which the Commission, as opposed to the Atomic Safety and Licensing Board, would prescribe time limitation for proceedings. The phrase "as appropriate" which appears in the last sentence of Section B.3 and related sections is certain to produce disagreements.

General

SECTION D

We have set forth in another connection our views concerning the proper exercise of the Commission's authority to implement NEPA requirements for operating license proceedings subject to Section D. Accordingly, we are not reiterating these views here. In any event, the Commission should amend its regulations to provide explicitly for the issuance of a conditional full power operating license upon the basis of a summary environmental review and hearing. A full environmental review would still apply to the long-term operation of the facility.

With respect to construction permit proceedings, we believe the Commission should consider amending its regulations to provide for limited additional work to be undertaken during the period of ongoing NEPA review. In our view, the Commission possesses the authority to allow such work to proceed after making special findings. Paragraph 2

This paragraph should be changed to provide that in the event a motion for a fuel loading and/or limited operation license is unopposed, the presiding Atomic Safety and Licensing Board may authorize the Director of Regulation to grant such a license upon the appropriate environmental findings being made by the Director of Regulation. There is no need to treat the environmental aspects differently from the radiological aspects in this regard and to impose the added burden on an Atomic Safety and Licensing Board to make the environmental determinations in an uncontested situation.

Paragraphs 4(b) and 4(c)

SECTION E

We believe these paragraphs should be deleted. In our view the other provisions of Section E represent a full and fair compliance with the Calvert Cliffs' decision without burdening proceedings with