Parts of this company's expenditure to support continued construction conceivably could influence a later decision whether to require major modifications to the plant. However, as discussed previously, major modifications are not anticipated to be required, based on present information. For example, it appears highly unlikely that the site would have to be abandoned as a result of the NEPA review. We conclude that the large certain cost of delay outweighs the unlikely possibility that expenditures during the period of continued construction will affect substantially a subsequent decision regarding modification of the facility to reduce environmental impact.

After balancing the factors described above as to environmental impact of continued construction of onsite facilities, and the potential for foreclosure of alternatives as a result of further construction, against the effect of delay costs, we conclude that the construction permits for the Brunswick Steam Electric Plant should not be suspended, in their entirely, pending completion of the ongoing NEPA review. However, a partial suspension of construction activities as outlined in the next section is recommended.

Pending completion of the full NEPA review, the holder of Construction Permit Nos. CPPR-67 and CPPR-68 proceeds with onsite construction at its own risk. The discussion and findings herein do not preclude the NEC, as a result of its ongoing NEPA environmental review, from continuing, modifying, or terminating the construction permits or their appropriate conditioning to protect environmental values.

6.2 Suspension of Work on Portions of the Plant

The incremental impact on the environment of continuing construction of off-site facilities is significant. Some environmental impact already has taken place, such as that from construction of the circulating water intake canal, but a significant additional impact will ensue from constructing the discharge canal and the four transmission lines. Continued construction on the off-site portions of the discharge canal and on the off-site transmission lines would make the adoption of alternative routings and/or changes in design significantly more difficult, should this be the conclusion of the NEPA review.

The effects of suspending construction on these off-site facilities for a period of 10 months is not expected to delay plant startup by the 18 months suggested by CP&L. We believe the applicant can accommodate the suspension of work on these facilities by suitable re-programming of its construction efforts, though admittedly at some additional cost. We plan on reviewing the environmental impact of the cooling water discharge and the transmission lines on an expedited schedule compared to the complete NEPA review schedule.

After balancing the factors described above as to environmental impact of continued construction of off-site facilities, and the potential for foreclosure of alternatives as a result of further construction, against the effect of delay costs, we conclude that certain construction activities at the Brunswick Steam Electric Plant should be suspended, in part, pending completion of the ongoing NEPA review of these items. Specifically, construction of the off-site portions of the discharge canal and of the off-site transmission lines should be suspended pending completion of our review.

47

ADDITIONAL COMMENTS ON APPENDIX D SUBMITTED BY NATIONAL WILDLIFE FEDERATION AND SIERRA CLUB*

September 9, 1971

(Prepared by Berlin, Roisman and Kessler and Institute for Public Interest Representation, Georgetown University Law Center)

INTRODUCTION

These comments are submitted without reference to the problem of radioactive waste disposal. That issue is now on Appeal to the Commission and our views on that issue will be presented in the context of that appeal. In general, we believe that the regulations as now written require consideration of the incremental effect of that particular plant with respect to uranium mining, fuel fabrication and supply, fuel reprocessing and waste disposal. The regulations are not as explicit on this point as they should be.

In Appendix D, several phrases and standards are applied to different parts of the Appendix. Comments are provided only for the first time these phrases and standards arise but are to be applied to them wherever they do appear in Appendix D.

The comments contained herein should be read in light of the pending revisions to Appendix A of 10 CFR Part 2. The resolution of that rule-making proceeding will effect the comments made here. These comments are based upon the present rules of practice as we understand them.

The overriding principle of our comments, other than the need for some clarification, is that Appendix D should be written as though there had been no delay in the proper implementation of NEPA. Thus, the fact that implementation occurs after twenty months, during which time actions were taken by the AEC which did not comply with NEPA, does not justify any special relief to those applicants who benefitted from the illegal action.

OCTOBER 29, 1971.

1. State with greater specificity which types of facilities and license applications require an ER

We feel the Commission should specify the facilities meant to be included by the language "or such other production or utilization facility." The Commission should know and be able to state what types of facilities for which it is issuing licenses or permits. A question arises as to the list contained in paragraph 14 of Section A as to whether

*Docket Number Proposed Rule: PR-50, Implementation of NEPA.

that section is inclusive of all types of facilities governed by a single licensing procedure.

The criteria by which the Commission judges "significant impact on the environment" should be made explicit. Perhaps this vague language is only directed at future developments, but the public should know the answers to the basic questions of what types of environment affecting licenses are issued by the Commission and how environmental impact is initially determined.

SECTION A-PARAGRAPH 3

Ideally, we feel that the applicant should not perform a cost-benefit analysis as part of its application. The only purpose served is to assist the Commission, but their very assistance comes perilously close to infringing on an area which is the sole responsibility of the Commission, that of making an independent judgment. All the Commission should need is the factual, non-judgmental presentation of the matters called for in paragraph 1. A secondary consideration is that the Commission should not open itself to the charge of rubber stamping the decisions of the applicant.

If the Commission continues to require that the applicant perform a cost-benefit analysis, it should, at the least, require that this process be separate and distinct from the ER. Judgments of relative values and the balancing of adverse and beneficial effects should be strictly relegated to the cost-benefit analysis. At present, it is often found that the entire ER is a judgmental document with the cost-benefit analysis merely serving as a summary. The ER should be as strictly factual as possible. Conclusory statements should be made and argued in the cost-benefit analysis.

Thus, while it would seem to be the better approach in the light of NEPA and the Calvert Cliffs decision to have the applicant merely serve as an investigatory tool of the Commission, as a minimum, any judgments called for by the Commission from the applicant must be kept separate from the ER.

2. The balancing called for should be equalized

The balancing called for in paragraph 3 is a balancing of adverse environmental effects against "environmental, economic technical and other benefits of the facility." This clearly one-sided balancing can only serve to diminish the weight of adverse environmental effects.

The Commission apparently wishes to weigh all the aspects of a facility. If this is so, all adverse effects, whether environmental, technical, economic, or other, must be balanced against the benefits. The cost-benefit analysis is emerging as the process by which the eventual decision is reached. This decision should not merely state that all the benefits outweigh the adverse environmental effects. The applicant will obviously have made the decision as to need for the facility, type of facility, etc. Consequently, in order to allow the Commission to perform an independent cost-benefit analysis, the applicant should set forth all the factors considered, the weight assigned to them and the process used to justify the proposed action in a manner readily reviewable by the Commission and the public.

3. The Commission should establish specific rules to insure quantifi

cation

The requirement that the applicant "to the fullest extent practicable, quantify the various factors considered" must, based on past experience, be spelled out. The word "practicable" would seem to mean more than "appropriate" or "as necessary." In the past, applicants have occasionally refused to quantify such factors as thermal effects, chemical discharges, fish impingement and radiation emissions. Even if these factors have qualitative components and even if the final judgment based on all factors is a qualitative one, it is clear that quantitative statements can be made for almost all environmental effects. The Commission should take steps to insure quantification is in fact done to the fullest extent practicable. The Commission may, for example, wish to require the applicant to take affirmative steps to consult with various governmental and non-governmental bodies having a particular expertise relevant to an environmental factor. The Commission should, of course, designate those sources able to assist the applicant.

Related to the question of quantification is the problem created by the lack of definitive data on a possible adverse environmental effect. For instance, an assessment of the effect of the passage of larvae through the condenser tubes depends in part upon knowing the census of the larvae in the river and their distribution in the river at any given time. An applicant may know the effect of a temperature rise on the type of larvae involved but may not know how many of the larvae in the river will pass through the condenser tubes at any given time. To obtain this data might take Applicant a year or more of testing just to establish the larvae census and its distribution.

In similar events involving reactor safety, the AEC has adopted a reasonable procedure which should be applied here. In such situations, the AEC uses the conservative assumption which is a method by which compensation for gaps in data is provided. Thus, if there is insufficient data to establish reliably the redistribution of emergency core cooling water in the core as the result of migration from the hot spots, a conservative assumption is made which will tend to overpredict the flow redistribution and the maximum rod temperature in a loss of coolant accident. When further data is obtained, the conservative assumption may be more realistically stated. The effect of the use of the conservative assumption is to overpredict the adverse effect.

In the context of an environmental analysis, the same conservative assumption should be used. Not only does such an approach assure that all errors in analysis are made in the direction of greater environmental protection but it also avoids the delay that would be caused by awaiting the completion of the data gathering before the final environmental analysis has ended. The delay needed to obtain complete data is necessary-(absent the use of the conservative assumption)--because the mandate of NEPA is to prepare a "detailed statement" (emphasis added) of the environmental impact of the proposed action. The AEC's intent to use the conservative assumption approach in environmental, as well as radiological safety, analysis should be set forth explicitly in Appendix D.

SECTION A-PARAGRAPH 4

1. No Commission action should be taken until the applicant has satisfied the environmental protection requirements of Federal, State, local and regional agencies

Here again, the Commission does not seem to have a clear understanding of the function of a cost-benefit analysis. It is clear that a cost-benefit analysis is not complete if the effects of the regulation of other agencies are not included. These effects can only be properly weighed when they are known. It is conceivable that the costs and benefits can be known prior to certification or that certification will follow a specific action as a matter of course. The Commission, however, in order to guard against premature conclusions based on incomplete data, should explicitly state that in the discussion of the status of compliance with the various environmental quality requirements the applicant state the cases in which the outcome of such compliance is known and those in which it is not. It should further be required that the applicant condition the cost-benefit analysis to reflect any uncertainties in complying with the various environmental protection standards. (It might be noted here that compliance with non-environmental standards is also relevant to a comprehensive cost-benefit analysis.)

It is suggested that the Commission delay all action until the effects of such compliance are known. At the very least, circulation of the final Detailed Statement should be delayed until all the facts are available to the Commission and the public and are included in the final Detailed Statement.

2. The Commission should fully adopt the position of insuring that the total record has been developed and evaluated and affirmatively state that the issuance or denial of a permit or license is predicated upon a determination based on all factors

The responsibility of the Commission for protecting the environment has been expended by requiring the Commission to perform analyses independent of the actions of other agencies. At the same time, the Commission cannot authorize an environmental effect beyond that permitted by another agency. As a practical matter, it then becomes necessary for the Commission to function as the last enforcer of environmental protection. The requirements of other agencies operate at the maximum extent to which the Commission can allow environmental effects, whether they are judged adverse or beneficial. The Commission cannot make informed decisions until these limits are known. Therefore, it would seem best, both from the standpoint of making intelligent decisions and from the standpoint of providing an orderly process for the applicant and the public to work with, to not only deny a license until a section 21(b) of the Federal Water Pollution Control Act certificate is obtained, but to refrain from issuing a license or permit until all necessary certificates, licenses, or approvals are obtained. It would further seem to be in the interest of the applicant, the public, the Commission, the environment and effective interagencv cooperation that the Commission refrain from circulating a final Detailed Statement until the certification processes are completed.

Any exceptions to this procedure should be made only in cases in