2. Ineffectiveness of Provisions for Interim Relief in Contested Cases Under Section D.2 of Appendix D if one person objects to an interim license, that person's mere objection will delay issuance of any such interim license until a public hearing and findings are made with respect to such objections. Under current AEC rules, the objecting party can, and frequently does, stall the hearing process without any showing that he is likely to succeed on the merits of his objections or that such objection is in the public interest-showings which a petitioner for a restraining order must make if he is to succeed in obtaining such judicial relief. There is no judicial precedent that require ssuch a result. Calvert Cliffs quoted with approval from Environmental Defense Fund, Inc. v. Corps of Engineers, wherein the District Court said NEPA does not require "a moratorium on all projects which had an environmental effect while awaiting compliance" with NEPA. The most expansive reading of Calvert Cliffs goes no further than requiring with respect to completed projects that the requisite NEPA reviews be completed promptly. Sections B, C and E of Appendix D all recognize that neither NEPA nor Calvert Cliffs require the imposition of a moratorium upon completion of projects authorized for construction or continued operation of completed projects previously authorized. In such cases, an objector is required to show cause why the construction or operation should be halted and pending the conclusion of the show-cause proceeding, the construction or operation is permitted to proceed. The same procedures should be applied to any proceeding under D.2 where construction of the facility is completed and ready for operation. 3. The Emergency Test in Section D.3 Section D.3 which deals with limited category of cases at the operating license stage which are or remain uncontested, states that in addition to consideration of the factors defined in Section D.3, operation beyond 20% of full power will not be authorized “except in emergency situations or situations where the public interest so requires". The point has already been made that where it is concluded, after balancing environmental impacts, the capability to redress any adverse effects and the public need for power, that interim operation is warranted, it is irrational to superimpose a 20% limit in the absence of an emergency situation. Apart from the irrationality of the 20% limit, the meaning of the added phrase "situations where the public interest so requires”—is very obscure. One of the factors which must be considered before any interim operation may be authorized is "the effect of delay upon the public interest". If an applicant demonstrates that the effect of delay upon the public interest warrants interim operation, what other demonstration is required to meet the additional test in the except clause that "the public interest so requires.” If the public interest phrase in the except clause is intended to modify the preceding concept of “emergency situations”, (e.g., the public interest of operat ing a facility beyond 20% may be established by showing that future emergencies may be averted thereby) surely more precision in stating such intent can be achieved. 4. Interpretation of 20% Limit Considerable amelioration of the harshness of the 20% limit can be achieved by reasonable interpretations or applications of the limit itself. First, it should be interpreted as referring solely to steady state operation for production of power and not the intermittent operation at various power levels normally required by the power test program. Such interpretation is fully consistent with, if not required, by the concept that operation beyond 20% will be permitted in emergency situations simply because until a unit is tested to full power and any measures to correct deficiencies disclosed during the power test program are completed, the unit cannot be available to respond in an emergency. The only basis for a contrary interpretation is a somewhat strained demarcation between the end of construction and commencement of operation arrived at because of safety implications of a reactor loaded with fuel. There is no warrant to extend this unique concept to the intermittent, short term operation required by the power test program where there is no contention that it will produce significant adverse and irreversible environmental impacts. Second, the 20% limit should be considered a site limit where there are two or more facilities on a single site. If, after consideration of the stated factors, operation of each of the units at 20% is justified, then there does not appear to be any reason not to permit either of them to be operated at the aggregate authorized power level of all units at the site. III. PROCEDURAL RULES It is our understanding that the Commission is preparing a revision of Appendix A to 10 CFR Part 2 governing the conduct of contested cases. The need for revision has been made unmistakably clear by the inability of the ASLB to reach decisions in several contested proceedings which have lasted many months. Because the revisions of Appendix A are expected in the immediate future and because the areas for and nature of corrective measures have already been thoughtfully delineated by others, most recently by Congressman Craig Hosmer, the following comments on hearing procedures are limited to solely those procedural ambiguities and oversights found within Appendix D itself. A. THE RIGHT AND SCOPE OF INTERVENTION The right to intervene and the burdens imposed upon intervenors vary from section to section within Appendix D. Thus, Section A is completely silent on intervention (except with respect to opposition to interim relief) and presumably the rules of intervention established by 10 CFR Part 2 are controlling. Section B.3 explicitly adopts 10 CFR Part 2 by providing that "any person whose interest may be affected by the proceeding may, in accordance with § 2.714 of this chapter, file a petition for leave to intervene and request a hearing." This provision is also made applicable by reference to those proceedings governed by Section D.3. If a proceeding falls under Section D, however, the additional requirement is imposed upon intervenors to "file an answer . . . setting forth the reasons why the license should not be continued, modified, terminated or conditioned as proposed." Section E.4(b) provides still a different requirement for intervenors, i.e., a request for a hearing "shall set forth the matters alleged to warrant a suspension determination other than that made by the Commission and shall set forth the factual basis for the request.” Why there should be three different requirements for intervention on environmental issues is not understood. In each category of proceedings an intervenor should be obligated to specifically plead the factual basis for his contentions. The mere assertion of conclusions, doubts or disbelief cannot provide an adequate basis for an orderly expeditious administrative hearing. B. TIME TO INTERVENE Throughout Appendix D, the right to intervene persists until 30 days after publication of the final Detailed Statement and a notice of hearing or opportunity for hearing. Nowhere is the basis for imposing this arbitrary period of delay explained. The rights of the public would be equally served if the right to intervene was initiated when an applicant files its Environmental Report or Supplemental Report. In the absence of any good cause shown, this right should expire 30 days after the public is on notice of the applicant's evaluation of any environmental effects. The justification for the early notice procedure respecting intervention and hearings on safety reviews is equally applicable to environmental review. Fundamentally, if the hearing process can be initiated earlier, it can be completed earlier, and since delays wreak their own environmental impacts, they should be eliminated wherever possible. C. INTRODUCTION OF COMMENTS INTO EVIDENCE Section A.10 provides that in any environmental hearing "the Applicant's Environmental Report, comments thereon and the Detailed Statement will be offered into evidence." Literally interpreted, the offer of evidence does not entail its acceptance. However, the concept of offering evidence does imply that some person will sponsor it and be available for cross-examination.. No problems are created by this concept with respect to either the applicant's Environmental Report or the Commission's Detailed Statement, because the applicant and the Commission are parties to the proceeding and available for cross-examination. This may or may not be the case with respect to any comments which may have been submitted. Accordingly, it should be made clear in Section A.10 that no comments shall be introduced over the objection of any party unless the person who submitted such comments is present for cross-examination. D. INTRODUCTION OF ALTERNATIVES NOT RAISED DURING COMMENT PERIOD The comment has previously been made that the Commission's guidelines to be published should include some boundaries upon the extent to which alternatives to a proposed action need be considered. In addition, within those boundaries another limitation should be applied at the hearing stage, i.e., that no consideration shall be required of any alternative which was not raised before the conclusion of the comment period on the Commission's draft detailed statement. To permit agencies or interested persons to sit back during the comment period with the knowledge that there are no bounds on their imaginations during the hearing process would defeat any attempt to maintain an orderly environmental review process. E. THE OPTION OF USING A SINGLE HEARING OFFICER IN LIEU OF THE ASLE IS 10 CFR Part 2 effectually provides that the Commission shall have an option to designate either a single presiding officer or an ASLB to conduct hearings. Appendix D is written in a manner which eliminates this option for environmental hearings, because no powers are granted therein to presiding officers. While Section 2.721(d) of 10 CFR Part 2 grants ASLB's the same powers as are granted to presiding officers, no where is there any converse grant. It is urged that this oversight be corrected and the option to use either single presiding officers or ASLB's be preserved for environmental hearings. COMBUSTION ENGINEERING, COMBUSTION DIVISION, Windsor, Conn., November 10, 1971. THE SECRETARY, U.S. Atomic Energy Commission, (Attention of Chief, Public Proceedings Branch). DEAR SIR: Combustion Engineering appreciates the opportunity to comment on the revised Appendix D to 10CFR50, as published in the Federal Register on September 9, 1971. Our comments are applicable to those areas directly concerning the nuclear steam supply system, especially where the Atomic Energy Commission has directed applicants to determine environmental effects. The following comments are directed to the Scope of Applicant's Environmental Reports with respect to Transportation, Transmission Lines and Accidents. There has already been considerable effort given to the study of accident classifications as evidenced by the development of ANS N. 18.2. It is recommended that this work be utilized and that Classes 2 through 8 be rearranged into the three categories of relative probability as follows: (1) faults of moderate frequency, (2) infrequent faults, and (3) limiting faults. The Commission should designate by regulation which accidents should be included in each class. In considering Classes 1 and 9, it does not seem appropriate that they should be listed. Class 1 has essentially a probability of unity and, therefore, such events should be considered in normal plant operation. Likewise, Class 9 should not be listed since it is not a design basis, as it involves failures of multiple barriers. The listing of Class 9 lends to it a degree of creditability which is not valid. Further, since the Commission says it is not necessary to discuss Class 9 in the Applicant's Environmental Report, it should be deleted from the list. The proposed guidance to evaluate classes of accidents as to probability or frequency of occurrence should be changed either by its deletion or by substituting a set of probabilities recommended by organizations such as AIF, EEI or ANS which are familiar with present nuclear plant design and past experience of operation. These recommendations should be reviewed and published by the AEC as a regulation for each class of accidents. The excellent safety record of the nuclear industry does not lend itself to numerical probabilities since the accidents of concern have not occurred. Further, the high levels of design and quality assurance are intended to continue the excellent safety record. If estimated probabilities are required in order to assess environmental effects of the entire nuclear industry, a uniform set of probabilities should be set as recommended above. To do otherwise would create a wide spectrum of probabilities based on numerical estimates that would be meaningless in judging the environmental effects of nuclear power. The following comments are not of as much direct concern to Combustion Engineering as those listed above, however, we offer them for consideration in the overall context of NEPA reports. Guidance should be given as to the form of the cost-benefit analysis to be performed. Specifically, the manner in which accidents and normal release of radioactive effluents during plant operation is to be combined into the costbenefit analysis should be suggested. Without this guidance, the comparison between plants of different design, or similar plants at different sites, is very difficult in discussing alternatives. This could be particularly cumbersome during public hearings where the concerned public is not familiar with the plant design and "acidents" and "routine release of radioactive material". There are probably many other areas of the cost-benefit analysis which share this problem and specific guidance should be given by the Commission on the preparation of a cost-benefit analysis. Combustion Engineering would be pleased to comment on such a guide. It is recommended that any further changes to Appendix D be made effective only after sufficient time for comments to be made and incorporated. Very truly yours, J. M. WEST, 48 LETTER: CHAIRMAN AEC/CHAIRMAN FPC Hon. JOHN N. NASSIKAS, Chairman, Federal Power Commission, Washington, D.C. DEAR JOHN: The views of the Federal Power Commission regarding the AEC's proposed amendments to Appendix D of Part 50 of our regulations are of much value to us. As you will have heard by the time you receive this letter, the Commission has approved interim procedures for NEPA implementation in the AEC licensing process. (I am enclosing a copy of those new procedures for your information.) While those procedures-were framed to carry out the mandate of the Calvert Cliffs decision properly center on the expansion of our consideration of the environmental impact of AEC licensing actions, the matter of power needs is certainly given its due place in the overall process. The cost-benefit balance (previously mentioned), the provisions for authorizing limited and emergency operation in appropriate circumstances and other provisions, such as the criteria for making suspension determinations, reflect our recognition that fully responsive application of NEPA's principles can accord a proper decisional place to the demonstrated power needs of a particular area. (See p. 203 for enclosure.) As to your request that we consider procedural methods which might minimize licensing delays, this is one of the things contemplated by the statement accompanying our new regulations that "the Commission is also examining steps that can be taken to reconcile a proper regard for the environment with the necessity for meeting the Nation's growing requirements for electric power on a timely basis." I subscribe to the need for continuing communication between our two Commissions so as to facilitate the exercise of our respective responsibilities, and would urge that your Commission keep us informed on the impact of delays in nuclear plant availability in the various regions of the country. Sincerely, JAMES R. SCHLESINGER. (556) |