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Mr. EDWARD J. BAUSER,

U.S. ATOMIC ENERGY COMMISSION,
Washington, D.C., July 30, 1970.

Executive Director, Joint Committee on Atomic Energy,
Congress of the United States

DEAR MR. BAUSER: This is in response to your letter of June 10, 1970, concerning the Commission's proposed revision to Appendix D to 10 CFR Part 50, entitled "Statement of General Policy and Procedure: Implementation of the National Environmental Policy Act of 1969 (Public Law 91-190)", which was published in the Federal Register for comment on June 3, 1970.

Your letter referred to paragraph 5 of the proposed revision to Appendix D, which states that after receipt of the Federal, State and focal comments requested pursuant to paragraphs 3 and 4, the Director of Regulation or his designee will prepare a Detailed Statement on various environmental considerations which will include, where appropriate, a "discussion of problems and objections raised by Federal, State and local agencies and the disposition thereof." You asked what was intended with respect to the "disposition" of problems and objections raised by Federal, State and local agencies, and gave five examples of issues that might be raised in such comments. Finally, you asked whether, in my opinion, the proposed revision to Appendix D sufficiently apprises applicants of the scope, nature and detail of the environmental matters that they ought to be prepared to cope with in the licensing procedure.

The language in proposed paragraph 5 quoted above follows substantially language in the Council on Environmental Quality's "Statements on Proposed Federal Actions Affecting the Environment, Interim Guidelines", which was published in the Federal Register on May 12, 1970 (35 F.R. 7390). Paragraph 7(a)(vi) of the "Interim Guidelines" states that the environmental statements to be prepared pursuant to section 102 (2) (C) of the National Environmental Policy Act of 1969 should include “[w]here appropriate, a discussion of problems and objections raised by other Federal agencies and State and local entitles in the review process and the disposition of the issues involved."

In accordance with paragraph 5 of the proposed revision to Appendix D and the Council on Environmental Quality's "Interim Guidelines", Detailed Statements to be prepared by the Director of Regulation or his designee will include, where appropriate, a discussion of any problems and objections raised by Federal, State and local agencies and the disposition thereof.

Where the license applicant has taken action or outlined a course of action to meet these problems and objections, the Detailed Statement could appropriately describe those efforts. However, paragraph 9 of the proposed revision to Appendix D indicates that the preparation and filing of the Detailed Statement shall not be construed as extend

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ing the licensing or regulatory jurisdiction of the Commission to making independent determinations on matters other than those specified in Part 50 of the Commission's regulations for construction permit or operating license applications.

Beyond that, paragraph 10 of the proposed revision to Appendix D states that the Commission will incorporate in construction permits and operating licenses for power reactors and fuel reprocessing plants a condition to the effect that the licensee shall observe such standards and requirements for the protection of the environment as are validly imposed pursuant to authority established under Federal and State law, and as are determined by the Commission to be applicable to the facility that is subject to the licensing action involved. This condition would not apply to radiological effects, since such effects are dealt with in other provisions of the construction permit and operating license, or to matters of water quality covered by section 21(b) of the Federal Water Pollution Control Act.

With one exception (example 2), the examples given in your letter of issues that might be raised do not, on their face, appear to deal with radiological effects or matters of water quality covered by section 21(b) of the Federal Water Pollution Control Act. Therefore, to the extent that matters concerning the noise level from the plant ventilation system or generating equipment (example 1), meteorological effects from cooling tower operations (example 3), restrictions on vehicular traffic associated with the construction and operation of the facility (example 4), and aesthetics of the plant design (example 5) are covered by Federal or State standards or requirements for the protection of the environment validly imposed pursuant to authority established under Federal or State law and determined by the Commission to be applicable to the facility involved, such matters would be within the scope of the license condition. Pursuant to paragraph 11 of the proposed revision to Appendix D, determinations made by cognizant Federal or State bodies that there is not reasonable assurance of compliance with the standards and requirements encompassed by the license condition will be deemed proper for consideration in Commission licensing proceedings. However, the Commission would not make an independent review of standards or requirements validly imposed pursuant to authority established under Federal and State law, or equipment or measures proposed by the applicant to meet such standards or requirements.

Example 2 in your letter, dealing with the release of chemical compounds used to treat condenser cooling water, appears, on its face, to be a matter of water quality covered by section 21(b) of the Federal Water Pollution Control Act. This matter would not, therefore, be covered by the license condition referred to above. Furthermore, pursuant to paragraph 6 of the proposed revision to Appendix D, the Detailed Statement prepared by the Director of Regulation or his designee will not contain a detailed discussion of this matter, but will include only a reference to the certification issued pursuant to section 21

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(b) or to the basis on which such certification is not required. In accordance with section 21(b), the AEC would generally be prohibited from issuing any license or permit for any nuclear powerplant or fuel reprocessing plant which will discharge effluent into the navigable waters of the United States without having received certification from the State, or interstate pollution control agency, or the Secretary of the Interior, as appropriate, that the plant will not violate applicable water quality standards.

In response to your last question, I believe that at this point in time the proposed revision to Appendix D offers reasonable guidance to applicants with respect to the environmental matters they ought to be prepared to cope with in the licensing procedure.

The Commission recognizes, however, that further guidance may be desirable in connection with the preparation of the Environmental Reports which are to be submitted by applicants and which will serve as a basis for the Detailed Statements to be prepared by the Director of Regulation or his designee, and has indicated in the Statement of Considerations which accompanied the publication of the proposed revision in the Federal Register that additional guidance will be provided. Sincerely yours,

HAROLD L. PRICE, Director of Regulation.

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10

TITLE 10-ATOMIC ENERGY*

CHAPTER I-ATOMIC ENERGY COMMISSION

PART 50-LICENSING OF PRODUCTION AND UTILIZATION FACILITIES IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

On June 3, 1970, the Atomic Energy Commission published for comment in the Federal Register proposed amendments to its regulations in 10 CFR Part 50, Appendix D, a statement of general policy that indicates how the Commission will exercise its responsibilities under the National Environmental Policy Act of 1969, Public Law 91-190, with respect to the licensing of power reactors and fuel reprocessing plants (35 F.R. 8594). The proposed amendments would revise Appendix D to reflect (1) the guidance of the Council on Environmental Quality, and (2) the enactment of the Water Quality Improvement Act of 1970.

REVISED APPENDIX D AS PUBLISHED FOR COMMENT

Under revised Appendix D set out in the notice of proposed rulemaking, applicants for construction permits for nuclear power reactors and fuel reprocessing plants would be required to submit with the application a separate report on specified environmental considerations. Applicants for operating licenses for such facilities would be required to submit a report discussing the same environmental considerations, to the extent that they differ significantly from those discussed in the report submitted at the construction permit stage.

Copies of such reports would then be transmitted by the Commission, with a request for comments, to Federal agencies designated by the Council on Environmental Quality as having "jurisdiction by law or special expertise with respect to any environmental impact involved" or as "authorized to develop and enforce environmental standards" as the Commission determines are appropriate. A summary notice of availability of such reports would be published in the Federal Register, with a request for comment on the proposed action and on the report from State and local agencies of any affected State (with respect to matters within their jurisdiction) which are authorized to develop and enforce environmental standards.

After receipt of the comments of the Federal, State, and local agencies, the Commission's Director of Regulation or his designee would prepare a Detailed Statement on the environmental considerations, including, where appropriate, a discussion of problems and objections raised by such agencies and the disposition thereof. In preparing the Detailed Statement, the Director of Regulation or his des

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*35 F.R. 18469, December 4, 1970.

ignee could rely, in whole or in part, on, and incorporate by reference, the appropriate Applicant's Environmental Report, and the comments thereon submitted by Federal, State, and local agencies, as well as the regulatory staff's radiological safety evaluation.

Revised Appendix D as published for comment provided that both the Applicant's Environmental Reports and the Detailed Statements would be required, with respect to water quality aspects of the proposal covered by section 21(b) of the Federal Water Pollution Control Act, to include only a reference to the certification issued pursuant to section 21(b) or to the basis on which such certification is not required. License conditions imposed under Appendix D, requiring observance of standards and requirements for the protection of the environment as are validly imposed pursuant to authority established under Federal and State law and as are determined by the Commission to be applicable to the facility that is subject to the licensing action involved, would not apply to matters of water quality covered by section 21(b) of the Federal Water Pollution Control Act.

The types of materials licenses to which procedures and measures similar to those for nuclear power reactors and fuel reprocessing plant licenses would be applied were indicated in the notice of proposed rulemaking.

All interested persons were invited to submit written comments and suggestions for consideration in connection with the proposed amendments within 30 days after publication of the notice of proposed rulemaking in the FEDERAL REGISTER on June 3, 1970. The Commission has received a number of comments reflecting a variety of, and sometimes conflicting, points of view. All comments have been carefully considered. A number of the comments received are discussed below. Upon consideration of these comments and other factors involved, the Commission has adopted the revised Appendix D set out below.

SIGNIFICANT CHANGES FROM PROPOSED APPENDIX D

Before discussing the new or amended provisions of Appendix D as adopted by the Commission, it is considered appropriate to point out, by way of background, that the Commission, under the Atomic Energy Act of 1954, as amended, is required to hold a public hearing at the construction permit stage for, among other facilities, each nuclear power reactor and fuel reprocessing plant. This hearing is required whether or not there is a contest regarding the issuance of the permit. At the operating license stage there is opportunity for a further public hearing at the request of any person whose interest may be affected by the proceeding. A central purpose of these hearings under the Atomic Energy Act of 1954, as amended, is to provide an open, public review of the radiological effects of the facility on the environment.

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