INTERIM LICENSING

The first specific problem-and the Commission's most immediate plant licensing concern-is one possibly shared with other agencies: the rigid proceduralization of the section 102 environmental statement. NEPA, in essence, is a broad congressional statement of social policy, coupled with a comparably generalized enjoinder that Federal agencies carry out their programs in conformity with those policies.

It also contains a relatively specific direction for agency preparation of an environmental report analyzing each proposed action which may have significant environmental impact. The environment report-or impact statement-as the only "procedural" requirement of the statute, has been taken by the courts as the gage for measuring agency compliance with the overall policy announced by the Congress in NEPA. While this corresponds on its face with traditional concepts of judicial review, and seemingly imparts an element of certainty to the agency implementation process, the unsettling reality is that NEPA's sweeping scope, its broadly stated social goals, and its meager legislative history combine to leave both the agencies and the courts with a formidable task of devising a workable implementation regime.

The Quad Cities case illustrates this problem. After Calvert Cliffs, the Commission chose not to appeal the decision further, but to implement through appendix D of its regulations a very stringent NEPA review regime. The dominant criticism coming from the industry was that the Commission had overreacted. Some industry observers regarded the new regulations as unduly inflexible. I believe it is a fair statement that most environmental groups felt the regulations were quite stringent.

The appendix D regulations recognized that the rules had in fact changed in midpassage. To deal with the transition, they provided the possibility for interim licensing for short periods of operation of a limited number of plants that were caught in the rules changes where there were overriding public interest requirements. Interim licensing, as defined by the Commission, is possible only in restricted circumstances, after an environmental review coextensive with the interim operation applied for and when strong public interest justification such as urgent power needs-exists for such operation. In contested cases, moreover, this can only be done after opportunity for hearing. Operation in excess of 20 percent of full power can be authorized only by order of the Commissioners.

These provisions were felt essential to maintain a balance which recognized the importance of environmental protection, as well as the interest of the public in avoiding nonavailability of scheduled supplies of power. The appendix D regulations also recognized that, since it usually takes at least 8 weeks of test operation at gradually increasing power levels to bring a reactor up to full operation, allowing preoperational reactor and plant testing as early as possible served safety as well as power supply considerations.

The district court entertained a suit seeking to bar Commission action even before the Commission had acted on the application for a several-month period of interim operating authority under its regulations. The court preliminarily enjoined the Commission from issuing any license prior to completion of the full environmental re

view. The decision was handed down on December 13, 1971. The AEC completed the environmental review on 20 percent interim operation on January 24, 1972, and announced that, but for the injunction, it would issue the interim license for operation up to that level. A copy of the supporting documents is submitted for the record.'

The Commission immediately requested the Justice Department to appeal. At the moment, a fully constructed large-scale generating facility stands idle, the halt primarily based on affidavits from which it is learned at most that, at 50 percent operation of the Quad Cities facility-a level of operation which the AEC has not in fact authorized the reproductive habits of certain species of fish in a limited. portion of the river, some 4,000 feet, might be adversely affected. At the same time, the Federal Power Commission has stated that the plant is urgently needed in at least standby readiness to provide required power supply margins in the Midwest this summer. This urgent need, together with the environmental advantages of allowing interim operation of the Quad Cities units so as, among other things, to allow retirement of polluting overage fossil units, was recognized, by the Illinois Pollution Control Board in a decision authorizing interim operation of the Quad Cities station under a variance from State thermal discharge regulations.

While we are hopeful the case will be reversed by the circuit court of appeals, the uncertainty of judicial result in this area has led us to prepare legislation to accommodate the situation, as a hedge against the possibility of an adverse decision.

Let me repeat the problem here seems to be an overemphasis on procedure with little regard for the substantive issues involved. The full NEPA statement designed to appraise the full-power effect of a plant over a number of years would not seem to be a necessary prerequisite for a much shorter period of plant testing possibly culminating in less than full-power operation, the whole of which will last but a few months. Particularly is this so when a finding of no irreversible effects is made, when there is a strong public need, and when an environmental review coextensive with the action sought to be taken is performed.

In view of the shortness of time, let me move rather more quickly and mention several other areas that may ultimately be worthy of congressional attention in respect to NEPA.

CUMULATIVE ENVIRONMENTAL SURVEYS

The possible desirability of an environmental survey is a product of the limitations of the present single-purpose statement. Such a survey contemplates the assessment of collective effects of a series of individual actions. One example occurs with the hypothetical siting of powerplants around or along a body of water, or in a discrete geographical area, such as a valley or demographic unit. There is a logical argument that can be made for an overall assessment of multiple-site environment impact that would allow overall cost-benefit assessment of a multiple-facility situation. The enormity of the task of preparing such a statement under NEPA as presently constituted sug

1 The document referred to appears on p. 133.

gests that a more generalized formal procedure-a survey rather than a statement-might be the better solution to broad-gage evaluations of regional considerations and an aid to defining a more workable scope for individual environmental statements.

RESEARCH AND DEVELOPMENT ASSESSMENTS

Another area of present uncertainty involves the rationalizing of the 102 statement and agency actions which essentially constitute or involve research and development. R. & D. by its very nature implies that there are uncertainties and unknowns. Continuing efforts and projects are designed to clarify and to provide answers for these uncertainties and unknowns. In such a situation, the procedural exigencies of the 102 environmental statement, together with the receptively simple appearing five-point requirement for the contents of the statement, allow the implication-readily picked up by zealous litigants, not to mention ordinary citizens and other Federal agencies-that the R. & D. project should not begin until the statement can be made to contain the very answers which the R. & D. effort is seeking. While some of these assertions are freighted in efforts to halt continuation of a whole area of technological development, the fact remains that there is no present guidance to shape the scope of the statement and the degree of precision and future reach required in areas of rapidly developing technology. The present controversy-including a pending lawsuit-surrounding the proper scope of a NEPA impact statement for the LMFBR demonstration plant is illustrative of this problem.

One unique feature in dealing with AEC operating programs in relation to NEPA occurs as a part of the Federal Government budget process. In order to obtain necessary funds to initiate the design for a new facility the AEC is required to prepare a NEPA impact statement in those cases where there is potential for a significant impact on the environment. Yet, until these initial funds are obtained and the design of the facility is well along, it is only possible to deal in generalities in describing the environmental impact of the proposed new facility.

It may well be that a less strictly proceduralized approach to environmental considerations of this kind will be required to deal with areas of development where action and decision must be based on expert judgment and scientific prediction-mere human capabilitiesinstead of empirical fact and experience. I might point out that the extent of our research into a number of environmental effects, and development of means to cope with them, are included in this appraisal. Admittedly, lack of precise knowledge, or acceptance of opinion or projection, involves a degree of risk; and risk should be minimized. However, we cannot, in the name of the environment, afford the luxury of acceptance only of risk-free ventures-if there be any such. Assessment of allowable levels of risk is more amenable to legislative or executive rather than to judicial decisionmaking, it is less susceptible to the sort of quantification presently required by NEPA, and thus may be more appropriately the subject of "survey" rather than "statement" treatment.

NEPA AND THE ADMINISTRATIVE PROCESS

As earlier noted, AEC licensing activity consists of two steps, each of which presents an opportunity for a comprehensive degree of public participation in reviewing the application. The extent of contest in terms of number of cases and protraction within each case was already of concern prior to NEPA. As to the potential for adversary inquiry in the post-NEPA period, one need only examine a representative impact statement for a nuclear plant. For illustrative purposes, I have supplied for the record a copy of the draft detailed environmental statement for one such plant. I know of no other agency where NEPA evaluation is subject to such fullsome public adversary review.

The AEC is working with the Administrative Conference to examine alternative procedural ways in which public participation in the licensing process may be conducted. The opportunities for unending litigation by those who have no or little obligation to make the system work can readily be seen from the scope of the NEPA impact statement which I have furnished for the record. Whether the public interest and congressional intent can best be served by a less microscopic analysis remains to be seen in the course of coming months.

In the meantime, the requirements in terms of manpower and dollars may be of interest. Over 200 persons within the AEC and its laboratories are engaged in the review, preparation, and processing of environmental statements. A funding level of $5.8 million is required in fiscal year 1972 for implementation of the National Environmental Policy Act as compared to less than $1 million in fiscal year 1971, preCalvert Cliffs. This level of funding must be continued, in fact increased, in fiscal year 1973, if our goal of reducing the backlog to a manageable level is to be attained. The impact in workload can be illustrated by the fact that the manpower effort of about one-half a man-year per case in NEPA review before Calvert Cliffs has increased sixfold at this time.

ENVIRONMENTAL JURISDICTION

A matter of increasing concern in agencies of Government and to the public is the question of who ultimately will be primarily responsible for environmental evaluation and review. The present state of uncertainty in the reactor licensing area again provides an illustration of problems which may not have surfaced in other areas. In the AEC's case, the problem is manifest in two areas. First, as posed by Kalur v. Resor, is the question of whether or not there should be a lead agency concept in the Federal Government where one agency has acknowledged primacy in environmental evaluations. The enjoining of the Corps of Engineers' Refuse Act discharge permit program by a Federal district court in Kalur could preclude nuclear powerplant operation as and if-the AEC is able to license plants. The court's decision would, in effect, require the Corps of Engineers to prepare an environmental statement under NEPA for each discharge permit. This decision has been appealed by the Government; however, as a means for accommodating the near-term situation, it would seem logical that, after the AEC has gone through the process of compiling detailed statements such as that which I have already put into the

76-248-72-7

record, the Corps of Engineers could act on the basis of the AEC evaluation.

By designating the AEC as "lead agency" in respect to nuclear plants, the duplication in at least the nuclear plant area could be eliminated. In any case, aside from the duplication, there is the additional uncertainty as to who will make the final decision, and whether meeting one set of Federal standards should not be enough.

A second question arises with regard to the question of whether the States or the Federal Government will have primary or initial environmental jurisdiction. In the AEC's situation, this quandary is illustrated by our consideration of the proper scope of the Baker amendment to the proposed Federal Water Pollution Control Act Amendments of 1972. To the extent that we can see enactment of a powerplant siting regime similar to that inherent in the administration's powerplant siting bill, it is clear that the States ultimately will assume the jurisdiction for overall plant siting and nonradiological environmental review that the Commission presently exercises. On this assumption, an inclusive interpretation of the Baker amendment might seem warranted-the Commission can accept the State water quality certification on its face, and need not thereafter consider water quality questions in the Federal licensing process.

Such an interpretation recognizes ultimate State jurisdictional primacy, and anticipates that time when the States will have assumed other environmental responsibilities as well, including air and esthetics. Additionally, this interpretation would appear to have certain salutary forcing characteristics in achieving that end.

On the other hand, if in fact the Federal Government through the Commission will retain overall responsibility for plant environmental review, then a more restrictive view of the Baker amendment is appropriate the AEC could not look behind the certification but would be required to factor the result of the State water certification into the overall plant cost-benefit balance. In this second interpretation-which comports with the intent of the proponent of the amendment as expressed on the floor of the Senate--assuming the States acquired other certification powers as to air esthetics and other environmental values, a Federal agency would be required to accept the individual State evaluations without power to change them, yet still would be required to perform a balancing function. Thus, the view one takes of the Baker amendment depends on one's viewpoint of how and when the jurisdictional question will finally be answered.

We have had strong indications that environmental groups and other interested public groups are convinced that the Federal Government must maintain the overall balancing of environmental factors on a plant-by-plant basis. I include this in my presentation to indicate this as an area in which the Congress well may be required to lend definition as the overall environmental review process matures.

In conclusion, in no way has it been my intention to criticize the handling of NEPA by the courts. NEPA, overall, has resulted in a healthy reorientation of governmental perspectives and priorities; and the courts have in various instances played a useful, even sobering role in this process. What I have suggested is that the vacuum of specific legislative guidance has left the courts with interpretative functions