ML19294A940
| ML19294A940 | |
| Person / Time | |
|---|---|
| Issue date: | 02/11/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| RULE-PRM-51-4 NUDOCS 8002260178 | |
| Download: ML19294A940 (14) | |
Text
NUCLEAR REGULATORY COMMISSION (Docket No. PRM-51-4)
Boston Edison Company, et al.;
Denial of Petition for Rulemaking AGENCY:
U.S. Nuclear Regulatory Comission ACTION:
Denial of Petition for Rulemaking, PRM-51-4
SUMMARY
- The Nuclear Regulatory Comission is denying a petition for rulemaking, date'd February 8,1978, sutraitted to the Nuclear Regulatory Comission by Mr. Robert Lowenstein on behalf of the Boston Edison Co., Florida Power and Light Co., and-Yankee Electric Co. (43 FR 9542, published 3/8/78). The petitioners requested that the Comission's regulations be amended to limit the scope of environmental review at the operating license stage to "those matters of environmental significance which have not been resolved in the environmental review conducted at the construction permit stage."
In denying the petition, the Comission found that the petitioners' argument was based on an erroneous assumption concerning the scope of an operating license safety review.
In addition, the Commission found that if the proposed amendments were adopted, the result would be to foreclose Comission consideration of even significant new information at the operating license stage, a result which would be undesirable as a matter of law and policy.
Ccxmlissioner Victor Gilinsky dissented frcm the denial.
He stated that a rule-making proceeding should be initiated to determine which environmental matters can sensibly be excluded from reconsideration at the operating license stage.
S'O 0 2 2 60 q q
. SUPPLEMENTARY INFORMATION: Notice is hereby given that the Nuclear Regulatory Commission has denied a petition for rulemaking submitted by letter dated February 8,1978 by Mr. Robert Lowenstein on behalf of the Boston Edison Co.,
Florida Power and Light Co., and Yankee Atomic Electric Co. A notice of the filing of the petition, Docket No. PRM-51-4, was published in the Federal Register on March 8, 19'78 (43 FR 9542) and interested persons were
' invited to connent on the petition by May 8,1978.
Eleven letters of comment were received. Of these, eight supported the petition and three recommended denial.
In addition, a comment recommending denial of the petition was received from the Council on Environmental Quality.
Backoround and Summary of Analysis The petition requested that sections 51.21 and 51.23(e) of the Commission's regulations 3/ e amended to limit the scope of the environmental review b
conducted at the operating license stage to *,those ma'tters of environmental significance which have not been resolved in the environmental ;eytew conducted 1/ 10.CFR 55 51.21 and 51.23(e).
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at the construction pemit stage. 2.f The petitioners' proposed amend-ments would specifically exclude from consideration at the operating license stage such matters as need for the plant, need for power, alter-native sites, and alternative energy sources.
-The petitioners' propcsed amendments are based largely upon an argument that'the safety review perfomed by the Nuclear Regulatory Commission
("NRC" or "Cccraission") in an operating license proceeding is quite limited as compared to the safety review perfomed by the Comission in a construction pemit proceeding. Petitioners argue that the scope of the review conducted pursuant to the National Environmental Policy M ("NEPA") in an operating license proceeding should ce detemined Act by the scope of the underlying safety review and concludes that the NEPA
' review at the operating license stage should be limited because the safety review at that stage is limited. However, as will be demonstrated below, p2titioners' argument is premised upon the erroneous assumption that the operating license safety review is limited to a detemina-tion of "whether the plant was properly constructed, the adequacy of proposed technical specifications, the manner in whichopen items' were resolved, and the sufficiency of the final design." Contrary to petitioners' assumption, and as will be shown in greater detail below, basic questions of plant operating safety do remain to be finally detemined at the operating license stage.
Petitioners also cite the " rule of reason" y Petition, at 1.
y 45 U.S.C. 5 4321 et,sec.
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. under NEPA and the Presidential policy to expedite nuclear power plant licensing as additional justification for limiting the operating license i
NEPA review.
Pe,titioners give no rationale to support a conclusion that any and all consideration of the cited issues is unkasonable as a matter s
of law. While it might be'1ega11f possible to limit the NEPA review at the operating license stage to new information of significance to the ultimate decision, petitioners appear to go further and seek to foreclos'e Cocnis-sion consideration of even significant new information. The Cecrdission does not believe that, either as a matter of law or policy, significant new information can be ignored.
Thus, because the major underlying premise for the petition--that the operating license safety review is limited--is incorrect, and because the result which the petition would achieve--disregard for even significant new information at the operating license stage-is undesirable as a matter of law and policy-.the Cemission has decided to deny the petition.
Analysis of Petition A.
Scoce of safety review at eceratino license stace.
Petitioners argue that the safety review at the operating licens.e stage is far more limited than is the safety review at the construction permit stage.
Petitioners reach this conclusion by first citing Section 185 of the Atmic Energy Act of 1954, as amended,O its legislative history, and the Mssion's regulations for the preposition that 4f 68 Stat. 921, 42 U.S.C. 5 2011, i 2235 (1975).
Muance of a construction pemit and operating license constitute only one proceeding.
Petitioners argue that iss"uance of a construction l
permit requires,the Cecnission to eventually issue an operating license 1
upon making only limited additional findings s,ince at the construction I
pemit stage the Cocnission must find that the planti "can be constructed and operated without undue risk to the public health and safety."N Section 185 of the' Atomic Energy Act, E cited by petitioners states:
Upon the completion of the construction er modification of the facility, upon the filing of any additional infor-mation needed to bring the original application up to date, and upon finding that the facility authorized has been constructed and will operate in confomity with the application as amended and in confomity with the provisions of this Act and of the rules and regulations of the Cornission, and in the absence of any good cause being shown to the Commission why the granting of a license would not be in accordance with the provisions of this Act, the Comission shall thereupon issue a license to the applicant.
htitioners cite the legislative history of this provision for the proposition that the drafters of tha legislation felt a need to give assurance at the construction pemit stage that an operating license would issue if certain conditions were compTied with. This same argument was addressed by the Supreme Court in power Reactet Development Co. v. International Union of Electrical, Radio and 5/
Petition, at 9 (Petitioner's emphasis).
!] Note 4, suora.
MachineWorkers.U In pRDC, the Supreme Court looked at Section 185
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and the very same provisions of the legislative history cited by the petitioners. It reached a conclusion contrary to petitioners':
Even a glance at 5185 suffices to show that issuance of a construction permit does not make automatic the later issuance of a license to operate. For that section sets forth three conditions, in addition to the completion of.
the cons.truction, which must be met before an ope, rating
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license is granted:
(1) filing of any additional infor-mation necessary to bring the application up to date-information which will necessarily in this case include detailed safety data concerning the final design of petitioner's reactor; (2) a finding that the reactor will operate _ in accordance with the act and regulations-i.e.,
that the safety and health of the public will be adequately protected--and with the construction permit itself, which is expressly conditioned upon a full investigation and finding of safety before operation is permitted; and (3) the absence of any good cause why the granting of a license to operate would not be in accordance with the Act 8/
Thus, under long-established. judicial precedent,. petitioners' assertion that under the Atemic Energy Act issuance of a construction pemit requires JJ 367 U.S. 396 (1961) [ hereinafter cited as pRDC.]
Petitioners cite the Cemission's decision in PRDC for'the proposition that findings at tnat time at the construction pemit stage were, themselves, limited and did not address issues of plant operating safety.
This point supports the view that the construction pemit and operating license proceedings were not meant by Congress to be one proceeding.
Indeed,. the Supreme Court in PRDC held that the Comission could defer censideration of plant operating safety issues until after the plant.was constructed.
8/ PRCC, note 7. suers, at 411.
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. the Cocmission to later' issue an operating license upon maki_ng certain additional limited findings is incorrect.
Petitioners' second point is that the Coemission's regulations themselves show that the Atcaic Energy Act has been implemented'in such'a way that the safety review at the operating license stage is more limited than the reYiew at the Construction permit stage.
Petitioner here cites the
' Ccmission's regulations in 10 CR 5550.23 and 50.56,E 10 CR 550.23 merely refers one to 10 CR 550.56.
In 550.56 petitioners focus en language that says "the Coccission will... issue a license" and deemphasize the intervening words "the Cocmission will in the absence of ecod cause shown to the contrary issue a license.'" Yet, these words track the language of the Act and clearly show that the Cor; mission is not obligated to issue an operating license.
.In addition, petitieners' argument regarding practice under the regulatiens ignores another portion of the Cocmission's regulaticns,10 CR 550.35c, which states:
(c) Any construction permit will be subject to the limitation that a license authorizing operation of the facility will not 10 CR S 50.23 reads as follows:
"A construction pemit... Will be N issued prior to the issuance of a license...
and will be converted upon due completion of the facility and Coccission action into a [an operating) license as provided in Sec. 50.56".10 CR I 50.56 reads as follows:
"Upon completion of the construction or alteration of a facility, in compliance with the terms and conditions of the con'struction permit and subject to any necessary testing of the facility for health or safety purposes, the Ccemission will, in the absence of good cause shown.to the contrary issue a license of the class for which the construction pemit was issued or an appropriate mencment of the license, as the case may be.
. be issued by the Commission until (1) the appTicant has sub-mitted to the Comission, by amendment to the application, the complete final safety analysis report, portions of which may be submitted and evaluated from time to time, and (2) the Ccamission has found that the final design provides reasonable assurance that the health and safety of the public will not be endangered by operation of the facility in accordance with the requirements of the license and the regulations in this chapter.
i This provision indicates that issuance of an operating license entails much more than just a detemination that the plant has been built in compliance with the construction pemit.
It indicates that major findings of plant operating safety are left to be finally made at the operating
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license stage.
In suppcet of its argument that little remains to be resolved at the operating license stage, petitioners also assert that the list of outstand-ing issues in recent safety analysis reports is small.
Whether the list is small or large is open to debate, depending on hos one views the signi-ficance of some of the safety issues involved.
What is clear is that it is cuite c:: men for resolution of at leas't some significant safety questions to be postponed until the operating license stage.
It is not tnJe that the operating license review is limited in the sense suggested by petitioners.
FinOly, petitioners argue that Section 50.109 of the Comission's' regu-1ations regarding backfitting supports the view that the Comission con-siders cx3st safety issues to be resolved at the construction persit state.
That provision states:
.g.
As used in this section, " backfitting" of a production or utilization facility means the addition, elimination or modification of structures, systems or components of tht, facility after the constmetion permit has been issued..!.M/
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While petitioners' argument regarding this provisioq is not clearly set forth, it appears that petitioners are arguing that the backfitting rule reflects'a licensing framework in which all major issues are finally
. resolved at the censtmetion permit stage. ' This is not the case, as seen from the discussion above. The backfitting rule was never intended, and is not now used, to define the~ scope of review at the operating license stage.-
In su=ary, petitioners' argument regarding the scope of the operating license safety review is without merit.
The scope of the safety review at the operating license stage is not limited in the sense suggested by petitioners.
Basic findings of the safety of plant operability remain to be finally made at the operating license stage.
In fact, the Comission must there make a full-fledgad safety finding that it has
" reasonable assurance that the health and safety of the public will not be endangered by~ operation of the facility in accordance with the requirements
. of the license and the regulations..."U B..
Scoce of NEPA review at the coeratino license stace.
Petitioners argue that the scope of the NEpA review at the op~erating M 10 CFR 1 50.109(a).
11f10CFRI10CFR550.35c.
license stage should not exceed *the bounds of the~ underlying health and-safety review of the. application at this stage.. Thbs, as petitioners' argument,goes, since the scope of the safety review'at the' operating license stage is limited the scope of the NEPA review sho01" be d
similarly narrowed. However, in the preceding section, petitioners' argument that the scope of the safety review is limited'is shown to be incorrect.
It would follow, then, that the NEPA review cannot be limited on these grounds te exclude consideration of issues ~ such as need'for power, alternate sites and alternate energy sources.
There remains petitioners' argument based upon the " rule of reason." Our present regulations acknowledge that the NEPA review'at the' operating license stage must include consideration.of new information or infomation different from that considered prior to issuance of a construction permit.
Our present regulations also recognize that duplicating at the operating license stage the environmental review conducted'at the construction pemit stage is unnecessary. Thus Section 51.23(e) of the Comissicn's regulations provides that:
A draft environmental impact statement prepared in connection with the issuance of an operating license will cover only matters which differ from, or which reflect new information in addition to,those matters discussed in the final environmental impact state-ment prepared in connection with the issuance of the construction pemit.
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Petitioners themselves recognize that NEPA requires that "each agency decision-maker has before him, and takes into proper account, all environ-mental impacts of a particular project."E Courts have held that an adequate NEPA review must be based upon the best info ~mation reasonably available at the time of the proposed actioM and that a new or supple-mental environmental impact statement may need to be prepared where there are new or changed effects of significance to the environment associated with a proposed federal action.1#l Indeed, the D. C. Circuit in Calvert CliffM follows this view and states clearly that environmental' impacts mus't be considered at the operating license stage but implies that this review need not duplicate the NEPA review at an earlier stage " absent new infomation or new developments, at the operating license stage."E While it might be possible to limit the NEPA review to new infomation of significance to the ultimate decision on the proposed action, petitioners appear to go further and seek to foreclose Commission consideration of even significant new infomation. Such a result would be reached if, as petitioners suggest, the NEPA review at the operating license stage were confined t; issues left enresolved at the construction permit stage and no account could be taken of new infomation that had been developed on the issues considered to be resolved.
12f Petition at 17 citing Environmental Defense Fund v. TVA, 339 F.Supp.
806, 810 (E.D. Tenn.,1972) [Empnasis addec).
13/ State of Alaska v. Andrus, 580 F.2d 465 (D.C. Cir.1978).
3 11/ Essex City Preservation Ass'n v. Camobell, 536 F.2d 956, 951 (1st Cir.
1976).
15/ 449 F.2d 1109,1128 (D.C. Cir.1971).
16 Id.
The premise here seems to be that no new information regarding these matters could ever be of any significance to the operating license decision.
While this may be true, in some cases, petitioners offered no data or detailed argument to support the proposition, and we are reluctant to proceed on this matter without-more information.
While this would ordinarily lead us to defer action on the peti-tion rather than to deny it, three special considerations here lead us to denial.
First, present NEPA law allows the Comission to dismiss an alternative or other NEPA matter summarily-if detailed consideration is not warranted, and new infor-mation regarding need for power, alternative fuels, and alternative. sites could ordinarily be dealt with sumarily at the operating license stage unless there is something about the case that suggests that a detailed review would produce some conclusions that would be of significance to the operating license ecision.
Second, the Comission does not now have resources to devote to the further study of these matters.
We do have under separate consideration proposed rules that will address alternative site reviews at the construction pemit and ope' rating license stages.
It is possible that, as a practical matter, there can be no significant new information as to alternate sites at the operating license stage.
If we so conclude in the context of that rulemaking, we may then limit the scope of alternate site reviews in OL proceedings to the maximum extent per-mitted by law. While a reallocation of resources might be warranted at this time
'if the petition alleged that the promulgation of a new rule was required to protect health and safety or the environment, this is not the case here.
Finally, the NEPA " rule of reason" argument is a subsidiary one in_ the petition.
The heart of the petition is petitioners' argument regarding. the scope of safety reviews at the operating license stage--an argument that we have rejected. Thus we are denying the petition.
When the Commission's own proposed rules on NEPA alternative site reviews are published for coment, petitioners are of course free to present us with additional information regarding alternative site reviews at the operating license stage in that context.
By letter dated October 4,1979 petitioners requested an oral hearing on the petition. The Comission believes that the various papers before it, which
'include the petition, several letters of coment thereon, and a staff analysis, provide a full discussion of the legal policy issues raised by the petition.
In view of this, the Comission has decided that oral hearings would not serve a useful purpose, and is denying the request. E/
Comissioner Gilinsky dissented in the denial of the petition, as follows:
"I am surprised that Commissioners who have so often called for regulatory reform have, when confronted by an opportunity to rationalize the Comission's procedures, opted to perpetuate a mindless bureaucratic exercise.
I agree with the petitioners that it appears futile to reconsider matters such as the need for the plant and alternative sites at the operating license stage when the plant has been substantially completed.
preservation of this type of review seems to be a waste of time and money for the Commission and for those affected by our. proceedings.
I believe that we should grant the petition and initiate a rulemaking proceeding to determine which environmental matters can sensibly be excluded from reconsideraticr1 at the operating license stage."
J7/ Commissioner Kennedy would nave preferred that petitioners be given the opportunity to present their arguments orally to the Comission.
14-Copies of the petition for rulemaking, the coments thereon, and the NRC's letter of denial with Comissioner Gilinsky's dissent are available for public inspection and copying in the NRC Public Document Rooni at 1717 H Street, NW.,
Washington D.C.
Dated at Washington, D.C. this lith day of February, 1980.
For the Nuclear Regulatory Comission 8 e ti O
. t j,
Samuel p.7hilk
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Secreta {y of the Comission a
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