ML20004E310
| ML20004E310 | |
| Person / Time | |
|---|---|
| Issue date: | 04/01/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20004E300 | List: |
| References | |
| REF-10CFR9.7, TASK-RINV, TASK-SE SECY-81-208, NUDOCS 8106110529 | |
| Download: ML20004E310 (4) | |
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H U M 8 ADril I, 1 %l RULEMAKING ISSUE (Notation Vote)
For:
The Commissioners From:
Leonard Bickv.i.t, Jr., General Counsel
Subject:
GENERIC RULEMAKING Discussior' :
CGC, OELD, NRR, the Atomic Safety and Licensing Appeal Panel, and the Atomic Safety and Licensing Board Panel have considered some thirty possible topics for generic rulemaking to reduce OL hearing litigation and agreed that the topic discussed I
belo'r deserves further serious consideration by staff.
It is our intention that the final decision l
on initiating rulemaking would await further staff l
study to confirm that the trade-off between time I
and resources required for rulemaking and OL litigation time and resources savings is favorable.
The topic is the comparative environmental effects of nuclear and coal-fired plants.
l NEPA requires that environmental impact statements be prepred for " major Federal actions signifi-cantly affect-ing the quality of the human environ-l l
men t. "
These statements must include both the costs and benefits of the proposed action and the costs and benefits of reasonable alternatives.
Moreover, the statement must be considered in t.he
Contact:
Martin G.
Malsch, OGC, 41465 l
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2 agency review process.
Calvert Cliffs v. AEC, 449 F.2d 1109 (D.C. Cir. 1971).
Issuance of an operat-ing license for a nuclear pcwer reactor is clearly a major Federal action significantly affecting the quality of the human environment.
Thus under NEPA the costs and benefits of the proposed issuance of i
an operating license and reasenable alternatives to that license must be discussed and considered in the NRC review process.
However', at the operating license stage the NEPA review may be different from the review at the construction permit suage because of the fact that the plant is completed.
The law is clear that the capital investment in the plant and other sunk costs may be considered.
New England Coalition en Nuclear Pollution v. NEC, 582 F.2d 87 (1st Cir. 1978); Calvert Cliffs v.
AEC, supra.
Thus, in considering the costs and benefits of the proposed action and alternatives at the operating license stage, the financial and environmental costs asscciated with plant construc-tion may be ignored, with the result that the costs and benefits' of the proposed action are merely the environmental and economic costs and benefits of plant operation, and reasonableness of alternatives is judged with reference to a proposal that entails no additional capital or other construction related costs and offers near-term on-line availability.
i In considering the costs and benefits of the proposed action under NEPA at the operating license stage, the environmental and econ'omic costs of plant operation are weighed against either the benefit of providing needed electrical energy (the so-called need for power benefit) or the economic and/or environmental benefits associated with retiring older plants from base-load service (the-so-called substitution benefits).
This weighing comprises the so-called "need for the plant" issue i
discussed in every impact statement.
The NRC has a clea:1y established principle that failure to meet electrical energy demands would be "un thinkable ".
Vermont Yankee Nuclear Power Corp., ALAB-179, 7 AEC 159 (1974).
Thus, if it can be shown that refusal to allow plant operation would jeopardize reliable electrical service, then a favorabic NEPA cost-benefit balance is established conclusively.
Contentions which simply assert that the plant should stand idle in the face of blackouts or brownouts can be rejected at the outset without
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,1 any litigation on the merits.
However, because of declining electrical energy load growths, many, if i
not most, plants now at the operating license stage are justified under the substitution theory.
Under this NEPA benefit thacry need for power as a benefit is ir :elevant.
In considering the costs and benefits of reasonable alternatives under NEPA at the operating license stage, the first task is to select the reasonable alternatives.
Because af the sunk costs, alterna-tives requiring irrge capital or environmental construction cos ; are seldom proferred.
The alternative of abandoning the plant and construct-ing the same plant on a difterent site is not per 4
se a reasonable one, and, as far as we are aware, no intervenor nas ever proferred such an alternativ:
at the operating licenso stage.
On the other hand, the alternative of deferral of nuclear plant cperation in favor of increased energy censervatien or use of existing coal or oil-fired units or other l
capacity available in the short term is not per se
..nrcasonasle.
Indaed, many, and perhaps most
" alternatives" contentions at the operating licence stage are c."
this type.
Theca " alternatives" I
contentions are attractive to intervenors because initial operation of a nucicer plane usually results in significant conscaer electric rate increases sinct it is at this paint in time that r
l the p1&ct usually goes into the rate base'.
Deferral of nuclear plant cperation is seen by intervenors as a way to avoid both environmental and economic costs -- at least fer the short tarm.
l We understand chat the staff is currently working on po ;11ble rulemaking to establish some threshhold for need for power contentions at the cperating.
license stage.
However, given the widespread use of the " substitution" benefit theory at the operating license stage, which renders need for l
pcwer irrelevant as a benefit, rulemaking on alternatives would seem to hava the most impact in terms of reducing hearing litigation.
As discussed the alternatives involving most hearing litigation appear to be those with small capital or construc-tion costs and short-term availability.
Thus consideration of possible rulemaking candidates should focus on currently available options, such i
l as oil and coal-fired plants, geothermal, energy I
conservation, and the like.
Further, the rulemakin:
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4 would need to focus on either short-term feasibility or the environmental and/or economic effects of the option as compared to nuclear plants.
Staff believes that most of these alternatives, including 3
oil, geothermal, and energy conservation, either require resources incommensurate with the benefits of rulemaking or are too region-specific for rulemaking.
However, the staff presentation on differential environmental effects of coal-fired and nuclear plants is fairly standard, and could be the subject of rulemaking.
A number of other topics which the group believed appropriate for.some rulemaking consideration are already the subject of papers being prepared by staff for the Commission's consideration.
These are hydrogen control, TMI-related OL requirements, alternative sites at the OL stage, and (as noted above) need for power at the OL <tage.
Any further comments on these matters will need to await completion of s'
' ' studie s.
Rules on two other rulemaking topie.
considered worthwhile, ATWS and financial qualif.tcations, are already pending before the Commission.
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Leonard Bickwit, Jr.
General Counsel l
SECY NOTE: The General Counsel recomends that the NRC staff prepare a paper for Comission l
censioeration which more thoroughly analyzes the desirability of coal-fired vs. nuclear plan-as a subject for rulemaking.
Comissioners' coments should be provided directly to the Office of the Secretary by c.c.b.
Wednesday. Acril 15. 1931.
l Ccmission Staff Office coments, if any, should be submitted to the Comissioners NLT April 8,1981, with an infonnation copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and connent, the Comissioners and the Secretariat should be apprised of when coments may be expected.
DISTRIBUTION Comissioners Comission Staff Offices Secretariat l
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-732 Document Control Desk, W.
F TRANSMITTAL TO:
016 Phillips ADVANCED COPY TO:
C The Public Document Room 3;
DATE:
June 5, 1981 M
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Attached are the PDR copies of a Commission meeting Q
transcript /s/ and related meeting document /s/.
They 6
are being forwarded for entry on the Daily Accession p
List and placemene in the Public Document Room.
No CC other distribution is requested or required.
Existing G
W DCS identification numbers are listed on the individual y
doements wherever possible.
1.
Transcript of:
Discussion of SECY-81-317 - Need for Power Rule, June 4, 1981.
(1 copy)
M a.
SECY-81-317 - Rulemaking Issue Paper dat0d h
May 19, 1981, Subj:
Proposed Rulemaking to O
Eliminate Need for Power and Alternative Energy M
Sources Issues in Operating License Proceedings 4
b In the Absence of Special Circumstances.
(1 copy) g 4
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b.
SECY-81-317A - Rulemaking Issue Paper dated
$i=
d Jul 3, - 19 81, -Subj :. Same as Item A above.
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