ML20028C297
| ML20028C297 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 01/05/1983 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CLI-82-23, CLI-83-01, CLI-83-1, NUDOCS 8301070305 | |
| Download: ML20028C297 (26) | |
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UNITED STATES OF AMERICA 83 JAN -6 P1:58 NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
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Nunzio J. Palladino, Chairman Victor Gilinsky John F. Ahearne Thomas M. Roberts James K. Asselstine SERVED UAN 061993 In the Matter of UNITED STATES DEPARTMENT OF ENERGY )
PROJECT MANAGEMENT CORPORATION
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Docket No. 50-537 TENNESSEE VALLEY AUTHORITY
)
)
(10 CFR 50.12 Exemption Request)
(Clinch River Breeder Reactor
)
Plant)
)
)
MEMORANDUM AND ORDER CLI-83-1 This decision clarifies the Nuclear Regulatory Commission's previous findings of exigent and other extraordinary circumstances warranting the grant of an exemption pursuant to 10 CFR 50.12 for initiation of site preparation activities for the Clinch River Breeder Reactor ("CRBR").
United States Department of Energy, et al. (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC (1982). 1/ The need for this clarification 1/
Comission precedent uses both the terms " exigent" and " extraordinary" to characterize the circumstances under which an exemption may be granted. The term " extraordinary" is used in Louisiana Power and Light Company (Waterford Generating Station, Unit 3), CLI-73-25, 6 AEC 619, 622 n.3 (1973) and Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-74-9, 7 AEC 197, 198 (1974) ("Shearon Harris I").
The term " exigent" is used only in
[ Footnote 1 continues on following page.]
s301070305 830105 gDRADOCK05000g 50
2 arose in the following way. On July 1, 1982, the Department of Energy, for itself and on behalf of its co-applicant the Tennessee Valley Authority and Project Management Corporation (" Applicants"), applied to the Nuclear Regulatory Comission ("NRC" or "Comission") for an exemption pursuant to 10 CFR 50.12 to begin site preparation activities for the CRBR.
In their application, Applicants identified three factors which they believed demonstrated the exigent circumstances sufficient to warrant the grant of an exemption. These were: (1) national policies favoring expeditious completion of CRBR; (2) undue hardship that would result from further delay in the project then at an advanced stage of development; and (3) the project's unique nature. The Natural Resources Defense Council, Inc. and the Sierra Club ("Intervenors") opposed the grant of an exemption.
After conducting an informal proceeding, the Comission issued an exemption on August 17, 1982. CLI-82-23, 16 NRC (1982).
In its decision, the Comission found that extraordinary circumstances had been demonstrated by most of the factors identified by the Applicants as demonstrating exigent circumstances. Slip op. at 17, 31-32, and additional views of Comissioner Asselstine at 3.
O'n December 7, 1982, the United States Court of Appeals for the District of Columbia Circuit (" Court") remanded the record to the Comission to either proceed with its adjudicatory hearing under 1/
[ Footnote 1 continues from previous page.]
Washington Public Power Supply System (WPPSS Nuclear Project Nos. 3 &
5), CLI-77-11, 5 NRC 719, 723 (1977). The Comission has also characterized the requisite circumstances as " compelling," Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CL1-74-22, 7 AEC 939, 940 (1974), and as "where the facts so warrant," 37 Fed. _ Reg. 5745 (March 21, 1972). An analysis of these Comission precedents shows that, contrary to the Intervenors' view, the Comission has not limited exemption to cases involving emergencies, although " exigent" circumstances of that nature can provide adequate grounds for an exemption.
3 10 CFR 50.10 to determine if site preparation activities may continue, or to explain why it was appropriate in this case to invoke 10 CFR 50.12 by identifying exigent circumstances that warranted such relief.
NRDC v. NRC, No. 82-1962 (Decided December 7,1982). The Comission, by Order of December 10, 1982, responded by initiating a proceeding on the issue of exigent circumstances while also explicitly recognizing that an Atomic Safety and Licensing Board was in the final stages of an adjudicatory proceeding on site preparation activities.
For the reasons discussed below, the Comission reaffirms its earlier finding of circumstances warranting an exemption pursuant to 10 CFR 50.12.
The Legal Standard Comission precedent on the grant of exemptions under 10 CFR 50.12, while not exhausting the situations in which the Comission may find
" exigent circumstances," U oes provide some illustrations of exigent d
circumstances, and establishes that the availability of an exemption is determined by the totality of the particular circumstances in each case. A review of Comission precedent follows to provide the framework for the Comission's decision in this case.
l Where an exemption is requested for pre-construction site-preparation activities, the kind of showing which will satisfy the Comission's criteria for an exemption pursuant to 10 CFR 50.12 is illustrated by the 2/
Intervenors suggest that the term " exigent circumstances" is limited to the dictionary definition as circumstances " requiring immediate aid or action." While the dictionary definition of a term is helpful to understanding its general use, the dictionary is not to be used as a
" fortress" in interpreting the scope of a term in a particular legal context.
Farmers Reservoir and Irrigation Company v. McComb,
[ Footnote 2 continues on following page.]
O 4
Comission's decision in Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-74-22, 7 AEC 938 (1974).
("Shearon Harris II"). E In that proceeding the applicant requested an exemption to harvest timber on the site, clear and grade the site, excavate for the plant foundation, construct roads, relocate railroad tracks, and construct temporary facilities including a warehouse and concrete plant.
Id. at 941. These are just the kinds of activities initiated at the CRBR site. The Comission affirmed the grant of the exemption for Shearon Harris II on the basis of findings of benefits to the public interest that would result from the earlier completion of the proposed site preparation activities.
Id. at 944.
Because earlier completion of site preparation activities would result in earlier y
[ Footnote 2 continues from previous page.]
337 U.S. 755, 764 (1948), rehearinc denied, 338 U.S. 839 (1948).
Rather the use of a tenn is to be cetermined by also considering its purpose and history.
See, Perrin v. United States, 444 U.S. 37, 42-45 (1979).
Intervenors' sole reliance on the dictionary definition of the term " exigent" ignores the purpose and history of that term. That reliance ignores the history of the Comission's use of the term and fails to acknowledge other dictionary definitions of the term, such as
" requiring a great deal." Random House Dictionary of the English Language, Unabridged Edition, 499 C. 3 (1966).
In any event, it is sufficient for the grant of this exemption to note that the circumstances here warranted prompt action and satisfied the Comission's high threshold for unusual relief.
3/
Intervenors suggest that Shearon Harris II does not deserve any precedential weight because it was decided prior to the Comission's promulgation of 10 CFR 50.10(e) which established the procedure for a limitedworkauthorization(LWA). But the facts in Shearon Harris show that the availability of an LWA would have been irrelevant.
In Shearon Harris, delay was caused by changes in requirements by the Environmental Protection Agency. The availability of an LWA would not have mitigated the delay resulting from complying with those new requirements nor would it have affected the Comission's finding that six months' delay was significant.
Therefore, the Comission finds that Shearon Harris II retains its vitality as a precedent for considering whether to grant an exemption pursuant to 10 CFR 50.12.
5 completion of the facility, the grant of the exemption reduced by six months the previously unanticipated delay in the provision of needed electric power and resulted in the savings of over $100 million dollars in costs that would not have been incurred but for the delay caused by changes in requirements.
Id. at 941, n. 4.
Thus, Shearon Harris II stands for the proposition that the timely satisfaction of public needs by reducing unanticipated delays in the realization of facility benefits and the avoidance of costs induced by such unexpected delays constitute exigent circumstances supporting the grant of an exemption.
Such benefits are also presented by the CRBR exemption.
Shearon Harris II also illustrates that the Commission considers the peculiar circumstances leading to the situation requiring relief.
Such considerations are intrinsic to the nature of an exemption, i.e. the need for unusual relief from a rule due to a situation not contemplated when that rule was promulgated.
In Shearon Harris II, the peculiar circumstances creating the need for relief were externally induced delays in construction due to changes in government policy.
Here, as there, further delay could result in the loss of significant benefits to the public, as described in detail below. And here, as there delay was caused by changes in government policy. Thus, the circumstances leading up to the Applicants' request for an exemption for CRBR are consistent with Commission practice as established in Shearon Harris II.
The Comission also granted an exemption in Gulf States Utilities Company (River Bend Station, Units 1 and 2), CLI-76-16, 4 NRC 449 (1976)
("RiverBend"). This decision illustrates that the showing of exigency supporting an exemption varies directly with the environmental impacts of
6 the proposed activities. This principle is reasonable in light of the nature of the exemption:
the conduct of site preparation activities prior to an adjudicatory hearing on those activities. Where the staff's detailed evaluation of the proposed activities have shown them to have insignificant environmental impacts, the conduct of those activities prior to a hearing does not significantly increase the risk to the environment from an error in estimating those impacts. Thus, where site preparation activities have insignificant impacts, it is reasonable to permit those activities to proceed even when the exigencies of the particular situation are somewhat uncertain, i.e. the agency can act more readily to mitigate the costs of unanticipated delay when the environmental risk of prompt action is small.
In River Bend, the Conunission did not specify the exigent circumstances.
It only noted that the proposed activities would not present adverse environmental impacts, might serve to protect the site environment and would be consistent with any possible outcome of the proceedings below. These factors, in addition to the temporary unavailability of a limited work authorization (LWA) under 10 CFR 50.10(e)(1), were found to constitute a sufficient basis for issuing the l
exemption.
In CRBR, the Commission also found that site preparation would not cause significant environmental impacts and that site improvements I
would be consistent with any future use of the site because it was zoned for industrial development.
Maryland-National Capital Park and Planning Commission v. Postal Service, 487 F.2d 1029, 1036-37 (D.C. Cir. 1973). As in River Bend, these findings weigh against any uncertainties in the exigency of the circumstances.
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7 In Kansas Gas and Electric Company, et al. (Wolf Creek Generating Station, Unit 1), CLI-76-20, 4 NRC 476 (1976) (" Wolf Creek") and in Washington Public Power Supply System (WPPSS Nuclear Project, Nos. 3 and 5), CLI-77-11, 5 NRC 719 (1977) ("WPPSS"), the Comission rejected requests for exemptions because changed circumstances vitiated each licensee's claim of exigent circumstances.
In Wolf Creek, the applicant appears to have relied solely on the temporary unavailability of an LWA as its basis for a showing of exigent circumstances. Since the Comission had already reinstated the availability of the LWA procedure, its previous unavailability no longer provided a basis for claiming exigent circumstances. Thus, Wolf Creek appears to stand for the proposition that an exemption will not be granted where changed circumstances have vitiated a licensee's claim of exigent circumstances.
In WPPSS, the applicant wanted to commence site preparation during the advantageous dry season and to avoid additional costs for storing equipment that had been ordered. The applicant was also concerned that it could not foresee when an Atomic Safety and Licensing Board (" Licensing Board") would act on a pending request for a Limited Work Authorizat. ion (LWA).
Simultaneous with its request for an exemption from the Comission, the applicant requested the Licensing Board for permission to undertake some of the same proposed activities on the basis that they were not precluded by l
10 CFR 50.10(c) because those activities would not significantly affect the environment. The Licensing Board granted that request in part, thus allowing site preparation to begin. This development, plus the apparent iminence of a decision on the pending LWA request, led the Comission to reject the exemption request because time was no longer of the essence and relief from the Licensing Board was neither impossible nor highly unlikely.
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8 Id. at 723.
Thus, WPPSS, like Wolf Creek, stands for the proposition that the Commission will not grant an exemption when changed circumstances vitiate the base for requesting that exemption.
In CRBR, by comparison, relief from the Licensing Board was not iminent, and time was of the essence for the reasons discussed below.
In summary then, under Commission case law the Commission considers the totality of the circumstances in determining whether to grant an exemption, and evaluates the exigency of the circumstances in that overall determination.
Exigent circumstances have been found where:
(1) further delay would deny the public of currently needed benefits that would have been provided by timely completion of the facility but were delayed due to external factors, and would also result in additional otherwise avoidable costs; and (2) no alternative relief has been granted (in part) or is imminent. Moreover, the Commission will weigh the exigent circumstances offered to justify an exemption against the adverse environmental impacts associated with the proposed activities. Where the environmental impacts of the proposed activities are insignificant, but the potential adverse consequences of delay may be severe and an exemption will mitigate the effects of that delay, the case is strong for granting an exemption that will preserve the option of realizing those benefits in spite of uncertainties in the need for prompt action.
For the reasons discussed l
below, the Commission believes that the applicant's exemption request for Clinch River satisfied the Commission's criteria for an exemption under 10 CFR 50.12.
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9 II. The Exigent Circumstances Warranting An Exemption Tor The Clinch River Breeder Reactor The Comission's decision of August 17, 1982 described and discussed several circumstances which the Commission found persuasive as justification for request for an exemption to initiate site preparation activities for CRBR.
CLI-82 _, 16 NRC
, Slip op. 23-30.
These circumstances are (1) the potential loss of a significant part of the public's investment in CRBR; (2) the possibility of an irreversible foreclosure of the opportunity to transfer information from CRBR to the follow-on projects in the overall program for developing the liquid metal fast breeder reactor (LMFBR); and (3) the probability of jeopardizing the establishment of cooperative agreements with the nuclear industry and other countries for development of the LMFBR. The Comission also found that the national policy favoring expeditious completion of CRBR created a need for 4
prompt relief.
On reconsideration, the Commission continues to find that 1
these circumstances, in conjunction with the Comission's finding that the environmental impacts of site preparation will be insignificant, constitute, in the totality of the circumstances, a showing of exigence sufficient for granting an exemption pursuant to 10 CFR 50.12. Moreover, recent developments reinforce the correctness of the Comission's decision.
A recapitulation of the circumstances previously identified by the Comission and the effects of recent developments follows.
A.
Further Delay Would Deny The Public Of Benefits To Be Realized By Prompt Completion Of The Facility Delay in CRBR was caused by the previous Administration's successful suspension of the licensing proceeding.
The magnitude of that delay was significant because it partially desynchronized CRBR from the rest of the l
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10 LMFBR program. The Commission found that CRBR had reached such an advanced state of development that important anticipated benefits could now be realized only by prompt initiation of site preparation activities.
CLI-82-23, 16 NRC
, Slip op. 26-30.
At the time of the Commission's decision, more than $600 million of parts and hardware were either delivered or on order and the project design was 90% completed; further progress on the project required the initiation of site preparation activities. Moreover, the Commission was informed by the Applicants that the LMFBR Base Research and Development Program, the Large Development Plant, and the LMFBR Fuel Cycle Program had progressed to the stages where future progress could be delayed by any further delay in the information expected from CRBR.
Under these circumstances, the Commission found that the grant of an exemption would further the public interest. Any further delay in site preparation activities would result in further delay of the safety-related construction information which could be more useful to the follow-on projects in the LMFBR program if obtained early enough to allow changes to be made in that program. Thus, further delay could irretrievably foreclose the opportunity to obtain information from CRBR early enough to be useful to the rest of the LMFBR program.
Under these circumstances, time was of the essence in order to preserve the option of effective transferability of information.
The Commission also determined that the public could lose its investment in the cadre of technically trained personnel who might otherwise drift away to other more active engineering projects.
Such a diffusion of talent would further delay CRBR and also delay the remainder of the LMFBR program by depriving it of the experience developed by that cadre. Here, again, prompt Commission action was necessary to avoid the
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.T adverse impacts on the public interest that could result from such potential losses.
The Comission also found that further delay could result in costs of
$28 million per year. Slip op. at 30. While it is true that the acceleration of any project could reduce its total cost, in this case the savings that can be realized are not due to the compression of a previously established schedule, but rather result from avoiding additional unexpected costs arising from unanticipated delays. The mitigation of such adverse consequences of unforeseen delay is the very kind of relief an exemption is designed to provide.
See Shearon Harris II.
Finally, the Comission also found that delays in CRBR could jeopardize the establishment of cooperative agreements for developing LMFBRs in conjunction with the nuclear industry and potential foreign competitors. U The potential for irretrievably losing such opportunities for cooperation also required prompt Comission action.
All these factors show that time was of the essence in granting an exemption and nothing has occurred since then to significantly change that 4/
Recent developments lend support to the Comission's belief that international cooperation is an important element of any public interest determination.
A nuclear trade publication recently reported that the Office of Management and Budget had approved the Department of Energy's budget request for $15 million for an international cooperative design effort for a commercial-sized LMFBR, the next step in the LMFBR program. Moreover, foreign support for such cooperation was provided by two recent actions: (1) the Secretary of Energy for the United Kingdom in a policy statement to the House of Commons urged international cooperation in LMFBR development; and (2) representatives of the Versailles Sumit countries at a Washington meeting at the Office of Science and Technology Policy strongly supported international cooperation in Breeder development.
Inside Energy /With Federal Lands, 7 (December 6,1982). The French and Gennans have also proposed international cooperation based in part on American pursuit of CRBR.
127 Cong. Rec. H. 9736, c. 1 (Daily Edition, December 14,1982).
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determination.
B.
National Policy Favors Expeditious Completion of CRBR The Commission found that the Congress, the President and the Department of Energy had all determined that CRBR should be completed as expediti6usly as possible. These findings were based on the legislative 4
history of the Omnibus Budget Reconciliation Act of 1981, the President's October 8, 1981 policy statement directing government agencies to proceed with breeder reactor technology, and the Department of Energy's Record of Decision for the LMFBR Program. CLI-82-23, 16 NRC Slip op. 23-26.
In particular, the Commission stated:
the legislative history of the Omnibus Budget Reconciliation Act of 1981 clearly indicates a national policy that all federal agencies i
should exercise their discretion to enable CRBR to be completed in a
" timely and expeditious" manner so as to recoup some of the time lost.
since 1977. While this Congressional intent may not rise to the level of a mandate that compels the grant of the exemption, it is one important factor to consider that argues strongly in favor cf the exemption.
CLI-82-23 at 26, Slip op. at 26.
Recent developments have reaffirmed this factor. Ca two recent occasions Congress has continued funding for CRBR after explicitly considering the Comission's grant of the exemption authorizing the j
initiation of site preparation activities.
H.J. Res. 599 (October, 1982) l (first continuing resolution) and H.J. Res. 63d (December,1982) (second continuing resolution). And the Conference Report for the second continuing resolution provided that " Ongoing hetivities related to the NRC licensing process should be continued." 128 g ng. Rec. H. 10636, c. 3 (Daily Edition, December 20,1982). Other provisions in the Conference Report regarding private industry's share of the costs do not affect timing m
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13 of the project and neither does the limit on the construction of permanent facilities which was not due to begin before the period of the continuing resolution expires. E The Commission agrees with the Intervenors' position that reconsideration of the exemption should recognize the factual situation as it now exists.
Post-exemption Congressional actions cannot retroactively modify the Comission's finding of exigent circumstances at the time an exemption was granted. Thus, recent Congressional actions are not relevant to whether an exemption should have been granted in August,1982, but rather, only to whether the exemption should now be revoked. There is nothing in Congress' continuation of funding for CRBR, or in the Conference Report for the second continuing resolution, which suggests that Congress intended a revocation of the exemption or a halt to ongoing site preparation activities.
Contrary to Intervenors' suggestion that Congress was reacting against accelerating CRBR, the Comission believes that Congress indicated that there should be no deceleration of CRBR by revoking the exemption.
C.
Alternative Relief Had Neither Been Granted Nor Was Iminent Applicants requested'an exemption because no other avenue of relief was available to permit prompt initiation of site preparation activities.
Even Intervenors acknowledged that the re-started LWA proceeding would not
[
5/
As for the erosion of Congressional support for CRBR, Intervenors presented the same argument to the Comission before it granted the exemption. The fact remains that this Congress has continued funding l
for CRBR and that the next Congress has not had an opportunity to express its position on this issue.
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14 be concluded for several months. E Where alternative relief is unavailable, a condition for an exemption has been met.
Shearon Harris II, supra,; River Bend, supra. Compare, Wolf Creek, supra, and WPPSS, supra.
And the delay that would have been occasioned by waiting for a decision on an LWA was of at least the same magnitude as found to be significant in Shearon Harris II. Accordingly, the Comission found that exigent circumstances were presented by the unavailability of alternative prompt relief.
Intervenors appear to suggest that an exemption is no longer warranted because the Licensing Board for the CRBR adjudicatory proceeding is scheduled to issue an LWA-1 decision by mid-February and, assuming that the decision is favorable, the Comission could shorten its almost three-month period for reviewing that decision before making it effective. Thus, Intervenors believe that only a few months' delay would result from revoking the exemption. However, there has been no showing that the factors which supported an exemption have been modified so as to now warrant such a delay. Moreover, it is not the iminence of the LWA-1 decision that reduces the potential for delay but rather the work done by Applicants to date that decreases the impact of delay if the Comission were now to revoke the exemption. The public interest in the expeditious completion of the CRBR project remains unabated.
Thus, there is no warrant for the Comission to revoke the exemption now.
-6/
Experience has borne out this prediction. The Licensing Board conducting the LWA proceeding is not expected to issue its initial t
decision before mid-February 1983 at the earliest, about 6 months after the Comission authorized the exemption.
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15 Conclusion For the reasons discussed above, the Comission finds that the factors previously identified in Comission decisions as relevant to a request for an exemption to initiate site preparation activities pursuant to 10 CFR
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50.12 are present in this case and include exigent circumstances as that term has been construed in Commission practice.
Moreover, the Commission finds that recent developments continue to support the grant of that exemption. Therefore, the Commission affirms its previous decision that Applicants had demonstrated exigent circumstances warranting an exemption for CRBR.
Comissioners Gilinsky and Ahearne dissent from this Order and their dissenting views are attached. Also attached are Comissioner Roberts' additional views.
It is so ORDERED.
For t e Comission f
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SAMUEL J. CHI h t-j',,
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Secretary of the Comission
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X-t; 6 Dated at Washington, D.C.
this 5th day of January,1983.
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ADDITIONAL VIEW OF COMMISSIONER ROBERTS Applicants requested and the Comission granted an exemption from the requirements of Section 50.10 of the Comission's regulations.
Section 50.10 states that site preparation activities may not commence until (1) a final Environmental Impact Statement has been issued, (2) a hearing has been held and all environmental findings required by NRC's regula-tions have been made, and (3) a licensing board has found the site suitable from a radiological health and safety standpoint.
This part of Section 50.10 was promulgated by.the Comission in order to fulfill its statutory duties under the National Environmental Policy Act (NEPA).
That Act imposed on the Comission the duty 'to consider environmental values when making a licensing decision and to prepare and circulate an environmental impact statement if the Comission determined that the licensing action it authorized would significantly affect the environ-ment.
In contrast to the requirements of Section 50.10, NEPA does not require that an agency conduct an adjudicatory hearing in order to consider environmental values when making a decision nor does NEPA require an agency's environmental findings to be tested in an adjudica-tory hearing.1/ Thus, the exemption requested by Applicants is not from the requirements of NEPA but rather from NRC's regulations requiring an adjudicatory hearing prior to commencement of site preparation.
1/
At a public meeting on the exemption request, Counsel for Inter-venors admitted this by stating, "I must say, I do not think the National Environmental Policy Act requires an adjudicatory hear-ing."
Transcript, December 16, 1981, at 41.
2 When a regulatory agency imposes rules which must be followed by many applicants in order to receive permission to conduct particular activi-ties, the agency should attempt to adopt a process which can be uniform-ly and fairly applied. Because all applicants for regulatory permission will not be similarly situated, however, it is inevitable that some applicants will require a variance or exemption from the literal appli-cation of the rules in order to avoid unnecessary hardship. Administra-tive agencies have the inherent authority to apply their regulations in such a way as to avoid undue hardship.
National Broadcasting Co. v.
United States, 319 U.S. 190, 225 (1943). The Commission explicitly recognized this responsibility at the time it adopted Section 50.12.
The Commission specifically noted:
[T]he Commission realizes that in individual cases, particu-larly those instances where plants are in an advanced stage of development, but where no site preparation work has been started, undue hardship may be incurred.
In those situa-tions, relief may be sought by requesting a specific exemp-tion under Section 50.12.
37 Fed. Reg. 5746 (March 21, 1972). Similarly, in Carolina Power &
Light Co.
(Shearon-Harris Nuclear Power Plant, Units 1, 2, 3, and 4),
CLI-74-22, 7 AEC 939, 944 (1974), the Commission stated:
[U]nder our present regulations there is no blanket permis-sion to perform site-preparation work. To the contrary, an authorization to do such work under the regulations is the exception rather than the rule.... It is manifestly in the public interest to have such an exception or exemption.
See United States v. Allegheny-Ludium Steel Corp., 406 U.S.
742, 755 (1972);
Permian Basin Area Rate Cases, 390 U.S.
747, 784-87 (1968); WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir.1969).
This is true especially where, as here, benefits to the public will result from the site-preparation work that Carolina Power performs.
3 In 1977, Applicants were well along in the process of acquiring a limited work authorization (LWA) under Section 50.10. The staff had completed both its site suitability review and its environmental review.
The staff's Site Suitability Report, issued in February 1977, concluded that the site was suitable for a reactor of the general size and type as the Clinch River Breeder Reactor (CRBR). The staff's Final Environ-nental Statement, issued in March 1977, concluded that the action called for under NEPA was construction of the CRBR. The Licensing Board assigned to conduct adjudicatory hearings on the reactor had set June 14, 1977, as the first day of the hearings. As a matter of policy, however, on April 20, 1977, President Carter announced the decision to cancel the project. Despite this announcement, Congress continued to fund design, research and development, and procurement activities for the CRBR. Or October 8,1981, President Reagan announced that it was once more national policy to complete CRBR as an essential element of our preparedness for longer-term nuclear power needs.
17 Weekly Com-pilation of Presidential Documents, 1101-02 (1981).
At the time the Commission acted on Applicants' exemption request, the plant's design was 90% complete. Due to this advanced stage of develop-ment, site preparation was a critical path element for the CRBR project.
Site preparation could not later be combined with safety-related con-struction in order to avoid further delays.
Further, Applicants had had difficulty in maintaining a qualified and experienced technical cadre of personnel to work on the project during the delay.
It believed that grant of an exemption would prevent further loss of technical personnel.
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4 Additionally, more than $500 million of parts and hardware had been delivered to the site or was on order. Additional delay would prevent timely transfer of information to the other phases of the liquid metal fast breeder reactor program, especially the Large Development Plant.
Finally, all parties agreed that at least $20 million per year on a present worth basis could be saved by the prevention of further delay.
In light of these exigent circumstances, the Comission took the only responsible action available to it and granted the exemption request.
Intervenors allege that this action was improper because the circum-stances on which the Comission relied in granting the exemption were not exigent.
To elaborate further, Intervenors assert that the unique nature of the CRBR project is irrelevant (Intervenors' Brief at 8), that the Comission's reliance on national policy considerations was unjusti-fied (Id. at 9), that work on this project would go forward absent Section 50.12 relief (I_d. at 12), that Applicants have not proven that personnel might leave the project in the face of continued delay (Id. at 13), that the desirability of achieving " hypothetical" future increases in program efficiency does not constitute an exigent circumstance today (Id. at 15-16), and that the international policy considerations as-serted by Applicants are becoming less compelling Qd. at 18). These arguments hardly constitute a compelling or even persuasive attack on the Comission's grant of an exemption. Moreover, if the Comission is not to take into account international and national policy considera-l tions, the history of the reactor in question, its relationship to an overall fast breeder reactor program, and the fact that more efficient use of resources can be made by the Federal Government, it is difficult
s to conceive of the circumstances under which the Comission might grant an exemption.
Indeed, under Intervencrs' interpretation of the Commis-I sion's cases, every grant of an exemption by the Comission has been 3'
improper. While the standard which must be met to permit grant of an
'\\ ' h exemption is high, it is not that high.
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Intervenors would have preferred that the Comission provide them with 1
an adjudicatory hearing prior to the commencement of site preparation.
As a matter of legal theory, it is unclear why an adjudicatory process
,s would have produced a better result than the process used by the Comis-sion. Adjudicatory hearings are best suited to the resolution of contested factual issues. Most of the issues raised by Applicants' exer 1ption request were not fact questions but rather questions of inter-national and national policy and engineering judgment. These latter types of issues are dealt with quite awkwardly in adjudicatory hearings.
Finally, the Comission is frequently asked why, in light of its long history of resolving contested environmental issues in adjudicatory hearings, it did not simply require Applicants, to ad.iere to the Com-mission's LWA procedures. The answer to this question is time. Once the Comission concluded that delaying site preparation was not in the l
public interest, the Commission could not conclude, based on its ex-perience with strongly-contested adjudicatory hearings generally and its experience with the CRBR LWA hearing specifically, that the limited work s
authorization procedure would advance in an expeditious and timely fashion.
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\\ e CRBR construction permit application was filed on June 12, 1975; the Th
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notice of hearing on this application was published on June 17, 1975.
Almost two years later, at the time the hearing process was suspended, s
Intervenors had served their seventeenth round of interrogatories and the Licensing Board had been involved in numerous discovery disputes.
This kind of legal maneuvering did not bode well for an efficient and q
focused LWA proceeding today.
The Commission's experience with the presently ongoing LWA proceeding n
has confirmed its earlier judgment that an adjudicatory process would present many opportunities for delay.
Instead of letting the present proceeding advance in a straight forward fashion, Intervenors have
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attempted on several occasions to inject the Commission into the pro-
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cess.
For example, after the Licensing Board ruled on the scope of the LWA proceeding, Intervenors asked the Commission to intervene and overrule the Licensing Board's determination.
Similarly, during the course of the staff's updating of the environmental review, Intervenors advised the Commission of the NRC's " moral and ethical" duty to supple-ment thet final environmental impact statement.
Intervenors also attempted to delay the LWA proceeding. When the x
Licensing Board announced a schedule for hearings, Intervenors moved to
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reschedule them. When rescheduling was denied, they asked the Board to reconsider its previous rulings admitting contentions. That the 4
3 Licensing. Board has managed to keep this proceeding focused and on track is almost a miracle and not something that could have been predicted by the Commission.
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7 I should point out, however, that even if the Licensing Board is able to meet its present ambitious schedule and bring the LWA proceeding to a close in mid-February 1983 and even if the Licensing Board were to issue a decision recommending authorization to conduct site preparation activities, site preparation could not begin.
Both the Comission and the staff would have to take further favorable action before that could happen.
In part, the Comission would have to conduct an immediate l
effectiveness review of the Licensing Board's decision.
It has been my experience that the Commission's immediate effective l
review of a Board decision issued in a heavily contested proceeding
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considerably exceeds Intervenors' optimistic projections.
(Intervenors' Brief at 21-23.)
For example, the Commission's immediate effectiveness review of Unit 1 of the Three Mile Island facility (a proceeding which is analogous to the CRBR proceeding in terms of contentiousness and public interest) is 163 days long and still pending.
The Commission's review of the Diablo Canyon facility is 156 days'long and still pending.
Even when the Comission reviews decisions of less contested proceed-ings, its review exceeds the goal imposed on it by its own regulations.
For example, the Commission's immediate effectiveness review for Unit 1 of the Susquehanna Steam Electric Station took 119 days from issuance of a Licensing Board decision recommending authorization to operate until issuance of a Comission Order concluding its review.
Similarly, the Commission's immediate effectiveness review of Unit 1 of the Virgil C.
Summer Station took 98 days.
In light of these lengthy periods, Intervenors' assertions regarding the possible length of Commission
8 immediate effectiveness review of an LWA decision seem highly specula-tive and of doubtful reliability to me.
In sum, it seems to me that the nub of the objections to the Commis-sion's grant of an exemption is not the relatively minor complaints that have been raised in Intervenors' Brief, but rather opposition to the reactor itself and possibly to the fast breeder reactor program.
Whether there should be a CRBR project and whether there should be a fast breeder reactor program are decisions for the Executive Branch and Congress.
In light of the affirmative decisions made by these two branches of Government, it is the Commission's duty to conduct its safety and environmental reviews in a timely and efficient fashion so that the public interest is served and unnecessary delay is avoided.
-l (NRDC v. NRC SEPARATE VIEWS OF COMMISSIONER GILINSKY (CLINCH RIVER) )
The applicants have once again failed to advance reasons which would have justified, or would now justify, granting an exemption for site preparation under section 50.12 of our regulations.
During our earlier review, the economic benefits of granting this exemption were found to be non-existent.1 It can scarcely be argued that advancing by a few months the scheduled start-up date of the Clinch River reactor, which is at best a preliminary prototype, is of any significance in the general development of breeder technology since breeder reactors will not be commercialized in this country for many decades, if ever.2 The real reason the Commission is granting this exemption is, of course, the Department of Energy's desire to get work See my separate views, In the Matter of United States Department of Energy, Project Management Corporation, Tennessee Valley Authority (Clinch River Breeder Reactor Plant), CLI-82-4, March 16, 1982.
The Commission continues to argue that granting this exemption would result in a savings of $28 million.
(Commission opinion at 11)
The Commission neglects to mention that this figure is derived by using an artificially low 3 per cent discount rate.
The Commission is fully aware that, if a more realistic 10 per cent discount rate (that recommended by the Office of Management and Budget for evaluating the economic effects of regulatory decisions) were used, the economic effect granting this exemption turns out to be a loss of $42 million.
2 In fact, an exemption would now allow the schedule to be moved up by only about one month since the Licensing Board will, next month, be in a position to rule on the applicants' request for a Limited Work Authorization.
underway at the Clinch River site in order to forestall an adverse decision by Congress.
However understandable DOE's motives may be, this does not qualify as an exigent s
circumstance justifying an exemption from our regulations.
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m DISSENTING VIEWS OF COMMISSIONER AHEARNE In the current order the Commission supports its August decision.
I disagreed with the August order, for reasons explained in my dissenting opinion at that time.
In the current order the Commission attempts to justify its August decision, I think unsuccessfully, and in the process must discard the normal definition of " exigent circumstances" (see footnote 2).
The straining in the current order strengthens my belief the exemption should have been denied.
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