ML20033B887
| ML20033B887 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 11/30/1981 |
| From: | Edgar G, Rachel Johnson ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP. |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8112020397 | |
| Download: ML20033B887 (70) | |
Text
_
-f.
wa,
.- 4 UNITED STATES OF AMERICA D METED -
gC NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONERS
.; 0F SECRE TARY
.aci;:NG & SERV:CE BRANCH
)
In the Matter of
)
)
UNITED STATES DEPARTMENT OF ENERGY
)
)
Docket No. 50-537 PROJECT MANAGEMENT CORPORATION
)
)
TENNESSEE VALLEY AUTHORITY
-)
-)
(Clinch River Breeder Reactor Plant)
)
)
e "pf 're j
f p
s eEC0!qib W DECl' b'
9-19 3 ; '
APPLICANTS' MEMORANDUM s
'D-IN SUPPORT OF REQUEST To CONDUCT 4
SITE PREPARATION ACTIVITIES g
R. Tenney Johnson Leon Silverstrom Michael D. Oldak L. Dow Davis Attorneys for United States Department of Energy George L. Edgar Thomas A. Schmutz Attorneys for Proj ect Management Corporation Dated: November 30, 1981 03 S
j Iff 8112O20397 811130 1 PDR ADOCK 05000537 0
' Af UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONERS i
)
In the Matter of
)
)
UNITED STATES DEPARTMENT OF ENERGY
)
)
Docket No. 50-537 PROJECT MANAGEMENT CORPORATION
)
)
TENNESSEE VALLEY AUTHORITY
)
)
(Clinch River Breeder Reactor Plant)
)
)
APPLICANTS' MEMORANDUM IN SUPPORT OF REQUEST TO CONDUCT SITE PREPARATION ACTIVITIES The United States Department of Energy (DOE) and Project Management Corporation, acting for themselves and on behalf of the Tennessee Valley Authority (the Applicants), hereby submit this memorandum in support of the Applicants' request for authorization to conduct site preparation activities pursuant to 10 C.F.R. S 50.12.
INTRODUCTION AND
SUMMARY
The Clinch River Breeder Reactor Plant (CRBRP) project was originally authorized by the Congress in 1970, and is the subject of an application to the Nuclear Regulatory Commission (NRC) for a Construction Permit under Section 104(b) of the Atomic Energy Act of 1954, as amended, 42 U.S.C.
$ 2011 et seq.
After the application was docketed in April of 1975, the NRC review pro-gressed to the point that by March 28, 1977, the NRC had: 1)-
issued a Final Environm%ntal Statement (FES) which recommended the
grant of a Construction Permit; 2) issued a Site Suitability Report which found that the site is suitable from the standpoint of radio-logical health and safety; and 3) ordered hearings to commence on June 14, 1977 and run in continuous session until completion.
On this basis, it was anticipated that the prcject would obtain NRC authorization to commence site preparation activities by the fall of 1977.
On April 20, 1977, President Carter announced the previous Administration's decision to cancel the CRBRP project, and in response, the Energy Research and Development Administration (ERDA) requested and obtained suspension of the hearings from the Licensing Board.
Subsequently, the NRC Staff discontinued its review of the application, and disbanded the organization it had assembled for that review.
During each of the past four years, the previous Adminis-tration sought to cancel the proj ect, while the Congress acted to preserve it by providing substantial funding. In the meantime, the proj ect continued design and engineering R&D to near completion.
By September 30, 1981, more than $500 million of hardware had been placed on order.
The proj ect, however, was unable to make any progress in the NRC licensing process which would lead to commence-ment of site preparation.
As a result, the project schedule was extended by more than four years and its costs increased by more than $800 million.
On October 8, 1981, President Reagan in a major policy statement, stated that he was " directing that government agencies proceed with the demonstration of breeder reactor technology, including completion of the Clinch River Breeder Reactor."
9
, Today, the Applicants are filing a request with the Commission for approval to commence site preparation activities by March of 1982 pursuant to 10 C.F.R.
S 50.12, which provides:
(a) The Commission may, upon applica-tion by any interested person or upon i'.s own initiative, grant such exemptions fror the requirements of the regulations in this part as it determines are authorized by law and will not endanger life or property or the conmon defense and security and are otherwise in the public interest.
(b)
Any person may request an exemption permitting the conduct of activities prior to the issuance of a construction permit pro-hibited by 5 50.10.
The Commission may grant such an exemption upon considering and balancing the following factors:
(1)
Whether conduct of the proposed acti-vities will give rise to a significant adverse impact on the environment and the nature and extent of such impact, if any; (2)
Whether redress of any adverse environment impact from conduct of the pro-posed activities can reasonably be effected should such redress be necessary; (3)
Whether conduct of the proposed activities would foreclose subsequent adoption of alternatives; and (4)
The effect of delay in conducting such activities on the public interest, in-cluding the power needs to be used by the proposed facility, the availability of alternative sources, if any, to meet those needs on a timely basis and delay costs to the applicant and to consumers.
10 C.F.R.
S 50.12.
In support of the request, the Applicants have filed a Site Preparation Act vities Report (SPAR) which provides the detailed technical justification for the re<
4t.
This memorandum provides the legal justification for the request and shows that:
. 1.
In light of.the pre-existing environmental
, and safety reviews for the project, the.Commis -
sion has the' discretion to authorize site preparation activities pursuant to Section 50.12 (see Section I.below).
2.
In view of the exigent and exceptional circumstances of.this request, the Commission should exercise its Section 50.12 authority to grant the request (see Section II below).
- 3..There is'a compelling-case for a favorable determination under the Section 50.12 factors (see Sec' ion III below).
4 Policy determinations and the need for timely relief require immediate review by the Commission (see Section IV below).
l 1
(
is I
l 1
h
)
.- I.
IN LIGHT OF THE EXISTING ENVIRONMENTAL AND SAFETY REVIEWS FOR THE PROJECT, THE COMMISSION HAS THE DISCRETION TO AUTHORIZE SITE PREPARATION ACTIVITIES PURSUANT TO SECTION 50.12 In seeking reliaf under 10 C.F.R.
S 50.12, the applicants are not requesting that the Commission waive any statutory require-ments arising from the two relevant statutes - the National Environ-mental Policy Act (NEPA) and the Atomic Energy Act (AEA).
As will be shown, the requiremeits arising from those statutes have been satisfied in this case insofar as site preparation activities are concerned.
The Commission is requested here to employ its estab-lished Section 50.12 procedures to authorize site preparation activities prior to completion of the hearing process.
In what follows, it will be shown that: (a) prior Commission reviews-for the project satisfied all relevant requirements arising out of NEPA; (b) hearings are not required by NEPA or the AEA prior to commencement of site activities; and (c) the Commission has the discretion to grant an exemption from its hearing regulations and authorize commen' cement of site preparation pursuant to Section 50.12.
A.
Prior NRC Reviews for the Proj ect Have Satisfied All Relevant Requirements Arising out of NEPA NEPA requires the preparation of an environmental impact statement prior to undertaking a major federal action significantly affecting the quality of the human environment.
,ae 42 U.S.C.
~
S 4332.
After docketing of the CRBRP application in April of 1975, the proj ect sought authorization to commence site prep-aration activities under 10 C.F.R. S 50.10(e) of the Commission's regulations.
Section 50.10(e) requires:
- 1) completion of a
. Final Environmental Statement (FES); -1/ 2) NRC review and find-ings as to site suitability: -2/
and 3) completion of hearings and favorable findings f_om a Licensing Board as to both of the aforementioned factors. -3/The first milestone is a requirement arising out of NEPA. -4/ The second two milestones are require-ments which arise not-from NEPA, but from the Commission's regulations. -5/
Although the project had completed the first two milestones by March of 1977, the previous Administration's decision to cancel the project led te & suspension of the hearing process.
Consequently, although the requisite FES had been completed for the project, the applicants were unable to complete the hearings and progress toward commencement of site preparation.
The FES itself was based upon the Applicants' five (5) volume Environmental Report which presents detailed information concerning the site characteristics, environmental impacts of con--
struction and operation, and the cost / benefit analysis for the pro-ject.
After docketing of the application in April of 1975,-the Draft 4
Environmental Statement was issued in February of 1976.
After con-l sideration of comments by interested federal, state, and local agencies, and the public, the Final Environmental Statement was issued in February of 1977.
1/
10 C.F.R.
S 50.10(e)(1).
2/
See 10 C.F.R. S 50.10(e)(2).
3/
10 C.F.R.
S 50.10(e)(2).
4/
See 102(2)(c) of NEPA.
5/
See discussion in Section IB at 10-11.
i
w It should-be erphasized that NRC's 1977 FES concluded-that the environmental effects of site. preparation activities, as conditioned in the FES, would not be significant_(FES at 9-23).
Moreover, the Project has recently-completed an cxtensive reevalua-tion of the proposed site preparation activities, which is con-tained in'the Site Preparation Activities Report (SPAR).
The SPAR demonstrates that the environmental effects of the proposed activi-
. ties and the site environmental onditions have not changed signifi-cantly from those described in th FES, and thus the effects of the proposed activities would not be significant (SPAR at 4-1).
Therefore, the SPAR shows that in regard to site preparation, the FES remains valid today.
Although the proposed site preparation activities differ in minor respects from those evaluated in the FES, had the proje-t continued on its projected course from March of 1977 and initiated site preparation activities in the fall of 1977, no further NRC Staff evaluation or approval would have been required before con-ducting the currently proposed activities.
In this regard, the FES imposed the following condition:
Before engaging in a construction activity not evaluated by the Commission, the applicant will prepare and record an environmental evaluation of such activity.
When the evaluation indicates that such activity may result in a significant adverse environmental impact that was not eval-uated or that is significantly greater than that evaluated in the final environmental statement, the applicant shall provide.a~ written evalua-tion of such activities and obtain approval of the Director of the Office of Nuclear Reactor Regulation prior to undertaking the activities.
(FES at iii).
Because the site preparation activities and site environmental conditions described in the SPAR are not significantly
. different from those described in the FES, the environmental effects of those activities would remain insignificant and would not-be greater than those evaluated in the fed.
- Thus, the condition set forth in the FES has been satisfied by the evalu-ation contained in.the SPAR, and no NRC review or approval would
~
have been required prior to conducting'the proposed activities.
The existence of a valid previous environmental review for this project presents a strong parallel to the circumstances of i
Carolina Power & Light Co. (Shearon-Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-74-22, 9 AEC 939 (1974)-(Shearon-Harris).
In that case, the Commission identified the advanced stage of the environmental review as a circumstance which weighed heavily in favor of a decision to permit site preparation to commence pursuant to Section 50.12.
In this regard, the Commission stated:
In the circumsta' ices of this case, it was
. particularly appropriate to authorize Carolina Power to perform such work.
As explained above,
=
i even though the staff had issued a final environ-mental statement recommending a grant of con-struction permits for the Shearon-Harris reactor, the original licensing schedule had been sub-stantially delayed because of design revisions which Carolina Power had to make to satisfy new requirements of the EPA.
Moreover, a draft i
envircnmental statement based on these revisions (recommending a grant of construction permits) had been issued.
And shortly after approval of the site-preparation work, a final environmental statement o2 the revised plant was issued also recommending granting the permits.
In essence, this agency s environmental consideration of the i
proposed reactor was far from incomplete at the time the site-preparation work was authorized.
Id. at 945.
s
___m... -.
.._.,,_-._..m.
.,__y
-u In this case, where the environmental review for the project retains its -validity in regard to site preparation activi-ties, the Commission is assured that.all relevant requirements arising out of NEPA-in regard to such activities have been satisfied At the present time, however, the hearing: provisions of the Commission's regulations. stand :as obst acles to commencementi of site preparation.
> B.
Hearings Are Not Required-By_
NEPA or the AEA Prior to Commencement of Site L
Preparation Activities The Commission's requirement:for a hearing prior to commencement of site preparation activities is not based on the National Environmental Policy Act or the Atomic Energy Act.
Rather, it is based solely on the Commission's regulations.
See 10 C.F.R. SS 50.10(c),(e).
The National Environmental Policy Act only requires
" full environmental disclosure and review", Bucks County Bd. of Commissioners v.
Interstate Energy Co., 403 F. Supp. 805 (E.D.
Pa. 1975), and does not require a federal agency to convene l
' hearings.
As the court stated'in Upper West Fork River Watershed Assoc. v.
Corps of Engineers, 414 F. Supp. 908 (N.D. W.Va. 1976),
~
aff'd, 556 F.2d 576 (4th Cir. 1977). cart. denied, 434 U.S. 1010 (1978):
... neither NEPA nor the CEQ Guidelines make public hearings a mandatory procedural i
requirement in the preparation of an environ-j mental impact statement.
i i
See also Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973).
j As with NEPA, the AEA does not require hearings prior to the commencement of site preparation activities.
Indeed, prior to the enactment of NEPA, the AEC routinely permitted site prepara-tion activities to commence prior to any hearings on the issuance of
. a construction permit. -6/ As the Commission stated in Kansas Gas and Electric Co. (Wolf Creek Nuclear Generating Station, Unit No. 1),
CLI-77-1, 5 NRC 1 (1977) (Wolf Creek):
Prior to enactment of NEPA, implementing regulations reflected the principal thrust of the Atomic Energy Act and barred safety-related construction activities on a proposed facility site until a construction permit was issued.
The bar on construction extended to
" pouring the foundaticn for, or the installa-tion of, any portion of the permanent facility."
However, there was no bar to site activities that might have a sub-stantial environmental impact but which had no safety significance.
Con'struction permit appli-cants willing to assume the risk that their applications might be denied were specifically allowed to proceed with " site excavation, pre-paration of the site for construction of the facility, including the construction of roadways, railroad spurs, and transmission lines."
Section 50.10(b)(1).
(Emphasis in original)
Id. at 6.
Thus, in requesting authorization to commence site preparation activities prior to completion of the hearing process, the Applicants are asking that the Commission exercisa its lawful discretion to grant an exemption from the hearing provisions which are based solely upon the Commission's regulations.
6/
There was no requirement for site suitability findings prior to commencement of site preparation activities.
Those findings were made in connection with the issuance of a construc-tion permit.
See 10 C.F.R.
S 50.34(a)(1); 10 C.F.R. S 50.35(a).
s
. C.
The Commission Has The Discretion To Grant an Exemption From Its Hearing Regulations and Authorize Commencement of Site Preparation Pursuant to Section 50.12 It is inherent in an administrative agency's authority and function to apply its-regulations so as to avoid undue hardship.
In National Broadcasting Co. v. United States, 319 U.S.
190, 225 (1943), the Supreme Court held that an administra-tive agency has an obligation in applying its regulations to ensure that the purpose of the egulations is served by their application in a particular case.
[t]he Commission therefore did not bind itself inflexibly to the licensing policies expressed in the Regulations.
In each case that-comes before it the Commission must still exercise an ultimate judgment whether the grant of a license-would serve the
'public interest, convenience, or necessity.'
If time and changing circumstances reveal that the 'public interest' is not served by application of the Regulations, it must be assumed that the Commission will act in accordance with its statutory obligations.
See also, WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969).
In promulgating Ser. tion 50.12, the Commission recognized its obligation to ensure that its regulatory requirements do not cause unduc hardship.
Indeed, Section 50.12 reflects a conscious Commission policy decision to preserve its discretion to authorize 7/
site preparation in exceptional cases involving undue hardship. -
In this regard, Section 50.12 establi.shes an explicit set of condi-tions which assure that any Commission decision to grant an exemption 7/
37 Fed. Reg. 5746 (March 21, 1972); 39 Fed. Reg. 4583 (Feb. 5, 1974).
. from its regulations will comport with sound discretion and full consideration of-environmental values.
In reviewing its Section 50.12 authority to grant re-quests for_ authorization to conduct site preparation activities, the Commission in Shearon-Harris, supra at 944, stated:
The question presented here is whether NEPA bars altogether any preliminary work on a pro-posed proj ect when an administrative agency '--
which carefully weighs and balances specific environmental criteria before allowing the work -- has not yet completed its full environ-mental review of the entire project.
k'e find that NEPA contains no such prohibition, and that the site-preparation work was properly authorized in the circumstances of this case.
The Commission recognized that the Section 50.12 framework assures that all relevant environmental matters are fully and fairly considered:
The regulations enable this Commission to determine what the environmental impact of site-preparation work will be; whether redress can be achieved if necessary; whether the work will leave open the subsequent adoption of alternatives if necessary; and whether that-preliminary work will serve the public interest.
In short, the regulations help us assess relevant environmental factors at the site-preparation stage.
Id. at 945.
In regard to the instant request, Section 50.12 provides a framework which assures that all relevant environmental factors are carefully assessed, while at the same time, enabling the Commission to minimize the effect of the four-year delay, avoid unnecessary cost increases, and implement the Congress' and President's mandate that the proj ect be completed in an expedi-tious and timely manner.
II.
IN VIEW OF THE EXIGENT AND EXCEPTIONAL CIRCUMSTANCES OF THIS REQUEST THE COMMISSION SHOULD EXERCISE ITS SECTION 50.12 AUTHORITY TO GRANT THE REQUEST The Commission has recognized that the exercise of it Section 50.12 authority would be limited to truly exigent and ex-ceptional cases.
This case is both exigent and exceptional in at least three respects:
- 1) the Congress has consistently acted to mandate expeditious completion of the project; 2) the proj ect is in an advanced stage of development, and unless relief is granted, undue hardship will inevitably result; -8/ and 3) in light of the project's unique characteristics, the grant of relief here is entirely consistent with the Commission's sparing use of its Section 50.12 authority. ~9/
A.
Congress has Mandated Expeditious Completion of the Project The CRBRP project has e joyed the consistent support of the Congress for more than a decade.
This can be shown in the i
context of three time intervals:
- 1) the time period between project formation and 1977; 2) the time period between 1977 and 1980; and 3) the time period between 1980 and the present. ~~10/
8/
37 Fed. Reg. 5746 (March 21, 1972).
9/
Id.; 39 Fed. Reg. 4583 (Feb. 5, 1974).
10/
Inasmuch as the legislative history of the project is so Tengthy, albeit of vital importance, the detailed history of the first two periods is set forth in Appendix A hereto.
The succeeding discussion will contain a summary of the conclusions which follow from Appendix A for the first two time periods, and a more detailed discussion of the recent history between 1980 and the present.
. 4 1.
From the Inception of-the Project Through 1977, the Congress Con-i sistently Expressed its Intention that'the.CRBRP Project be Expedi-tiously Completed Between 1968 and'1977, Congress:
- 1) approved ' continuance i
of the LMFBR Program; 2) approved priority pursuit of CRBRP in the context of the LMFBR Program; and 3) accepted the revised project 4
arrangements and funding for joint utility / government participation in the CRBRP Proj ect.
Of at'least equal significance was Congress' action in expressly rejecting:
- 1) a stretch out or other change in the schedule or structure of the LMFBR Program and CRBRP;
- 2) changes in the funding or management of the CRBRP. Proj ect which might frustrate the timely. execution of the Project; and 3) funda-mental changes in the NRC regulatory standards which would have imposed more stringent licensing requirements on the CRBRP.
The Congress unequivocally determined that CRBRP and the LMFBR Program should be pursued on a priority basis and that further delay and reconsideration of programmatic alternatives cannot 11/
be tolerated.--
Congress' intentions are best and most succinctly summarized by the Ad Hoc Subcommittee report which formed the basis for Congress' FY 1977 authorizing legislation:
11/
United States Energy Research and Development Administration TClinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 88 (1976).
9
,,-,,~,-
o
. The tendency toward redundant and duplicative reviews of nuclear power and the need for the breeder reactor should be reduced to a minimum.
While periodic reassessments of program goals and approach are appropriate, the' major review efforts by government and industry should be on narrower-issues justifying greater attention, e.g.,
how program goals are being met, means for improving cost and schedular performance, adequacy of program management, and other topics on the order of 'How Best to Get the' Job Done', rather than 'Should We Do The Job.'
12/
The Commission has recognized the explicit mandate of the authorizing legislation fo: CRBRP up to 1977:
In the present case, Congress has repeatedly recognized the requirement for a demonstration project to help in predicting the safety, practi-cality and environmental acceptability of com-mercial breeder reactors.
Year after year,.the cognizant committee, the Joint Committee on Atomic Energy, has urged rapid progress on'the demonstra-tion reactor.
Year after year, Congress as a body has enacted the' authorization legislation recommended by the Joint Committee.
This history supports our conclusion that the need for this facility, as we have defined it above, need not be reviewed in this proceeding. 13/.
12/
Report by the Ad Hoc Subcommittee to Review the LMFBR Program of the JCAE, 94th Cong., 2d Sess. at 70 (1976) (emphasis'added).
See Executive Summary of this Report conte'.ned in 122 Cong. Rec.
E7ES (1976).
Compare Separate Views of E ator Tunney.
Ad Hoc Subcommittee Report at 93.
13/
United States Energy Research and Development Administration, supra, 4 NRC at 88.
g
+ h 2.
In the Face of Active Efforts by the Previous Administration to Cancel the Project in Each of the Past Four Years, the Congress Acted to Preserve the Project and Urge its Expeditious Completion In each year of the previous Administration's tenure, the Congress repelled that Administration's active efforts to cancel the proj ect. -14/ The significance of the Congressional action can be illus-trated by reference to a tabular summary of Administration and Con-gressional funding actions during each of the past fo'ur years:
Fiscal Administration Budget Major Final Presidential Year Request / Action Floor Votes Action on Funding 1978
$234.8 M-Ford 1/17/77
$80 M House 10/19/77
$150 M-Carter 2/23/77
$80 M 3/7/78
$33 M-Carter 5/18/77
$80 M House (termination) 10/26/77
$80 M Senate 11/1/77 (Suppl.)
1979
$13.4 M - 1/78
$172.4 M Senate (termination) 8/78 Veto 10/5/78
$172.4 M House (on grounds unrelated 9/78 to CRBRP)
$172.4 M House &
$172.4 M 10/18/78 Senate 10/14/78 1980 $172.4 M House
$172.4 M 10/12/79 9/25/79 Senate 9/27/79 1981 14a/ $172.4 M House &
$172.4 M 10/1/80 Senate 9/30/80 House & Senate
$172.4 M 12/16/80 12/15/80
$172.4 M 6/4/81
$172.4 M 6/5/81 (Suppl.),
14/
The full chronology of those events is simply too voluminous T6 present here, and a summary of the major events affecting the project is presented in Appendix A, Subpart 2.
14a/ FY 1981 funding levels are expressed herein at annualized rates of funding.
-. This table clearly demonstrates-that in each year of the prior Administration's_ tenure, the Congress rej ected the Administration's
- active efforts to eliminate. funding for the project and took affirmative action to continue funding the project at substantial levels.
Appendix A, Subpart 2, shows a similar pattern in regard to the Administration's actions to rescind or deauthorize the proj ect.
Most significantly, in no instance during the entire legislative history of the proj ect, which extends from 1968 to'the present, has the Congress ever recorded a negative vote on the floor of either house.
This remarkable record underscores the Congressional mandate which has accompanied the project since its inception, and serves as the context for evaluation of the most recen. Congressional action and directives to the project.
i 4
1
3.
The Omnibus Budget Reconciliation Act of 1981 Includes a Congressional Mandate for Expeditious Project Completion In March of 1981, the Reagan Administration forwarded its budget request to the Congress'for FY 1982 CRBRP funding in the amount of $254 million. --15/
4 In response to-this request, both the House and Senate Budget Committees considered and reported bills providing funding for the - CRBRP proj ect.
H.R.'3982, which' authorized 16/
$228 million for the project, passed the House on June 26, 1981.--
S.1327, which authorized $254 million for the proj ect, passed the 17/
Senate on June 25, 1981. ~~
The House / Senate Conference j
Report (H. Rep. No.97-208), which authorized $228 million for 4
--18/
~~19/
the proj ect, passed the Senate and House on July 31, 1981.
The Sill was signed by the President on August 13, i
1981 as the Onnibus Budget-Reconciliation Act of 1981, Pub. L. No. 97-35.
15/
In addition, a $50 million supplemental appropriation for CRBRP was requested.
After passage by both houses of Congress, on June 4, 1981, the supplemental appropriation was signed into law on June 5, 1981 as Pub. L. No. 97-12.
16/
127 Cong. Rec. H3757 (1981).
17/
127 Cong. Rec. S6981 (1981).
18/
127 Cong. Rec. S8987 (1981).
19/
127 Cong. Rec. H5758 (1981).
s.v--my-----.~w-,....-.n
,u
,-_,,-n.
.. Not only did the Budget Reconciliation Act authorize full funding for the proj ect,.it also established a clear mandate-for expeditious project completion.
The Confererae Report expressly stated:
Breeder reactor systems.
-- The Clinch River Breeder Reactor project-is funded at
$228 million.
This technology demonstration plant, as set forth in the existing project arrangements, is a ke,
.ep in the development of.the Liquid Metal Fast Breeder Reactor.
The conferees intend that the plant should be con-structed in a timely and expeditious manner, so that a decision on the commercialization and deployment of breeder reactors can be made on the basis of information obtained in the operation of-the plant.
The plant should therefore be constructed on the basis of that obj ective, and not on the basis of providing needed power in the specific region of the Clinch River Site.
H. Rep. No.97-208, 97th Cong., 1st Sess. (1981).
The intent of the Conference Bill and the Conference Report language was explained by the Floor Managers of the bill in both the House and Senate.
On the Senate floor, the explanation was provided by Senators McClure and Domenici as follows:
Mr. DOMENICI.
Mr. President:
would like to ask the distinguished chairman of the Committee on Energy and Natural Resources for some clarification on the intent of the conference committee's actions with regard to the Clinch River Breeder Reactor.
Am I correct that the Statement of Manar,ers affirms the need for and timing of the project, and contemplates that construction be undertaken as expeditiously as possible?
Mr. McCLURE.
The Senator is correct.
. Mr. DOMENICI.
Am I correct _thnc the intent of the conferees is to minimize the effect of unrecoverable delays resulting from the 1977 decision to stop the project, and to that end, affirms the existing proj ect arrangements and obj ectives, and to the maximum extent possible, the pre-April 1977 project schedule?
Mr. McCLURE.
Let me say to my colleague from New Mexico that he is correct on this point also.
(Emphasis added).
127 L Rec. S8998 (1981).
On the House floor, the explanation was provided by Congresswoman Bouquard as follows:
In terms of my primary interest in the nuclear area, I hope the passage of this conference report coupled with the recent vote on the appropriations bill will put the issue of the Clinch River reactor to rest.
The conferee's intent is clear on this project, that the DOE should move ahead with all deliberate speed and I trust the administration will obtain the cooperation of other agencies in seeing that construction will go ahead at a significant pace.
The conferees' choice of the words
" timely" and " expeditious" were purposely chosen with the intent that licensing, construction, and other related proj ect activities be undertaken promptly and with as little delay as discretion will allow.
In the same sentence the phrase "so that a decision on commercialization and deployment of breeder reactors can be made on the basis of information obtained in the operation of the plant" in conjunction with the words
" timely" and " expeditious" means that the effect of unrecoverable delays resulting from the 1977 decision to s. top the project should be minimized and that to the maximum extent possible the overall liquid metal fast breeder reactor program should proceed in accordance with the pre-April 1977 project schedule.
(Emphasis added) 127 Cong. Rec. H5817-18 (1981).
Altogether, the' Conference Report, the Floor. Managers' remarks, and the favorable votes by both Houses of Congress in light of I
the Report language and Floor Managers' remarks establish the following as' clear expressions of Congressional intent for-CRBRP:
l 1.
The plant must be constructed in a timely construction must be and expeditious manner; _
the undertaken as expeditiously as possible; cooperation of all-agencies is required.
2.
Unrecoverable delays resulting from the 1977 decision to stop the project must be minimized;. construction must be undertaken with as little delay as discretion will allow.
- 3.. The CRBRP is a key step in the development of the LMFBR.
This express evidence of Congressional intent, and the longstanding history of Congressional support for the project, 4
have a direct and immediate implication-for the Commission's consideration of the instant Section 50.12 request.
The
' legislative history of this project and the intention of the Congress reflected in the Omnibus Budget Reconciliation Act, constitute the type of extraordinary circumstances and compelling public interest considerations which must weigh heavily in the Section 50.12 balance.
The Commission simply cannot ignore the Congressional mandate in favor of exoeditious project completion. --20/
l i
20/
United States Energy Research and Development Admin., supra it 88.
t
[
r e - - -r e m -v e -9 w --
..-em-c--c-,,,%,---,ry-,e.,yw%, - -,
e r--*---*-
tw-M'*<
'M*---
?"---=vi*ve+w*ww-~www-----vv-*vm=~-779-+-w'"r*
v*"e+-
y 7
er
. B.
Tha Project. is' in an Advanced Stage of Development and Unless Relief Is Granted, Undue Hardship Will Inevitably Result As previously indicated, as of April of 1977, the NRC had issued a FES which recommended the grant of a Construction Permit and there was every reason to expect Commission authorization to commence site preparation by no later than March of 1978.
As a result of the previous Administration's April 1977 decision to cancel the proj ect, the proj ect has been unable to make any progress toward commencement of site preparation while design and R&D activities have proceeded to their present status of near completion.
Project design and hardware fabrication are now in an ex-tremely advanced stage of development. As of September 30, 1981, design work, and engineering research and development work were approximate-ly 90% complete and more than $500 million worth of hardware was delivered or on order with suppliers and fabricators.
The next major step in project activities is site preparation.
The project will be ready to proceed with site preparation-as soon as approval of this request can be obtained from the Commission.
If the Commission does not allow timely commencement of site preparation, the project must mark time while awaiting authorization to proceed with the site preparation milestone.
This will force the project to mainta,in its design team throughout the period of delay, and to spread that manpower over the limited design and engineering R&D effort which now remains for completion, thus precluding the most productive use of proj ect funding, and inevitably increasing project costs.
_. _. _ _. -.. _ _ _ _ _. _ _.. _ _. _. _.. ~ _ _,
. This Administration is strongly committed to project completion.
The Congress has directed that " unrecoverable delays resulting from the 1977 decision ~to stop the project should be-minimized.
" 123 Cong. Rec. H5818 (1981).
The four-year sus-Tension -of licensing has added more than four years to the project schedule.
These delays have, in turn, caused increased costs for project completion of more than $800 million.
Approval of this request to allow a March 1982 start of site preparation activities would avoid additional delays of one-to-two years in the project schedule, and avoid additional cost --21/ increases ranging from $120 million to $240 million.--22/
The consequences of_further delay extend beyond the-substantial immediate effects on the project.
Unlike a commercial reactor, where the impacts of delay-extend only to immediate costs to ratepayers, additional delays in this project will extend.
further to adversely affect:
- T the policies expressed by the Congress in favor of rapid completion; and 2) the Nation's pre-paredness for' longer-term nuclear power neecs by delaying develop-ment of LMFBR technology.
21/. A six-month delay and cost increase of $110 million for the EEearon-Harris facility were determined to constitute sufficient hardship to warrant Section 50.12 relief.
Carolina Power & Light Co.(Shearon-Harris Nuclear Power Plant, Units 1, 2, 3, and 4),
LBP-74-18, 7 AEC 538 (1974); Carolina Power & Light Co.(Shearon-Harris Nuclear Power Plant, Units 1, 2, 3, and 4), Docket Nos.
50-400--403, Decision of Directorate of Licensing (January 14, 1974).
22/
See SPAR l-6.
. Unless timely relief.is granted, the project and the' Nation's taxpayers'will-imnediately suffer.. undue hardship in-the form of additional project delays and cost increases, and in the-longer term, in the form of the Nation's lack'of pre-paredness for future' nuclear power needs.
Further, the Congressional policy in favor of expeditious completion will be frustrated.
In short, the circumstances attending the prescnt request clearly are exceptional and' demand relief under Section 50.12.
1-l l
f
(
. C.
In Light of the Project's Unique Characteristics, The Grant of Relief Would be Entirely Consistent with the Commission's Sparing Use of.its Section 50.12 Authority.
In light of the exceptional circumstances discussed in the preceding section of this memorandum, the grant of. relief here would not be precedent-setting, and would be entirely consistent with the Commission's policy of using its Section 50.12 authority sparingly.
In addition, the proj ect has certain unique characteris-tics which offer additional assurance-against precedent-setting action.
The plant will be licensed as a research and development reactor.
Its primary mission is development of information, and not production of power.
It is a key step in the development of the LMFBR, and thus must be constructed in a. timely and expeditious manner to support the Nation's preparedness for longer-term nuclear power needs.
Moreover, it will be owned by the United States Govern-ment, managed by DOE, located on government-owned land, and operated by another federal agency (The Tennessee Valley Authority) under con-tract to DOE.
It is relatively small (375 MWe), compared to modern commercial reactors (1200 MWe).
It is the only demonstration plant now authorized by the Congress in the government's long-range LMFBR research and development program.
These unique project character-istics, coupled with the exceptional circumstances previously dis-cussed, assure that approval of this request would not be precedent-setting, but entirely consistent with the Commission's longstanding i
policy of granting such requests sparingly and only in exceptional circumstances.
4 1
d 4
e.-e-
,,,-yw-
,.--.,.,,-y
.,y--
.,-.-mm.
--+,.,,,c.---..+._.--.,e
,.-,e
,,. - --, -~
e
l III.
THIS IS A COMPELLING CASE FOR A FAVORABLE DETERMINATION UNDER THE SECTION 50.12 FACTORS In cases of requests under Section 50.12 to perform site preparation work prior to completion of the entire review process, the~four factors in Section 50.12 must be addressed and a favorable determination made.
Section 50.12(b) provides that the Commission.
may permit the conduct of site preparation activities upon considera-tion and balancing of the following factors:
(1)
Whether conduct of the proposed activities will give rise to a significant adverse impact on the environment and the nature and extent of such impact, if any; (2)
Whether redress of any adverse environment impact from conduct of the proposed activities can reasonably be effected should such redress be necessary; (3)
Whether conduct of the proposed activities would forecl;se subsequent adoption of alterna-tives; and (4)
The.effect of delay in conducting such activities on che public interest, including the power needs to be used by the proposed facility, the availability of alternative sources, if any, tc meet those needs on a timely basis and delay costs to the appli-cant and to consumers.
10 C.F.R. S 50.12(b).
In the instant request, the proposed site preparation activities are limited in scope and consist of clearing, grading, excavation, and construction of temporary and service facilities.
No safety-related constrtetion activities are proposed.
Only about 19% of the 1,364 acre land area of site will be cleared and graded.
A 2.4 mile railroad spur and a 1.3 mile access road will
. be constructed.
Temporary roads, and power, water. sewage, com-pressed air and fire protection services will be installed.
As will be shown below, there is a compelling case for relief under each of the Section 50.12 factors.
A.
The Proposed Activities Will Not Give Rise to Significant Adverse Environmenta( Impacts The nature and extent of the proposed activities do not differ significantly from those described in the FES.
Section 4.1 of the FES details the site preparation activities which were re-quesced under a Limited Work Authorization in 1975.
Those activi-ties included:
clearing, grubbing, and excavation, construction of " site access roads and onsite temporary roads, railroads and spurs, construction parking areas, work and storage area, con-struction power and lights, concrete batch plant, sewage treat-ment plant and toilet facilities, construction office and ware-house, fire protection system, storm drainage system, and barge unloading facility."
These are the very same activities which form the basis of this request.
See SPAR, S 1.2.
In reviewing the site preparation activities, the NRC's Final Environmental Statement of February 1977, concluded that the environmental effects of site preparation activities would not be significant:
In the event the applicant is permitted to proceed with site preparation under a Limited Work Authorization, it is the Staff's opinion that the environmental impacts of such work would not be significant.
FES at 9-23.
. The SPAR confirms that the site environmental conditions and the environmental effects of the proposed site preparation activities do not differ significantly from those described in the FES.
Accordingly, the environmental effects of the proposed activities will be insignificant. --23/
There is an additional perspective on the impacts of the proposed activities.
Although the significance of the pro-posed activities must be assessed in terms of long-term impacts, permanent commitment of resources and degradation of assets, Breckenridge v.
Rumsfeld, 537 F.2d 865 (6th Cir. 1976); Citizens for Reid State Park v. Laird, 336 F. Supp. 783, 788 (S.D. Me. 1972),
the analysis must also focus upon whether the activities would
" result in any long term changes in land use, planned growth or other consequences contemplated by statute and regulations,"
Cobble Hill Association v. Adams, 470 F. Supp. 1C77, 1086 (E.D.N.Y. 1979).
When the activity conforms to the uses and local zoning classifications of the area, "its adverse consequences would usually be less significsht than when it represents a radical change," Hanley v.
Kleindienst, 471 F.2d 823, 831 (2d Cir.
1972).
There may even be a presumption that the impacts are not significant:
When local zoning regulations and procedures are followed in site location decisions by the Federal Government, there is an assurance that such ' environmental' effects as flow from the special usec of land -- the safety of the structures, cohesiveness of neighborhoods, population density, crime control, and 23/
10 C.F.R.
S 50.12(b) (1).
. aesthetics -- will be no greater than demanded by the residents acting through their elected representatives.
There is room for the con-tention, and there may even be a presumption, that such incremental impact on the environment.
as is attributable to the particular land use proposed by the federal agency is not 'signifi-cant,' that the basic environmental impact from the project derives from the land use pattern, approved by local authorities, that prevails generally for the same kind of land use by private persons.
Maryland-National Capital Park and Planning Commission v. Postal Service, 487 F.2d 1029, 1036-37 (D.C. Cir. 1973).
In this caec, the proposed site preparation activities will be performed in an area zoned for future industrial use and development.
The land use plan developed by the Oak Ridge City Planning Department contemplates clearing of trees, shrubs and undergrowth and installation of access roads, railroad service and water and sewer lines.
This scope of work is included with-in the site preparation'wcrk proposed in this request.
- Thus, the proposed activities confarm to the industrial uses for which the site area is already dedicated, and on that basis the impacts of those activities will not Le significant. --24/
24/
In Wolf Creek, supra, 5 NRC at 12, the Commission recognized that the significance of environmental impacts must also be examined in the context of the redressability of those impacts.
The Com-mission acknowledged that there will be instances where, as here, it will be possible to redress che effects of site preparation activities (See Section III.B. below).
In those instances, where the applicant is willing to obligate itself to restore the site, authorization to commence site preparation activities should be granted.
. B.
The Impacts of the Proposed Activities are Easily Redressable The impacts of the proposed site. preparation activities could, if necessary, be easily redressed.
As the SPAR (Section 5) details, the site can be substantially returned to its original condition.
The significance of the environmental impacts and the degree of redress necessary must also be viewed in the context of the intended future alternate uses for the site.
The site of the proposed activities is within an area of government-owned land which is managed by the TVA.
As noted at page 5-2 of the SPAR, the area is zoned industrial; all alternative uses for the area proposed by the Oak Ridge City Planning Department in its land use plan involve clearing, road construction, railroad service, and water and sewer lines.
In addition, most of the harvestable timber in the area has been removed due to considerations not related to CRBRP.
Thus, not only are the environmental impacts of the proposed activities slight, but they are redressable both to th-site's original condition or-to a state appropriate for alternate use.
Under Section 50.12, environmental impacts are assessed in the context of their redressability and anticipated site uses.
In Kansas City Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), CLI-77-1, 5 NRC 1, 12 (1977) (Wolf Creek),
the Commission stated:
We wish to qualify our endorsement of the Board's legal standard with reference to the question of redressability.
The dissenting member in ALAB-331 argued persuasively that
.=
redressability should be carefully considered.
in the present setting.
He pointed out that while railroad tracks and grading can have significant environ-antal impacts, they are impacts that can be ' rgely reversed later, if necessary.
It is impossible to restore a virgin stand of timber; but one can, with some expense, pick up railroad tracks and ties and restore land to agricultural production.
We think that there will be instances in which it will be possible to correct damage to the environment which is caused.by site pre-paration or other preconstruction activities, should the Commission eventually deny an applicant a construction permit.
In those instances in which damage is fully redress-able, and the applicant is willing to obligate itself to undertaking such activities as are necessary to restore the site, a licensing board might in its discretion allow the applicant to proceed accordingly.
As detailed in Section 5 of the SPAR, the proposed activi-ties are easily redressable.
Temporary buildings, construction utilities and other construction facilities can be easily removed from the site.
Excavated areas would be backfilled, and by grading, compacting, seeding and planting, restored to a condition reason-j ably similar to the immediate surrounding terrain and foliage.
This could be done promptly (in about one year) and at a modest cost (about.$8 million).
More importantly, the impacts are even less significant and more easily redressable when viewed in r ne context of future industrial uses of the site.
The industrial zoning classification would make it desirable to leave certain of the service facilities such as the access road, utilities, and rail spur, the barge unloading facility and the storm drainage and potable water distribution systems intact.
This, in turn, would decrease the cost of redress to about $5 million because the items listed above would not have to be removed.
1
. C.
No Reasonable Alternatives Will be Foreclosed by Conduct Of The Proposed Activities Because.a safety-related or permanent construction activi-ties are proposed, an appropriate range of design alternatives will not be foreclosed by conduct of the proposed activities.
See SPAR, S 6.1.
Likewise, a reasonable range of alternative site uses can be completely preserved by substantially restoring the site to its original condition.
See SPAR, S 6.2.
It must also be em.- hasized that the site, as noted above, is within an area of government-owned land that is dedicated to future industrial development.
In this regard, it should be advantageous to future alternative industrial uses of the site to leave intact the basic service facilities.
DOE is fully committed to complete redress J
of the site, if necessary, at a cost of $8 million.
If the basic service facilities were left intact, however, the cost of redress would be reduced to about $5 million, resulting in a savings of $3 million for redress of the site and substan-tially benefitting r:ture alternative industrial users of the site.
These service facilities would have a replacement cost to any future industrial user of about $30 million.
The alternative of abandonment of the proj ect would i
not be affected by the proposed activities.
In Coalition For Safe Nuclear Power v. AEC, 463 F.2d 954 (D.C. Cir.'1972) (Dayis-Besse), the Court of Appeals, while a,pproving the four factor test of Section 50.12, added an additional refinement.
The court re-quired that the Commission consider whether adoption of the alternative of abandonment would be precluded by additional
.r.. -
-.-,._.,,,--.~.- -._-.,
. investment in the project.
In this case, this possibility is extremely remote.
The expenditures for the proposed site prepara-tion activities are less that. 8% of the project cost accrued to date (over $1.1 billion), and less than 3% of the estimsted total project cost ($3.2 billion).
The relatively small investment for site preparation activities will not cause an irretrievable tilt of the cost-benefit balance toward project completion, and thereby keeps the alternative of complete abandonment of the project economically 25/
viable. --
See Carolina Power & Light Co. (Shearon-Harris Nuclear Power Plant, Units 1, 2, 3, and 4), LBP-74-18, 7 AEC 538 (1974);
Commonwealth Edison Co. (Byron Station, Units 1 and 2), AEC Direc-torate of Licensing letter of January 14, 1974.
25/
Unlike the situation in Natural Resources Defense Council, Inc.
v.
NRC, 539 F.2d 824 (2d Cir. 1976), cert. granted, 434 U.S.
944 (1977), vacated and remanded to consider mootness, 434 U.S.
1030 (1978), (NRDC), authorization of site preparation work will not result in the irretrievable commitment of resources.
In NRDC, the court found that interim licensing of the use of mixed-oxide fuel would result "in such a substantial further commitment of resourcer that the final decision on the costs and benefits of the pubiic health and safety and environmental aspects of wide-scale use of mixed-oxide fuel would be signifi-cantly affected.
Id. at 845.
In this case, approval of site preparation work will not result in the irretrievable commitment of resources to the CRBRP project or prejudice the ultimate NEPA cost / benefit analysis because site preparation work would result in insignificant environmental impacts, is re-dressable, and involves only a fraction of the total expendi-tures for the project.
This case is more similar to the case of Aberdeen & Rockfish R.R. v. SCRAP, 422 U.S. 289 (1975) --
authorization of site preparation is non-final and does not commit resources to the project that would prejudice the NEPA review.
- D.
The Public Interest Will Be Best Served by the Grant of the Request While the impacts of the proposed activities are both insignificant and redressable, the public benefits to'be derived from authorization of such activities are substantial.
This project has already incurred schedule delays of more than four years, and increased costs of more than $800 million as the result of'the previous Administration's actions.
Approval of the proposed activities will enable the proj ect to make maximum use of available federal funding, avoid additional delays of one to two years, and avoid additional cost increases of $120 to $240 million, while at the same time enabling DOE to effectively carry out the mission i.
of its long-term LMFBR research and development.
Moreover, approval of the request will advance the longstanding Congressional mandate in favor of expeditious project completion, and the national interest in ensuring preparedness for longer-term nuclear power needs The impact of cost increases -- which are unavoidable if this request is denied -- upon the nation's taxpayers is large.
In Shearon-Harris, supra, a six month delay, causing $42 million in escalation charges and $68 million in replacement power costs, would have occurred if an exemption under Section 50.12 had not been granted.
This loss of $110 million to consumers was found to be sufficient to make a finding that granting the request would serve the public interest.
See-7 AEC at 945-46.
4 1
... In this case, any delay in the proj ect will. impose an
~
increased cost to the project which will in turn be absorbed by the nation's taxpayers.
The delayoof one to two years imposed by.a' denial of this request will result in cost increases of
$120-$240 milllon.
On balance, the public interest mandates approval of this request.
Based on the facts of this request as contained in the FES and confirmed in the SPAR, the criteria of Section 30.12 are met in full.
The requested site preparation a'ctivities: (1) will not result in significant environmental impacts; (2) are fully redressable; (3) will.not foreclose consideration of alter-natives; and (4) are in the public interest.
Therefore, the Commission should exercise its authority to grant the requested 26/
relief. --
26/
10 C.F.R. S 50.12(b)(1)-(4).
. IV.
POLICY DETERMINATIONS AND THE NEED FOR PP TT RELIEF REQUIRE IMMEDIATE p
tEW BY THE COMMISSION The NRC L. censing Boards have no authority to entertain requests pw
.n t to 10 C.F.R. 5 50.12.
Southern California Edison Co. (San Onofre Nuclear Generating _ Station, Units 2 and 3), LBP-77-35, 5 NRC 1290, 1291 (1977).
Moreover, no hearings are required under 10 C.F.R.
S 50.12, Carolina Power & Light Co.
(Shearon-Harris Nuclear Power Plant, Units 1, 2, 3, and 4),
Because the Licensing Boards are the
" Commission's primary fact finding tribunals," Northern Indiana Public Service Co..(Bailly Nuclear Generating Station, Unit 1),
ALAB-303, 2 NRC 858, 867 (1975), the Commission has, on certain.
occasions, requested a Licensing Board to conduct hearings in regard to Section 50.12 requests.
See Washington Public Powcr Supply System (WPPSS ' Nuclear Proj ects, Units 3 and 5), CLI-77-ll 5 NRC 719, 723 (1977).
In this case, however, there are exigent circumstances which warrant immediate Commission review.
This request for authorization raises substantial national policy considerations which only the Commission can address.
Moreover, if this request is referred to a Licensing Board for consideration timely relief will be virtually impossible.
In sum, the exigent circumstances presented in this request are exceptional and require prompt relief from the Commission.
. A.
This Request. Raises Substantial Policy Issues Which Only the Commission Can Address Although the Licensing Boards have been delegated the responsibility to assist the Commission in developing a factual record, they have no authority to address or consider questions of policy.
As the Board stated in South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-81-44 (Oct. 15, 1981), when it was requested to consider a question of policy:
Moreover, even if we could agree with the suggested new policy, we lack the power to adopt it.
In Offshore Power Systems, (Floating Nuclear Power Plants), CLI-79-9, 10 NRC 257, 261 (1979), the Commission indicated that only_it, and not the 4
licensing boards (in that case an appeal board) was " empowered to make policy as well as apply it."
This request for authorization to commence site preparation activities raises a number of significant policy considerations which only the Commission can address.
Those policy considerations which must be weighed by the Commission include: (1) the importance of fulfilling the Presidential and Congressional mandates to construct the Clinch River Breeder Reactor facility in a timely and expeditious manner; (2) the effect of delay in beginning site preparation activities on a federal demonstration facility; (3) the implications of increased costs to federal taxpayers (estimated at $120-$240 million); and (4) the adverse effect of delay upon DOE's responsibility for LMFBR technology development.
. These policy considerations must be addressed by the Commission.
A Licensing Board cannot, therefore, provide any meaningful assistance to the Commission with respect to these policy considerations.
The net effect of a decision to permit a Board to review the requested authorization will be further unjustifiable delay with no appreciable benefit to the Commission or the public.
. B.
Referral to a Licensing Board Will Render Timely Relief Impossible or Highly Unlikely Since April of 1977, the proj ect has been unable to make any progress in the NRC licensing process.
The four year suspension of licensing has added more than four years to the project schedule and caused increased costs of more than $800 million.
Because the present Administration is strongly committed to completion of the project, and the Congress has continued to authorize and fund it for the purpose of completion, exceptional efforts must be made to avoid additional undue delays.
A decision by the Commission to defer this request for authorization to begin site preparation activities until a Licensing Board has reviewed the matter will only serve to further delay the project, while providing the NRC no meaningful assistance in addressing the important policy issues raised by this request.
Each month of delay translates into increased project costs of
$10 uaillon.
A decision by the Commission to deny this request for authorization will require the project to seek a Limited Work Authorization.
This would entail additional delays ranging from one to two years.
In light of the extraordinary delays which the CRBRP has already experienced and in light of the present Administration's commitment, as well as that of the Congress, to the expeditious completion of this proj ect, any further unnecessary delay of any duration is unjustified.
The exigent circumstances present here and the paramount national interests at stake demand that the Commission itself approve this request without referral to a Licensing Board.
. CONCLUSION In authorizing the commencement of site preparation activities for the project, the Commission will be promoting the Nation's longer term energy needs while still assuring that all environmental considerations have been fully evaluated and reviewed.
In light of the important interests at stake, and the extraordinary circumstances surrounding this proj ect, the Commission is respect-fully requested to authorize the commencement of site preparation activities.
l Dje n4 A!
R. Tenney nson General Co 1
United States Department of Energy 1000 Independence Avenue, N.W.
Washington, D.C.
20555 (202) 252-5281 Ge'orge L. p gar Attorney tor Pro.),ect Management Corporation 1800 M Street, N.W.
Washington, D.C.
20036 (202) 872-5121 l
P-G O
h I
APPENDIX A i
'l l
[
{
l l
l i
I i
l I
l r
--vw--.*w-w-+
y-www-.m+ew-we,ww,,wn,-,,---.m-,c-.,,.
m w-r %
e w y
-,--_,,-.+-ww-,,ir
,-.--cy%,-+
--.ww--v-,-
e w-,w,-
--aw e.-,--.ww----e.--i+ - - - +m
APPENDIX A 1.
From the Inception of the Project through 1977, the Congress Consistently Expressed its Intention that the Project be Expeditiousiv Completed On July ll, 1969, as part of the fourth round of the AEC's Cooperative Power Reactor Demonstration Program, Congress authorized funds for the Project Definition Phase of a project to design, develop, and operate a LMFBR plant on a utility's electric grid in cooperation with reactor manufacturers and others, Section 106 of AEC Authorization Act, Pub. L.
91-44, 1/
83 Stat. 46. -
The Report of the Joint Committee on Atomic Energy ("JCAE") which accompanied the legislation noted that the AEC's studies had led to the establishment of the LMFBR develop-mental efforts as the AEC's highest priority civilian nuclear reactor program, S. Rep. No.91-315, 91st Cong., 1st Sess. 22 (1969).
Pursuant to the proj ect definition phase, three different proposals for demonstration scale LMFBR projects were developed and submitted to the AEC by three separate reactor manufacturer and utility teams. -2/
On July 2, 1970, Congress took the next step toward the realization of a LMFBR demonstration plant by authorizing the AEC to proceed from the Project Definition Phase to the 1/
The Cooperative Power Reactor Demonstration Program itself Ead been established pursuant to Pub. L. No. 86-50, S 110.
2/
See Report on Hearings before the Joint Committee on Atomic Energy on the Basis for the Proposed Arrangement for the LMFBR Demonstration Plan, 92d Cong., 2d Sess. (Sept. 7, 8, and 12, 1972) [ hereinafter JCAE Hearings] at IV-V.
See also USNRC Draft Environmental Statement, CRBRP, NUREG-0024, Section 9 (1976).
. _.. _ ~
.. Definitive Cooperative Arrangement Phase of the LMFBR Demonstra-tion Plant, Section 106 of the JIC Authorization Act, Pub..L.
No.91-273, 84 Stat. 299.
This authorized the AEC to negotiate
-a' definitive arrangement ~ for the design, construction and opera-tion of-the. Nation's first demonstration scale LMFBR. ~3/.
- The AEC,. having found in the Project Definition Phase 4
.that the financial implications of the proposed program pre-cluded support by reactor manufacturers or a few utilities alone, turned to the entire utility industry for assistance in the design,-
construction, demonstration and operation of a demonstration plant.
Support was provided by the utilities for the reason that the long-range purpc se of the effort was to demonstrate the LMF3R technology's effectiveness as an integral part of'an etectric utility system, thereby advancing the technology toward the stage of large-scale commercialization.
As the AEC noted, the proj ect would:
1 provide data and experience on operation of a i
large-scale power plant system and the interaction of that system with its supporting facilities and with the local environment....
Construction and operation will also play an essential role in deternining the safety, reliability, economics and environmental impact in the context of the utilization of the LMFBR on electric power systems....
The LMFBR program is being developed on the basis that a demonstration plant... will help provide the operational record needed for evaluating the commercial viability of the LMFBR.
AEC WASH 1535, Vol. 1 at 3.5-2.
In accordance with its statutory authority to develop l
a cooperative arrangement, the AEC appointed a Senior Utility 3f.
Pub. L. No.91-273, S 106.
See JCAE Hearings at IV.
1 i
. Advisory Committee to develop the appropriate technical, managerial and financial criteria and other ground rules for a cooperative AEC/ Utility LMFBR demonstration plant project.
The Utility Com-mittee's review and subsequent recommendations led to further in-ternal AEC deliberations which culminated in the selection of the Joint Commonwealth Edison /TVA proposal to construct a large-scale demonstration LMFBR on the TVA system.
This selection served as the basis for further negotiations directed toward the development of proposed arrangements to be reviewed by the Joint Committee on Atomic Energy. -4/
Shortly thereafter, the Joint Committee held extensive hearings on the basis for the proposed arrangements for this project between Commonwealth Edison /TVA and AEC as well as a series of modifications to those arrangements. -5/
As a result of the Joint Committee's review, legislation was enacted in 1972 which fully authorized the CRBRP Project based upon the project 6/
arrangements embodied in the Commonwealth Edison /TVA Proposal, -
and which resulted in firm utility commitments to contribute some
$250 million to the Project.
This represented the largest single 4/
See JCAE Hearings at IV-V.
5/
Id.
See also Report on Hearings before the JCAE to Consider Froposed Changes in the Basis for the Cooperative Arrangement for Design, Construction, and Operation of the LMFBR Demonstration Plant, 93d Cong., 1st Sess. (Feb. 28 and May 4, 1973).
6/
Pub. L. No. 92-84.
See Joint Report of the House Committee on Science and Technology and the JCAE, 94th Cong., 1st Sess. H.
Rep. No.94-294 at 32-35 (1975) [ hereinafter Joint Report]; JCAE Authorization Report, 94th cong., 1st Sess. S. Rep. No.94-104 at 17-20 (1975) [ hereinafter JCAE Report].
The JCAE concluded that "... the basis for the proposed [CE/TVA/AEC) arrangement is in accord with the requirements of the enabling statute."
JCAE Hearings, supra note 4 at VI.
t
. utility industry financial commitment to a government sponsored R&D proj ect in our Nation's history.
On January 19, 1975, the AEC's nuclear energy derelop-ment functions were transferred to the Energy Research and Develop-ment Administration pursuant to the Energy Reorganization Act of 1974, 42 U.S.C.
S 5801 et seq.
As a result of the creation of ERDA, the unavoidable delays in the proj ect, and the corresponding escalating proj ect costs, it became apparent by the spring of 1975 that amendments to the legislation authorizing the CRBRP project would be desirable.
After extensive hearings before the Joint Committee on Atomic Energy and other Congressional committees with concurrent or overlapping jurisdiction, Congress proceeded to con-sider the need for, and timing of, the current ERDA LMFBR Program 7/
in general and the CRBRP Project in particular. -
In compliance with the requirements of NEPA, Congress had the LMFBR Program Pro-posed Final Environmental Statement before it during the course of these deliberations. ~8/
After extensive debate, Congress voted, by 7/
See Joint Report and JCAE Report, note 6, supra.
8/
See East Tennessee Energy Group v.
Seamans, Civ. Action No.75-727 TD.D.C. June 11, 1975).
During the 1975 hearings on the CRBRP authorizing legislation, Senator Montoya inquired as to whether ERDA had satisfied the requirements of NEPA in seeking authorization prior to completion of the final LMFBR Program environmental statement.
In response, the General Counsel of ERDA provided a legal opinion in support of the proposition that ERDA had satisfied NEPA.
The General Counsel's rationale was subsequently accepted by the court in East Tennessee Energy Group, supra.
Moreover, the same General Counsel's opinion advised Con-gress that a separate NRC EIS on the CRBRP would be prepared which would address only those site-specific aspects of the CRBRP which were not fully evaluated in the LMFBR Program Statement.
See Part 4 of the Hearings on the ERDA Authorizing Legislation for
. a substantial margin, to continue the LMFBR Program under its present structure and schedule and specifically authorized the CRBRP Proj ect. -9/ At the same time, Congress acted with the understanding that the Joint Committee on Atomic Energy would appoint an Ad Hoc Subcommittee to undertake an extensive review of the need for, and timing of, the LMFBR Program and the CRBRP. ~~10/
Most significantly Congress expressly rej ected amendments which 8/
(con't.)
Fiscal Year 1976 Before the Subcommittee on Legis-Iation of the JCAE, 94th Cong., 1st Sess. 2251-54 and 3274-79 (March 11 and 13, 1975).
As an outgrowth of the General Counsel's response, Congress clearly differentiated between the scope of the environmental review required for, and the responsibility for the preparation of, the environmental statement associated with the LMFBR Program and that associated with the CRBRP Proj ect.
In both the JCAE Report and the Joint Report of the House Com-mittee on Science and Technology and the JCAE, it is clearly stated that the following additional events must occur before construction of the CRBRP can commence:
1.
ERDA must have issued the final environmental statement for the entire breeder program....
2.
The independent Nuclear Regulatory Commission must have issued its final environmental state-ment on the Clinch River Demonstration Plant.
Joint Report at 36, JCAE Report at 20 (emphasis in original).
9/
See Pub. L. No.94-187; see also 121 Cong. Rec. S14776, 522775-' H5887: H123438, H1320BT(T975).
10/
At the time that the Ad Hoc Subcommittee was formed to con-Juct this definitive review of the LMFBR Program on behalf of Congress, it was noted that there were several other studies of the LMFER Program being conducted by other government agencies which were then underway or about to get underway.
Mentioned were ERDA's LMFBR Program EIS, the comprehensive ERDA Report on Energy RD&D required by the Federal Nonnuclear Energy Research and Development Act of 1974 (Pub. L. No.93-577) and a GAO Report on the Il{F:BR Program.
Joint Report No 94-294, supra at 34.
See Additional Views on this Report, supra at 229-34.
. would have stretched-out the pace of the CRBRP Proj ect. and the LMFBR Program pending completion of the Ad Hoc Subcommittee's review. --11/
In accordance with the authorization contained in the 1976 amendments to the original CRBRP authorizing legislation, the responsibilities of the respective project participants were realigned, an integrated project organization was established with ERDA assumir.g overall control over the project, and revised pro-ject arrangements implementing these changes were developed and.
12/
submitted to the Joint Committee for review. --
After considera-tion of these revised proj ect arrangements, Congress again. affirmed i
its support of the CRBRP and the LMFBR Program by an overwhelming margin. --13/
In taking this action, Congress had the benefit of information made available by both ERDA's Final LMFBR Program Environmental Statement and the Joint Committee on Atomic Energy's 11/
The so-called Tunney Amendment (No. 553) which would have deleted funds for the CRBRP from the ERDA authorization bill for FY 76 and the transition quarter, prohibited the procurement of long-lead items for the CRBRP, delayed the start of the CRBRP, and effectively made the CRBRP sequential with the FFTF was soundly rejected by the Senate.
121 Cong. Rec. S14604-14637 (July 31, 1975).
Its counterpart in the House version of the ERDA authorization bill (the Coughlin Amendment) was likewise defeated in the House.
121 Cong. Rec. H5752-5788 (June 20, 1975).
12/
See Joint Report No.94-294 at 35; Senate Report No.94-104 at 19.
Compare Dissenting Views on the JCAE Report on the ERDA FY 77 Appropriations Bill H.R. Rep. No. 94-1081, Part 1, 94th Cong., 2d Sess. at 74 (1976).
13/
122 Cong. Rec. S10613-22 (June 25, 1976) ;.122 Cong. Rec.
R5835-5898 (June 15, 1976).
. Ad Hoc Subcommittee Report on the LMFBR Program. --14/Moreover, the Congress once again refused to countenance delay and expressly rejected amendments which would:
(1) further modify the project 15/
arrangements concerning funding and control; ~~
and (2) change the regulatory standards applicable to the grant or denial of the construction permit for CRBRP. --16/
Up to 1977, if Congressional action concerning the LMFBR Program and CRBRP is viewed in its entirety, it is clear that Congress had established a-clear and unmistakable mandate.
During that period Congress:
(1) approved continuance of the LMFBR Pro-gram; (2) approved priority pursuit of CRBRP in the context of the 14/
See H. Rep. No. 94-1081, note 14 supra at 15-19; JCAE Report on ERDA FY 77 Appropriations Bill, S. Rep. No.94-762, 94th Cong.,
2d Sess. 16-20 (1976).
15/
The Senate convincingly rejected the modified Haskell amend-Eent No. 1654, which would have provided that costs in excess of
$2 billion for the CRBRP be shared equally by the federal govern-ment and utility participants in the proj ect.
122 Cong.-Rec.
S10563 (June 25, 1976).
This same amendment was also rej ected by the House.
122 Cong. Rec. H4714-4723 (May 20, 1976).
The House also soundly rejected another proposed amendment that would have delayed construction of the CRBRP until one year after the FFTF operated at 50% power.
122 Cong. Rec. H4739-4741 (May 20, 1976).
16/
The Senate rejected by an even wider margin Haskell Amend-ment No. 1943, which would have overruled the longstanding principles enunciated in Power Reactor Development Co. v.
International Union, 367 U.I.S. 396 (1961), and embodied in NRC's regulations, and would have imposed a requirement that NRC's con-struction permit, rather than operating license, decision for CRBRP be based upon a definitive finding of safety.
122 Cong Rec. S10570 (June 25, 1976).
. LMFBR Program; and (3) accepted the revised project arrangements and funding for joint utility / government participation in the CRBRP Proj ect.
Of at least equal significance was Congress' action in expressly rejecting:
(1) ctretching out or other changes in the schedule or structure of the LMFBR Program and CRBRP; (2)~ changes in the funding or management of the CRBRP Pro-ject which migh frustrate the timely execution of the Project; and (3) fundamental changes in the NRC regulatory standards which would have imposed more stringent licensing requirements on the CRBRP.
The Congress unequivocally determined that CRBRP and the LMFBR Program should be pursued on a priority basis and that further delay and reconsideration of programmatic alternatives could not be tolerated.
The intentions of Congress are best and most succinctly summarized by the Ad Hoc Subcommittee report which formed the basis for Congress' FY 1977 authorizing legislation:
The tendency toward redundant and duplicative reviews of nuclear power and the need for the breeder reactor should be reduced to a minimum.
While periodic reassessments of program goals and approach are appropriate, the major review efforts by government and industry should be on narrower issues justifying greater attention, e.g.,
how program gonis are being met, means for imprcving cost and schedular performance, adequacy of program management, and other topics on the order of 'How Best to Get the Job Done',
rather than 'Should we do the Job?'
17/
17/
Report by the Ad Hoc Subcommittee to Review the LMFBR Pro-gram of the JCAE, 94th Cong. 2d Sess. at 70 (1976) (emphasis added).
See Executive Summary of this Report contained in 122 Cong. Rec.
E7ES, 748 (Feb. 19, 1976).
Compare Separate Views of Senator Tunney, Ad Hoc Subcommittee Report at 93.
4 Given the explicit mandate of the authorizing legisla-tion for CRBRP up through 1976, it remains to consider the force and effect of the events from 1977 to the present.
2.
In The Face of Active Efforts by the Previous Administration to Cancel the Proj ect in Each of the Past Four Years, the Congress Acted to Preserve the Project and Urge its Expeditious Completion The Administration's actions to cancel the project and 2
Congress' response can be conveniently arranged in terms of three major categories:
1)
Actions designed to rescind the project under the Congressional Budget and Impoundment Control Act of 1974, 31 U.S.C.
$ 1301 et seq.,
j 2)
Actions designed to deauthorize the project through the authorization or appropriations process, and 3)
Actions designed to eliminate funding for the project.
As to each of the foregoing categories, two facts stand out in stark relief:
(1) the Congress has acted to preserve the project in spite of the previous Administration's active and continuous efforts to cancel the project; and (2) the project was never the object of a negative vote in the United States Congress.
This can be demonstrated by reference to each of the three afore-I mentioned categories, as follows:
1)
Actions designed to rescind the project -
l d
On May 18, 1977, the Administration submitted a revision to its February budget request which included a reduction in Fiscal Year 1978 CRBRP funding from $150 million to $33 million, which lesser amount was specifically allocated for use in terminating
3,
the Proj ect.
On May 19, 1977, ERDA sent to Congress a deferral message which sought to:
(a) defer Project expenditures of $31.8 million during Fiscal Year 1977; and (b) amend the Project objectives to call for discontinuance of the Project (except for completion of systems design).
On April 25, 1977, Senator Henry M. Jackson, in a letter to Robert W. Fri, requested information relating to changes proposed by the Administration concerning the LMFBR program and the CRBRP.
On May 19, 1977, Mr. Fri re-sponded to Senator Jackson's April 25, 1977 request.
In his response, Mr. Fri indicated that the Administration had reduced the proposed Fiscal Year 1978 budget for the LMFBR program from
$855M to $483M thus:
(a) eliminating the CRBRP design work; (b) cancelling construction, component fabrication and licensing of CRBRP ; (c) redirecting base technology support programs; and (d) delaying modification and new construction of facilities associated with fuels, safety and component systems testing and R&D.
A policy of increased reliance on coal and development of solar, goethermal and biomass was stated.
In a letter to the U.S. Comptroller General dated May 26, 1977, Senators Clifford Hansen and Henry Jackson requested that the Comptroller General immediately initiate an audit of the ERDA nuclear research program.
This request was prompted by the May 19 letter from Mr. Fri to Senator Jackson which had indicated that ERDA was redirecting the LMFBR and other nuclear programs in a manner which they (Hansen/ Jackson) believed to be unauthorized under existing law.
On the same date (May 26), Senators Jackson and Baker wrote Mr. Fri in response to his May 19 letter, advising
1
. i him that, in their view, his letter was insufficient and un-acceptable.
Senators Jackson and Baker also wrote to the Comptroller General indicating that they believed the deferral request of May 19 should properly have been a request for recis-sion, and soliciting GAO review and judgment on the matter.
By letter of June 23, 1977, the Comptroller General responded to the request of Senators Bnker and Jackson of May 26, 1977, and noted that:
(i) the Administration's notice of de-ferral was properly classified for the balance of Fiscal Year.
1977 funding as a deferral of budget authority; and (ii) the Administration's proposed cancellation of CRBRP was substantially inconsistent with the criteria approved for the completion of the Project by the Joint Committee on Atomic Energy (JCAE).
In the Comptroller General's view, ERDA lacked the authority to implement the President's plan to curtail the Project unless Congress acted to revise the continuing Authorization contained in Section 106 of Pub. L. No.91-273, as amended.
On July 4, 1977, Mr. Fri wrote Congressman Teague and l
Senator Baker that ERDA intended to continue current CRBRP activities on a reasonable and prudent basis.
On July 26, 1977, ERDA supple-mented its May 19, 1977 deferral message with Notice of Deferral i
D77-58.
Because Congress did not act to disapprove the deferral, the $31.8 million deferral of expenditures for FY 1977 was effec-tive.
At the same time, the July 26, 1977, deferral message effec-i tively withdrew ERDA's previous attempt to amend the project ob-jectives.
As a result, the Project's arrangements and criteria were not changed.
l i
i
' 12-Subsequently. on March 7, 1978, the President signed the Supplemental' Appropriations Bill which provided $80 million of funding for the CRBRP for Fiscal Year 1978 (H.R. 9375, Pub. L.
No.95-240).
In a message accompanying signature of Pub. L. No.95-240, the President stated:
...[T]he $80 million ceutained in this bill' for Clinch River Breeder Reactor will'be used i
to complete :he systems design for this' reactor
.and to terminate further CRBR activities in an orderly way.
-The Comptroller General of the United States, by letter of March 10, 1978 to Secretary Schlesinger, specifically concluded that if any part of the $80 million provided in Public Law 95-240 were used to " terminate further CRBR activities," such use would not be in accord with the existing CRBRP Authorization Act, Section 106 of Pub. L. No.91-273, as amended.
By letter dated March 6, 1978, the Comptroller General advised Senator Jackson of the results of his audit of the Clinch.
River Proj ect.
The letter concluded,
.nter alia:
1
--The Executive branch is complying with the CRBR authorizing legislation in its conduct of the project; no impoundment of funds presently exists.
By letter dated March 23, 1977, the Comptroller General responded to Senator Hansen's March 10, 1978 letter which posed i
questions concerning the Comptroller General's March 6, 1978 letter as follows:
i Your questions and our responses follow:
4 2
. QUESTION: Are we also correct in understanding that this report is in no way intended to diminish the force and effect of the GAO opinions dated June 23, 1977, and December 5, 1977 regarding termination of CRBRP and that both opinions are and remain GAO's current view?
ANSWER:
Yes.
As you know, by letter dated March 10, 1978, to the Secretary of Energy, we reiterated our interpretation of the CRER project authoriz-ing legislation and served notice upon the executive branch that this Office intends to exercise those legal authorities available in the event certifications are made for unlawful expenditures of Federal funds.
We understand that a copy of our letter of March 10, 1978, has been received by the Senate Committee on Energy and Natural Resources.
Upon consideration of the opinions expressed by the Comptroller General, the Department of Energy took no further actions which cculd be construed as applying funds for project termination, --18/
and tne Administration's efforts to cancel the project through recission were effectively stymied.
2)
Actions designed to deauthorize the project --
After the previous Administration failed to rescind the proj ec t, in each fiscal year from 1977 to the present, the Administra-tion's major actions to deauthorize the project and Congress' response to each were as follows:
a.
Fiscal Year 1978 --
In July 1977, Mr. Fri wrote Congressman Teague concerning ERDA's plans for CRBRP activities and indicated that ERDA intended 18/
In response to a request from U.S. Senator Howard Baker of Tennessee, the Comptroller General of the United States issued a letter dated November 2, 1978, stating that, in his opinion, House Joint Resolution 1139 appropriated $172.4 million for the CRBRP as part of the $4.6 billion Department of Energy appropriation for Fiscal Year 1979, and that the money must be " applied in accordance with the existing statutory authorization for the Project."
{
. to continue then current CRBRP Project activities on a reasonable and prudent basis.
In July 1977, Mr. Fri wrote Senator Howard H. Baker informing him that ERDA intended to continue current CRBRP activities on a reasonable and prudent basis.
On July 12, 1977, the Senate:
(1) rejected Senator Bumpers' amendment to the ERDA Authorization Bill (S.1811) which would have _ reduced Project funding to the $33 million level re-quested by the Administration; and (2) passed the Church / Jackson 19/
amendment thereto, which provided $75 million of funding. --
On September 20, 1977, two amendments to: reduce CRBRP funding in the 1978 ERDA Authorization Bill were defeated in the House of Representatives. ~~20/
On September 23, 1977, the ERDA Authorization Bill containing $150 million for CRBRP was passed by the House. --21/
On September 26,~1977, a Conference Committee was' appointed to reconcile differences between House and Senate versions of the ERDA Authorization Bill.
01 October 4, 1977, the Conference Ccmmittee oa the ERDA Authorization Bill agreed upon a compromise funding level of $80 million.
On October 19, 1977, restrictive language rendering CRBRP appropriations subj ect to enactment of authorizing legislation was removed from the House vers _on of the Supplemental Appropriations 19/
123 Cong. Rec. Sil564 (1917).
20/
123 Cong. Rec. H9671 (1977).
21/
123 Cong. Rec H9906 (1977).
. Bill through an amendment offered by Representative Tom Bevill (D-Alabama), Chairman of the Public Works Subecmmittee of the House Appropriations Committee.
The funding level in this Bill was reduced from $150 to $80 million, consistent with compromise levels of funding in the Authorization Bill.
The Appropriations 22/-
Bill passed the House on a vote of 252-165. --
On October 20, 1977, the House and Senate approved the Conference Report on the ERDA Authorization Bill (House vote --
366-52; Senate vote -- approved by voice vote). --23/
On October 25, 1977, the ERDA Authorization Bill was sent to the President for action.
On November 5, 1977, the President vetoed the Authori-zation Bill on the grounds,-among others, that it contained authori-t zation for the CRBRP.
The President's veto message stated that:
I intend to pursue the authority at my disposal to terminate construction of the Clinch River facility.
Further expenditure on the Clinch River facility should be ended in an orderly fashion, and I intend to ana-lyze all available options, including those under the Congressional Budget and Impound-ment Control Act of 1974, to ensure that no further unnecessary expenditures on this facility are made, l
0-December 7, 1977, the House passed the 1978 ERDA Authorization Bill without provisions for the CRBRP.
Floor debate made it clear that this action would not have diminished the Admin-istration's obligation to expend funds consistent with prior year
.Avthorization Acts. --24/ The Administration, however, took no action 22/
123 Cong. Rec. Hil282 (1977).
23/
123 Cong. Rec. S175 and H11338 (1977).
24/
123 Cong. Rec. H12778 (1977).
L 3
... - - ~.
' to apply the funds appropriated in.the Supplemental Appropriations Bill for Proj ect termination.
By'1etter dated March 16, 1978, the Comptroller' General advised Senator Jackson of the result t of his audit of the Clinch River Proj ect.
The letter concluded, inter alia:
The Executive' Branch is complying with the CRBR authorizing legislation in its conduct of the project; no impoundment of funds presently exists.
On March 7, 1978, the President signed the Supplemental Appropriations Bill which provided $80 million of funding for the CRBRP (H.R. 9375, Pub. L. No.95-240).
In a message accompanying signature of Pub. L. No.95-240, the President stated:
[T]he $80 million contained in this bill for Clinch River Breeder Reactor will.be used to complete the systems. design for this reactor and to terminate further CRBR activities in an orderly way.
The Comptroller General of the United States, by letter of March 10, 1978 to Secretary Schlesinger, specifically concluded that if any part of the $80 million provided in Public Law 95-240
-were used to " terminate further CRBR activities", such use would not be in accord with the existing CRBRP Authorization Act, Section 106 of Public Law 91-273, as amended.
By letter dated March 23, 1978, the Comptroller General responded to Senator Hansen's March 10, 1978 letter, which posed questions concerning the Comptroller General's March 10, 1978 letter as follows:
Your questions and our responses follow:
. QUESTION: Are we also correct in understanding that this report is in no way intended to diminish the force and effect of the'GAO opinions dated June 23,-1977, and December 5, 1977 regarding termina-tion of CRBRP and that both opinions are and remain GAO's current view?
ANSWER:
Yes.
As you know, by letter dated March 10, 1978, to the Secretary of Energy, we reiterated our inter-pretution of the CRBR project authorizing legislation and served notice upon the executive branch that this Office intends to exercise those legal authorities avail-able in the event certifications are made for unlawful expenditures of Federal funds.
1 We understand that a copy of our letter of March 10, 1978, has been received by the Senate Committee on Energy and Natural Resources.
Thereafter, DOE took no action which could be construed as applying appropriated funds to termination of the CRBRP, and the Administra-tion's actions to deauthorize the Project in Fiscal Year 1978 were effectively stymied.
The project remained fully authorized pursuant to Section 106 of Pub. L. No.91-273, as amended.
b.
Fiscal Year 1979 -
On March 17, 1978, Secretary Schlesinger, without notice to or consultation with the project participants, presented-a lee.ter to Chairman Teague which further elaborated on a proposal to redirect the Nation's breeder program.
The proposal would,.
inter alia, cancel the CRBRP, undertake conceptual studies of a 650-900 MW advanced fission facility, and estallish development and testing of components geared toward an advanced fission facility.
On April 13, 1978, the House Committee on Science and Technology voted to continue funding of the CRBR proj ect and authorized the expenditure of $172.5 million in FY 1979, of which i
. $15 million was earmarked for a larger plant (600-900 MW(E)) con-ceptual design study.
The Committee also voted to preserve exist-ing Section 106 of Pub. L.91-273, as amended.
The Committee Report stated as follows:
By this action it is the intention of the Committee that notwithstanding the present or future structure, pace, timing and objectives of the overall LMFBR program, the CRBRP shall be pursued so as to maintain the viability of all project arrangements and objectives, and to minimize unrecoverable delays in the pre-April 1977 project schedule.
To achieve their ends, the Committee feels that the Administration and all other relevant Federal agencies should take all necessary actions with regard to the CRBRP licensing process to ensure the earliest possible decision on a Limited Work Authorization (LWA) and Construction Permit.
On May 31, 1978, the House Appropriations Committee re-ported an appropriation for the Clinch River Project as follows:
(2) Breeder Reactor Demonstration Project. --
As was the case last year, the Congress has not resolved the status of the Clinch River Breeder Reactor Project which the Administration has proposed to terminate.
The Committee continued to be a strong supporter of the project in view of the need to determine at an early date the licensing, technical and economic issues that must be resolved in order to establish a viable breeder reactor option for the Nation.
Accord-ingly, the Committee has provided $157,000,000 to carry out the breeder reactor demonstrition project approved by Congress in the authorizing legislation.
By letter of May 10, 1978, Secretary Schlesinger advised Senator Johnston as to the Administration's views on a proposal regarding the CRBRP Proj ect, which were, inter alia, that:
i e *
- the authorization for CRBRP should be repeal (d
- a conceptual design study of a larger (650-900 MWe) breeder facility would be undertaken, and a report issued on that study by March 31, 1981.
On June 7, 1978, the Senate Energy Committee convened a markup session in which separate motions, which would have the effect of authorizing:
(1) the Secretary to terminate the project and con-duct a larger plant study; (2) termination of the project and sub-stitution of a larger plant conceptual design study; and (3) full funding for the proj ect, respectively, were all tabled.
On June 8, 1978, the Committee reconvened and voted to adopt Senator Melcher's proposal which would, in effect:
(1) authorize the Secretary to terminate the proj ect upon a determination that it would not meet the Nation's requirements for a breeder demonstration program; (2) provide $172.5 million in funding for continuance of the project if the aforementioned determination were not made; and (3) authorize studies of alternative breeder reactor demonstration plant designs and submission of a report to Congress on a final conceptual design by March 31, 1981.
In July 1978, Rep. Walter Flowers offered an amendment to the Fiscal Year 1979 DOE Authorization Bill (H.R. 12163) which directed the Energy Department to complete only systems design and component testing on the CRBRP and increased operating expenses for the Proj ect.
The Flowers Amendment was defeated 187-142 during House floor action and the 1979 DOE Authorization Bill (H.R. 12163) containing $172.5 million for the CRBRP was passed by the House of Representatives on July 17, 1978 by a vote of 325-67. --25/
25/
124 Cong. Rec. H6815 (1978).
- The report of the Conference Committee on the Fiscal Year 1979 Public Works Appropriations Bill (H.R. 12928) was overwhelmingly approved by the House by a vote of_319-71 in 26/
September,.1978. --
The report contained the Senate funding level of $172.5 million and House language which did not link appropriations to enactment of the' Authorization bill.
The Senate approved the conference report for the Fiscal Year 1979 Public Works Appropriations Bill by a vote of 86-9 on September 27, 27/
1978. --
The Appropriations Bill was vetoed by President' Carter on October 5, 1978, on grounds unrelated to the CRBRP.
In regard to the LMFBR program and the CRBRP, the President's veto message stated:
I am pleased to note that the energy research and development portion of the bill are accep-table and meet ~important national needs.
In a constructive step, this bill provides that decisions on the Clinch River Breeder Reactor Project or possible alternatives -- will be determined in the Department of Energy Authori -
zation Bill, the appropriate place to resolve this issue.
In response to the President's veto of the Public Works Appropriations Bill, the Congress passed House Joint Resolution 1139 on October 14, 1978, which funded the Department of Energy and other programs, projects and activities to the extent and in the manner provided by the Public Works Appropriations Bill (H.R.
28/
12928). --
The conference report on HJR 1139 included the following Tc/
124 Cong. Rec. H9815, H9829, H9830 (1978).
27/
124 Cong. Rec. S16265 and S16273 (1978).
28/
124 Cong. Rec. H13530 (1978).
. statement:
The conferees have provided an allowance of
$172,400,000 to carry out the breeder reactor demonstration proj ect or proj ect alternative.
approved by Congress in authorizing legislation and for no other purpose.
On October 18, 1978, President Carter signed House Joint Resolution 1139 into. law as Pub. L. No.95-482.
Congress adjourned without enacting a DOE Authorization Bill for Fiscal Year'1979.
As a re-sult, the Project remained fully authorized pursuant to Section 106 of Pub. L. No.91-273, as amended.
c.
Fiscal Year 1980 -
The Department of Energy budget for Fiscal Year 1980, which was sent to Congress on January 22, 1979, did not request additional funds for the CRBRP.
The House Energy Research and Production Subcommittee by voice vote added $183.8 million for the Project in the 1980 DOE Authorization Bill in March, 1979..Also, in March of 1979, the Senate Energy Research and Development Subcommittee recommended
$173 million for CRBRP to the Senate Budget Committee.
During April 1979, the House Science and Technology Committee defeated, by a vote of 25 to 15, an amendment opposing CRBRP funding for 1980 and upheld the subcommittee's recommendation for $183.8 million to continue the Proj ect.
l f
An amendment to the Fiscal Year 1980 DOE Authorization Bill offered by Senator Dale Bumpers of Arkansas in May to deautho-rize CRBRP funding was passed by the Senate Energy and Natural Resources Committee by a vote of 10 to 8.
The Bumpers Amendment would have provided $55 million for a conceptual design study and 1
l
$52 million to terminate CRBRP starting October 1.
i 1
. The Fiscal Year 1980 DOE Authorization Bill, providing
$183.8 million for CRBRP, was debated in the House of Representa-tives on July 26, 1979.
Two amendments which would have termina-ted the Project were defeated one by voice vote, the other by a 29/
vote of 237-182. --
A Continuing Resolution, H.J. Res. 404, which included, inter alia, an appropriation of FY 1980 funds for CRBRP at exist-ing levels of expenditure ($172.4 m'I. lion) passed the House on 30/
September 25, 1979, by a vote of 208-203. --
On September 27, the Senate passed its version of the continuing resolution (H.J.
31/
Res. 404). --
The resolution included, inter alia, funding for CRBRP at the level of $172.4 million.
An amendment by Senator Bumpers to delete the CRBRP funding was tabled by a vote of 32/
64-33. --
A House / Senate conference was convened to consider dif-fe: ances between the House and Senate passed versions.
Ultimately these differences (none of which involved the CRBRP) were resolved, and on October 12, 1979, both the House and Senate passed H.J. Res.
412, which included an annual appropriation of funds for the CRBRP 33/
I
~~
at existing levels of expenditure ($172.4 million).
On October 12, 1979, the President signed the measure into law as Pub. L. No.
29/
125 Cong. Rec. H6655 (1979).
I 30/
125 Cong. Rec. H8444 (1979).
{
31/
125 Cong. Rec. S13544 (1979).
32/
125 Cong. Rec. S13564 (1979).
33/
125 Cong. Rec. H9075, S14482 (1979).
.o j
k
- 96-86.
Congress adjourned without enacting a-DOE authorization bill for Fiscal Year 1980.
As a result, the Project remained o
fully authorized. pursuant to Pub. L. No.91-273, as amended.
i d)
Fiscal Year'1981 -
l The Department of Energy budget for FY 1981 was sub-1 mitted to Congress on January 28, 1980.
The budget request in -
cluded approximately $300 million for-the total LMFBR program, but-in keeping with the Administration's stated intention to cancel the CRBRP Proj ect, the budget contained no funding _for the Clinch River Project for FY 1981.
In March of_1980, the Subcommittee on Energy Research and Production of the House Science and Technology Committee approved (by voice vote) an amendment to the Fiscal Year 1981 Authorization Bill (H.R. 6627) which would provide $155 million for the Clinch River Project.
In April of 1980, the House Science and Technology Committee approved the Subcommittee amendment to the i
Fiscal Year 1981 Authorization Bill (H.R. 6627) to provide $155
{
million in funding for the CRBRP.
On May 5, 1980, the Senate Energy l
and Natural Resources Committee reported out a Fiscal Year 1981 Authorization Bill (S. 2332) providing for a continuing authoriza-tion (with a 10 percent increase in funding levels) for all pre-viously authorized programs.
The Committee Chairman, Senator Henry Jackson of Washington, stated that although the Clinch River Pro-ject was not included in the Senate version of'last year's DOE i
I Authorization Bill, the Project was, and remains a "previously authorized" program.
i On October 1, 1980, a continuing resolution, which pro-vided funds for the CRBRP at 1980 levels was signed into law as
. Pub. L. No.96-369.
This continued funding through December 15, 1980.
On December 16, 1980, the President signed a second con-tinuing resolution into law as Pub. L. No. 965-36.that enabled the Project. to continue at its 1980 pace through 3eptember, 1981.
Congress adjourned without enacting a DOE Authorization Bill for-Fiscal Year 1981.
As a result, the Project remained fully autho-rized pursuant to Pub. L. No.91-273, as amended.
3)
Actions designed to eliminate funding for the project --
The simplest approach to an examination of this category of previous Administration actions and Congressional responses is to compare the previous Administration's budget requests, major floor actions, and the ultimate outcome of the appropriations pro-cess in each year of the previous Administration's tenure.
These comparisons are summarized in tabular form as follows:
i i
i i
4 1
. Fiscal Administration Budget Major Final PresidentLal Year Request / Action Floor Votes Action on Ibnding 1978
$234.8 M-Ford 1/17/77
$80 M House 10/19/77
$150 M-Carter 2/23/77
$80 M 3/7/78
$33 M-Carter 5/18/77
$80 M House (termination) 10/26/77
$30 M Senate 11/1/77 (Suppl.)
1979
$13.4 M - 1/78
$172.4 M Senate (termination) 8/78 Veto 10/5/78
$172.4 M House (on grounds unrelated 9/78 to CRBRP)
$172.4 M House &
$172.4 M 10/18/78 Senate 10/14/78 1980 $172.4 M House
$172.4 M 10/12/79 9/25/79 Senate 9/27/79 34/
1981 --- $172.4 M House &
$172.4 M 10/1/80 Senate 9/30/80 House & Senate
$172.4 M 12/16/80 12/15/80
$172.4 M 6/4/81
$172.4 M 6/5/81 (Suppl.)
This table clearly demonstrates that in each year of the prior Administration's tenure the Congress rejected the Administra-tion's active efforts to eliminate funding for the project and took affirmative action to continue funding for the Project at substantial levels.
Upon examination of the previous Administration's efforts to:
- 1) rescind the proj ect; 2) deauthorize the project; and 3) eliminate funding for the project, a clear and unmistakable pattern has emerged.
In each of the past four years, the Congress has ex-pressly repelled the Administration's active efforts to cancel the project.
Most significantly, in no instance was a negative vote recorded on the floor of either house of Congress.
34_/
Funding levels for Fiscal Year 1981 are expressed as annualized rates of funding.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
)
In the Matter of
)
)
UNITED STATES DEPARTMENT OF ENERGY
-)
)
PROJECT MANAGEMENT CORPORATION
)
') Docket No. 50-537 TENNESSEE VALLEY AUTHORITY
)
(Clinch River Breeder Reactor Plant)
)
CERTIFICATE OF SERVICE Service has been effected on this date by personal delivery or first-class mail to the following:
The Honorable Nunzio J. Palladino Chairman U.S. Nuclear Regulatory Commission Washington, D.C.
20555 The Honorable Peter Bradford Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
20555 The Honorable Victor Gilinsky Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
20555 The Honorable John F. Ahearne-Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
20555 The Honorable Thomas F. Roberts Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Marshall E. Miller, Esquire Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20545
-s
.... Dr. Cadet H. Hand, Jr.
Director Bodega Marine Laboratory 4
University of California P.O. Box 247 Bodega Bay, California 94923 Mr. Gustave A. Linenberger Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20545 Daniel Swanson, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20545 Stuart Trebey, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20545 Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20545 i
Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20545 Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20545 i
(3 copies) i William B. Hubbard, Esquire Assistant Attorney General State of Tennessee Office of the Attorney General 422 Supreme Court Building Nashville, Tennessee 37219 4
i Oak Ridge Public Library Civic Center Oak Ridge, Tennessee 37820 i
Lewis E. Wallace, Esquird Division of Law Tennessee Valley Authority Knoxville, Tennessee 37902 Dr. Thomas Cochran l
Natural Resources Defense Council 1725 Eye Street, N.W.,
Suite 600 i
Washington, D.C.
20006 i
..,, ~
- Mr. Joe H. Walker
'401 Roane Street Harriman,-Tennessee 37748 I
Ellyn R. Weiss Harmon & Weiss 1725-Eye Street, N.W.,
Suite 506 Washington, D.C.
20006 Lawson McGhee Public Library 500 West Church Street Knoxville, Tennessee 37902 Luther M. Reed, Esquire Attorney for the City of Oak Ridge 253 Main Street, East
-Oak Ridge, Tennessee 37830 Herbert S. Sanger, Jr., Esquire General Counsel Tennessee Valley Authority Knoxville, Tennessee 37902 Barbara A. Finamore, Esquire Natural Resources Defense Council, Inc.
1725 Eye Street, N.W.,
Suire 600 Washington, D.C.
20006
)
pas n
UEORGE Lgf4DGAR Attorney for Proj ect Management Corporation DATED:
November 30, 1981
.