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| Site: | Calvert Cliffs  |
| Issue date: | 05/01/1981 |
| From: | Trask R US ATOMIC ENERGY COMMISSION (AEC) |
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Text
,
&. j. :9 DRAFT 5-1-81 THE ATOMIC ENERGY COMMISSION AND THE ENVIRONMENT:-
NEPA AND THE CALVERT CLIFFS DECISION, 1969-1972
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by Roger R. Trask 9210120349 920520 PDR ORG NRCHIST PDR
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TABLE OF CONTETIS Preface.........................................................
11 Introduction....................................................
iv 1.
The Development of the National Environmental Policy Act....
1 II.
The AEC Response to NEPA and the Origins of Calvert Cliffs.
18 III.
The - Ca lve r t C lif f s De cis ion................................
3 9 IV.
The AEC Response to Calvert Cliffs:
I 48 V.
The AEC Response to Calvert Cliffs:
II 69 VI.
C o n c l us i o n s................................................
9 0 Notes..........................................................
98 Append 1x,......................................................
125 Bibliographical Essay...........................................
e P
I
1, i
r Introduction On July 23, it the United States Court of Appeals for the District of Columbia circuit reached a decision in two consolidated cases involving the licensing by the Atomic Energy Commission (AEC) of the Calvert Cliffs nuclear power plan t in Maryland.
In several important respects, the Calvert-Cliffs j
decision had both immediate and far-reaching significance.
- First, it turned out to be a landmark j udicial interp re tation of. the National Environmental Policy Act of 1969, applicable-no t only to the AEC but also to all federal agencies with environmental protection responsibilities.
Secondly, the Court's decision forced the AE C to give full consideration to environmental issues in its licensing process.
Notwithstanding the assumed onset of an " energy crisis" in the United States in the'early 1970s, licensing virtually halted for a year and a half while the r
agency geared up to handle its new environmental responsibili-ties.
Another result of the Calvert Cliffs decision was a substantial re o rg aniz at ion and expansitn of the AEC re gula tory s ta f f--re flect in g the rapidly increasing imp o rt an c e of the regula tory function..
Also, the Calvert Cliffs decision-further scimulated the lon g-s t anding novement to separate I
the AEC's dsvelopmental and r e gu l'a t o ry obligations, an idea I
which reached its climax in the Energy Reo r g anizat ion Act of l
1974 l
l k.
t This monograph emphasizes the period from 1969 to 1972, during which environmental considerations became central to the regulatory functions of the Atomic Energy Commission.
The text describes the legislative activity leading to the passage of the National Environmental Policy Act of 1969 and the AEC's relationship to that process.
It describes the initial AF,C response to NEPA, especially the formulation of NEP A implemen-tation regulations.
It describes the origins of the Calvert Cliffs cas4 and an aly z e s the Court's decision in detail.
It discusses the impact of the decision on the AEC regulatory staff--leading to its reorganization, expansion, and echanced importance.
Finally, there is an analysis of the his to rical significance of the Calvert Cliffs decision--its place in the development of environmental law, its importance as an inter-pretation of the National Environmental Policy Act and of federal agency responsibilities under NEPA, its effects on che AEC and especially its regulatory branch, and its impact on the nuclear power industry in the United States.
As this study seeks to demonstrate, the Calvert Cliffs decision was a very important event in environmental and legal history, in the history of the nuclear power industry in the United States, and in the history of nuclear regula tion.
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e Chapter I i
4 j
The Development of the National Environmental Policy Act t
4 The passage of the National Environmental Policy Act (NE P A) i by Congress in late December, 1969, symbolized the fact that concern for the environment had become an important national issue.
There had of course been earlier expressions of dis-quietude about environmental degradation and the need to 4
p rese rve natural resou rces ; the leadership of President Theodore J
Roosevelt in this regard early in the twentieth ce,ntury is an example.
But the modern environmental movement emerged in the 1960s.
It was related to other causes of the decade which ques tioned national leadership and the nation's future--such as the anti-war and civil rights movements.
Many of the same individuals attracted to these causes joined the environmental protest effort.
As Lynton K.
Caldwell, an Indiana University p ro f es so r o f gove rnment who played a crucial role in the develop-4 ment of the National Environmental Policy Act, has observed, (NEPA) was written because the constitutional mechanics of.the founders proved inadequate to their purpose of popular control.
As the nation.became more complex and diverse in values, goals, and economic activities, its government became more specialized, clien t -o ri en t ed, and self-directing.
Correspondingly, its agencies became less responsive to the public generally as they directed their concerns rimarily to their special' clients.or missions It was clear, as Caldwell sugges ts, that not only were there serious threats to environ =en tal quality, but.also that many
1 i
i i i
f ederal agencies were sources of the threats.
These agencias i
pursued their own special missions without concern about side-l ef' acts, especially since such oversight responsibilities were not written into their legislative charters.
Recognizing this i
problem, members of Congress began as early as 1959, and with l
j increasing frequency in the early and mid-1960s, to introduce I
bills establishing a naticeni environmental policy.
A " White 4
House Conference on Natu ral Beavty" in 1965 focused on the fact i
that many federal agencias ignored questiott of environmental 2
~
l quality as they pursued their central goals and f ea t ion s.
In 1968 the pace of Congressional activity looking t o w's r d 4
environmental legislation picked up significantly.
The House i
of Rep res entat ives Subcommittee on Science, Research, and Development, headed by Rep. Emilio Q. Daddario, issued a report I
entitled Managing the Environment.
_Concent rating on _ tho s e l
federal agencies whose activities had a maj or impact on the j
environment, the report concluded that they could reconcile their functions with the maintenance of_ environmental _ quality if they would operate under-the guidance of a national environ-mental policy and if they had a proper understanding of ecological 3
matters.
The Senate Interior and Insular Affairs Committee, l
headed by Sena tor Hen ry M. - Ja ckson of Washington, had been l
responsible for some of the environment bills introduced bef ore i
1968.
In July, 1968, the Committee published a long repo rt, 3 National Policy for the Environment, prepared by Lynton Caldwell w it h the assistance of the Library of Congress and some Interior i
I i
i, Committee staff members.
This important document summarized well the national envircamental problems Although historically the Nation has had no considered policy for its environment, the unprece-i dented pressures of population and the impact of science and technology make a policy necessary today.
The expression " environment al quality" symbolizes the complex and interrelating aspects of man's dependence upon his envi ro nmen t.
Through science, va now understand, f ar better than our forbears could, the nature of man-environment relationships.
The evidence requiring timely public action is clear..
The Nation has overdrawn its bank account in life-sustaining natural elements.
For those elemen t s --air, wa t e r, soil, and living space--technology at present provides no substitutes.
Past neglect and carelessness are now; costing us i
dearly, not merely in opportunities foregone, in l
impairment of health, and in discomfort and incon-venience, but in a demand upon tax dollars, upon personal incomes, and upon corporate earnings.
The longer we delay meeting our environmental responsi-bilities, the longer the growing list of "interast a
cha rges" in environmen tal de terio ration will run.
The cost of remedial action and of getting onto a sound basis for the future vill never be less than it is today.4 l
Immediately following publication of these two reports.
4 Jackson's Interior and Insular Af f airs Conmittee and the House i
Committee.on Science and Astronautics sponsored the "Jo in t Senate-House Colloquium to Discuss a National Policy on the Environment," held on July 17, 1968.
The main purpose of this unique session was to bring-members of the various' interested Con g res s ional c o mmi t te es together to discuas broad obj actives and to avoid the possibility of committ e e jurisdiction al disputes.
The major result of the colloquium was a "Cong res sional Whit e Paper on a National Policy for the Environmen issued in l
5 October, 1968.
This paper drew attention to maj o r environmental i
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4-issu.aa had discussed possible principles o f national environmental policy.
Thus the Congressional stage was set in 1968 for the introduction of environmental legislation.
Further pressure' l
built up in the same period because of several environmental l
disasters--such as the Santa Barbara oil spill off the California i
i coast, the fire on the Cuyahoga River in Cleveland--and heavy i
publicity on other environmental problems.
An environmental law movement began to develop at the same time.
Illustrative is
(
the founding in 1967 of the Envi ronmental Def ense Fund, the first i
legal group organized specifically to litigate environmental 6
issues in the courts.
While some Congressional leaders, like Senator Jackson, recognized the critical need for environmental legislation, the public outcry about environmental issues made l
it politically profitable to pass such lagislation at the cima.
j-NEP A negotiated the Congressional gauntlet rather easily in 1969, vish little public notice o r cont roversy.
"To many legisla to r s,"
according to one observer, a vote for NEPA vas symbolic--akin i
to a vote fcr motherhood and apple pia."
Another. scholar has Written that NEPA "must have looked-to most observers and legislato rs jus t like one more rhetorical bandaid to mo llif y a concerned public--long on symbolism but short and cheap on-l 7
substance."
As it curaed out NEPA had much more substance than these statements about the circumstances of its passage 1
suggest.
Senator Jackson introduced in the Senate the bill (S.1075) that eventually became the National Envirenmental ?clicy Act - on 4
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A short and simp le bill, its major features included establishment of a Council on Environmental. Quality and authorization for.the Secretar'y of the Interior to conduct environmental research.
Neither this proposel nor a similar one introduced in the House of Representatives about the same t ime by Rep resent ative John N. Dingell of Michigan contained 5
j provisions which would force federal agencies to take action l
in protecting the environment.
Dinge11's bill included a
~
ahort statement on national environmental policy, but Jackson's i
S lacked even that feature.
Jickson held a hearing on his bill on April 16, 1969.
One 1
of the questions discussed at this session was President Richard M.
Nixon's proposal to establish an Environmental Quality Council in the Executive Office o f the President.
Although exp res sing i
support for the concept o f environmental p ro tect ion, representa-4 tives of the President, including Sacretary of the Interior Walter J. Rickel, declined to support Jcckson's proposal to establish such a council through legislation.
They felt this sh=.uld be done by executive action, and argued that the proposed presidentially-created council would be the best way to deal 9
with environmental questions.
Jackson dis agreed, questioning the e f f e c t iv en e s s of interagency councils and arguing that if i
this route was followed, all fedsral agencies should be involved.
i Jackson noted, f o r examp le, that the Atomic 2nergy Commission would not be part of the council proposed by the White House.
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"I would point out," Jackson said, "that at the rate at which we are going to need nuclear powered plants, we are going to run icto tremendous environmental problems.
The Atomic Foergy Commission has one of the most immediate problems in the etv1.)nmental field facing any agency.
But they have no statuttvy authority, as I understand it..to even deny a permit 10 l
or a licence beceupe of environmental considerations."
Notwithstanding Senator Jackson's opposition, President i
t Nixon created an Environmental-Quality Council and a Citizen's Advisory Committee on Environmen el Quelity thro.gh Executive Order 11472 on May 29, 1969.
The tambers of rne Environmental Quality Council were to be the President; the Vice President; the Secretaries of Agriculture; Commerce; Health, Education, l
and Welfare; Housing and Urban Development; Interior; and Trans-portation.
Ac co rding to the ex ecutive o rder, "The Council shall advice and assist the President with respect to environmental quality matters an d s ha ll p e r f o rm such other related duties as the President may from time to time prescribe."
The Citizen's Advisory Committee, with fifteen'mtsbers, was to advise the President and the Environmental Quality Council on environmental.
i 11 matters.
7.n creating these councils, Nixon attempted to main-tain White House control of environmental policies, a politically-seneitive issue at the time.
His act ion did no t deter the Congress, however, f rom moving ahead with envf,ronmental legislat ion.
Perhaps the most important result of the April 16 hearing was the movement toward developing what one author has called i
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t an " environmental imperative" for agencies, such as the AEC, which denied they had broad environmental authority.
As Lynton Caldwell put it is his testimony at the hearing, "In the licensing pro:odures of the various agencies such as the Atomic Energy Commission or the Fedaral Power Commission or the ' Federal Aviation Agency 'there should also be, to the ex t e n t that there may not now exist fully or adequately, certain requirements with 12 respect to environnental protection."
When Senato r Jackson prepared an amended version of his bill after this hearing, he reflected Caldwell's viewpoint by including in Section 102(C) a requirement, later-in altered form the heart of NEPA, that a responsible of ficial of an agency had to make a " finding" on the probable enviroamental impact of any major agency action.
The new version of S.1075, reported to the Senate in mid-June, 1969, also included a declaration of national environ-13 mental policy.
The Senate debated and passed Jackson's amended bill on July 10, 19f9.
In his statement opening this debate, Jackson noted that ".
S.1075 is in my judgment the most significant.end important measure in the area of long-range domestic policy-making that w ill c ome -bef o r e the 91st Congress.
Without. question, it is the most significant measure in the area 14 of natural resource policy ever considered by the Co n g r e s s."
Although the AEC was not involved ex t e n s iv ely in the Cong ressional debate on NEPA, its lack of enthusiasm for the I
3 i
l proposed legislation was tiear.
The AEC vorried especially about the prospect that ts regulatory responsibility would be enlarged.
After all. a sase that went all-the way to the 1
Suprene Court for review in 1969 affirmed the AEC's contention i
that its responsibility was limited to radiological issues.
The case involved the 1966 application of the Vermont Yankee Nuclear Power Co rporation f o r a construction permit for a j
plant designed to use a once-through cooling system on the i
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The states of Vermont, New Hampshire, and Massachusetts opposed the application becaus e the system's i
discharge would increase the river temperature several degrees i
i and affect the area's ecology.
The AEC argued that it had no j
authority, on the basis of the Atomic Energy _ Acts of 1946 and 1954, in the area of possible thermal pollution. 'The United States Cou r t of Appeals for the First Circuit ruled, when New Hampshire appealed the AE" decision on Vermont Yankee, that AEC indeed had no j urisciction in non-radiolo gical fields.
As the Court put it, "We conclude that the-licensing board and
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the Commission p rop erly refused to consider the proffered evidence o f thermal ef f ec ts.
We do so with regret that the
-Congress has not yet established ~ procedures requiring timely and ecmprehensive consideration of non-radiological pollution effects An the planning of installations to be privately owned 15 and operated."
At a July, 1969, hearing on the proposed environmental' legislation, Representative Paul N.
McCloskey of California
i 9-1 referred to the 1C as one o f the federal agencies which were 16 l
" major contributors to environmental degradation."
Commen-1 ting in writing on the draft legislation, AEC Cha irman Glenn T.
Seaborg referred to Section 2(C), which authorized and directed federal agencies to do certain things, including idec:1?ying and developing methods and procedures to consider env1ronmental amenities and values in decision making.
Seaborg wrote:
We are concerned about the-tmpact of subsection 2(C) on the regulatory responsibilities of this Commis sion under p resent - law.
These responsibili-ties are to license and regulates (1) the possession and use of cartain nuclear materials, such as uranium, and (ii) the construction and op e r at ion of certain nuclear facilities, such as i
nuclear power plants.
However, the regulatory mandate given the Commission is not unquali-fied.
Rather, it is limited essentially to regulation 4
from the standpoints of radiological health and safety and the common defense and security.
It is against this existing fundamental framework that the impact of subsection 2(C) on this Commission F
is of some concern.
The requirement "that the policies, regulations, and public laws of the United States be interpreted and administered in i
accordance with the policies set forth in this Act" can be construed as vastly enlarging the existing regulatory authority of the Atomic Energy Commission In our view, a wholesale expansion of the AEC's regulatory authority presents many difficulties which need to be conridered.
We believe t h a ~t the bill should be amended to make clear that it would not enlarge the substantive matters that may be considered by this Co mmis s io n in its licensing and regulatory process.
Seabo rg went on to say that the Commission believed that the 11 proposed environmental legislation was in fact unnecessary.
i In the meantime,. Representative Dingell's bill (H. R. 67 5 0) had been moving through the legislative process in the House of Re p r e s en t a t iv e s.
Hearings took place in May and June, 1969,
1 followed by Dinge11's introduction of a revised bill, H. R.12 5 4 9, 18 on July 1, 1969.
The main feature of Dingell's proposal vas
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the creation of a Council on Environmental Quality, but it also contained a brief formulation o f na t ional enviro, aan tal :. licy.
When he initiated debate on H.R.12'549 on September 23, 1969, Dingell described man's historical exploitation of natural resources, " headless of any consequences in his headlong rush i
toward greater power and prosperity."
But he warned that " man-J l
kind is playing an extremely dangerous game with-his environ-ment" and faced "the very real possibility of extinction from j
19
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misuse of envi ro nmen t. "
After adding a potentially significant amendment, the House passed Dinge11's bill on September 23, 1969.
The amendment, proposed by Representative Wayne Aspinwall of Colorado, read:
"Nothing in th1s Act shall increase, decrease, or change any responsibility o r authority of any Federal official or u
l agency created by other provision of law."
The intended effect o f Aspinwall's amendment was to deflate the provision in Jackson's
_ Senate-passed bill requiring officials to make a " finding" on the probable environmental impact of their agancy's actions.
.What Aspinwall's amendment meant was that in spite of this general requirement in Jackson's. bill, it would have no impact 20 a
on agencies which bas ed their ac t ions on other legislation.
T The bases for the work of the Atomic Energy Commission, for example, were the Atomic Energy Acts of 1946 and 1954, which limited the Agency's environmental responsibilities to
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l rad ic lo g ic al effects.
Aspinvall's amendm en t would have insured that the new national environmental policy act would not expand this responsibility.
After passing H.R.12549, the House substituted its text for the text of S.1075 and sent the bill back to the Senate with a request for a conference.
Thus the whole Senate version, with its requirement for agency " findings" on environmental s
21 impact, had been discarded by the House.
When the Senate considered H.R.12549 on October 8,
- 1959, rather than accepting or amending the House text, it debated I
and amended its own version, S.1075, and sent this revised l
text to the conference committee.
During the October 8 debate there was a complicated exchange between S enator Jacks on and l
Senator Edmund S.
Muskie, Chairman of the Air and Vater Pollution Subcommittee of the S enat e Public Works Committee, which had
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been holding hearings on S.7, a bill to amend the Federal Water Pollution Control Act.
Muskie was concerned about the possi-bility that the proposed environmental legislation would imp in g e on or supercede the jurisdiction of his subcommittee and already 22.
exieting water and air quality le g is la t ion.
Muskie ex p l ain e d his point in a speech on the Senate floor:
The concept of self-policing by Federal agencies which-pollute or license pollution is contrary to the philosophy of exi s tin g environmental quality legislation.
In. hearing after hearing agencies of the Federal Government have argued that their primary authorization, whether it be maintenance o f the navigable waters by the Co rp s of Engineers or 4
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. l licensing of nuclear power plants by the Atomic Energy Co= mission, takes pre.edence over water quality requirements.
I repeat, these ag encies :. ave always emphasized their primary responsibility making environmental c o ns id e r at io ns secondary in t heir viev.2a i
Muskie felt that mission-oriented federal agencies would not police themselves in areas other than tho se specifically written into their legislative mandates, and that external j
policing by federal water and air pollution control agencies 24 (under his subcommit tee's j urisdict ion) was necessary.
To satisfy Muskie's concerns, he and Jackson developed some amendments to S.1075 which the Senate approved and incorporated into the t ex t sent to the conference committee on October S.
In the bill (S.1075) the Senate passed on July lo, Section 102 (c) l required federal agencies to make a " finding" on the probable f
environmental impact of maj o r agency actions.
The_ Jackson-Muskie amendment substituted the words " detailed statement" for " finding" and also required agencies to consider "alterna-tives to the proposed action" in this s t a t em e n t.
The bill included additional language to assure Muskie that.the p ro po s ed new law would not allow federal agencies to supercede _the 25 1
jurisdiction of federal water and air pollution contro). agencies.
Although Jackson and Muskie probably did not realiz e the
- potential significance of this change at the time,-it proved to be_ extremely important.
As Richard Andrews, t he au tho r oo f a f
leading study of NE?A, has written:
i i
Their stated intent was to weaken the legal force of the required document, by requiring only a
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I l i "datailed statement" subject to interagency review rather than a formal " finding"--thus forcing the development a g en e,i a s to consult with those respon-sible for environmental protection rather than i
merely issuing their o wn det e rmina tions.
A conse-quence of the change, however, was to strengthen i
the " action-foccing provisions" as a whole, by substituting mechanisms for external review and challenge in place of administrative requiremants that had been crippled by the Aspinwall amendnent.
II]t was the public availability of the
" data 11ed statements" and of the other agencies' comments on them that shaped the pattern of this i
law's implementation more than any other during its first several years.26 The conf erenc e Commit tee on S.107 5 completed its work and reported to the two houses in mid-December, 1969.
The Committee's j
final bill, representiag an amalgamation of the differing House and Senate versions, made several imp o r t an t changes.
- First, a fundamental and une clause which stated that "each person has i
inalienable right to a healthful environment" was weakened to say that "each person should enjoy" such an environment.
- Secondly, 4
earlier language requiring the new Council on Env iro nm en t al Quality's " review and approval" of agency methods for considering 4
unquantified environmental factors was changed to require only i
"c o ns ult a t ion. "
Finally, all action-forcing provisions in S ec tion 102 of the bill were modified by the phtase "to the fullest extent possible."
The Conference-Committee had ex -
introduced..in the House; cised the earlier Aspinwall amendment 1
the " fullest axtent possible" language represented a comp romise between Senator Jackson's interest in fo rcing a gency action and Aspinvall's insistence that changes in agency missions should be made only in each agency's organic legislation.
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No twithstanding this new language, all members of the Conference Committee except Aspinwall signed a clarifying statenent saying that Section 102 applied to all agencies unless their organic 27 laws expressly prohibited full compliance or made it impossible, The Senate debated and passed the Conference Committee j
I report on S.1075 on December 20, 1969.
Senator Muskie made clear the j urisdic tional extent of the bill in response to a colleague who asked whether it applied to environmental impact i
agencies rather than environmental enhancement agencias such as the Federal Water Pollution Control Administ ra tion and the National Air Pollution Con trol Adminis t rat ion.
As Muskie put it.
4 Sect. ion 102 and 103, and I think Section 105, co.tain language designed by the Senate Committee on Interior and Insular Affairs to apply strong pressures on those agencias that have an imp a c t on the environment--the Bureau o f Public Roads,
for ex amp l e, the Atomic Energy Commission, and o t h-a r s.
This strong language in that s e c t io n is intended to bring pressure on those agencies to become environment conscious, to bring pressures upon them to respond to the needs of environmental quality, to bring pressure on them to develop legis-lation to deal with those questions where their legislative autho rity does not enable them to respond to these values effectively, and to reorient them toward a consciousness of and sensitivity to the environment.28 On December 26, 1969, the House of Representatives debated and approved the S.1075 Conference Commi tee report as presented 29 by Representative Dingell.
P res t 'ent Nixon signed the bill on January 1, 1970.
As some cbservers, especially opponents of NEPA, have pointed out, the House and Senate deba:es on.the legislation-before final passage in. December, 1969, were short,
1,
and the bill passed just before Christmas.
Indeed, the law, especially because of its a c t io n-f o rcin g provisions, had a much greater impact than anticipated.
As one student o f _ NEP A has pointed out, however, it is debatable "whether fuller considera-tion would have resulted in any better understanding of the potential effectiveness of the innovative action-forcing de-30 vices."
James T.,Ramey, a member of the Atomic Energy Commission at the time NEP A became law, has described it as too broad, a law "which one could drive a t ruck thro ugh, and which was enacted in the dead of the night,.without rdequate hearings, without the agenc1>2s, without the affectec interests and the public having an opportunity to participate in the Congressional p r o c a. s s. "
Ramey has also argued that NEPA was meant to apply originally to Government-cons t ruc ted public wo rks, not to activities like AE C lic en s in g of nuclear power plants; but that at the last moment, in December, 1969, a l e gisla t iv e history was I
built that NEP A did apply to licensing.
Ram ey argues that this was contrary-to iaf o rmal assu ranc es he had received earlier from 31 Senator Jackson's staff.
Section 102, t he mo s t. imp o r t an t part of the_ law President Nixon signed on New Year's Day, 1970, stated:
The Congress au tho ri:e s and directs that, to_the-fullest entent possible:
(1) the policies, regula-tions, and public laws of the United States shall
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be interpreted and administered in accordance with j
the policies set forth in this Act, and (2) all agencies of the Federal Government shall -
(A) utilize a systematic, interdisciplinary
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l app roach which will insure the ~inte gra t ed -u s e Lo f --
the natural and ~ social sciences and the environ-l mental' design _ arts in planning and_in decision-I making which may have angimpact'on' man's-environment;
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-(3)_
identify and develop methods and procedures, in consultation with the Council on Envirot. mental.
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Quality established.byLtitle II of this Act, which will insure that' presently unquantified environmental-amenities and values may-be given appropriate: con-sideration-in decision-making along with economic
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and technical considerations; i-(C)-
include in:every recommendation-or report-t on proposals for legislation and other major Federal i
actions significantly affecting;the quality of the human environmen t,1 a detailed statement by the.re-j sponsible' official on i
(1) the environment al impa ct of the
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proposed action, i'
i (11) any ' advers e en vironmental: ef f ect s l
which cannot be avo id ed ' s hoult, the. proposal be-l imp lem en t ed,
1 i-the troposed (iii) alternatives.co l_
- action, (iv) the relations hip _._be twe en _ lo cal I
short-ter= uses of man's environment 1 and t he. main-I tenance and enhancement of long-term pro'ductivity,
- and, i-f=
-(v) -
any irreversible and irretrievable commitments-of resources ?which would be 1nvolved in l
the propos ed action shouldLit be implemented.
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(D)-
study, develop, and describe app ro p riat e -
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alternatives to reco= mended -co urs es 'o f action - in any proposal whichLinvolves. unresolved-conflicts-concerning alternative-uses of available resources.
Section-103 directed all federal agenciesEto determine authority, regulations, and policies whether their statutory l_
and! procedures p ro hibit ed f ull compliance. with the Ac t, and to L.-
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~ propose to the President any changes that were necessary to e
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i insure conformance with it.
S ec t ion 104 stated:
Nothing in Section 102 o r 103 shall in any way affect the specific s ta tutory obliga t ions of any Federal agency (1) to comply with criteria or standards of environmental quality, (2) to.coordinats or consult with any other Federal or State agency, or (3) to act, or refrain from acting contingent upon the recommenda tions o r certification of any other Federal or State agency.32 4
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1
Chapter II The AEC Resoonse to NEPA and the Origins of the Calvert Cliffs Case Once the National Environmental Policy Act became law, the Atomic Energy Commission and other affected agencies began to analyze its potential effects on their operations and revise their rules and regulations accordingly.
The AEC, still basically I
unsympathetic with NEPA and unsure, b ec au s e o'f the law's'very general language, of its implications, moved very slowly during 1970 to incorporate NEP A procedures into its r e g ula t io n s.
The AEC's c o n s e rva t iv e approach was evident in the first NEPA dis-cussion paper the Commissioners received f rom the General Counsel's office on February 18, 1970.-
Howard K.
Shapar, Assistant General Counsel for Licensing and Regulation, was the major author of 1
this document.
NEPA, the paper stated, would require the AEC to do at least two things:
(1) to review the a g en cy 's statutory i
authority, administrative regulations, and policies and pro-cedures to discover deficiencies or inconsistencies making full compliance with NEPA impossible _and to propose, by July 1,
- 1971, legislative changes to bring the agency into conformity with NEPA; and (2) to include a " detailed statement" on "=aj o r Federal actions s ignif ' c ant ly affecting the quality of the human environ-ment."
It was.. umed that the issuing of construction permits and o p e r a t in g licenses for nuclear power plants constituted "maj or Federal act ions" requiring a detailed statement.
But
" compliance with the requirements for a ' detailed statement' does
' not have the effect of expanding AEC's regulatory authority."
Whether NEPA as a whole expanded AEC's regulatory authority was not clear, but the discussion paper concluded that a reviewing court would probably resolve the qu e s t ion in the a f f irmat ive.
Even if it was assumed that NEP A did expand the AEC's r e gu la t o ry authority, it was debatable how such authority would be imp l e -
men ted.
"The striking feature of
[NEPA's] language is the broad discretion which it vests in Federal agencies as to the manner in which they carry out the policies set f o r t h in NEPA."
The Commission was told that NEPA's legislative history 1
supported the argument that unreasonable delaya An federal activities were not-intended by the law.
But if it was assumed that NEPA did enlarge the AEC's regulatory authority, the filing of the detailed statements would not be enough.
"In the last analysis, the test of reasonableness is the one that will be applied by a reviewing court."
One possible approach, the paper suggested, was "to require licensees to agree to observe appli-i cable Federal and State (non-radiation) standards and require-ments for the protection of the environment validly imposed pursuant to authority established under Federal and State law."
The danger in this approach, the paper noted, was that the AEC might be pressured to take enforcement action if the licensees did not observe their agreements, m a kin g the AEC the principal enforcer of Federal and State environmen tal regulat ions.
But the paper concluded:
l
-2 0-For the immediate future, in view of the lack of opportunity for the promulgation of rules and the 4As-ence of any. guidance from the Council on Environ-mental Quality, or the Ex e cu t iv e Branch, as well as, perhaps, considerations of basic fairness, a decision not to deny or condition permits or licenses on the basis of environmental considerations other r.han radiation effects is reasonable and defensible.
The discussion paper-also outlined a possible legislative approach consistent with section 103 of NEPA.
This would involve adding a section to the Atomic Energy Act.of 1954 preventing the Commission from granting a license for any activity having a significant adverse impact on the environment except to persons
" equipped to observe and who agree to observe" relevant Federal and State environmental laws.
In this regard, "The Commission would be given discretion to reply, in whole or in part, upon the c e r t if ic a t ion, recommendations or comments which it receives from the appropriate Federal and State agencies authorized to develop and enforce environmental standards."
The paper argued i
that submission of this legislative proposal would constitute
" partial compliance with NEP A and of f ers obvious advantages both from the standpoint of our public posture and the defensi-
~
2 bility of our legal position."
A subsequent AEC legal analysis, f ol lo win g the same reasoning, argued that NEPA raised two maj o r questions:
"(1) whether the Act enlarsed the substantive regulatory authority of the AEC beyond matters of radiological health and safety and the coamon defense and security, and (2) whecher any of the AEC's regulatory l
activities would constitute a 'maj or Federal act ion significantly i
f affecting the quality of the human enviro nmen t ' within the-3 neaning of Section 102 of the Act."
The author of this paper concluded, af ter discussing NEPA's le gis la tiv e history, that a reviewing court would probably " conclude-that the Act enlarged the AEC 's substantive regulatory au t ho r it y " and that the term " major Federal action" "seems broad enough to cover a number of the AEC's programmatic and operational activities. "
But, the report ar gu ed, "the Act is silent as to how this additional regulatory authority is to be ex e r cis ed. "
4 Thus the Act in effect gives Federal agencies such as the AEC a great deal of discretion as to the methods and procedures fo r exercising this new authority, although, of course, this discretion could not be exercised in such a fashion as to i
ignore environmental considerations in regulatory decisionmaking.
However, the le g is la t iv e history does offer some guidance in this matter by in d i-cating that the legislative mandates of the so-called "environmen tal imp rovement agencies," such as the FWP CA and the Air Pollution Control Admini-stration, are not intended to.be affected by the Act.
This would appear to indicate clearly that Federal Agencies such as.the AEC should not exercise their new authority in such a way as to disturb existing statutory schemes for the control of adverse environmental-effects, such as schemes for the control of water pollution.under the Federal Water Pollution Control Ac t and the control of air pollution under the Clean Air Act.14 According to Martin Malsch, the au tho r o f the analysis, he used this cautious language to preserve the Conmission's f l ex i b ili t y.
The AEC legal staff, Malsch argues, did not want to establish a firm position.
To do so would have made impossible later AEC arguments that NEPA was vague and allowed agencies S
wide latitude in implementation.
f a
. Commissioner James T.
Ramey further axhibit ed the AEC's willingness to accept a conservative interpretation of NEPA more than a year later in testimony before the Joint Committee on Atomic Energy:
"As a policy matter, we believe the National Environmental Policy Act does giv6 a fair amount of dis-cretion to the agency applying it to make common sense deter-minacions under it.
And with respect to these nonradiological matters we believe it makes sense for the Commission to accept the determination of the expert agency in the State or Federal Government that regulates these particular nonradiological 6
matters."
The AEC began the NEPA-induced process of developing new Y
environmental regulations on April 2, 1970, when it published i
an initial policy statement incorporating-the environmental I
impact analysis requirements'into its licensing procedures in i
i the form of Appendix D to Title 10, Code of Federal Regulations, i
7 Part 50, "l ic e n s in g of Production and_ Utilization Facilities."
This interim statement, issued pending development of more detailed procedures in consultation with the Council on Environ-mental Quality, coordination with other federal agencies, and.
passage of any legislation the AEC might propose, reflected the agency's hesitant approach to NEPA.
According to this version of Appendix D, the AEC would submit co ns t ru c t ion permit and operating license applications to federal agencies "which have 4
j u ris d ic t io n by law or special expertise with respect to the environmental impact involved
." with a request fo r comments.
l
-. _ - ~
. ~..
d' o q Af ter receiving these comments, the Director 1 of Regulation.
l
= would prepare'a_ detailed environcental statement,' relying-on-s
- and incorporating, at his discretion, the comments and L views i'
of Federal, State, and. local agencies, and the' regulatory _
i 8
l staff's radiological safety evaluation.
Paragraph 4 4f E Appendix D stated:
"The filing of the detailed statement ~. -.
shall-in no way be-construed as.axtending the licensing or regulatory
?'
j urisdiction of _the Commission to making independent determina-
~
l tions on matters other than those specified in: Part 50 of its regulations f o r cons truction p ermit or operating license 'appli-i 9
j cations."
This meant that while li'censees would be exp e c t ed i
j to observe Federal and State standards for'-the environment,_the l
AEC would re s tric t its enforcement action to radiological matters.-
l The AEC published f or p_ublic conment ' a new version of f.
App en dix D, - reflecting the Council on Environmental. Quality's t
{
recently published " Int erim Guidelines" fo r NEP A and - the - p ro-visions of the Water Quality Improvecent Act of[1970,-onLJune 3, 10 1970.
The new Appendix D did not dif f er substantially f rom 5
i the original version an'd' continued the: Commission's reserved-Y
).
- app _ roach to1NEPA.
The main change involved the Water-Quality i
Improvement Act of 1970, which became effective on April 3, 1970.
This law, an amendment in the f o rm of - S ect ion 21(b). _to the 4
L Federal Water Pollution Control Act, required applicants for b
l-a Federal license or permit to conduct an activity which would i-j-
result'in-a discharge into navigable waters, to provide the Federal licensing agency with a certificate from the State where 9
k m
s
-2 4 -
the discharge o riginated, or from an interstate water pollution 4
control agency, or the Secretary of the Interior.
The certificate was to state that there was reasonable assurance that the activity 11 would not violate pertinent water quality standards.
Ap p end ix D held that "the requirements-of Section 21(b) supersede pro tanto the more general enviroamental requirements of Sections 102 and-103 of the National Environmental Policy Act of 1969.
the Environmental Reports-With respect to such aspects submitted by applicants and the Detailed S tatements need include only a reference to the certification issued pursuant to S ec tion 21(b) _ o r to the bas is on which such certi-12 fication is no t required."
Thus, the June, 1970, version of i
Appendix D assigned responsibility for thermal questions to the agencies responsible fo r certification under the Federal Water Pollution Control Act rather than accepting them as a matter-for AEC concern.
In these first two versions of their environmental regulations, the AEC clearly tried to restrict severely the impact of NEP A on its operations in the field of nuclear power regulation.
Clifford K.
Beck, Deputy Director of Regulation, expres s ed wha t was probably the dominant feeling in the AEC in a Congressional briefing shortly after publication of the s econd version of Appendix D:
In recent t L= e s,. s o much emphasis hac shifted to public and official concern about pollu tion and the environment, that the proportion of attention in public discussions to safety matters has greatly
decreased.
The AEC shares the concern about environmental matters.
However, I want to r e -omp ha s iz e, one maj or, if not the primary reason the AEC was set up in the first place was to assure 4
the safety of the public from the real hazard of maj o r dimensions that could arise from accidents in nuclear reactors.
This was--before pollution, is now, and will continue to be--the o bj ect ive on which a maj or portion of our regulatory effort is expended.13 The passage of NEP A and publication of-the Appendix D regulations elicited responses from various persons and groups concerned with nuclear power development.
In August, 1970, 1
the Energy Policy Staff of the Office of Science and Technology in the White House issued a report entitled Elec.tric Power and the Environment.
S.
David Freeman, Director of the Energy 1
Policy Staff, stated in hio letter of transmittal that the report's purpose was to put forward a " program for resolving the apparent conflict between power needs and environmental protection."
The report proposed, among other things, "long-range planning of u tility expansion on a regional basis at least 10 years ahead of construction" and "an expanded p ro g r am of research and development aimed at bet te r-p ollution cont rols,
underground high voltage power -lines, improved generation techniques, and advanced siting approaches _so as to minimize the environmental problems inherent in axis tin g t e c hno lo g y. "
This report, to which AEC Commis sione r Ramey contributed, reflected a wis h to get on with the expansion of electric power p r odu ct ion facilities in the United States while responding to 14 the degree necessary to the new enviroament al conc e rn s.
. Two influential members of the Joint Committee on Atomic Energy, Representatives Chet H~o'11f ie ld and Craig Hosmer, raised some critical questions about the new AEC environmental regu-lations in a letter to Chairman _Seaborg in September, 1970.
Referring to what they called " indications of serious deficien-4 cies in AEC's procedural and administrative mechanism for the licensing of nuclear power plants," they questioned the use-f fulness of commenta the AEC would receive, according to the Appendix D regulations, from various agencies concerned with the environmental impact of power plant licensing.
As Holifield and Hosmer put it, "If comments from agency
'S' affect the sub-s tance of the comments from agency
'A',
does agency
'A' respond anew?
Does anyone coordinate and capitalize on all the comments?"
They also asked what the AEC planned to do about reconmendations to amend the Atomic Energy Act to make it consistent with NEPA, 15 as p rovided in S ection 103 of the la w.
Responding co-this p ro b in g letter, Seaborg insisted that.the AE C wa s serious about its environmental protection obligations.
He pointed out that the implementation of NEPA and the Water Quality Improvement Act of 1970 was consuming considerable staff time, but "we do not d
anticipate that regulatory staff review of envir.onmental matters will be controlling in the length of licensing review."
As for I
procedures for handling the environmental review process, Seaborg pointed out that the regulatory staff was " working clo sely" with the Council on Environmental Quality and other federal agencies who receive AEC environmental reperts for comment.
"In all l
. 2 e
e casos, we take into account the comments by other agencies in our final detailed environmental statement;.however, we have not, as a matter of practice, resubmitted our final statement for agency comment."
Seaborg also reported that the AEC did not plan at the t ime to ask for any legislative changes in the Atomic Energy Act in reference to its environmental 16 responsibilities.
Further public criticism of the AEC for not taking seriously its NEPA responsibilities appeared in an editorial in The New York Times on S ep t ember 3 0, 1970.
The Times wrote:
The National Environmental Policy Act, signed last year with great fanfare, will be of very little use unless President N ix on tells his 4
subordinates that it means exaetly what it says.
The Atomic Energy Commission, for one. has-the notion that in licensing nuclear plants it has no authority even to consider a threat of t he rm al pollution, though the Act clearly enjoins all government agencies to - weigh environment al f ac to rs in their. decisions.
The Co mmis s ion 's insistence that ra dio ac tiv i ty is the only threat-it can take into account will be appealed to the courtsEby a-group of conservationists.
The AEC s ho uld be made accountable for its decisions af f ect ing the environment before scores of nuclear plants further endanger the life offthe nation's waters.17 Commissioner Ramey, after discussion by the full Commission, answered these charges in a letter to the editer published in the Times on October 10, 1970.
He objected-to the contention I
that the AEC was not concerned about thermal pollution.
He argued that the AEC for years "has requested comments from 2
Federal agencies on environmental and safety aspects of proposed nuclear plants
." and that it had expanded its ef fo rts in
. the thermal as well as other environmental areas in comp lianc e with NEPA.
He also cited AEC's authority under the Federal i
Water Quality Improvement Act to require certification on nonradiological matters affecting vater quality and pointed to the fact that the AEC would spend $3.2 million for research on thermal effects during the 1971 fiscal year.
"I want to assure you," Ramey wrote, "that the Commission is deeply con-carned and vitally interested in pro tec tion of our environment.
It is ironic that an agency which has gone-to great lengths for many years to protect our environment should be told by the Times to 'be made accountable for its decisions affecting the 18 e nvir onmen t '.
Another, and ultimately most significant, response to the AEC's June, 197 0, NEP A regulations came f: rom Anthony 2.
Ro is man, a Washington public interest attorney, on June 29, 1970.
Roisman represented three clients--the Calvert Cliffs Co o r din a tin g Committee, Inc., the National Wildlif e Federation, and the Sierra Club--who opposed on environmental grounds the Calvert Cliffs nuclear power plant being buil.: by the Baltimore Gas and Electric Company (BG&E).
BG&E applied f or cons t ruc tio n permits for the two nuclear units ac Calvert Cliffs, near Lusby, Maryland, early in 1968, and the AEC 1ssued the permits in July, 1969.
3G&E estimated the completion date for Unit #1 as April 1, 19 1973, and for Un i t #2, Ap r il 1, 1974 Roisman's r e c en t ly -
established firm had taken the Calverc Cliffs case in the spring 4
of 1970 after being recommended to the three clients by the
. Center for Law and Social Policy, one of the original public 20 interest law groups in Washington.
Roisman charged that the AEC's draft environmental regulations, which did not appear to apply to plants like Calvert Cliffs which were already.under construction, were contrary to NEPA and its lagislative history l
and to the CEq's Interim Guidelines issued on May 12, 1970.
In f
a petition which he exp ec t ed the AEC to treat as a request for rule-making, Roissan asked the Commission to (1) inmediately order'3G&E to prepare and submit an environmental statament for i
the Calvert Cliffs plant, (2) inmediately begin the NEPA-mandated environmental studies to determine if plan t mcdifications were required, (3) order 3G&E to show cause why the Calvert Cliffs construction permits should not be suspended pending the environ-mental study, and (4) issue rules and regulations fo r applying NEPA to all plants with construction permits but not opert. ing 21 licenses.
In a supporting me=orandum Roisman discussed NEPA's legislative history, with emphasis on Senator Henry Jackson's intentions about environmen tal imp ac t statements, and the CEQ's j
NEPA guidelines.
About the latter, Ro is man argued that the policy clearly contemplates that the inquiry precede the contemplated Federal action by a sufficient time to allow a f ull-explo ra tion of the impact of the proposed action and exploration of alte rnatives which c an in fact be adopted to eliminate or reduce adverse environu2ntal im p a c t. "
Noting that the AEC's rules provided for preparation of an environmental statement for plants like Calvert Cliffs before issuance of
9,
an operating license, he argued that such a statement would "have to encompass all environmental factors because none_as yet have been considered by the Co mmi s s ion. "
"By that t im e,
in the words of NEPA," Ro is man continued, "there will be an
' irreversible and irretrievable c ommitment of resources which can only serve to re s t r ic t the Commission's options.
In short, to postpone action is, for all practical purposes, to deny it."
Roisman also alleged that BG&E had kept secret its plans to build the Calvert Cliffs plant "until the last possible moment when it could then claim that power needs required tha t the plant be built before necessary studies are completed.
The environment s hould not be made to pay for the transgressions of 22 BG&E."
Acting on the advice o f Directo r of Regulation Harold Price, the Commission announced, on August 3, 1970, its denial of the petition, s ay in g that its current rulemaking on Appendix D obviated the necessity for a separate proceeding.
The Commission did say that the petitioners' concerns would be addressed in the rulemaking and that action on their specific requests concerning Calvert Cliffs would be deferred pending completion of the rule-23 making p roc eeding.
Not until Dec ember 3, 1970, did the Commission conclude the proceeding on NEPA by issuing the definitive vers ion of Appendix D.
In t he mean time, Attorney Roissan filed a supplemental memorandum on November 12, 1970.
Although agreeing t'at AEC's
s
. deferral of his original petition of June 29 was-reasonable, he noted the additional financial and planning commitments by BG&E: to the Calvert Cliffs proj ec t.
Any further delay and_ com-mitment of resources, according to Roisman, "is clearly unreason-able and the delay will itself be the equivalent of a denial of petitioners' request."
Roissan also noted that the Maryland Court of Appeals had ruled in October, 1970, that BG&E did.not have a state Certificate of Necessity for the plant and that the Maryland Public Services Commission had issued an order on November 4, 1970, halting construction at Calvert 011ffs.
Finally, Roisman requested the AEC to grant within. ten days his-clients' request for issuance o f a show cause order sad to begin 24 the required environmental studies.
Again acting on Price's recommendation, the Commission denied the requests in the Supplemental Memorandum.
Price wrote Roisman on November 25 that. the NEP A rulemaking would be con-eluded soon and that his requests of June 29 and November'12 25 would be considered in the decisionmaking process.
On the same day Roisman, again on behalf of the three intervenors,
~
filed with the United S tates Court of Appeals for the D.C.
+
i Circuit a petition for review of the AEC o rders on the. June 29
_ petition for rulemaking and the Nov em b e r 12 S upplemen tal Xamo-randum.
He requested the Court to set aside the AEC orders-and to direct the Commission to (1) immediately issue a a hov cause order to the 3GSE why const ruction should not be suspended i
i a
m T
T
^7M wW g T
- iBse g
iv+%
s
. pending determination of environmental issues, (2) immediately order BG&E to prepare an environmental statement on Calvert Cliffs, and (3) immediat ely begin pr epara tion o f its detailed environmental statement on Calvert Cliffs.
In reporting this matter to the Commission, AF.C General Counsel Joseph F.
Hennessey wrote that his of fice would work with the Department of Justice 26 in p rep aring the Government 's d ef ens e.
Thus the stage was set for one of the two Calvert Cliffs suits.
On Dec ember 7, 1970, the three enviroamental groups filed the second suit in the f o rm o f a' petition for review of the final AEC regulations implementing NEPA, the version of Appendix D published in the Federal Register three days earlier.
Although there were some changes from the draft regulations published in June, 1970, the final rules maintained the AEC's carefully measured approach to NEPA.
When he summarized the public com-ments on the June draft regulations, General Counsel Hennessey told the Co mmi s s io n er s that " utilities and reactor manufacturers generally were concerned with the possibility of delay in the issuance of licenses and permits and were critical of the implied ex tension of AEC j urisdiction over environmental matters" while intervenors "took the p o s it io n that the proposed 27 policy statement was insufficient compliance with NEPA."
In arriving at the final App endix D, the Caamission considered severai alternatives which Hennes s ey pres en ted to them on Occober 1,
- 1970, Preferring an alt erna t iv e that would
. somavhat expand attention te environmental considerations in the licensing process', Hennessey said that it "would reflect a higher degree of responsiveness to the requiregatits _ o f NEP A and, thereby, lessen the probability of a court decision that the AEC had no t sufficiently comp lied with tho se re quirement s.
If such' a judicial decision were to be renderad, it is possible, of course, that it could have the effect of requiring the AEC to go even further in implementing NEP A and impair AEC's 28 present freedom of action to work out a ' balanced' approach."
On November 30, 1970, before publication of the new regulations, Henn:caey and members of his-staff _ met with the staff of the Joint Committee on Atomic Energy.
Hennessey reported to the Commission that 'the JCAE staff raised questions only for clarification and posed no doubts about AEC's legal interpreta-
[
tions on substantive p rovisions of the regulations.
When Edward Bauser, the JCAE Executive Director, suggested that JCAE Chairman Holifield night want to hold hearings on the new regulations, l
Hennessey advised against having a public review af t e r-App end ix D had been unanimously adopted by the Commiss ion subs equent to clearance by the Justice D ep a r t t. e n t and the Council on Environ-29 mental Quality.
Two days later, Hennessey met with Assistant Attorney General Shiro Kashiwa and his staff.
Kashiwa's staff l
l counsel, Hennessey reported, questioned the s o -c a ll e d " grand-fscher clause" which applied the new policy only to cases noticed for hearing ninety days after publication of Ap p e nd ix D.
i "While they exp res s ed conc ern that the courts would raise
.j
.- questions about whether this delay was justified,-they were prepared to defend our proposed position. -They did not obj ect to our interpretation that tt, Water Quality Improvement Act made it unnecessary to consider matters of water quality, in-30 cluding therme.1 effects, in our hearing-procedures."
Finally, Hennessey met the same day with Timothy Atkeson, General Counsel of the CEQ.
Ackeson, Hennessey reported-to the Commissioners, stated that-the CEQ "was: delighted" with1the
- new App endix D regulations.
As Hennessey put-it,."Ackeson.said that in their opinion the -revised AE C st at ement. vas by far the best policy statement that any Agency had isaued under-the Act INEPA] and thac they-were no imp re ss ed that Chairman I Rus s ell]
' Train is planning to include a discus sion of the Consission action as an - example o f accomplis hment under the Environmental Policy Act. in the course of his testimony before the Dingell 31
. Committee on-December 7."
When it published Appendix D on-December 4, 1970, the AEC summarized the comments received on the _p roposed rules, in-cluding those from the Calvert Clif f s Coo rdinating Commit tee,
i the Na tional Wildlif e Federation, and the Sierra Club.
As j
l promised earlier - to these Calvert Cliffs intervenors, the AEC-
-considered their petitions.
But=their-requests, including suspension o f _ cons truct ion o f ' plants pending enviroamental impact inv e s t ig a t io n s and "backfitting" of facilities under construct ion or already operating, were not honored in the new
4
. )
i regulations.
The Commission's statement emphasized the public's interest in adequaf.e el~ectric power:
"The Commission believe s that revised Appendix D takes into account the necessity for avoiding undue delays in orden to provide adequate electric
[
power and that it reflects a balanced approach toward carrying out the Commission's environmental protection responsibilities Its main concern here has been to find out and strike a reasonable balance of those considerations in' t he o verall 32 public interest."
The Calvert Cliffs intervenors responded three days after the publication of Appendix D by filing with the United States Court o f Appeals f o r the D. C.
Circuit a petition. f o r review of the AEC o rder p romulgating Appendix D.
Specifically, the petitioners asked the Court to declare invalid the section of the regulations which:
(1) prohibited AEC from placing con-ditions on const ruction pe rmits and operating: licenses for environmental pro tec tion mo re stringent than standards set by State or other Federal agencies; (2) yostponed effective dates for hearings on cons truc tion p ermit s and operating licenses which include consideration o f environmental factors until hearings noticed in the Federal Register after March 4, 1971; (3) refused to require backfitting to reduce harmful environ-mental impact of plants; (4) postponed full'AEC compliance with NEPA beyond December 3, 1970; and (5) refused to require all nuclear plant s with construction permits but not operating l
____m_
-3 6 -
3 licenses to show cause why their construction permits should not be-suspended until after a full investigation of their environmental impact.
When he reported the sult's filing to I
the Commission, Hennessey said he had consented to the peti-tioners' request for cooperation in exp ed i t in g a court decision 33 on this and the earlier Calvert Cliffs petition.
I Environmental groups like those repres.ated by Anthony Roisman in the Calvert Cliffs petitions were not the only ones-who challenged the AEC's environmental regulations.
Senator Philip A.
Hart of M1chigan, Chairman of-the Subcommittee on Energy, Natural Resources and the Environment of the Senate Committee on Co mm e r c e, wrote to President Nixo n in November, 1970, to complain that many Federal agencies, including the AEC, were not complying with NEPA.
Hart wrote:
One maj or additional problem has been the reluctance of-federal agencies to find in the Act extensions of substantive-authority over environmental matters.
Characteristic of-this reluctance has been the Atomic Energy Commission's contention that the Act does not confer on it jurisdiction to consider non-radiological environment AL ef f ects, such as thermal l
pollution, in licensing nuclear power plants.
The Commission's arguments that the Water Quality Improvement Act of 1970 serves to remove o bliga t io n s 34 imposed by the Policy Act seems to se unwarranted.,.
A furthet. reading on the AEC's response to NEPA came from Secretary of the Interior R7gers C.
3.
Morton, who commented on l
an AE C d ra f t environmental statement for Units 3 and 4 of Florida Power and Light Company's Turkey Point nuclear plan t:
I In our judgment the Co mmi s s io n ' s draft statement is deficient because it lacks project s p e cific a t io n s 4
e
i n
9.-
-3 7 -
4 and operation criteria, neglects the effects of-the. operation of all1 four unit s together, sub-ordinates alternatives to a once-through cooling-system to the size of the financial-investment, contemplates subjecting a valuable J anvironment.
to use as a "te s t-tu b e"' f o r lon g-t e rm' t hermal.
pollution studies, and umite review of_ water quality standards and other environmental protection et.:eria.33 i-Representatives of some o ther Federal agencies al'so T disagreed with AEC handling of-environmental issues.
An official of the 5
Department of-Housing =and Urban Development. severely < criticized i
che AEC's Draft Environmental Imp act Statement on Calvert Cliffs Units 1 and 2, issued in_ March,_1971.
He described.the plant i.
f~
site as "one:of. unique beauty and importance to the State,"
and emphasized that 'the clif f s of Calvert were "world famous for-
?
l their rich deposits of Mio cene Period fossils."
The HUD official 1 i
acknowledg ed tha t the AEC-had' discussed the effects of Calvert Cliffs as a single plant, but argued that "there is: little dis-cussion of1the plant as one o f numerous elements polluting the I
[ Chesapeake) 3ay and environment and what the cumulative effect 36 i
may be.."
I i
Thus-by-the end o'f 1970, the-first-year of.NEPA, the AEC response'to ~ the environmental law was being challenged in the courts.
The central questions were vhat-NEPA really meant in
~
terms-of agency implementation and compliance and whether the~
AEC was responding properly to these standards.
As Richa rd A.
Liroff, a leading student of NEPA, has observed, "In responding to NEPA's demand for change, agencies could develop procedures that would make a vast departure from their customary _ forms
.-..a--
...-a--.
,,. ~,.
-3 8 -
of operation; or they could attempt to ignore NEPA as much as possible, dampen its' imp'act, and try to carry on ' business as usual '
The AEC environmental guidelines, Liroff argues, "sougs.. to-delay and limit NEP A's implementation.
They sought to postpone consideration of environmental impacts until a late stage of plant licensing-proceedings, thereby permitting 37 the de facto foreclosure o f alternativ e ac tions. "
t 4
l 1
4 i
Chapter III The Calvert Cliffs Decision The parties to the two Calvert Cliffs cases filed their briefs in February and March, 1971, and presented oral argu-ments in April to a panel compo sed of Judges J.
Skelly Wright, Spottswood1W. Robinson,_III,.and.~ Edward A.
Tamm of the UnLtei States' 1
1 Court of Appeals for the District of Columbia Circuit.
Anchony Ro i s man, representing the three intervenors, felt that he and 4
" super panel," in his clients got the " luck o f - the draw," a Judges Wright, Ro binson, - and Tamm.
They, according to Roisman, "were prepared t'o recognize-that NEPA was one of the-mo st is-portant laws that had ever been passed insofar as env1.~onmental matters were concerned, and that this case provided them with an opportunity to discuss in the context of the issues raised 2
i what this law meant.
During o ral a rgument s, Roisman i
presented the intervenors' case and Marcus Rowden, AEC solicitor, spoke for his agency.
The j udges, according to Ro is =an, demon-strated during the oral argument that they knew well the facts behind the cases and asked cany questions, especially Judge Ro b in s o n.
These ques tions, Ro isman feels, were "p art ic ula rly 3
l tough on the agency."
Nuclecnics Week reported several weeka l
before the Court reached its decis1on that many lawyers following 4
the case felt that the AEC =1ght lose.
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I Judge Wright preparedithe-Court's decision, reached on
' July'23, 1971.
Wright wrote in his-opening statement:
l These cases are only the beginning of what i
promises to become a'.floo d of, new-litiga tio n--
i litigation seeking judicial assistance in pro--
j-tacting our natural. environment.
Several1re-certly enacted statutes-attest to the commitment 1 of the Gove rnmen t - to control, at.long:last, the.
destructive engine-of' material " progress."
But-3 it remains to be seen whether the promise' of this
!~
legislation will become a reality.
Therein lies the j udicial role.
Our duty, in s ho r t,-
is to see_that important Iagislative : purpo s es,
heralded in-the1 halls of Cong ress, are :no t _ lo s t-or misdirected'in the vast hallways.of;the': federal-bureaucracy.5-l';'
Wright pointed out that - the two cases involved the p etitioners '
i claim that the Atomic Energy Commission's NEP A rules " fail to i
satisfy the rigor demanded by NEPA," while thefAEC argued that iI NEPA's vagueness allowed discretion in the development of rules.
Referring to S ec tion 101 o f NEP A, the Court ~ admitted that'NEPA's b
general substantive policy was - flexible and ' allowed a L " responsible exercise of discretion," but argued that the_-. law's1 procedural-provisions "are designed to see-thatEall Federal' agencies do in fact exercise'the substantive discretion -given'them."
.The i
I Court said.these provisions were "not highly flexible" and that L
"they establish a-strict-standard of compliance."
Section 102 o f NEP A,- dealing with detailed environmental statements, requires agencies, including the AEC, to take environmental values in t o account "to the fullest extent possible."
This p rovision, - the Court said, set _a high s tandard _ f o r f ederal agencies and was l
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-not designed to " provide an. escape L hatch - f or ~ f oo tdrag gin g i-j agencies." 'No ttng - tt.t : the cases _ being litigated-sp ecific ally i
involved the AEC's'NEPA rules, the'CourtLobserved that "the-
[
period of1the. rules' gestation does no t -indicate overenthusiasm 6
on the ~ Commis sion 's part."
4 As Judge Wright pointed out', t he 4 petitioners challenged
~
four specific parts o f Ap pendix Di as violations ; of, S ec tion 102 l
of NEPAt-
"Each of these parts in some way ! limits full consider-i
.. invididualized. balancing L in - the Conmission's d e c is ion 5
ation and i
making process." -Wright ' desc ribed - the -- f our p art s ? in question:
(1)
Although environmentalTfactors-must~be.
considered by the agency's regulatory staff-under the ru le s, such: factors <need-.not-be i.
considered:by the-hearing board' conducting l-an independent. review of staff recommendations, l
unless affirmat1vely raised by outside7 parties
~
or staff members.
F
'(2)
Another.part of the_ procedural rules pro-hibits any such party. f rom - raising non-radiological' i--
environmental issues-at=any hearing if the notice for_that-hearing appeared in the. Federal-Register:
[
before March 4,.1971.
(3)
Moreover, the hearing board is_ prohibited' I
.from conducting-.an independentDevaluation and-H p
balanctng o f. c e r tain environmen tal factors if other respons'ible agencies haveLalready certified; i
that their' ova environmental--standards-are satis-y
'fied;by the proposed federal action.
J f
(4)
Finally, the ' Co = mis s ion 's. rules provide that-I when.a constructionfpermit for'a: facility has-
-been is sued _-bef o re NEPA compliance-was-required and when an' operating license has yet to be issued, j
the-agency will not formally < consider environmental._
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f ac to rs. o r ' require modific ations in the - p ro posed l-facility until the t im e o f the issuance of the l
operating license'.7 i=
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. In regard to the first challenge, the Court was very e
critical of the relevant Appendix D section.
As Wright put it, i
We believe that the Co nsi s s io n 's crabbed in t e r-pretation of NEPA makes a mo ckery cf the Act.
What possible purpose could there be in the S ec t ion 102 (2 ) (C) requirement (that the " detailed stata-ment" accompany proposals through agency review processes) if " accompany" means no more than 1
physical proximity--mandating no more than the physical act of passing certain folders and papers, unopened, to reviewing officials along with other folders and papers?_ What possible purpose could there be in requiring the " detailed statement" to be before hearing boards, if the boards -are free to ignore entirely the contents of the s t a c amen t ?
NEPA was meant to do more than regulate the. flow of papers in the federal bureaucracy.
The wo rd
" accompany" in Section 102 (2) (c) must not be read so narrowly as to make the Act lud ic rou s.
It t
must, rather, be read to indicate a Congres sional intent that environmental factors, as compiled in the " detailed statement," be considered through agency review processes.8 As for the AEC rules which limited consideration o f environ-i mental issues in hearings to occasions when these issues had been positively raised by parties in the hearing, the AEC's
" responsibility is not simply to sit back, like an umpire, and resolve adversary contentions at the hearing stage.
- Rather, it must itself take the initiative o f considering environ-mental values at every dist inctive and comprehensive stage 9
of the process beyond the staff's evaluation and re c ommend a t io n. "
Next' tbs Court commented on the rule which' prohibited j
i hearing board c o n s id e r at io n of environmental issues at pro-ceedings officially noticed before March 4, 1971.
No t tr 3 that this rule would enable
"'T Co mmis s io n to take actions having a significant environs imp a c t as much as two years after NEPA became effactive, the Court concluded that "such a ti=e
O lag is shocking."
The Commisrion, citing NEPA's flaxibility, explained the time lag in terms of need for a transitional i
period and to avoid unreasonable delays in construction and operation of power plants.
The Court declared that AEC's approach to statutory int erpre tation was " strange indeed--
so strange that it seems to reveal a rather thorough-going reluctance to meet the NEP A procedural obligations in the agency review process, the-stage at which deliberation is most open to public axamination and subject to the part ic i-pation of public intervenors."
The AEC could not use "the spectre of a national power cris is," real o r un real, "to create a blackout of environmental consideration in the agency review J
process."
The Court held that NE2A did not allow a blanket banning of reviews of environment?1 issues until March 4, 10 1971, as provided in Appendix D.
Thirdly, the Court examined cu m AEC ru is t'
deferred to standards of other State and Fedszal agencies o.
vater quality and other non-radiological environmental ef f ects.
The pro blem o f water quality,"p erhap s the most significant impact of nuclear power plants," cannot be raised by any party to a licensing proceeding and the Co mmis s ion could not examine such a problem indep end en tly, according to Appendix D.
"The upshot. is that the NEP A procedures, viewed by :he Con-mission as superfluous, will wither away in disuse, a alled only to those environmental issues. wholly unregulatei by any other federal, state or re gional bo dy. "
The AEC rules, an l
0.
i 1
abdication to other agencies, neglect the case-by-c as e i
balancing judgment by Federal agencies required by NEPA.
Further, "the special purpose of NEPA is subverted" because
]
the Appendix D rules prevented concerned members of the public from raising a wide range-of avironmental issuas.
Noting that i
j Sectica 104 of NEPA and the Water Quality improvement Act of i
1970 did require obedience to standards set by other agencies, i-the Court asserted that " obedience does not imp l y t o t al 11 abdication."
The f ourth challenge to the AEC's environmental rules
?
criticized the agency's refusal to consider taking any action
}
J
)
on environmental reports and detailed statements produced for p l an ts having construction permits dated before January 1, 1970, when NEPA became effective.
-In its decision, the Court 4
complaiaed because the AEC refused to "take any independent action based upon the material in the environmental reports and
' detailed statenents.'
Whatever environmental damage the reports 3
and statements may reveal, t he. Commis sion will allow cons truc t ion to proceed on the original plans.
It will not even consider requiring alterations in those plans.
According to the Court, "These reports and statements will be produced, but nothing will be done with them.
Once-again, the Commission seems to believe that the mere drafting and filing ci papers is enough to satisfy NEPA."
The Court concluded that AEC "must consider action, as well as file reports and - pap ers, at 1
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. 1 the pre-operating license state.
Although the p roj ec ts in a
question may have been commenced and initially approved before i
January 1, 1970, the Act clear 3v applies to them since they must still pass muster be fore going into. full operation.
All i
ve demand is that the environmental review be as full and fruit-l 12 fui as possible."
In analyzing the four points under litigation, the severity of the Co u rt 's criticism'of the AEC's environmental regulations and its implementation of them was clear.
Thus the Court's final conclusion was no surprises We hol.d that, in the four respects detailed above, the Commission must revise its rules governing consideration of environmental isstes.
We do not impo s e a harsh burden on the Com-mission.
For we require only an exercise of 4
substantive discretion which will protect the enviro nme n t "to the fullest axtent possible."
No less is requried if the grand congressional purposes gnderlying NEPA are to become a reality.
Everyone concerned with the Calvert Cliffs cases and other
{
interested observers recognized how surprisingly clear the i
Court had spoken and the ex t en t to which it had chastiaed the Atomic Energy Commission.
Although there were advance indications that the AEC might lose the case, indeed the AEC legal staff expected to lose, the decision s till s ent a, shock-vave through the agency.
Nucleonics Week reported shortly af ter the Court reached its decision that the AEC had no contingency plan to meet an adverse ruling, and this report appears to have been 14 accurate.
Howard Shapar has indicated that the Commis sion was u
l i
r
' surprised by the broad scope of the decision:
"I mean they lost 15 on every point.
Csivert Cliffs was sweeping law."
Com-menting on the fact that Judge Wright criticized the AEC severely because of its failure to tho roughly consider thermal effects when issuing nuclear plant licenses, Commissioner James T. Ramey felt that Wright "went far beyond what a judge should in excoriating the Commission for its alleged deeds.
Ramey further observed, in criticizing Judge Wright, that "the NEPA statute was vague as hell.
" fire-eating" jud ge and that he Ramey felt that Wright was a had similarly-o riented young legal assistants who were schooled 16 in environmental activism.
Marc Ro wden, the losing lawyer in the case, observed:
"There is no doubt in my own mind that a maj or problem the Commission conf ronted was the lack of any meaningful Congressional guidance in the act itself and any hard guidance in the legialative history.
NEPA has been des-cribed as a statute which was almost constitutional in its generality, in vagueness."
Rowden believed that Congress d id not fully contemplate the consequences when it passed NEPA, and left it to the courts to_ determine NEPA's scope.
Congress did not act responsibly in this instance, according to Ro wd e n.
As far as the AEC was concerned, Rowden believes, _i einught that i
it was taking a responsible position on NEPA and was not pur-posely abdicating its duties.
Rowden agrees with Anthony Roisman, the winning lawyer, that the composition of the Court
. panel in large measure shaped the substantive outcome and tone of decision in the matter.
Muc' of the case's visibility af ter the decision, in fact, was becau se the AEC had been frankly and 17 saverely castigated.
Rovden was quoted publicly shortly af ter j
the decision, saying, "Ther9's no question that the chastening tone of the opinion has hurt the AEC.
The Court extracted 18 greatly from the actual leg 61 issues at hand to give us hell."
Roisman was confident before the Court ruled, but L s u rp ris e d that he von for his clients on all f our central issues.
Al -
though,he noted that it was not unusual for a court to chastiae an agency in a case of this kind, the Calvert Cliffs decisio' "was as harsh as I've seen...."
William O.
Doub, who as Chairman of the Maryland Public Service Commission had had to deal with the Calvert Cliffs p roj ect on the state level and was soon to be nominsted for service on the Atomic Energy Commission, commented:
"I don't want to overstate this or promise too much, but I think you'll find that the Calvert Cliffs decision marked the end of an era.
20 It's a new ball game now."
The court's words, severely scolding the Atomic Energy Commission for its reluctance to respond f ully to the Na tional Environmental Policy Act, were clear; there was no mis taking the court's intentions.
The immediate question was, how would the AEC responc?
Would it challenge the judges and continue to resist NEPA, or would it accept the decision and move ex p e d i-tiously to revise its rules to comply fully with the spirit and letter of the Court's dictum?
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Chapter IV The AEC Response to Calvert Cliffst I
It is clear that prior to the Calvert Cliffs decision, the At smf.c Energy Commission had pursued a cautious and con-vervative approach to the National Environmental Policy Act.
Althcugh not deeply involved in the legislative process leading to NEPA in 1969, the agency's leaders, such as Chairman Glenn T.
S eabo rg, had felt the contemplated lav was unnecessary and threatened to broaden adversely the AEC's j urisdic tion and duties.
After the law passed, the Commission still insisted that it did not significantly enlarge its responsibilities i
beyond those spelled out in the Atomic Energy Acts of 1946 and 1954 In developing the Appendix D environmental regulations, as the U.S.
Court cf Appeals made clear, the AEC had avoided as far as it dared a full embracing of NEPA.
This record, p rio r to the Court's decision in July, 1971, would seem to suggest that the AEC vould continue to resist full NEPA imp l eme n t a t ion along the lines suggested by the Court.
Significantly, al though coincidentally, two days before the Court ruled in the Calvert Cliffs case, President Richard M.
Nixon announced the nominations of two new AEC Commissioners, one co fill a vacancy on the Co mmi s s ion and the other to replace lo n g - t im e chairman S eabo rg, who planned, with encouragement f rom 1
the NOcon administration, to resign.
The two nominees were e
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-49 William O. Doub, who as Chairman of the Maryland Public Service j
Commission had dealt with the Calvert Cliffs licensing on the State level, and James R. Schlesinger, Assistant Director of the Office of Management and Budger, slated to become c ha irm an of the Commission.
Commenting on these nominations, Nucleonics Week wrote 1
A Washington observer describes the situation this way:
"The Administration has taken its 3
time to find the men it wants, and they look i
pretty good.
Dou b supported environmentalis ts in the Calvert Cliffs hearing and has no ties to indus try or the nuclear community.
Schlesinger was on the Council on Environmental Quality and has only been associated with nuclear industry through planning p roj ect work at the Rand Co rp.
What the White House has succeeded in doing is landing two tough commissioners who are ' clean' 4
as far as the critics of the AEC are concerned but who, at the same time, will do the bidding o f the White House,"2 Doub had been contacted sevcral months befo re his nomination about service on the Commission and learned in May, 1971, that he would be appointed.
He felt that to a degree his selection was related to environmental issues; the Nixon admin 1stration, he understood, wanted someone wi th re gulato ry exp e rienc e and sympathetic to environmental causes.
Doub says that there was in fact some discussion about the possibility of his becoming 3
chairman.
Schlesinger owed his ap po in tm e n t to his closeness to the Nix o n a dminis t ra t ion, in which he was already serving at OME, and to his repu ta t ion as a tough, efficient administrator.
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Schlesinger was not particularly identified with either the i
environmental movement or the nuclear industry.
His selection represented the Nixon administration's f eeling, even before l
the Calvert Cliffs decision, that the AEC was in trouble and needed restructuring to meet new demands, enviroamental and otharvise.
To a certain ex t e n t, the additions of Doub and Schlesinger helped to cre, ate a "new" Atomic Energy Commission and to determine 4
i the Commission's response to the Calvert Cliffs decision.
They vere not associated with the relatively conservative AEC appli-cation of the National Environmental Policy Act.
They came in when the Commission was being criticized f rom all sides--by Congressional sources, the nuclear industry, environmentalists, 4
and State officials.
This level of criticism, when joined with that of Judge Wright and his colleagues, clearly called for i
concerted efforts to improve the AE C 's image.
Schlesinger and Doub, both Republicans, together v1th Commissioner Clarence E.
Larson, appointed ea-lier by President NLxon, could command a i
maj ority on the Co mmi s s ion.
The other Commissioners were James T.
Ramey and Wilfrid E.
Johnson, appointed by Presidents John F. Kennedy and Lyndon 3.. Johnson, respectively.
Doub has observed that La r s on and Johnson we re quite open-4 minded and willing to co nsider cu rrent issues dispassionately without any relationship to past Commis s ion decisions.
- Ramey, on the other hand, was more concerned with continuity and L
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consistency.
An AEC legal staff employee between 1947 and 1962, Ramey, according to taub, was intellec tually honest and legiti-1 mately concerned about the health of the nuclear industry.
But in a way his time was up, even though he had been a maj or in-6 fluence in the preceding decade.
Ano ther observer has no ted that the decline in influence of the Joint Committee on Atomic Energy concurrent with the Doub and Schlesinger appointments helps to explain the emer-
{
genc e o f a "new" AEC:
Schlesinger was not a member of the Industry-AEC-Joint Committee on Atomic Energy triumvirate that constituted the nuclear ' e s t a blis hmen t ' in the United 1
States."
Schlesinger, according to this writer, was the first c hai rman of the Atomic Energy Commis s ion since 1953 not a member 7
of the nuclear " fraternity."
Doub saya that Schlesinger felt that environmentalists were "a force that had to be dealt with in a positive manner."
If the nuclear industry was to continue l
(
to expand to meet power needs there had to be an acc ommo da t io n between the AEC and the environmental movement.
Ther2 was, l
Schlesinger felt, a great deal of ex t r emi sm in both the envi ro n -
8 i
mental groups and the nuclear industry.
Even bef ore Schlesinger and Doub ' came on board, between July 23 and August 4, 1971, the existing Commission chaired by Seaborg assessed the Calvert Cliffs decision's imp a c t on pending L
licensing cases and considered possible courses of action.
Ram e y,
l' s t ill s a rvin g as he had in the past as the lead conmissioner on l
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regulatory matters, outlined the alternatives in testimony before the JCAE Jn July 29:
further judicial review, either by the 1
Court of Appeals or by the Supreme Court; new legislation to I
clarify AEC licensing responsibilities under NEPAt or provisional implementation of the decision so that licensing could oroceed without serious in t e rrup t io n.
As Ramey told the JCAE, "our thinking at this point in time as to definite future steps must be sonewhat flexible.
Our basic _ obj ective, however, should be clear--to move forward with licensing actions for vitally needed 4
facilities as rapidly as we can in the light of the practical constraints and legal uncertainties resulting from the Court 4
9 l
Jf Appeals' decision."
On July 27, Director of Regulation Price informed the Co mmis s io n that the decision aff ected sixty reactor cases involving eighty -t hre e unit s--t e n-in _ the hearing process or nearing license issuance, twenty nearing the end of safety i
reviews with expected review comple tion with.
s ix mon ths, and l
thirty iu various stages, from recently rec eived cons t ruct ion permit applications to t hos e mo re than six months from completion of saf ety reviews.
Price reported that the AEC regulatory staff l
would need at least sixty addit.onal technical personnel over the coming six to nine mon ths to implement the court decision, and that delays in issuing an operating license for completed reactors would cost a utility between $50,000 and $100,000 a 10 day.
On_ Au gu s t 4,
1971, the Commission issued its first'public statement on the Calvert ' Clif f s decision.
It explained it was
= - - - -
= _
. _ _ - ~ -
. examintag how to imp lemen t the decision in present licensing cases and also "considering the possibility of requesting fur-ther appellate review er clarification of the decision."
In l.
the meantime, the AEC announced it had-initiated action tot (1)
Re-evaluate the NEPA environmental statements prepared for pending cases and
)
proceed with the preparation of su ppiamen t al NEPA statements which meet the requirements i
o f the Court 's decision.
(2)
Begin, as promptly as possible, the NEP A Environmental review called for by the decision with respect to (a) facilities which were licensed after January 1,
- 1970, (the ef f ec tive date of NEPA) and (b) pre-January 1, 197 0, cons truc t ion p e rmit s, such as the Calvert Cliffs facility.
i (3)
Issue as'soon as possible appropriate regulations to implement the Court's decision.11 This statement signalled a modified holding action; the Commission would imp l em en t the Calvert Cliffs decision while considering a court appeal or clarification.
Not uat11 August 26 1
did the Commission issue a more definitive announcement, that 12 it had decided not to appeal.
Part of the delay related to the changes taking place in Commission membership.
C ha irman l
Schlesinger and Commissioner Doub were not sworn in until August 17.
Nucleonics Week reported earlier that the AEC would not make any binding decision on how to meet the Calvert Cliffs 13 crisis until Schlesinger and Doub were on board.
Also, the AEC consulted with other Federal agencies -the Department of Justice and the Council on Enviroamental Quality--about the decision and an appropriate response to it.
As Ru s s e ll E. Train.,
i
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Chairman of the CEQ, explained it, CEQ, Justice and AEC together analyzed the decision.
Justice was of the opinion that the i
S up r eme Court would probably-affirm the Court of Appeals on most counts (except possibly the requirement of independent AEC evaluation of 3
water quality certifications).
AEC and CEQ l
concurred in this view.
On Au gu s t 26 AEC Chair-man Schlesinger announced he would not recommend further court review.
An imp o r t an t fac-tor in this decision was AEC's judgment that, act only-vould appeal be unsuccessful, but it would
)
create possibly a further year's delay in nuclear plant licensing to say nothing of the e tn-complywithafinalopinion.1gmere-quired In announcing that the AEC would not appeal Calvert Cliffs, Schlesinger said:
"W e intend to be in a position to be re-sponsive to the concerns of conservation and environmental groups as well as other members of the public.
At the same t im e, we are also examining steps that can be taken to recon-cile a proper regard for the envi ro nme n t with the necessity for i
meeting the nation's growing requirements for electric power on 15 a t imely bas is. "
Reporting an interview with Schlesinger, Nucleonics Week quoted him as saying, "The AEC must deal with the public in regard to the issues."
Schlesinger, the report continued, " envisages a great outpouring of in f o rma t io n that will insure a high degree of confidence.
He talked o f ' sitting down with responsible critics'..
He has told his aides he believes he has a ' honeymoon' period of about a year in which to turn around the image.
Sources say he regards the ICalvert Cliffs decision] as a possible c7ringboard for the new 16 responsive AEC.
Asked at a later hearing why the AEC had dec ided not to appeal Calvert Cliffs, Commissioner Doub responded:
~ _.. _ _
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'There are a variety of reasons.
It was taken in concert with the Justice Department.
The first reason, 1 think, was because we didn't think it was reversible.
Second, it would be-time consuming..
Third, we had a maj or j ob to do in restructuring the agency to handle the consideration of NEPA as intet;.reted by Calvert Cliffs, and we felt inviewofthefirgytwo matters we should get on with the job.
With the decision made not to appeal Calvert Cliffs, the Commission moved rapidly to adopt revised NEPA rules.
In fact, D$ rector of Regulation Price had presented a first draft of 18 the rules to the Commission as early as August 10.
Chairman Schlesinger, Price, and other AEC staff met with more than two hundred representatives of the nuclear industry, environmen-talists, and others at AEC headquarters in Germantown, Maryland, l
on August 27, to discuss the proposed rules.
Schlesinger opened the meeting by making clear that the AEC would not appeal Calvert Cliffs.
As Nucleonies Week reported, "Many of thcse present were lawyces representing nuclear clients and they were as enthusiastic about the task ahead as patients awaiting maj or surgery.
Conments in the washrooms included:
'The AEC caved in;'
'it's a case of inventing the wheel all over again;' and 19
'the Commission is damned if it does and damned if it doesn't,'"
The r mission adopted the revised Appendix D on September 3, 1971, about six weeks after the Calvert Cliffs decistop.
A major issue during the draf ting of the new ru l e s involved pro-cedures for getting compinted o r n ear-completec plants on line without delay.
Wr1t ng to Chairman Schlesinger after reviewing i
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- the draft App endix D,
A.
H.
Amond, Chairman of the Board of Directors of Consumers Power Company, particularly objected to the requirement that evidence that a licensed facility vculd not significantly affect the environment be presented before i
l interim licensing.
According to Amend, "The draft rule does not even authorize a balancing of the environmental impact of plant operations against the countervailing benefits to be derived from the proposed operations.
We would suggest as an alternative a provision which would permit the start of operations unless it is demonstrated on the record that significant and substan tially irreversible adverse environ-1 l
mental effects will result f rom such operations, and that those 20 adverse effects are not outweighed by countervailing benefits."
Jo hn N. Nassikas, Chairman o f the Fed eral Power Commission,
4 reacted similarly to the draft rules.
Concerned about possible s
ope rat ing delay s in several nuclear power plants, Nassikas argued that deferring their operation would harm the environment.
Writing to Schlesinger, Nassikas said that deferment of operations of these plants will cause such probable penalties to the public's " human environment" as:
potential re-duction. in adequacy and reliability of electric s e rv ic e ; reduced capability for' carrying loads for independent ind u s t ria l, commercial, and residential use; probable increase in detrimental environmental effects by requiring continued operation of less efficient plants with less effective pollution con t rols;. and substantial economic penalties from idle maj or investments in these units vith a resultant increase in cost to the consumer,21
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Speaking later on t h e s ame topic, Nassikas said, " Surely, interim procedures can be devised to serve the public interest in the need for power without compromising the environment.
It a
must be remembered that to accomplish the goals of our society C
we must maintain a balance among interrelated values:
idealism 4
must be temp ered by p ragmatic realism.
We must certainly inquires 22 What are the alternatives?"
t On the Commission itself, Commissioner Ramey had serious t
4 j
questions about Appendix D.
Ramey agreed with mo st of the re-visions, but expressed his concern that some of them ' may reflec t l
l an over-reaction to the Court's decision."
"I would have pre-ferred," Ramey wrote, "that the Commis sion and its staff have i
devoted their attention to a greater axtent to providing a summary procedure which would permit povar plants which have been reviewed and approved from the r a d io 1.; g ic al stand-l l
point to go into operation pending the development of additional l
l enviro nmen tal inf o rs at ion. "
Ramey also suggested the inclusion i
of a statement that the Commission " expressly recognized the positive necessity for expediting the decisionmaking p roces s i
and avoiding undue delays in order-to provide adequate electric power on reasonable schedules while at the same time protecting 23 the quality of the environment."
l The text of revised Appendia D appeared in the Federal l
I Regisyr1 en September 9, 1971.
Part A spelled out the basic NEPA procedures:
applicants f o r const ruc t ion p ermits and opera-ting licenses would submit Environmental Reports, to include
_ - - _ - _. - ~ -
~_
J consideration of the environmental eff ects of the proposed action, adverse effects.which could not be avoided if the pro-posed action was undertaken, alt e rna tive s to the propo sed a ction, t
"the relationship between local short-term uses of man's environ-ment and the maintenance and enhancement of long-term produc a tivity," and irreversible and irretrievable commitment s of resources in implementation of the propos ed action.
The Environ-mental Report was to include a "co s t -ben ef i t analysis which i
considers and balances the environmental effects of the facility and the alternatives available for reducing or avoiding adverse environmental eff ects, as well as the environmental, economic, technical and other benefits of the facility."
After receipt of the applicant's Environmental Report, the Director of Regu-l 1ation would prepara a draft Detailed Statement of environ-1 cental considerations, and after a comment period, a final Detailed Statement.
In reaching its license decisions, the i
"ommission's Atomic Safety and Licensing Boards were to deter-mine whether NEPA and Appendix D had 'been f ollo wed.
There were similar procedures for review of licenses issued in the period i
from January 1, 1970, to September 9, 1971, and for review of 24 construction permits issued before Jcnuary 1, 1970.
Two other provisions of Appendiz D, representing the only significant changes in the draft rules to which industry represen-tatives and the Federal Power Commission obj ected during the comment period, need to be mentioned.
Plants t ha t were ready
- i for operation but had not completed the environmental review process might be given interim operating licenses for up to 20%
i of full power under certain circumstances.
According to Appendix J
D, "Such circumstances include tes ting and verification of
{
plant performance and other limited activities where operation can be jus tified without prejudice to the ends of environmental protection."
Op e r at io n beyond 20% could be undertaken only with specific prio r approval of the Conmission.
Secondly, for co ns t ruc tion and operating licenses issued between January 1, 1970, and S ept ember 9, 1971, and construction permits issued 4
l before January 1, 1970, licensees were given forty days to p ro -
i vide written stacaments explaining why the license should no; be suspended pending completion of the NEPA review.
In the draft j
rules, the licensees had been allowed only twenty days to submit 25
- his in f o rma tio n.
i Reactions to the Commission's new NEPA rules varied a
considerably, depending on the respondent's position on nuclear power.
The Chairman of the-P resident 's Science Adviso ry Com-3 mittee told Chairman Schlesinger, "It has given me much personal i
satisfaction to note the strong and progressive leadership you have provided the Atomic Energy Conmission s in c a yeur appointment.
By bringing the Commission into quick and clear compliance with the recent Federal Appeals Court decision you have done the 26 public a re al s e rvic e. "
Russell E.
Train, Chairman of the Council on Environm ent al Quality, felt that AEC's new NEPA rules "should lead to greater public confidence in the t r e a tm e n t of
-. =, -. - _.
- - -.-,, z :
~
_ ~
4
- I environmental issues in the Commission's decision making process and to results that will meet the test of Court review i
better."
The CEQ's General Counsel reported to Chairman 2
4 Schlesinger, af ter a review of AEC's NEPA tmplementation at i
the end of 1971, "The Council has reviewed and endorsed the new procedures your agency adopted September 9 as being r e s pon s ive 27 to the requirements of NEPA."
The response of the nuclear industry to Appendix D, as expressed in letters, speeches, reports, and congressional 1
l testimony, was highly critical.
The general feeling was that the new Appendix D rules personified the AEC's overreaction to Calvert Cliffs.
There was concern abou t the licensing impasse
)
and fear that the AEC regulatory staff would be unable to handle the increas ed wo rk load.
Nucleonics Week reported soon after the revised NEPA rules were published:
A sense of real crisis has begun to grip the U.S. nuclear industry as it faces seemingly c
incalculable delays in lic ensing as a result of
{
the National Environmental Policy Act.
Industry j
sources say that the sense of panic has been fed i
by what some see as AEC's f ailure to s how con-vincing concern over the licensing dilemma and its insbility or disinclination to answer the major queggions that are casting doubt in the j
industry.'
Some industry representatives felt that Calvert Cliffs did not. require the AEC to institute the rules withholding licenses j
o f r eady -to-op er at e ' plan ts.. A paper prepared by Commonwealth i
Edison Company argued, 'a fact, that this was an imp r o p er l
in terpre ta tion o f NEP A and Calvert Cliffs; "nothing in the l
l l;
1.-
Calvert Cliffs decision would appear to require, or even warrant, delaying start-up of plants that are already completed pending further environmental review."
Environmental review of such plants had already been extensive, and additional review would i
29 uncover nothing new, according to Commonwealth Edison.
I i
The Edison Electric Institute, a maj or organization of the industry, issued a report in early October, 1971, which l
i argued that the new AEC regulations-would prevent completion of 1
i current nuclear power expansion plans on schedule, resulting in 4
serious power supply problems in most regions of the country.
There would be a one to two year delay, according to EEI, if environmental revisva were conducted in accordance with AEC r e gula tioo s.
Further, EEI argued that " delay in the installation of needed nuclear generating capacity can result in possible 1
disruptions of the nation's economy, in addition to s er io u s 30 4
{
inconveniences and expenses to elec tric power consumers. "
Speaking at a program on nuclear rsgulation.in Washington in November, 1971, William F.
Kennedy, Associate Gen 6ral Counsel of the General Electric Company, asserted that " nuclear power plant-regulation was not in good shape
." before the Calvert Cliffs decision, and that "Calvert Cliffs leaves it in a state of near-hopeless disarray.
Still the decision has one great merit--it will force everyone concerned, and notably the Congress, 4
to face the problem of how the nation will make decision s about electric power and the e nvi r o nm e n t. "
Kennedy felt that the 1
J
i
- solution to the licensing crisis was new Federal legislation--
on state and regional land-use planning, regulation of the environmental ef f ects of electric power generation and trans-mis sion, maj or changes in the Atomic Energy Act, and "a new national energy policy."
Kennedy also considered a question others raised in this same time period-+vhether the AEC was capable of carrying out its duties in its current form "does anyone believe that the three historic AEC roles--military applications, civilian d evelo pment, and radiological saf ety regulation--can long be combined with a f ourth growing out of NEPA and Calvert Cliffs--namely, the responsibility of making fundamental value judgments about nuclear energy and the environ-31 ment, and indeed about electricity and the enviroament?"
Many other representatives of the nuclear power industry, in statements at the S enat e -Commit te e on Interior and Insular Affairs heating on Calvert Cliffs on November 3, 1971, and in correspondence with the JCAE related to the hearing, presented similar points of view.
They objected to AEC's interpretation of NEPA and'the Calvert Clif f s decision as reflected in the Appendix D regulations, and they issued dire warnings about an impending power supply crisis caused by licensing delays.
Charles F.
Luce, Chairman of the Board of Consolidated Ed is on Company o f New Yo rk, observed that "AEC did not utilize the full measure of discretion available to it under the court's opinion when it rec en tly amend ed its licensing regulations."
~63 -
He specifically objacted to AEC's applying the s am e environmental review rules to all nuclear plants, rather than issuing p ro-visional operating licenses to nearly completed plants after hearings on radiolo gical matt ers.
If Con Ed's own Indian P o f '. t Plant #2 was not on line during the summer of 1972, Luce argued, con Ed's electricity reserve margin would be only 11%, an "un-tolerable" margin.
"In fairness to the At omic Energy Commission,"
Luce continued, "it must be concluded chat Solomon himself would have difficulty writing licensing regualtions which comply with the broad directions of the Nacional Enviroamental Policy Act."
When a Senator asked Luce why his company was relying on nuclear power, Luce responded, ironically, that it was mainly in o rder to clear up air pollution in the New York City area.
He pointed out that Con Ed had agreed in 1966 not to ouild additional fossil-fired plants in the city and that it would locate nuclear plants outside the city.
Luce concluded by saying, "There is no fo rm of power plant that we are trying to 32 build that is not subj ect to serious environmental objections."
Chairman Schlesinger was not overly sympathetic with industry complaints.
At the annual meeting in October, 1971, of the Atomic Industrial Fo rum and American Nuclear Society in Pal Harbour, Flo rid a, Schlesinger, in a sp eec h he wro te hims elf,
lectured the nuclear industry on its relationship ta the AEC.
N eleonics Week, In a " c a l cu la-t e d, dynamic speech," according to 1
Schlesinger " told the nuclear industry that it has reachad its
i
>e 1 maj ority and that it should act a c c o r d in g ly.
He then laid it on the lin e, as no AEC official ever has done 4
before, saying, in effect, we are getting our house in order, you get yours in order."
Nuc le on ic s Week reported that "the speech.
fell on the audience with the surprise of a coup d' etat announced over a radio station and its reception was sempered by predisposition.
Schles inger hims elf, a c c o rd in g to in t ima t e s, thought of the speech as a s tif f half-t ime talk 33 j
from the coach in the locker room."
4 In his remarks, S c hle s in g e r told his audience that in 3
spite of Calvert Cliffs he was op t imistic about the nuclear industry; the " ultimate future" would be " spectacular."
"The pace of achievement, however, will depend heavily on two pro-visos:
first, provision of a safe, reliable product; second, achievement of public confidence in that product."
The industry had been j ustifiably fostered and protected by the AEC in its inf ancy ; but the time had come for it to be on its own.
As l
l' Schlesinger put it, Those of you who regard the-response to Calvert Cliffs as indicating a climactic change in the-relationship between the industry and the AEC could well be right, though perhaps j
for the wrong reason.
The move toward greater self-reliance for the industry had a certain historic inevitability.
Such a process is always painful.
It is, however, necessary.
One result will'be that you should not expect the AEC to fight the industry's political, social, and commercial battles.
These are your tasks--the tasks of a s e lf -r el ian t ir.dustry.
Schlesinger also made it clear that the AEC would not ignore
,,g.,
3--..
r.,,
i o e Congressional in tent (on NEPA) or the courts (on Calvert Clif f s).
As he put it, "We have had a f air amoun t of' advice on how to evade the clear mandate of the federal courts.
It is advice We sympathize l
that we did not think proper to accept.
with the dif ficulties that you are f ac ing, but we have no intention of evading our responsibilities under the law."
In an interesting commentary on environmen tal is sue s,
Schlesinger told the indust ry representat ive s t hat these were legitimate soc ial questions.
The AEC, however, should not 'take j
is the AEC s mission to provide energy i
i a position on them.
"It o p t io n s that will serve public needs--in whatever manner the public prescribes those needs.
The AEC lacks autho rity and consequently should avoid becoming entangled in the determina-tion of broad social issues of this type."
Finally, Schlesinger rej ected the s u g g e s t ion that the AEC had over-r eac ted to Calver t 1
Clif f s.
The new Appendix D regulations were " tough" but
" workable."
"These new regulations present no insuperable i
difficulties, if you will get on with-your part of the job 34 and we get on with ours."
The tone of Schlesinger's Bal Harbour speech clearly j.
reflected two maj or f actors:
the willingness of the AEC to be more responsive to environmental concerns in the face of widespread criticism of the agency and the s c old in g it received l
I in the Calvert Cliffs dec'sion; and the coming of Schlesinger to the AEC c ha irm an s hip.
As Conmi 91oner Ramey put it, the L
l Ba1. Harbour speech "vt.
the kind you.would exp e c t from 1
l l
~
' e 4
. 4-a new chairman giving a pep talk to the industry but knowing 35 the environmentalists vnre watching."
The Washington Post.
i applauded Schlesinger in an editorial l
It is true, no doubt, that there is videspread unhappiness inside the nuclear power industry with some of the recent actions of the AEC.
The Commissica ignored many recommendations from that industry when it responded admirably to the Calvert Cliffs decision.
But I
that was a vital first step in getting tha development of atomic power back in line with the public 's renewed concern about cafety and pollut ion.
We assume from Mr. Schlasanger's remarks in Florida that he and his colleagust on the Commission intend to take the rest of the steps that are needed to assure.the country that this vital source of energy can be handled vichout endaggering either the public or the environment Representatives Chec Ho11 field and Craig Hosmer, both influential members of the JCAE and advocates of nuclear power, exp res s ed supp or t for Schlesinger.
Holifield did no t like the Calvert Cliffs decision but approved AEC's implementation of 1
NEPA after the court's ru ling.
Bo th Ho11 field and Ho smer agreed that it was necessary to restructure the licensing procedure 37 in the light of NEPA and Calvert Clif f s.
Schlesinger's advice did not persuade the nuclear industry to acquiesce in the new NEP A regulations.
At the Senate hearing ca Calvert Cliffs on November 3, 1971, and in related correspon-dence, they continued to criticize Appendix D and to sound dire 38 warnings of an inpending power shortage.
And not all o f the environmentalists were convinced that Schlesinger personified a subs tan tial conversion of the AEC.
Dr. John W.
Gofman, a y
n-v+
1-
/
w ny g e ynn+o g-c w
m-y-g9Wwe-
~
o nuclear scientist who emerged as a forceful critic of the AEC, raised questions about the Chairman 's. Bal Harbour sp eech:
Dr. Schlesinger observed that environmentalists might.come to realize that nuclea~r power could benefit the ecology by reducing the hazardous vastes from fossil fuel power plants.
Here Dr.
Schlesinger is s imply demons tra ting the ef f ec t ive-ness even upon himself of brainwash techniques practiced by his predecessors at AEC, by the electric utility companies, and the nuclear promoters in industry.
What Dr. Schlesinger is telling us is the basic strategy of tae electric power industry and the nuclear promoters.
That strategy is to blame the environmentilists for all the short-sightedness, the mismanag ement, the poor planning, the self-fulfilling crisis generation through advertising, and the virtual absence of research and development of the electric utility industry.
No one should be surprised that those culpable will indeed attempt to place the blame for their ineptness upon the environmentalists.J9 Senator Mike Gravel of Alaska, who. inserted Gofman's article in the Congressional Re c o r d,,
was one of the harshest legislative critics of nuclear power and the AEC.-
Gravel called for a temporary moratorium on construction and operation of nuclear power plants and argued that "the lon g - t e rm implication of the court decision may be a permanent halt to the nuclear electric $~y program."
Exp lainin g the o pposition to a temporary moratorium, Gravel stated:
"I submit that the answer is money.
If Congress passed a relief bill this af ternoon guaranteeing to refund money and profits lost-on the nuclear investment, and to hold utilities blameles s f o r po ssible power ra tioning, I bet the pressure to license those 61 nuclear power plants would
- vanish.
In other words, I believe the real engine of concern t
over the Calvert Cliffs decision is the desire to recover a 40 large investment."
While Gravel represented an extreme, almo st conspiratorial, view, his remarks did indicate that the AEC decision not to appeal Calvert Cliffs, its new NEPA rules, and Schlesinger's ascension to the chairmanship did not s ignal the s.d of controversy over nuclear power.
Although not of",w'. ally declared,'there was a de f acto moratorium on the issuance of new licenses while the AEC tried to implement the new environmental regulations.
In the view of the nuclear power industry, a licensing crisis was at hand.
How the AEC would act on its commitment to solve the licensing snag in the months ahead st111 remained to be seen.
1 1
i
,~,-
b O
I Chapter V The AEC Response to Calvert Cliffs II j
I By mid-1971, several factors combined to affect profoundly the future work and organization of the Atomic Energy Commission.
The Calvert Cliffs decision and the revised and expanded environmental regulations adop ted by the AEC in its immed ia t e l
~
aftermath led to far-reaching changes in the reguintory organi-l zation.
Not insignificant were the additions of James Schlesinger and William Doub to the Commission, and the willingnes s of other
- i Commission members, with the par ial exception of James Ramey, to adapt fully to what the Court had insisted upon in the Calvert Cli2fs decision.
Thus imma. sately after the court spoke, i
the AEC c:celerated the regulatory
- aff organizational changes 4
i which actually had begun shortly af ter NEPA became -ef f ec tive in January, 1970.
In June, 1970, an Office of Environmental Affairs had been established, with its head, formerly Assistant to the Ceneral Manager for Environmental Affairs, reporting i
directly to ths General Manager.
In January, 1971, r e fl e c t in g 1
the increa s ed wo rk-load and responsibilities allotted to 1
environmental questions, the Division of Radiological and Environmental Protection was established with<.n the regulatory 2
4 branch.
The Calvert Cliffs decision in July, 1971, and the AEC determination to carry out the court's mandate without appeal,
~
..,.,.-m.
.,,-m.
_ ~,,.
m e
-70 f o rc ed an amer g ency work <d o ad of environmental reviews on the staff, which of course had to continue with its normal processing of new applications as well.
Illustrating the scope of the licensiTg crunch, Chairman Schlesinger reported to the JCAE in September, 1971, that the revised Appendix D NEP A regulations affected more than eighty pending cases:
s ixty-f ou r licensing applications involving nine ty-five nuclear plan ts ; five reactors for which operating licenses had been issued after NEPA became j
effective on January 1, 1970; three fuel processing facilities; and ten reactors with provisional operating licenses issued before January, 1970.
Schlesingir noted that AEC's manpower-requirements because of its new environmental duties were 3
" formidable."
The existing staff could not absorb
- he new volume of work, and AEC manpower ceilings precluded quick personnel additions.
To meet the immediate crush, the regulatory staff was aug=ented by persons reassigned temporarily from less pressing positions under the General Manager, and by more than one hundred workers f rom the national laboratories under AEC direction.
By November, 1971, the implementation of NEPA involved about two hundred persons at the AEC.
In January, 1972, the AEC began recruiting for two hundred additional staff, provided for in the 1973 fiscal year budget.
At this point, 4
there were 64 9 persons in the. regulatory group.
At the same t im e, some significant changes in top AEC regulatory management below the Commissioner level took place.
. Less than three months after Calvert Cliffs, Harold L.
- Price, who hid headed the AEC's lic ens ing p ro gr am since its inception in 1954, resigned as Directsr of Regulation Nucleonies Week said, " Industry speculation on Price's resignat ion boiled down to this:
that Price was f?.rmly associated with the 'old' AEC which ignored the environmental effects
- nuclear power, and that he does not fit into the 'new' co.
_ ion which, under Chairman Schlesinger, is making an almost volcanic effort to 5
meet its environmental responsibilities."
This inte.,retation of Price's d ep ar tu re is essentially correct.
Commissiocer Doub, who m Schlesinger assigned to arrange for Price's replacement, has observed that Schlesinger probably did not know Price "from a man in the moon," and that the change in the Directorship of the Regulatory branch was a necessary part of the reo rg an iz a tion 2
after Calvert Cliffs.
In fact, F,chlesinger asked Doub to begin d
to icok for a new Director of Re5ulation even before they both were swo-n in as commissioners.
Schlesinger emphasized the p s yc hol.t y er the situation, noting the need to make a break with the past.
Co m mi s s io n e : Ram e y felt that Price's replacement was a bit hasty, but noted that Price was.not !.n the best of health and did not appear strongly adverse to leaving.
Ramey 5
in fact helped Doub in in t e rv iewin g and selecting Price's d
6 successor.
p Through his work as Chairm an of the Earyland Public Service Co mm i s s i o n, Doub ha Necome acquainted with L.
Manning Muntz ing,
~
1
t who succeeded Price in October, 1971.
At first skeptical about Mun taing 's background with a public utility, Schlesinger even tually j oined Doub in persuading a hesitant Muntzing to 7
take on the regulatory j ob.
Muntzing has stated that the Calvert Cliffs decision played an imp o r t an t role in'his ap p o in t -
ment, that there was considerable discussion of the case while 4
he was being recruited.
Muntzing ha s o bserved tha t what the Calvert Cliffs decision did was.o " suddenly shock the Commis s ion. in t o r ealiz in g that the regulatory program could not be a neglected child any longer.
[It] was the catalyst that led the Commission to realize that the regulation of nuclear power ha d to be given strong support and ef f ec tive leadership."
In fact, according to Muntzing, Calvert Cliffs gave the AEC an opportunity, i
or
- n excuse, to use time to und ertake a maj or ref o rm and reorga 1-zation of the regulatory branch.
The central objective was in fact not to get back to licensing as soon as possible; it was to understand the environmental and other regulatory needs and get on top of the regulatory program _so that it could be managed.
Earlier AEC management, Muntzing felt, was behind the problems rather than ahead of them.
He spent much time after he be came Direc:t r o f' Regulat ion in discussing regulatory problems with the f ull C ommis sion.
"Those were engaging times," he has stated, "in which we were debating, discussing, resolving basic 8
concepts. and it took a while to do this."
After he case on board, Muntzing began planning for a maj or reorganization of the regulatory branch and began to bring other
-7 3 -
new people in to we rk with him.
Two examples were William E.
Kriegsman, previously on the staff of the Arthur D. Little as a consultant helped develop proposals for Company,'yho regulatory branch reorganization, and Victor Gilinsky, a physicist from the Rand Corporation who had worked there with Schlesinger.
Gilinsky, according to Muntzing, was "one of the principal people involved in some o'f the reorganiration 9
efforts.
Another important appointment was that of Martin R.
Hoffmann,-
previously Assistant General Counsel o f University Computing Company in Dallas, Texas, as General Counsel, succeeding Joseph F.
Hennessey.
S c hle s in g e r, who picked Hoffmann personally, had 10 his appointment in mind even before he was ' worn in as Chairman.
These changes, along with the coming of Chairman S c hle s in g e r and Commissioner Doub, meant that much-of the t o p AEC leadership m
after Calvert Cliffs conois ted of persons who had not been with the agency at the time the decision was handed down.
Undoubtedly these personnel changes affected the substance of AEC's response to Calvert Cliffs.
[
In the first few months of 1972, the reo rganisation o f the regulatory branch proceeded in two maj or phas es.
On January 31, Chairman Schlesinger announced that the AEC had taken steps to improve its safety snd environnental reviews of a pp lic a t io ns for construction permits and operating lic ens es for nuclear power plants.
Ac co r d in g to Schlesinger, the major emphasis
. of the altered organisation would be:
(1)
Ad d itional review of environmental and 2
safety issues on a functional basis and less review on a proj ec t basis, resulting in more comprehensive and consistent treatment in each review and in parallel rather than sequential review of issues.
(2)
Additional support
.'o r plannin g, training, scheduling and programming in order to develop effectiveness and effictancy.
2 (3)
Additional emphasis on the development of standards, codes, c r it e r ia and saf ety guides.
Schlesinger's announcement also summarized organizational changes in the Divisions of Reactor Licensing, Reactor Standards, and i
11 Radiolo gic al and Environmen tal Prot ec tion.
4 In April, 1972, the second phase in the reorganization of the regulatory branch occurred, reflecting the continued impact t
of Calvert Cliffs.
In announcing the changes, Chairman S c hlesinger i
indicated that they would provide Director of Re gulation Munt:ing "with the organizational s truc ture and the highly qualified personnel needed to carry out more efficiently our responsibili-ties to the public in protecting health and safety and the environment, and also reduce the time required to arrive at decisions in the licensing p r o g r am. "
Three maj or new units i
replaced seven existing regulatory divisions.
The Dircctora:e of Regulatory 9tandards was to be responsible for the d evelo pnen t of i andar.; for nuclear power plants and for use of 11 aa i radioac tive ma terials.
The Directorate o f Licensing, t,a i argest divirion, was responsible for staff review ac d p rocess ing o'
-7 5 -
-l plant, radioactive materials, and reactor o p e ra tor lic ens ing.
The Directorate of Regulatory Operations was charged.with the-12 license inspection and enforcement program.
As a result of the work involved in implemen ting b o t h the-- Ccivert c'.iffs decision and this reorganization, the regulatory staff doubled i
in size over a two year period, from about 600 to 1200.
There was an even greater percentage increase in the cost of regulation, a
from $15.7 million at the time of Calvert Cliffs to $46.5 million 13 in the 1973 fiscal year.
Chairman Schlesin$er reported at a Senate hear in g in i
March, 1972, that more than two hundred persons from the AEC and its national laboratories vera then involved in the r ev iew,
preparation, and processing of environmental statements.
As Schlesinger put it, "The impact in workload-can be illustrated by the fact that the manpower effort of about one-hali a man-year per case in NEPA review before Calvert Cliffs has increased 14 six fold at this time."
Al thou gh some cf the increases in personnel and expenditures were due to the natural expansion in the number of +uclear plants in the early 1970s, a si g nif ic an t p o rt ion can be' explained as a direct response'to the ex p and e d regulatory workload occasioned by the Calvert Cliffs decision.
While the development of new NEPA regulations. in response to the Calvert Clif fs decision and the reorganization of the regulatory side of the AEC received priority in the last half of 1971 and the early months 4
J
1
. I of 1972, there were also efforts to end the hiatus in nuclear plant licen-sing.
One example was the AEC response to the suggestion by the Calvert Clif fs court that the agency consider halting construction of nuclear plants then underway pending. completion of the mandated NEPA review.
Shortly after the Calvert Cliffs decision, the AEC asked licensees to show cause shy their construction permits or operating licenses should not be sus-4 pended pending completion of the expanded environmental review ordained by the court.
By December,1971, all of the show cause statements requirdd from utilities owning affected nuclear power plants (fif ty-three reactors e
at thirty-six sites) had been received and evalua ted.
All the affected reactors except eight were cleared for continued construction oroperation.
The exceptions were Brunswick 1 and 2 in North Carolina, Diablo Canyon in California, Three Mile Island 1 and 2 in Pennsylvania, Hutchinson Island 1 in Florida, and North Anna 1 and 2 in Virginia.
In each case, the AEC suspended the clearing of rights-of-way and construction of transmission 15.
Lines pending completion of environmental reviews.
Nucleonics Week took a somewhat skeptical view of the AEC's handling of the show-cause procedure.
Referring to the utility responses, Nucleonics Week wrote:
The documents could almost all have been written by the saee person.
Typically the documents are about 30 pages long and in narrative style with backup data in appendix or tabular form.
Far less work and thinking appears to have gone into their production than was put into the environmental im-pact reports that utilities have been submitting to AEC since last March.
Most of the show-cause responses devote far more space to the finan-cial and power-availability disruption that would be
)-
caused by suspension than to the environmental ef fects L
.. of suspension or other ef fects.
In sum, the show-cause responses are heavy on assuring the Com-mission that nothing but harm would result from sus-pension, but few admit even the possibility of en-vironmental impact if licenses and permits are allowed to stand,16 This evaluation of the show-cause responses and-the AEC handling of them was perhaps somewhat unfair in that it failed to reflect the AEC's rather 4
clear willingness after the Calvert Cliffs decision to accept and react positively to its environmental responsibilities.
But it is clear that the AEC wanted to move ahead with nuclear plant licensing as expeditiously as I
possible, consistent with NEPA and the decision of the court.
What has been suggested in the foregoing discussion of the Calvert Cliffs case and its immediate af termath is that the Atomic Energy Commission's general respcase was positive:
the decision would not be appealed; the t
AEC would consider all environmental questions in its reviews; the nuclear industry was instructed to be responsible and mature and not to count on coddling by the AEC; and therregulatory staf f was reorgani:ed and expanded to me e t the Commission's environmental responsibilities.
However, by the end of 1971, partly because of another judicial decision, the Commission sought some relief in the form of new licensing legislation.
To some observers this legislative activity looked like an AEC ef fort, after all, to avcid the full sweep of its environmental obligations.
On December 13, 1971, Judge Barrington D. Parker of the United States District Court for the District of Columbia, issued an opinion in the Quad i
Cities cases.
These suits originated a few weeks earlier, when the Izaak Walton League of America and others and the State of Illinois and others filed against the AEC, challenging the Appendix D regulations of Septemoer 9, 1971.
The suits had two objectives:
to declare invalid the } EPA
i
- 7 8-regulations because they themselves were not accompanied - by an environmental impact statement; and to prevent the AEC from issuing, under Appendix D, an interim operating license for the Quad Cities nuclear power plant, jointly owned by Commonwealth Edison Company and Iows ~.llinois Cas and Electric Company, uncil preparation and distribution of a full NEPA impact statement.
A motion for a preliminary injunction stopping AEC from issuing the interim 2
operating license until it had prepared and distributed the environmental 17 impact statements accompanied each suit.
In deciding the consolidated cases, the court, claiming it lacked jurisdiction, dismissed the first count relating to the AEC's failure to issue an environmental impact statement for its September, 1971, Appendix D.
The court pointed out that Federal law expressly sua. ad that the United 4
States Court of Appeals had exclusive jurisdiction to review AEC's Appendix D regulations.
On the second count, seeking an injunction against issuance of an interic operating license for the Quad Cities plant without a NEPA impact s ta tement, the court held for the plaintiffs and told the AEC it-could neither issue nor deny the interim operating license.
1 Judge Parker summarized the crux of the issues in his findings of fact.
The utilities had applied on October 12, 1971, for a-partial license to operate at 50% of full pcwer.
Operating at this rate, the plant would discharge water into the Mississippi River, between Decemoer,1971, and March, 1972, at a temperature L1.5 above its temperature when taken into the plant's cooling system.
The discharge flume would raise the river's temperature more than 5 at points 4000 feet downstream from the discharge-point, or 100 at o00 feet from the discharge point.
The discharge and the
accompanying rise in water temperatures, according to the court's findings of law, might inhibit egg production in some species of fish, stimulate
.sarly spawning, and cause hatching of fish when food supplies were unavail-able. As the court stated, The proposed disharge will violate both present and proposed Illinois water temperature regulations for the Mississippi River,- as_ well as suggested federal criteria for the maintenance of a well-balanced fish population in the Mississippi River by raising water 4
temperatures at points beyond a 600 foot mixing zone in excess of 50 over naturally occurring temperatures, and in excess of monthly maximum temperatures allowed for January, February, and March (the duration of the proposed permit).
The court concluded that the plaintiffs had made a substantial showing of the likelihood that AEC processing of a 507, operating license without an environmental impact statement was a violation of the National Environ-mental Policy Act.
In effect, the Quad Cities plant would have to remain shut down.
Judge Pcrker "noted that delay in operation of Quad Cities involves loss of revenues and possible ' black or brown-outs' next summer.
The argument that the facilities are needed-to abate air pollution from the Iowa-Illinois coal-ourning generating units is unconvincing.
The people served by Quad Cities will not be subject to irreparable injury due to a ' black or brown out' but may have to carry on their conscience the 18 further degradation of one of the greatest rivers in the world."
The full scope and significance of the Quad Cities decision was not immediately discernible.
Reporting to the Commissioners, AEC General Counsel Martin R. Hof fmann noted that while the court's injunction related only to i
Quad Cities, "the ruling may have broader applicability, since in principle
i
, it appears to question all the provisions of our NEPA regulations which permit the AEC to issue interim licenses prior to the completion of full NEPA review, in certain cases where plants are fully constructed and where 19 safety reviews have been completed."
Nucleonics Week observed that the decisior. might become "a =ajor thres.t to the whole Appendix D environmental regulations." The paper pointed out that Judge J, Skelly Wright, who wrote the Calvert Clif fs decision, might get the case if the AEC decided j
to appeal.
"According to one source, Wright could use the appeal as a forum to try the Appendix D regulations; to judge whether AEC fulfilled the terms 20 of his ruling last July."
Significantly, the General Counsel of the Council on Environmental Quality had advised the AEC that the CEQ considered the Quad Cities challenge 7
to be without merit, and that the AEC-regulations were consistent with the 21 Council's guidelines on NEPA implementation.
It is debatable whether the CEQ's opinien influenced the AEC on December 23, 197L, when it announced I
that it had asked the Department of Justice to appeal the Quad Cities in-junction.
Referring to the Federal Power Commission's concern about possible imminent power shcreages, the AEC said:
"A Court decision suggesting that the interim licensing provisions of these regulations are not acceptable raises grave questions as to the pricatical application of the National Environmental Policy Act to the nuclear power industry during this tran-22 sitional period."
Apparently the Quad Cities decision upset Chair an Schlesinger.
Nucleonics Weak wrote that "Schlesinger's view is *. hat the Calvert Cliffs decision was, by and large, a constructive step fcrward for nuclear power.
- - However, he regards the Quad Cities decision, if it is allowed to stand, as highly destructive.
Its effect, he believes, is to totally negate assurances given by AEC to the Federal Power Commission and to the industry on de-23 livering the needed energy through low-power, interin licensing."
Testi-fying at a Senate connittee hearing in March,1972, Schlesinger reviewed the AEC's response to Calvert Clif fs and the substence of the Quad Cities case.
Referring to Quad Cities, he said:
4 A
Let me repeat--the problem here seems to be an overemphasis 4
on procedure with little regard for the substantive issues involved.
The full NEPA statement designed to appraise t,he full-power effect of a plant over a number of years would not seem to be a necessary prerequisite for a much shorter period of plant testing possibly culminating in less than full-power operation, the whole of which will last but a few months.
Particularly is this so when a-finding of no irreversible ef fects is made, when there is a strong public need, and when an environmental review coextensive with the action sought to be taken is performed.24 1
The brief prepared by AEC and Justice Department attorneys for the Quad Cities appeal before the U.S. Court of Appeals for the District of Columbia Circuit further clarified the AEC argument.
The interim licensing procedures, the brief argued, were not "an attempt to short-cut the require-ments of NEPA," but rather they constituted a "' rule of reason' fashioned to provide meaningful environmental review and to assure the practical workability of NEPA for a limited (but critical) class of facilities whose timely operability can bear heavily on the public interest." The brief concluded:
In sum, there is nothing in NEPA or in Calvert Cli:fs which commands the Commission to blind itself to the physical existence of a fully cons.ructed nuclear power
\\^
l
. plant, to ignore the public interest--perhaps urgent public need--which may be served by timely commence-ment of certain operational activities, and to disre-gard the possibilities for this being done consistent with appropriate regard for environmental values.
Coming to grips with these considerations is what the Commission's interim licensing provisions are all about. We submit this makes good sense and good law as well.25 The AEC argument, therefore, clearly reaffirmed the earlier decision to accept and comply fully with the requirements of the court in the Calvert Clif fs decision.
But the Quad Cities verdict, if translated into permanent l
procedures, would mean additional substantial delays in issuing operating licenses, in some cases forcing completed nuclear power plants to remain f
idle.
The AEC felt this was going beyond both NEPA and Calvert Cliffs, and hence the decision to appeal the Quad Cities matter.
However, be fore the Court of Appeals considered the AEC challenge, a negotiated settlement eliminated the immeciate problem.
On March 29, 1972, Commonwealth Edison l
l and the Iowa-llinois Gad and Electric Company reached an agreement with Illinois Attorney General William J. Scott and other litigants.
The ucil-ities agreed to add a spra, canal cooling system at the Quad Cities plant, at a cost of $20,000,000, to be operational by May 4, 1975.
Un 1 this l
system was ready, the utilities promised to construct within five months a diffuser pipe to discharge the plant's condenser cooling water into the Mississippi River.
On the basis of this arrangement, the D.C. Dis trict Court lif ted the injunction and the AEC issued an interim license for 207.
26 operation on March 31.
A few weeks later, the AEC issued an amended I
license for Quad Cities 1 and 2, authorizing them to go to 257. of station i
load immediately, to 62% "when, in the judgment of the system despatcher,
t.
total demaal is likely to exceed available capacity and other power sources are not available to meet system load demand," and to 90%
of full powar "to meet load demand after exhausting all other means reasonably 27 available."
Thus the immediate crisis over interim licensing was over and Quad Cities was free to operate, under certain conditions, at almost -
full power.
There was, however, no assurance that another challenge to the Appendix D interim licensing procedures would not develop in the cases of other plan ts. On January 26, 1972, more than two months before the Quad cities compromise, the Commissioners decided to recommend an interim licensing 28 law.
Indeed, the Commission had considered the introduction of a licensing reform bill even before Quad Cities, as early as September, 29 1971.
Nucleonics Week reported in mid-October, 1971, at the same time Schlesinger delivered his famous Bal Karbour speech, that the AEC was working on a package of legislative proposals, representing its " response to the utility-industry warnings that AEC's allegedly overzealous embracing of the Calvert Cliffs decision will bring long and costly delays in getting nuclear plants on line, with concomitant threats of brownouts and black-outs around the country." But the paper also pointed out that Schlesinger supported the legislative proposals being discussed because he believed 30 the industry had a right to expect e f ficiency in the licensing process.
The Quad Cities decision caused the Commission to move -ahead rapidly with an interim legislative propocal, leading to their proposed bill.
The i
Commission received a draf t interim licensing bill from General Counsel Hof f= ann on February 3, 1972.
Hoff= ann described the draft bill as j
l
t r-'o,
i
" designed to meet the potential crisis occasioned by an adverse outcome of 31 the Quad Cities litigation."
Utility representatives, meeting with JCAE staff members on February 12, 1972, and in later hearings testimony, made 32 clear their support for the interim licensing bill.
On March 3, 1972, Chairman Schlesinger sent to the Congress draft legislation to amend the Atomic Energy Act of 1954. A section of the bill vould authort e ene Commission to.llow interim operation of a nuclear plant before completion of the environmental impact statement required by Section 102 of NEPA.
The interim licenses, for no more than 207. of full-power unless the Commin. ion authorized higher power, could be issued only where "there-exists an emergency situation or other situation requiring the conduct of the activities in the public interest." This provision would apply only to i
proceedings in which an operating license application had been filed before September 9, 1971.
No interim licenses could be issued or extended af ter 33 June 30, 1973.
The Joint Committee on Atomic Energy held hearings on two similar interim licensing bills on March 16 and 17,1972.
Testimony from utility and nuclear industry representatives stressed the power crisis which they believed would engulf the nation if ready-to-operate plants were not brought on line i= mediately. William 3. McGuire, Chairman of the National Electric Reliability Council (NERC), outlined the results of his organization's study of electrical power system reserve requirements and related problems.
McGuire argued that "on the basis of these analyses, one can only conclude that the adequacy and reliability of electric power supply is in serious jeopardy.
The ef fect on the Nation's health and welfare is obvious.
-t
' l i
i
.. Legislation is the only vay we see open to reduce the hazards to which the 34 i
Nation is exposed."
Shearon Harris, Chairman of the Edison Electric Institute and a prominent nucicar utility executive, argued that Cal vert Clif fs and Quad Cities had helped create a national power crisis, which threatened acute power shortages.
In supporting the interim legislation, 35 he concluded, "I don't think we have much time."
Environmentalists who testified at the hearingn criticized what they believed was the AEC's interest in side-stepping its full NEPA responsibili-ties.
Joseph V. Karaganis, Counsel for the Izaak Walton League and others in the Quad Cities case, argued that the interim licensing proposals would greatly weaken NEPA.
"I suggest," Karaganis stated, "that if you open the door here for the Atomic Energy Commission, watch out for the Department of the Interior, watch out for the Forest Service, watch out for any other agency that has similar, what they believe in good faith, needs to avoid NEPA."
Karaganis added that the Izaak Walton League-was not against opera-tion of the Quad Cities plant, but that it wanted NEPA requirements fully 36 implemented before plant start-up.
Myron N. Cherry, a well-known environmentalist lawyer who appeared at the hearings on behalf of several environmental public intererat groups, argued on interesting grounds that the interim licensing legislation was unnecessary:
We assume that one of the Commission's valid objectives i' to provide for prompt hearings and to arrive at a r solution of the controversy as - quickly as is possible, consistent with adequate opportunity for hearing for all parties.
I and others have pointed out time and again to the Commission that the Commissioners' basic problem has been awkward administration of its licensing hearings.
9 v--
~,,
~-
.. Thua aajor delays have come from the inability of the Commiss!.on to respond quickly to the demands of con-tested litigation, including the release of documents, the providing of inforcation through interrogatories and witnesses and the running of hearings by persons com-petent and knowledgeable in the field of administrative law.
It is to these objectives which the Commission should address itself and this Committse need not enter-tain legislation in order to permit the Commission to redefine its licensing procedures in a fair manner to accomplish these objectives.37 Among the Congressional opponents of the interim licensing legislation was Senator Mike Gravel of Alaska.
In a news release he criticized the JCAE for holding hearings on legislation to speed up the licensing of nuclear plants rather than considering a halt in licensing until plant safety was assured.
"In ef fect," Gravel alleged, "this legislation would permit the utilities and the Atomic Energy Commission to side-step recent court 38 decisions won by environmentalists."
Representatives Jonathan Bingham, Lester L. Wolff, -and John G. Dow, all of New York, criticized what they thought was an ef fort to weaken environmental reviews and also raised questions about the safety of nuclear plants.
Bingham claimed the licensing legislation before Congress was " riddled with many unwise and deleterious provisions" and that granting an operating license prior to completion of a final environmental impact statement was an " inexcusable denigration of national environmental policy," attributable r, pressure from utility 39 companies.
Dow suggested that the JCAI really ought to be conducting hearings "on whether, af ter 17 years of spending vast sums on the peaceful l
40 atom, the early promise of nuclear energy has been fulfilled."
1 1
Chairman Schlesinger presented AEC's case for interim licensing.
Af ter referring to the Federal Power Commission's estimate of new 2
generating needs for the su=mer of 1972 and the winter of 1972/1973,
.- -..l
s
. Schlesinger said that the AEC was attempting 4
. to achieve a delineation in law of the regulations which the Commission adopted after the Calvert Cliffs decision last summer.
We have totally embraced Calvert Cliffs. We have no prolem living with Calvert Cliffs.
The regulations of September 9 were tough regu-lations. We have a problem which is a limited problem, and I want to stress that.there in only one court decision thatighibitsusat the present time, and that is Quad Cities.1 Chairman Russell Train of the Council on Environmental Quality and William D. Ruckelshaus, Administrator of the Environmental Protection Agency, both buttressed Schlesinger's position.
Train claimed that CEQ had " reached the conclusion that the best interests of NEPA would be served if Congress were to confirm the conditions under which urgent needs for power can be met by a temporary transitional authority to bring certain nuclear plants now under construction into limited operation pending full NEPA review."
Both Train and Ruckelshaus showed strong support for NEPA, but stressed the nation's need for additional electricity and the temporary nature of the 42 proposed interim licensing procedures.
When the House Co=mittee on Merchant Marine and Fisheries reported favorably on the legislative proposals, it applauded the AEC for accepting the Calvert Cliffs decision.
According to the Coc=ittee Report, " Quad Cities held that the AEC mus t conform to the requirements of NEPA, and the AEC agrees, adding only the qualification, in effect, that it mus; and shall do so to the fullest extent possible.
NEPA is not a pro-crustean bed against which agency programs must be measured and performance rigidly judged; it is rather a flexible tool designed to assist agency decision-maktrs by providing a set of standards for the evaluation of more
. 43 traditional agency missions and objectives."
2 By late May,1972, both houses of Congress had passed a bill derived from the proposal put forward by the AEC in March.
Recommending that t he.
President sign it, Schlesinger noted that the bill would provide AEC with 4
"an enhanced deg;ee of flexibility and protection from judicial attack which can prove useful in licensing nuclear power plants needed to moet 44 the peak energy requirements of 1972 and 1973."
The President signed f
the bill on June 2, 1972.
Some of the AEC's contemporary critics, and some more recent observers, interpreted the new law and the AEC support for it as an effort, in the final l
analysis, to return to a pre-Calvert Clif fs licensing framework, when environmental considerations were secondary. A writer in Science magazine in April,1972, suggested that the AEC, "under pressure from the joint committee and the FPC," was pushing legislation to circumvent both Calvert 45 Clif fs and Quad Cities.
The new law, according to a recent writer, "markad a turning away from the Calvert Clif fs-decision and the rc:umption i
of the old, laisse -faire policy toward the thermal-pollutian ef fects of 46 nuclear power plants."
This interpretation appears too extreme.
Chair-man Schlesinger, effactively and honestly representing AEC policy after Calvert Cliffs, insisted that there would be no return to the old days of environmental unconcern, that the lessons of Calvert Clif fs were permanent.
But as Schlesinger often pointed out, there it ould be a proper balancing 4
in the public interest; the need for power had to be measured against environmental concerns as mandated in the National Environmental Po.licy Act.
It is interesting to note the reactions to the intertm legislation of
=..
c' -) !
J 1.
I L. -
l-4 various principal of ficials of _ the' Atomic Energy Commission.
Howard'Shapar, Assistant General Counsel, observed:
"I think.che main objective oE the:
e l
legislation was not to have a fully constructed plant sit idle and it was
.i f
t.1 attempt to conc'lude that-kind - of' a situation.- -I don' t' think the sorpose j
was to water down the National Environmental Policy Act, 'but. I. thin.
47 i
reasonably can be said that_maybe:that was one of the byproducts."
f:
Commissioner Doub, while noting that James Ramey and many nuclear, industry i
representatives pushed _for new ' licensing legislation and that Quad Cities-i was the catalyst for-the effort in 1972, felc1that.there was :no< compelling-i case for the proposed law and that the AEC'"was using up a. lot _of chips" in 48 l'
supporting it.
Director-of Regulation Muntzing has recently: stated his :
9 i:
opinion-that the interim licensing legislation, proposed because of. the Quad V
Cities decision, was actually unnecessary.. The legislation, he noted, was proposed as a' strategic move; whileJthe AEC had been responsive to Calvert 49 Clif fs, the Commission was not prepared "to toil over _ and die."'
- Anthony-Roiscan, the successful lawyer /for the plaintiffs in-the Calvert -Clif fs
{-
litigation, does not think the interim licensing law -was an ef fort ' to-get around Calvert Cliffs.
Schlesinger, Roisman feels, believed he had gone a l
long way in his positive -response to Calvert Clil_ ;p Quad C1' ties provoked j
him to propose the new bill.
But, accordingsto-Roisman, it would.have-taken 50-l such more than this legislation to subvert the Calvert Cliffs mandate, p
p i
l l
~
j
J t
)
1 Chapter VI Conclusions 4
Speaking about the environmental movement and the AEC's environmen-tal responsibilities in March,1972, Director of Regulation L. Manning Muntzing made the following observation:
4 The emergence of nuclear power as' a viable energy source at the same time as a reawakening of concern for the environment is fortuitous.
The advances of our society have, in too many instances, been achieved at the expense 4
of environmental quality.
Nuclear energy is now only a fraction of the total energy production in this country, but by the year 2000 the expectation it that it will com-pose 507. of all electrical energy generated.
The pace of nuclear power and environmental protection will advance together.
The grewth of the. nuclear industry may be unique in that it will expand in. harmony with the closest scrutiny of its impact on the environment and the employ-mant of means to minimize that impact.
Energy and the environment cannot travel separate roads.
They are joint partners in the achievement of common, not competing, public objectives.l Muntzing's statement, made seven months af ter the Calvert Cliffs decision,.
reflected his views on the impact of that decision on the nuclear power 4
industry and on the work of the Atomic Energy Co= mission.
The' Ca lve r t Cliffs decision, and the AEC's positive response to it, seemed to indicate by 1972 that future nuclear power development would have to be sensitive to the environmental concerns of the American people, particularly as embodied in the National Environmental Policy Act.
As this study shows, the AEC in 1970 and 1971 revised extensively its regulations for licensing construction and operation of nuclear power plants, to take into account both XEPA's provisions and the court's interpretation of those provisions in the Calvert Clif fs decision.
NEPA and Calvert Cliffs did not diminish
1 s-i-
91 -
L i
i the commitment of the AEC to carry forward with its legislative mandate,.
4 L
to license nuclear power plants.
embodied in the Atomic Energy Act of 1954, The AEC made no assumption of incompatibility between enviroomental pro-.
f tection and nuclear power. Muntzing's statement as quoted above makes this point clearly.
i The relationship between the impact on the nuclear power industry of
~
1 l
environmental regulations emanating from NEPA and the Calvert-Clif fs -de--
ision, and the developing-energy " crunch" in ene United States in the 1970s, l
r l~..
Huntzing's ' statement assumes the necessity for expansion of must be noted.
nuclear power production;- in his view,' 50" of all electric power generated 4
0 in the United States by the beginning of the 21st century would be nuclear.
i j.
In 1972, neither the AEC nor the nuclear industry anticipated that envir-onmental~ concerns and regulations, even though they _ had to_ be reckoned with, t
would slow the pace of nuclear power -development in thellong run.
Nor did 4
4 l
they anticipate the emergence of the Organizationf of Petroleum Exporting.
I Countries (OPEC) 'during and af ter the fourth Arab-Israeli conflict of i
E 1973, as a major influence on international energy supplies. ' Certainly 4
l by 1974 it was reasonable to. expect a speeding up of the developeent of nuclear power as a means' to supply electrical energy, especially -in those I
countries dependent on Middle Eastern oil. _. However, -af ter reaching a peak in the mid-1970s, orders for new nuclear power plants declined. pre-g cipitously.
This happened even though the international energy crisis ~
intensified, because of continuing political tur= oil in-the Middle East-Persian Gulf region and the tremendous increase in the cost of oil, due mainly to OPEC pricing policy.
4 4-I
_. _ _. ~..
r-
~
-- i e
-92.
- i i
Several factors would have'coibe cited to account for the remarkable slow-downintheexpansionofthenuclearpower[industryintheUnited States after about 1976. The rapidly growing rate of ~ inflation ~, ' to which i
i the rising cost of-petroleum contributed, was a major.factorfin a vast-4
[
increase in the cost of a nuclear power plant in the United States The 1
costs of construction materials and labor mushroomed during: this period,:
i i-i reflecting the high rate of inflation.
Also' contributing to-skyrocketing i
l plant construction costs was another aspect of the:-Federal regulatory l
l-process administered by the AEC (af ter 1974, the_ NRC)--safety regulations.
The AEC, of course,. had always considered nuclear -reactor safety as ' the heart i
f of its regulatory responsibility.
Many AEC people' felt, both before and-I after Calvert Cliffs, that the legislatively and judicially imposed environ--
{
mental responsibilities threatened the primacy of this task.
The March, i..
i-
.in-Pennsylvania 1979, accident at -the Three !ille Island nuclear plant f.
chrust the question of reactor safety to the forefront again, and it also raised prr' sing environmental questions.
Nuclear power ~ plant licensing 4
1 stopped for nearly a year and a half af ter the Calvert Clif fs decision-in 1971;- a sisilar period elapsed af ter.Three Mile IslandL before - the NRC :
i l.
could resume the.-licensing process.
The pertinent point, within the context t
1 of this study, is that the ' industry costs of' environmental protection and 8L regulation af ter Calvert Cliffs contributed significantly to lessening the n-rate of growth in the nuclear power industry.
Nuclear energy, because of vastly increased costs as well as heightened environmental and safety =
concerns, appeared to scme'to be less viable as a solution to the. deep-a i
ening energy crisis, present and future.
Muntzing's prediction that 507.
i) -
4
- ~
y--
,4 y
.-_..,...-,.e.mm,,em,
..m,r,.,
. - ~ - -
. of the nation's energy supply in 2000 A. D. would come from nuclear plants appeared overly optimistic by this time.
Another significant aspect of the Calvert Cliffs decision was its impact on the organization of the AEC.
As explained above, the 1971 decision came at a time of changing leadership on the Commission--changes that were due to multiple factors, but importantly including the pressures of envir-onmental issues. When President Nixon appointed James Schlesinger and William Doub to the Commission in 1971, their positinns on environmental issues, or perhaps in the case of Schlesinger his lack of identification one way or the other with such issees, were taken into consideration, although to what extent it is impossible to calculate.
Schlesinger and Doub, the two most dominant member s af ter they joined the Commission in August, 1971, took the lead in determining both the agency's response to Calvert Clif fs and the general direction the AEC took thereaf ter.
It is conceivable that if the Commission memoership had not changed at this time the response to Calvert Cliffs might have been significantly different.
Commissionar James Ramey favored judicial appeal and did not welcome the new Appendix D regulations; Chairman Seaborg's position, had he remained on the Commission, seemed similar to Ramey's.
Commissioners Larson and Johnson probably wauld have followed the Seaborg-Ramey lead.
Thus the Schlesinger and Doub appointments changed the Commission's nature and were instrumental in determining the willingness of the agency to accept expanded NEPA responsibilities in the wake of Calvert Cliffs.
Schlesinger and Doub also were responsible for bringing in other top management persons--such as Director of Regulation Munt:ing and General unsel Martin Hof fmann--who l
e
. agreed with them on how to deal with Calvert Clif fs.
The Calvert Clif fs decision also led to significant changes 1n-the
~
l composition and functions of the AEC regulatory staff.
Be fore 1971 a relatively small and secondary portion of total AEC personnel, the regu-latory branch underwent a substantial reorganization and expansion, under the guidance of Muntzing af ter he came on board in the fall of 1971.
The number of people working in the regulatory branch increased severalfolc, i
and regulatory work assumed much more importance than earlier in the total AEC operation.
Much of the explanation for these significant changes lies i
in the Calvert Clif fs decision and the Commission's positive acceptance of i
it.
Certainly one of the more important results of the Calvert Cliffs case was its impact on a long-standing debate about the two aspects of the Atomic Energy Commission's work relating to civilian nuclear power--the develop-mental and regulatory aspects.
Ever since the Atomic Energy Act of 1954
+
authorized the AEC to license a private nuclear power industry, this question had been debated:
_ould or would the AEC adequately reculate nuclear power, especially its safety aspects, while promoting its develop-i ment? From time to time between 1954 and 1970, this question bad been raised in Congress and elsewhere.
The passage of the National Environ-mental Policy Act, imposing environmental protection responsibilities on the AEC and other Federal agencies, and especially the Calvert Cliffs decision, raised the question anew.
During Congressional hearings af ter Ca lve r t Clif fs and in other discussions, the old suggestion that the t
AEC's regulatory and developmental functions were incompatible was voiced J
95-again. Certainly Calver:_ Clif fs contributed to the legislative ef fort 2
which culminated in the passage of the Energy Reorganization Act of 1974.
This law, signed by President Gerald F. Ford on Octobcr 11, 1974, abolished the Atomic Energy. Commission and created two new agencies, the Energy Research and Development Administration OERDA) and the Nuclear Regulatory Commission (NRC).
ERDA's functions included handling the deveicp-mental aspects of the old AEC's work.
The Nuclear Regulatory (Jamisalon, as its name indicates, was to be a separate agency concerned with the 4
regulation, including licensing,- of nuclear power plants and other nuclear facilities, 4afety and environmental regulation was to be an important part of its work.
In a sense, the new arrangement which assigned regulation of the nuclear industry as a primary function to the NRC echoed the central emphasis of Chairman Schlesinger's '.971 speech at Bal Harbour:
the era of government coddling of the nuclear industry should end and the regulatory aspects of the AEC's work should becoce mora prominent.
Speaking on an early version of the Energy Reorgani:ation Act in 1973 before the American t
Bar Association, Commissioner Doub outlined the problem clearly, with direct reference to Calvert Cliffs:
A primary purpose of the proposal is the separation of the Federal regulatorv responsibilities over nuclear power from what has come to be known as the " promotional" re s pons ib ilit ies-- tha t is, the mission-oriented pursuit of civilian nuclear power projects such as the breeder reactor ind controlled nuclear fusion.
Particularly since the Calvert Clif fs decision of 1971, the AEC has moved decisively to assure that its dual operational an/ cegulatory functions do not prejudice the indepen-dent judgment of decision makers on tough regulatory issues.
While I feel we have been successful, I tnink a
s
. it is equally clear that we continued to be burdened by a legacy of public sentiment which still perceives a lack of regulatory independence.
The Administra-tion's proposal to create a 5-member Nuclear Energy Commission (later the NRC) would finally end the lingering debate.3 The passage of the Energy Reorganization Act of 1974 and its im-plementation beginning in January,1975, had potentially profo' tad effects on the nuclear industry--although the changes symbei.ized by the emergence of an agency intended primarily as a regulatory be dy had been occurring for some years.
It was clear, as Schlesinger 4,erted at Bal Harbour in 1971, that the industry would have to stand alone without significant promotional support from the government's primary nuclear regulatory agency and that the delays in lecensing and the industry regulatory costs would both increase significantly. Without Calvert Cliffs or something similar to it, the nuclear industry might have been more stable after 1971 and thus better able to cope with the inflationary pressures that descanded thereafter.
This is not to say, however, that the very slow pace of expansion in the nuclear power industry that set in even before Three Mile Island in 1979 would not have occurred without Calvert Clijfs.
4 As to the significance of the Calvert Clif fs decision in environmental law, its initial and long-range impact was deep.
As Richard Andrews,
Richard Lirof f, Frederick Anderson, and others who have written about the National Environmental Policy Act have pointed out, Calvert Clif fs was the first major interpretation of NFDA.
Its influence in subsequent -de-4 cisions, as a body of case law developed, continued to be great.
3ecause this study does not extend beyond 1972, detailed consideration can not be given to the continuing impact of Calvert Clif fs.
Certainly its central
points have undergone some nodification by later judicial decisions, changes in Federal law, and agency practice. Whether Federal agency implementation of NEPA, ~ as interpreted by Calvert Clif fs and other sources, has been totally thorough and ef fective in the lase. decade is a question that might be,and in fact is, debated.
That question also is beyond the-scope of this study.
4 i
I 4
J n
d i
I' 1
1 i
h'
m.
. _ -.._.~__;,
n.-
NOTES I"
Chapter I g
i-[
1.
From the Foreword to Richard.N. L. Andrews, Envi~onmental Policy and-Administrative Change:
Implementation of -the National Environmental
!=
t Policy Act (Lexington, Massachusetts:
D. C. Heath and Co., 1976),
i
- p. xi.
l 2.
Ibid., pp. x1, 4-5, 7.
3..
Ibid., p. 7.
l 4.
Text of the report is printed in James D. Nuse,_ compiler, Legislative i
History (Senate Bill'1075. Public Iant 91-190, 91st Congress,1st Session),1 National Environmental Policy Act of 1969 (2 vols,_ Washington, 1970),_
j II, 1392-1538.
The' quotation is-from p.
(This source cited f
hereaf ter as Nuse, NEPA Legislative His tory).
See also Andrews, snyd.ronmental Policy and Administrative Change, p. 8.
5.
The record of the Colloquium is published in Nuse, NEPA Legislative i
Historv, II, 1302-1391. -The White Paper is in ibid;,- 1539-1563, 6.
Andrews, Environmental ' Pcliev and Administrative -Change,1p.
5;. Richard A. Liroff, A National Policy for the Environment:
NEPA and Its After-Indiana. University Press, 1976),
p.- 5; math (Bloomington, Indiana:
i Luther. J. Carter, " Environmental Law (I):
Maturing Field for-Lawyers
~
j and Scientists," Science, 179 (March 23,-1973), 1205.
[
7.
Liroff, National Policy for the Enviroament, pp.-5,~10;:Andrews, i
a
-Environmental' Poliev and Adminis trative ' Change, p. xv.
8.
Frederick'R. Anderson, NEPA in the Courts:
-A Leeal Analysis of the National Environmental Policy Act (Baltimore :
Resources for the Tuture, Inc., 1973), p. 5; Andrews, Environmental Policy and Administrative t
i
~
m,..,m..cy-,.
m
4 4
99-Change, pr 8-9.
For summaries of NEPA's legislative history, see An-
- derson, NEPA in the Courts, pp. 3-14, and tiroff, National Policy for the Environment, pp. 10-35.
9.
Letter, Wilfred H. Rommel (Bureau of the Budget), to Jackson, April 17, 1969 (entered in the Hearing recced), printed in Nuse, NEPA Legislative History, II, 6-7; statement by Secretary Hickel, ibid., p. 73.
- 10. I,bjg., p. 83.
11.
The text of Executive Order 11472 is in Nuse, jTPA Legislative History, I;..'233.
12.
Quoted in Anderson, NEPA in the Courts,'p. 6.
13.
Ibid. ; Andrewe, Environmental Poliev and Administrative Change, pp. 8-9; Liroff, National Poliev for the Environmtat, p. 16.
/
14.
Cong. P9eord, Senate, July 10,1969, pp. S7815, S7819, in Nuse, NEPA legislative Historv, I, 412, 416.
See also Senate Report No.91-296, July 9,1969 [on S.1075), in ibid., 20-67.
15.
New Hampshire v. AEC, 706 F 2d 170 (1969), cf oted in Steven Ebbin and Raphael Kasper, Citizen Groups and the Nuclese Power Controversv:
Uses of Scientific and Technological Information (Cambridge, Massachusetts:
1974), p.?95.-
St r. also Elizabeth Rolph, Rerulation of Nuclear Power:
The Case of the Light Power Reactor (Santa Monica, Cali-fornia:
Rand Corporation, 1977), p. 45.
For useful documents on the Vermont Yankee case and thermal-pollution, see:
"In the Matter of Vermont Yankee Nuclear Power Co;poration (Vermont Yankee Nuclear Power Station), Inicial Decision," December 3,1967, Appendix 12, pp. 952-964, and the following correspondence:
Senator Edmund S. Muskie to
--.mu_-_-_
m-4a__m__--m__m__
_.___m___m_.-a
__u-
-.. _ = - _ -. - _. _ _ - - _
t e
a
-100-Seaborg, September 20, 1967; Harold L. Price to Muskie, October 23, 1967; Muskie to Seaborg, October 25, 1967; Seaborg to Muskie, November 4, 1967; and Muskie to Seaborg, November 27, 1967, Appendix 16, pp.
977-981, all in Licensing and Retulation of Nuclear Acactors, Hearings Before the Joint Committee on Atomic Energy, 90th Cong.,1st Sess., pt.
2 September 12,13, and 14,1967 (Washington,1968).
In these documents the AEC consistently argued that it did not have authority in the area on non-radioactive thermal ef fects.
16.
John C. Hoyle, " Report of Hearing on Legislation Regarding Environmental Quality Council," attached to Robert D. O'Neill (Director, Congressional Relations, AEC) to Chairman Seaborg and Commissioners, July 11, 1969, aEC/NRC, Lot 8, Box 5.. The Energy Reorganization Act of 1974 (P.L.93-438) abolished the Atomic Energy Commission and replaced it with two new agencies, the Energy Research and Development Administration -(in 1977 absorbed by the new Department of Energy) and the Nuclear Regulatory i
Commission.
When the new agencies began operation in January, 1975, many AEC regulatory records were transferred to NRC.
They have been organiaed by NRC into several lots.
Materials from these records will be cited hereaf ter, as above, AEC/NRC, folicwed by lot and box numbers.
17.
Seaborg to Representative William L. Dawson, Chairman, House Committee on Government Operations, August 4,1969, AEC/NRC, tot 8, Box 5.
Howard K. Shapar, at the time AEC Assistant General Counsel for Licensing and Regulation, has statef that at this time.thert was pressure on the AEC to deal with environmental concerns, which tLi AEC " alleged were not in.
the compass of their statutory charter.
The big case, of ourse,
.. - =
-101-4 was the case involving New Hampshire and the ef fect of this discharge on fish.
The court plainly upheld the NRC(AEC) position under the then existing law."
Shapar interview with Roger R. Trask and Ceorge T.
j Mazuzan, Bethesda, Maryland, August 9, 1978.
18.
" Environmental Quality," Hearings Before the Subcommittee on Fisheries i
l and Wildlife Conserv&tica of the Committee on Merchant Marine and Fisher-1 Les, House of Representatives, 91st Congress,1st Session, May 7, 26; l
June 13, 20, 23, 26, a nd 27,1969, in Nuse, NEPA Le gislative History, a
}
II, 755-1232.
- 19. Andrewc, Environmental Quality and Administrative Change, pp. 10-11; Cong. Recerd, House, September 23,1969, p. H8266, in Nuse, NEPA terislative History, I,
- 20. Andrews, Environmental Policy and Administrative Change, pp. 11, 16-17; Anderson, NEPA in the Courts, p. 7.
21.
Andrews, Eny,jronmental Policy and Administrative Change, p. 12.
f 22.
Liroff, National Policy for the Environment, pp. 11, 18, 104-105 ;
Andtews, Environmental Policy and Administrative Change, p.12, 23.
Cong. Record, Senate, October 8,1969, p. S12111, in Nuse, NEPA Legislative His tory, I, 24.
Liroff, National Policy for the Environment, p. 13,
- 25. Andrews, Environmental Poliev and Administrative Change, pp. 12 13, 26.
Ibid., p. 13.
27.
Cong. Record, House, December 17,1969, pp. H12633-H12636 (the Conference l
Report), in Nuse, NEPA Legislative History, I,
- Andrews, l
Environmental Policy and Administrative Change, pp. 13-14.
.., ~ _ - - -.
-~
e
)
j'
-102-28.
Cong. Record, Senate, December 20, 1969, pp. S17430, S17460 (Muskie's statement), S17462, in Nuse, NEPA Legislative History, 1, 29.
Cong. Record, House, December 23, 1969, pp. H13091-H13096, in Nuse, NEPA Legisla tive His tory, 1,
- 30. Anderson, National Policy for the Environment, p. 9.
31.
The Ramey quotation is from his comments at a conference on administra-tive practice la che Federal government held in Washington in March, 1974, published in Administrative Law Review, 26(Fall, 1974), 401-405, i
Additional information from Ramey interview with Roger R. Trask and George T. Mazuzan, Washington, D.C., June 23, 1980.
32.
Public Law 91-190, 91st Congress.
Chapter I.I 1.
Shapar interview, August 9,1978.
2.
Joseph Heanessey (AEC General Counsel) to W. 3. McCool (AIC Secretary),
with attached discussion paper, " Application ?? 11tional Environmental Policy Act of 1969 to AEC Regulatory Activities," February 13, 1970, l
in Records of the Executive Legal Director, NRC.
Sh; par, the author of the discussion paper, is presently NRC's Executive Legal Director.
3.
"AEC Legal Analysis of the National Environmental Policy Acr. of 1969,"
in Join'e Committee on Atomic Energy, Selected Materials on the Calvert Cliffs Decision, Its Origin and Af termath, Joint Committee Print, 92nd Cong., 1st Sess. (Washington:
1972), p. 16 (hereafter citee as JCAE, Selected Materials on Calvert c ptjs).
This analysis, pp.14-36 of the a
JCAE print, is undated but obviously was written soon af ter the enactment f
-103-of NEPA.
Martin M. Malsch, presently Associate General Counsel of i
the Nuclear Regulatory Comission, and in 1970 a member of the staff of the AEC General Counsel, has indicated that he prepared this un-signed analysis.
Malsch interview with Roger R. Trask and George T.
Mazuzan, Bethesda, Maryland, August 2, 1978. A other copy of the paper, entitled "Anahsis of the National Environmental Policy Act of 1969,"
is attached to Seaborg to Edward Bauser (Executive Ditector, JCAE),
April 17,1970, in RG 128, Records of the Joint Comittee on Atomic Energy (National Archives, Washington, D. C.), Croup 2, Box 269, Folder 3.
(RG 128 will be cited hereaf ter as JCAE Records).
4.
JCAE, Selected Materials on Calvert Clif fs, pp. 30-31.
5.
Malsch inte view, August 2,1978.
6.
AEC Licensing Procedures and Related Legislation, Hearings before the Subcomittee on Legislation of the Joint Comittee on Atomic Energy, 92nd Cong., 1st Sess. (4 parts, Washington:
1971), pt. 1, June 22, 1971, p. 42.
Shaper feels that Ramey, the only lawyer on the Comission at the time, led the AEC in taking a conservative position on NEPA.
Shapar interview, August 9, 1978.
7.
Appendix D--Statement y2 Ceneral Policy:
Implementation of the National i
Environmental Poliev Act of 1969 (Public Law 91-190), 35 F.R. 5463, April 2,1970, copy in JCAE, Selected Materials on Calvert Clif fs, pp.
- 51054, Shapar played a major role along with Marcus A. Rowden, AEC Solicitor, in developing these NEPA regulations.
Shapar interview, August 9, 1978.
8.
JCAE, Selected Materials en Calvert Cliffs, pp. 53-54.
-104-9.
Ibid., p. 54 59.
Cov cil on Environmental Quality, Statements on Proposed Federal Actions Af fecting the Environment: Interim Guidelines, April 30, 1970 (35 F. R. 7390, May 12, 1970), copy in JCAE, Selected Materials on Calvert Cliffs, pp.-45-50; Appendix D--Statement of General Policy and Procedure Implementation of the Natjonal Environmental Poliev Act of 1969 (Public.tev 9.1-190), 35 F.. R. 8594, June 3,1970, copy tu JCAE, Selected ?)j g w, Q. 'crt Clif fs, pp. 55-61.
See also AEC Press Release )$ Ji une 3, '.970.
11.
JCAE, S_ elected Materiale on Calvert Cliffs, p. 58.
12.
Ibid., p. 60.
Shapar has indicated that at the time he thoughtthe NEPA regulations did not go far enough and he anticipated a court challenge.
Shapar interview, August 9, 1978.
Martin Halsch believed in 1970 that the regulations did not have a chance ta the courts.- Malsch interview, August 2, 1978.
13.
AEC-R 178/3, " Congressional Briefing on Emphases in the Regulatory Process," June 18, 1970, AEC/NRC, Lot 9, Bnx 15.
14.
A copy of, Electric Power and the Environment (Wasnington:
USGPO, 1970),
including transmittal letter. Freeman to Lee A. DuBridge (Director, Of fice of Science and Technology), te in JCAE Records, Group 1, Box 39, Folder 3.
See also AEC Press Release #N-173, October 5, 1970, 15.
Holifield and Hosmer to Staborg, September 24, 1970, JCAE Records, Group 2, Box 269, Folder 3.
16.
Seaborg to Holifield, November 27, 1970, ibid.
17.
Editorial, The New York Times, September 30, 1970, included in-
_ _ _ _ = _ _
1 j.
105-a SECY-R 59, "AEC Responsibility for Thermal Pollution.
." October 1,1970, AEC/NRC, Lot 9, Box 15.
]
18.
Letter, Ramey to John Oakes, Editor of the Editorial Page, The New York Times, October 2,1970 (published October 10, 1970], attached to McCool,
" Note for thw File on SECY-R 59," October 7,1970, AEC/NRC, Lot 9, Box 15.
- 19. AEC Press Release #L 22, February 1,1968; Robert D. O'Neill (Director of Congressional Relations, AEC) to Bauser, June 30, 1969, with attach-ment,-initial decision of the Atomic Safety Licensing Board, approving issuing of provisional construction permits for Calvert Clif fs, dated 4
June 30, 1969, JCAE Records, Croup 2, Box 133, Folder 4; Price to Bauser, July 10, 1969, transmitting copies of the Calvert Clif fs con-struction permits dated July 7, 1969, ibid., Group 2, Box 133, Folder 3.
20.
Anthony Z. Roisman, interview with Roger R. Trask, Washington, D. C.,
4 l
June 17, 1980.
L
+
1 21.
Roisman to Secretary, AEC, June 29, 1970, AEC/NRC, Lot 9, Box 1.
i 22.
Ibid.
See also " Background Factual Statement of Events Leading Up to the Calvert C1f.ffs Decision as Excerpted from the Respondents Brief 4
." in JCAE, Selected Materials on Calvert Cliffs, pp. 117-119.
23.
Memo, Price to Commission, July 16, 1970, AEC/NRC, Lot 9, Box 1; memo l
for the file, F. T. Hobbs for McCool, July 24, 19/0, ibid.; AEC Press Release #N-148, August 3,1970.
24.
Roisman, Supplemental Memorandum, November 12, 1970, AEC/NRC, Lot 9, i
Box 1.
See also Public Service Commission of Maryland, Order No. 59140, Noveeber 4, 1970, "In the Matter of Petition of Peoples' Counsel to Require Baltimore. Cas and Electri; Company to Apply for a Certificate
.i
. ~
e.
-c
,.,., ~
-. - >, ~.
~,,
a 106-of Public Convenience and decessity for the Construction of a Nuclear Power Plant at Calvert Cliffs, Calvert County, Maryland, and for an Order to Restrain the Company from Beginning any Construction Thereof Until Approval by the Commission has been Cbtained," ibid.
It should be noted that construction at Calvert Cliffs begain before July 1,1968,-
the ef fective date. of the Maryland law requiring the certificate.
The issue was whether such a certificate was necessary.
The Maryland Court of Appeals and the Public Service Commission decided this question affirmatively.
The Public Service Commission subsequently issued the certificate in January, 1971.
See Nucleonies Week, Vol. 12, No. 3 (January 21, 1971), p. 1.
25.
Memo, Price to Commissioners, November 24, 1970, AEC/NRC, Lot 9, Box 1; letter, Price to Berlin, Roisman, and Kassler, November 25, 1970, ibid.
26.
Hennessey to Commissioners, December 4, 1970, including attachment, Petition No. 24,839, signed by Rotsman, November 25, 1970, ibid., Lot 9, Box 16, 27.
SECY-R 56, " Implementation of the National Environmental Policy Act of 1969 in AEC Regulatory Activities (a discussion paper from the Director or Regulation), October 1,1970, ibid., Lot 9, Box 15.
28.
Ibid.
For further information on the development of Appendix D, see SECY-R 72, " Implementation of the National Environmental Policy Act of 1969 in AEC Regulatory Activities," November 2,1970, and SECY-R 39, " Implementation of the National Environmental Policy Act of 1969 in AEC Regulatory Activities," November 13, 1970, ibid.
29.
SECY-R 98, " Commission's Revised Environmental Policy Statement,"
1
-107-December 3, 1970, ibid.
30.
Ibid.
31.
Ibid.
Maisch says that after the CEQ stated this position, concern within the AEC about legal ramifications of the NEPA regulations collapsed.
Malsch interview, August 2, 1978.
Dinge11's Subcommittee s
on Fisheries and Wildlife Conservation of the House Committee on Mar-
]
chant Marine and Fisheries held hearings in December,1970, on imple-
}
mentation of NEPA by Federal agencies. As his letter to AEC Chairman Seaborg on March 29, 1971, indicated, he was less than satisfied with l
the AEC's environmental regulations and raised many of the issues then being litigated in the Calvert Cliffs case. As he wrote Seaborg, "An examination of the Conmission's detailed environmental statements indicates a lack of depth of analysis and a total failure to conduct thorough studies (or to order such studies) with respect to any environ-mental issues associated with a nuclear power plant.
However, the Subcommittee is impressed with the depth of analysis and study which the AIC and the applicant undertake in preparation' of safety analysis reports.
i Why does the AEC not require equally-thorough examination of the environ-mental issues?" Dingell to Seaborg, March 29, 1971, AEC/NRC, Lot 9, i
Box 15.
Seaborg replied to Dingell, defending th+ AEC, on May 19, 1971.-
Ibid.
See LirofC, National Pol. ;f'r'the Environment, pp. 36-73, for a critical appraisal of the CEQ and its relationship with the AEC during this period.
32.
35 F, R. 18469, December 4, 1970.
This material is included in JCAI, Selected Macprials on Calvert Clif fs, pp. 65-77 (quotation is on pp.
q
.r----r._-
mwr-y,,y
-.. -,.. - - ~.
,m
-h,..-
,,.r en +r e --
y-
=
r w=
m e
~
i
-108-i l
i 72-73).
See also AEC Press Release #N0212, December 4,1970.
The l
details of revised Appendix D are not discussed here because they will be referred to in the analysis below of the Calvert Clif fs decision.
33.
Memo, Hennessey to Commissioners, December 10, 1970, AEC/NRC, Lot 1, Box 16.
34.
Hart to NLxon, November 17, 1970, ibid., Lot 8, Box 7.
35.
Morten to Price, March 25, 1971, ibid., Lot
, Box i
36.
Draft Setailed Statement on Environmental Considet tions. U.S. Atomic Enerr. Commission. Related to the Proposed Ooeration of Calvert Clif fs,
Nuclear Power Plant, Units 1 and 2, by the Baltimore Gas and Electric Company, Docket Nos. 50-317 and 50-318, issued March 10, 1971, ibid.,
4 Lot 9, Box 1; letter, William Kaplan (Special Assistant to the Regional Administrator, HUD, Region II, Philadelphia) to Price, April 19, 1971, ibid.
+
i 37.
Lirof f, National Poliev for the Environment, pp. 82, 96.
f Chaeter III i
1.
Copies of Brief for the Respondents, No. 24,839, and Brie f for the Respondents, No. 24,871, signed by Joseph F. Hennessey, General Counsel; Marcus A. Rowden, Solicitor; Howard K. Shapar, Assistant _ General Counsel, Licensing and Regulation; Shiro Kashiwa, Assistant Attorney General; and Edmund Clark, Attorney, Department of Justice, in AEC/NRC, Lot 9, Box 1.
i I
2.
Roissan interview, June 17, J0.
3.
Ibid.
4.
Nucleonies Week, Vol. 12, no. 9(March 4, 1971), 3, and Vol. 12,-no.
a c-.e
...w.-.,
n
,e,_.
.,,,. y w, o
i
-109-19 (May 13, 1971), 5-6.
Martin Malsch reports that overyone or. the AEC legal staff thought that the AEC would lose in the court.
Malsch interview, August 2, 1978.
5.
Calvert Cliffs Coordinating Committee et al v. A.E.C., 449 F. 2d.
6.
Ibid.
7.
Ibid.
8.
Ibid.
9.
Ibid.
10.
Ibid.
11.
Ibid.
12.
Ibid.
13.
Ibid.
14 Nucleonics Week, Vol. 12, no. 30(July 29, 1971), 1.
15.
Shapar interview, August 9, 1978.
16.
Ramey interview, June 23, 1980, 17.
Rowden interview with Roger R. Trask, Washington, D.C., Augtiet 19, 1980.
18.
Claude E. Barfield, " Energy Report /Calvert Clif fs Decision Requires Agencies to Get Tough with Environmental Laws," National Journal (September 18, 1971), pp. 1925-1933, reprinted in Calvert Cliffs Court Decision, Hearing Be fore the Committee on Interior and Insular Af f airs,
United States Senate 92nd Congress, 1st Session, on Environmental Constraints and the Generation of Nuclear Electric Power:
The After-math of the Court Decision on Calvert Clif fs, November 3, 1971 (2 parts, Washington:
1971), pt. 2, pp. 796-804 (hereaf ter cited as Calvert Cli f fs Hearing, followed by part number),
i
f 1
-110-i l
19.
Roisman interview, June 17, 1980.
i 20.
Barfield, " Energy Report /Calvert Cliffs Decision Requires Agencies to Get Tough with Environmental Laws," National Journal (September 18, 1971), pp. 1925-1933, in Calvert Cliffs Hearing, pt. 2, pp. 796-804.
4 j
Chapter IV 1.
Seaborg delayed his retirement from the Commission in 1971 because he-j wanted to represent the United States at the Atoms for Peace Conference to be held in Geneva, Switzerland, in the fall of the year.
Although
[
he left the Commission in August, 1971, he stayed on until after the Geneva Conference as a Consultant to the AEC.
William O. Doub, interview i
with Roger R. Trask and George T. Mazuzan, Washington, D. C., June i
17, 1980.
4 2.
Nucleonics Week, Vol.12, No. 28 (July 15,1971),. pp.1-2.
3.
Doub interview, June 17, 1980.
Doub says that at the time of his nomina-tion the Nixon people were concerned about his relationship with Vice President Spiro M. Agnew of his home state of Maryland.
Doub says Agnew had nothing to do with his appointment, that he had never discussed i
it with him, and that in fact he had only an " arms lengen relationship" with the Vice President.
Doub in fact stated that he decided not to invite Agnew to his swearing-in on August 17, 1971.
Doub intervier, June 17, 19e0.
Marc Rowden confirms that the Nixon Administration was looking for someone with a State public service commission background to serve
]
\\
on the AEC.
Rowden interview, Augus t 19, 1960.
4.
Doub: interview, June 17, 1980; Rowden f nterview, August 19, 1980.
Doub i
i 1
. ~... _
m
,_.-c,..~.r,-.,__,_,
-111-says that Chairman Seaborg, with whom he lunched a few days before his swearing-in, expressed disappointment that Schlesinger was under con-sideration to succeed him and also was sorried that neither Doub nor Schlesinger had scientific and technical qualifications.
Doub says Seaborg called this fact to the attention of the-tihite House. -Doub interview, June 17, 1980.
Nucleonies Week observed:
"Schlesinger's arrival could be compared with a man who opens the door of a house and the roof falls in--for that was the ef fect of the Calvert Cliffs decision.
But Schlesinger almost welcomed the decision." Vol. 13, no. 1 (January 13, 1972), p. 5.
5.
Richard S. Lewis, The Nuclear-Power Rebellion:
Citizens vs. the Atomic Industrial Establishment (New York:
1972), pp. 286-237.
6.
Doub interview, June 17, 1980.
For biographical information on Ramey, see Ramey interview, June 23, 1980.
7.
Lirof f, National Poliev for the Environment, pp. 121, 129-130, 132.
S.
Doub interview, June 17, 1980.
9.
Text of Ramey testimony, AEC/NRC, Lot 9, Box 1.
There was support in the JCAE for an expeditious policy statecent by the AEC on the Calvert Clif fs decision.
JCAE Vice Chairman Melvin Price wrote to Chariman Seaborg af ter the July 29 AEC briefing of the JCAE, expressing his fear that AEC delay in issuing a policy statement or lack of clarity in the statement "could encourage petitions to the courts for injunctions "I continue to believe," Price wrote, "that one of the most ef fective means for minimising the potential for injunctions being. issued is to issue a policy statement which clearly sets forth the Commission's
=
3.
-112-i course of action for the prompt implementation the decision."
Price to Seaborg, July 30, 1971, ibid.
10.
Price to Commissioners, July 27, 1971, ibid., Lot 9, Box 16.
Subsequent AEC statements revised the number of reactor cases slightly upward.
11.
AEC Press Release #0 134, August 4, 1971.
1
- 12. AEC Press Release #0-147, August 26, 1971.
l 13.
Nucleonies Wenk, Vol.12, no. 32 (August 12, 1971), p. l.
i 14.
Memo, Train to John C. Whitaker, October 22,1971 (copy to Schlesinger),
AEC/NRC, Lot 9, Box 13.
- 15. AEC Press Reicase #0-147, August 26, 1971.
Shapar says that although Schlesinger's decision surprised some AEC of ficials, there was no wide-spread of.ssatisfaction. According to Shapar, "The staff was a very responsive staff as far as the bureaucracy goes.
They would deliver on what the Commission wanted." Shapar interview, August 9,1978.
Maisch says that af ter the decision there was a tremendous sense of mission and much hard work.
Malsch interview, August 2, 1978.
Commisa-ioner Ramey believes that the Commission decided not to appeal be fore Schlesinger and Doub were sworn in, and states that he alone favored appealing to the Supreme Court.
Ramey interview, June 23, 1980.
Other evidence suggests that the no-appeal decision came af ter Schlesin-ger and Doub were in office.
Rowden interview, August 19, 1980.
See also William C. Parler (Special Counsel, JCAE) to George F. Murphy, Jr.
(Assistant Executive Director, JCAE), August 23, 1971, JCAE Records,
J Group 2, Box 133, Folder 3.
In this memo Parler reports a telephone call this dete from Marc Rowden at AEC, reporting that the Commission 4
- --.+6 7
m.--+sm.-
.-f 3---g
-3
---m.
.-.m y
n--.h
e
- 113-i had decided not to ask for review of the decision at the Court of d
I Appeals level.
Doub says that Schlesinger asked him for his opinion of how the AEC should react to Calvert Clif fs before they both were sworn in, and that he (Doub) took an immediate stand against appeal.
l Schlesinger, according to Doub, told him at their first meeting right af ter the court decision that he had an agreement with outgoing Chair-man Seaborg that there would be no action taken on the appeal question immediately (presumably not until Doub and Schlesinger of ficially i
joined the Commission).
Doub alao says that Judge Wright told him later, "I'd have clobbered you even worse than I did," if the AEC had come back to his court for clarification of the decision.
Doub l
interview, June 17, 1980.
16.
Nucleonics Week, Vo.12, no. 34 (August 26, 1971), p. 3.
17.
Calvert Cliffs Hearing, pt.
, p. 82.
Lewis, The Nuc lear-Power Re-4 bellion, p. 287, writes:
"The changing of the guard at the AEC was exactly what it appeared to be:
an effort to improve the image, reduce I
the agency's rather conspicuous credibility gap, and appease the envir-onmentalist movement at the expense of the electrical industry, the gas industry, and the big oil companies that were running much of the energy establishment."
Lewis also suggests that the new appointments signified that the AEC was moving away from JCAE control and toward White House influence.
13.
Memo, Pr ice to Commisa '.oners, with a t tachment, draft version of Appendix D. August 10, 1971, AEC/NRC, Lot 9, Sox 16.
19.
Nucleonics Week, Vol.12, no. 35 (September 2, l971), pp. 1-3 ; AEC 1
-,.n
-,g.
e w
r
,so
l 114
~'
I Press Release 820- 143, August 25, 1971.
1
- 20. Amond to Schlesinger, August 31, 1971, in JCAE, Selected Materials on i
Calvert Clif f s, pp. 278-279.
I 21.
Nassikas to Schlesinger, August 31, 1971, AEC/NRC, Lot 9, Box 13.
j See also Nucleonies Week, Vol.12, no. 36 (September 9,1971), p. 2.
a 22.
Nassikas, " Energy and the Public Interest," remarks before the National Energy Forum, Washington, September 24, 1971, in JCAE, Selected Materisis on Calvert Cliffs, p. 367.
Nassikas continued to press these points later in the fall of 19'1.
For example, see Nassikas to ?.chlesinger, October 15, 1971, AEC/XRC, Lot 9, Box 13.
23.
Memo, Ramey to McCool, October 4, 1971, ibid.
The memo is also in JCA?
l Selected Materials on Calvert Cliffs, pp. 222-223.
24.
Appendix D--Interim Statement of General Policy and Procedure:
Imple-mentation of the Nattor.a1 Envirenmental Policy Act of 1969 (Public Law i
91-190), 36 F.R. 13071, September 9,1971, copy in JCAE, Selected i
Materials on Calvert Cliffs, pp. 210-221.
l 25.
Ibid.
See also Nucleonics Week, Geneva Special (r ember 7, 1971),
p.1, and Vol.12, no. 36 (September 9,1971), p.
t.
t 26.
Edward E. David, Jr., to Schlesinger, October 5, 1971, AEC/NRC, Lot 9, i
Box 13.
27.
Train to Holifield, September 16, 1971, in JCAE, Selected Materials on Ca lve r t Clif fs, p. 290; Timothy Ackeson (General Counsel, CEQ) to Schlesinger, December 14, 1971, Calvert Cliffs Hearing, pt. 2, p. 394.
23.
Nucleonics Week, Vol.12, no. 37 (September 16.,197l), p.1.
29.
Commonwealth Edison Company, "A Case for Allowing Completed Nuclear W
7
-115-i Plants to Operate While the AEC Re-Examines Their Impact on the Envir-i onment," September 21, 1971, attachment to Jack K. Horton (Chairman of the Board, Southern Califernia Edison Company) to Peter A. Flanigan l
(Assistant to the President), September 24, 1971, AEC/NRC, tot 9, Sox 13.
l 30.
SECY-2114. "AEC Regulations to Implement KEPA:
EEI Preliminary Study j
of Ef fect on Nation's Electric Power Supply," October 6,1971, with attachment (EEI Preliminary Report, sent by W. Donham Crawford, Presi-dent, EEI, to Schlesinger, October 4, 1971), ibid.
The report is also reprinted in JCAE, Selected Materials on Calvert Clif fs, pp. 371-377.
See also Nucleonics Week, Vol.12, no. 41 (October -14, 1971), pp. 3-4.
31.
Kennedy, remarks at the American Bar Association-American Law Institute Program on Atomic Energy Regulation, November 13, 1971, in JCAE, Selected Materials on Calvert Clif fs, pp. 453-459.
See also Nucleonies Week, Vol. 12, no. 46 (November 18, 1971), pp. 6-7.
Nucleonies Week reported in this article Assistant General Counsel Howard Shapar's disagreement with Kennedy:
"He argued that Calvert Cliffs 'had not yet proved to be unlivable' and that at this time AEC believes the NEPA
{
policy can be implemented."
32.
Calvert Cliffs Mearing, pt. 1, pp. 172-179, 134-185.
33.
Nucleonics Week, Vol.12, no. 42. AIF/ANS Miami Special (October 21, 1971), p. 1.
Commissioner Doub reports that Schlesinger felt that in the past there had been too close a ralationship between the AEC and the industry.
This relationship had to be terminated, or at least down-graded. When he saw an early draft of the speech, Doub told Schlesinger it was too tough on the industry, that it was not necessary for him to
1.
-116-i
" hit them over the head with a club to make his points." But Schles-inger did not soften his text.
Doub also observes that Schlesinger knew little about the industry when he joined the AEC.
Doub himself i
gave a speech at Bal Harbour which followed themes similar to those of Schlesinger.
Doub interview, June 17, 1980.
For Doub's speech, see MC Press Release #S-20-71, October la,1971.
l 34.
The text of Schlesinger's speech is reprinted in JCAE, Selected Materials on Calvert Clif fs, pp. 392-399.
i 35.
Nucleonics Week, Vol. 12, no. 45 (November 11, 1971), p. 2.
Ramey objected to the t' 't that Schlesinger made the Bal Harbour speech without consulting the whole Commission, because "it was a kind of 1
policy statement on the part of a new chairman." He also felt tha t i
Schlesinger misconstrued the nuclear industry.
Aa Ramey put it, "I think this speech at Miavi was more to make some points for the admin-istration with the environmental and antinuclear people.
I don't think t
i it did and 1 think it. hurt in some ways with industry and industry 1
really didn't understand what the hell he was about Ramey interview, June 23, 1980.
36.
"A New Course f or the AEC," The Washington Post, October 27, 1971.
37.
Nucleonics Week, Vol.12, no. 43 (October 28, 1971), p. 1.
Lewis, The Nuclear-Power Rebellion, p. 292, suggests that the Bal Harbour speech marked the end of the " government-industry partnership" for nuclear
- power, According to Lewis, "The role of AEC and, indirectly, o f the Joint Committee, in coaching the industry in its relationship with the public was to end.
In brief, the industry had lost a coach and gained
e
-117-an umpire." Shapar believes that while the Bal Harbour speech signalled an important change in the AEC's direction, Schlasinger probably would have made it even if there had been no Calvert Clif fs decision, t.e speech, Shapar believes, illustrated Schlesinger's commitment to a modern, more responsive agency.
Shapar interview, August 9,1978.
38.
See Calvert Clif fs Hearing, pts. I and 2, passim, c
19.
Gofman, "Dr. Schlesinger, the AEC and the Public Interest," Entiron-mental Action Bulletin (November 6,1971), reprinted in Cong. Record, 92nd Cong.,1 Sess., (November 30, 1971), p. 219896 40.
Calvert Cliffs Hearing, pt. 1, pp. 8-14 (text of Senator Gravel's s ta tement ).
Chapter V 1.
AEC Press Release #N-101, June 16,1970.
2.
? rice to Sauser, January 27, 1971, JCAE Records, Group 2, Box 269, Folder 2; statement by Ramey, June 22, 1971, AEC Licensing Procedures and Related Legislation, pt. 1 June 22, 1971, p. 27.
3.
Schlesinger to Senator John O. Pastore (Chairman, JCAE), September 30, 1971, JCAE Records, Group 2, Box 269, Folder 1.
4.
Ibid.; memo, Price to Doub, October 14, 1971, AEC/NRC, Lot 9, Box 13; AEC Press Release 90-207, November 11, 1971; letter, Doub to Senator Mark O. Hatfield, January 7, 1972, Calvert Cliffs Hearing, pt. 2, p.
450; Doub statement, November 3, 1971, ibid., pt. L, p. 61; Nucleonics Week, Vol. 13, no. 4 (January 27, 1972), p. 7.
5.
AEC Pr e s s Re l e a s e #0- 183, Oc t o be r 14, 1971; Nucleonics Week, Vol.12,
4 118 no. 42, AIF/ANS Miami Special (October 18, 1971), p. 2.
l 6.
Doub interview, June 17, 1980; Ramey intervicw, June 23, 1980.
Shapar does not think Calvert Cliffs had anything to do with Price's resig-1 nation, that it resulted from other circumstances.
7.
Doub interview, June 17, 1980; L. Manning Muntzing, interview with Roger R. Trask and George T. Mazuzan, Washington, D.
C., June 18, 1980.
4 l
8.
Muntzing interview, June 18, 1980.
!i l
9.
AEC Press Release #0-189, October 21, 1971; Doub interview, June 17, 1980; Huntzing interview, June 18. 1980.
Kriegsman later served as an AEC Commissioner,.from June 12, 1973, to December 31, 1974.
Gilinsky i
became om of the first Commissioners on the Nuclear Regulatory Commission on January 19, 1975.
He was reappointed to a second term beginning in July, 1979.
l 10.
Doub interview, June 17, 1980; Ramey interview, June 23, 1980; AEC Press Release #0-148, August 27, 1971.
3 l
ll.
AEC Press Release #P-27, January 31, 1972; Muntzing to Bauser, January i
l 27, 1972, JCAE Records, Group 2, Box 268, Folder 7.
12.
AEC Press Release #P-118, April 25,1972; Nucleonics Week, Vol. 13, no. 17 (April 27, 1972), p. 1.
13.
S ta tement by Muntzing, July 31, 1973, De pa r tme n t of Enerry and Natural Resources and Energv Rese ch and Develooment Administration, Hearings before a Subommmittee of the Committee on Government Operations, House of Representatives, 95th Cong.,1 Sess., on H.R. 9090, July 24, 25, 26, 31, and Augus t 1,1973 (Washington:
1973), pt. 1, p. 183, reprinted in Denise Diggin, comp., Legislative Historv on P.L.93-433 [ Energy
--.,.,-..._..-,,_.,--z--
a:
o
-119-Reorganization Act of 1974] (3 vols., Washington 1974), II, 2078; rem < ks by Consissioner Doub at the American Bar Association Convention, Wa/a_..gton, August 6, 1973, AEC/NRC, Speech File in NRC Office of Public Affairs.
14.
Schlesinger statement at Joint Hearing by the Senate Committees of Public Works and Interior and Insular Affairs on administration of the National Environmental Policy Act, March 1,1972, AEC/NRC, Speech File in NRC Office of Public Affairs.
15.
Muntaing to Commissioners, December 3, 1971., AEC/NRC, Lot 9, Box 13; Nucleonics Week, Voi. 12, no. 48 (December 2,1971), pp.1-2.
16.
Nucleonics Week, Vol.12, no. 43 (October 8,1971T, pp. 2-3.
17.
SECY-R 345, Information Report, McCool, November 22, 1971, with attach-ment, memo by Rowden (Acting General Counsel) to Conmissioners, Novem-ber 19, 1971 AEC/NRC, Lot 9, Box 16.
The AEC had issued construction permits for the two Quad Cities units in February,1967, with comple tion of Unit #1 expected in July,1970, and Unic #2 in July,1971.
See AEC Press Release #K-41, February 17, 1967, 18.
The Quad Cities cases were:
The Izaak Walton Lea gue o f Ame rica, et al.,
- v. James Schlesincer et al.
and People of the State of Illinois, ex rel.,
William J. Scott, Attornev General of the State of Illinois, v. United States Atomic Enerty Commission, et al., and Commonwealth Edison Comoany and Iowa-Illinois Gas and Electric Company.
Judge Barrington D. Parker of the United States District Court for tne District of Columbia signed the findings of fact, conel Sions of law, order, and memorandum of opinion on December 13, 1971.
Copies of the judge's decision and
_ _. ~..
120 order are in SECY-R 359, Information Report, McCool, December 16, 1971, AEC/NRC, Lot 9, Box 16.
]
- 19. Attachment, Hoffmann to Commissioners, December 16, 1971, ibid.
20.
Nucleonics Week, Vol. 12, nos 51-52 (December 23, 1971), p. 1.
Whether the court could have gone this far is debatable; the Quad Cities issues were limited and the decision applied only to the Quad Cities plant.
21.
Ackeson to Schlesinger, December 14, 1971, AEC/NRC, Lot 9, Box 13.
f 22.
AEC Press Release #0-272, December 23,197i.
The Jus tice Department filed a notice of appeal with the United States Court of Appeals for the District of Columbia on January 11, 1972.
Sec Hoffmann to Bauser, January 13, 1972, AEC/NRC, Lot 9, Box 16.
23.
Nucleonies Week, Vol.13, no.1 (January 6,1972), p. 2.
4 24.
Statement before Joint Hearing of the Senate Committee on Public Works and the Senate Committee on Interior and Insular Affairs, on administra-tion of the National Environmental Policy Act, March 1, 1972, copy in 1
AEC/NRC, Speech File in NRC Of fice of Public Affairs.
This quotation i
from Schlesinger's testimony is reprinted in Committee on Interior and Insular Af fairs, Committee Print, 92nd Cong., 2 Sess., Ef fect of Calvert Clif fs and Other Court Decisions Upon Nuclear Power in the United States i
l (Washington:
1972), p. 44.
See also Nucleonics Week, Vol. 13, no. 10 (March 9, 1972), p. 2.
25.
Brief for the Federal Apee11 ants, U.S. Court of Appeals for th.
is-l trict of Columbia Circuit, presented by Kent Friazell, Assistant Attorney General; E
- 3. Clark and P. R. Steenland, Attorneys, U.S. Department of l
4 e
121 i
Justice; Martin R. Hoffmann, General Counsel, Marcus A. Rowden, Asso-i i
ciate General Counsel, and Charles Bechhoefer, Attorney, AEC, in JCAE Records, Group 2, Box '190, Folder 5.
26.
SECY-R 437, Information Report, McCool, March 31, 1972, with attachment, I
John A. Harris (Director, AEC Office of Informatien Services) to i
Commissioners, March 30, 1972, AEC/NRC, Lot 9, Box 16; AEC Press i
Release #P-92, March 31, 1972; Nucleonics Week, Vol.13, no.14 (April
~
6, 1972), p. 6.
i
- 27. AEC Press Release #P-144, May 12,1972; James B. Graham (JCAE) to Bauser, May 12, 1972, JCAE Records, Group 2, Box 190, Folder 4.
28.
SECY-R 398, " Interim Licensing Legislation," February 8,1972, with attachment, Hoffmann to *ommissioners, February 8, 1972, including draft legislation, AEC/NRC, Lot 9, Box 16.
29 Doub to Price, September 29, 1971, ibid. ; William _ C. Par ler (JCAI l
Special Counsel) to Bauser, September 29, 1971, JCAE Records, Group 2, i
j Box 269, Folder 1.
30.
Nucleonics Week, Vol.12, no. 42, AIF/ANS Miami Special (October 18, 1971), p. 1.
31.
SECY-R 398, " Interim Licensing Legislation," February 8,1972, with a ttachment, Hoffmann to Commissioners, February 6, 1972, AEC/NRC, Lot 9, Box 16, 32.
Parler to Pastore, February 12, 1972, JCAE Records, Group 1, Box 39, P
l Folder 3.
l
.33.
Schlesinger to Carl Albert (Speaker of the House), March 3, 1972, with l
i draft bill attached, ibid.
This material is repriated in H.R.
13731 I
1 9
P
-122-i a
and H.R.
13732, to Amend the Atomic Energy Act of 1954 Regarding the Licensing of Nuclear Facilities, Hearings, JCAE, 92nd Cong., 2 Sess.,
March 16 and 17,1972 (Washington:
1972), pp. 3-19 (hereaf ter cited as JCAE Hearings, H.R. 13731 and H.R. 13732),
An " emergency situation" 2
could be, for example, a shortage of power during a peak usage period.
l 34.
March 16, 1972, ibid., pp. 145-148, 35.
Ibid., pp. 160-161.
36.
March 17, 1972, ibid., pp. 193-201.
37.
Ibid., p. 215.
38.
News Release, March 16, 1972, copy in AEC/NRC, Lot 9, Box 16, 39.
JCAE Hearings, H.R. 13731 and H.R. 13732, March 16, 1972, pp. 122-123, 40.
Ibid., p, 136.
41.
Ibid., pp. 72-80,90-103.
42.
Ibid., pp. 111-117.
43.
Committee on Merchant Marine and Fisheries, House of Representatives, Report No.92-991, " Interim Nuclear Licensing," Report to Accompany H.R. 13?32, April 14, 1972, pp. 3-6.
The AEC reaffirmed the need for this legislation af ter the nescciated sectiement in late March, 1972, of the Quad Cities impasse.
See Bauser to Schlesinger, March 24, 1972, AEC/NRC, Lot 9. Box 16; Schlesinger to Sauser, April 17, 1972, ibid.;
Munt:ing to Bauser, April 3,1972, JCAE Records, Croup 2, Box 190, Folder 4.
44.
Schlesinger to George P. Shultz (Director of the Offf ee of Management and Budge t), May 24, 1972, AEC/NRC, Lot 9, 3ox 16.
For a good secon-dary account of the legislative his tory of the interim licensing bill,
-123-see tirof f, National Poliev for the - Envirce. ment, pp. 139-202.
45.
Robert 0111ette, " National Environmental Policy Act:
Signs of Backlash Are Evident," Science, 176, no. 4030 (April 7,1972), 33.
46.
Lewis, The Nuclear-Power Rebellion, p. 296.
47.
Shapar interview, August 9,1978.
It should be noted that the interim licensing bill had a terminal date in the fall of 1973 and was used in only one irstance.
In the final analysis, the law had practically no effect and did not amend NEPA.
48.
Doub interview, June 17, 1980.
49.
Huntaing interview, June la,1980.
50.
Roisman interview, June 17, 1980.
Chapter VI
\\
'I 1.
Remarks before the Southeastern Electric Exchange, Boca Raton, Florida, March 27, 1972, AEC/NRC, Lot 9, Box 15.
2.
For a comprehensive legislative history of this act, see Danise Diggin, compiler, Lecislative History on P.L.93-438 to Reorganize and Consoli-date Certain Functions of the Federal Government in a New Energy, Research ar.d Dt Jeloement Administration and in a New Nuclear Regulatorv Commission in Order to Promote More Efficient Management of Such Functions (3 vols., Washington:
1974). Also see George T.
Mazuzan and Roger R. Trask, An Outline Historv of Nuclear Rueulation and Licensing, l_946:1979 (Washingten:
Historical Office, Of fice of the Secretary, Nuclear Regulatory Conaission, 1979), pp. 60-92, for a briefer account.
-___ _ =_ _ _ = _ _ - _ _ - _
- - ~.
e
- 124-3.
Remarks at the American Bar Association Convention, Washington, D. C.,
August 6,1973, in NRC Records, Speech File in the Of fice of Public Affairs.
4.
See Neil Orloff and Georg. Brooks, The National Environmental Poliev Act:
Cases and Materials (Washington:
Bureau of National Af fairs,
1980), pp. 354-355.
These authors point out Qac "Calvert cliffs' is the most frequently cited case in NEPA law."
i
. ~, - -..,.,,.- :~-,.-
4
~b l
I 1
I APPENDIX i
1.
Text of the National Environmental Policy Act of 1969 2.
Text of the Calvert Cliffs Decision f
4 Y
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4 1
1 4
4 4
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1 I
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)
I BIBLIOGRAPHICAL ESSAY l
1 l
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4 4
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