ML20211H827

Environ Effects of U Fuel Cycle

ML20211H827
Person / Time
Issue date:	08/13/1976
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
Shared Package
ML20211G444	List: IA-85-229, Environ Effects of U Fuel Cycle ML20211H827
References
FOIA-85-229 NUDOCS 8611060110
Download: ML20211H827 (13)

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NUCLEAR REGULATORY COMMISSION ,,, ,

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[DocketRM-50-3] ,

s ENVIRONMENTAL EFFECTS OF Tile URANIUM FUEL CYCLE

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.- . General Statement of Policy j

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s Two,recent decisions by the United States Court of Appeals for the District of Columbia Circuit raise significant questions.

regarding the future course of Commission licensing activities a '

cver the coming months. The decisions are Natural Resources Dafonce Council, et al. v. NRC, Nos. 74-1385 and 74-1506; and l

Asschliraan, c't al. v. NRC, Nos. 73-1776 and 73-1867 (July 21, a .

i 1976)., The purpose of this policy statement is' to indica'te how

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the Commission intends to conduct its licensing act'ivities pend-ing resolution of tiie several\lega3 questions raised by the ddcisions. This statement is n,ot) intended to resolve, or indi- .

cate any resolution of', the question whether the particular ,

licensesI before the' court in these cases are to'be continued, '

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modifidd, or suspended during the proceedings called .for; since i

the court refused an explicit request to set aside those licenses, the Commission's view is that the court expects it to resolve y '

J] this question in formal proceedings, in light of the facts and

! 1 the applicable law. Nor is this statement intended to reflect ,

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eny position the Commission may take in fu'dher litigation in I '

these. cases.

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. -2 As this statement was in the final si. ages of preparation, the Commission received a proposal for rulemaking from the Natural Resources Defense Council concerning many of the issues discussed herein. Coments on' that proposal are solicited in a coordinate Federal Register notice, also published today. Initial consideration of the petition indicates that it varies in several respects from this policy statement. Some of these variations (notably, rules proposed 'for' existing constructioil permits, l.HA's and operating licenses) may reflect differing legal interpretations; however, in general, publication of the present policy statement will not irretrievably cornit the Co=nission or others to a course inconsistent {

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wit,h the proposals made. The Commissica believes that the need for' f im. mediate guidance to its staff and licensing boards, and to the interested public, requires publication of the present, statement. The Comnission will carefully consider the suggestions of the h*RCC'and, indeed, is aware that athers should have the opportunity to comment on .

these' proposal.e and to offer suggestions for implementing the recent

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court of appeals decisions. -

Uhile other questions were decided, the principal impact of the court's opinions on Commission actions arises from holdings on three rela.ted points:

1. A rule adopted by the former AEC in 1974 to codify i the envi'r onmental effects of the uranium fuel cycle .

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' for individual light-water nuc1 car power reactors, 4 10 CFR 51.20(e), was inadequately supporte'd insofar

• as it treated the reprocessing of spent fuel and of .

radioactive wastes; G

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2. The National Environtr.cntal Policy' Ac,t of 1959 requires analysis of these reprocessing and waste. issues, either through'rulemaking or in individual licensing proceedings, as a prerequisite to Comission licensing of a nucle' ar power plant; If the Comaission wishes to revise its rule, it .must do

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so by procedures more demanding than the notice-and-commen't procedures required for informal rulemaking by the Administrative

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Proceduredct. (The court divided 2-1 on the question of further procedures, Judge Tamm stating that notice-and-con:ent procedurcs would suffice.)

Even th'ough review of one or more of these rulings may be sought, prudent and responsi:le regulation requires immediate steps to further ,

analyze the reprocer. sing and' waste disposal issues. Accordingly, the Co:nmission's staff has been directed to review the existing literature -

thorough'ly and to pr .suce on an expedited basis a. revised and adequately documented environ.r. ental survey on the probable contribution to the environmental costs of licensing a nuclear power reactor tha.t is 4

attributabic to the reprocessing and waste management stages of the uranium fuel cycle. It is expected that t,his. statement will be ready on or about September 30, 1976.

The Contnission intends to reopen the rulegking proceeding on the Environmental Effects of the Uranium Fuel Cycle, Docket RM-50-3 for the limited purposes of : -

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1, Supplementing the record on'the reprocessing and

.- waste management issues; and 2.- Determining whether or not.on the basis of the i . supplemented record, Table S-3 of 10 CFR 51.20(d) should be amended and, if so, in what respect. , ,

The revised environmental survey just described, together with any amendments to Table S-3 that may be proposed as a consequence of that

' analysis, will be the basis for these reopened proceedings. We under-stand the court to regard the procedures originally used as capable

- of. fully ventilating the issues involved, permitting a reasoned ,

Commission discus'sion and producing a. valid rule.* These procedures,

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• / The court underst:,cd, as do we, that any such rule would be but one step in national planning for radioactive waste management.

The Energy Research and Development Administration has-undertaken -

a comprehensive environmental impact statement, now scheduled A variety of other

. ., for issuance in draft form in April, 1977.

measures, including this agency's development of goals, objectives, and

. . general environmental criteria for waste management, are also under way. As the Comission then proceeds to develop its regulatory

• . framework for waste management, appropriate environmental impact statements will be prepared. Obvio'usly, areas of uncertainty which may be developed by the present study will help to shape these efforts.

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which included an oral hearing and questioning of witnesses by the presiding panel, are set forth at 38 Fed. Reg. 50, January 30, 1973.

Alternative procedures, modeled on those to be employed by the Connission in its forthcoming GESMO hearings, have been suggested by the Natural Resources Defense Council in the petition for rulemaking referenced above. An election of procedures to be followed will be made in a forth-coming notice of hearing, following the comment period on that petition, which closes August 31, 1976.

While the extended rulemaking is in progress, the Commission ~ and

.its ' licensing boards- will be called upon to decide whether nuclear reactor licenses can issue, and whether previously granted licenses should be suspended, modified, or set aside.

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, In view of the court's recent decisions, the Commission has concluded that no new full-power operating license, construction permit or limited work authorization should be issued pending the developments to be, described below. This conclusion is based on recognition that the  !

i grant of each of thosi autho$ izations, permits, o'r licenses is premised

upon the completion of an adequate environmental impact statement, and that under the subject decisions, absent an acceptable substitute for those portions of Table S-3.which the court has found inadequately supported, the basis for a complete environmental impact statement will

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,- not be in place.

The conmission recognizes that this conclusion may have significant impacts on the availabili,ty and costs of nuclear pcwer facilities. At present, two nuclear powd plants are et the s' age t where an ope' rating

. license might otherwise have been -issued imminently; two plants will reach that stage within the next four months. Additionally, a decision on whether to issue construction permits for five power plants would in all probability have been reached by the end'of the~ year. The number of

' plants affected' by a cessation of licensing grows with time, and there are obvious costs incurred when plants stand idle. Since existing concepts for reprocessing and waste technology do not vary significantly with the design of nuclear powe? generating facilities, it is extremely ,

unlikely that the revised environmental suivey will result in any modification of these facilities. Only the'yossibility of discontinuing their construction or use is likely t.o be at issue'. ,

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,;The Commiss i on does not'be.lieve that the licensing constraints i he're announced must necessarily continue until a rulemaking employing oral hearing procedures has been completed, a process which could take fully a year. If the revised environmental survey justifies, notice and coment rulemaking can provide the basis for an interim rule which ~

. would be an adequate substitute for Table S-3 pending issuance of the

' r final rule. In addition to the revised environmental survey, the basis for such an interim rule would' include an evaluation of the environmental

, impact of using that interim rule as~ a. basis for licensing until the final rule is in place, a'nd an assessment of the impact of a suspension-of further licensing during that ' time period. The Commission has ,

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d.irected its staff to deve' lop this information by September Since interim rulemaking would be accomplished through notice and ,

. comment procedures only, an interim rule might be promulgated as early

- as December 1976, providing a basis for licensing at that time.

The Commission also has under consideration the possibility of a futu're reques't to the court of appeals for a stay of its mandate, such

. a request to be exp1icitly supported by an appraisal of the likely v -

If granted, impact of the court's decision and of granting the stay.

a stay'so supported might also provide the basis i'1 for resumed licensing, Finally, son!c Conunission licensing actions do not require prepara-tion of an environmental impact statement, depending upon the circum-See 10 CFR 51.5(b).

In these instances, which may include stances.

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authorizations for fuel' loading, low-power testi:19, or amending a .

construction permit, the Conmission's regulations require that an environmental impact appraisal be undertaken in order to determine whether an environmental impact statement must be prepared. 10 CFR 51.5(c). The absence of an effective Table S-3 would not preclude licensing that is not dependent upon an environmental impact statement.

Consequently the Commission is instructing its staff and licensing boards that they may continue to take such actions where an environ-mental impact assessment has been made and has resulted in a determina-tion that no environmental impact statement need be prepared. See J. - .,

10 CF,R 51.5, 51.7.

In all other instances, the staff'and the licensing boards shall continue to process applications and hold hearings up to the point of, 1

but not including, licensing. However, in any contested proceeding, ,

l reprocessing and waste management issues should be deferred pending completion of the interim rulemaking, unless the evidentiary record on

.t those issues has already been completed and is adequate for decision.

The Commission wishes to avoid the needless duplication which proceeding both by rulemaking and in individ,ual contested licensing hearings would entail and the overall delay that w6'uld result. Uhere a proceeding is uncontested, licensing shall nevertheless he. deferred until the Commis-sion has published the revised environmental survey, documenting the .

probable contribution to the environmental costs of licensing a nuclear f

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- power reactor which is attributabic to the reprocessing and waste ,

management stages of the uranium fuel cycle. These values may then be

'used in reaci,1ing a llEPA cost / benefit assessment prerequisite to

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. licensing. Similarly, where a license'has been issued, but the action has not become final. within the Connission because of pending appeal or

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. possible Commission review, final action or review should be deferred pending publication of the environmental survey; other issues, . including as appropriate the issue of suspending activity unde'r the license in question, may be resolved in the inte, rim. , ,

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With, regard to the Vermont Yankee and Midland licenses at, issue in the two court of appeals cases, we agree with the view expressed by the Cor.tnission's staff that questions of modifica' tion or suspension should be resolved in formal proceedings in light of the facts and the

- 3 applicable law. Since we have decided that reprocessing and waste ,

management issues sha:ld be treated generically by rulecaking rather than on a' case-by-case basis, the' initial question on remand of'the .

Vermont Yankee and Midland orders will be whether the licenses should be continued, modified, or suspended unti1[an inte'riin rule has been made effective. In resolving this question, the Comuission intends to assign the matter to licensing boards with instructions to call for briefs from the parties followed by evidentiary hearings ,n if necessary.*] The same 4

• / An evidentiary hearing on other issues will be required in Midland, barring further review. That hearing, however, should not be commenced until the Midland decision has become final.

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v. , r question ~ would arise on a request for a.show Iause order seeking the -

suspension or modification on fuel cycle rule grounds 'of any other nuclear power plant license. ,,

, . It is the Connission's understanding that resolution of this question turns on equitable factors well established in prior practice and case law. Such factors include uhether it is likely that significant adverse impact will occur until a new interim fuel cycle rule is in, 4

place; whether reasonable alternatives will be foreclosed by continued construction or operation; the effect of delay; and the possibility that the cost / benefit balance will be tilted through . increased investment.

See Coalition for Safe Nuclear Power v.' AEC, 463 F.2d 954 (D.C. Cir.1972);

~ San Onofre, Units' 2 and 3, 7 AEC 986, 996-97 (June 1974). General public policy concerns, the need for the project, the' extent of the NEPA-violation, and the timeliness of objections are also among the pertinent considerations. See, e.g. ,' Conservation Society of' Southern Vermont Inc.

v. Secretary of Transportation, 408 F.2d 927, 933934 (2d Cir.1974),

vacated on other grounds and remanded, 423 U.S. 809'(1975); Greene County Planning Board v. FPC, 455 F.2d 412, 424 425 (2d Cir.), cert.

denied, 409 U.S. 849 (1972); City of New York v. United States, 337 F.

. Supp.150,163 (E.D.N.Y.) (three-judge court)..*/

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• / In its petition for rulemaking, noticed today, the Natural b Resources Defense Council suggests that the appropriate

. course for tho. interim period concerning facilitics which (

j hold effective licenses should be as follows:

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. o l Finally, even if no request for suspeiision or modification of an LWA, CP, or OL is received, the Commission will nevertheless

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Eacilities which received operating licenses before~ July 21, 1976:

NitC will order suspension of the opera-

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- ting license for any such facilities unless the licensee can establish that:

(1) Continued operation of the plant

- is essential to maintain a reliabic supply of energy to the reliability region of which the plant ~is a part, taking into account alternative available sources of supply (including purchase power) , histori-

, cal reserve requirements, and availabic

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interconnections for tran.dmitting power; (2) Continued operation of the facil-

.ity will provide adequate protection for the -

public health and safety, taking into account

' the health and safety problems associated with production, storage, transportation, reprocess-ing, if any, and management or disposal of all nuclear fuel required for the plant and all nuclear wastes produced by the plant; (3) Continued operation of the facility -

will not tend to foreclose, now or in the '

. future, implementation of al~ternatives to the operation of this facility or to the design, construction or operation of other facilities which may be considered following completion of the review required by 10 CFR Section __;

and (4) Continued operation of the facility will not tend to irretrievably commit resources to the production of nuclear fuel or the stor-t

' age, reprocessing , i.f any, management or dis-posal of any nuclear wastes. construction Facilities which received permits or u:7c's prior Y6 July 2I, .L976:

NRC will' order suspensi,op of the LWA or-the construction permit unless the licensee can establish that:

l (1) Continued construction of the plant is ossential to maintain a reliable supply of energ: to the reliability region of which the -

l plant is a part, taking into account alterna-l tive available sources of supply (including l historical reserve requirements j

purchase power),and available interconnections for transmitting l

power; ,

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det' ermine whether it should sua sponte initiate show cause proceedings based upon information the Commission receives in the revised environmental C/ (Footnote continued) ,

('2) Continued construction will not tend ,

to foreclose, now or in the future, implementa-tion of alternatives to the design, construction ,

.or operation of this or other facilities which alternatives may be considered following comple-  ; and tion of the review required by 10 CFR (3) Continued construction will not tend'to irretrievably commit resources to the facility.

As noted in the text immediately following this note, we believe the appropriate time for NRC consideration of sua sponte, across-the-board. initiation of show cause proceedings to bc when it has rec'eived from its staff its

-revised and documented assessment of the reprocessing and-waste management issues. While the issues of reprocessing and waste management f 'ully warrant serious and timely attention, no information now at hand calls for so drastic a step in the brief period before this analysis will be

• available. Also, while the individual factors NRDC sug-gests are among those relevant to be addressed in seek-ing a shou cause order or in any show cause proceeding, the Commission cannot accept the suggestion that these -

factors are cumulative and must each be satisfied; its own approved prior practice and established-judicial pre-cedent permit balancing of these factors to determine where the equitics of each particular case lie.

In adopting this approach, one inconsistent with the NRDC petition, the Commission is aware that neither NRDCInnor .

other concerned parties have been formally heard.

commenting on the NRDC petition, any party interested to do so (including NRDC) may" file comments addressed to the point. .. ,

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survey. As noted earlier, this information should be in hand by September 30. The Coanission's determination whether or not to reof.cn all licenses will then be issued. .. , , . . .

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'FOR THE ilUCl. EAR REGULATORY C0iEISSIO '

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Samuel J. Chi.1k l Secretary of the Commission *

. Dated at Washingtor., E.C. .. '

this 13th day of Au; st, 1976. .

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