ML20247K828

Requests Commission Approval of Fr Notice for Rev of 10CFR51 & Related Conforming Amends Re Council on Environ Quality NEPA Regulations

ML20247K828
Person / Time
Issue date:	07/14/1983
From:	Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
TASK-RIA, TASK-SE SECY-83-286, NUDOCS 8909220029
Download: ML20247K828 (490)

Text

_ _ - _ _ _ __ ___

..s PDR

!/pr 'A

• y h ~... j;*

o RULEMAKING ISSDE July 14,1983 (Affirmation) secy-83-28s i For: The Commissioners From: William J. Dircks Executive Director for Operations  !

Subject:

REVISION OF 10 CFR PART 51 AND RELATED CONFORMING AMEND-MENTS - IMPLEMENTATION OF CEQ NEPA REGULATIONS This paper is resubmitted as a replacement for SECY-81-50, January 21, 19fs1. ,

Purpose:

To obtain Commission approval of a Federal Register i notice promulgating a final rule.

1 Discussion: Attached for Commission review and approval is the text  !

of 10 CFR Part 51 and related conforming amendments l (Enclosure A) as revised to implement section 102(2) of the National Environmental Policy Act of 1969, as amended (NEPA) in a manner which is consistent with the NRC's domestic licensing and related regulatory authority.

This revision of Part 51 reflects the Commission's policy ;

to develop regulations to take account of the regulations i of the Council on Environmental Quality implementing the procedural provisions of NEPA voluntarily, subject to certain conditions. The coments of the Office of the General Counsel have been incorporated in the final rule.

The background and circumstances leading to the devel-opment of the present revision of Part 51 are fully described in SECY-79-305, May 1, 1979, - NRC Compliance with CEQ NEPA Regulations, and SECY-79-473, August 6, 1979 - CEQ NEPA Regulations - Proposed Revision of 10 CFR Part 51 and Related Conforming Amendments. The preposed rule was published for comment on March 3,1980 (45 FR 13739-13766.) The sixty day comment period expired May 2, 1980.

1

Contact:

R pes, OELD pf 8909220029 3307;4 PDM SECY EG-286 PDC

The Commissioners  :

The Comission received twenty-one letters of coment (reproduced in Enclosure C) expressing the views of interested Federal agencies, state and local govern-ments, industry, including electric utilities, vendors and architect-engineers, professional organizations and individual members of the public. A compendium of the public coments, arranged by topic, with proposed NRC responses (Enclosure D) has been prepared and will be placed in the Comission's Public Document Room when revised Part 51 is transmitted to the Federal Register for publication. The principal coments are also dis-cussed in the preamble to the rule.

On July 7,1981, with the consent of the Commissioners, the Executive Director for Operations withdrew SECY-81-50, dated January 21, 1981, to permit the staff to reevaluate certain categorical exclusions'in the light of new data which had recently become available. As a result of this review and following consultation with and approval by CEQ on December 29,1981,1/ categorical exclusion 14, which covers certain types lif materials licenses, was revised by adding four new subcategories (see 9 51.22(c)(14)(xiii)-(xvi).) The descriptions ars justifications for these categorical exclusions are set 1 out in the preamble of the final rule (see Enclosure A.,

pp. 100-116, especially pp. 101-102 and 112-116.) In addition to this change, revisions have been made to bring the conforming amendments up to date and to accommodate certain suggestions made by OGC.

This revision of Part 51 implements all of the procedural provisions of section 102(2) of NEPA, encompassing the entire NEPA process from early planning through assessment and EIS preparation through decision, and is for that reason significantly broader in scope than the Comission's present regulations which only address the requirements for the preparation of environmental impact statements set out in section 102(2)(C) of NEPA. In preparing this revision, the staff has been cognizant of the Comission's concern to streamline and sharpen the focus of the environmental impact statement and has reflected this concern to the maximut extent consistent with the CEQ regulations. The length and format of the revised ,

regulations reflect the broad scope and complexity of i the subject matter.

1/ See letter to Howard K. Shapar, Executive Legal Director, NRC from Nancy Nord, General Counsel, CEQ, dated December 29, 1981.

I l

! The Commissioners l t

In the notice of proposed rulemaking, the Comission identified four provisions of CEQ's NEPA regulations which the Comission intended to ttudy further before deciding to what extent those provisions "may or should mandate a change in present Comitsion policy." Public comments were specifically invited. The preamble to the rule (see Enclosure A, pp. 3-30) sumarizes the relevant comments and states the Comission's views, as proposed by the staff, on the issues raised. These provisions and the proposed Commission responses are:

A. 40 CFR 5 1502.14(b) .This section provides that the environmental impact statement "[d]evote sub-stantial treatment to each alternative considered in detail including the proposed action so that ,

reviewers may evaluate their comparative merits." '

40 CFR 5 1502.22(a) - This section provides that

"[i]f the information relevant to adverse impacts is essential to a reasoned choice among alterna-tives and is not known and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the environmental impact statement."

The staff believes that the new Part 51 procedures (like the Commission's existing procedures) are in fact generally compatible with the intent of these two CEQ requirements. The preamble to the proposed rule makes clear, however, that only the Comission can make the substantive determinations called for by 5 1502.22(a) as to whether certain unknown information is (a) relevant to adverse impacts, (b) essential to a reasoned choice among alternatives, and (c) obtainable at a cost which is not exorbitant.

B. 40 CFR 5 1502.22(b) - This section requires an agency to perform a " worst case analysis" and indicate the probability or improbability of its occurrence whenever the agency is unabie to obtain information relevant to adverse impacts important in making a reasoned choice among alternatives, and the agency has decided, despite this uncertainty to proceed with the action.

The staff proposes that the Comission determine that the substantive requirements of i 1502.22(b) are not binding on the Comission and that the Commission has appropriately addressed tne matters w__.____ _--_____

E

-The Commissioners- -

r U covered by this section in its Statement'of Interim

. Policy on Nuclear Power Plant Accident Considera-tions under NEPA (45 FR 40101-40104, June 13, '

1980).

C. 40 CFR i:1508.18 - This section includes within the definition of major Federal action "the circumstance where the responsible officials fail to act.and that failure to act is reviewable by courts _ or-administrative tribunals 'under the Administrative-Procedure Act or other applicable law as agency action."

The staff proposes that the Comission follow CEQ's -

definition of major federal action. The effect of .

the inclusion'of the "no action" aspect of the definition is that a general categorical exclusion for all denials of petitions for rulemaking cannot be included in Part 51. (Categorical exclusions 1, 2 and 3 cover certain. types of denials of rule-making. petitions. See 5 51.22('c)(1), (2) and (3).)

Since, however, it appears that there will be extremely few, if any, denials of petitions for rulemaking which will rise to the level of major environmental actions warranting detailed environ- .!

mental review, the practical effect and impact of '

adhering to the CEQ definition should be minimal.

Revised Part 51 is essentially similar to the proposed I rule. The principal differences between the proposed I rule as published for coment and the attached revision (Enclosure A) are described in the preamble to the final ,

rule (Enclosure A, pp. 30-57). The following items merit the Commission's attention:

1. The provisions of the final fuel cycle rule, Table S-3 l promulgated August 2, 1979 (44 FR 45362-45374; cor-rection notice. 44 FR 56312, October 1, 1979) and effective September 4, 1979, have been incorporated in El 51.51, 51.71(d) and 51.75 of revised Part 51.

(See Enclosure E.)

2. In response to public comments, the final rule has been revised to provide more specific guidance on the limitations imposed on NRC's environmental review authority by section 511(c)(2) of the Federal Water Pollution Control Act. The issues involved are discussed in the preamble to the final rule (see Enclosure A, pp. 31-37.) Section5110(c)has

--- --__._____.____._____---________--_____.a2- - _ _ _ . _ . - _ _ _ _ _ -_____._______a___.m.-__._____.-.___________.,__.m___- . . _ _ . _ _ _ _-___--.----__.-___-_--m____

The Commissioners -5'-

been revised to make clear that Federal responsi-bility for regulating nonradiological discharges of pollutants into aquatic bodies rests with the Environmental Protection Agency. A new categorical exclusion (Category 17) has been added. Category 17 covers amendments to outstanding NRC licenses and

, permits which delete from those licenses and permits any limiting conditions of operation or monitoring requirements based on or applicable to any matter subject to the provisions of the-Federal Water Pollution Control Act.

A new i 50.36b, Environmental conditions, has been added to 10 CFR Part 50. This section, which codifies existing licensing practice, recognizes the NRC's authority to amend each operating license for a utilization or production facility to include conditions for the protection of the environment.

These conditions will be derived, in part, from information contained in the applicant's environ-mental report as analyzed and evaluated in the NRC record of decision.

Section 50.54, Conditions of licenses, has been amended to make clear that Part 50 licenses are subject to all conditions deemed imposed as a matter of law by sections 401(a)(2) and 401(d) of the Federcl Water Pollution Control Act, as amended.

3. The provisions in revised Part 51 which relate to the distribution of environmental documents (10 CFR 51.33, 51.74, 51.77, 51.81, 51.86, 51.93, 51.119, -

51.122 and 51.123) differ from the Commission's customary document distribution practices with respect to the persons entitled to receive free copies. With respect to this matter, revised Part 51 is closely patterned after specific l

provisions of the CEQ regulations, namely 40 CFR l

1502.19 which relates to the circulation of envi- ,

ronmental impact statements and 1506.6(f) which {

states, in part, that materials shall be made available to the public ". . . without charge to the extent practicable, or at a fee which is not more than the actual costs of reproducing copies required to be sent to other Federal agencies, . . ."

L- _- _- _ _ _ _ -- ._____ ___-_-__- _ _ _ _ _ _ _ _ _ - _ ___- _ _ -

L .;

n. l The Commissioners  :

4. Categorical Exclusions The Comission recognized, at the time the proposed rule was approved for publication, that certain of-

. the proposed categorical exclusions were likely to l- elici.t controversial coment, but that failure to l include them would lead to severe impacts on NMSS

[ and other licensing offices. SECY-79-473, pp. 6-/.-  !

E In many cases the proposed categorical exclusions I drew little or no. comment'and have not been changed.

Others, such as Categorical Exclusion 14 (relating to a variety of materials licensing actions) have been modified and provided with stronger justifica-tion, as discussed in the preamble to the final rule. It should be recognized that the justifica-

. tion for some of the proposed categorical exclusions is weaker than for others. I believe, however, that this was recognized at the time the rule was proposed, that the justification remains adequate in all cases even after consideration of the comments, and that these categorical exclusions are all nec-essary if unacceptable resource impacts are to be avoided.

Category 4. The revised rule retains the categori-cal exclusion for entrance into, amendment, suspen-sion or termination of all or~part of a Federal-State Agreement pursuant to section 274 of the Atomic-Energy Act of 1954, as amended (Category 4.) The

. NRC response to CEQ's preliminary comments 2/ opposing this categorical exclusion and the discussTon and finding supporting the categorical exclusion appear respectively at pp. 59-64 and 85-89 of Enclosure A. .

The NRC response is consistent with the Comission's legal position in Natural Resources Defense Council, Inc. v. NRC, No. 77-240-B (D. New Mex.) (Church RockUraniumMill)_3]

-2/ See letter from CEQ to Executive Legal Director, NRC, dated October 29, T979 published in Appendix B, Notice of Proposed Rulemaking, 45 FR 13739 at 13766, March 3, 1980.

3/ The Order of the U.S. District Court approving the Stipulation of Settlement and dismissing this lawsuit without prejudice became final in August 1980.

l

'The Commissioners ,

i The Office of State Programs recommends that cate-gorical exclusion 4 be retained.in the list of categorical exclusions. ' The Office of Nuclear Material Safety and Safeguards notes,4/ on the other hand, that section 274 Agreements do not require Agreement States to prepare environmental assessments and environmental impact statements l for the same types of activities for which the NRC prepares environmental assessments and environ--

mental impact statements, and recommends that action be taken to rectify this problem as sug-gested in CEQ's letter.

Regulatory actions taken by States after a Federal-State agreement is in effect are State actions to which NEPA does not apply. Although Congress speci-fied the respective responsibilities of the Commission and the States for protecting the environment from r.adiation hazards associated with uranium mills and mill tailings when it enacted the Uranium Mill Tail-ings Control Act of 1978, Congress has not extended similar requirements to other Agreement materials.

Nor has Congress amended NEPA to extend the pro-visions of that Act to State actions. The actions of entering into, amending, suspending or termi-nating all or part of a Federal-State agreement (Category 4) are Federal actions. If Category 4 were eliminated from the list of categorical exclu-sions, these Federal actions would be subject to the environmental review requirements of revised Part 51.

It is unclear what NEPA review of the class of -

actions described in Category 4 would accomplish.

These Federal actions of entering into, amending, suspending or terminating all or part of a Federal-State agreement have no direct environmental effect.

Any indirect environmental effects which might be occasioned by subsequent State regulatory actions taken during the lifetime of the agreement are speculative and remote since information on the kind and number of future State regulatory actions 4/ See Memorandum for Guy H. Cunningham, III, Chief Regulations Counsel, DELD, from Richard E. Cunningham, Director, Division of Fuel Cycle and Material Safety, NMSS, May 2,1980, on P.oposed Revision of 10 CFR Part 51, especially Item 4. on page 2, (Enclosure F).

The Commissioners'  !

cannot be known and, in consequence, tne environ-mental effects of those actions cannot be neer-tained. Since, under these circumstances, n0 meaningful environmental impact statement or environmental assessment can be prepared, a cate-gorical exclusion for this limited class of Federal actions appears warranted.

Category 18. In response to public coment, a new categorical exclusion has been added to cover the issuance of amendments or orders authorizing licensees whose production or utilization facili-ties have been shut down for failure to comply with the emergency planning requirements of the Commission's emergency planning rule (45 FR 55402-55413, August 19,1980) to resume operation of those facilities when compliance with those emergency planning requirements has been demon-strated. This categorical exclusion (see 5 51.22(c}(18)) is consistent with the Comission's views that it is unlikely that ' resumption of opera-tion by a particular facility under these circum-stances would have a significant effect on the environment. (See 45 FR 55413-55415, August 19, 1980, Emergency Planning: Negative Declaration; i Finding of No Significant Impact for Effective Rule Changes. See also, 45 FR 3913 at 3915, January 21, 1980. Emergency Planning: Draft Negative Declara-tion for Proposed Rule Changes.)

CEO Review and Approval On February 22, 1982, this revision of 10 CFR Part 51 was submitted to CEQ for review in accordance with l

40 CFR 1507.3(a) which states that agencies shall adopt implementing procedures "only . . . after review by the Council for conformity with the Act [NEPA] and these

[CEQ's] regulations." On October 19, 1982, f ollowing discussions with the Executive Legal Director and the submission by NRC of additional revisions to the pre-amble and text of the draft final rule (see Enclosure G) the General Counsel of CEQ notified NRC that the Council had completed its review and determined that NRC's implementing procedures " address all of the sections of the regulations required to be addressed by [40 CFR]

Section 1507.3(b). . ." and that the ". . . NRC proce-dures will take effect and supplement the CEQ NEPA

l l

l' The Commissioners I f

regulations after they are published in final form in the Federal Register." (Fortextofcorrespondence between CEQ and NRC, see Enclosure G.)

Recommendation: That the Comission:

Aaprove publication of the Federal Register notice-

~

1.-

Unclosure A) promulgating revised 10 CFR Part 51,

" Environmental Protection Regulations for Domestic Licensing.and Related Regulatory Functions," and related conforming amendments in final form.

2. Note that:

1 (a) Revised Part 51 will become effective upon approval of the information collection require-ments by the Office of Management and Budget or 75 days after publication in the Federal Register, whichever is later.

(b) Upon approval by the Comission, revised Part 51 will be submitted to the Office of Management and Budget for clearance of the information collection requirements under the Paperwork Reduction Act of 1980 (Pub. L.96-511, 94 Stat. 2812-2826, approved Decem-ber 11,1980, effective April 1, 1981, 44 U.S.C. 3501 et seq.) Since OMB review may take 60-90 days from the date of publica-tion in the Federr.1 Register, the final rule will not be made effective until after that period. If approval is denied by OMB, the Comission will be notified. .

l l (c) The final rule is nct subject to the provisions of the Regulatory Flexibility Act because the notice of proposed rulemaking was issued on March 3, 1980 before the effective date of that Act (Sec. 4, Pub. L.96-354, approved .

September 19, 1980, effective January 1, 1981, I 94 Stat. 1170; see also 5 U.S.C. 601, note.)

(d) A Regulatory Analysis which describes the circumstances which led to the development of i revised Part 51 and explains why the NRC staff l- recommends promulgation of revised Part 51 in

j. final form is provided in Enclosure B.

l l

., ' . 4 I 'h-The Commissioners L , s.

(e) No conforming amendments'have been made to' 10 CFR Part 60 which establishes licensing procedures for the disposal of high level -

radioactive wastes in-geologic' repositories.

~

Any conforming changes needed will be made.

later in conjunction with amendments prepared to implement the provisions of the Nuclear

' Waste Policy Act of.1982,' Pub.-L.97-425,,

. approved-January 7, 1983.

(f) The appropriate Congressional Comittees will be informed.

-(g) A public announcement such as Enclosure H, which was prepared by the Office of Public-Affairs, will be issued when the Federal-Register notice is filed with the Office of-the Federal Register.

(h) _ Copies'of the Federal Register notice will be distributed to affected licensees and other interested persons by the Office of Administration.-

'(i) Several cross-references in Enclosure A are for Comission convenience only and.will be deleted from the Federal Register notice prior to publication to satisfy Federal Register.

format requirements.

i Scheduling: CEQ set July 30, 1979 as the target date for final agency implementing regulations. Most Federal agencies now have' final regulations implementing the procedures in section 102(2) of NEPA in effect. Enactment of the

~

Nuclear Waste Policy Act of 1982 has increased the need to promulgate revised Part 51 in final form. Early Comission action promulgating the final rule would also enable the staff to carry out NRC's NEPA responsibilities in a more effective and efficient manner.

/ -

b William .,Dircks Executive Director for Operations

Enclosures:

See page 11

1 L

The Commissioners t

Enclosures:

A. Federal Register Notice of Rulemaking B. Regulatory Analysis C. Comment letters reproduced in L full text D. Compendium of Coments and NRC

Response

E. Comparative Text Showing Conforming Amendments Made to Effective S-3 Rule to Incorporate The Rule Into Revised 10 CFR Part 51 F. May 2, 1980 Memorandum from Richard E.

Cunningham, Director, Division of Fuel Cycle and Material Safety, NMSS, transmitting staff comments on proposed revision of 10 CFR Part 51 G. Correspondence between NRC and CEQ dated February 22, 1982, Septem-ber 16,1982 and October 19, 1982 -

H. Public Announcement Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Monday, August 1, 1983.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Monday, July 25, 1983, with an infor-mation copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of August 1, 1983. Please refer to the appropriate Weekly commission Schedule, when published, for a specific date and time.

DISTRIBUTION:

Commissioners OGC OPE OCA OIA OPA REGIONAL OFFICES EDO ELD ACRS ASLBP ASLAP SECY

y . . . - - - . - - - - - - - . - . _ , - . - -- - ...

8 4 0 .

F e 4

r. 4 . . n L I e 4 .M .4

, *

• g

-a .}

• p q

S '

4' t

• +

' ,

• e n%

'? Q 'I

• l

', g. 6 i

w.  % b 4 .

% J  ;

n .$ 1 e s W* m

~ e M ***

I I 6 4

s

! r A-6  % I q  %

. 4

$e *

. ' s

• . a j ( g _  % , 8 k Ww

-a ~

J W

f s f f ..

• 9 e

0 o

M -

4 .

6 <

v ENCLOSURE A S

/

/ .

4 O

e G

a W

t

- ~ _ - - - - - - _ _ _ _ _ _ _ _ _ _ _ ___ .-

~

-NUCLEAR REGULATORY COMMISSION C 7

-10'CFRLParts'2,'30,'40,'.50 51 j61' 70' 72 and 110(.

, , l b . Environmental Protection Regulations for Domestici i - Licensing and' Related ' Regulatory Functioris and -

'Rel'ated Conforming' Amendments

. . AGENCY: Nuclear Regulatory Comission -

' ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission is revising Part 51 of its regu-lations to. implement section 102(2) of the National Environmental Policy Act

,. .s . .

of 1969,'as' amended (NEPA) in a manner which is c' onsistent' with the NRC's' domestic licensing and related regulatory authority. This rule reflects the .

Comission's policy to develop regulations to take account of the. regulations of the Council on Environmental Quality (CEQ) implementing the procedural provisions.of NEPA voluntarily, subject to certain conditions.

EFFECTIVE DATE: (Upon approval of the information collection requirements by the Office of Management and Budget or 75 days after publication in the-FEDERAL REGISTER, whichever is later.)

FOR FURTHER INFORMATION CONTACT:

Jane R. Mapes, Senior Regulations Attorney Regulations Division, Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Telephone: (301) 492-8695

SUPPLEMENTARY INFORMATION:'

On _ March 3.1980, the Nuclear Regulatory Comission published in the FEDERAL REGISTER (45 FR 13739-13766) a proposed revision of 10 CFR Part 51

and.related conforming amendments to 10 CFR Parts 2, 30, 40, 50, 70 and 110 _

- of'.its regulations. Interested persons were invited to submit written ,

comments and suggestions on the proposed amendments during the sixty . day ,

coment period which expired May 2,1980. Coments were also' solicited on several provtsions of the CEQ regulations which the Comission had.identi-

.fied as requiring further study before implementing regulations could be prepared.

In addition to the preliminary views of the Council on Environmental

s.  : ....r.- .

. . ~. . :. .. y Quality as set out in CEQ's letters'of September 26, 1979 and October '29,'

1979 which were published in Appendix B to the proposed rule, the Comission received twenty-one letters of coment, expressing the views of interested Federal agencies, state and local governments, industry, including electric utilities, vendors and architect-engineers, professional organizations and indi-vidual members of the public. The letters contained more than 100 individual comments and in some instances represented the views of several comenters.

Comments were also received from interested members of the NRC staff.

I As requested in the Comission's notice of proposed rulemaking, several comenters expressed views on the following sections of the CEQ regulations:

40 CFR 1502.14(b), 1502.22 (a) and (b) and 1508.18. A brief description of each of these provisions, accompanied by a summary of the relevant comments l and a statement of the Comission's present views on the issues raised, is. ,

set out below. The views of the commenters are fully set out in the indi-vidual letters of comment and in a subject matter compendium which has been placed with the letters in the Commission's Public Document Room at 1717 H Street, N.W., Washington, D.C. where they are available for inspection and copying. Since the topics addressed by 55 1502.14(b) and 1502.22(a) of CEQ's regulations are interrelated, these sections will be discussed together.

By way of preface, the Commission restates its view that, as a matter of law, the NRC as an independent regulatory agency can be bound by CEQ's NEPA regulations only insofar as those regulations are procedural or ministerial in nature. f!RC is not bound by those portions of CEQ's NEPA regulations which have a substantive impact on the way in which the Commission performs

. , . . . . ;. .. .. . : +,. .<. ..

its" regulatory function.s. ' '

Consideration of Alternatives

1. 40 CFR 1502.14(b). This section provides that the environmental impact statement "[d]evote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits."

l In addition to the Council on Environmental Quality, eleven commenters responded to the Commission's request for views on this provision of the CEQ regulations. Of these eleven commenters, four provided brief statements expressing general support for 40 CFR 1502.14(b). Seven commenters voiced the opinion that 5.1502.14(b) does not accurately reflect the statutory mandate of NEPA' with respect to the consideration' of alternatives. Relying l

~

4 on judicial' decisions

• handed down since the enactment of NEPA, these comenters-stated that consideration of alternatives in an environmental impact statement.

is subject to a rule of reason, that neither the number of alternatives con-sidered nor the amount' of information furnished concerning each alternative need be exhaustive. According to the comenters, consideration need only be given to reasonable alternatives to the proposed federal action; the detail and amount of information furnished concerning the environmental consequences of each of tho.se alternatives, including the proposed action, need only be. sufficient to permit the decisionmaking agency to make a rea-soned choice ainong those alternatives so far as environmental consequences are concerned. The comenters noted that the courts have recognized that Federal agencies have a responsibility to reach meaningful decisions respect-ing environment'al consequ'esces ff the ob$ectives' of NEPA' are t'o'be"aIhis04'd.'

The commenters pointed out, however, that although the courts have taken a close look at the adequacy of the information on which those decisions are based, the courts have not required agencies, under the rule of reason, to supply' or obtain more detailed information when the information needed for a meaningful decision is adequate.

2. 40 CFR 1502.22(a). This section provides that "[i]f the infor-mationrelevanttoadverseimpactsisessentialtoareasonedciloiceamong alternatives and is not known and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the environmental impact statement."

^

Seven comenters, including the Council on ' Environmental Quality,

~

submitted views on 40 CFR 1502.22('a).~ Two comenters expressed general

I< -:

. agreement with the CEQ position Ehat the standard set forth in 40 CFR

~1502.22(a) merely restates existing NEPA law, is subject to'a. rule of L

reason, and therefore should be. adopted by the Comission. One of these commenters also expressed concern that failure.to obtain the requisite information as mandated by 40 CFR 1502.22(a) would preclude the Comission from carrying out its NEPA responsibilities to make a rigorous comparison of the proposed action with available alternatives. .

Several comenters expressed the view that the standard imposed by 40.CFR'1502.22(a) should not be automatically applied in every case because it would place "a burden on the NRC in preparing an EIS that is not required by NEPA." These comenters noted that "NEPA cannot be read as a requirement

~

' thak i5Eil'ete'in N rmatien 'concein'i E th'b e'ivfronmentai ,i$p'a d 'of Y pNoj $t must be cbtained befort action may be taken," and,that this CEQ provision could have the practical effect of "requir[ing] that the EIS not be used as a decision-making document, i.e., does not satisfy the mandate of NEPA, until all ' relevant' information is available so long as the costs of obtain-ing such information are not 'exhorbitant'."

One comenter emphasized the importance of care and restraint in deter-mining when costly information is essential to a reasoned choice among alternatives. The comenter suggested that requests for data involving large costs should "be justified on the basis that the magnitude of the benefits to be derived from the information clearly exceed the costs asso-ciated with obtaining and analyzing this information...." and that require-ments for data involving large costs "should be limited to matters that i

. n. -

7 y

speak to the basic license ability [ sic licensability] of the preferred.

site'/ plant combination."

Several commenters stated that NEPA does not require that all relevant

~

information regarding the adverse impact of' alternatives, including informa-tion which is not readily available because it is expensive or otherwise difficult to obtain, be knovn before a decision is reached. According to these commenters, NEPA merely requires that the decisionmaker be informed of any uncertain or unknown environmental effects. In each case, responsi-bility for evaluating the sufficiency of the information rests with the decisionmaker who must determine first, whether it is possible to make a reasoned decision on the basis of the information provided, and second,

. ~  :. ..  : .~. . . . . ..... . , .. . .. .. . - ,

whether in 'the absence 'of' adequate informatio..n, more information should be i obtained or a decision should be made not to proceed with the proposed action. In the opinion of the commenters, strict application of the stand-ard in 40.CFR 1502.22(a) would not only eliminate this element of flexibility in agency decisionmaking, it would also lengthen the time needed to complete NRC environmental reviews. The commenters expressed the view that applica- '

tion of the rule is unlikely to result in better decisionmaking and could .

have a severe and detrimental effect on the ability of the NRC, as an inde-pendent regulatory agency, to carry out its substantive licensing and related regulatory functions in a responsible and objective manner.

The primary mission of the Nuclear Regulatory Commission is to regulate civilian nuclear energy activities to ensure that they are conducted in a manner'wh'ich will protect the publ.ic from. the standpoint of ' radiological. -

. , ~

heaTth and safety',' maintain national' security, comp' l y with 'the antitrust

laws and, since the passage of the National Environmental Policy Act of 1969, protect the environment. Charged with carrying out th'e licensing and related regulatory functions of the former Atomic Energy Comission,E the NRC has no authority to encourage and promote the development of atomic energy for peaceful purposes. Nor does it bear any responsibility for the development or regulation of other energy sources.

Within this framework, the possible actions which the Comission itself may take are limited. Their scope is determined in the first instance by the nature of the application or petition presented to the Comission for action. So far as Comission action is cencerned, the available alternatives are to grant the application, grant the application subject to certain

.~ .

. . :. .a- n. .

conditions, or deny the app 1'ication, either with or without prejudice. '

Although the Comission has an obligation to determine the accuracy and relevance of the safety-related and environmental information presented and to perform the requisite safety and environmental analyses, the Comission has no power to compel an applicant to come forward or to require an appli-l- cant, once having come forward, to prepare and submit a totally different proposal, for example to construct and build a different type of nuclear power reactor pursuant to detailed specifications furnished by the Comission on a site identified by the Comission but not chosen by the applicant. As an independent regulatory agency, the NRC does not select sites or designs or participate with the applicant in selecting proposed sites or designs.

-1/ The Atomic Energy Act of 1954, as amended, Pub. L.83-703, as amended, 42 U.S.C. 55 2011 et seq.; the Energy Reorganization Act.of 1974, as

. amended, Pubr L.93-438, as amended, 88 Stat. 1233-1254, see.especially 42 U.S.C. 55 5841 zet- seq. .

1 .

In preparing this revision of 10 CFR Part 51 in final form, the Comis-sion has reviewed its regulatory experience under NEPA, both from the stand-point of the kinds of alternatives which'are considered in making environ-

. mentally sound regulatory decisions and the kinds and amounts of information l.

D needed to evaluate the comparative merits of those alternatives. In the usual case, these alternatin, include the alternative of no action (denial 1

of the application) and reasonable O'?ernatives outside the jurisdiction of the NRC. -

p l

The . types of alternative actions which the Comission itself is able to take reflect the Comission's functional role--the role of an independent-l

' regulatory agency authorized to perform quasi-judicial and quasi-legislative

.....4 .. . . , , . .- .n ..f.

functio,ns. The dedisions which the Comission is . required to make in carry-ing out its responsibilities as an independent regulatory agency play an equally important role in determining whether, frem the standpoint of NEPA, l

all reasonable alternatives have received substantial treatment and whether the information submitted with respect to each alternative is sufficiently 1

i detailed. In developing these regulations, the Comission has tried to ensure that, at the respective points of decision, sufficient information ,

will be available for meaningful consideration and comparison of a reason-able spectrum of alternatives, leading, in turn, to a reasoned decision.

The Comission believes that the provisions of subpart A of Part 51 are con- >

sistent with the standard in 40 CFR 1502.14(b), that alternatives selected for detailed consideration be accorded substantial treatment. The Comission is also of the opinion that the way in which the NRC conducts its environ-mental. reviews implements-this stand'ard in a. responsible and meaningful' manner. This 'ine'ludes the practice of handling generic mat'ters (for example,

k

-those which are common to all power reactor licensing proceedings and which may relate to environmental as well as safety . issues) in generic rulemak' ing proceedings and generic environmental impact statements. . Generic environ-mental issues whien have received this kind'of analysis and review need not be accorded the same kind of detailed consideration as that given to issues arising solely in the context of a specific licensing proceeding.

The Commission _ intends to follow the standard in 40 CFR 1502.22(a), though it notes that implementation of 5 1502.22(a) may present substantive issues, specifically whether information which is not known is (a) relevant to adverse impacts, (b) essential to a reasoned choice among alternatives, and (c) obtain-

, able at a cost which is not exorbitant. Based upon its past experience, the l ..- .... . .

. . : .-:. ,. :.. . . . . . . . ... m. . . ., . . .

Commissich believes that' it'w'i1T seldom?, if ever',' be' called upon to determine';. '

~

l 1

L whether the cost of obtaining unknown information deemed relevant to adverse impacts and essential to a reasoned choice among alternatives is or is not L

exorbitant. In the unlikely event that the issue is presented, the Commission l

l- reserves the right to resolve the matter in a manner which is consistent with l

l the Commission's responsibilities as an independent regulatory agency.

As illustrated in the following description of the manner in which NRC consid'ers alternatives in connection with its environmental review of license applications for nuclear power plants, the amount of detailed information needed to make a reasoned decision on each of the many issues presented varies substantially among issues but is in each case commensurate with the -

nature of the issue addresseo. With respect to most issues, with the possi-

'ble exception of those relating to radiological matters, information need - -

+

n'ot' be p' resented in the same' degree of ' detail as that furnisned in support

_g.

__.____-_____m m __. ___m______.._________m

w

. of the , applicant's proposal. In the review of alternative sites, for example, the' Commission has found that reconnaissance-level information is adequate to assure that.these alternatives are accorded substantial treatment.

Consideration of Alt 5rnatives in NRC Environmental Review and Analysis of License Applications for Nucliar Power Plants ,

In the customary NRC environmental review, detailed descriptions are prepared of the proposed plant, of the site on which the plant is proposed to be located, of the need for the plant, and of the environmental impacts likely to result from construction of the plant and from station operation.

The following alternatives to the project are then addressed:

s. .: - -

J- ..,. .

. . i .: .. ... +  ;

. .i p 1. Alternative enercy sources and systems, including alternatives which do not require new generating capacity and alternatives which do require new generating capacity. The former include such alternatives as pewer purchases, reactivation of retired plants, extension of the service life of existing plants and conservation measures. The latter include other alternative energy sources uniquely available to the applicant. In each case, consideration is given to the following types of energy soure's; solar and wind, geothermal, petroleum liquids, natural gas, hydrodynamic, advanced nuclear, municipal solid wastes, biomass and coal. After the l

available alternative energy sources have been identified, they are cate-gcrized as competitive or non-competitive.

~

The amount and' type of information 'needed to make a determination that a particular energy source is not available, or that' a particular energy

[ . .

~

i i

source, although available, is not competitive, is less extensive than that l

required to evaluate the comparative advantages and disadvantages from the standpoint of the environment between the proposed plant which is the sub-ject of the license application and an alternative energy source which is both available and competitive. dnceitisreadilyapparentthatanalter-native is non-competitive, either because of its technological status or lack of availability, the only data and information required with respect to that alternative is that needed to explain why the alternative is no longer being considered. Similarly, it is possible to reach a meaningful decision on the issues presented at subsequent levels of review (for example, classi-fication of alternatives as environmentally preferable, environmentally equivalent, or environmentally inferior to the applicant's proposed plant,

. ' ~

~ '" '

' ardi compa7ilon Sh the applicadti ' pro ~pos'e'd blant dith e'nvironnienEall) freferY, able or environmentally eouivale'nt alternatives) without insisting that the l

amount and type of information presented respecting the alternative energy sou.ce be as extensive and detailed as that provided concerning the facility i sought to be licensed.

l

2. Alternative sites. The Commission uses a two-stage decision standard to assure that adequate consideration has been given to alternative l locations for constructing power generation facilities to meet the demon-strated need. The first part of this standard requires that the applicant submit a slate of alternative sites which are "among the best that could reasonably be found" inside a region in which it is reasonable to construct a plant to meet the projected need for power. The second part of the stand-

.ard. requires 'that the' propo' sed site be approved only if no obviously superior-

.. s .. . . .

siterriative site has been identified.

The reason for considering alternative sites is that many environmental

~ impacts can be avoided'or significantly reduced through proper' selection of l

the location for a new generating facility. These significant impacts which j

can be avoided or reduced are also readily' detected at the planning stage of a power plant. For this reason alternative site reviews are encouraged as early as possible in the process of licensing a power plant and the use of reconnaissance-level information for making the comparative analyses is urged. The use of reconnaissance.e-level information to identify potentially significant envir.onmental impacts has been extensively used and while it may not be possible to optimize design or make detailed impact predictions based on such information it is still sufficient to make decisions at the pre-design stage to determine which site should be chosen. It is highly unlikely that

' ~ '

^ detail'edexamin$jono'fthesiteseIectedwouTdreve"alasignIficant nviron- ~

mental impact that had escaped the reconnaissance-level investigations.

Based on its past experience, the Comission has found reconnaissance-level information adequate for informed environmental decisionmaking on alterna-tive sites.

3. Alternative olant systems. These systems include alternative heat dissipation systems, alternative circulating water systems and alternative non-radioactive-waste-treatment systems.

Several levels of review, each requiring differing amounts and types of information, are used in evaluating alternatives to the heat dissipation j systems and circulating water systems of the proposed plant. An initial

• - screening-is performedito' eliminate ' alternative systems or system components which are obviously unsuitable for use'at the proposed site, or are obviously.

- I l

l . incompatible w th the types of systems expected to be used in the proposed plant. The remaining alternatives are screened again for the purpose of identifying these which are environmentally preferable, environmentally equivalent or environmentally inferior to the systems which the applicant is

, proposing to use in the proposed plant. The baseline systems against which l

l the alternative systems are compared are those proposed by the applicant l

l with any verified mitigation schemes to limit adverse impacts. The infor-l mation needed to make this determination varies among alternatives and from case to case according to the type and magnitude of the anticipated environ-mental impact. Only limited information, mfficient to' justify the reasons given, is needed concerning alternatives kMch are rejected. Considerably more information is needed to compare the proposed systems with the environ-

'~

~ ~

menta11h pref'erablir a te'fnatiile. .

4. Alternative Transmission systems. These alternatives include alternative transmission corridor routes, alternative system designs and alternative construction and maintenance practices.

The consideration given to these alternatives is similar to that given to the preceding types of alternatives. As in those cases, the amount and type of information needed concerning a particular alternative is highly variable depending for the most part on the nature and level of the environ-mental evaluation and review. Thus, far more detail is required to make a rigorous comparison between an environmentally preferable alternative and the applicant's proposal than is needed to determine which alternatives are environmentally 'prefersb' l e, environmentally inferior or environmentally '

' * ~

,.,,.o

l equivalent to the applicant's proposal or to screen out alternatives which, for varying reasons, will not be considered.2/

g The courts have consistently held that the test of an agency's NEPA obligation to consider alternatives is subject to a rule of reason.3_/ In ,

overturning a holding of the Court of Appeals that rejection of an alterna-j tive, in this case energy conservation, on the b' asis of a threshold test was capricious and arbitrary, the United States Supreme Court stated:

... the term " alternatives" is not self-defining. To make an impact statement something more than an exercise in frivolotts 3 boilerplate the concept of alternatives must be bounded by some notion of feasibility. As the Court of Appeals for the District of Columbia Circuit has itself recognized:

"There is reason for concluding that NEPA was not meant to

-. -. require detailed discussion of.the environmental effects.cf . -

' alt'ernatives' put forward in" comments when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies --

making them available, if at all, only after protracted debate and litigation not meaningfully compatible with the timerframe of the needs to which the underlying proposal is addressed." Natural Resources Defense Council v. Morton, 148 U.S. App. D.C. 5, 15-16, 458 F.2d 827, 837-838 (1972).

See also Life of the Land v. Brinecar, 485 F. 2d 460 (CA9 1973),

cert. denied, 416 I).S. 961 (1974). Comon sense also teaches us that the " detailed statement of alternatives" cannot be found '

wanting simply because the agency fa.iled to include every alterna-tive device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement 2/ The review of alternatives is limited to alternatives that are applicable to and compatible with the proposed plant, the applicant's service area and the regional transmission network, alternatives that are not pro-hibited by local, state or federal regulations, and alternatives that can be judged as practical from a technical standpoint with respect to the proposed dates of plant operation.

3/ Natural Resources' Defense CounciI,'Inc. v. Morton, 458 F. 2d' 827 at 834, 837- (U.S. App. D.C. 1972).

1 fails because the agency failed to ferret out every possible alte.r-  :

native, regardless of how uncomon or unknown that alternative may

- have been at the time the project was approved.....

Vermont Yankee Nuclear power Corp. v. NRDC, 435 U.S. 519 at 551 (1978). Accord: Seacoast Anti-Pollution Leacue v. Nuclear Recula-tory Comission, 598 F.2d 1221 at 1223 (1st Cir.1979).  ;

In Sierra Club v. Morton, 510 F.2d 813 at 820 (5th Cir.19.75), the Court of Appeals stated:

... the courts have approached their review of claims that con-gressionally specified detail of environmental effects was lacking in an EIS with a view that Congress did not intend to mandate perfection, or intend "for an impact statement to document every .

particle of knowledge that an agency might compile in considering I the proposed action." (Footnotes omitted.)

l In Cady v. Morton, 527 F.2d 786 at 796 (1975), the Court of Appeals l

, 2,, -

for. the. NintA C.ir.cuit7concluded.,that. "the fact .that the. EIS. concedes that . .i.j certain environmental effects are not known ... does not necessarily under-mine the adequacy of the statement..." The court reasoned: ,

Neither 5102(2)(B) or (C) [42 U.S.C. I 4332 (2)(B) or (C)) can be read as a requirement that complete information concerning the environmental impact of a project must be obtained before action ,

may be taken. If we were to impose a requirement that an impact  !

statement can never be prepared until all relevant environmental  ;

effects were known, it is doubtful that any project could ever be l initiated. Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d i

~'

1275, 1280 (9th Cir. 1973).

With respect to the requisite level of detailed information,-I the courts hav.e held that the detail required "... is that necessary to establish  ;

that an agency in good faith objectivity has taken a sufficient lock at the l l

environmental consequences of a proposed action and at alternatives to that 4/ 'An agency's information-gathering ob1'igations,.like an agency's other~.

NEPA obligations,are necessarily boundei by .a rule of reason.. State of ~

Alaska v. Andrus, 580 F.2d 465 at 472-473 ~(D.C. Cir.1978).

~

j

__-----_----------_------__------------.--------s --

. action."E Information has been considered sufficient if it permits a

-reasoned choice to be made-among different courses of action and if it provides enough detail to enable those who did not have a part in compiling l

l the information to understand and consider meaningfully the pertinent environ-mental influences involved.

The consideration to be given alternatives is discussed in the opinion of the Atomic Safety and Licensing Appeal Board in ALAB-531 (IntheMatter of Portland General Electric Company, et al., Trojan Nuclear Plant, Docket No.50-344,9NRC263(1979).)N In that case, which involved.an amendment to an operating license for a facility for which a full f! EPA review had already been conducted, the Appeal Board affirmed the ruling of the Licensing

. 3 ,

. . ~ , , . . , , , , , ,j, Board that an environmental impact statement need not be prepared in con-nection with an amendment to the operating license for the Trojan nuclear facil1ty which amendment would permit the expansion of the capacity of the facility's spent fuel storage pool by replacing the existing storage racks thich provided space for 280 fuel assemblies with new storage racks which would provide space for 651 fuel assemblies. The conclusion of the Licensing Board was based on a finding that the environmental impacts .

associated with the expansion of the capacity of the spent fuel pool were 5/ Save Our Sycamore v. Metropolitan Atlanta, Etc., 576 F.2d 573 at 576 (5th Cir. 1978).

6/ In evaluating this decision of the Appeal Board, it is important to keep the factual context in which it was rendered clearly in mind. The action under consideration was an amendment to an operating license.

Prior to issuance of the operating license, a full t! EPA review, including consideration of alternatives, was conducted. NEPA does not require that

. . the same ground"be' replowed. - -

localincharacterandinsignificantinextent.U For this same reason, the Licensing Board also declined to consider alternatives to pool capacity expansion, reasoning that "...if the environmental effects of the proposed action are negligible, the impacts of, any alternatives perforce must be equal or greater..." and citing 'isierra Club v. Morton, 510 F.2d 813, 825 (5th Cir.1975) for the proposition that alternatives which would occasion similar or greater harm need not be evaluated. 8 NRC at 454."8 The Appeal Board endorsed this view, stating:

As we read it, the NEPA mandate that alternatives to the proposed licensing action be explored and evaluated does not come into play in such circumstances -- in short, there is no obligation to .

search out possible alternatives to a course which itself will not

. s either harm the envi.ronment or bring. into serious question the- .

,' ~

~ '

. ,e .

manner in wh'ich this country's' res'ou'ces r 'are"b'eing expended.'

9 NRC 263 at 266.

The Appeal Board also concluded that:

...the staff and Licensing Board properly confined themselves to an identification and appraisal of those environmental effects directly attributable to the expansion of the capacity of the Trojan pool. Because pending or past licensing actions affecting.

the capacity of other spent fuel pools could not either enlarge the magnitude or alter the nature of those effects there was thus no occasion to take into account any such actions in determining the license application at bar. 9 NRC 263 at 268.

As indicated in the preceding discussion, the Commission's general approach to'the consideration of alternatives from the standpoint of NEPA is closely tailored to the nature and scope of the Comission's licensing and

-7/ "[T]he evidence establishes without contradiction that the process of installing the new racks in that pool'and the operation of the pool with its expanded capacity will neither (1) entail more than negligible environmental impacts;.nor (2) involve the commitnlent of available f resourcesrespecting which the're<are. unresolved conf 1icts...(footnotes omitted)."~ 9. NRC 263 :at 265.- .

8f 9 NRC 263 at 265.

~

.related regu.latory functions, including the fact that the Comission's role in protecting the radiological health and safety of the public is a limited one, confined primarily to granting applications with or' without conditions .

or denying applications, and does not include authority to undertake develop-mental programs. At the same time, the Comission and the NRC staff have made a concerted effort to make sure that this approach is implemented 1n such a way that the basic NEPA requirement that an agency in good faith  !

objectivity take a hard look at the environmental consequences of a proposed action and at the alternatives to that action,9I is fully satisfied.

From the standpoint of the Comission's basic functions, the Comission is of the opinion that this approach, which has been followed in revised Part 51, is both best suited to achieving the objectives of NEPA and consistent with the

. . s'

~ . ; 2..:

provisions of NEPA as interpreted by the courts in light of the rule of reason.

Worst Case Analysis

3. 40 CFR 1502.22(b). This section provides that "[i]f the infor-mation relevant to adverse impacts is essential to a reasoned choice among alternatives and is not known and the overall costs of obtaining it are ,

exorbitant or (2) the information relevant to adverse impacts is important to the decision and the means to obtain it are not known (e.g., the means for obtaining it are beyond the state of the art) the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the action to proceed in the face of uncertainty. If the agency 9/ '

NaturaT Resources' Defense Council c Inc. v. Morton[458 F.2d 827 (U.S. ^

- ~ App."D+C. 1972). .. . m m

proceeds, it shall include a worst case analysis and an indication of the probability or improbability of its occurrence."

Section 1502.22(b) sumarizes the environmental decisionmaking process and identifies the points at which agencies must make decisions when infor-mation is not known. Thus, each agency must decide for itself whether the information which is not! known is relevant to adverse impacts and if relevant, whether the information is important to the decision. The agency must also decide whether it wishes to proceed with the action in the absence of needed information. Up to this point, the Comission has no difficulty with the provisions of i 1502.22(b). The problem lies in the final sentence which states that "[i]f the agency proceeds [with the action], it shall include a wo'rstcaseanaihisanda'n'indicationofkheprbb'abklityor mproba'bility' of'

' ~

its occurrence." By thus specifying'what information the agency must consider in order to achieve the NEPA policy goal of minimizing adverse impacts and in order to make a reasoned decision among alternatives, i 1502.22(b) becomes, in essence, a substar.tive requirement rather than a procedural regulation.

As stated earlier, it is the Comission's view that NRC is not bound by those portions of CEQ's NEPA regulations which have a substantive impact on ,

the way in which the Commission performs its regulatory functions. As dis-cussed in the following paragraphs, the Comission has articulated its l

interim policy regarding Nucletr Power Plant Accident Considerations under NEPA (45 FR 40101-40104, June 13, 1980).

The courts have held that the nature and form of environmental analysis

~

required in any'given case are matters 7 eft to the discretion of the agency involved. Alaska v. 'Andrus, 58'O I.-2d 465, 480 (D b. Cir.1978). This' musk

~l be particularly true where determinations respecting th'e nature and form of that environmental analysis' involve consideration of complex technical

. questions particularly within the competence' of the agency to evaluate. In these circumstances, the judgment of the NRC as the agency with the requi. site technical expertise should govern.

l Since December 1,1971, when the former Atomic Energy Comission pub-lished a proposed Annex to Appendix D.of 10 CFR Part 50 (36 FR 22851) con-taining certain standardized assumptions to be used by applicants in dis-cussing accidents in environmental reports, both the AEC and the NRC, its successor agency, have been actively concerned with the problem of how the

- consequences of nuclear power plant accidents should be evaluated, both from

' ~ ~

lEheYtandiNintoYkNiefya'n2 fro $itU'standhin of their environment 51' impact. This continuing concern led to the publication of the Reactor Safety Study (WASH-1400) in draft form in August 1974 and final form in October 1975, followed by the publication in September 1978 of the " Risk Assessment Review Group Report to the U.S. Nuclear Regulatory Comission,"

NUREG/CR-0400. On January 18, 1979, the Comission issued a policy state-ment on the Reactor Safety Study in light of the Risk Assessment Review-Group Report. In this policy statement, the Comission accepted the find-ings of the Review Group on the achievements and limitations of the Reactor Safety Study. The accident on March 28, 1979 at Three Mile Island, Unit 2, emphasized the need for a change of policy on how to analyze and evaluate the environmental consequences of accidents.

~

' ~

On June'13, 1980, the- Comission respondedJto this ne'ed by publishing a c . _ .,- . . .

2 .- .

Statement of Interim Policy (45 FR 40101-40104) containing g'uidance,'to be

effective imediately, on the treatment to'be accorded nuclear power plant accidents in environmental impact statements prepared pursuant to sec-tion 102(2)(C)ofNEPA. In issuing the interim guidance, the Comission noted that its " experience with past NEPA reviews of accidents [ conducted in accordance with the set of standardized assumptions contained in the former proposed Annex to Appendix D of 10 CFF Part 50, now withdrawn] and the TMI accident clearly leads us to believe that a change is needed...." The-Comission also stated that "... pen. ding completion of rulemaking activities in the areas of emergency. planning,E siting criteria, and design and operational safety [ including rulemaking relating to degraded core cooling and core melt accidents] all of which involve considerations of serious accident potential, the Comission finds it essential to improve its proce-

.. ' ::. . ~'

1 . . . . , . . .  :.. . . - .. ..

' du'res' for describing and'disclos'iiig to the' public trie basis' for arriving at conclusions regarding the environmental risks due to accidents at nucle'a r power plants. . . ."

It is the Comission's expectation that this guidance E will remain in effect until such time as the Comission is able to continue the rulemaking proceeding initiated December 1, 1971, for the purpose of codifying the Com-mission's position on the treatment of accident risks under NEPA. Because

-10/ On August 19, 1980, the Comission published a final rule, to be effective November 3,1980, upgrading its emergency planning regula-l tions (45 FR 55402-55413.)

-11/ The Comission's prior position as set out in the former proposed Annex to Appendix D of 10 CFR Part 50 has consistently been upheld by the courts. See: Carolina Environmental Study Group v. United States, 510 F.2d 796 at 799 (1975); Vermont Yankee Nuclear Power Corp. v. NRDC,

'435 U.S.-519 at 551 (1978');'Hodder v. NRC, 13 ERC 1711 (1978), ce'rt. '

- . denied,13.ERC1713~(1979). < - . ,

E .

of the number and importance of other safety-related matters which are rele-vant to accide'nts and their consequences and which must first be addressed in teparate rulemaking proceedings, it is the Comission's considered opinion that it would be premature at this time to attempt to codify the ' guidance and formally incorporate it into the Comission's regulations. As indicated in the cuidance, the Comission expects the experience gained under the Statement of Interim Policy and the close study given to significant safety-related issues in cpnnection with the Comission's on-going activities, including rulemaking, to make existing and future nuclear power plants ,

safer, to play an important and femative role in determining the scope and content of future NRC regulations dealing with the treatment of accident risks under.NEPA.

,- .p , . .

As formulated in the Statement of Interim Policy, the Comission guid-ance on how accident considerations are to be handled in future NEPA reviews, states, in part, that It is the position of the Comission that its Environmental Impact Statements, pursuant to ... [NEPA] shall include a reasoned consideration of the environmental risks (impacts) attributable to accidents at the particular facility or facilities within the '

scope of each such statement. In the analysis and discussion of such risks, approximately equal attention shall be given to the probability of occurrence of releases and to the probability of occurrence of the environmental consequences of those releases.

Releases refer to radiation and/or radioactive materials entering environmental exposure pathways, including air, water, and ground water.

Events or accident sequences that lead to releases shall include but not be limited to those that can reasonably be expected to occur. In-plant accident sequences that can lead to a spectrum of releases shall be discussed and shall include sequences that can result in inadequate cooling of reactor fuel and to melting of the reactor core. The extent .to whi.ch events arising from causes "

external- to; the plant which are considered- possible contributors -

to the risk associated with the particular plant shall also be discussed....

+

The environmental consequences of releases whose probability of '

occurrence has been estimated shall also be discussed in probabil-istic terms. Such consequences shall be characterized.in terms 6f potential.. radiological exposures to individuals, to population groups, and where applicable, to biota. Health and safety risks that may be associated with exposures to people shall be discussed .

in aimanner that fairly reflects the current state of knowledge regarding such risks. Socioeconomic impacts that might be asso-ciated with emergency measures during or following an accident should also be discussed. The environmental risk of accidents should also be compared to and contrasted with radiological risks associated with normal and anticipated operational releases.

In promulgating this interim guidance, the Comission is aware that there are and will likely remain for some time to come many uncertainties in the application of risk assessment methods, and it expects that its Environmental Impact Statements will identify.

major uncertainties in its probabilistic estimates. On the other hand the Comission believes that the state of the art is suffi-ciently advanced that- a beginning should now be made ir, the use'of these methodologies in the regulatory process, and that such use will represent a constructive and rational forward step in the discharge of its responsibilities.

,. . .;.  :. . . - e -: , ..- s .: '

.. ,. m ,m .; . .

Applied consistently, in accordance with its terms, the Comission's Statement of Interim Policy on Nuclear Power Plant Accident Considerations under NEPA can be expected to have a broad and pervasive impact. Under the provisions in 40 CFR 1502.22(b), an egency need only undertake the prepara-tion of a worst case analysis, including an indication of the probability or improbability of its occurrence, when information relevant to adverse impacts is essential to a reasoned choice among alternatives, is not known and -

cannot be obtained and the agency has decided to take the action despite the demonstrable absence of infomation. In these circumstances, which are l limited to those in which the uncertainty of the requisite infomation base is recognized, the worst case analysis serves as a counterweight which the agency is required to place in the balance to assure that the need for the action which the agency is, in fact, planning to take is properly weighed

. against 'the yisk-and.s.everitytof possible adverse, . impacts. In: ae.cordance. . , ,.s with the intent"and the guidance contained in the Comission's' Statement of 23 -

Interim Policy, the NRC' staff will initiate treatments of accident consid-erations in its ongoing NEPA reviews cf nuclear power plants, i.e., for any proceeding at a licensing stage where a Final Environmental Impact Statement has not yet been issued. In addition, all Environmental Reports submitted by applicants for construction pennits and for operating licenses on or after July _1,1980, should also_ include a discussion of the environmental risks associated with accidents that follows this interim guidance.

Although the Commission's Statement of Interim Policy addresses acci-dents at nuclear power plants, the general principles and objectives enunciated in the Interim Statement and quoted in part in this preamble are readily applicable to and equally appropriate for other types of NRC 70; L. .: < e ,. .7 -

.. . .. : . . .:. c.  : ,. :, .

licensing and regulatory actions fo;r, which the NRC staff has detennined to prepare an environmental impact statement. (See i 51.20(b), which describes types of actions, in addition to actions relating to nuclear power reactors, for which environmental impact statements will be prepared.) In considering the environmental risks r. attributable to accidents which might cccur in connection with these types of NRC licensing and regulatory actions, the NRC staff will follow the principles in the Statement of Interim Policy as a .

matter of general guidance.

l l

1 l On March 25, 1980, the staff of the Council on Environmental Quality submitted a copy of the Environmental Law Institute's report entitled "NRC's Environmental Analysis of Nuclear Accidents: Is It Adequate?" dated Febru-ary 4, 1980, and a copy of a letter dated March 20, 1980, from CEQ Chair-man Gus Speth to NRC Chairman John Ahearne for NRC consideration as a Council

~ . -

coment on the Comission's. proposed revision of 10 CFR Part' 51 as published

4 in the FEDERAL REGISTER on March 3,.1980. Both the letter and the report were highly critical of NRC's past practices with respect to the environ-mental analysis of possible nuclear accidents under NEPA. The CEO letter characterized NRC treatment of potential accidents and their envir'onmental impacts in environmental impact statements as "... largely perfunctory, remarkably standardized, and uninformative to the public ...." despite "the broad diversity of size, design, and location of the nuclear reactors licensed by the Commission over the years....." Noting that the typical NRC environ-mental impact statement "does not consider or analyze the possibility of a major accident even though it is these ' Class 9' accidents which have the potential for greatest environmental harm and which have led to the greatest l public concern...," CEQ identified the policy contained in the proposed l . . .. . . . . < .. .v: .u .. .. .- . n. . .. . . . .

.. u . .

An~nex~t'o' Appendix D' of 10 CFR Part 60 'as published for comment in De~cembe'r 1971 as the culprit primarily responsible for the problem.

In its Statement of Interim Policy, the Commission has formally with-crawn the proposed Annex to Appendix D of 10 CFR Part 50 and stated that as of June 13, 1980, the effective date of the Statement of Policy, the Annex l shall not be used by applicants or by the NRC staff. The reasons given for the withdrawal, which reflect many of the concerns voiced by CEQ, are:

1. T'e h Annex proscribes consideration of the kinds of accidents (Class 9) that, according to the Reactor Safety Study, dominate the accident risk.

2. The definition of Class 9 accidents in the Annex is not sufficiently precise to warrant its further use in Commission .

policy, rules, and regulations, nor as a decision criterion in agency practice.

3. The Annex's prescr.iption of assumptions to be used in the anaTysis of the environmental consequences of accidents does

., , .not.contributeto.objectiveconsideration.. ,

s.

25 -

4. The Annex does not give adequate consideration to the

. detailed tre'atment of measures taken to prevent and to mitigate the consequences of accidents in the safety review of each application.

In order to make doubly clear that Class 9 accidents would now be con-sidered in environmental impact statements, the Comission stated:

... Environmental Impact Statements shall include considerations of the site-specific environmental impacts attributable to accident sequences that lead to releases of radiation and/or radioactive '

materials, including sequences that can result in inadequate -

cooling of reactor fuel and to melting of the reactor core

[ Class 9 accidents). In this regard, attention shall be given both to the probability of occurrence of such releases and to the environmental consequences of such releases....

The Comission also indicated that under the new interim policy, the treatment of accident considerations "will take into account significant sited and p1' ant'-speciffc'fla'tures, [and]'will're'sult'in more detaile' d dis-cussions of accident risks than in previous environmental statements, par-ticularly for those related to conventional light water plants at land-based sites."

In its letter of March 20, 1980, CEQ stated:

We also encourage the Comission to consider preparing supple-mental accident analyses for plants currently licensed for opera- -

tion, particularly for those located near high population centers and those with unique features suggesting higher risk....

The following excerpts from the Comission's Statement of Interim Policy are relevant to this concern:

It is the intent of the Comission in issuing this Statement of Interim Policy that the staff will initiate treatments of accident considerations, in accordance with the foregoing guidance, in its ongoing NEPA reviews, i.e., for any proceeding at a licensing stage where'a: Final Environmental Impact Statement'has not yet

~ .been.issueda.. it is also the intent of thecComission that the . ' '

~ staff take ' steps to identify additionallases'that might warrant

F- - - - -

early consideration of either additional features or other actions which would prevent or mitigate the consequences of serious acci-l dents. Cases for such consideration are those for which a Final Environmental Statement has already been issued at the Construction Permit stage but for which the Operating License review stage has not yet been reached. In carrying out this directive, the staff should consider relevant site features, including population density, associated.with accident risk in comparison to such fea-tures at presently operating plants. Staff should also consider the likelihood that substantive changes in plant design features which may compensate further for adverse site features may be more easily incorporated in plants when construction has not yet pro- '

gressed very far.

In addition to CEQ, eight other commenters expressed views on the provisions of 40 CFR 1502.22(b) relating to worst case analysis. Three commenters, the States of Georgia and Illinois and the County of Suffolk, New York, expressed bread support for the CEQ position. As the previous

, .. di.scussion illustrates,, the Commission.. in t.ts .. Statement .of. Inte. rim. Policy .3 .

en Nuclear Power Plant Accident Considerations, has responded affirmatively to these concerns.

Five commenters, relying on existing case law holding that an environ-mental impact statement need not discuss remote and highly speculative consequences or events whose occurrence is extremely improbable, and that the consideration to be given to environmental risks incicent to reasonable alternative courses of action is subject to a rule of reason, expressed the 1

view that the provisions of the CEQ regulations relating to worst case analysis (40 CFR 1502.22(b)) are not mandated by the statutory provisions i

of the National Environmental Policy Act of 1969, as amended. One of these commenters expressed the view that the "... future treatment of Class 9 accidents in environmental impact statements is a complicated question that,

' ~

in our ' opinion, requires more' detailed cons.ideration than .is possibie in the ' .

present notice-and-comment rulemaking." . The Commission's action of. June 13, i

l 1

1980 promulgating policy guidance on'the treatment to be accorded accidents -

in environmental impact statements ano inviting comments thereon responds directly to this concern.

Major Federal Action

4. 40 CFR 1508.18. This section defines " Major Federal action" to include, inter alia, "the circumstance whe.re the responsible officials fail to act and that failure to act is reviewable by courts or administrative tribunals under the Administrative Procedure Act or other applicable law as agency action." In inviting comments and suggestions on this section, the Commission specifically noted that 5 1508.18 does not appear to address the

~ ' '

~ questibli wtiet.h'eE an'e vYronmental' assessment or 'en'v onmentalimpacts'tafe2 ment is required when the Commission denies a petition for rulemaking under 10 CFR 2.802.

Six commenters expressed views on 5 1508.18, two supporting and one opposing the definition, with the remainder offering general comments of an explanatory nature. In its preliminary comments, CEQ encouraged the Commis-sion to adhere to the definition of " major federal action" set forth in 5 1508.18, noting that in some cases, a denial of a petition for rulemaking involves consideration of certain generic issues which warrant NEPA review. j l

Although 5 1508.18 classifies reviewable failures to act as actions, i 1508.18 does not classify every action of this type as a major Federal action requiring prapiration of an environmental impact statement. Similarly, although denials'of petitions for rul'e' making faki ~within this broad class of 1

)

I l

l

_ _ _ _ - _ _ _ - - _ _- 1

1 Federal actions, not all denials of rulemaking petitiens are major Federal )

actions for which an environmental impact statement must be prepared. Since

\

it is not possible to forecast with any degree of certainty the entire range 1 of situations in which environmental review would be appropriate, the Com-mission has decided, after careful review of the pertinent statutes and case law, that with respect to denials of petitions for rulemaking, the Comission accepts the CEQ definition, and thus does not categorically exclude denials .

of petitions for ruleinaking from environmental review.

In reaching this conclusion, the Comission recognized that there may, in fact, be situations, such as those presented by petitions which address substantive matters on which the Comission does not have an existing policy,

.:. ~. .. .. . . . .

. . . . . . . . < ...:. s... .

where the de'nial'of a pe'tition for"rulemakin'g constitutes a major Federal. '

action warranting scrutiny under NEPA. In such cases, which are, expected to be few in number, the Comission fully intends to undertake the requisite environmental analysis to determine whether to prepare an environmental impact statement. On the other hand, it appears that there are certain situations where the action of the Comission in denying a petition for rulemaking need not be subject to environmental review. Where, for instance, the action of the agency in denying the petition is not reviewable in either an administrative or judicial tribunal, 40 CFR 1508.18 clearly excludes such action from the definition of " major federal action." Likewise, where the petition relates to a section of the regulations categorically excluded from NEPA analysis (see 5 51.22(c)(1), (2) and (3)), the action of the agency in denying such a petition need not be subjected to scrutiny under NEPA. And fina11y, where the petition rei'ses 'an isstie 'or' issues considered and resolved by .the Comniission 'in some earlier action, the Comission need not retrace its

l . * .

l earlier steps and prepare another environmental impact statement er environ-mental assessment p'rior to denying the petition. In this latter situation, the Commission, in denying such a petition for rulemaking, is merely reaffirm-ing its previous policy decision. Accordingly, there is no requirement that an environmental impact statement or environmental assessment be prepared.

These examples--the list is by no means exhaustive--illustrate some of the .

situations where the action of the Commission in denying a petition for rulemaking does not fall.within the ambit of NEPA.

Response to Comments on and Chances to Soecific Provisions of the Proposeo Rule

., . A,1though thes basic structure.of revised. Part 51.is essential.ly.- the same . ,3 ..

as that of the proposed rule, some provisions of the proposed rule have been revised. In addition, certain minor editorial and clarifying changes have been made. The principal differences between the proposed revision of Part 51 as published for comment on March 3, 1980 and the text of Part 51 as adopted and promulgated by the Commission in final form are identified and discussed below in the order in which they appear in the regulction.

Several commenters noted that the proposed regulations failed to specify how the Commission's responsibilities under other environmental laws, such as, for example, the National Historic Preservation Act of 1966, the Wild and Scenic Rivers Act, the Endangered Species Act of 1973 and the Coastal Zone Management Act of 1972, would be accommodated. As explained in the preamble to the propps.ed rule, new subparts will be added to Part 51 as

, necessa.ry tolincorporate any . additional regulations .which 'may be required to .

implement provisions of other environmental laws. _ To the extent practicable, ,

the Commission intends that its responsibilities under other environmental '

laws be coordinated with its NEPA procedures.

i 51.10 Purpose and scope of subpart; Application of regulations of Council on environmental Quality.

4 The first paragraph of 5 51.10(b) of the proposed rule which identified certain provisions of the CEQ regulations to which the Commission intended to devote further study has been revised. The revision affirmatively recog-nizes the Commission's continuing obligation to conduct its domestic licensing and related regulatory functions in a manner which is both receptive to

envNonde'nfalconceNnskndc6nsistekvdtbih'eCbmm'ission'[r' esp'onsYbf1IIy' as an independent regulatory agency for protecting the radiological health ano safety of the public. No change has been made in those provisions of 5 51.10(b) which reserve the Commission's right to act independently (see s 51.10(b)(1), (2) and (3) which relate respectively to the examination of future interpretatioris or changes in the CEQ regulations, the preparation of independent environmental impact statements and the right to make final decisions.)

Three commenters suggested that the proposed rule be revised to provide more specific guidance on the limitations imposed on NRC's environmental review authority by section 511(c)(2) of the Federal Water Pollution Control Act. Several sections have been added to revised Part 51 to clarify KRC's licensing and .NEPA responsibilities with respect-to water quality.

9 l

The Commission has amended i 51.10(c) to reflect the conclusion of the Atomic Safety and Licensing Appeal Board E that Federal responsibility for regulating nonradiological pollutant discharges into aquatic bodies rests with the Environmental Protection Agency.

--12/ Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2)

ALAB-515, 8 NRC 702, December 27, 1978; Carolina Power and Licht Company (H. B. Robinson, Unit No. 2) ALAB-569, 10 NRC 557, October 31, 1979.

... Suffice it to recall that in Yellow Creek, after an exhaustive analysis of the Water Act's legislative history (8 NRC at 706-12),

we explained that it provided the following lessons (id_. at 712-13):

"The first is that the spread of Federal responsibility for water quality standards and pollution control among the various licensing agencies, which resulted from the reading given NEPA by the Calvert Cliffs court, has been curtailed.

That responsibility is shifted to EPA as its exclusive prov-

.. , . ,. .ince, ;.The .second -is that the,. mandate :to= acquir.e ' expertise' , .,

in developins, sett'ing, and enforcing effTuent liniitations- '

and water quality standards is also given to EPA; federal licensing agencies are to rely on that agency when such matters are involved and not develop duplicate expertise on their own. Third, those agencies are not to 'second-guess' EPA by undertaking independent analyses and setting their own standards in this area. And, finally, given the pointed Congressional comments cited, NRC, as statutory successor to the AEC, is unmistakably bound by those strictures.

"To be sure, in deciding whether to license specific projects, each agency must continue to weigh any resulting degradation of water quality in its NEPA cost-benefit balance. Section 511(c)(2) does not change this obligation. Rather, its -

intendment is to limit those agencies' NEPA roles to that balancing, leaving the substantive regulation of water pollu-tien in EPA's hands."

On the basis of this analysis, we held squarely "that NRC may not undercut EPA by undertaking its own analyses and reaching its own conclusions on water quality issues already decided by EPA." 8 NRC at 715 . . . .

. . . events teach that the staff and Boards can best expend their limited resources by concentrating on those questiens which only this Commission can handle, rather than by duplicating the efforts of a sister agency. in'a field peculiarly within that agency's-

, Continued)

( , .

l l

i e

Consistent with the Appeal Board decisions, the Connission has also 3 1

amended 9 51.22(c) to exclude from the NEPA process as a categorical'exclu-sion amendments to permits end licenses deleting from those permits and

]

licenses any limiting conditions of operation or monitoring requirements I based on or applicable to any matter subject to the provisions of the Federal Water Pollution Control Act (Category 17). The NRC will . rely on agencies with authority under the Federal Water Pollution Control Act to determine the need for and, accordingly, to impose requirements for any mitigative actions necessary to protect the aquatic segment of the environ-ment from the impacts of nonradiological pollutant discharges resulting

-12/ (Continued)

. . competence.. ;Jhis is . fully ; consistent .with statutory mandates. for.

. s. .

Congress stressed in the amended Water Act that it was to be implemented in a way that would avoid " needless duplication."14f

-14/ 33 U.5 C. 1251(f), which reads as follows: It is the national-policy that to the maximum extent possible the procedures utilized for implementing this Act shall encourage the drastic minimization of paperwork and interagency decisicu procedures, and the best use of available manpower and funds, so as to prevent needless duplication and unnecessary delays at all levels of covernment.

In sum, Congress has designated EPA the Federal guardian of the quality of the nation's waters. That agency's decisions may turn cut to be wrong in particular cases. But the remedy--as the i

Licensing B.oard properly appreciated--is not for us to substitute our judgment for EPA's. We are bound to take EPA's considered decisions a't face value, and simply to factor them into our cost-l benefit balance. The Board below acted correctly in doing so.

ALAB-569, 10 NRC 557 at 560-562.

In ALAB-515 (8 NRC 702 at 714), the Appeal Board stated that "we read that interagencyagreement[theNRC-EPASecondMemorandumofUnderstanding]as adapting the position we do here." The Board also stated: "We think the NRC Policy Statement means exactly what it says in committing this agency

[NRC] not to impose different monitoring requirements where EPA has acted.

That reading is consistent with the legislative history of the Water Act; to

- allow inconsistent requirements would mot be." -

. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __________m -

.--- -- - - q from station construction and operation. Further, NRC will rely on those agencies to prescribe monitoring as necessary to document actual effects of station operation. .

One caveat deserves mention. The Comission does not intend these revisions to 10 CFR Part 51 to be interpreted to mean that NRC no longer has any operational responsibility with respect to the aquatic environment. .In connection with its independent responsibilities under other statutes, the NRC may indeed be required to consider matters relating to the aquatic environment. Under the provisions of the Endangered Species Act of 1973, for example, the NRC is obliged to consider listed species and endangered habitats, many of which are associated with the aquatic environment.

.:..,.<.. . i . .. .

.. .,;e. ~- ,

.. p u. *b . ,

The Commission is not unmindful of the fact that under certain provi-siens of the Federal Water Pollution Control Act, such as sections 401(a)(2) and 401(o), NRC licenses, like licenses issued by other Federal agencies, are subject to conditions deemed imposed by the Federal Water Pollution Control Act as a matter of law. In order to accord explicit recognition to these statutory requirements and at the same time to obviate the need to undertake a series of time-consuming actions to amend specific licenses to incorporate conditions imposed by statute which may be subject to frequent change by certifying States, the Comission is amending 6 50.54 of its regulations to make clear that NRC licenses issued under 10 CFR Part 50 are subject to all conditions deemed imposed by the Federal Water Pollution Control Act as a matter of law, whether or not those conditions are stated

~~

.in the license. - .

. Although the Comission is precluded from including in facility pemits and licenses any conditions of its own relating to.nonradiological discharges of pollutants to receiving waters, it does have an independent responsibility under NEPA to factor all significant impacts into its overall cost-benefit balance and to consider alternatives to the proposed action which are avail- j able for reducing adverse effects. These impacts include any degradation of water quality which may exist even though water quality permits and certi-fications issued pursuant to the FWPCA have been fully. complied with. In makingthatbalance,asdiscussedir.twoNRCdecisions,b the NRC may accept and use without independent inquiry the determinations made by EPA or the pemitting authority concerning the magnitude of the aquatic environmental impacts. In order to satisfy its NEPA obligations and com-l

. .. .- .. r .. . .

.~

'pTe~te the overall ~co'st-benefit balante in th'oie instances where no assess- . ~

ment of aquatic impacts is available, the NRC m'ust determine the magnitude l

of the potential aquatic impacts. The NRC may either do this on its own or 1

in conjunction with the permitting authority and other agencies ha*Ang relevent expertise. The NRC recognizes, however, that in carrying cut these NEPA responsibilities, it has no authority to rely on limitations or moni-toring requirements which are different from those imposed by EPA or the permitting authority pursuant to the Federal Water Pollution Control Act.

The Comission views its responsibilities under NEPA as including the responsibility for keeping informed of the environmental effects of its licensing actions. For effects involving degradation of the aquatic 13/ Public Service Company of New Hamoshire (Seabrook Station, Units 1 and Z), ALAB-366, 5 NRC 39,.48-58 (1977), affimed CLI-77-8', 5 NRC 503, 508-09.(1977); see also CLI-78-1, 7..NRC ~1, 24-26 (1978); , Carolina . -

Power & Light Co. (H. B. Robinson, Unit No'. 2)', ALAB-569, 10 NRC 557,

~560-563 (1979).

environment, the reporting requirements of NPDES permits issued pursuant to i I

. the Federal Water Pollution Control Act will be generally relied upon to j alert the NRC to potential problems. In addition, the Commission will continue its practice of including conditions in its licenses to assure that it is kept knowledgeable about other environmental matters involving its licensees. This practice is consistent with the CEQ regulations which obligate agencies to adopt monitoring and enforcement programs where appro-priate (40 CFR 1505.2(c)). The CEQ regulations. also provide that the lead agency shall ". . include appropriate conditions in grants, permits or other approvals" (40 CFR 1505.3(a)), and provide mitigation and monitoring infor-mation to cooperating agencies and the public upon recuest (40 CFR 1505.3(c) and (d)).

In the opinion of the Commission, this well-established practice should be appropriately reflected in the regulations. Accordingly, the Commission is amending Part 50 of this chapter to add a new 5 50.36b which provides that each operating license for a utilization or production facility may include environmental conditions. These environmental conditions may include procedures for reporting and keeping records of environmental data, and conditions and monitoring requirements for the protection of the non-aquatic environment. They will be drafted in a manner which recognizes that the regulation of nonradiological pollutant discharges to aquatic bodies lies with the appropriate NPDES permitting agency. Environmental conditions will be derived from information contained in the applicant's environmental report as analyzed and evaluated in the !!RC record of decision. The Com-mission may also include additional environmsnta1' conditions as appropriate.

A confo ming amendment has been made to 5 51.50.

4

'O i Section 51.10(d), which relates.to enforcement actions, has been revised to mak2 clear that section 102(2) of NEPA does not apply to denials of recuests for action submitted pursuant to 10 CFR 2.206. (See 40 CFR 1508.18(a).) .

% 51.12 Application of subpart to ongoing environmental work.

Several comenters requested additional guidance on the extent to which the revised regulations would apply.to ongoing environmental work, and iden-tified certain ambiguities in the text of i 51.12 of the proposed regula-tions. In order to avoid undue delays in the review of applications for construction permits and operating licenses for nuclear power plants, one

~

commentePsuhgstdthIthe'rekise reulaIions'notbemadea'p'picdbleto.

environmental reports completed within 180 days after the effective date of the revised regulations or to environmental impact statements completed within 90 days after that effective date. Although the Comission has decided not to adopt this particular suggestion, it recognizes that practi-cal problems are likely to arise while the new regulations are being phased in and the necessary adjustments are being made in the conduct of NRC's environmental activities to accomodate the new procedures. Sections 51.12(a) l and (b) have been revised to reflect these concerns.

i In adopting revised Part 51 in final form, the Comission directed that the revised regulations not go into effect until the information collection requirements have beer, approved by the Office of lianagement and Budget (Ots) l or 75 days after the dat.e 'of' publication in the ' FEDERAL REGISTER, whichever .

.~

is later. , This grace p'iiod e shoul,'d enable applicants, the NRC staff and ' any

l'

• 1 . .

other interested persons, to make a more orderly transition from the old to the new procedures. A n'ew 5 51.17 has been added and reserved for OMB approval.

Consistent with the intent of the CEQ regulations, the Comission does not intend revised Part 51 to be applied to ongoing environment'1 activities in a manner which will require completed environmental work or completed portions of environmental work to be redone solely by reason of the adoption and promulgation of these revjsed procedures. Instead, the Comission expects the revised regulations to be applied to ongoing environmental work to the extent practicable and in accordance with a rule of reason. The extent to which the provisions of the revised regulations are applicable to

' environmental work in progress will depend in each case on how far and how

' .. ? . . . . . .  ; i . . .. e -

y ., .- > ..,/ , ; ~,

' satisfactorily ~that work has pro.~gressed. For example, if w:ork on.a' draft - or final environmental impact statement is nearing completion on the date the revised regulations become effective, the Comission would not expect the staff to initiate a scoping process, On the other hand, the Commission would not dissuade the staff from initiating a scoping process, even though the time established in the revised regulations for the initiation of scoping had passed, if the ongoing environmental work was at a stage where scoping might still be useful.

At the present time, the Comission has pending before it a number of applications for licenses to operate nuclear power reactors which are in 4

various stages of environmental and safety review. In each case, the draft environmental impact statement for the construction permit for the facility 1

was. filed with the Environmental Protection Agency priorito July 30,1979, .

~ theeffectiyedateoftheCEQregulati)ns. In the majority of these. cases,' ,

however, the draft environmental impact statement for the operating license- ,

has either not been filed or was filed on or after that date. The Commis-sion does not intend revised Part 51 to be applied in such a way that environmental work relating to the issuance of operating licenses for these facilities will be considered to be exempt from the' provisions of revised l Part 51 simply because the draft environmental impact statements en the 1

construction permits for these facilities were filed with EPA prior to the ffective date of the CEQ regulations.

In accordance with 5 51.12(b) of the revised regulations, the new procedures will be fully applicable to all environmental reperts filed by

, applicants on or after the effective date of revised Part 51, and to all l ,

,. , .., e. s ... . - .:

. . . . . . ., - . , . . . , y environmental work un'dertakeh b the NRC staff fo'll'owhg a ' determination by

~

the staff pursuant to 5 51.25 to prepare an environmental impact statement or an environmental assessment, if the determination was made on or after the effective date of revised Part 51.

The Commission's primary concern, under both the old and the revised versions of Part 51, is to satisfy its NEPA obligations in an environ-mentally responsible manner. To this end, 5 51.41 of revised Part 51, like 5 51.5(c)(3) of the Commission's former regulations, authorizes the Commission to require applicants to furnish additional environmental infor-mation whenever such information may be needed. One cannot automatically conclude that because an environmental report has been filed or an environmental assessment or environmental impact statement has been com-

~

pleted,'that rio more environmental data 'or analysis will be required. '

Irrespective of the procedures which may or may not have been followed,

'4 completed environmental reports, assessments.or impact statements which may have been found to be deficient will, of necessity, have to be supplemented or redone. By the same token, it should not be necessary to redo environ-mental reports, assessments, impact statements or other environmental work of high quality solely because of the adoption of those revised procedures.

l'51.13 Emergencies.

Section 51.13 has been revised to make clear that in taking actions subject to this section the Commission will consult with the Council on Environmental Quality about appropriate alternative NEPA arrangements as soon as feasible. Insofar as practicable, the Commission will endeavor to b co'risulkinh"the Coune.11' 6n kn iro$mbfal tuslity before t'akYng' The ' action. N l

i Since 5 51.13 applies to emergency circumstances in which the need for prompt action may make prior consultation impractical, it is the Commis-sion's intent that the provision requiring that "the Commission will consult with the Council as soon as feasible" be understood to include consultation with CEQ which occurs after the Commission has taken the emergency action. The emergency circumstances to which 5 51.13 applies j include-situations in which the hazards of radiation are likely to become ~f

. more severe' unless immediate mitigative or remedial actions are taken.

% 51.15 Time schedules l

Section 51.15 has been revised to reflect more accurately the respec-

.tive responsibility.es of the NRC staff, the. licensing and appetl boards and

~ the Comm'ssian i for .the. conduct?of. licensing proceedings. The revision /is

~

' ^

' consist'en't'with the views' expressed by[ths At'omic Safety and Licensing l

Appeal Board in ALAB-489, In the Matter of Offshore power Systems (Floating nuclear Power Plants) 8 NRC 194 at 201-208 (1978) that, absent Commissiod direction to the contrary, the licensing boards do not have the authority to control the NRC Staff's independent NEPA review or to dictate the schedule forcompletionofthatreview.1bl'

% 51.16 Proprietary information.

A new i 51.16 has been added to make clear that any proprietary informa-tion, whether submitted by applicants, petitioners for rulemaking, commenters, 14/ In ALAB 489, the Appeal Board was asked to consider the question "(1)

~~~

may the Board fix a deadline by which the staff must prepare and file

. , . its environmental impact statement?" T.he Appeal Board answered this ,

2

'qbestio'n with *a qualifind yes: "The Ltce'nsing Bo"afd may' dire't e ther - -'

staff to publish its environmental documents by specific dates if, after affording the parties--including the staff--opportunity to be heard on.the matter, it finds that no further delay is justified. In the present case, however, the decision to fix a firm date for filing the documents demanded does not rest on any such finding." (8 NRC 194 at208.) The Appeal Board explained these qualifications more fully in the following excerpt from the opinion:

"One thing the Doard may do is ascertain why the staff document in question has not been forthcoming. Certainly if it is to conduct the hearing in accordance with responsibilities assigned to it, the Board must at a minimum be entitled to look behind the staff's explanation for delay in submitting the environmental statement.

If the staff can provide adequate assurance that it is acting as quickly and reasonably as the circumstances permit--and we emphasize the word reasonably--then the Board can ask no more and should reschedule the filing date accordingly.

"Where the Board finds, however, that the staff cannot demonstrate a reasonable cause for its delay, the Board may issue a ruling (with appropriate findings supported by the record) noting the staff's unjustified failure to meet a publication schedule. It may then either proceed to hear other matters or, if there be none, suspend the proceedings until the staff files the necessary documents. In either situation the Board, on its own motion or on that of one of the parties, may refer the ruling to us. See

. '10 CFR 2.730(f). We would hear such . referrals expeditiously; and,

. were we to, agree. with .the , Board., we would certify. the matter, to the Cohnission'.'"Its authority to* rectify the situation is' undoubted."'

(8 NRC 194 at: 207, footnotes omitted.)

al -

I i C-_- ___. _ _ . _ _ _ _ _ - _ _ _ _ _ _ _ _ _ . _ _ _ - _ _ _ _ _ _ _ - _ _ _ _ _ . _ _ _ _ - _ _ _ _ _ _ _ _ _ _ . _ - _ - _ . - _ . . _ _ - - . _ _ _ _ . - _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ ______.____-_-._.-_m

.~

or other , persons subject to, the provisions of subpart A of revisad Part 51, will be handled in accordance with established Commission procedures as specified in 10 CFR 2.790. Although the Commission believes that it will seldom be necessary to consider proprietary information in the review and evaluation of environmental matters, 5 51.16 has been added so that the requisite procedures will be in place should the need arise.

56 51.20 and 51.21 Criteria for and i' identification of licensing and recu-latory actions reauiring environmental impact statements and environmental assessments.

Several commenters took issue with the types of actions identified by

- * *. . . . :: y -

~. -

the Commission as r_equiring ;either environmental impact statements or environ-mental assessments. One major concern was that actions which were perceived i

! as having a significant environmental impact might not be accorded adequate environmental review. Another concern was that the reference in i 51.20(a)(2) to tne Commission's discretionary authority to prepare environmental impact statements was ambiguous and unnecessary. The Commission has given careful consideration to these comments and has looked closely at il 51.20 and 51.21 to determine what, if any, changes might be made to alleviate these concerns, l

if At the outset, the Commissica wishes to make clear that it fully accepts its responsibilities under NEPA for the preparation and issuance of environ-l mental impact statements on all major Commission' actions which significantly l

affect the cuality of the human environment. The Commissicn also recognizes i

that it has a dontinuiny obligation to conduct its licensing and related regu-7 latory functions,in an environmentally responsible manner. . In preparing these ,

i

. revised regulations, the Comission has tried to structure its NEPA process -

.to assure that these responsibilities'will be effectively carried out.

Within the broad spectrum of Comission actions subject to subpart A of revised Part 51, only those types'of actions which have been determined by -

rule to be categorical exclusions are excluded from the NEPA process. The

~

remaining types of actions are subject to NEPA review, requiring either an environmental' impact statement or an environmental assessment leading in turn to a finding of.no significant impact or to a decision to prepare an environ-mental impact statement. 'Under this scheme, an environmental assessment need not be made if the Comission has already decided to prepare an environmental impact statement. This two-step process (preparation of an environmental

.:. .. .. . , , , ; ,. . ,.s. ~ .

. . ..q ..  : ,

assessment followed by prep'aration of an environmental impact statement)

~

need only be followed when it is unclear at the outs'et whether preparation of an environmental impact statement for the action in question is justified.

This general scheme is reflected in 65 51.20, 51.21 and 51.22 of the Comission's regulations which specify the criteria for determining which types of actions require environmental impact statements, or environmental assessments, or which qualify as categorical exclusions. Section 51.21, which relates to environmental assessments, provides that environmental assessments are to be prepared for all licensing and regulator'y actions except those covered by categorical exclusions or those for which environ-mental impact statements are being written.

Section 51'.20(a) of the Comission's regulations provides that an

2. .

.? .

s .

environmental impact statsnent will be. prepared .whenever a proposed Comission

action is detennined to be a major Federal action significantly affecting _the quality of human environment. Section 51.20(a) and (b)(13) also provides that t'he Comission may prepare an environmental impact statement in connec-tion with other types of proposed actions (e.g., actions normally eligible ,

~

for categorical exclusion or actions for which a finding of no significant impact would normally be prepared),'when the Comission detennines, in the exercise of its discretion, that it is advisable to do so. It is not possi-ble to predict how often or under what circumstances,the Comission might wish to exercise this discretion. However, there are likely to be at least a few occasions on which actions, which in normal circumstances might qualify for a categorical exclusion or only result in a finding of no significant impact following the completion of an environmen,tal assessment, would,

~

because 5f unique, $nissusi ~6r' controversial cir'cumst'a'ntes, require' extensivi * '

environmental review. In order to make clear that its NEPA responsibilities will be fully honored in connection with these actions, the Comission has.

retained 5 51.20(a)(2) in the text of the regulations. Complementary provision's have been included in il 51.21 and 51.22(b).

Section 51.20(b) of revised Part 51 lists the principal types of actions which require environmental impact statements. Although the list is intended to be reasonably complete, it is not exclusive in the sense that environmental impact statements are to be prepared on the actions listed and no others.

Actions which have been subject to an environmental assessment or which appear to be eligible for a categorical exclusion but involve unique, unusual or controversial environmental concerns may also require environmental impact statements.

~

3 ,

'The types of actions subject to i 51.21 cover a wide spectrum. Although 9 51.21(b) of the proposed rule listed some of the more representative types of actions likely to be found in this class, the Comission has decided, after considering the coments .that, instead of trying to refine the descrip-tions of the actions listed or to prepare a more comprehensive list, the

~

better approach would be to define the boundaries of the class, thus making clear to all concerned that preparation of an environmental assessment would be required for all licensing and regulatory actions subject to subpart A of 10 CFR Part 51 except those requiring an. environmental impact statement or those eligible for categorical exclusion.

il 51.26 - 51.29 - Scopina.

,, ..c. u: -

 ; ,. r . .. . ,.

Coments on the provisions of the regulations implementing the scoping process ran the gamut from general approval to opposing concerns that the regulations are overly structured or that more detailed scoping procedures should be provided. Except for a few minor revisions needed to conform the scoping procedure more closely to NRC licensing practices, the Comission has decided, after careful consideration of these comments, to promulgate these sections of the regulations as originally proposed. Until the NRC has obtained more experience in the conduct of the scoping process, it is difficult to

! judge whether the scoping procedures contained in the regulations are overly formalized or insufficiently detailed. In the opinion of the Comission, any additional changes in the regulations at this time would be premature.

The Comiss' ion is satisfied that'its scoping procedures as promulgated

, .? -

' comply with CEQ's r' requirements. Sections 51.26 - 51.29 of the revised regula-

tions closely track those sections of the CEQ regulations which relate to the scoping process, specifica11y'40 CFR 1501.1(d), 1501~.4(d), 1501.7 and 1508.22.

The scoping process provided in subpart A of revised Part 51 is intended to be informal in nature. Consistent with this approach, the regulat' ions permit but do not require that a public scoping meeting be held. Is sccord-ance with 5 51.26(b), the decision to call a public scoping meeting in any given instance is at the discretiop of the NRC staff. If the NRC staff deter-mines that there is no need to hold a public scoping meeting, participation .

in the scoping process may be limited to the submission of written comments.

l

'Section 51.28(a) (551.29(a) of the proposed regulations) identifies,six

. . v. .. . -- . .,

classes of persons who.,,_must be' invited to participate in the scoping process.

Section 51.28(b) provides that the NRC staff, at its discretion, may also invite other persons as appropriate. Participants take part in the scoping process by invitation and their role is merely advisory. Decisions respecting the secpe of an environmental impact statement are the sole responsibility of the NRC. Section 51.28(c) specifically states that "[p] participation in the scoping process for an environmental impact statement does not entitle the participant to become a party to the proceeding to which the environmental impact statement relates. Participation in an adjudicatory proceeding is governed by the procedures in 10 CFR 2.714 and 2.715. Participation in a rulemaking proceeding in which the Commission has decided to have a hearing is governed by the provisions in the notice of hearing."

The objectiv'es of the scoping p~rocess, which:only applies to environ-L .; .

O . . .

mental, impact statements, are set out'in detail in i 51 29 of the revised

~

regulations...The principal purpose of that process is to define the pro-L ' posed action which is the. subject of the. environmental impact statement, L

determine the scope of the statement'and identify those issues which are to be analyzed in depth and those which can be. eliminated from detailed study.

.. While-acknowledging the value of_the scoping process, several commenters pointed out that it was of limited usefulness to applicants because . decisions respecting the scope and the issues to be addressed in' an environmental

~

impact statement were made after most of the applicant's environmental studies had been completed. In consequence, at the conclusion of the scoping process, an applicant might find both that previously collected environ-mental data was unneeded and tha.t extensive amounts of.new environmental

, . .' u . ;, . h . -

~ . . - x.. . . : ' ' . .. - '. ..

~ -

2

.information must be provided. The observations of the commenters are not without merit. At the same time, the problem cannot be entirely alleviated.

The time frame within which the scoping process may be scheduled is subject to certain recognized limits. Under NEPA, the need to prepare an environmental impact statement depends on the likelihood and the nature of a federal . action. In the case of a regulatory agency like the NRC, the occa -

sion for federal action, such as the issuance of a license to construct or operate a nuclear power reactor, does not arise until after a request for the action has been presented. Under these circumstances, the date of receipt of a license application marks the earliest possible date on which the scoping process could be commenced. However, it is usually not practi-cable to initiate the scoping process on that date since NRC staff and other

~interesited persons'must' first have 'an opportunity to beccme familiar with

, the application and the env.ironmental., issues.which it prasents.

To limit the point in time at which the scoping process may be formally-initiated does not mean that an applicant must be' deprived of all' assistance

- and' guidance. Even though the conclusions and determinations which may be l

L reached in a-particular' scoping process cannot be fully predicted in advance,

- some useful guidance can be provided. Section 51.40 'of the revised regula-tions encourag66 applicants to consult with the NRC staff on environmental matters. Recognizing applicants' needs for guidance on the scope, relative significance and. type of treatment to be accorded issues to be considered in environmental impact statements on federal actions.with which they are concerned, the Comission has revised i 51.40(b)(2) of the regulations to make clear that applicants may seek guidance from the NRC staff.on matters subject to the scoping process.

...~. . . .. .a ; L

. ~ '. . . ; .c 7

r. . - . . ., ~, .

6 51.33 Draft finding of no significant impact.

Section 51.33 gives the NRC staff discretionary authority to prepare a draft finding of no significant impact and issue the draft finding for public coment. This provision provides a mechanism which the NRC staff may use, should it wish to do so, to obtain public comment on whether a final finding of no significant impact or an environmental impact statement should be prepared and issued. Section 51.33(b) describes certain circumstances in which the preparation of a draft finding of no significant impact may be appropriate. These circumstances include those in which preparation of a draft finding will further the purposes of NEPA. The NRC staff is not required, however, to use this discretionary procedure. ,

3 *4 *Ma , , b

6 51.45 - Environmental Report and i 51.71 Draft Environmental Impact State--

ment -' Contents.

.One conmenter noted that the term " cost-benefit analysis" used in il 51.20(b), (c) and (e), 51.23.and 51.26(a) of the Commission's former regulations was not retained in the proposed revision of 10 CFR Part 51 and requested an explanation. The change in terminology from the _ specific expression " cost-benefit analysis," which denotes a quantitative analysis expressed in monetary' terms, to the generic term " analysis," which is intended to include an analysis, evaluation and balancing of important qualitative factors as well as a quantitative- cost-benefit analysis, reflects in part the shift in emphasis in the CEQ regulations towards a greater awareness of

~~

theq'ualitfoht 'ehkronbe$ tai th 'i Nportance'of gihing full i:onsidera-

~~"~

tion to unquantified environmental impacts, values, and amenities. This change in emphasis is highlighted in 40 CFR 1502.23 which states that'the preparation of a cost-benefit analysis is optional and provides that monetary cost-benefit analyses are not to be included in the main text of environmental impact statements but are either to be incorporated by reference or appended to the statement as an aid in evaluating environmental consequences. Sec-tion 1502.23 alsostatesthat"ForpurposesofcomplyingwiththeAct[NEPA),

the weighing of the merits and drawbacks of the various alternatives need not be displayed in a monetary cost-benefit analysis and should not be when there are important qualitative considerations..."

The Commission chose to use the generic term " analysis" because it encompasses all'ispects'of an environmental analysis, qualitative as well as-e .

~  ; .- .. . ~ .

, quantitative. In changin~g the terminology from " cost-benefit 'analy ia" .to

l . . .

l

" analysis," the Comission did not intend to convey the impression that cost-benefit analyses of quantifiable environmental impacts are no longer required. Sections 51.45(c)and51.71(d)bothprovidethat"[t]heanaly-sis will, to the fullast extent practicable, quantify the various factors l considered." Instead, the Commission inten'ded to make clear that a compre-hensive environmental analysis should include the consideration and balancing

. of qualitative as well as quantitative impacts. -

l Several commenters requested an explanation of the provisions in il 51.45(b) (1) and (3) directing that the environmental impacts of the proposed action be discussed in proportion to their significance and that, to the extent practicable, the environmental impacts of the proposal and the

~

alternative'sbep'res'entYdirIcomparalivkform[khe' comme'ntersexpressed' '

concern that these directives would necessitate the preparation of unduly detailed and lengthy analyses on matters which could be adequately dealt l with in a more concise manner.

The sentence in 5 51.45(b)(1) which reads " Impacts shall be discussed in proportion to their significance." is identical to the first sentence of 51502.2(b) of the CEQ regulations which provides the following further explanation: ,

There shall be only brief discussion of other than significant issues. As in a finding of no significant impact, there should be only enough discussion to show why more study is not warranted.

The sentence in 5 51.45(b)(3) which reads "To the extent practicable, the environmental . impacts of the proposal and the alternatives should be pre '

sentedincomparatkve o rm.'" is' draw'n'fromiINO2.[4ofthe'C$Q'. Regulations.

Section 1502.14, entitled " Alternatives including the proposed action,"

states in pertinent part: -

This section is the heart of the environmental impact' statement.

Based on the. information and analysis presented in the sections on the Affected. Environment (5 1502.15) and the Environmental Conse-quences (5 1502.16), it should present the environmental impacts

, of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public. In this section agencies shall:

(a) Rigorously explore and objectively evaluate ali reason-able alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.

(b) Devote substantial treatment to each alternative consid-ered in detail including the proposed action so that reviewers may evaluate their comparative merits.

. ,- . 5- . .:..- .V . . _ . ..

.. , . ., ,, _ . . .: , , .=

In the'~opin' ion of the Commission'these provisions should not necessi-

. tate the preparation of unduly detailed or lengthy analyses.

Members of the NRC staff indicated that implementation of the pro-vision in 5 51.71(b) that the draft environmental impact statement " include consideration of major points of view expressed on the environmental impacts of the proposed action and the alternatives, ..." presented certain practical problems in that these major points of view cannot always be adequately identified and evaluated until after the comments on the draft environmental impact statement have been received. For example, when an application for a permit to construct a nuclear power reactor is received, it is customary for the NRC staff to evaluate the environmental information submitted by the applicant. On the basis of this independent evaluation and analysis, the

'NRC staff then prepares and' issues a' draft environmental impact statement-J -

forpubliccommentlYh draft ~env'ironmental ' impact statement'is circulite'd . , .

- 51 -

_ _ - . ___ _ _ _ _ _ _ - _ _ - _ _ _ - _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ a

1. .

1

.. . to interested state and federal agencies and made av'ailable to memb.ers of-the public. Until comments on the draft statement have been' received and l '

analyzed, it.is not-possible to determine whether all major points of view have been considered. . In each' case..however, the issue is resolved by. the time the final environmental impact statement is. completed and issued. In'.

order to accomodate this concern, 6 51.71(b) has been revised to make clear that major points of view will be considered in the draft environmental Limpact statement to the extent sufficient information is available.

5 51.51 Uranium Fuel Cycle Environmental Data - Table S-3.

On August 2,1979, the Comission promulgated a final fuel cycle rule whiEPsets -o'u't revind enviro'hmentaYimpact' values fop the nuclearMasted  ; >'-

management and fuel reprocessing parts of the uranium fuel cycle to be included in environmental reports and environmental impact statements for individual light-water nuclear power reactors (44 FR 45362-45374, August 2, 1979; correction notice, A4 FR 56312, October 1, 1979.) The rule, which amended Part 51'of the Comission's existing regulations, became effective September 4, 1979. At this time, the Comission is incorporating the text of the effective S-3 rule in revised Part 51 (See il 51.51, 51.71(d) and 51.75.). Although the Comission has found it necessary to make certain minor conforming amendments so that the rule will be consistent with the revised format of Part 51, no changes have been made in the substantive provisions of the S-3 rule. As explained in the Comission's Statement of Policy cn Uranium Fuel Cycle Impacts (47 FR 50591-50593, November 8,1982)

. the S-3 rule has been chal;1enged in. court.- Pending final disposition of the-litigation, the 'S13 'rhielis: to b5 ' applied in acc6thance with'the guid5nce'-

containedinth'eStatmentofPoNcy.

q p ,

l'51.53 Supplement to Environmental Report - Operating License Stage.

I 51.95 Supplemtnt to final environmental impact statement - Operating License.

Several commenters noted that G 51.53 of the proposed revised regulations, )

i unlike 5 51.21 of the Comission's former regulations, does not authorize an applicant engaged in preparing an environ:nental report in connection with an application for an operating license for a facility to incorporate by refer-ence information contained in the environmental report or the final environ-mental impact statement prepared in connection with the construction permit for that facility. The Commission did not intend to eliminate this authority; accordingly, ! 51.53 hac been revised. Asimilarchangehasbeenmadein i 51.95, Supplement to final environmental impact statement - Operating

" ' license,dto'sufhorizd-th NRC slaff 'to ' incorporate by"refere'nce in a supple i

- '-J-ment relating-to an operating license for a facility any information contained .

in the final environmental. impact statement or in the record of decision prepared in connection with the construction permit for that facility.

Sections 51.53 and 51.95 have also been revised to make clear that the requirements to prepare supplements to the environmental report and the final environmental impact statement on the construction permit for a facil-ity in connection with the issuance of an operating license for that facility are not requirements to repeat at the operating license stage the full-scale environmental review of the facility performed at the construction permit stage. The sole function of these supplements is to update the prior environ-mental review. Thus the supplements need only address matters which differ

- from or reflect signif.icant ne.w information conce.rning. matters discussed in the Applicant'~s En0irorimedtal Rehort - Construct' ion Permit Stage or 'in th'e-NRC's final environmental impact statement on the construction permit.

l +

l'51.92 Supp1cment to final. environmental impact statement.

~

Section 51.92 has been revised to make clear that the NRC staff will prepare a supplement to a final environmental impact statement for a pro -

~

posed action if that action has not been taken and if there are substantial changes in the proposed action that are relevant to environmental concerns, or if there are significant new circumstances or information which are rele-vant to environmental concerns and bear on the proposed action or its: impacts.

6 51.73 Reauest for- coments on draft . environmental impact statement.

6 51.100 Timina of Commission action, i Consistent with 6 1506.10(c) of CEQ's regulations (40 CFR 1506.10(c))

. , . .a, 1. v. . 4 .

.m . ,. ,. . . ' .. . .,

5 51.73, " Request'for coments on draft environmental impact' statement," .. ' 'w '

prescribes a minimum coment period of 45 days and specifies that the com-ment period is to be calculated from the date on which the Environmental Protection Agency's weekly notice announcing the filing of draft and final environmental impact statements is published in the FEDERAL REGISTER.

Revised Part 51 also provides that the coment periods for supplements to draft and final environmental impact statements are to begin on the dates on which the EPA notices announcing the availability of those supplements are l published in the FEDERAL REGISTER (see, for example, il 51.73, 51.92, 51.95 of revised 10 CFR Part 51.)

Subject to certain exceptions, 5 51.100(a) prohibits the Comission from making a decision or issuing a record of decision on a proposed action for which an. environmental impact statement..is required,until the later of the .

' ~ ^

' ~

l folloidng' dateir: E ninety days: $fter ptib1'icnion~ by# the Environmental Protec-tion Agency of a FEDERAL REGISTE'R notice stating that the draft environmental

- Sa -

l

. i i

impact statement has been filed with EPA, or thirty days after publication by the Environmental Protection Agency of a FEDERAL REGISTER notice stating .

I that the final environmental impact statement has been filed with EPA.

l Several commenters expres' sed concern that reliance on EPA's publication dates instead of NRC's publication dates would result in confusion and delay. These commenters urged that the FEDERAL REGISTER publication date of the applicable NRC notice be used in calculating the requisite time periods for submitting comments or taking NRC actions.

Since its establishment on January 19, 1975, the NRC, in common with other Federal agencies, has folicwed the customary and uniform practice of

.calcul.ati,ncJ the expiration.date of. an. environmental impact statement comment ,

period and the date of the minimum period for review of an environmental impact. statement from the date on which the EPA notic 15/ listing the spe-cific environmental impact statement was published in the FEDERAL REGISTER.

This arrangement has not caused any uncertainty or confusion. In accordance with EPA practice, all draft and final environmental impact statements received by EPA prior to noon en a given Friday are routinely listed in the EPA notice of availability published in the FEDERAL REGISTER on the follow-ing Friday. Similarly, all draft and final statements received by EPA after noon on a given Friday are listed in the FEDERAL REGISTER notice published by EPA two weeks later. The date on which the EPA notice is published in the FEDERAL REGISTER is the date from which the minimum periods of review for all environmental impact statements listed in the notice, including any NRC environmental impact statements listed, are calculated. Because the

~

l

- - s ' -

_i ,

15f Prior'to December 5,1977, these notices were published by CEQ.

1-L- ,

publication schedule ~for EPA notices is firmly fixed and the time when an-environmental impact statement is filed with EPA is known to the filing agency, the date on which a coment period begins or from which the 90 day -

or 30 day review period is to be calculated can be known with certainty.

This NRC practice is well established, has not resulted in confusion and uncertainty, and is consistent with the provisions of the CEQ regulations.

Accordingly, the changes suggested by the comenters have not been adopted.

5 51.104 NRC proceedings using public hearings; Consideration of environ-mental impact statement.

l Section 51.104 has been extensively revised to reflect current NRC l

practice respecting the consideration of environmental issues in licensing hearings . In accordance with accepted practice, 5 51.104 provides that the l NRC staff may not place a final environmental impact statement in evidence in a proceeding or present the NRC staff position on environmental issues until after the final environmental impact statement has been filed with the Environmental Protection Agency, furnished to comenting agencies and made available to the public. Section 51.104 also provides that in those -

proceedings in which the NRC staff has determined that no environmental impact statement need be prepared for the proposed action, any party to the proceeding may take a position and offer evidence on those aspects of the proposed action which are within the scope of NEPA and subpart A of 10 CFR Part 51. The opportunity accorded parties to present evidence on '

environmental issues is subject to the Comission's Rules of Practice, for example, as set out for formal adjudications in Subpart G of 10 CFR Part 2, and to any specific procedural constraints which may be placed i

l

on the scope of a particular hearing in order to manage the hearing effi-ciently. For example, in a hearing limited solely to the consideration of antitrust issues, presentation of evidence on environmental matters would be inappropriate. In order to acknowledge the Comission's authority to control the conduct of its licensing hearings in a positive way, 9 51.104(b) has been revised by adding the words "unless the Comission orders otherwise."

$ 51.106 Public hearings in proceedings for issuance of operatirg licenses. i Section 51.106 incorporates the provisions of former i 51.53, which relates to operating license hearings, into revised Part 51. Although i 51.106 was not included in the proposed rule, the Commission did not

~

' intend'tW r'evok'e this regulation which was pr'omulgated in 1974;and amended * '

in 1981 in accordance with the customary notice and comment procedure.

Conforming Amendments Following enactment of the Nuclear Waste Policy Act of 1982, Pub. L.97-425, January 7, 1983, 96 Stat. 2201-2263, the Comission initiated a review of the licensing procedures in 10 CFR Part 60, " Disposal of High-level Radioactive Wastes in Geologh. ttepositories; Licensing Procedures," to detemine what changes may be necessary and appropriate. As part of that review, the Comission will also determine whether conforming changes to other parts of the regulations, including Part 51, are needed. In view of these circumstances, conforming amendments to 10 CFR Part 60 are not being promulgated .at. this. time in. connection with this final rule. In the interim, p'ending comple' t ion of tMs review,' a mino'r conforming' amendment has been

~

made to 10 CFR 2.101(f).

Categorical Exclusions _.,"

In the proposed rule, as published March 3,1980, the Comission ,

req 0ested coments on the classes of actions proposed to be excluded from the NEPA process as categorical exclusions and suggestions on types o'f actions for which additional categorical exclusions might be established.

One commenter recommended that the Comission define with greater speci- ,

ficity the "special circumstances" (see 1 51.22(b) of the proposed rule) under which an environmental assessment or an environmental impact statement would be prepared for an action which otherwise would be categorically excluded from the NEPA process. Ten commenters submitted coments on one or more of the categorical exclusions contained in the proposed rule. These coments focu' sed on' categ'orical exclusions 4, 91 -10, l'1,12,13, pon.icnscof -

~

categorical exclusion 14, and 15. Three comenters suggested additional types of actions for inclusion in the rule as categorical exclusions. Brief descriptions of these comments and the Ccmission's responses follow. The text of each categorical exclusion is reproduced below as it aopeared in the proposed rule. The bracketed reference identifies the section of the final rule in which the category is listed.

5 51.22(b)

One commenter recommended that the Comission define with greater l

specificity the "special circumstances" in proposed i 51.22(b) which the Comission may invoke to require an environmental assessment or environ-mental impact statement for actions otherwise categorically excluded. The commenter also.ur ed the Comission to provide notice and opportunity for affected parties to present their views. before..a decision is made,_to invoke

' the special circumstarice exception.

l I

i

l l .

The Comission disagrees with the commenter. The Comission may wish, as a matter of discretion, to have the benefit of an environmental assessment l

or an environmental impact statement in considering the desirability of a proposed course of action, even though, as a strict legal matter, neither may be required. A major purpose of proposed i 51.22(b) is to preserve this necessary flexibility. In addition, it is impossible to identify in advance the precise situations which might move the Comission in the future to determine that special circumstances exist. Therefore, the term "special circumstances" has not been further defined. For similar reasons, the Commission has decided not to require the use of notice and comment proce-dures in determining when to prepare an environmental assessment or an environmental impact statement on an action which except for special circum-stance's' 'would e eiigible for categorical exclusion. ' Alt' hough there may"be

~

' ~

occasions when the Commission will wish to seek comment from affected persons or the public at large before making a firding of special circumstances, the Commission believes that its responsibilities for protecting the public health and safety and giving appropriate consideration to environmental values will be best served if it retains the flexibility and authority to direct its staff to prepare environmental assessments or environmental impact statements very early in the decisionmaking process. However, a notice of . intent to prepare an environmental impact statement will be pub-lished pursuant to hl 51.26 and 51.116.

9 51.2'2(c)

Proposed Category 4. - Entrance into or amendment, suspension, or revocation of an agreement with a State pursuant to sectiori 274 of the Atomic Energy

~

,'Act of-1954, as amended, providing for assumption by the' State and discon-tinuance by the Commission of certain regulatory authority of the Comission.

[651.22(c)(4))

The only substantive comments received concerriing this categorical exclusion were those contained in the letter of October 29, 1979 from CEQ staff counsel to' the Executive Legal Director of NRC.E The author of this letter concludes that insofar as Category 4 would " exclude new agreements .

and amendments to agreements with States, pursuant to Section 274 of the Atomic Energy Act of 1954, from review in environmental impact statements or environmental assessments ...[the] Ccuncil cannot endorse this categorical exclusion as written." Except for the comments of the Department of flatural

' Resources 'ofibe' Stati o[Georg'ia', whibh expies'sdd ge'nera'l support for'CE0's' views, including the views contained in the October 29, 1979 letter from CEQ published in Appendix C 17I to the proposed rule, no other comments were received on proposed categorical exclusion 4 proposed categorical exclusion 4 addresses a limited and highly specific type of federal action. The main thrust of the CEQ staff comment is that l the NRC action of entering into or amending a section 274 Federal-State Agreement should remain subject to the NEPA process because subsequent i regulatory actions which the State is permitted to take by virtue of the agreement are similar to regulatory actions which would have been taken by NRC in the absence of an agreement and which would, because of their status 16_/ 45-FR 13739.at 13766, March 3 1980.

IU % .

I . _ _ _ _ _ - - - - - _ - - _ . - _ - - - _ - - - - - - - - - - - - - - - _

as Federal actions, clearly be subject to NEPA. The CEQ comment does not address the question of how licensing and regulatory actions taken by the

, State during the life of a section 274 agreement are to be evaluated in an l

l environmental impact statement or in an environmental assessment prepared at the time of entrance into the agreement on the limited Federal action of entrance into the agreement when information on the kind and number of State regulatory actions to be taken during the period the agreement is in effect cannot be known and in consequence the environmental effects of those actions cannot be ascertained. CEQ's analysis, which is founded on the premise that the State is acting as an agent for the Federal government and is exercising delegated Federal powers, does not recognize the clear line of separation established by the agreement between Federal and state actions. E

, _ w. _

.?-

The Federal-State agreement authorized by section 274 of the Atomic Energy Act of 1954, as amended, does not constitute a delegation or transfer of Federal authority to the States. Instead, the Agreement specifies the conciticns under which the States may exercise their own sovereign authority.

Under the provisions of a section 274 agreement, the NRC's regulatory authority over source, byproduct and special nuclear material, conferred upon it by the Atomic Energy Act of 1954, as amended, is discontinued, thereby enabling -

the States, in the exercise of their inherent police powers to protect the public health and safety of their citizens, to assume regulatory authority

-18/ In Natural Resources Defense Council v. NRC (C.A.D.C. No. 77-1570, per curiam Order, January 6,1978), the U.S. Court of Appeals for the District of Columbia Circuit held that an Agreement State is not a federal agent cr delegate under 42 U.S.C. ! 2021, that an Agreement State licensing action is not a " Federal action" for purposes of NEPA, and that NRC involvement with Agreement States is not federal action subject to NEPA.. See, also Northern States power Company v. fiinnesota, 447 F.2d 1143,1149-50, (8th Cir.1971) affirmed 405 U.S.1035 (1972).

over those materials. Under this Arrangement, except as expressly provided under 10 CFR Part 150, once a state has assumed regulatory responsibility under a section 274 agreement, the NRC is precluded from exercising direct regulatory control over individual state licensees. Under section 274j of the Act, the Commission retains certain residual powers which permit the -

Commission to terminate or suspend all or part of a State agreement and reassert its own licensing and regulatory authority if it finds that ". . .

(1) such termination or suspension is required to protect the public health and safety, or (2) the State has not complied with one or more of the requirementsofthissection[5274]." In aid of this residual authority, section 274j also provides that the Commission ". . . shall periodically review such agreements and actions taken by the States under the agreements to ensure comp'liance' with' the provlsioris 'of this section [i 274]. . . ." - '-

As indicated previously, any attempt, on the occasion of entrance into a Federal-State agreement, tc obtain useful inforriation on the environmental impact of subsequent State regulatory actions which might be taken during the period the agreement remains in force, is likely to yield disappointing and speculative results. Except for matters relating to uranium mills and mill tailings for which the Uranium Mill Tailings Radiation Control Act of 1978, Pub. L.95-604, November 8, 1978, has cade special provision, many of the licensing and regulatory actions which might be taken by States under a section 274 agreement are unlikely to have any significant environmental effect. In many instances, the state regulatory actions will be similar to federal actions for which the Commission has established a categorical exclusion in 5 51.22(c) of revised Part 51. In the case of other state  ;

i

~

actions, the only significant environmental effects' will be those caused by L_______________________..____.___._ . _ _ _ . _

- the radioactive properties of the regulated materials. With respect to those types 'of actions, the environmental impact attributable to tne Federal

- action of entering into a section 274 agreement should also be minimal because the statutory requirements governing 5 274 agreements provide assur- .

L ance that so far as radiological hazards are concerned the States will

' regulate the materials covered by the agreements in a manner similar to the way in which the materials were regulated by NRC.

Congress enacted the Federal-State Amendment to the Atomic Energy Act in 1959. Ten years later the National Environmental Policy Act of 1969 became law. The law is clear that "t! EPA does not repeal by implication any otherstatute...."El and that NEPA's policies and goals "are supplementary to those. set forth in existing authorizations of Federal agencies" and .

should not "in any way affect the specific statutory obligations of any Federal agency."20/ Accordingly, NEPA does not alter the meaning of sec-tion 274 and the clear line which it establishes between state and federal actions.

As enacted, NEPA only applies to major federal actions significantly affecting the human environment. To use Section 274 of the Atomic Energy Act of 1954, as amended, as a vehicle for extending NEPA 'to state actions

-19/ Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 at 548, citing Aberdeen & Rockfish R. Co. v. SCRAP, TFE U.S. 289, 319 (1975), see also United States v. SCRAP, 412 U.$. 669, 694 (1973).

-20/ United States v. SCRAP, 412 U.S. 669, 694 (1973); see also Aberdeen & Rock-fish R. Co. v. SCRAP, 422 U.S. 289 (1975); Flint Ridae Development Co. v.

Scenic Rivers Assoc., 426 U.S. 776 (1976).

1 .

l l -

and thereby broadening the scope of NEPA would be tantamount to giving the -

Comission the pcwer to override the clear intent of Congress. Except to the extent that Congress has required states to consider the environmental l -impacts of uranium millihg activities and mill tailings. E ongress C has declined to extend NEPA to the states. Absent action by the Congress broad-ening the scope of NEPA, there is no sound basis in law for extending the NEPA process to actions taken by states in the exercise of their police powers in accordance with the terms of a section 274 Federal-State .

agreement.

Procosed Category 9. - Issuance of an amendment to a permit or license for a. reactor pursuant to Part 50 of this chapter, which changes a require-

~* '

- ~ ment with ' respect to MstalTation' or#use of ha facility' component located ' '

~-

within the restricted area, as defined in Part 20 of this chapter, or which changes an inspection or a surveillance requirement, provided that (1) the amendment does not involve any significant hazards consideration, (ii) there is no change in the types or amounts of any effluents that may be released offsite, and (iii) there is no associated increase in individual or cumula-tive occupational radiation exposure. [151.22(c)(9)]

The comment on this categorical exclusion is discussed in conjunction with a similar comment on Categcry 11.

-21/ Uranium Mill Tailings Radiation Control Act of 1978, Pub. L.95-604, November 8, 1978, Sec. 204, 92 Stat. 3021 at 3036-3038, 42 U.S.C.

5 2021.

l

_ i

4- ..

q ' Proposed Category 10. - Issuance of' an amendment to a permit or license pursuant to Parts 30,'40, 50, or 70 of this chapter which _(1) changes insur- .

ance and/or indemnity requirements, or (ii) changes recordkeeping, reporting,

-or administrative procedures or requirements. [551.22(c)(10)]

One commen'ter suggested that changes in insurance or indemnity. require--

ments could have a direct impact on certain activities and hence-should not be categorically excluded. The commenter provided no further' elaboration of his position. The Commission recognized in its discussion and finding supporting this exclusion in the proposed rule that to the extent the finan-cial arrangements of' licensees may be affected by changes in insurance and/or indemnity requirements, economic and social consequences will result.

'9 However, tfie Comis'sion- viewed', ind c'ontinues to view,'as extremely reinote U the possibility that the environmental impact of licensed activities would -

i be altered by changes in insurance and/or indemnity requirements; such changes would not authorize construction or operation of licensed activities or effect changes in the permitted types or amounts of radiological effluents.

Moreover, if unusual or unique circumstances are found to exist, the Commission has discretion under i 51.22(b) to conduct an environmental review. The Commission is retaining this categorical exclusion. However, the Commission has revised the description of. Category 10. to make clear that changes in surety requirements are included within the scope of the exclusion.

Proposed Catecory 11. - Issuance of amendments to licenses for fuel cycle plants and radioactive waste dispcsal sites as identified in il 51.20(b) or 51.21(b) of this subpart which are administrative, organizational, Lor i

e i

procedural.'in nature, or which result in a change in process operations or equipment, pro'vided that-(i) there is no increase in the types or amounts'of effluents that may be released offsite, (ii) there is no associated increase in individual .or cumulative occupational radiation exposure, (iii) there is no significant construction impact, and (iv) there is no increase in the potential for or consequences from radiological accidents. [i51'.22(c)(11))

One commenter, while not r.h;ecting to the substance of the exclusion of some types of changes in process operation or equipment, recommended the addition of two further limitations on the scope of the exclusion. The first limitation would require that there be no potential for an accident of a different type than evaluated previously. The Commission views this ,

. . . , . . . , : %. : s .. ~ . . . ,. .. . . . c .

limitation as ~ unnecessary becacie the proposed rule already encompasses this '

concern and is even broader in that consequences of postulated accidents I

will also be examined. Specifically,proposeoi51.22(c)(11)would exclude a change in process operations or equipment only if, among other things, there is no increase in the potential for or censecuences from radiological accidents (emphasis added). Hence, if a proposed change raises a credible possibi'.ity of a radiological accident (s) different from those previously evaluated, then the accident potential as well as the conse-quences will be examined.

The second suggested limitation would require that there be no reduc-tion in the margin of safety of any feature. The Commission does not accept this recommendation because it is overbroad. The recommendation is over-broad because it would apply to. "any feature," including, if read literally,

i l

devices having no relationship to protection of environmental values or radiological health or safety. Moreover, the recommendation does not recog- l l

nize the possibility that a slight reduction in a conservative margin of safety of a particular feature may result, without jeopardizing in any way the public health and safety, in a net increase in the overall safety of the l

facility by allowing quicker response times, higher flew rates, more accurate i readouts, etc., in other features of the facility.

I I

Another commenter recommended that the scope of categorical exclusions 9 l and 1.1 be enlarged to permit exclusion so long as there is no significant i'

increase in the types or amounts of effluents or exposure to radiation (emphasis added). The proposed rule permits exclusion only if there is no j$ crease'. 'The comin'tir bahe'd his dugcjeskion on the languige 5f'propo' sit #

I

@ 51.21(b)(2) which would require an environmental assessment only when there is a significant increase in effluents or exposures. The Commission  !

accepts the recommendation in part and has amended categorical exclusions 9  !

and 11 by adding the word 'significant" in each proviso of each exclusion j where the word does not already appear. This change is consistent with the definition of categorical exclusion which speaks in terms of significant impacts. See 5 51.14(a)(1).

1 Proposea Catecory 12. - Issuance of an amendment to a license pursuant to )

Parts 50 and 70 of this chapter relating solely to safeguards atatters (i.e.,

protection against sabotage or loss or diversion of special wclear material) j or issuance of an approval of a safeguards plan submitted pursuant to Parts 50, s

70, and 73 of this chapter, provided that the amendment or approval does not

• Nvolve any significant construction impacts. [E51.22(c)(12)]

)

\

Two cont. enters objected to the Comission's proposed categorical exclu-sion of certain license amendments relating to safeguards and physical security plans. Both comenters believe that the excluded actions can have l a significant effect on the environment. One comenter interpreted the exclusion as excluding all actions relating to safeguards and physical security which do not involve significant construction impacts.

[ The Commission believes that the commenters read the exclusion more broadly than intended. As the discussion and finding supporting the pro-

-posed" exclusion explains,'the ext:luded license amendments are needed to - -

implement new safeguards regulations in license provisions and permit modi-fications to licensee safeguards programs established under existing require-ments. The discussion and finding describe the general types of amendments within the scope of the exclusion; they are largely of a minor procedural nature. Sub3tantive and significant amendments to the regulations from the standpoint of environmental impact do not fall within the exclusion. These

~

actions are subject to the environmental review requirements of l} 51.20 or 51.21. Some clarifying changes have been made in the description of this categorical exclusion. .

Proposed Catecory 13. - Approval of package designs for the delivery of licensed materials to a carrier for transportation. [551.22(c)(13)]

e l

1 o

e

Two commenters objected to the categorical exclusion of package design approvals ($ 51.22(c)(13)). Both conmenters essentially argue that there are' instances when the Commission's actions regarding transportation are.

potentially so significant that full NEPA review is essential. The Commis -

sion believes the commenters misconstrue the scope of this exclusion by-

. reading it too broadly. As explained in the discussion and finding sup-porting the proposed exclusion of package design approvals, certificates of.

compliance approving package designs for packages to be used in the trans-portation of radioactive materials are issued upon demonstration that the package designs meet applicable performance standards contained in Part 71 of the Commission's regulations. Althcugh it is expected that packages manufactured in accordance with approved designs will be used to transport

.. . , . <n.... .

radioactiv~e material s , th. .. .e certificates of co..mplian.cedonotauth$rizethe actual transportation of those materials. Furthermore, at the time a certificate approving a package design is issued, no specific information is available on the number of packages that will be manufactured or the manner in which they will be used.

The Commission has previously considered the impacts of the actual transportation of radioactive materials in packages meeting the performance standards of 10 CFR Part 71 in a generic environmental impact statement (Final Environmental Statement on the Transportation of Radioactive fiaterials by Air and Other Modes, NUREG-0170, December,1977) and has con-cluded'that such Impacts are small. Since this generic environmental impact statement was issued, there has been no relaxation in the performance standards which the Cennission uses in acting on requests for package

approvals. Under these circumstances, there is no need for nor any useful *

, purpose to be served by requiring a second NEPA review in connection with the issuance of individual pckage design approvals. Accordingly, the Commission has retained this-categorical exclusion.

Proposed Category'14. - Issuance, amendment, or renewal of the foilowing types of materials licenses issued pursuant to 10 CFR Parts 30, 40, or 70:

(1) Distribution of devices and products containing radioactive material to general licensees and persons exempt from licensing (i.i) Medical licenses (iii) Nuclear pharmacies

'(1 4 ' Teletherapy'licensesi '

A (v) Licenses to academic institutions for educational purposes (vi) Industrial radiography (vii) Acceptance of packaged radioactive wastes from others for transfer to licensed land burial facilities (viii) Irradiators (dry storage--self-contained)

(ix) Irradiators(wetstorage--panoramic)

(x) Gauging devices, analytical instruments, and other devices utilizing sealed sources (xi) Source material licenses for fabrication of the products specified in 10 CFR 40.13, fabrication of military munitions, and laboratory use for research and development (xii) Well logging (xiii) Research and. development. licenses involving less than ten ,

~ ~~

curies of radioa'ctive material u___-_-_-__-___-_____ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

[i 51.22(c)(14)(i)-(xvi) - The descriptions and order of some subcategories havebeenchanged.]

A number of comments were received on this categorical exclusion. One comenter suggested that this section should be revised to make clear that generic ~or programmatic impact statements are not excluded. This comment misconstrues the purpose of and the findings necessary to support a cate-gorical exclusion. By definition, a categorical exclusion means a category of actions "which do not individually or cumulatively have a significant effect on the human environment..." See 10 CFR 51.14(a)(1). A generic impact statement on a proposed action having no significant envi_ronmental impact is not required under NEPA and would serve only to divert scarce

~

4 agency resdurces froni'm'oSe$ressing $usin~ess.

U '

A number of comments were received on specific subcategories of exclu-siens within this section. Two commenters suggested that the exclusion cf materials licenses issued to academic institutions for educational purposes (5 51.22(c)(14)(v)) be clarified to make clear that licenses for nuclear reactors at such institutions are not excluded. The Commission agrees with the commenters that the exclusion is not intended to cover licenses to ,

construct and operate nuclear reactors at academic institutions. Those .

I licenses are issued under Part 50 of the Commission's regulations. Since this categorical exclusion explicitly applies only to " materials licenses issued pursuant to 10 CFR Parts 30, 31, 32, 33, 34, 35, 40 and 70," no change to the regulation is required. Hcwever, the discussion and finding

. . supporting the academic institution subcategory has been revised to make

~ ~

clear that on1y materials licenses are ' categorically c excTu'ded.

^

Another commenter correctly noted with respec.t to the discussion and finding supporting the exclusion for industrial radiography materials licenses f

(9 51.22(c)(14)(vi)) that an average' occupational exposure per individual

~

radiographer of less than 0.4 rem per year is not "less than 1%" of the permissible' exposure as stated. The correction has been made.

One comenter recommended thSt the amount of packaged radioactive waste which may be excluded should be limited as to quantity. (Proposed '

5 51.22(c)(14)(vii).) .The Comission has reexamined this categorical exclu-sion in light of the coment and, in response, has placed two limits on the exclusion. In order to be eligible for the exclusion, the total possession limit for packaged radioactive wastes held in interim storage at the same

. . 6 ,- .. .,.- .c :.v ., ., . .. . y- . .:, :

In~ addition,theperi6doftimeduringwhich time may not exceed 50 ctiries.

any single package of radioactive waste may be held in interim storage may not exceed 180 days. [See i 51.22(c)(14)(xii).]

j One commenter, a state agency, recommended that the categorical exclu-sion for source material licenses for the fabrication of certain products (prc,,osed i 51.22(c)(14)(xi)) be eliminated. The comenter referred to the experience it had with a source material licensee within its geographic boundaries and listed a number of reasons why, in its viewt activities under such licenses raise the potential for significant environmental impacts.

The Comission does not believe that all of the comenter's arguments are germane to the proposed exclusion., However, the discussion and finding supporting the exclusion of source material licenses does not clearly address the possibility of off-s.ite environmental impacts resulting from accidents I

L_____________-__ __ 1

s in handling, processing, or disposing of large quantities of depleted uranium at licensed facilities. Thercfore, the Comission has withdrawn this exclusion.

The Comission has, however, added two new categorical exclusions: one for source material licenses which-authorize the possession and use of depleted '

uranium-as shielding material in containers or devices. [651.22(c)(14)(ix)];

and one for the possession, manufacturing, processing, shipment, testing, or other use of depleted uranium military munitions [6 51.22(c)(14)(xv).]

One commenter objected to the categorical exclusion for well logging, (proposed i 51.22(c)(14)(xii)) arguing principally that if a source is lost in underground operations and consequently abandoned, the possibility exists that the radioactive material could escape into an aquifer and preclude or

~

compromNthe sIbf"th'e aquIfeha$ a sio rbe of' hEinkin'g wat' e r'or'irriga- ~

tion water. In support of this comment, the comenter cited the loss of '

'T a one curie americium-beryllium source in a mineral exploration bore in Texas and the subsequent decontamination efforts. The Comission has care-fully considered the comment but has concluded, in the light of past regula-tory experience and current licensing practicesi, that the environmental impact of licensing actions authorizing use of sealed sources and radio-active tracer materials in well-logging procedures is negligible. Accord-ingly, the Comission has retained this , categorical exclusion. Some minor editorial revisions have been made in the description of the exclusion.

[651.22(c)(14)(xi).]

Proposed Catecory 15. - Issuance, amendment or renewal of licenses for import of nuclear fhcilities and materials. pursuant to Part 110 of this chapter, e.xcept for , import of spent power reactor fuel. [h51.22(c)(15).]

n

^

commenter stated that imports of nuclear facilities and materials 1,

pursuant.to Part 11D of the Comission's regulations may have NEpA implica-tions and that this category should be either limited in scope or eliminated asacategorical' exclusion (i51.22(c)(15)). No elaboration of the commenter's

_ position is provided. Another comenter implied that a full NEPA review of i the transportation of. imports might be essential in some instances.. The 1

l Comission believes that no change to this proposed exclusion is necessary.

The Comission is unable' to respond to the first comment because of its generality. As to the second coment, the discussion and finding which accompanied the proposed exclusion specifically stated that import licenses do not authorize transportation of imported facilities and materials within the United States. Hence transportation issues are not germane to this

,, . . . ~ - ~

exclusiori. ' Mo~reover, the dis'c ussion and finding' .also noted that a ?!RC' final environmental statement (Final Emironmental Statement on the Transportation of Radioactive Materials by Air and Other Modes, NUREG-0170, December,1977) concluded that the environmental impact of the transportation of imported radioactive materials from the time of their' arrival in the United States until they reach their ultimate destination is negligible. Hence, the exclusion of this category of actions is appropriate.

I Additional tyoes of actions suggested as categorical exclusions.

I Two comen'.ers suggested that an additional exclusion be created for the issuance, renewal or amendment of byproduct, source and special nuclear material licenses to holders of construction permits for power reactors,

~

where such licenses expire upon the issuance' of an operating license. The-

. -  ?

1 I

1

Commission does not agree that an additional categorical exclusion is n'eces-sary or appropriate for these actions. Although the comment is somewhat general, the Commission interprets it as being directed at devices con-taining sources used for calibration purposes at the site, neutron startup sources used for initiating fission in the reactor core, and unirradiated' reactor fuel stored at the site subsequent to issuance of a construction permit but prior to issuance cf the operating license. Sources contained in devices used for calibrating various equipment at the construction site are already categorically excluded. [Seei51.22(c)(14)(viii).] Therefore, an exclusion for licensing these devices is unnecessary. However, it is not appropriate for the Commission to categorically exclude neutron startup sources or unirradiated reactor fuel from revised Part 51 because the envi-

'ronmental impacts' of-licensing t'hese sources are specifically considered ein 'e the Commission's review of each nuclear power reactor facility.

Two comr. enters also suggestec that the renewal of a construction permit issued for a power reactor pursuant to 10 CFR 50.55(b) be categorically excluded. The Commission does not agree that an exclusion for this class of actions is appropriate. The completion date specified in a construction permit for a facility may be extended by the Commission for a reascnable period of time for good cause shown (10 CFR 50.55(b)). The ultimate disposition of an extension request will depand to a great extent upon the particular facts alleged by the licensee. For instance, the discovery of unanticipated environmental conditions or impacts during construction may be cited by a licensee as a contributing factor for the delay in completing construction on a timel.y basis. .Since eac.h extension request will be heavily l

L -- - - - - - - - -

fact. dependent and may-involve fundamental environmental questions, the'Com-mission cannot conclude on a generic basis that the renewal of a ' construction permit will'have no significant effect on the human environment. Therefore,.

. a categorical exclusion for this class of actions is not warranted.

Two commenters also requested a categorical exclusion for any change in a principal environmental protection commitment by a holder of a construc-tion permit or an operating license which does not necessitate the issuance of an amendment to such permit or license. The Commission believes that an exclusion for these types of actions is not warranted. The staff's environmental review of license applications is based in large part upon the environmental information submitted to it by the license applicant.

~

.  :.r . . . . .~ . . .

t - .

License applicants commonTy commit to taking certain actions relative to environmental protection objectives. Since the staff's evaluation of the environmental impacts of a proposed facility is premised on these commit-ments, any deviaticns therefrom subsequent to the issuance of a permit.or license may result in environmental impacts which the Commission has not previously considered. Therefore, this category of actions should not be categorically excluded.

One commenter suggested a categorical exclusion similar to existing 10 CFR 51.5(d)(4) to exclude actions not specifically identified as requiring either an environmental assessment or impact statement. This comment miscon-ceives the nature of a categorical exclusion. An exclusion must be supported I

by a factual finding that a categcry of actions does not individually cr cumul'atively have a significant effect on the human environment. The

~

76 -

Comission has endeavored to identify categories of actions which are appro-priate subjects for environmental impact statements, environmental asses-ments or categorical exclusion. Since no factual findings can be made to .

support actions which are at this time either unidentified or unidenti-

~

fiable. a general categorical exclusion lis not' appropriate.

One comenter recommended the categorical exclusion of certain NRC

- actions under the proposed emergency planning rule.22/ Specifically, the come'nter suggested that NRC actions requiring licensees to shut down oper-ating facilities because of inadequate state and local emergency plans, allowing startup following a determination or redetermination of adequacy, or allcwing continued operation despite certain inadequacies in.the emergency plans.shodid' qualify as categorical exrlusions. -The prea'mble which 'a'com- . * - "-

c panied the' final: emergency planning rule makes clear that NRC actions: leading to the possible shutdown of an operating reactor will proceed in av.ordance with existing NRC enforcement procedures. .See 45 FR 55403, August 19, 1980.

Consistent with CEQ guidance, s 51.10(d) of revised Part 51 provides that Comission actions initiating or relating to administrative enforcement actions or proceedings are not subject to section 102(2) of NEPA. Hence proceedings to shut down reactors (or other possible enforcement actions) ~

for failure to comply with emergency planning requirements are not within the scope of Part 51, and a categorical exclusion for these actions is not necessary. However, the Comission agrees with the coment that actions authorizing renewed start up of reactors after compliance with emergency

' g/ The. final' emerge'ncy ' planning rule amending 10 CFR Parts 50- and 70 adopted bf the Comission 'was' published on A6 gust 19,~ 1980 (45 FR ,

55402). The rule became effective on November 3, 1980. "

j

--___-_________________________-___________________-_____--.___-_______.A

l.

planning requirements has been demonstrated should be categorically excluded.

. A key assumption in the Commission's decision not to prepare an environmen-tal impact statement for the emergency planning rule was that shutdowns of I

nuclear power plants as a result of actions taken under the rule are expected tobeinfrequentandofshortduration.E Therefore, it is very unlikely that the resumption of operation at a particular facility would have a significant effect on the human environment. Moreover, the Commission retains discretion to require an environmental assessment in special circumstances. As the commenter recognized, special circumstances may include resumed operation after a long shutdown or a shutdown involving multiple facilities. Accord- ,

ingly, the Commission has categorically excluded actions authorizing the resumption of operation, provided that the basis for the authorization

' ~

' relates soI61y't@c'omp1i$hce or +ecompliance with emergency planniniy - - '

requirements. [551.22(c)(18)]

Section 51.22 of revised Part 51 sets out the procedures to be followed to establish categorical exclusions ($ 51.22(a)), describes the function of the categorical exclusion to exclude certain types of actions from environ-mental review requirements (5 51.22(b)) and lists those categories of actions

~

which the Commission has declared to be categorical exclusions (E 51.22(c)).

Section 51.22(b) also provides that in special circumstances the Commission may prepare an environmental impact statement or an environmental assessment on an actio:1 covered by a categorical exclusion.

2_3 / See 45 FR 55413-55415, August 19, 1980, Emergency Planning: flegative Declaration; Finding of No Significant Impact for Effective Rule Changes.

See also, 45 FR 3913 at 3915, January 21, 1980, Emergency Planning:

Draft Negative Declaration for Proposed RJe Changes.

d The Commission has identified eighteen categories of actions which meet the requirement for a ' categorical exclusion.: A description of each of these categories, with the requisite finding, follows:

Category of Actions-

1. Amendments to Parts 0, 1, 2, 4, 7, 8, 9, 10, 11, 14, 19, 21, 25, 55,

. . . 75, 95, 110, 140, 150 or 170 of this chapter, and actions on petitions for rulemaking relating to these amendments.

Discussion and Findino  ;

3

. ~ . . . - :. ' . . ~ . . . .. -y. .

. ..:. .c Except for'Pa.rt 8,' Interpretations, the regulations in the following 'part's

~ relate to matters of Commission organization, administration and procedure.

Part 0 - Conduct of Employees Part 1 - Statement of Organization and General Information Part 2 -

Rules of Practice for Domestic Licensing Proceedings Part 4 - Nondiscrimination in Federally Assisted Commission Programs Part 7 -

Advisory Committees .

Part 8 - Interpretations Part 9 -

Public Records Part 10 - Criteria and Procedures for Determining Eligibility for Access to Restricted Data or National Security Information Part 14 -

Administrative Claims under Federal Tort Claims Act Part'140 FinancialfProtection Requirements and' Indemnity ' Agreements

~

n ,

s i.

~

Part 150 - Exemptions and Continued Regulatory Authority.in Agreement. ,.

States under Section.274 Part 170 - Fees.for Facilities and Materials Licenses and 0ther Regulatory , .

. Services. under the Atoiiiic Energy Act of 1954, as amended.

, The regulations in these parts serve the dual purpose of making needed infonnation readily avail,able to the public and providing procedures for the orderly conduct of Comission business. These regulations in and of.them . -

selves will not affect the volume of that business..

In some instances, the regulations implement Federal laws and executive orders which prescribe-specific procedures and policies for the conduct of

govbenme'nNdNineds". TT Nt521'aw' s inb1Ee th'e 'Admiriis'trat'ive ProcedEie A'ct' (5 U.S.C. 1 551 et seq.), the Freedom of Information Act (5 U.S.C. 5 552),

the Privacy Act'of 1974 (Pub. L.93-579), the Government in the Sunshine Act (5 U.S.C.1552b), the Federal Advisory Committee Act (Pub. L.92-463, 86 Stat. 770), certain provisions in 18 U.S.C. El 201-209 dealing with con-flicts of interest in Federal employment, and House Concurrent Resolution No. 175, July 11, 1958, on the Code of Ethics for Government Service (72 Stat.

B12, 5 U.S.C.A. 5 7301, Note.) Executive Order 11222, May 8, 1965, provides in part that "[t]he elimination of conflict of interest in the Federal service is one of the most important objectives in establishing general standards of conduct."

In some instances, application of the regulations will have economic or social, but>not environmental.. consequences . Examples include: Part 140 .

, e.  : .

• . +. :

'e

- l i

1

- _ _ _ _ _ _ _ _ _ _ _ - _ _ _ - _ - _ _ _ _ _ _ - _ - _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ . _ _ _ .l

a which contains' regulations implementing the provisions of the Price-Anderson

~

Act relating to financial protection and indemnity agreements; Part 170

~

which prescribes the schedule of Comission fees; and Part 4 which contains regulations on nondiscrimination which implement the provisions of Title VI of the C'ivil Rights Act of 1964 and Title IV of the Energy Reorganization

~

Act of 1974.

l Formal interpretations of the Comission's regulations authorized by the Comission and prepared by the General Counsel are codified in Part 8.

Although these interpretations may address matters of substance.as well as.

procedure, the issuance of a formal interpretation and its inclusion in Part 8 of the Comission's regulations is an action without environmental

.. , , . . . .; v e .

The regulations in the following parts impose requirements on licensees.

Part 11 - Criteria and Procedures for Determining Eligibility for Access to or Control Over Special Nuclear Material Part 19 - Notices, Instructions, and Reports to Workers; Inspections Part 21 - Reporting of Defects and Noncompliance Part 25 - Access Authorization for Licensee Personnel

i. Part 55 - Operators' Licenses l

l Part 75 - Safeguards on Nuclear Material - Implementation of US/IAEA 1

Agreement Part 95 - Security Facility Approval and Safeguarding of National Security Information and Restricted Data Part 110 - Export and Import of Nuclear Facilities and Materials

.o ,, , .

i 1

o .

Part il sets forth criteria and procedures for determir'ng the eligibility "'

of individuals for access to or control over formula quantities of special nuclear material in transportation'and certain types of fuel cycle facilities.

1 l

The requirements in Parts 19 and 21 relate to such matters as inspections, reports, record-keeping and posting of documents and notices. The require-L ments in Parts 25 and 95 relate to the protection of classified national security infonnation and restricted data and the authorization for indi-viduals to have access to such information. Part 55 establishes procedures and criteria for the issuance of licenses to operators and senior operators of licensed facilities. These regulations include procedures for filing and requirements for approval of applications, including requirements relating to written examinations, operating tests, and medical examinations. Part 75

' sets 'forth' repo~rtin'g' ahd'[ecordle'epf69 rekuire'ments' r'elafed to f5pfementatiori ~ "~

of the US/IAEA Safeguards Agreement and provides for access to licensed facilities by IAEA inspectors. Although the regulations in Parts 11, 19, 21, 25, 55, 75, and 95 address matters of substance and have a social and economic effect, they do not have a significant effect on the environment.

Part 110 sets out the procedures and criteria for issuance of licenses to export and import nuclear materials and facilities. In the case of export licenses, the procedures and criteria have been specified by the Congress in the Nuclear Non-Proliferation Act of 1978 (Pub. L.95-242, 92 Stat. 120) which does not include environmental impact as a factor to be considered. Consistent with this statutory mandate, the Comission has limited the scope of revised Part 51 to NRC's domestic licensing and related regttlatory functions.. Section '51.1 specifically states that the .

.,- ,; , , ~ .

~. .

- regulations in Part 51. "do not apply to export licensing matters within the scope of Part 110. . ." To the extent that they apply to import licenses,.the regulations in Part 110 are largely' procedural. In addi-tion, as explained in the discussion end finding for Categorical Exclu-sion 15, which applies to the issuance, amendment or renewal of licenses

'for the import of nuclear facilities and materials pursuant to Part 110, .

except for the import of spent power reactor fuel, the limited action of importation, which is the only action authorized by an inport license, has no significant effect on the environment.

Accordingly, for the reasons stated, the Comission finds that amend-ments to Parts 0, 1, 2, 4, 7, 8, 9, 10, 11, 14, 19, 21, 25, 55, 75,.95, 110, 140, '150Y oh 170~of i s regNatibris a$[ac'tlons 'onke' tit'iohslor rulemaking relating to such amendments (Category 1) comprise a category of actions which do not individually or cumulatively have a significant effect on the human environment, designates Category 1. as a categorical exclusion, and

, directs that Category 1. be listed in 5 51.22(c) as a categorical-_ exclusion.

Category of Actions _

l 2. Amendments to the regulations in this chapter which are corrective or of a minor or nonpolicy nature and do not substantially modify existing regulations, and actions on petitions for rulemaking relating to these amendments.

" .g F k ge 83 -

l Discussion and Finding -

Minor amendments of this type are sometimes needed to update, clarify or eliminate an ambiguity in an existing regulation. Since these amendments are usually editorial and do not change the substance of an existing regula-tion they can neither increase nor decrease any environmental impact which the existing regulation may have.

Accordingly, the Commission finds that amendments to its regulations which are corrective or of a minor or nonpolicy nature and do not substan-tially modify existing regulations and actions on petitions for rulemaking relating to such amendments (Category 2.) comprise a category of actions

., ' , . . . . .<,, ...:,.. V ::, ~ .. ., , . . . . . ......

whichdonotindividuallyorc~urula'tiv','lyhaveasig~nihic'anteffecton'the' e

human environment, designates Category 2. as a categorical exclusion, and directs that Category 2. be listed in 5 51.22(c) as a categorical exclusion.

Category of Actions

3. Amendments to Parts 20, 30, 31, 32, 33, 24, 35, 40, 50, 51, 60, 61,

~

70, 71, 72, 73, 81, or 100 of this chapter which relate to (i) procedures for filing and reviewing applications for licenses or construction permits or other forms of permission or for amendments to or renewals of licenses or construction permits or other forms of permission; (ii) recordkeeping requirements; or (iii) reporting requirements; and actions on petitions for rulemaking relating to these amendments.

N' .

' 8

. g

- 84

Discussion and Finding Although amendments of this type affect substantive parts of the Commis- -

sion's regulations, the amendments themselves relate solely to matters of procedure. Requirements to keep records and make reports and regulations providing specific instructions,as to where applications should be filed,

.how they should be signed and executed, the number of copies to be furnished,

'and the procedural steps which will be followed in connection with their review, do not have an effect on the environment. Like the amendments.in Category 1., their function is to facilitate the orderly conduct.of Commis-sion business. Accordingly, the Commission finds that amendments of this

. type (Category 3.) comprise a category of actions which do not individually

,., 9 - . ..

,T. .V l 1er cumulatively have a significant effect on the huma_n environment, desig-nates Category 3. as a categorical exclusion, and directs that Category 3.

-be listed in % 51.22(c) as a categorical exclusion.

l Category of Actions 4 Entrance into or amendment, suspension, or a ncination of all or' part of an agreement with a State pursuant to section 274 of the Atomic Energy Act of 1954, as amended, providing for assumption by the State and discontinuance by the Commission of certain regulatory authority of the Commission.

l l

s .

l

..  :- .a .

1

~

l- Discu'ssion and Finding _,

l l

Section 274 of the Atomic Energy Act of 1954, as amended, (42 U.S.C.

l l 5 2021) provides a mechanism (a section 274b. Federal-State Agreement) which authorizes the Commission to discontinue and enables individual States to assume, as they become ready and willing to do so, certain defined areas of regulatory authority over source, byproduct and special nuclear material.

In order to make sure that the health and safety of the public will continue to be adequately protected, section 274d. prescribes certain conditions I which must be met before an agreement can be entered into.

I

d. The Commission shall enter into an agreement under subsection b.

of this section with any State if--

. . :n.. ... .-Q_,. .

, [ y ;~ . _' ~ . - . _. .

. . .r (l') ThE Governor of that State certifies that the State has a program for the control of radiation hazards adequate to protect the public health and safety with respect to the materials within the State covered by the proposed agree-ment, and that the State desires to assume regulatory responsibility for such materials; and (2) the Commission finds that the State program is in accord-ance with the requirements of subsection o.* and in all other respects compatible with the Cor

rnission's program for regulation of such materials, and that the State l program is adequate to protect the public health and safety with respect to the materials covered by the proposed agreement. -

These requirements provide assurance that follo%ing the transfer of functions under the i 274b. agreement, the State will administer the existing regulatory program in a manner similar to the way in which it was previously administered by the NRC.

I

• ~

Section 2740., which was added by Public t.aw 95-604 (92 State 3037), '

o c'ontains'certain requi.rements relating to. the l'icensing.and regulation of mill tailin'gs'.

i

~

Under secti>n 274j of the Act, the Commission retains certain residual powers which ' *amit the Com'issionm to terminate or suspend all or part of a State agreement and reassert its own licensing and regulatory authority if it finds that ". . . (1) such termination or suspension is required to protect the public health and safety, or (2) the State has not complied with one or more of the requirements of this section [6 274]." In aid of this residual authority, section 274j also provides that the Commission ". . .

shall periodically review such agreements and actions taken by the States under the agreements to ensure compliance with the provisions of this sec-tion [9 274]. . . ."

. Under the statutory scheme provided in 5 274, state regulatory actions ,

• - 'M

~

r..  ;.,'! v do not become Federal hetions for the purposes of NEPA by virtue of the provisions of a Federal-State agreement. The agreement does not constitute a delegation or transfer of Federal authority to the States. Instead, the agreement specifies the conditions under which the States may exercise their cwn sovereign authority. Under the provisions of the agreement, the NRC's regulatory authority over source, byproduct and special nuclear material, i

conferred upon it by the Atomic Energy Act, is discontinued, thereby enabling the States, in the exercise of their inherent police powers to protect the

~

public health and safety of their citizens, to assume regulatory authority over those materials. Thus, regulatory actions taken by states under an agreement are state actions and as such are not subject to NEPA which only applies to Federal actions.

Although execution of a Federal-State agreement 'is' essential to shift -

~

' regulatory control over source, byproduct .and less-than-critical quantities

o of special nuclear material from the NRC to a state, the formal Federal ,

action of entering into such an agreement has no immediate or measurable.

environmental impact.- At the time of entrance into an agreement, informa- -

tion on the kind and number of State regulatory actions to be taken.during 4

the indeterminate period an agreement may: remain in effect cannot be known and in consequence the environmental effects of.those actions cannot be ascertained. Accordingly, no meaningful environmental' impact statement or l , . environmental assessment can be prepared.. Under these circumstances, a categorical exclusion for actions of this type appears warranted.

In order to implement the provisions of the Uranium Mill Tailings Radiation Control Act of 1978, it will be necessary for the Commission and

,, ~; .  : ,  ; ._ .~ .

. v . . .q .

, ,, s -p + , ,

those Agreenent States which wish to retain regulatory authority over uranium milling to amend the provisions of the i 274b agreements now in force. The purpose of these amendments is to bind the States, in accordance with the provisions of the Act, to carry out their responsibilities with respect to the regulation of mill tailings in a manner which will not only provide adequate protection of the public health and safety but which will also protect the environment from hazards associated with those materials. Among other things, the States will be required to prepare detailed environmental analyses before they license activities which result in the production of mill tailings.

Implementation of the amended agreements, as intended by the Congress, will have a significant and beneficial effect upon the environment. To acknowledge this, however, 'does not change the fact that the form'a l' action

(

I

_ _ _ _ _ _ _ _ _ _ _ _ _ __ . _ _ _ _ _ _ _ _ _ . . _ _ _ _ _ . . _ _ ]

of amending an agreement, in and of itsel-f, is not only without any environ-mental impact, but given the nature of the statutory mandate, which requires that the terms of the agreements conform to the requirements of the Act, is essentially ministerial.

Accordingly, the Comission finds that entrance into or amendment, sus-pension, or termination of all or part of an agreement with a State pursuant to section 274 of the Atomic Energy Act of 1954, as amended, providing for assumption by the State and discontinuance by the Comission of certain regulatory authority of the Comission (Category 4.) comprise a category of actions which do not individually or cumulatively have a significant effect on the human environment, designates Category 4. as a categorical exclusion

~

.. ~. i f.,

and directs that Category 4. be ifsted in 5 51.22(c) as a c'ategorical excTusion.

Category of Actiens

5. Procurement of general equipment and supplies.

Discussion and Findina Procurement of general equipment and supplies ensure that NRC person-nel are able to efficiently perform their official responsibilities on a day to day basis. Although these procurement have an economic effect, they do not have a significant effect en the environment.

Acco~rdingly, the' Comission finds that procurement of general equip-ment and supplies (Category 5.) comprise a category of actions whiiih do not

. j l

1 I

1

individually or cumulatively have a significant effect on the human environ-ment, designates Category 5. 'as a categorical exclusion, and directs that Category 5. be listed in 5 51.22(c) as a categorical exclusion.

Cateoory of Actions

=

l l 6. Procurement of technical assistance, confirmatory research pro-vided that the confirmatory research does not involve any significant con-l struction impacts, and personal services relating to the safe operation and protection of commercial reactors, other facilities, and materials su'aject to fiRC licensing and regulation.

_ :c ...~r '

. . : . y. . . . , ., ,

. , y ,; .

I Dist_ussion and Findino l These actions involve scientific and engineering studies, assessments and analyses in areas relating to the safe operation and protection of i

commercial reactors, other facilities, and materials subject to regulation, licensing and inspection by the NRC. The actions do not include confirmatory research programs which entail physical construction of plants and facilities.

Although these activities have an economic effect, no significant i

effect on the environment is anticipated.

Accordingly, the Commission finds that procurement of technical assist-ance, confirmatory research which does not involve any significant construction impacts and personal servises relating to the safe operation and protection ~

l l

V .

- of commercial reactors., other facilities, and materials subject to NRC licensing and regulation (Category 6.) comprise a category of actions which do not individually or cumulatively have a significant effect on the human

. environment, designates Category 6. as a categorical' exclusion, and directs that Category 6. be listed in i 51.22(c) as a categorical exclusion.

Category of Actions

7. Personnel actions.

Discussion and Findina

. , ,f .e , :y., , r - .. ,

, . , 3 ..

.. g ; , , , ,

Personnel actions refer to administrative actions affecting NRC employ-ees or potential employees, including labor union activities and the hiring, promotion and separation of personnel. Although these activities have a social and economic effect, they do not have a significant effect on the environment.

Accordingly, the Commission finds that personnel actions (Category 7.)

comprise a category of actions which do not individually or cumulatively have a significant effect on the human environment, designates Category 7.

as a categorical exclusion, and directs that Category 7. be listed in i 51.22(c) as a categorical exclusion.

e g -

Category of Actions B. Issuance, amendment, or renewal of operators' licenses pursuant to Part 55 of-this chapter.

Discussion and Finding Part 55 of. the Comission's regulations prohibits persons from perform- .

ing the functions of an operator or a senior operator at a licensed facility unless authorized to do so by a license issued by the Comission. Although

. issuance or denial of an operator's license'may have a significant economic effect on the individual applicant, the action,of 'the Comission in issuing,

. / . ;' r . .SY: v. ; , . . l. /. .- n. .

. c. 4; s ,  :<; <

amending'or renewing an operator's license _'in accordance with the procedures ;

of 10 CFR Part 55 does not have an environmental effect. The environmental impact of the operation of a licensed facility by a licensed operator is fully considered in the environmental impact statemant or environmental .

assessment prepared in connection with the licensing action authorizing j operation of the facility. The formal action of certifying an operator does not authorize facility operation.

Accordingly, the Comission finds that issuance, amendment or renewal of operators' licenses' pursuant to Part 55 of this chapter (Category B.)

comprise a category of actions which do not individually or cumulatively I

have a significant effect on the human environment, designates Category 8.

as a categorical exclusion, and directs that Category B. be listed in i 51 22(c) as a catranricallexclusion. -

~ ~ - \ . . .m

Category _of Actions

9. Issuance of an amendment to a permit or license for a reactor -

pursuant to Part 50 of this chapter which changes a requirement with respect to installation or use of a facility componen.t located within the restricted area, as defined in Part 20 of this phapter, or which changes an inspection or a surveillance requirement, provided that (i) the amendment involves no l significant hazards consideration, (ii) there is no significant change in l- the types or significant increase in the amounts of any effluents that may be released offsite, and (iii) there is no significant increase in individual .

cr cumulative occupational radiation exposure.

- . . . . . . .,.: 9 . n.- . .

r. - . . ,.,

t -

Discussion and Findino Experience has indicated that amendments in this category either have no environmental impEct or have an environmental impact that is insignifi-l cant. Changes which relate to the installation or use of a facility compo-nent located within a restricted area and which do not involve significant hazards considerations, significant changes in offsite effluents, or signifi-cant increases in occupational doses do not result in offsite effects that j could have a significant impact on the human environment. Associated effects, if any, would be minimal and would be confined to limited access areas on site. Experience has also shown that amendments that change an inspection I

or surveillance requirement are usually of a procedural nature. The purpose of these changes is to incorporate accepted improvements in the installation or;use of facility' components or in inspection and surveillance which will

~* *

?u . .:

l l

l

i facilitate the conduct of the licensee's business and insure the adequacy and t'imeliness of information reported to the Commission. As a result, such amendments will not lead to significant environmental impacts on the human environment either individually or cumulatively.

Accordingly, the Commission finds that license amendments of this type (Category 9.) comprise a category of actions which do not individually or cumulatively have a significant effect on the human environment, designates Category 9. as a categorical exclusion, and directs that Category 9. be listed in i 52.22(c) as a categorical exclusion.

i Cateoorv of Actions 2 .; .; . , . .  ; .

10. Issuance of an amendment to a permit or license pursuant to Parts 30, 31, 32, 33, 34, 35, 40, 50, 60, 61, 70, or 72 of this chapter which (i) changes surety, insurance ard/or indemnity requirements, or (11) changes recordkeeping, reporting, or administrative procedures or requirements.

Discussion and Findina Issuance of an amendment to a permit or license to change surety, insurance and/or indemnity requirements or to change requirements relating j to recordkeeping, reporting or other administrative procedures does not affect the scope or nature of the licensed activity. Although changes in surety, insurance and/or indemnity requirements affect the financial arrange-

~

ments of licens'ees and have economic and' socia 1 consequences, they do 'not

(

. l g

~

~

alter the environmental impact of the licensed activities.

~

Similarly,

' changes in recordkeeping and' reporting requirements and other administrative l

procedures relating to the licensee's organization and management do not l change the nature and the consequent environmental impact of the licensed l

. activity. The function of these procedural and administrative changes is merely to facilitate the orderly conduct of the licensee's business and to l insure that the information needed by the Commission to perform its regula-  ;

tory functions is readily available. Accordingly, the Commission finds that license amendments of this type (Category 10.) comprise i category of actions I which do not individually or cumulatively have a significant effect on the human environment, designates Category 10. as a categorical exclusion, and l

~

directs that Category 10..be listed in 5 51.22(c) as a categorical exclusion.

.. ... ..: . , - 8 ,

y? ~

z'. .

~

~

.. : ~ic ,-

Category of Actions i

l

11. Issuance of amer.dments to licenses for fuel cycle plants and i i

radioactive waste disposal sites and amendments to materials licenses iden-tified in 5 51.60(b)(1) which are administrative, organizational, or proce-dural in nature, or which result in a change in process operations or equip-ment, provided that (i) there is no significant change in the types or .

l 1

significant increase in the amounts of any effluents that may be released  ;

offsite, (ii) there is no significant increase in individual or cumulative occupational radiation exposure, (iii) there is no significant construction ,

impact, ard (iv) there is no significant increase in the potential for or consequences frcm radiological accidents.

x

.~.

r' -

95 -

Discussion and Findino .

Some requests for amendments to these types of licenses are administra-tive. organizational or procedural in nature or involve changes in process operations and equipment which do not result in any significant adverse incremental impacts to the environment ~from the licensed activity. Imple-mentation of these minor and routine types of changes do not significantly alter the'previously evaluated environmental impacts associated with the licensed operation, taking into account construction impacts, types and amounts of effluents released by the operation, occupational exposure: of employees, or potential accidents. Furthermore, these amendments do not affect the scope or nature of the licensed activity.

Accordingly, the Commission finds that this class of amendments to licenses for fuel cycle plants and radioactive waste disposal sites and to certain types of materials licenses (Category 11.) comprise a category 2f actions that do not individually or cumulatively have a significant effect on the human environment, designates Category 11. as a categorical exclusion, and directs that Category 11. be listed in 5 51,2?.(c) as a categorical exclusion.

Category of Actions

12. Issuance of an amendment to a license pursuant to parts 50, 60, 61, 70, 72, or 75 of this chapter relating solely to safeguards matters (i.e.

protection against sabotage ortloss or diversion of special nuclear material) or issuance of an approval of a safeguards plan submitted pursuant to p 4 h .

Parts-50,1 70, 72, and'73'of this-chapter, provided that;the-' amendment or-

• 'approva' does'not' involve'any significant construction impacts. These.

amendments and' approvals are confined to (1): organizational and procedurals

~

matters, (ii) modifications .to systems used for security and/or materials-

- a' accountability '(iii) administrative changes,'and (iv) review and approval' of transportation routes pursuant to 10'CFR 73.37.

t Discussion and Findina

' Amendments and. approvals of this nature relate to the protection of nuclear materials against theft or diversion or to the protection of nuclear materials, facilities, and transportation activities against radiological sabotage. They are needed (1) to implement new safeguards regulations th' rough incorporation of provisions into licenses and (2) to permit modi-

, fications to licensees'. safeguards programs established under existing

requirements. . With the exception of amendments involving significant con-st'ruction, they are confined to (i) organizational ar A procedural matters,

.(ii) modifications to systems used for security and/or materials accounta-bility, (iii) administrative changes, and (iv) review and approval of .

transportation routes pursuant to 10 CFR 73.37. The issuance of license amendments relating to these matters in and of themselves will not cause any significant environmental impacts.

With regard to route approvals, the requirement in 10 CFR 73.37(b)(7) for advance NRC approval of transportation routes applies only to spent fuel shipments and was included in the Comission's regulations in order to provide additional assurance that shipments containing spent fuel would be adequately

k I L I l

protected against loss, diversion or sabotage. Before approving a particular .

transportation route, the NRC first makes a determination, on the basis of independently acquired information, that (1) details have been worked out for swift response by local, law enforcement agencies, if requested, and (2) concrete details for NRC contingency planning for the route are adequate. l l The NRC bases its route approvals on the following criteria: (1) routes that 1

1 permit more timely responses by local law enforcement agencies are preferred; (2) routes that avoid passage through tactically disadvantageous positions are preferred; (3) routes should have appropriate rest and refueling' stops avail-able; and (4) routes with advance Fafety design features such as divided high-ways and guard rails are preferred. In this manner the NRC is able to obtain or verify the adequacy of requisite safeguards information and to ensure that transportation will take place only over routes that have adequate safeguards.

The NRC distinguishes between safety matters and safeguards matters in its regulatory scheme. The requirement of NRC route approval is one of a number of elements of the physical protection system for spent fuel shipments and involves only a safeguards review. Safety matters are covered by 10 CFR Part 71 (packaging) and by Department of Transportation (DOT) regulations. .

Generally 00T is responsible for regulating safety in the transportation routing of radioactive materials. DDT did an environmental assessment in connection with the adoption of its rules authorizing the shipment by road throughout the nation of all types of radioactive materials. DOT found in that environmental assessment that no environmental impact statement was required in connection with the adoption of the rules because the risks of highway transport are so low that the regulations authorizing such transport will have not significant adverse environmental impact.

i ,

DOT in its-environmental assessment relied in part on two studies

sponsored by the NRC

(1) Final Environmental Statement on the Transportation -

of Radioactive Materials by Air and Other Modes, NUREG-0170 (Pecember 1977);

(2) Transportation of Radionuclides in Urban Environs: Draft Environmental Assessment,'NUREG/CR-0743; SAND 79-0369 (1980). The Comission finds from these studies and other available information, like DOT, that the transport of radioactive materials will not have a significant adverse environmental impact.

i

~

The Commission in NUREG-0170, a generic environmental impact statement, considered the environmental impacts of the transportation of radioactive materials, including the transportation of those materials over routes approved for safeguards purposes, and concluded that such impacts are small.

This generic environmental impact statement set out the NRC's views of the present (1977) and projected (1985) environmental impact of the transpor-tation of radioactive material and provided documentation for the NRC determination that the environmental impacts, radiological as well as non-radiological, of both the normal transportation of radioactive materials and of the risk and consequent environmental impacts attendant on accidents .

involving radioactive material shipments were sufficiently small that shipments by all modes of transport should be allowed to continue and that no immediate changes to NRC regulations were needed. This report also concluded that the risks of theft or sabotage resulting in any significant radiological release are sufficiently small to constitute no major adverse impact on the environment. The Commission has examined the potential impacts set forth in NUREG-0170 and characterized as "small" and determined that they do not amount to a significant adverse impact.

L

'NUREG/CR-0743 was develop:d to supplement HUREG-0170 by'specifically _

L studying-the-transport of nuclear materials through urban areas. That r port concurred with the general conclusions in NUREG-0170 that neither -

accident-free transport nor the overall, expected effects of accidents pose a significant hazard to urban populations. However -that study, although it l

l contained a high degree of L1 certainty as to the potential consequences of sabotage of spent fuel shipments,.did suggest that sabotage has the potential for producing serious radiological' consequences in areas of high population density.

In response to this uncertainty the NRC and the Department of Energy (DOE) sponsored separate coordinated experimental programs. While the results of these studies are still undergoing review, they appear to support the conclusion that transport of radioactive materials will not have signifi-cant adverse environmental impacts. The Commission believes that the avail-able information, including the review of these two studies to date, provides sufficient certainty to conclude at this time that the transportation of radioactive materials in accord with NRC and DOT regulations will not have a significant adverse impact on the environment. The Commission notes, however, that if special circumstances are shown to exist in connection with a particu-lar shipment an environmental assessment or an environmental impact statement may be prepared for that shipment, and that as further review continues, this conclusion may be modified.

The Commission is aware that in City of New York v. DOT, 539 F. Supp.

1237 (D.S.N.Y. 1982), the Court invalidated DOT's final rule " insofar as it overrides non-federal bans on truck transportation of spent fuel and other

- 100 -

.j L large-quantity radioactive . naterials through densely- populated areas such as  !

New York' City," because DOT inadequately considered the " worst-case scenario" arid failed to study appropriate alternatives. I_d. at 1293-94 The court l

only enjoined application of the r*, e to New York City, however, where there was a non-federal ban on truck, transportation and where'the City had suggested an alternative, because the record did not contain. sufficient ,

, information to warraret enjcining application of the. rule in other jurisdic-tions. The NRC ices not believe that this decision has a bearing on its route approvals, which are.not meant to override local bans.

Accordingly, the Commission finds that license amendments and approvals of this type. (Category 12.) comprise a cateaory of actions which do not individually or cumulatively have a significant effect on the human environ-

. ment, designates Category 12. as a categorical exclusion, and directs that Category 12. be listed in 5 51.22(c) as a categorical exclusion.

Cateacrv of Actions 9

13. Approval of package designs for packages to be used for the transportation of licensed materials.

Discussion and Findina Certificates of compliance approving package designs for packages to be used in the transportation of radioactive materials are issued upon demonstration that the package designs meet applicable performance standards contained in Part 71 of the Commission's regulations. Although it is

- 101 -

1 i

expected that packages manufactured in accordance with approvzd designs will be used to transport radioactive materials, the certificates of compliance do not and p nnot authorize the actual transportation of those materials.  :.

.At the time a certificate approving a particular packege design is issued.

there is no specific information available on the nunber of. packages that will;be manufactured or the frequency of use. Since the Commission finds from other available material thaf the transportation of radioactive material in accord with applicable' regulations will not have a significant adverse l impact on the environment, the approval of packagg. designs in accord with a

those regulations similarly can have no significant adverse environmental impact.

l l

The Commission previously considered the impac'ts of the actual transportation of radioactive materials in packages meeting the performance standards of 10 CFR Part 71 in a generic environmental impact statement (Final Environmental Statement on the Transportation of Radioactive Mate-rials by Air and Other Modes, NUREG-0170, December 1977) and concluded that such impacts are small. This generic environg ntal impact statement was prepared to aid the NRC in reevaluating its regulations for the air transportation of radioactive materials, including packaging and related ground transportation. Although the statement was directed at air transpor-tation, packaging standards and other transportation modes - land transport and water transport - were also considered. The statement set out the NRC's views on the present (1977) and projected (1985) environmental impact j of the transportation of radioactive materials. The statement also provided documentation for the NRC determination that the environmental impacts, l

- 102 .: r

radiological as well as non-radiological, of normal transportation of radioactive materials. inci'uding the transportation of those materials in packages for which the Commission had issued design approvals, and the risks and consequent environmental impacts attendant on accidents involving radioactive material shipments were sufficiently small that shipments by all modes of transport should be allowed to continue. On the basis of this

. generic environmental impact statement, the MRC concluded that no immediate changes to its regulations, including those portions of the regulations relating to the cert.ification of package designs, were needed. The Commission has examined the potential impacts set forth in NUREG-0170 and characterized them as "small" and determined that they do not amount to a significant adverse impact.

I NUREG/CR-0743, Transportation of Radionuclides in Urban Environs:

Draft Environmental Assessment (1980) was developed to supplement NURER-0170 by' specifically studying the transport of nuclear materials through urban areas. That report concurred with the general conclusions in NUREG-0170 that neither accident-free transport nor the overall expected effects of accidents pose a significant hazard to urban populations. However, that study, although it contained a high degree of uncertainty as to the poten-tial consequences of sabotage of spent fuel shipments, did suggest that sabotage has the potential for producing serious radiological consequences in areas of high population density.

- 103 -

j J

fn response to this uncertainty- the NRC and the Department of Energy ,

- (DOE) sponsored separate coordinated experimental programs. While the i

-results of these studies are still undergoing review, they appear to support the conclusion that transport of radioactive materials will not have signifi-cant adverse environmental impacts. The Commission believes that the avail-able information, including the review of these two studies.to date, provides J sufficient certainty to conclude at this time that the transportation of radioactive ma'terials in accord with applicable regulations will .not- have a significant adverse impact on the environment. The Comission notes that as further review continues, this conclusion may be modified.

Accordingly, the Commission finds that approvals of package designs for packages to be used for the transportation of licensed materials (Cate-gory 13.) ' comprise a category of actions which do not individually or cumu-latively have a significant effect on the human environment, designates Cate-gory 13. as a categorical exclusion, and directs that Category 13. be listed in 5 51.22(c) as a categorical exclusion.

Catecory of Actions .

14 Issuance, amendment, or renewal of materials licenses issued l

l pursuant to 10 CFR Parts 30, 31, 32, 33, 34, 35, 40, or 70 authorizing the following types of activities:

l l

- 104 -

L_______________________

~

(1) Distribution of radioactive material and devices or products con- -

taining radioactive material to general licensees and to person's' e.vempt from licensing (ii) Distribution of radiopharmaceuticals, generators, reagent kits-

. and/or sealed. sources' to persons licensed pursuant to 10 CFR 35.14

^

and 35.100 (iii) Nuclear pharmacies (iv) Medical and veterinary (v) Use of radioactive materials for research and development and for educational ' purposes (vi) Industrial radiography (vii) Irradiators ,

(viii) "Usi of s' al'ed e 's'ource's and usbdf' g'auging dev' ices, a'nalytick) instruments and other devices containing sealed sources (ix) . Use of uranium as shielding material in containers or devices (x) Possession of radioactive material incident to performing services such as installation, maintenance, leak tests and calibration (xi) Use of sealed sources and/or radioactive tracers in well-logging procedures (xii) Acceptance of packaged radioactive wastes from others for transfer to licensed land burial facilities provided the interim storage period for any package does not exceed 180 days and the total possession limit for all packages held in interim storage at the same time does not exceed 50 curies.

(xiii) Manufacturing or processing of source, byproduct, or special

. nuclear materials for distribution to other licensees, except.

4 105 -

4 l

processing of source material for. extraction of rare earth and

~

other metals.

(xiv) Nuclear laundries.

(xv) Possession, manufacturing, processing, shipment,' testing, or other use of depleted uranium military munitions.

l l (xvi)- Any use of source, byproduct, or special nuclear material not

~

listed above which involves quantities and forms of source, -

I byproduct, or special nuclear material similar to those listed in sections (i) (xv) of Category 14.

Discussion and Findinas

. .:. _, _ ., . O

. ,y: _ ._

~

a :. . . . -

'Previously, the Commission'_s attention O environmental review require'-

ments for materials licensing actions has focused largely on activities in the uranium fuel cycle. In this revision to 10 CFR Part 51, other types of materials licenses are accorded additional attention. Although some types of materials licensing actions have not been the subject of an in-depth environmental review, the NRC and its predecessor agency, the Atomic Energy Commission, have had over thirty years experience'in licensing and regulating these materials licensees. Based on this experience, the NRC believes that these activities, individually or cumulatively, have not resulted in any significant impact on the environment. Absolute confirmation that none of these licensing actions would ever have any significant environmental impact could be obtained only by in-depth reviews of each of thousands of licensing actions each year. The Commission does not believe that the huge

~

- expenditure of resources that would'be requ' ired would be justified and - -

- 106 -

believes that the environment would be better protected if NRC's resources

. were devoted to the' environmental analyses' called for under il 51.20(b) and 51.21 of this subpart for the types of actions which experience suggests have real potential to cause significant environmental problems. Under the revised regulations, the NRC staf'f may prepare an environme'ntal impact statement or an environmental assessment, as appropriate, for any licensing actions covered by a categorical exclusion should special circumstances come to its attention that would warrant such action.

(i) Distribution of radioactive material and devices or products con-taining radioactive material to general licensees and to persons exempt from licensing

, r; ..

. , . , g.  : s. . .

.- .u q, .

These licenses authorize persons to distribute radioactive materials and devices such as density gauges, level gauges, and other gauging devices to persons who are general licensees and to distribute products containing radioactive material such as watches, electron tubes, or smoke detectors to persons who are exempt from licensing. These licenses for distribution do not authorize processing or use of radioactive materials. There are no effluent releases or personnel exposures associated with the licensed activi-ties. These distribution licenses presuppose ultimate use or possession of the radioactive materials under a general license or exemption established by regulation, which regulation, under i 51.21, will require an environmental assessment addressing the environmental impacts of the generally licensed or exempted activities of the recipients of the materials. The radioactive

. material, Levices and products that may be distributed pursuant to these 1

- 107 -

l' .

[

l .

1 ~

licenses must meet the specific standards and requirements in the NRC regu- .

1ations. At the tinie of issuance of the regulations authorizing distrib"-

tion,- the determination was made that subsequent exempt or generally licensed l

L use or possession of the materials would not constitute a. risk to the public health and safety.

(ii) Distribution of radiopharmaceuticals, generators, reagent kits and/or sealed sources to persons licensed pursuant to 10 CFR I

35.14 and 35.100 These licenses authorize persons to distribute radiopharmaceuticals,.

generators, reagent kits and/or sealed sources to NRC's Group medical licen-

..<.; ~ v .- c . , . .

. +. : . . ' ..a u,,. u *

.~ c.. >

sees. 'These licenses for di+stribution do not authorize possession, use or processing of radioactive materials. There are no effluent relecses or personnel exposures associated with the licensed activities.

(iii) Nuclear pharmacies Nudear pharmacies purchase prepared radiopharmaceuticals, radioisotope generators and reagent kits from manufacturers. They elute the generators and distribute the eluate as a prepared radiopharmaceutical or compound the eluate with reagent kits to make prepared radiopharmaceuticals. They dis-pense and distribute prepared radiopharmaceuticals to medical licensees in unit-dose or multi-dose forms. If the services of a nuclear pharmacy are not used, the medical licensee performs these functions in his own nuclear medicine laboratory. Due to the 'short half-life of inedically'useful 1sotopes,

- 108 -

p- -

p g ' '

theLradioactive wastes that nuclear pharmacies generate may be decayed to-background levels 'in storage. Releases in effluents. may be estimated at .5%.

of maximum. permissible values. Due to the soft gamma emission of most

. medically- useful isotopes and. the use of.'pers'onnel sh.ielding devices, expo-sure to personnel may be conservatively estimated at 25% of the maximum permissible dose.

..(iv) Medical and veterinary NRC. issues licenses to hospitals and to physicians authorizing use of radioactive. materials in the diagnosis and treatment of patients. These licensed activiti.es may include such activities as: receipt of radioactive

< . p.s.. , ' ';.:.'..' , .

.y'...

. , . r.', . o f.

, e,, .

material, preparation of radiopharmaceuticals fram Mo-99/Tc-99m generators and reagent kits, administration of unsealed radiopharmaceuticals to patients for. diagnostic or therapeutic purposes, the use of sealed' sources for brachy-thecapy (i.e., radiation delivered from a short distance) and/or telethera'py

-(i.e., radiation delivered from a long distance), use of sealed sources con-tained in devices implanted in patients (e.g., nuclear-powered pacemakers),

laboratory use of unsealed sources for performance of diagnostic tests or for tracer studies for research purposes, use of source material for shielding l

(e.g., as a component of a teletherapy unit or a linear accelerator), and the disposal of the authorized materials by holding for decay or by transfer l to authorized recipients.

For the purposes of this discussion, medical licenses also include similhr"activit'ies conducted by veterinarian for diagnosis'or tre'atment 'of

- 109 -

f

animals and laboratory use of unsealed sources for dia' gnostic tests as performed by clinical laboratories.

The environmental impact of these licensed. activities is insignificant.

In light of 10 CFR 20.107, radiation exposures of patients are not considered.

The environmental impacts would be: occupational exposures estimated at j less than.10% of the applicable limits; non-occupational exposures of members of the public who may have contact with these patients are generally minimal; releases to air and water. or to sanitary sewerage (primarily as patient excreta) are of- small quantity, or if of larger quantities, are short-lived.

Effluent releases with the e'ceptionx noted in 10 CFR 20.303(d) are estimated at-less than 10% of the applicable-limits.

.. t . ......[..

. . . y., . ,: < : , , , . - a

. . . , . . u (v) Use of radioactive materials for research and development and for educational purposes These. licenses authorize persons (e.g., academic institutions, indus-trial firms, and government agencies) to use sealed and/or unsealed sources of byproduct, source and special nuclear material for activities such as research and development (10 CFR 30.4(q)), educational purposes, classroom demonstrations, animai tracer studies, and tracer studies of materials and compounds. (Licenses to construct or operate nuclear researen reactors are not materials licenses and therefore are not within the scope of this cate-gorical exclusion.) This categorical exclusion does not encompass (a) processing or manufacturing, (b) performance of field studies in which

^

111 censed material .is deliberately released directly into the environment! for

~ '

purposes of the study, or (c) use of radioactive tracers in field flood

- 110 - J

- i t

4 stud'ies in,volving secondary and tertiary oil and ' gas recovery. As specified

~

L in 5.51.60(b)(1)(vi), applicants seeking licenses authorizing the use of tracers _ in field flood studies. involving secondary and tertiary oil and gas recovery are required to submit environmental reports. In the case of other field' studies in which licensed material is deliberately released directly-into the environment for purposes of the study, environmental reports will ,

be requested on a case-by-case basis as needed. -

A typical facility is designed to minimize release of effluents to the environment. Remote handling equipment, personnel protective clothing, and shielding materials are standard equipment to minimize personnel exposures.

A day-to-day radiation safety program provides for monitoring of personnel

.. ,. . ,. . ~ ; ::. .., .

. ' . . r. . . . .. .

exposures, contamina.. . . tion levels, radiatio .n leveTs,' an'd efflu.ent releases.

Personnel exposures and effluent releases are estimated at less than 10 per cent of the limits of 10 CFR Part 20.

(vi) Industrial radiography Gamma radiation sources (primarily iridium-192 and cobalt-60) are used for non-destructive test'ing of materials throughout the United States. The sources used are metallic and are encapsulated in a stainless steel capsule.

Therefore, during ordinary use it is not expected that there will be releases of radioactive material to the environment. The radiation exposure during routine use of sources in industrial radiography is well within NRC limits for occupational exposure. The average exposure per individual radiographer is less thanc0.4~ rem per.~ year, which'is less than 10% of'the permissible-

' ~

~ ' ~~'

exposure. ,

- 111 -

(vii)- Irradiators These devices are used for a variety of purposes in research and indus-try to expose products to large amounts of radiation. Typical uses. include

. sterilization or microbiological reduction in medical and pharmaceutical supplies and insect eradication through sterile male release programs.

Irradiators usually contain from a few hundred curies to megacuries of-radioactive material, principally cobalt 60. The radioactive material is contained in sealed sources. Product irradiation occurs within areas to

which access is controlled and which are shielded to prote:t both operating -

personnel and the environment.

... ... z. . . ..; . .. . . , -

' "' . Per'sonn'el' ' exposure 5 Edring us. .eoftheseddv$ce's.;.~are less t'h'an 5% o 'f the

~

limits in 10 CFR Part 20. There are no effluent releases resulting from operation of irradiators.

(viii) Use of sealed sources and use of gauging devices, analytical instruments and other devices containing sealed sources Sealed sources used by licensees are usually singularly or doubly encapsu-lated' depending on activity in stainless steel. Therefore, in ordinary use it is not expected that the use of sealed sources will result in the release of radioactive material to the environment. Sealed sources used by licensees are usually required to undergo rigorous prototype testing to ensure that the likelihood of a substantial release of radioactive material to the environment during.-abnormal'sse of' sealed sources is. unlikely.

+ ,;

i +

- 112 -  !

0 .

Gauging devices used to measure thick' ness, density, and level of mate-rials'contain sealed sources, usually ' cesium-137 and strontium-90, which are '

encapsulated so that there is no leakage during use. The devices provide shielding such that radiation levels external to the devices are on the order of.a few milliroentgen per hour. Other devices include gas chroma-tographs with millicurie quantities of nickel-63 or hydrogen-3, analytical devices such as x-ray fluorescence analyzers with sealed sources containing a variety of radioisotopes, instrument calibration devices containing milli-curie to curie quantities of cesium-137 and cobalt-60, and soil-density gauges which contain millicurie quantities of cesium-137 and americium-241 neutron sources. -

. .: ,. . :.. s. 6

~. .

.~ . . u. . - . .

Personnel exp,osure from use'of'these devices is less than 5% of the limits in 10 CFR Part 20. There are no effluents associated with the use of devices containing sealed sources.

(ix) Use of uranium as shielding material in containers or devices These licenses for possession and use of uranium for shielding are a non-nuclear use of radioactive materials. Because of its high density, uranium is excellent as shielding material. Depleted uranium has very low specific activity and the corresponding low radiation levels emitted make it very unlikely that any individual will receive a radiation dose in excess of 5% of maximum permissible dose specified in Part 20. In addition, because of its physical and chemical properties, there should be no release of radioactiv'e. material- to'the' enytronme~nt: during normal use of depleted uranium as shielding and'very limited release during abnormal conditions.

- 113 -

(x) : Possession of radioactive material incident to performing services such' as' installation', maintenance, leak tests and calibration These licenses only authorize the possession of radioactive material incident to performing services either at the customer's facility or at the licensee's facility. Generally the activity involves the use of sealed sources only. Since service licenses involve very little actual possession -

and use of radioactive material, personnel exposure from performing the services should be less than 5% of the limits in 10 CFR Part 20 and there should be no effluent releases.

( Use of sealed sources and/or radioactive tracers in well-logging

~

xi) ,~. z . .

,f., : . . ,

, 5 .. ...

'. h ; :, n procedures.

During the past 20 years in which the NRC and its predecessor agency, the AEC, have been regulating the use of sealed radioactive sources and short-lived radioactive tracers in well logging, there have been approxi-mately 89 incidents in which well-logging sources have been forced to be abandoned in wells. A risk analysis prepared by the NRC staff shows only a small radiological risk to the public health and safety from the potential release of radioactive material due to long term corrosion or damage from drilling into sources that have been abandoned. In addition, routine safety measures, such as those described below, also protect against significant environmental impacts from well-logging activities.

~'

wet 1'dril11n'g permits require' that gas' and' oil wells be cased to below

., . . 1 potable water aquifers to prevent cross contamination. from b'rine, oil and ,

1

- 114 -

1 l

l

gas normally associated with the wells. This requirement also serves to preclude contamination of potable water aquifers when radioactive materials are used in thess-cased wells. In the event a source becomes irretrievable during a well-logging operation, safety requirements are imposed to minimize the escape of. radioactivity from the source and the surrounding areas.

These requirements include: (1) Sealing the source in place with a cement plug to immobilize it and to preclude abrasion and corrosion; (2) setting a deflection device (whipstock) at the top of the cement plug to deflect a drill away from the general area of the source in the event of an inadver-tent future drilling; (3) mounting a permanent identification plaque at the surface of the well to alert anyone planning to enter the well to the exist-

ence of a source downhole; and (4) requiring notification to be placed in *

~ J. 2: . . :. .

. . y: . . . . . -

pertinent land records maintained by~ State oil and ga's regulatory agencies to alert against redrilling the well. In addition, the construction of the source itself minimizes the possibility of releases and migration of radio-active material. Source capsuJes are always doubly encapsulated and fabri-cated of stainless steel or other corrosion resistant material. The radio-active material is in the form of a very low solubility compound. The sources are enclosed in a logging tool made of steel which provides additional protection.

The radioactive materials used as tracers in well logging have short l~

half-lives and the quantities involved are small - in the low millicurie range. The use of these tracers does not present any environmental impact because of the small quantities which decay to innocuous radioactivity

. levels in short periods .of timet -

4

- 115 -

c..

(xii) Acceptance of packaged radioactive wastes from others for transfer. .

to licensed land burial facilities provided the interim storage l ,

period for any package does not exceed 180 days.and the~ total possession ~11mit'for all packages held in interim storage at the-same time does not exceed 50 curies.

l v

. These' licenses authorize the acceptance of radioactive waste in packages I' that meet all governmental regulations for transport of. radioactive materials.

The packaged radioactive material is stored temporarily until a sufficient number of packages is accumulated for shipment to licensed land burial sites.

, In general, these activities are analogous to the transport carried out by common and contract carriers, which are exempt from NRC license requirements.

/. e  :; ' ':

y..: >: f: n ... . :

. ... :r . - ,a . .i, : ,: p. .- . .,- e r. . .

j. Packages are not permitted to be opened although over-packaging may.be carried out in the event defective packaging.is received. There are no routine l

• L releases of radioactive effluents. Safety requirements for the storage 1

y facility include pro' tection against unauthorized entry, fire resistant buildings and packages, fire detection and supression capability, radiation monitoring equipment and operating and emergency procedures. By limiting the total radioactivity in storage at any one time to a maximum of 50 curies and by limiting the storage period for any package to a maximum of 180 days, the chances of significant releases of radioactivity or excess exposure of personnel in the event of accident conditions, such as a fire, are minimal.

1 l (xiii) Manufacturing or processing of source, byproduct, or special nuclear materials for distribution to other licensees, except processing of" source matertal for extraction of rare earth

~

., .o '

~and other inetals. , ,

l . - 116 -

- --- = - - -

-Manufacturing or p'rocessing of source, byproduct, or special nuclear materials for distribution.to other licensees consists of approximately 234-NRC licensees.at the present time.. Under:these licenses, persons manufacture radiopharmaceuticals,' labeled compounds'for research purposes-and sealed sources for use in gauging and analytical equipment. Other.

licensees in this category use and handle radioactive materials in solid form to manufacture sealed sources, e.g., radiography devices, or use and

- handle already sealed sources by incorporating the sources into devices used for gauging purposes.

In 1978, licensees in this category had an average dose of 0.45 rem for persons with measurable exposure and. an average dose of 0.21 rem for

. v.

.\v..

. . L~ y r :s . , .. . . . . . ..y s;' . . . ., .

. y ,. a. s. c .. ..

all .... persons monitored. The collective dose for this category of licensees was 3,280 man-rems. The potential impact, therefore, is very small, less than one calculated health effect. Ninety-eight percent of the facilities had releases in air of less than one percent of the maximum permissible concentrations in 10 CFR Part 20. The largest release reported was aporoxi-mately 12 percent of the maximum permissible concentrations. Releases of

!, liquid wastes were wall within the limits in NRC regulations. -

1 l

Operations where source material is processed for extraction of rare l earth or other metals may involve generation of large volumes of waste containing low levels of radioactive m terial. The storage and ultimate disposal of this waste may have significant environmental impact.

Therefore, these types of operations are not listed as a categorical exclusion. - '

, .~ . ,. -

9 m

- 117 -

\ . - - _ - _ _ _ _ _ _ - - -

~

(xiv) Nuclear laundries.

Huclear laundries receive slightly contaminated clothing from nuclear facilities and prov'ide decontamination services. The_" clean" garments are then returned to the customer. As of August 31, 1981, there were four NRC licensees in this category. The quantities of radioactive material involved are small, usually a few mil 11 curies of radioactive material. In 1978, three of the four licensed laundries reported an average dose of 0.22 rem for persons with measur-able exposure and a collective dose of 1 rem. The small amount of activity used by those licensees is disposed of in accordance with NRC regulations..

(xv) Possession, manufacturing, processing, shipment, testing, or

, v- . . . . .

,1 .

. , N 1. ,;

other use of depleted uranium military munitions.

Poisession, manufacturing, processiel, shipment, testing or other use of depleted uranium munitions, e.g., bullets and other projectiles, includes about 10 licenses held by U.S. military organizations and less than 10 licensees involved with the manufacturing process. 'The military tests involve the use of low specific activity depleted uranium (3.6 x 10~7 curies /

gram) as metal alloy penetrators (rods) which vary in weight from a few ,

~

grams to less than 10 kilograms. These rods are propelled at high veloci- ,

ties against metal targets such as armor plate. Testing of these munitions is carried out at remote desert locations on military reservations, in con-structed enclosures, or over deep ocean waters. Any materials released to 1 the environment are of low radioactive content, are highly dispersed, and are of chemical and physical fonn which is not ' read.ily incorporated into flora '

, .r. ..

or fauna. Thus, radioactive releases to the environment which could affect

- 118 -

m _-___m______-_______m_ . _ _ . _ _

l human, animal .o.r plant life,from testing at any of the locations are negligi-ble and occupational exposures from hardlitc depleted uranium are so low that personnel monitoring is not required. Additionally, since the penetrators tested do not explode, cratering or other defacing of the environment is not experienced. The military also transports and stores depleted uranium muni-tions for war-readiness posture. Because the munitions.are transported and stored in seeled containers as solid metal in nondispersible form, there is- -

negligible environmental impact associhted with such transportation and storage.

Manufacturers of depleted uranium munitions are also included here for the sake of completeness, although manufacturers are excluded in section (xiii) 2 0f Category 14.

,i . /.' ,.?.... .

.. :n .w

~ m ,' ..~'

, 7. -. A (xvi) Any use of source, byproduct, or special nuclear material not listed above which involves quantities and forms of source, byproduct, or special nuclear material similar to those listed in sections (i) - (xv) of Category 14.

It has been the Commission's experience in the past that additional environmentally insignificant materials licensing acti .ns occasionally arise.

These cases involve uses of source, byproduct or special nuclear material in quantities and form similar to those categorically excluded in sections (i) -

(xv) of Category 14. and, therefore, have insignificant environmental impacts.

By categorically excluding actions of this type, the Commission will avoid the unnecessary expenditure of scarce resources in preparing environmental assessments for'those few environmentally insignificant: cases not separately- ,

identified as the subject of a specific categorical exciusios. The

- 119 -

' q

\

s Comission anticipates that considerably less than 1% of its licensing -

l actions in the nuclear materials area would fit within this' category.- _

Accordingly, the Commission finds that issuance, amendment, and renewal of licenses described above (Category 14.) comprise a category of actions which do not individually or cumulatively have a significant effect on the human environment,' designates' Category 14. as. a categorical exclusion . and directs that Category 14. be listed in i 51.22(c) as a categorical exclusion.

Category of Actions .

15. Issuance, amendment or renewal of licenses for import of nuclear l,.. ., facilities..and material,s.pur,s.ua,nt,to .Part .110,of. this.,. chapter,.except. for .

. . - , ,, j. ,,

import of spent power reactor fuel.

i Discussion and Finding i Import licenses issued pursuant to 10 CFR Part 110 merely authorize import '

into the United States and do not authorize any person to possess, use, or transfer the facilities or materials within the United States. Also, import licenses do not authorize transportation of imported facilities and materials within the United States. An exception has been made in the categorical exclusion for imports of spent power reactor fuel. In the Final Environmental Statement on the Transportation of Radioactive Materials by Air and Other Modes (NUREG-0170, December 1977) the NRC staff examined the environmental impact of the transportation of im, ports from the time a shipment first

^ '

arrives in the United States unt'il it reaches its ultimate ' estination d '

and concluded that.the environmental impact of such transportation was negligible.

- 120 -

~. -

3 .- . Accordingly,;the Com ssion finds-that issuance, amendment or renewal of_ licenses for import of nuclear facilities and materials pursuant to

• Part 110 of this chapter, 'except for import of spent power reactor fuel, ,

(Category 15.) comprises'a category of actions which do not individually or cumulatively have a significant effect on' the human environment, designates:

Category 15. as a categorical exclus' ion and directs that Category 15. be listed in 5 51.22(c) as a categorical exclusion.

Category.of Actions

16. Issuance or amendment of guides for the implementation of regula-tions in this chapter, and issuance or amendment of other informational and ..

, , . . . . .. . . ,:. p . *

. w : .. c. . .; .

.  :- k,  :

procedural' documents that do, 'not impo'se any legal requirements.

Discussion and Finding Regulatory guides are issued (and sometimes revised) to explain the NRC staff's position regarding an acceptable method of implementation of regula-tions. Compliance with their provisions is not required. Since regulatory .

guides do not mcdify existing regulations and are not enforceable by them-selves they can neither increase nor decrease any environmental impact which an existing regulation may have. Other informational and procedural docu-ments covered by this exclusion have no environmental impact for the same reason.

l Accordingly,' the Comission finds that issuance or amendment of ' guides e .

for the implemeritation of regulations in lhis chapter and isstiance or' revision

- 121 -

l

k

.1 .

4

~

of otherl similar informational and procedural documents (Category 16.) com- .

prise a category of actions which do not individually or cumulatively have a significant effect on the human environment, designates Category 16. as a categorical: exclusion, and directs that Category 16. be. listed in i 51.22(c)

'as 'a categorical exclusion.

Category of Actions

17. Issuance of an amendment to a permit or license. pursuant to Parts 30, 40, 50, or 70 of this chapter which deletes any limiting condition of operation or monitoring requirement based on or applicable to any matter subject to the provisions of the Federal Water Pollution Control- Act.

-f *s.,- v. . .c~. 2 . .]

. .. ..,.~ -

v,.< .. r .c . , v .. . .

Discussion and Finding ,

Pursuant to the Federal Water Pollution Control Act (FWPCA), the

! Environmental Protection Agency has exclusive responsibility for developing, 1

l setting and enforcing nonradiological effluent limitations and water quality i

standards. These effluent limitations and water quality standards apply to i a wide variety of pollutants. However, they do not apply to source, byproduct l

. and special nuclear material. On June 1,1976, the U.S. Supreme Court held that source, byproduct and special nuclear materials do not fall within the class of pollutants which are subject to regulation under the Federal Water Pollution Control Act. (Train v. Colorado PIRG, 426 U.S. I at 25.)

~

in 'the past, in order to make sure that NRC' licensees were cor. ducting ~ -

their activities 'in'an environmentally responsible manner, the Nuclear

- 122 -

L--_______---___-_-_______________--_______-_-_-_-__-___ . _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ -

+

m .

~ Regulatory Cc.mmission, like.its predecessor agency, the Atomic Energy Com-a ,

mission, included conditions relating to water quality matters covered by the FWPCA in NRC;permi.ts and licenses. Following an extensive and careful examination of the legislative history of section 511(c)(2) of the Federal

.Water Pollution Control 'Act (33 U.S.C.. l 1371 (c)(2)), tra Atomic Safety and Licensing Appeal Board held in two decisions that the Environmental Pro-tection Agency has exclusive responsibility for the substantive regula-tion of nonradiological pollutant d.ischarges where an NPDES pemit is in effect, and described the respective roles of EPA and'NRC in the following terms:

i The first is that the spre:d of Federal responsibility for water

' quality standards and pollution control among the various licensing

. . , . 6- ..agencier,.whichgesulted.from the -reading given NEPA by: the Calverte . . . , .

Cliffs court, has been cu'rtailed.~ That respons'ibility is' shifted to EPA as itr exclusive province. The second is.that the mandate to acquire " expertise";in developing, setting, and enforcing effluent limitations and water quality standards is also given tc EPA; federal licensing agencies are to rely on that agency when such riatters are involved and not develop duplicate expertise on their own. Third, those a;encjes are not to "second-guess" EPA by undertaking independent an? lyses and setting their own standards in this area. And, finally, given the pointed Congressional comments cited, NRC, as statutory successor to the AEC, is unmis-takably bound by those strictures.

g To be sure, in deciding whether tt, license specific projects, each agency must continue to weigh any resulting degradation of water -

qus F ty in its NEPA cost-benefit balance. Section511(c)(2)does not change this obligation. Rather, its -intendment is to limit those agencies' NEPA roles to that balancing, leaving the substan-tive regulation of water pollution in EPA's hands.

ALAB-515 (1978) In the Matter of Tennessee Valley Authority (Yellow Creek Nuclear Plaat, Units 1 and 2) 8 NRC 702 at 712-713, as quoted in ALAB-569 (1979) In the Matter of Carolina Power and Light Company (H. B. Robinson., Unit No. 2) 10 NRC 557 at 561.

.The law established in these Appeal Board decisions is clear. The NRC

- . no 1,ong.er has al role setting conditions relating to nonradiological dis- -

- 123 -

~

i

' ~

charges of pollutants into aquatic bodies or establishing requirements for aquatic monitoring where an NPDES permit is in effect. Instead EPA, and

• i those statts to whom permitting authority has been delegated, have exclusive lg responsibility for regulating nonradiological pollutant discharges through ths SPDES permit system. The NRC's~ role in the water quality area is limited to regulating radiological discharges into aquatic bodies and NEPA matters such as weighing am atic impacts in the NEPA analysis which NRC is required to make before reaching a major Federal licensing decision.

1 Under certain provisions of the Federal Water Pollution Control Act, such as sections 401(a)(2) and 401(d), NRC licenses, like licenses issued by other Federal agencies, become subject to conditions deemed imposed by the

~ ~

Federal' kat$r Poll'tition CEn'trdI Act as a ' matter 'of law. In recognition of '

these statutory requirements and to make clear that NRC licenses are issued subject to these conditions, whether stated in the licenses or not, the Commission is amending i 50.54 of its regulations.

In order to comply with existing law and to assure that its regulatory responsibilities are carried out in a consistent manner in accordance with these revised regulations, the NRC is continuing its ongoing process of amending all outstanding NRC licenses and permits to delete from those licenses and permits any limiting conditions of operation or monitoring requirements pertaining to nonradiological discharges of pollutants subject to the provisions of the Federal Water Pollution Control Act. These amend-ments will not affect EPA's independent responsibility to administer and

., enforce'or the obligation of an NRC licensee or permittee to comply with the

.. ->- .. ~

requirements of the Federal Water ' Pollution Control Act.

- 124 -

4 j

s .. . . q l

l g The Comission finds that 1.icense amendments of this type (Category 17) :l comprise a category of actions which do not individually or cumulatively have a significant.effect on the-. human environment because these' impacts have been addressed under the appropriate provisions of the Federal. Water Pollution Control Act. Accordingly .the Comission designates Cat 4 gory 17  ;

I as a categorical exclusion, and directs that Categoryf17. be listed in l'51.22(c) as aLeategorical e'xclusion.

. j Category of Actions ,

I 18.- Issuance of amendments or orders authorizing licensees of'produc-1 tion or utilization facilities to resume operation, provided the basis for

-. the authorization rests' solely on a determination or redetermination by the j i

. Comission that applicable emergency planning requirements are met. j

. Discussion and Fir. ding The Comission published its final emergency planning rule amending 10 CFR Parts 50 and 70 on August I~9, 1980 (45 FR 55402). As part of its deliberations on the rule, the Comission evaluated the environmental impact of the proposed changes and provided the public an opportunity to coment on the draft environmental assessment and draft negative declaration. See 45 FR 3913 at 3915, January 21, 1980, and 45 FR 55413-55415, August 19, 1980.

After considering the public coments, the CoNission determined that the changes in emergency planning requirements would not have a significant effect on the human environment. Accordingly, an environmental impact statement was not prepared. A key assumption in the Comission's decision

- 125 - l

a

~

not'to prepare an environmental impact statement for the emergency planning rule' was that shutdowns of nuclear power plants as a result of actions taken under the rule are expected to be infrequent and of short duration. There-fore, it is very unlikely that the resumption of operation of a particular facility would have a significant effect on the human environment. Moreover, the Commission retains discretion to require an environmental assessment or an environmental impact statement in special circumstances.

Accordingly, the Commission finds that issuance of amendments or orders authorizing licensees of production or utilization facilities to resume operation, provided the basis for the authorization rests solely on a deter- i mination or redetermination by the Commission that applicable emergency

~ "

h1anning re'quirements' ard mht (bategory 18) esmprises a category of actions .

which do not individually or cumulatively have a significant effect on the human environment, designates Category 18. as a categorical exclusion and directs that. Category 18. be listed in 5 51.22(c) as a categorical exclusion.

CEQ Review and Approval On October 19, 1982, the General Counsel of CEQ advised the Executive Legal Director of. NRC that the Council had completed its review of NRC's draft final NEPA procedures (revised 10 CFR Part 51) as provided by 40 CFR 1507.3(a), and had determined, based on that review, that NRC's NEPA proce-dures address all of the sections of the CEQ regulations required to be addressed by 40 CFR 1507.3(b) and that the NRC procedures may take effect after they are published in final form in the FEDERAL REGISTER.

- 126 -

1 Paperwork Reduction Act Review ~

The Nuclear Regulatory Commission has submitted this rule to the Office of Management and Budget for such review as may be appropriate under the Paperwork Reduction Act of 1980, Pub. L.96-511, 94 Stat. 28.12, 44 U.S.C.

3501 et seq. The date on which the rule becomes effective includes the 60-day period which that Act allows for review by the Office of Management and Budget.

List of Subjects in 10 CFR Part 51 Administrative practice and procedure, Environmental impact statement,

. .c~.... . .,, ,, . ... u r.u .

~, : . ,

' Nuclear' materials, N'ucTear power p. lants' . .and reactors, Reporting requirements.

~

Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, the National Environmental Policy Act of 1969, as amended, and 5 U.S.C. 552 and 553, the following revision of 10 CFR Part 51 and related conforming amendments to 10 CFR Parts 2, 30, 40, 50, 61, 70, 72 and 110 are published as a document subject to codification.

Amendments to all parts except revised 10 CFR Part 51 issued pursuant to i

citations of authority presently codified.

PART 51 - LICENSING AND REGULATORY POLICY AND PP.DCEDURES FOR ENVIRONMENTAL PROTECTION

1. 10 CFR Part 51 is revised to read as follows:

- 127 -

i . .s, H. ~

L 10 CFR PART 51 - ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC LICENSING A

'AND RELATED REGULATORY FUNCTIONS )

o Sec.

l .

p 51.1- Scope.

51.2 Subparts.- j I

51.3 Resolution of conflict. i 51.4 Definitions. . I 1

51.5- ' Interpretations. -

l 1

51.6 Specific exemptions. I SUBPART A - NATIONAL ENVIRONMENTAL POLICY ACT - REGULATIONS IMPLEMENTING 1

. . ~ ..

.. . 7 .. . .. . .+....,v ., .

. . .. . .. v. m

. l v$EC.;0N102(2) l 1 51.10 Purpose and' scope of subpart; Application of regulations of Council j on Environmental Quality.

51.11 Relationship to other subparts. [ Reserved]  !

51.12 Application of subpart to ongoing environmental work..

51.13 Emergencies.

51.14 Definitions. I i

51.15 Time schedules.  !

e 51.16 Proprietary information.

51.17 Information collection requirements; OMB approval. [ Reserved]

i PRELIMINARY PROCEDURES ,

l Classification of' Licensing and Regulatory Actions -

~ ..

51.20 Criteria for and identification of licensing and regulatory ac'tions requiring environmental impact statements.

- 128 -

%, 7 ,

Sec.

• 51.21 Criteria for and identifi> ation of licensing and regulatory actions requi ri ng envi ronmental ; a s se s sments . .

51.22 Criterion for and identification of-licensing and regulatory actions ' ^

eligible for categorical exclusion.

l' Determinations to Prepare Environmental Impact Statements,-

Environmental Assessments or Findings of No Significant Impact, and Related Procedures L

51.25 Determination to prepare' environmental impact statement or. environ-mental assessment; eligibility for categorical exclusion.

51.26' Requirement to publish notice of iritent and ' conduct scoping process.

51.27 Notice of intent.

Scoping

. . 51.28 Scoping. -t Participants.'. , -  : c. c 3

~ ;. ,

, 4.

IJ.

51.29 Scoping - Environmental impact statement.

Environmental Assessment 51.30 Environmental assessment.

- 51.31 -Determinations based on' environmental assessment.

Finding of No Significant Impact 51.32 Finding of no significant impact.

51.33 Draft finding of no significant impact; distribution. -

51.34 Preparation of finding of no significant impact.

51.35 Requirement to publish finding of no significant impact; limita-tion on Comission action.

ENVIRONMENTAL REPORTS AMD INFORMATION - REQUIREMENTS APPLICABLE TO APPLICANTS AND PETITIONERS FOR RULEMAKING General 51.40 . Consultation with' NRC staff. -

51.41 RequiremeIttos'ubmitenvironmentalinformation. ~

- 129 -

O

> 4

}i e

Environmental Reports - General Requirements'

• Sec'.

-51.45 ' Environmental report. -

Environmental Reports -' Production'and Utilization Facilities

' 51.50 Environmental . report - Construction permit stage.

51.51' Uranium fuel cycle environmental data - Table S-3.

' 51.52 Environmental ' effects of transportation of fuel and waste - Table S-4. i 51.53 Supplement.to environmental report - Operating license stage.

51.54 Environmental report - Manufacturing license.

51.55 Environmental report - Number of copies; distribution.

Environmental Reports - Materials Licenses 51.60 Environmental report - Materials licenses.

,. 7 .., 4 . .. c f ; - . , c. . . .. . , ,

.. ,5. , , . . ,  %.. ,. .

9....,,..;. ..

51.61 Envirorimental report - Inde, pen, dent spent fuel storage installation (ISFSI) license.

51.62 Environmental report - Land disposal. of radioactive waste licensed under 10 CFR Part 61.

51.66 Environmental report - Number of copies; distribution.

Environmental Reports - Rulemakina 51.68 Environmental . report - Rulemaking.

51.69 Environmental report - Number of copies.

. ENVIRONMENTAL IMPACT STATEMENTS Draft Environmental Impact Statements - General Requirements 51.70 Draft environmental impact statement - General.

51.71 Draft environmental impact statement - Contents.

51.72 Supplement to draft environmental impact statement.

l 51.73 Request for comments on draft environmental impact statement.

51.74 Distribution of draft environmental impact statement and supplement

> to draft environmental impact : statement; news releases. .

- 130 -

E _ __ __ _ _ _ _ _

' Draft Environmental Impact Statements - Production -

and Utilization Facilities Sec.

51.75 Draft environmental impact statement - Construction permit.

51.76 Draft environmental impact statement - Manufacturing license.

51.77 Distribution of draft environmental impact statement.

Draft Environmental Impact Statements - Materials Licenses 51.80 Draft environmental impact statement - Materials license.

51.81 Distribution of draft environmental impact statement.

Draft Environmental Impact Statements - Rulemaking 51.85 Draft environmental impact statement - Rulemaking.

51.86 Distribution of draft environmental impact statement.

.' - ~

.t

. _. . c . .

Legislative Environmental Imoact Statements -

Proposals for Legislation 51.88 proposals for legislation.

Final Environmm.tal Impact Statements - General Requirements 51.90 Final environmental impact statement - General.

51.91 Final environmental impact statement - Contents.

51.92 Supplement to final environmental impact statement.

51.93 Distribution of final environmental impact statement and supplement to final environmental impact statement; news releases. ,

51.94 Requirement to consider final environmental impact statement.

Final Environmental Imoact Statements - Production

,and Utilization Facilities l

51.95 Supplement to final environmental impact statement - Operating license.

Final Environmental Imoact Statements - Materials Licenses

.51.97 [ Reserved]

- 131 -

m. .

g w ,

j -

Final Environmental'~ Impact Statements - Rulemaking  ;

Sec.'-

l

.51.99 [ Reserved] ...

. NEPA PROCEDURE AND ADMINISTRATIVE ACTION -

General

~51.100 Timing of Commission action.

51.101' Limitations on actions.

51.102' Requirement to provide a record of decision;' preparation.

'51.103 Record of. decision . General.

51.104- ' NRC proceedings using public hearings; consideration: of environ-mental impact. statement. ,

Production and Utilization Facilities

.. 51.105. Publfe he,arings'.in, proceedings:.for:sissuance of construction permits .

. ,- ep-'

or license's to nanufactdre.

.51.1C6 Public hearings-in proceedings for issuance of' operating' licenses.

Materials Licenses 51.108-[ Reserved]

Rulemaking 51.110 [ Reserved]

PUBLIC NOTICE OF AND ACCESS TO ENVIRONMENTAL DOCUMENTS .

^

51.116 Notice of intent. ,

51.117 Draft environmental impact statement - Notice of availability.

51.118 Final environmental impact statement - Notice of availability.

51.119 Publication of finding of no significant impact; distribution.

51.120 Availability of environmental documents for public inspection.

51.121 Status of NEPA actions.

+- 51.122 List; of. interested organizations. and groups. - .

I

- 132 -  !

I l

1

=___ _____--_____ _ _ _ - - _ - - _ _ __ _ -- _ ___ _ _ _ _

j

I 51.123 Charges for environmental documents;: distribution to public;.__. . ._

distribution to governm'ntal e agencies.

COMMENTING 51.124 Comission duty .to comment.

RESPONSIBLE OFFICIAL -

51.125 . Responsible official.

APPENDIX A TO SUBPART A Format for Presentation'of Material in Environmental Impact Statements

1. General

2. Cover sheet

3. Summary *

. .3: ..; ;, . . . c;;. . . , . . <

.c .,.3,. .."

. . c.

I4. "P'urpose oIf and'ne'ed fo,r action '

. T5. Alternatives including the proposed action

16. Affected environment

7. Environmental consequences and mitigating actions

8. List of preparers

9. Appendices AUTHORITY: LSec. 161, 68 Stat. 9a8, as amended (42 U.S.C. 2201); secs. 201, as amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841, 5842).

Subpart A also issued under National Environmental Policy Act of 1969, secs. 102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334, 4335); and Pub. L.95-604, Title II, 92 Stat. 3033-3041. Section 51.22 also issued under rec. 274, 73 Stat. 688, as amended by 92 Stat. 3036-3038

.(42 U.S.C. -2021)v - < .

- 133 -

6 51.1 Scope.

This part contains environmental protection regulations applicable to -

NRC's domestic licensing and related regulatory functions. These regula-n tions do not apply to export licensing matters within the scope of. Part 110 of this chapter or to any environmental effects which NRC's domestic

-licensing and related regulatory functions may have upon the environment of foreign nations. Subject to these limitations, the regulations in this part implement:

(a) Section 102(2) of the National Environmental Policy Act of 1969, as amended.

.  ;> .~.&.

. ,v .

~

,; .- .i:

~

(b) [ Reserved]

5 51.2 Subparts, j (a) The regulations in Subpart A of this part implement section 102(2) l of the National Environmental Policy Act of 1969, as amended.

(b) [ Reserved]

.y.- , .

- 134 -

y. -

Q y-p u a ,

~ '

. . . ~ .

l'51.3'- . Resolution of Conflict.

.. . . 1 J :In any conflict between' a general rule in Subpart A of this part and a 1 special ' rule in another subpart of this part orL another part of this chapter applicable toLa particular-type of proceeding, the specia1Lrule governs.

l

.lbl.4 Definitions.

a As used.in this part:

"Act".means the Atomic Energy Act of 1954-(Pub. L.83-703, 68 Stat. 919) including.any amendments thereto.'

, g ,

. . ; . . .. .. . . . ........y....,.., 4 - , .

, 4.

. i, .. . .. .

" Commission"'means the Nuclear Regulatory Commission or its authorized representatives.

"HRC" means the Nuclear Regulatory Commission, the agency established by

-Title II of the Energy Reorganization Act of 1974, as amended.

"NRC_ staff" means any NRC officer or employee or his/her authorized representative, except a Commissioner, a member of a Commissioner's immediate staff, an Atomic Safety and Licensing Board, an Atomic Safety and Licensing Appeal Board, a presiding officer, an administrative judge, an administrative law judge, or any other officer or employee of the Commission.who performs adjudicatory functicns.

~ -

- 135 -

"NRC staff director" means:

Executive Director for Operations; Director, Office of Nuclear Reactor Regulation; Director, Office of Nuclear Material Safety and Safeguards; Director, Office of Nuclear Regulatory Research; Director, Office of Inspection and Enforcement;

. Director, Office of State Programs; or Executive Legal Director; and

-The designee of any NRC staff director.

l 51.5 Interpretations.

e,., . r .., . -

. ,. . .. , s . .

Except as specifically authorized by the Commission in writing, no interpretation of the regulations in this part by any' officer or employee of the Commitsion other than a written interpretation by the General Counsel will be recognized to be binding upon the Commission.

$ 51.6 Specific exemptions.

The Commission may, upon application of any interested person or upon l

l its own initiative, grant such exemptions from the requirements of the 1

regulations in.this part as it determines are authorized by law and are otherwise in the public interest.

136 -

SUBPART A - NATIONAL ENVIRONMENTAL POLICY ACT - REGULATIONS IMPLE-MENTINGSECTION102(2)

-l 51.10 Purpose and scope of subpart; Application of regulations of Council on Environmental Quality.

(a) The National Environmental Policy Act of 1969, as amended (NEPA) directs that, to the fullest extent possible: (1) the policies, regulations,'

and public laws of the United States shall be interpreted and administered

.in accordance with the policies set forth in NEPA, and (2) all agencies of the Federal Government shall comply with the procedures in section 102(2) of NEPA except where compliance would be inconsistent with other statutory c ,.

, .' . ., -J. . , y . ... . 7 s. 1,: ,

. , t. , , .

....3 ,,- .

requirements. Theregu15fl,.ons in this subpart implement section 102(2) of

,NEPA in a manner which is censistent with the NRC's domestic licensing and

-related regulatory authority under the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and the Uranium Mill Tailings Radiation Control Act of 1978, and which reflects the Commission's announced policy to take account of the regulations of the Council on Environ-

~

mental Quality published November 29, 1978 (43 FR 55978-56007) voluntarily, subject to certain conoitions. This subpart does not apply to export licensing matters within the scope cf Part 110 of this chapter nor does it apply to any environmental effects which NRC's domestic licensing and related regulatory functions may have upon the environment of foreign nations.

(b) The Commission recognizes a continuing obligation to conduct its domestic Ticensing and relatedlVegulatory functions in a manner which is both receptive to environmental concerns and consistent with the Commission's 137 -

__.__._______.-.__-_________m . - _ - _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ - -_ . - _ _ _ _ . _ _ _ _ . _ _ _ _ . _ _ _ _ _ _ _ _ . _

l l-l .

responsibility as an independent regulatory agency for protecting the radio-logical health and sa'fety of the public. Accordingly, the Comission will:

(1) Examine any future interpretation or change to the Council's NEPA regulations; 1

l

-(2) Follow the provisions of 40 CFR 1501.5 and 1501.6 relating to lead agencies and cooperating agencies, except that the Commission reserves the right to prepare an independent environmental impact statement whenever the NRC has regulatory jurisdiction over an activity even though the NRC has not been designated as lead agency for preparation of the statement; and y .; ,: '

..'.*. .. ;.g .:

J :r. - f . , .. n -

~,y' -

(3) Reserve the right to make a final decision on any matter within the NRC's regulatory authority even though another agency has made a pre-decisional referral of an NRC action to the Council under the procedures of 40 CFR Part 1504.

2 (c) The regulations in this subpart_4/ also address the limitations imposed on NRC's authority and responsibility under the National Environ-mental Policy Act of 1969, as amended, by the Federal Water Pollution Con-trol Act Amendments of 1972, Pub. L.92-500, 86 Stat. 816 et seq. (33 U.S.C.

i 1251 et seq.) In accordance with section 511(c)(2) of the Federal Water

-24/ See also Second Memorandum of Understanding Regarding Implementation of Certain NRC and EPA Responsibilities and Policy Statement oa Imple-

. mentation.of Se~ction 511 of the Federal Water Pollution Control.Act -

.(FWPCA) attached as Appendix.A thereto, which were published in the -

FEDERAL REGISTER on December 31, 1975 (40'FR 60115) and became effec-tive January 30, 1976.

- 138 -

' ~

l I Pollution Control Act (86 Stat. 893, 33 U.S.C. 51371(c)(2)) the NRC recog-nizes that responsibility for Federal regulation of- nonradiological pollutant discharges E nto i receiving waters rests by statute with the Environmental Pr otection Agency.

(d) Commission actions initiating or relating to. administrative or judicial civil.or criminal. enforcement actions or proceedings are not sub-ject to section 102(2)'of NEPA. These actions include issuance of notices,.

orders, and denials of requests for action pursuant to Subpart B of Part 2 of this chapter, and matters covered by Parts 15 and 160 of this chapter.

5 51.11 Relationship to other subparts. [ Reserved)

. ..c , . . w. .:s .

... c .. . .. ; .b ,

. . ~ -

% 51.12 Application of subpart to ongoing environmental work.

(a) Except as otherwise provided in this section, the regulations in this subpart shall apply to the fullest extent practicable to NRC's ongoing environmental work.

(b) No environmental report or any supplement to an environmental report filed with the NRC and no environmental assessment, environmental impact statement or finding of no significant impact or any supplement to

-- 25/ On June 1,'1976,c the U.S. Supreme Court held that "' pollutants subject *

. . to regulation under the FWPCA { Federal Water Pollution. Control. Act] do -

not include source, byproduct, arid 'special nuclear materials, ..."

Train v. Colorado PIRG, 426 U.S. I at 25.

- 139 -

? ..

g any of the foregoing issued by the'NRC before [ insert effectiveLdate of

{ 'these= reg'ulations] need be redone'and'no notice of intent to prepare an-environmental impact statement or notice of availability of these environ- _

mental documents need be republished solely by reason of the promulgation on -

[ insert d' ate of publ.ication in the FEDERAL REGISTER] of this revision of Part 51.'

l 5 51.13 Emergencies.

Whenever emergency circumstances make it necessary and whenever, in other situations, the health and safety of the public may be adversely affected if mitigative or remedial actions are delayed, the Commission may

- : .. 7_. . ,  ;;. .-; . ; : : ,: ,,. ; _ ,

. y . r;, . .... _

_p- -W . . y , .

take an action with significant environmental impact without observing the provisions of these regulations. In taking an action covered by this section, the Commission will consult with the Council as soon as feasible concerning .l appropriate alternative NEPA arrangements.

I i 51.14 Definitions.

(a) As used in this subpart: -

1 1

" Categorical Exclusion" means a category of actions which do not individually or cumulatively have a significant effect on the human environ- )

ment and which the Commission has found to have no such effect ir accordance with procedures set out in $51.22, and for which, therefore, neither an environment'l; a'ssessmenti nor an -environmental impact' statement is requirid.

- 140 -

t

" Cooperating Agency" means any Federa.1 agency other than the NRC which Sas jurisdiction by-law or special expertise with respect to any ' environ-mental' impact involved in a proposal (or a reasonable alternative) for legislation or other major Federal action significantly affecting the quality of the human environment. By agreement with the Comission, a State or local' agency of similar qualifications or, when the effects are on a reserv6 tion, an Indian Tr-ibe, may become a cooperating agency.

," Council" means the Council on Environmental Quality (CEQ) established by Title II of NEPA.

" DOE" means the U.S Department of Energy or its duly authorized

2. -

2 .

. .- v .

representatives.

1 .

l

" Environmental Assessment" means a concise public document for which the Commission is responsible that serves to:

1 (1) Briefly provide sufficient evidence and analysis for deter-

! mining whether to prepare an environmental impact statement or a finding of no-significant impact.

(2) Aid the Comission's compliance with NEPA when no environ-mental impact statement is necessary.

(3) Facilitate preparation of an environmental impact statement l when one-is necessary. ,

- 141 -

L________ _-- _-_--- - _ - - - . - .-- . - - - - -

" Environmental document" includes an environmental assessment, an environmental impact statement, a finding'of no significant impact, an environmental report and any supplements to or comments upon those documents, and a notice of intent. .

" Environmental Impact Statement" means a detailed written statement as required by section 102(2)(C) of NEPA.

" Environmental report" means a document submitted to the Commission by an applicant for a permit, license, or other form of permission, or an amendment to or renewal of a permit' license or other fona of permission, or by a petitioner for rulemaking, in order to aid the Commission in complying

. s  :. .s . . -. .. :i. . s 5.~ . . . $~- . , n'e '

with secti:..on102(2)%. of NEPA.

" Finding of No Significant Impact" means a concise public document for which the Commission is responsible that briefly states the reasons why an action, not otherwise excluded, will not have a significant effect on the human environment and for which therefore an environmental impact statement will not be prepared.

"NEPA" means the National Environmental Policy Act of 1969, as amended (Pub. L.91-190, 83 Stat. 852, 856, as amended by Pub. L. 94-83, 89 Stat.

424, 42 U.S.C. i 4321, et seq.).

" Notice of Intent" means a notice that an environmental impact statement

.will.be pre. pared and considered. . .

- 142 -

+

(b)'Thedefinitionsin40CFR1508.3,1508.7,1508.8,1508.14,1508.i5, 1508.16, 15'08.17, 1508 18, 1508.20, 1508.23, 1508.25, 1508.26, and 1508.27, will also be used in implementing section 102(2) of NEPA.

$ 51.15 . Time schedules. .

F Consistent with the purposes of NEPA, the Administrative Procedure Act, the Comission's rules of practice in Part 2 of this chapter, il 51.100 and 51.101, and with other essential considerations of national policy:

(a) The appropriate NRC staff director may, and upon the request of an applicant for a proposed action or a petitioner for rulemaking shall, estab-

.;s . . _ . - . .; ...u .~ : . . . . . .. : .. .. .; . .e , ' . .

lish a time scheduli for all or, 'a'ny constituent part of the,NRC staff hEPA process. To the maximum extent practicable, the NRC staff will conduct its NEPA review in accordance with any time schedule established under this

-section.

(b) Pursuant to Subpart G of Part 2 of this chapter, the presiding officer, the Atomic Safety and 1.icensing Appeal Board or the Commissioners j acting as a collegial body may establish a time schedule for all or any part of an adjudicatory or rulemaking proceeding to the extent that each has jurisdiction.

6 51.16 Proprietary information.

- ~

(a) Proprietary inform.ation, such as trade secrets or privileged or confidential comercial or financial information, will be treated in accord-

- 143 -

I L_________________ __ . . . . - . . ._ _

-ance with the procedures provided in i 2.790, "Public Inspections, Exemptions, Requests for Withholding," of Part 2, " Rules of Practice," of this chapter.

- i' (b) Any proprietary information which a person seeks to have withheld from public disclosure shall be submitted in accordance with 6 2.790 of this chapter. - When submitted, the proprietary information should be clearly a i

identified and accompanied by a request, containing detailed reasons and justifications, that the proprietary information be withheld from public .

disclosure.. A non-proprietary sumary describing the general content of the proprietary information should alu be provided.

5 51.17 Information collection requirements; OMB approval. [ Reserved)

v. .

.7 . \; ..

.:  : : .=. -

PRELIMINARY PROCEDURES Classification of Licensing and Regulatory Actions 5 51.20 Criteria for and identification of licensing and regulatory actions requiring environmental impact statements.

(a) Licensing and regulatory actions requiring an environmental impact statement shall meet at least one of the following criteria:

(1) The proposed action is a major Federal action significantly affecting l

the quality cf the human environment.

e

- 144 -

(2). The proposed action involves a matter which the Commission, in .the exercise of its discretion, has determined should be covered by an environ-mental impact statement. .

(b) The following types of actions require an environmental impact statement or a supplement to an environmental impact statement:

(1) Issuance of a limited work authorization or a permit to construct a nuclear power reactor, testing facility or fuel reprocessing plant pursuant to Part 50 of this chapter.

(2) Issuance or renewal of a full power or design capacity license to

. . : c:: ' .

f> ' . . -  : .~ - .~-

...~

operate a nuclear p. ower reacto.n  ?',:-

.+

r, testing facility, or fuel r. reprocessing plant pursuant to Part 50 cf this chapter.

(3) Issuance of a permit to construct or a design capacity license to operate or renewal of a design capacity license to operate an isotopic enrichment plant pursuant to Part 50 of this chapter.

(4) Conversion of a provisional operating license for a nuclear power reactor, testing facility or fuel reprocessing plant to a full term or design capacity license pursuant to Part 50 of this chapter if a final environmental impact statement covering full term or design capacity opera-tion has not been previously prepared.

p  %

- 145 -

___._ _______.______._-____.-----__--___m---- - - - - -

e .

(5) Issuance of a license amendment authorizing the decommissioning of

a nuclear power reactor, testing' facility, fuel reprocessing plant, or

' isotopic enrichment plant pursuant to Part 50 of this chapter. -

(6) Issuance of a license to. manufacture pursuant to Appendix M of Part 50 of this chapter.

-(7) ' Issuance of a license to possess and use special nuclear material for processing and fuel fabrication, scrap recovery, or conversion of uranium hexafluoride pursuant to Part 70 of this chapter.

(8) ' Issuance of a license to possess and use source material for OfanNm ini1N g o$ product n oIu~radiubeiaf1'u oYide persuant'to' P rt '40 o[' # '~

lthis chapter.

(9) Issuance of a license pursuant to Part 72 of this chapter for the storage of spent fuel in an independent spent fuel storage installation (ISFSI) at a site not occupied by a nuclear power reactor.

(10) Issuance of a license amendment authorizing the decommissioning of an independent spent fuel storage installation (ISFSI) pursuant to Part 72 of this chapter.

(11) Issuance or renewal of a license authorizing receipt and disposal of radioactive waste from other persons pursuant to Part 61 of this chapter.

1 146 -

a (12) Issuance'of a license amendment pursuant to Part 61 of this chapter authorizing (i) closure of a land disposal site, (ii) transfer of the license to the disposal site owner for the purpose of institutional control, or (iii) termination of the license at the end of the institutional control period.

(13) Any other. action which the Commission determines is a major Commis-sion action significantly affecting the quality of the human environment.

As provided in i 51.22(b), the Commission may, in special circumstances, prepare an environmental impact statement on an action covered by a cate-gerical exclusion.

. . . d. . ....:.. .r. c . . . .. -

3 ..E.- -, -

5 51.21 Criteria for and identification of licensing an;d regulatory actions requiring environmental assessments.

All licensing and regulatory actions subject to this subpart require an environmental assessment except those identified in i 51.20(b) as requiring an environmental im;?ct statement and those identified in i 51.22(c) as categorical exclusions. As pr;v'ded in s ~1.22(b), the Commission may, in special circumstances, prepare an environmental assessment on an action covered by a categorical exclusion.

5 51.22 Criterion for and identification of licensing and regulatory actions eligible for categorical exclusion.

(a) Licensing and regulatory actions eligible for categorical exclu-s' ion shall meet the following criterion: The proposed action belongs to a

- 147 -

~

1 category.of actions which the Comission, by rule or regulation, has declared

~

to be a categorical exclusion, af.ter-first' finding that the category of actions does not individually or cumulatively have a significant effect on .

the human ~ environment. .

(b) Except in special circumstances, as cetermined by the Comission

~

upon its own initiative or upon request of any interested person, an environmental assessment or an environmental impact statement-is not required for any action within a category of actions included in the . list of categori-cal exclusions set out in paragraph (c) of this section. Special circum-stances include the circumstance where the proposed action involves unresolved conflicts concerning alternative uses of available resources within the

r. . .. . . ., 0 . '.'..i..*. ..

. ~ ~ ? '. .=; ..', '-

. .~ ~ :J;*

meaning of.section 102(2)(E) of NEPA.

(c) The following categories of actions are categorical exclusions:

(1) Amendments to Parts 0, 1, 2, 4, 7, 8, 9, 10, 11, IA, 19, 21, 25, 55, 75, 95, 110, 140, 150, or 170 of this chapter, and actions on petitions for rulemaking relating to these amendments.

(2) Amendments to the regulations in this chapter which are corrective or of a minor or nor. policy nature and do not substantially modify existing regulations, and actions on petitions for rulemaking relating to these amendments.

.(3) Amendments to Parts 20, 3.0,'31, 32, 33,.34, 35, 40, 50, 51, 60, 61, 70, 71, 72, 73, 81, or 100 of this chapter which relate to (i) procedures

- 148 -

for filing and reviewing applications for licenses or construction permits or other forms of permission or for amendments to or renewal.s of licenses or construction permits or other forms of permission; (ii) recordkeeping requirements; or (iii) reporting requirements; and actions on petitions for rulemaking relating to these amendments.

(4) Entrance into or amendment, suspension, or termination of all or part of an agreement with a State pursuant to section 274 of the Atomic Ene gy Act of 1954, as amended, providi-c 5 r  !-- otion by the State and discontinuance by the Commission of certain regalatory authority of the Commission.

u- . .

(5) procurement of general equipment and supplies.

(6) Procurement of technical assistance, confirmatory research pro-vided that the confirmatory research does not involve any significant construction impacts, and personal services relating to the safe operation and protection of commercial reactors, other facilities, and materials subject to NRC licensing and regulation.

(7) Personnel actions.  !

(8) Issuance, amendment, or renewal of operators' 1.icenses pursuant to Part 55 of this chapter.

, (9) I'ssuance~ of, an amendment to a permit or license for a reactor 1 .

pursuant to' Part 50 of-this chapter which changes a requirement with respect

' ~

- 149 -

u - - _ _ _ _ --- _ -- _ --_ --_-__ _ _ _ _

L to installation or use of a ' facility component located within the restricted area, as defined in Part 20 of this chapter, or which changes an inspection

. or a surveillance requirement, provided that (i) the amendment involves no significant hazards consideration, (ii) there is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite, and (iii) there is no significant increase in individual or cumulative occupational radiation exposure.

(10) Issuan.ce of an amendment to a permit or license pursuant to Parts 30, 31, 32, 33, 34, 35, 40, 50, 60, 61, 70, or 72'of this chapter which (i) changes surety, insurance and/or indemnity requirements, or (ii) changes recordkeeping, reporting, or, administrative procedures or requirements.

.. .x; ..

(11) Issuance of amendments to licenses for fuel cycle plants and radioactive waste disposal sites and amendments to materials licenses iden-tified in i 51.60(b)(1) which are administrative, organizational, or procedural in nature, or which result in a change in process operations or equipment, provided that (i) there is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite, (ii) there is no significant increase in individual or cumulative occupational radiation exposure,'(iii) there is no significant construction impact, and (iv) there is no significant increase in the potential for or consequences from radiological accidents.  !

l l (12) Issuance of an amendment to a license pursuant to Parts 50, 60, 61, l I

~70, 72, or 75 of this' chapter rel.ating solely..to safeguards matters .(i.e.,

]

. protection against sabotage or loss' or diversion of special nuclear material)  !

- 150 -

l- i

! I

or issuance of an approval of a safeguards plan submitted pursuant to Parts .50, 70,: 72', and 73 of this chapter, provided that the amendment-or approval does not involve any significant construction impact. ,

These

. amendments and approvals are confined to (1) organizational and procedural matters, (ii) modifications to systems used for security and/or materials.

~

accountability, (iii) administrative' changes, and (iv) review and approval of transportation routes pursuant to 10 CFR 73.37.

f (13) Approval of package designs for packages to be used for the transportation F licensed materials.

(14) Issuance, amendment, or renewal of materials licenses issued

.m . . . .

. .-l '-

pursuan; to 10 CFR parts '30, 31, 32, 33, 34, 35, 40, or 70 authorizing the follow;ng types of activities:

(i) Distribution of radioactive material and devices or products con-taining radioactive material to general licensees and to persons exempt from licensing (ii) Distribution of radiopharmaceuticals, get.erators, reagent kits and/or sealed sources to persons licensed pursuant to 10 CFR 35.14 and 35.100 (iii) Nuclear pharmacies (iv) Medical and veterinary (v) Use of radioactive materials for research and development and for

+

educational purposes (vi) Industrial radiography a

. , . , ,. s (vii) Irradiators 151 -

f r

.. j.

.  :)

e -

'(viii) L Use of: sealed sources and use of gauging devices, analytical instruments and other devices containing sealed sources-(ix). Use of uranium as shielding material in containers or devices (x) Possession 'of radioactive material incident to performing. services l such as installation, maintenance, leak tests and calibration (xi) Use of sealed sources and/or radioactive tracers in well-logging procedures ,

(xii).' Acceptance of packaged radioactive wastes from others'for trans- .

L fer to licensed land burial facilities provided the interim I . storage period for any' package 'does not exceed 180 days and the total possession limit for all packages held in interim _ storage at the same time does not exceed 50 curies.

~

.>7 .. .

~. x . ' - < .. .

(xiii) ' Manufacturing or processing of source', byproduct, or special nuclear materials for distribution to other licensees,'except processing of source-material for extraction of rare earth and other metals.

(xiv) Nuclear laundries.

(xv) Possession, manufacturing, processing, shipment, tetting, or other use of depleted uranium military munitions. ,

(xvi) Any use of source, byproduct, or special nuclear material not listed above which involves quantities and forms of source, byproduct, or special nuclear material similar to those listed in sections (i) - (xv) of Category 14.

(15) Issuance, amendment or renewal of licenses for import of nuclear

, facilities and materials pursuant.to .. .. . ..

Pa.rt ?110 of'this chapter, except for ,

import of spent power reactor fuel.

- 152 -

(16)' Issuance or amendment of guides for the implementation of regula-tions in this chapter, and issuance.or amendment of other info'rmational and procedural documents that do not impose any legal requirements.

(17) Issuance of an amendment to a permit or license pursuant to Parts 30, 40, 50, or 70 of this chapter which deletes any limiting condition of operation or monitoring requirement based on or applicable to any matter subject to the provisions of the Federal Water Pollution Control Act.

(18) Issuance of amendments or orders authorizing licensees of pro-duction or utilization facilities to resume operation, provided the basis for the authorization rests solely on a determination or redetermination by r- s .- , w.

the Commission that applicabis' emergency planning requirement's are met.

Determinations to Prepare Environmental Imoact Statements, Environmental Assessments or Findings of No .

Significant Impact, and Related Procedures l

6 51.25 Determination to prepare environmental impact statement or environ-mental assessment; Eligibility for categorical exclusion.

Before taking a proposed action subject to the provisions of this subpart, the appropriate NRC staff director will determine on the basis of the criteria and classifications of types of actions in $$ 51.20, 51.21 and 51.22 of this subpart whether the proposed action is of the type listed in

~

5 51.22(c) as a categorical exclusion or whether an environmental impact ,

statement or an environmental . assessment should be prepared. An environ-

- 153 -

~

nantal assessment is' not necessary if it is determined that an environmental impact statement will be prepared. ,

5 51.26 Requirement to publish notice of intent and conduct scoping process.

(a) Whenever the appropriate NRC staff director determines that an l

environmental impact statement will be prepared in connection with a proposed action, a notice of intent will be prepared as provided in i 51.27, and will l

l be published in the FEDERAL REGISTER as provided in 5 51.116, and an appro-l priate scoping process (see il 51.27, 51.28 and 51.29) will be conducted.

l (b) The scoping process may include a public scoping meeting.

~~: .

.. ... . g . i. ...e.

- '. n  ;.

6 51.27 Notice of intent.

1 (a) The notice of intent required by 5 51.26 shall:

(1) State that an environmental impact statement will be prepared; (2) Describe the proposed action and, to the extent sufficient information is available, possible alternatives; I (3) State whether the applicant or petitioner for rulemaking has filed an environmental report, and, if so, where copies are available for public inspection;

- 154 - i

^

(4) Describe "the proposed scoping process, including the role of-participants, whether written coments will be accepted, the last date for submitting coments and where coments should be sent, whether a public

- scoping meeting will be held, the tine and place of any scoping meeting or when the time and place of the meeting will be announced; and (5) State the. name, address and ' telephone number of an indi-vidual in NRC who can provide infomation about the proposed action, the scoping process, and the environmental impact statement.

Scooina 4 . '

i 51.28' ' Scoping - Participants -

(a) The appropriate NRC staff director shall invite the following persons to participate in the scoping process:

(1) The applicant or the petitioner for rulemaking; (2) Any person who has petitioned for leave to intervene in the pro-ceeding or who has been admitted as a party to the proceeding; (3) Any other Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved or which is l

authorized to develcp and enforce relevant environmer.tal standards; o *

- 155 -

1

'l .

^

(4) .. Affected State and-local agencies, including those' authorized to develop and enforce' relevant environmental standards; (5) Any affected Indian tribe; and

.(6) Any person who has requested an opportunity to participate in the scoping process.

(b) The appropriate NRC staff director may also invite any other appropriate person to participate in the scoping process.

(c) Participation in the scoping process for an environmental impact

.3 , ,.

statement does not entitle the participant to become a party to the proceed-ing to which the environmental impact statement relates. Participation in an adjudicatory proceeding is governed by the procedures in 10 CFP. 2.714 and 2.715. Partic4.;,ation in a rulemaking proceeding in which the Commission has decided to have a hearing is governed by the provisions in the notice of hearing.

1 51.29 Scoping - Environmental impact statement. .

(a) The scoping process for an environmental impact statement shall

, begin as soon as practicable after publication of the notice of intent as provided in 5 51.116, and shall be used to:

, (1) Define the proposed. action which is to be the subject of the

~

statement.'Thebrovisionsof40CFR1502.4'willbeusedforthispurpose.

- 156 -

l:

~

(2) Determine the scope of the statement and identify the significant issues to be analyzed in depth.

(3) Identify and eliminate from detailed study issues which are ,

1 peripheral or are not significant or which have been covered by prior environmental review. Discussion of these issues in the statement will be limited to a brief presentation of why they are peripheral or will not have a significant effect on the quality of the human environment or a reference' to their coverage elsewhere.

(4) Identify any environmental assessments and other environmental impact statements which are being or will be prepared that are related to

~ , ..- .-

b'utarenotpaht.o'fthe' scope'ofthe'si:atementunder' consideration.' '

(5) Identify other environmental review and consultation requirements related to the proposed action so that other required analyses and studies may be prepared concurrently and integrated with the environmental impact statement.

(6) Indicate ti.e relationship between the timing of the preparation of environmental analyses and the Commission't tentative planning and decision-making schedule.

(7) Identify any cooperating agencies, and as appropriate, allocate  ;

1 assignments for preparation and schedules for completion of the statement l to the NRC and any cooperating, agencies.

1.

l

- 157 -

(8) Describe the means by which the environmental impact statement 1

will be prepared, including any contractor' assistance to be used.

(b) At the conclusion of the scoping process, the appropriate NRC staff director will prepare a concise summary of the determinations and conclusions reached, including the significant issues identified, and will send a copy of the summary to each participant in the scoping process.

(c) At any time prior to issuance of the draft environmental impact statement, the appropriate NRC staff director may revise the determinations I' made under paragraph (b) of this section, as appropriate, if substantial changes are made in the proposed action, or if significant new circumstances or information arlse which bear on the proposed itction or its impact's.

Environmental Assessment l l

5 51.30 Environmental assessment.

\ ..

(a) An environmental assessment shall identify the proposed action and include: ,

/

(1) A brief discussion of:

l l

(i) the need for the proposed action; (ii) . alternatives as required by section 102(2)(E) of NEPA;

- 158 -

- l t  :

l I

_( iii) 'the environmental impacts of the proposed action and alternatives

~

as appropriate; and l

1 (2) A list of agencies and persons consulted, and identification of sources used.

5 51.31 Determinations based on environmental assessment. i Upon completion of.an environmental assessment, the appropriate NRC l staff director will determine whether to prepare an environmental impact statement or a finding of no significant impact on_the proposed action. As provided in 6 51.33, a determination to prepare a draft finding of no signifi- l

~

~

,.p .

. _ . *:.. . ;D z. .;:  %

4, ' '

... e cant impact may be.made l

Finding of No Significant Impact

)

5 51.32 Finding of no significant impact.

(a) A finding of no significant impact will: l (1) Identify the proposed action; I

(2) State that the Commission has determined not to prepare an environ- )

mental impact statement for the proposed action; (3). .Brief1y present the reasons why the proposed action will not have

~ '

.a sign ' ficant effect' on'therquality'of -the -human' environment;.'

~

i n 159 -

l

~

(4) _ Include the environmental assessment or a summary of the environ-menta1' assessment. If the assessment is included, the finding need not repeat any of the discussion in the assessment but may incorporate it by reference; (5) Note any other related environmental documents; and (6) State that the finding and any related environmental documents are available for public inspection and where the documents may be inspected.

E'51.33 Draft finding of no significant impact; distribution.

l

. (a) As provided in paragraph (b) of this section, the appropriate NRC

!! . .'..?_,- . c. '.. .r: '. R . , ' - L.; .. ..

L< .

i. . ; . -h '

staff director may make a determination to prepare and issue a draft finding l

pf no significant impact for public review and ::omment before making a final l

determination whether to prepare an environmental impact statement or a final finding of no significant impact on the proposed action.

1 L (b) Circumstances in which a draft finding of no significant impact l'

may be prepared will ordinarily include the following: ,

(1) A finding of no significant impact appears warranted for the proposed action but the proposed action is (i) closely similar to one which nomally requires the preparation of an environmental impact statement, or (ii) without precedent; and l (2) The appropriate NRC. staff director determines that preparation of

a. draft finding'of no significant

• impact will Jfurther the purposes of NEpA. - -

- 160 -

l I

~

~

(c) A draft finding of no significant impact will (1) be marked " Draft",

(2) contain the information specified in l 51.32, (3) be accompanie'd by.or include a request for comments on the proposed action and on the draft finding within thirty (30) days, or such longer period as may be specified in the. notice of the draft finding,.and (4) be published in the FEDERAL REGISTER as required by_ll 51.35 and 51.119.

. (d) A draft finding will be distributed as provided in 5 51.74(a).,

Additional copies will be made available in accordance with 6 51.123.

(e) When a draft' finding of no significant impact is issued for a proposed action, a final determination to ' prepare an environmental impact

' ' ' ^ '

~

tateNendoYa'finaTkindi 6f no siglific'aIt'iinpact for that' actidn s~ hall' '

not be made until the'last day of the public comment period has expired.

9 51.34 Preparation of finding of no significant impact. .

(a) Except as provided in paragraph (b) of this section, the finding of no significant impact will be prepared by the NRC staff director author- ,

ized to take the action.

(b)- When a hearing is held on the proposed action under the regulations in Subpart G of Part 2 of this chapter or when the action can only be taken by the Commissioners acting as a collegial body, the appropriate NRC staff director will prepare a proposed finding of no significant impact which may

, be subject to' modification as a result of. review and decision as appropr.iate to the' nature and. scope'of.the. proceeding. 'In.such cases, the presiding - -

- 161 -

_ _ _ . _ _ _ _ ____________.._m-m____ _ _ _ _ _ . _ _ -...m.__.--_________m___m__m m____- . _ _ _ ___.__m _ _ _ _ . ___ _ _ _ _ _ __ _ _ _ _ _ _ _ ______ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . __ _ _ _ _ _ ______. _ - - -

7; -

.-officer, the Atomic Safety'and Licensing Appeal Board, or the Commission-Jacting as' a collegial body,- as appropriate, wi11' issue the final-finding of no significant impact. -

E'51.35 Requirement to publish finding of no.significant impact; limitation on Commission action. ,

(a) Whenever.the Commission makes a draft or final finding of no significant impact on a proposed action, the finding will be published in the FEDERAL REGISTER as provided in i 51.119.

(b)- Except as provided in i 51.13, the Commission shall not take the

.~

^

.. . 1 .-  ;,m..

, . :. . . ~ . . . .: . . ;.

, .. .. . ;;;.: .1: < _ , . . ' .

., ',. ; , v. .

proposed action until after the final finding has been published in the FEDERAL REGISTER.~

ENVIRONMENTAL REPORTS AND INFORMATION - REQUIREMENTS APPLICABLE TO APPLICANTS AND PETITIONERS FOR RULEMAKING General 6 51.40 Consultation with NRC Staff.

(a) A-prospective applicant or petitioner for rulemaking is encouraged to confer with NRC staff as early as possible in its planning process before submitting environmental information or filing an environmental report.

, .. __ .. (.' b ) Requests fo'r:ggidance' or in' formation on environmental matters may .

, :.2 .. : , , .. . ,. -

z

. - s. .;.

include inquiries relating to:

- 162 -

l (1) Applicable NRC rules and regulations;

. \

'(2) _ Format, content and procedures for filing environmental reports i and other environmental information, including the. type and quantity of environmental infonnation likely to be needed to address issues and con-cerns identified in the scoping process described in 5 51.29 in a manner appropriate to their relative significance.

(3) Availability of relevant. environmental studies and environmental information; (4) Need for, appropriate level and scope of any environmental studie,s

.j s > :u ;

~ t ,, 4. . !i_ . .% - k;

. a - .

c .:

or information which the Comission may require to be submitted fn connection

-with an application or petition for rulemaking; (5) Public meetings with NRC staff.

(c) Questions concerning environmental matters should be addressed to the following NRC staff offices as appropriate:

Utilization facilities: Director, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Comission, Washington, D.C. 20555, Telephone:

(301)492-7691.

Production facilities: Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Comission, Washington, D.C.

-20555l Telephose: -(301)'427406'30 - '- -

- 163 -

w__ ____- _ _ _ - - _ _ - - _

w ,, , ,

Materials licenses: Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Comission, Washington, D.C. 20555 Telephone: .(301)427-4063.

Rulemaking: Director, Office of Nuclear Regulatory Research, U.S.

Nuclear Regulatory Comission, Washington, D.C. 20555, Telephone:

(301)427-4341.

General Environmental Matters: Executive Director for Operations, U.S.

Nuclear Regulatory Comission, Washington, D.C. 20555, Telephone:

(301) 492-7511.

.. .. ' - . . ... .~ .

c ...%.. -r . : .. ' - c. ..  ;

. . /. .

3.-

% 51.41 Requirement.to submit environmental information.

The Comission may require an applicant for a permit, license, or other form of permission, or amendment to or renewal of a permit, license or other form of permission, or a petitioner for rulemaking to submit such informa-tion to the Comission as may be useful in aiding the Comission in comply-

.ing with section 102(2) of NEpA. The Comission will independently evaluate and be responsible for the reliability of any information which it uses.

Environmental Reports - General Requirements i 51.45 Environmental Report.

. (a) General. As required by 65 51.50, 51.53, 51.54,.51.60, 51.61, 51.62 or:5T.68, as appropriate.. each applicant or petitioner for. rulemaking

- 164 -

f

_ _ _ _ _ _ _ ___ - . _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ - _ _ _ _ _ _ _ ____ __ _m

Q..

shall submit with its application or petition for rulemaking one.signe.d original of a separate document entitled " Applicant's" or " Petitioner',s Environmental Report," as appropriate, and the number of copies specified .

in il 51.55, 51.66 or 51.69. An appkicant or petitioner for rulemaking may submit a supplement to an environmental report at any time.

(b) Environmental considerations. The environmental report shall

. contain a description of the proposed action, a statement of its purposes, a description of the environment affected, and discuss the following considerations:

(1),Theimpactoftheproposedactionontheenvironment. Impacts

...s... 2; .

, t. .. . . <

.: , e. '

~~

s hall be discussed in. proportion to their significance;'

(2) Any adverse environmental effects which cannot be avoided should the proposal be implemented; (3) Alternatives to the proposed action. The discussion of alter-natives shall be sufficiently complete to aid the Commission in developing and exploring, pursuant to section 102(2)(E) of NEPA, " appropriate alterna-tives to recommended courses of action in any proposal which involves unre-solved conflicts concerning alternative uses of available resources." To the extent practicable, the environmental impacts of the proposal and the alternatives should be presented in comparative form; 1

(4) The relationship between local short-term uses of man's environ-

.J- -ment' and the maintenanceLand enhancement of;1ong-term" productivity; and - 7 4.:

- 165 -

L - - _ _ _ - - - ---.- ___ _-----_--_-------_ _____ _--_ ___ _ _ _ _

m -

s .

(5) Any irreversible and' irretrievable comitments of resources which I

would be involved in-the proposed action should it be implemented.

(c) Analysis. The environmental report shall include an analysis i

which considers and balances the' environmental effects of the proposed l-

. action and the alternatives available for reducing or avoiding adverse environmental effects, as well as the environmental, . economic, technical and other benefits of the proposed action. The analysis shall, to the fullest extent practicable, quantify the various factors considered. To the extent that there are important qualitative considerations or factors that cannot be quantified, these considerations or factors shall be discussed in qualita-tive terms. The environmental report should contain sufficient data to aid

. .,1  :. .. , . , .

-7 ..... , ,  ;. . g.g c .,

,. ,. . , . _ ,. ,, j , , ,..5 the Comission in its development of an inde' pendent analysis.

(d) Status of comoliance. The environmental report shall list all j Federal permits, licenses, approvals and other entitlement which must be obtained in connection with the proposed action and shall describe the status of compliance with these requirements. The environmental report shall also include a discussion of the status of compliance with applicable environmental quality standards and requirements including, but not limited to, applicable zoning and land-use regulations, and thermal and other water i pollution limitations or requirements which have been imposed by Federal, State, regional, and local agencies having responsibility for environmental protection. The discussion of alternatives in the report shall include a discussion of whether the alternatives will comply with such applicable envi ronmental gua} i ty . standa rds .. and requi reme nts .

4 a .,

- 166 -

4 (e) Adverse information. .The .infomation submitted pursuant to para-graphs (b)-(d) of this section should not be confined to information supporting the proposed action but should also include adverse infonnation. ,

Environmental Reports - production and Utilization Facilities i 51.50 Environmental Report - Construction permit stage.

. Each applicant for'a permit to construct a production or utilization facility covered by i 51.20 shall submit with its application the number of copies, as specified-in i 51.55, of a separate document, entitled "Appli-cant's Environmental Report , Construction Permit Stage," which shall con-

?,

-. [

. . : -:- 7, . ..

. ._.a .: .y; . . . , ..

n ;..

,,. * :. : . ...z. . .

tain the information specified in il 51.45, 51.51 and 51.52. Each environ-mental report shall' identify (1) procedures for reporting and keeping records of environmental data, and (2) any conditions and monitoring requirements for protecting the non-aquatic environment, proposed for possible inclusion in

-the license as environmental conditions in accordance with 6 50.36b of this chapter.

9 51.51 Uranium Fuel Cycle Environmental Data - Table S-3.

(a) Every environmental report prepared for the construction permit stage of a light-water-cooled nuclear power reactor, and submitted on or after September 4,1979, shall take Table S-3, Table of Uranium Fuel Cycle Environ-mental Data, as the basis for evaluating the contribution of the environmental effects of. uranium mining and milling, the production of uranium hexafluoride, ,

isotiopic eriHchment,' fuAl fabrication, reprocessing' of'irFadiated fus1, '~

- 167 -

c transportation of radioactive materials and management.of low level wastes and high level wastes related to uranium fuel cycle activities to the environ-mental costs of licensing the nuclear power reactor. Table S-3 shall be included in the environmental report and may be supplemented by a discussion of the environmental significance of the data set forth in the Tab'le as weighed in the analysis for the proposed facility.

Tmas $=&, fague of UrwowW Asif Ocup KN h tvapausums is umas umut suuma nas summuumna fuuASD6.taael e susewee sumuur yes (Ntf!2

_ a cues zar essa nas '

feems

-w y rews-e ausser gramesmuusum cw=musemmes

.uar er ames 1.100 asume Lvvm

%sm Reed'=mmene yng Larm(a mek 100 Tanuarste carmsumes

• 19

• . 'mreasone r at Eesmessa e a 110 WWee see% esmer

• • ssmetas -- ** .

• M .

a *

?s .,s . .. .al , e s ". ', * , .

• 3, */:*

13 songuses,emmes- < -

7.8 Ensussee a 96 hAus amm>4mf Counnassa sumous poemas er trT! ,

as or seus ice .2 surree er name tJD0 afume LWR sen e - r.

11.000

• assages a muser tress 'F Daw eque a W 11.377 < a sense es nuess 9.000 Wute fang Levst som erms.pewagn em Esmer 4mr 325 <f poetei Jr amos t 000 nause Lsvet Eest'rica wwgy T4msmeruun a ^ ^r - --

assis.

ito Gameswee es wie "=resseeaun as a 45 vwe Reasmaru emus frumasum er esfl sammee sewer s. art tM <0.a serene W numa f,012 WWre asmsgy 8EAde gas ifutemm e.* d sm

"""=rn P-" (hif)

Gamm_s isumsmie 1.130 sc,* -- - - g. gas e e amemme susas Waus o p

- esas aims sur a yes.

CD W

- 1.16s SF penummer puun U,lr. peaacson,

- ennevaant.

ausgs of supe - _ _ --aw w stat W edtags an phrasen #imI54 Ild 3C1 Sa mean ersievnes. 'un 'aniumans see seyn.

so . 5.s enemme moon, . "aveawa ines immuasse eso ,- 12.3 a soienwu or as=ema _ _ -

a riser Le se poners an slum syry* ras.Fe re esa Ca ES cm asseure anween De 'w.****? immes gg-~ 111 8f *eser e ==se esse esf*essse st! Pea ,

ses' f*La ares ho conssauerst tries *essee ammen e .4 sus an ese er m. arm wouer trat e,

• 884,=setW se.

M 55, aga,m 7g gas tagngs enemmen trummaus er aff't 240 # sus auss som'au W es'husum W senswesusit MS SWummy see h SW M .

. .. a> ,

• *

• g. . *

• ...e, } .p* *

, . . , ; , .e . . ,, ,_ ,

- 168 -

I l

l I

\ .*

I Tuess 9-Ldaow ## f>Per'trer Aar Cece C-. 4' Oser'emsauf tNemumme a muss Lwn n.m. n .em, n.e raAsm iaesI e mweise venner var peuneG-ciset3 W gang per grirugg gems TGW y '. ens.usene m unsu er . resuswer.etan gunsur m- - m. gynge Games damasang enouswamust

"" Desmer weer - ___ __ my su Camu.

nummen-no-asa _gg M .D8

• & ms T*'ase F 141 C-14 34 MC det 8 tm "*"- .14 Pisumesy time has . _ _ , sminus, 6.121 33 6t:1 A3

!a-de Pumsey wour sannesween e, wie Comm aummma Samen .wamms sur ;---- , Ja3

'.Aamus

' #mplesNI

= W45 usedFnest 3,1 pmnggggy %gne _t 4 = g h 44 'eGmme 'O gruteus==w s.

hous yousera no enma an aimsuum

-,- nom .

, , . .,- . *- a ,

,,gagg ,, p,,,4 ,

,l.....,,.,

e. , .,

M Apis M Jl base fuss teensmann _ _ _ _ . . - _ _

to asume er ?O C7ut 22 gr rwi yacuum.

sig 28 arvasm to enmarureus nur numas Lwst.

8assa se ecz=eese orname &Am re=*

- Smiam arme an ses carer rule raFI N t1Js0 9,105 C somos *em on e=es rene=== .emums

• sus 1500 C. sernas tem enaar ascw=

unansaan ano cecemsniseereig-asear a 1540 turnet 'andtet GCC Q gensus he N 99 huf*"5 fT*urried le ,

79#t6 AamrammetsfY M C ammes W es==sree- re s: ear %e sience, w esp

• Guert W%spu e Erw gemewumes,

% sus 84N 60must 1,1 g jg e beams a Seuses Aamummmy.

35musuun-eenus empe er Spese ressues as===a M (S pause er maman 1JW 6 fume LIAIIL T- _ _ _ 80ees**Wutt Summase W w WW peauPW pumEB &E Ommemusus amanse _ --- 34 #seum - , mis summe e 8ei asne ammen snee e enev espers d :s amar num r:a asumemis ameumpe anus em numer oss _ .nsret _

m estesL Tus fanie enened to asuar as d a h amo etre 'ing geen mutan, anlPsener, rare as apur mens pies se een m a af e Fue

• des Tme b3 enes ret reass Pang 54c3 Desi 3me grewanue *Jung9rmd A Irto 'souk y ege*eens g resumme g m gem.gg3 e gepre yte ser.ews ians e a,Ca y emarneses er *ectrimmsta=48 queamang tem umase "PW9egssveE W 4 aCSwiest. 79tme imahduB fruuy se pip $duumCT T ilt;3mpn P F43 fuere&ag ACErWrig grT55mWFufL M m.sertrug Fhe :ama are p.en m 7e 1*iesyyseorg Sipwme g t'un unymern 8ve C# cum '4A3pt.12aE Ayg tg74P gas "Stueurupvis Shrupp St Fe 83_.- , WW Wasm edelemer*MSween W me Ute M C#Ca* %8E4r=4159 'SeML ? 9

'ad@t !!aSL Tm 'INames C.ammmeta aus faem a ss te Samuurames sagsgrug yte ; ._ _ _ _.- Surwy at tre N. , ame Mummie tapeupanimiu Dyngre er ste .MA Swe Cause,* W89Q 2*Gi !.tmm 2 3 MAan-i3 ant ans a me sumpe er rie %s

_ _ , peimsweg to I.panesen Sun Cvous viumcus wem 3,aara sus asesomerig amt 8Lemnacewe sense temnogovert 2munes mee t M *he twounmure *wn - . enuun awegeneu aus peaumarmaan or emause ese ausunuum aw amur er true am Asse Cyame mararmsm pue sus ne ancW4asL *he w - -#5m FW4marttaen auchaus 'rtreatrimmst W ime 3 e seeCulf treB er . _ hm WIil 'EummanWee monums *WB a eeCErr WRCP Ese GanameroG e YIbo M Of { $l e The sweename won ihm amar s: mas or fiin am esce ao p ee a comanen M sr *ame S ".A er wa8M.*2at

=,ie =Jewenamns a 'unserew, ow'runme 'ans own m se nas grarmes swer 3D vows aree ::te suunese emptsat regrWuss er arimeter *e lhet gruuma eta ' tac 37 Ety grus segr W D fummgo sur E yuggs

'emommme estaren namen muun _ - e empeurs sus sur pumma7 gensamma

• 12 smumur1 Beam ese y emt se m

• t ,

a i + ,

< - - - ,-+ . a y,, .,

.~ . ,.

- 169 -

=

5 51.52 Environmental effects of transportation of fuel and waste -

Table S-4. ,

Every environmental report prepared for the construction permit' stage of a light-water-cooled nuclear power reactor, and submitted after-February 4,1975, shall contain a, statement concerning transportation of fuel and radioactive wastes to and from the reactor. ~That statement shall indicate that the reactor and this transportation either meet all of the conditions in paragraph (a) of this section or all of the conditions in paragraph (b) of this section.

(a) ' (1) rThe reactor has a core thermal power level not exceeding u '. .. +- ..

h . ,. .

3,800 megawatts; (2) The reactor fuel is in the form of sintered uranium dioxide pellets having a uranium-235 enrichment not exceeding 4% by weight, and the pellets are encapsulated in zircaloy rods; (3) The average level of irradiation of the irradiated fuel from the reactor does not exceed 33,000 megawatt-days per metric ton, and no irradiated fuel assembly is shipped until at least 90 days after it is discharged from the reactor;

.... ; ~ . ,. .; - .. . . . . .

- 170 -

e _ _ _ ____ _ _ _ _ _ _ _ _ _ _ _ _ - _

(4) With the exception of irradiated fuel, all radioactive waste l

shipped from the reactor is packaged and in a solid form; (5) Unirradiated fuel is shipped to the reactor by truck; irradiated fuel is shipped from the reactor by truck, rail, or barge; and radioactive waste other than irradiated fuel is shipped from .the reactor by truck or rail; and (6) The environmental impacts of transportation of fuel and waste to and from the reactor, with respect to normal conditions of transport and possible accidents in transport, are as set forth in Summary Table S-4 in paragraph (c) of this section; and the values in the table represent the

~ '

contribution of ihe trans ort'at'[on' to the enh'ironmenta'T" costs oY licens5ng

^

• the reactor.

(b) For reactors not meeting the conditions of paragraph (a) of this section, the statement shall contain a full description and detailed analysis of the environmental effects of transportation of fuel and wastes to and from the reactor, including values for the environmental impact under normal conditions of transport and for the environmental risk from accidents in transport. The statement shall indicate that the values determined by the analysis represent the contribution of such effects to the environmental costs of licensing the reactor.

+. ,: .. .

- 171 -

4 l'l' l . .

l l

e 1

4 1

'C) 4 mammer fans = m - asr as wesemaven.en we maeve ve aans ou 6m Cumas faamaan Psmai memcTun

• saummak gemarrimus op inasmuseet

&ampuures mumer timme tour womene be amas a sw.un asnmee seuar 8mmem tervenema In 8ampe e See . 73.000 at per maer, e seu par ene par set oms.

impe esempt

! . TeJul Leme tnam i ser aus. -

I phe Lams man 3 par nesst Suommmes Sange a samme e C.asmassee emme to Emannse samassei enneer er masonas ao.ramsa wommes sammense penere as maner yeet our - yeen' .

ammans trwumerumanawaw= 2D0 S.M e 3JO ; e ausevesak Gmass summs

. . Onanmass 1.fSS tL905 e 12 - 3 mumpsum6 l .

Mh .

54888 0.ogos e(Las *==oun- [

m

&nsuunmumpsur amammenos seus.

Commen .- _ _ i tamm emay * *ep emuur ==eir

• comum6 onwy a 80 so-

~ - -

M M MD frmSmMI Stamos Omr W M

• • Jeu - 4 #w name se psen a me Cowuomeon's **.nvowrimes Erwe, er *renascraman of stamanesse tassemos e awswaraus WW som % ar seer pe==r 47t0 dummmCOTt *'aamL*

.*:rvJ4wa&**.32*A at *4 i'a** Limph4'9Pt.

AJt'** we

• 1'..Sw*s

• Md ****PL SufGf ***

• 5.tsi aans

• $2.  % A '.SN tcat semp'wie

. "'.ent.*;te, * *C.wW Ntsy SS CT3 *ad TC'*t AsecrJe 'ec*re s a'9P*stan aww=ct $arr1lMmL .6 22*49. Wrd$h*234 a aseenes *wn WS w e og e Cd5 t==3T'icag. $1 Ifl anC **;RE*J.*1/~4 s me as a sat er 13 25 'nnsrrs-e $2 2fL m e Ammew 8sanaan Carwis %e ar r** mon == e est ye c:see wres .e veres or emiamaan s*se === eur.,ru 1N'S,*".ns r tn6 setti aame einassen N to .nmac *3 $ OCC

• ser* awr w *== TA2.44 .a e estas er r - _ u aarsm*

R7e afW $ftP"f 23 e%88 9 G h*'# jur Vee "Er ve%=ar13e a m jareem #1mnae&TL The $Ne le N,ths *8 samtgs gatwat eE87shvilf raamm;p d ausvt 1311 wvem per wear.

sw a sa emeenamen *w wie n.smma we w erase test riene a rasvaa.ms e a 7 mat *%ds. f east new'eme o' a samasum pse v M pousse m 'e *m se a emme s 1:cm en n it cir-met sr e 3 ommee re e reme=e a m as (La se @ noemenn emSL ?W WEm sterwem asas e um Cass sumat up I atepewusst

• asutaen** - -- aw or emmempem enees somwmag aten twesrnamn acmasas e asamer ammmmme er ammme asamense - -me nun 'usure emum repwomum er wimmer e a sens amemme a e arge ammmer e a 1 met 9

G se 9 ISe t , ,*"

- 172 -

, ,1

, 6 51'.53 Supplement to Environmental Report - Operating iicense stage..

Each applicant for a license or for renewal. of a license to operate a .

production or util.ization facility covered by 5 51'.20 shall submit with its.

application the number of copies, as specified in i 51.55, of a separate document, entitled " Supplement to Applicant's Environmental Report - Operating License ~ Stage," which will update " Applicant's Environmental Report - Construc-

. tion Permit Stage." Unless the applicant requests the renewal of an operating license or unless otherwise required by the Comission, the applicant for an operating license for a nuclear power reactor shall submit this report only in connection with the first licensing action authorizing full power opera-

' tion. In this report, the applicant shall discuss the same matters described

._ . :. . :- ,. v ..'.. .

~ . . .. ., 2 ...

..-in !! 51.45,'51.51 and 51'.52, but'. ..only to the extent that they differ fro'm those discussed or re,flect new information in addition to that discussed in the final environmental impact statement prepared by the Comission in connection with the construction permit. Unless otherwise required by the

' Commission, no discussion of need for power or alternative energy sources or alternative sites for the facility is required in this report. The " Supple-ment to Applicant's Environmental Report - Operating License Stage" may incorporate by reference any information contained in the " Applicant's Environmental Report - Construction Permit Stage," final environmental impact statement or record of decision previously prepared in connection with the construction permit.

l t -

s' . t* . . , ... *

,.s

- 173 -

~~

( 3 .

L .

i 51.54 Environmental Report - Manufacturing license, Each applicant for a license to manufacture a nuclear power reactor. or .

for an. amendment to a license to manufacture seeking approval of the final design of the n0 clear power reactor, pursuant to Appendix M of Part 50 of this chapter shall submit with its application to the Director of Nuclear L Reactor Regulation the number of copies, as specified in 5 51.55, of a sepa-l rate document, entitled " Applicant's Environmental Report - Manufacturing l

License," or " Supplement to Applicant's Environmental Report - Manufacturing License." The environmental' report shall address the environmental matters specified in Appendix M of Part 50 of this chapter, and shall contain the l

information specified in 5 51.45, as appropriate.

. , . . . -;; , ~ . '

n .. . * . , ..  : .. ...: ,,: ,; . . > . . . , ,  : .. . ,

5 51.55 Environmental Report - Number of copies; Distribution.

(a) Each applicant for a license to construct and operate a production or utilization facility covered by paragraphs (b)(1), (b)(2), (b)(3) or (b)(4) of 5 51.20 or for a license amendment covered by paragraph (b)(5) of 5 51.20 shall submit to the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, in accordance with 5 50.30(c)(1)(iv) of Part 50 of this chapter, forty-one (41) copies of an environmental report, or any supplement to an environmental report. The applicant shall retain an auditional 109 copies of the environ-mental report or any supplement to the environmental report for distribution to parties and Boards in the NRC proceeding, Federal, State, and local offi-cials and any affected Indian tribes, in accordance with written instructions issued by the Director of Nuclear Reactor . Regulation or the Director of ,

Nuclear Material Safety and Safeguards, as appropriate.

- 174 -

i

'(b) Each applicant for a license to manufacture a nuclear power reactor, or for an amendment to a licens'e to manufacture seeking approval of the final design of the nuclear power reactor, pursuant to Appendix M of Part 50 of this chapter shall submit forty-one'(41) copies of an environmental report or any supplement to an environmental report to the Director of e

Nuclear Reactor Regulation. The applicant shall retain an additional 109 copies of the environmental report or any supplement to the environmental

,. report for distribution to parties and Boards in the NRC proceeding,~ Federal, State, and local officials and any affected Indian tribes, in accordance ,

with written instructions issued by the Director of Nuclear Reactor Regulation.

l r- a. - -

L-Q .:.. . . . .. .. ....ar .

' , x. -' : ~

.. .;; . l Enviro,nmental Reports - Materials Licenses l

E 51.60 Environmental Report - Materials licenses.

l (a) Each applicant for a license or other form of permission, or an 1

amendment to or renewal of a license or other form of permission issued pur-suant to Parts 30, 32, 33, 34, 35,. 40, 61, 70 and/or 72 of this chapter, and covered by paragraphs (b)(1)-(b)(6) of this section, shall submit with its application to.the Director of Nuclear Material Safety and Safeguards the number of copies, as specified in 5 51.66, of a separate document, entitled

" Applicant's Environmental Report" or " Supplement to Applicant's Environ-mental Report," as appropriate. The " Applicant's Environmental Report" shall contain the information specified in 5 51.45. If the application is for an' amendment to or.a renewal of a.1jcense or other form of permission

- for which the applicant.has previously submitted an environmental report, -

- 175 -

the supplement to applicant's environmental report may be limited to 1

incorporating by reference, updating or supplementing the information previously submitted ~to reflect any significant environmental change, including any significant environmental change resulting from operational experience or a change in operations.

(b) As required by paragraph (a) of this section, each applicant shall prepare an environmental report for the following types of actions:

(1) Issuance or renewal of a license or other form of permission for:

(i) Possession and use of special nuclear material for processing and

- , ~.... . .-~ . . . . . ~.. .

.. .c v- c 1 . , .'.

.fue1 ~fabrica. tion, scrap recovery, or conversion of uranium hexafluoride' '

pursuant to Part 70 of this chapter.

(ii) Possession and use of source material for uranium milling or production of uranium hexafluoride pursuant to Part 40 of this chapter.

(iii) Storage of spent fuel in an independent spent fuel storage instal-lation (ISFSI) pursuant to Part 72 of this chapter.

(iv) Receipt and disposal of radioactive waste from other persons pursuant to Part 51 of this chapter.

(v) Processing of source material for extraction of rare earth and other metals. ,

- 176 -

~

(vi) .Use of. radioactive tracers in field flood studies involving second-ary and tertiary oil .and gas recovery.-

(2) Issuance of an amendment that would authorize or result in (i) a l

significantexpansionofasite,(ii)asignificantchangeinthetypesof effluents, (iii) a significant increase in the amounts.of effluents, (iv) a significant' increase in_ individual or cumulative occupational radiation-exposure, (v) a significant increase in the potential for or consequences. .

from radiological accidents, or (vi) a significant increase in spent fuel

- storage capacity, in a license or other form of permission to conduct an activity listed in paragraph (b)(1) of this section.

.. ... . . . . . . . , -  : *- ,:g -

.j-

..y, ,,

(3) Termination of 'a . license for the possession and use of source material for uranium milling.

(4) Amendment of a license to authorize the decommissioning of an ,

independent spent fuel storage installation (ISFSI) pursuant to Part 72 of this chapter.

(5) Issuance of a license amendment pursuant to Part 61 of this chapter authorizing (i) closure of a land disposal site, (ii) transfer of the license to the disposal site owner for the purpose of institutional control, or (iii) termination of the license at the end of the institutional control i

period.

e

? '% $

177 -

- ._m__--- _ _ _ m_-m__ ___m _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ . . _ . _ _ . _ _ . _ _ . _ .

4 1

1 .

l (6) Any other licensing action for which the Commission determines an Environmental Report is necessary. ,

.i 51.61 Environmental report - Independent spent fuel storage installation

'(ISFSI) license.

Each applicant for issuance of a license for storage of. spent fuel in an independent spent fuel storage installation (ISFSI) pursuant to Part 72 of this chapter shall submit with its application to the Director of Nuclear Material Safety and Safeguards the number of copies, as specified in i 51.66 of a separate document, entitled " Applicant's Environmental Report - ISFSI L License." The environmental report shall contain the information specified

~

[.

.., r . [ ', :.

, ;: . , ~ .y - ..

. in 5 51.45 and shall address the siting evaluation factors contained in subpart E of Part 72 of this chapter.

5 51.62 Environmental report - Land disposal of radioactive waste licensed under 10 CFR Part 61.

l (a) Each applicant for issuance of a license for land disposal of .

radioactive waste pursuant to Part 61 of this chapter shall submit with its application to the Director of Nuclear Material Safety and Safeguards the number of copies, as specified in 9 51.66 of a separate document, entitled

" Applicant's Environmental Report - License for Land Disposal of Radioactive Waste." The environmental report and any supplement to the environmental report may incorporate by reference information contained in the application

-. . ~

- 178 -

l - _-- ._ _ _ _ _ . _ _ _ - _ _ . _ .___--____-_ -

or in any previous application, statement or report filed with the Comission provided that such references are clear and specific and that copies of the information so incorporated are available in the NRC Public Document Room at 1717 H Street, N.W., Washington, D.C Ma in any public document room established by the Comission 9str the proposed land disposal site.

~

(b) The environmntsi report shall contain the information specified in 5 51.45, shall addrest the applicant's environmental monitoring program required by il 61.11(1), 61.53 and 61.59(b) of this chapter, and shall be as complete as possibin in the light of information that is i.vailable at the time the environmentci report is submitted.

. -s , . .r. .. ..:1, .. .. :, . .. .e .: . . .

(c)' The applicant shfii applement the environmental report in a

, timely manner as necessar/ to ger. wit the Comission to review, prior to issuance, amendment or rernal of a license, new information regarding tM environmental impact of previctsly proposed activities, information

- regarding the environmental impact of acy changes in previously proposed activities, or any significant new information regarding the environmental impact of closure activities and long-term performance of the disposal site.

~

I

- 179 -

1

_ _ _ - - _ _ _ _ _ _ _ _ _ - _ _ _ - _ _ - _ _ _ _ _ - _ _ i

5 51.66 Environmental Report - Number of copies; Distribution.

(a) Each applicant for a license or other form of permission, or an amendment'to or renewal of a license or.other form of permission issued pur-suant to Parts 30, 32, 33, 34, 35, '40, 61, 70 and/or 72 of this chapter, and covered by paragraphs (b)(1)-(b)(6) of i 51.60, or by $5 51,61 or 51.62 shall submit to the Director of Nuclear Material Safety and Safeguards an environmental report or any supplement to an environmental report in the number of copies specifiEd. The applicant shall retain additional copies of the environmental report or any supplement to the environmental report in the number'of copies specified for distribution to Federal, State, and local

. officials and any affected Indian tribes in, accordance with written instruc-

. v. 7 .s

• y, . :.-

. . . ; .... e,'.

tions issued by the Director of. Nuclear Material Safety and Safeguards.

(b) Environmental Report Number of Copies Number of Copies To Be To Be Submitted With Retained by Applicant For Type of Licensing Action Application Subsequent Distribution l Licensing actions requiring 25 copies 125 copies l environmental impact statements pursuant to 551.20(b).

Licensing actions requiring 15 copies None environmental assessments pursuant to 5 51.21.

- 180 - l L _ -- - - ---_ _ - - _ _ _ _ _ _ _ _ _ - . _ . - - - - - - _ _ - - - - _ _ _

Environmental Reports - Rulemaking ,

9 51.68 Environmental Report - Rulemaking. .

Petitioners for rulemaking requesting amendments of Parts 30, 31, 32, 33, 34, 35, 40 or 70 of this chapter concerning the exemption from licensing and regulatory requirements of or authorizing general licenses for any equipment, device, commodity or other product containing byproduct material, source material or special nuclear material shall submit with the petition.

the number of copies, as specified in 9 51.69, of a separate document entitled " Petitioner's Environmental Report," which shall contain the infor-mation specified in i 51.45.

..., .y. ., .

. . ;.3

. .t. , ,. , a ., .

e . .,

...- 1 cs 51.69 Environmental Report - Number of copies.

Petitioners for rulemaking covered by 5 51.68 shall submit fifty (50) copies of an environmental report or any supplement to an environmental report.

ENVIRONMENTAL IMPACT STATEMENTS Draft Environmental Impact Statements - General Requirements i 51.70 Draft Environmental Impact Statement - General.

(a). The NRC' staff will prepare a draft environmental impact statement-as soon as practicable after publication of the notice'of intent to preparer

- 181 -

.c .

~

an environmental impact statement and completion of the. scoping process. To the fullest extent practicable, environmental impact statements will be pre-pared concurrently or integrated with environmental impact analyses and related surveys and studies required by other Federal law.

(b) The draft environmental impact statement will be concise,' clear and analytic, will be written in plain language with appropriate graphics, will state how alternatives considered in it and decisions based on it will c: will not achieve the requirements of sections 101 and 102(1) of NEPA and ,

of any other relevant and applicable environmental laws and policies, will identify any methodologies used and sources' relied upon, and will be supported by evidence that the necessary environmental an,alyses have been made. The

. . .u.. ~ ,- .. . . - '

. c. ..

.. ,. ~. " ..

formatprovidedinsection1(a)ofAppendixAofthissubpartshouldbeused.

The NRC staff will independent 1, evaluate and be responsible for the relia-bility of all information used in the draft environmental impact statement.

(c) The Commission will cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and State and local requirements, in accordance with 40 CFR 1506.2(b) and (c).

1 L i 51.71 Draft Environmental Impact Statement - Contents.

(a) Scope. The draft environmental impact statement will be prepared in accordance with the scope decided upon in the scoping process required by l

il 51.26 and 51.29. As appropriate and a the extent required by the scope, the draft statement will address the topics in paragraphs .(b), -(c), (d) and

- 182 -

'(e) of this section and the matters coecif,ied .in 55 51.45, 51.50, 51.51, 51.52, 51.53, 51.54, 51.61.and 51.62.' -

(b) ~ Analysis of major points of view. To the extent sufficient infor-

~

mation is available, the draft environmental impact statement will. include consideration of major points of view concerning the environmental impacts of the proposed action and the alternatives, and contain an analysis of significant problems and objections raised by other Federal, State, and local agencies, by any affected Indian tribes, and by other interested persons.

(c) Status of compliance. The draft environmental impact statement

. . .: .. ..s - . . .. ..- .~. . . . .

~ .

... 't.,....

will list all' Fede'ral permits, ifcens~es, approvals, 'and other entitikm~en.ts~

~

which must be obtained in implementing the proposed action and will describe the status of compliance with those requirements. If it is uncertain whether a Federal permit, license, approval, or other entitlement is necessary, the draft environmental impact statement will so indicate.

(d) Analysis. The draft environmental impact statement will include a preliminary analysis which considers and balances the environmental and other effects of the proposed action and the alternatives available for reducing or avoiding adverse environmental and other effects, as well as the environmental, economic, technical and other benefits of the proposed action.

The analysis will, to the fullest extent practicable, quantify the various factors considered. To the extent that there are important qualitative considerations:or. factors that cannot be quantified, these considerations or

- 183 -

j 4'

~

factors will be discussed in qualitative tems. The analysis will indicate

\

what other interests and considerations of Federal policy, including factors-not related.to environmental quality, are thought to offset any adurse 1

environmental effects of the. proposed action idsntified pursuant to para-graph (a) of this section. Due consideration will be given to compliance l with environmental quality standards and requirements which have been imposed l_

by Federal, State, regional, and local agencies having responsibility for environmental protection, including applicable zoning and land-use regula -

tions and water pollution limitations or requirements promulgated or imposed pursuant to the Federal Water Pollution Control Act. The environmental impact of the proposed action will be considered in the analysis with respect to matters covered by such standards and requirements irrespective of whether a;

~

~

, ,. ,y . . .3  ; , .. n m .

. . ..e .

a certification or license from the appropriate authority has been obtained.3f While satisfaction of Comission standards and criteria pertaining to radio-logical effects will be necessary to meet the licensing requirements of the Atomic Energy Act -the analysis will, for the purposes of NEPA, consider the radiological effects of the proposed action and alternatives.

-26/ Compliance with the environmental quality standards and requirements of the Federal Water Pollution Control Act (imposed by EPA or designated permitting states) is not a substitute for and does not negate the requirement for NRC to weigh all environmental effects of the proposed action, including the degradation, if any, of water quality, and to con-sider alternatives to the proposed action which are available for reducing adverse effects. Where an environmental assessment of aquatic impact from plant discharges is available from the permitting authority then the NRC will consider the assessment in its determination of the magnitude of environmental impacts for striking an overall cost-benefit balance. When no such assessment of aquatic impacts is available from the permitting authority, then NRC will establish on its own or in conjunction with the pemitting authority and other agencies having relevant ~ expertise the. magnitude of' potential impacts for striking an .

overall cost-benefit balance.for the facility. -

- 184 -

i l i

. . 1 i

(e) Preliminary recommendation. The draft environmental impact state '

ment nomally will include a preliminary recommendation by. the NRC staff respecting the proposed action. This preliminary recommendation will be -

based on the information and analysis described in paragraphs (a) - (d) of -

this.section and is 51.75, 51.76, 51.80 and 51.85, as appropriate, and will

!e reached after weighing the costs and benefits of the proposed action and considering reasonable alternatives. In lieu of a preliminary recommendation, the NRC staff may indicate in the draft statement that two or more alterna-tives remain under consideration.

5 51.72 Supplement to draft environtrental impact statement.

(?.

(a) The NRC staff will prepare a supplement to a draft environmental impact statement for which a notice of availability has been published in the FEDERAL REGISTER as provided in 5 51.117, if:

(1) There are substantial changes in the proposed action that are relevant to environmental concerns; or (2) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

(b) The NRC staff may prepare a supplement to a draft environmental impact statement when, in its cpinion, preparation of a supplement will further the purposes of NEPA. '

- 185 -

i

. {

l 1 -  !

(c) The supplement to a draft environmental impact statement will be  !

~

prepared and noticed in the same manner as the draft environmental impact l

statement except that a scoping process need not be used.

4 5 51.73 Request for coments on draft environmental ' impact' statement.

Each draft environmental impact statement and each supplement to a draft environmental impact' statement distributed in accordance with 5 51.74, and each news release provided pursuan't to 5 51.74(d) will be accompanied by i or include a request for c~oments on the proposed action and on the draft environmental impact statement or any supplement to the draft environmental impact statement and will' state where comments should be submitted and the hate on which the comment period closes. A minimum comment period of 45 days will be provided. The comment period will be calculated from the date on which the Environmental Protection Agency notice stating that the dreft statement or the supplement to the draft statement has been filed with epa is i published in the FEDERAL REGISTER. If no comments are provided within the time specified, it will be presumed, unless the agency or person requests an l extension of time, that the agency or person has no comment to make. To the l

extent practicable, NRC staff will grant reasonable requests for extensions of time of up to fifteen (15) days.

I i 51.74 Distribution of draft environmental impact statement and supplement to draft environmental impact statement; News releases.

(a) A copy of the draft environmental impact statement will be distrib-uted to:

- 186 -

1' l~ .

(1) The Environmental. Protection Agency .

l (2) Any other. Federal agency which has special expertise or jurisdiction by law with respect to any environmental impact involved or which is authorized to develop and enforce relevant - '

environmental standards (3) The applicant or petitioner for rulemaking and any other party to the proceeding .

(4) Appropriate State and local agencies authorized to develop and enforce relevant environmental-standards (5) Appropriate State, regional and metropolitan clearinghouses (6) Appropriate Indian tribes when the proposed action may have an environmental impact on a reservation (7) Upon written request, any organization or group included in the mast ~er list of interested organiza- '

tions and groups maintained under 6 51.122 (8) Upon written request, any other person to the extent available (b) Additional copies will be made available in accordance with

! 51.123.

(c) A supplement to a draft environmental impact statement will be distributed in the same manner as the draft environmental impact statement to which it relates.

(d) flews releases stating the availability for comment and place for obtaining or inspecting a draft environmental statement or supplement will be provided to local newspapers and other appropriate media.

- 187 -

)

E

-(e) A notice of availability will be published in the FEDERAL REGISTER

'in accordance with i 51.117.

Draft Environmental Impact Statements - ,

Production and Utilization' Facilities 5 51.75 Draft environmental impact statement - Construction permit.

1

[ ~

, A draft environmental impact statement relating to issuance of.a con-struction permit for a production or utilization facility will be prepared in accordance with the procedures and measures described in il 51.70, 51.71, 51.72 and 51.73. The contribution of the environmental effects of the *

. . .' . ..\.....  ?.- ..

.,., .. .- u. .:: , .:~. .

. uranium fuel cycle activities specified in 5 51.51 shall be evaluated on'the basis of impact values set forth in Table S-3, Table of Uranium Fuel Cycle Environmental Data, which shall be set out in the draft environmental impact statement. With the exception of raden-222 and technetium-99 release:, no further discussion of fuel cycle release values and other numerical data

'that appear explicitly in the Table-shall be required.b The impact state-ment shall take account of dose commitments and health effects from fuel cycle effluents set forth in Table S-3 and shall in addition take account of -

economic, socioeconomic, and possible cumulative impacts and such other fuel cycle impacts as may reasonably appear significant. J l

27/ Values fer releases cf Rn-222 and Tc-99 are not given in the Table.

.The amount and significance of Rn-222 releases from the fuel cycle and Tc releases from waste management or reprocessing activ.ities shall be considered in the~ draft environmental impact statement and may be the subject of l'itigation in individua.1 licensing proceedings.

188 -

- 1 5 51.76 ' Draft. environmental impact statement - Manufacturing license.

A draft environmental impact statement relating to issuance of a. license

(

• to manufacture a nuclear power reactor will address the environmental matters

specified in Appendix M of Part 50 of this chapter. The draft environmental '

impact statement will include a request for comments as provided in l'51.73.

'l 51.77 Distribution of draft environmental impact statement.

(a) ,

In addition to the distribution authorized by i 51.74, a copy of a draft environmental statement for a licensing action for a production or utilization facility, except an action authorizing issuance, amendment or

.:z.: ~; ' . : ... ..

renewal of a license to~ manufacture a nuc..;;_ c lear pow..-er reactor pursuant to a

10 CFR Part 50, Appendix M will also be distributed to:

(1) The chief executive of the municipality or county identified in the draft environmental impact statement as the preferred site for the proposed facility or activity.

(2) Upon request, the chief executive of each

,. municipality or county identified in the draft environmental impact statement as an alterna-tive site.

(b) Additional copies will be made available in accordance with 5 51.123.

O 9

- 189 -

~

Draft Environmental Impact Statements - _ ,

Materials Licenses 9 51.80 Draft environmental impact statement - Materials license.

The NRC staff will either prepare a draft environmental. impact state-ment or as provided in i 51.92, a supplement to a final environmental impact statement for each type of action identified in i 51.20(b)(7) -

(12). Except as the context may otherwise require, procedures and mea-sures similar to those described in 55 51.70, 51.71, 51.72 and 51.73 will be fo11cwed.

.w _ ,

.y. _; ~ . ' .. ,

L5 51.81 Distribution of draft environmental impact statement.

Copies of the draft environmental impact statement and any supplement to the draft environmental impact statement will be distributed in accord-ance with the provisions of 5 51.74.

Draft Environmental Impact Statements -

Rulemaking 0 51.85 Draft environmental impact statement - Rulemaking.

Except as the context may otherwise require, procedures and measures similar to those described in il 51.70, 51.71, 51.72 and 51.73 will be foi-

' lowed in proceedings..for rulemaking for which the Commission has determined to prepare an environmental impact statement.

- 190 -

L 5 51.86. Distribution of draft environmental impact statement.

Copies of the draft environmental impact statement and any supplement to the draft environmental. impact statement will.be distributed in accordance with the-provisions of 5 51.74.

Legislative Environmental Impact Statements -

Proposals for Legislation i 51.88 Proposals for legislation.

The Commission will, as a matter of policy, follow the provisions of 40 CFR

,.  ;. . . . v. . . .

~ .. ,- .. ... ...

f1506.8 regarding the NEPA process for p,roposals"for legislation.

Final Environmental Impact Statements - General Requirements i 51.90 Final environmental impact statement - General.

After receipt and consideration of comments requested pursuant to 66 51.73 and 51.117, the NRC staff will prepare a final environmental impact

' statement in accordance with the requirements in il 51.70(b) and 51.71 for a draft environmental impact statement. The format provided in section 1(a) of Appendix A of this subpart should be used.

O

- 191 -

5,51.91 Final environmental. impact statement'- Contents. ~

,a)(1)

( The final environmental impact statement will include responses .

to any coments on the draft environmental impact statement or on any supple--

ment to the draft environmental impact statement. Responses to coments may include: ,

(1) Mo'dification of alternatives, including the proposed action; l

(ii) Development and evaluation of alternatives not previously given serious consideration;

... . m., .

. . ~.- .

.,~

...(iii) a.,'Supplem'entation or modific~atio'n of analyses;.

(iv) Factual corrections;

(v) Explanation of why comments do not warrant further response, l

citing sources, authorities or reasons which support this conclusion.

(2) All substantive coments received on the draft environmental impact statement or any supplement to the draft environmental impact state-ment (or sumaries thereof where the response has been exceptionally volu-minous) will be attached to the final statement, whether or not each coment is discussed individually in the text of the statement.

(3) If changes in.the draft environmental impact statement,in response

~

to coments are minor and are conf'ihed either to factual corrections or to .

- 192 -

p .

explanations of why the coninents do not warrant further response, the changes may be made by attaching errata sheets to the draft statement. The entire document with a new. cover may then be issued as the final environmental impact statement.

(b) The final environmental impact statement will discuss any rele-vant responsible opposing view not adequately discussed in the. draft environ-mental impact statement or in any supplement to the draft environmental impact statement, and respond to the issues raised.

(c) The final environmental impact statement will state how the alter-natives considered in it and decisions based on it will or will not achieve

t. ..-

,, .. .. . .: . .. .w . ,m/,:, , . . . . . . .

~ ,; e the requirements of s'ections 101 and 102(1) of NEPA and of any other relevant and applicable environment'al laws and policies.

(d) The final environmental impact statement will include a final analysis and a final recommendation on the action to be taken.

6 51.92 Supplement to final environmental impact statement.

(a) If the proposed action has not been taken, the NRC staff will prepare a supplement to a final environmental impact statement for which a notice of availability has been published in the FEDERAL REGISTER as provided in i 51.118, if:

(1)' There-are substantial changes in the proposed action.that are relevant to environmental concerns;.or .

- 193 -

(2) . There are s'ignificant new circumstances or information relevant ~

to environmental' concerns and ber. ring on the proposed act' ion or its impacts.

(b) The NRC staff may prepare a supplement to a final environmental impact statement when, in its opinion, preparation of a supplement will further the purposes of NEPA.

(c) The supplement to a final environmental impact statement will be prepared in the same manner as the final environmental impact statement except that a scoping process nee'd not be used.

. , ... . r: ..

.i . , -

.~

-. A. .... . .

s

"(d)(1) 'A', supplement"to 'a fina'1' environment'al' impact sta'tement Ull be accompanied by or will include a request for comments as provided in

! 51.73 and a notice of availability will be published in the FEDERAL REGISTER as provided in 5 51.117 if the conditions described in para-graph (a)ofthissectionapply.

(2) If coments are not requested, a notice of availability of a supplement to a final environmental impact statement will be published in the FEDERAL REGISTER as provided in i 51.118.

i 51.93 Distribution of final environmental impact statement and suppie-ment to final environmental impact statement; News releases.

(a). A copy of the final environmental impact statement will be distrib- .

uted to: -

194 -

a .

(1) The Environmental Protection Agency (2) The applicant or petitioner for rulemaking and any other party to the proceeding (3) Appropriate State, regional and metropolitan -

clearinghouses (4) Each commenter

~

(b) Additional copies will be made available in accordance with 5 51.123.

4 (c) If the final environmental impact statement is unusually long or there are so many comments on a draft environmental impact statement or any supplement to a draft environmental impact statement that distribution of a t'the entire.fiirial: statement to411. commenters,-is. impracticable,la summary of .  : " /. .

the final statement and the substantive comments will be distributed. When 4*' .

the final environmental impact statement has been prepared by adding errata 4

sheets to the draft environmental impact statement as provided in 5 51.91(a)(3),

only the comments, the responses to the comments and the changes to the environ-mental impact statement will be distributed.

(d) A supplement to a final environmental impact statement will be -

distributed in the same manner as the final environmental impact statement to which it relates.

(e) News releases stating the availability and place for obtaining 4 or' inspecting a final environmental impact statement or supplement will be provided to' local ' newspapers and other appropriate media. ,

4

- 195 -

l

(f) A notice of availability will be published in the FEDERAL REGISTER in'accordance with 5 51.118.

I 51.94 Requirement to consider final environmental impact statement.

The final environmental impact statement, together with any comments and any supplement, will accompany the application or petition for rulemaking

, throughm and be considered in, the Commission's decisionmaking process. The final environmental impact statement, together with any comments and any supplement, will be made a part of the record of the appropriate adjudicatory or rulemaking proceeding.

.- ,y .

" . ~ . . . . . . . . .h', .. . ~...

~'

Final Eiivironmental Imp'act Statements ;

• Production and Utilization Facilities 151.95 . Supplement to final environmental impact statement - Operating license.

In connection with the issuance of an operating license for a produc-tion or utilization facility, the NRC staff will prepare a supplement to the final environmental impact statement on the construction permit for that facility, which will update the prior environmental review. The supplement.

may incorporate by reference any information contained in the final environ-mental impact statement or in the record of decision prepared in connection with the construction permit for that facility. The supplement will include a request for comments as provideo in 5 51.73. The supplement will only

,- - cover matters which di.ffer ~from, .or.which reflect sign'ificant new information concerning matters discussed in i.he final environmental impact statement. .

l

- 196 -

l

~

'Unless otherwise determined by the Commission, a supplement on the operation of a. nuclear power reactor will not. include discussion of need for power or alternative' energy sources or alternative sites and will only be prepared in connection with the fi.rst licensing action authorizing full power operation.

Final Environmental Impact Statement:, -

Materials Licenses i 51.97 [ Reserved]

Final Environmental Impact Statements -

.: . r .. 'T - .

._ .v. ,: ,. .. .; - '

Rulemakinc i 51.99 [ Reserved.]

NEPA PROCEDURE AND ADMINISTRATIVE ACTION General 5 51.100 Timing of Commission action.

(a)(1) Except as provided in i 51.13 and paragraph (b) of this section, no decision on a proposed action, including the issuance of a permit, license, or othler ' form.'of permission, or amen'dment' to or renewal of a pemit,'licem.<,

or other fom of ' permission, br 'the issuance of an effective regulation, for '

- 197 -

~

which an environmental impact statement is required, will be made and no record of decision will be issued until the later of the following dates:

~

(i) Ninety (90) days after publication by the Environmental Protection Agency.of a FEDERAL REGISTER notice stating that the draft environmental l

impact statement has been filed with EPA.

l (ii) Thirty (30) days after publication by the Environmental Protec-l . tion Agency of a FEDERAL REGISTER notice stating that the final environ-l mental impact statement has been filed with EPA.

(2) If a notice of filing of a final environmental impact statement is

.,_.;~

. .: . t '. r~. . .,;;

. .. ..>..~. .\ .

l published bf the Environmental Protection Agency within ninety (90) days

.after a notice of filing of a draft environmental impact statement has been published by EPA, the minimum thirty (30) day period and the minimum ninety j (90) day period may run concurrently to the extent they overlap.

(b) In any rulemaiing proceeding for the purpose of protecting the public health or safety or the common defense and security, the Commission may make and publish the decision on the final rule at the same time that the Environmental Protection Agency publishes the FEDERAL REGISTER notice of filing of the final environmental impact statement.

5 51.101 Limitations on actions.

l (a) Until a record.of decision is issued .in ' connection with a proposed licensing ^ or regulatory -action for which an environmental impact statement l - 198 -

1

_ . - _ . - . _ . . . _ _ _ . __ . __. _ . _ _ _ - . _ _ _ _ _ _ _ _ . _ - _ - - _ - _ - - - _ _ _ . - - . _ _ ~ - _ - _ - - _ _ . _ - _ _ - -

.k 3

~

i p- . is required under i 51.20, or until a final finding of. no significant impact is-issued in connection with a proposed licensing or regulatory action for

' which an environmental assessment is. required under l 51.21:

(1)E No action concerning the proposal.may be taken'by the Commission which would (1) have an adverse environmental impact, or.(ii) limit the choice of reasonable alternatives.

(2). Any action concerning the proposal 'taken by an applicant which I would. (i) have an- adverse environmental impact, or (ii) limit the choice of-reasonable alternatives may be grounds for denial of the license. In the.

case of an application covered by il 30.32(f), 40.31(f), 50.10(c), 70.21(f) -

- c....,: .;  : .- . *.'. ;i . , b o h r c . . . . . i:. - . . .v: 7  ! . . . ,  ;.A '

.or 72.11 and 72.20 of this chapter, the prov'isions of this paragraph will-3 beappliedinaccordancewithil30.33(a)(5),40.32(e),50.10(c)and(e),

.. 70.23(a)(7), or 72.31(b) of this chapter, as appropriate.

(b) While work on a required program environmental impact statement is in progress, the Commission will not undertake in the interim any major Federal action covered by the program which may significantly affect the quality of the human environment unless such action:

(1) Is justified independently of the program; (2) Is itself accompanied by an adequate environmental impact

-statement; and

, "n* f, . ~ ,

- 199 -

_ _ _ _ _ _ _ . _ . _ _ __ .___.__.__m_ _ _ _ _ _ _ . _ _ _ . _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _

. (3) Will not prejudice the ultimate decision on the program. Absent-any satisfactory' explanation to the contrary, interim action which tends to determine subsequent development or limit reasonable alternatives, will be considered prejudicial.

(c) This section does not preclude any applicant for an NRC permit, license, or other form of permission, or amendment to or renewal of an NRC permit, license, 'or other form of permission, (1) from developing any plans or designs necessary to support an application; or (2) after prior notice and consultation with NRC staff, (1) from performing any physical work necessary to support an application, or (ii) from performing any other

, physical work relating to the proposed action if the adverse environmental

..:- e  :.... ..

.- e u

• impact of that' work'is,de minimis.

5 51.102 Requirement to provide a record of decision; preparation.

(a) A Commission decision on any action for which a final environmental impact statement has been prepared shall be accompanied by or include a concise public record of decision.

(b) Except as provided in paragraph (c) of this section, the record of decision will be prepared by the NRC staff director authorized to take the action.

(c) When a hearing is held on the proposed action ur. der the regulations in Subpart.G of Part 2 of.this cha'pter or wh'en the. action can only be taken by the. Commissionerscacting as a c'oliegTal body, the ' initial decision of the'

- 200 -

_ _ _ _ _ _ - _ - _ _ _ _ _ _ - - _ _ _ _______-_______-___a

presiding officer or the final decision of the Atomic Safety and Licensing

. Appeal- Board or the final ~ decision of the Commissioners acting as a collegial body will constitute'the record of decision. An initial or final decision constituting the record.of decision will be distributed as provided in 5 51.93.

~

$ 51.103 Record of decision - General.

(a) The record of decision required by 5 51.102 shall be clearly iden-tified and shall: .

(1) State the decision.

~

(2) Ide'ntify all' alt'ernatives considered by the' Comissi' no in reachin~g the decision, state that these alternatives were inclu,ded in the range of alternatives discussed in the environmental impact statement, and specify the alternative or alternatives which were considered to be environmentally preferable.

(3) Discuss preferences among alternatives based on relevant factors, including economic and technical considerations, the NRC's statutory mission, and any essential considerations of national policy, which were balanced by the Comission in making the decision and state how these considerations entered into the decision, p (4) State whether the Comission has taken all practicable measures within its jurisdiction to av-oid or~ minimize environmental harm from the-alternative selected, and if not, to explain why those measures were not l

- 201 -

~

adopted. Summarize any 1icense, conditions and monitoring programs adopted .

in' connection _with mitigation measures.

(b). The record.of decision may be integrated into any other record prepared by the Commission in connection with the action.

(c) The record of decision may incorporate by reference material contained in 'a final environmental impact statement. -

% 51.104 NRC proceedings using public hearings; Consideration of environ-mental impact statement.

(a)(1) In any proc ~eeding in which (i) a hearing is held on the pro-posed action, (ii) a final environmental impact statement has been prepared in connection with'the proposed action, and (iii) matters within the scope of NEPA and this subpart are in issue, the NRC staff may not offer the final environmental impact statement in evidence or present the position of the NRC staff on natters within the scope of HEPA and this subpart until the final environmental impact statement is filed with the Environmental Protection Agency, furnished to commenting agencies and made available to the public.

(2) Any party to the proceeding may take a position and offer evidence on the aspects of the proposed action within the scope of HEPA and this sub-part in accordance with the provisions of Part 2 of this chapter applicable to that proceeding or in accordance with the terms of the notice of hearing.

(3) In the proceeding the presiding officer will decide those matters in controversy among the parties within the scope of NEPA and this subpart.

- 202 -

1

4 (b) In any proceeding in which a hearing is held where the NRC staff h'as determined that no environmental impact statement need be prepared for.

the proposed action, unless the Comission orders otherwise, any party to the proceeding may take a-position and offer evidence on the aspects of the proposed action within the scope of NEPA and this subpart in accordance with the provisions of Part 2 of this chapter applicable to that proceeding or in accordance with the terms of the notice of hearing. In the proceeding, the presiding officer will decide any such matters in controversy among the

. parties.

Production and Utilization Facilities 5 51.105 Public hearings in proceedings for issuance of construction per-mits or licenses to manufacture.

(a) In addition to complying with applicable requirements of 9 51.104, in'a proceeding for the issuance of a construction permit for a nuclear power reactor, testing facility, fuel reprocessing plant or isotopic enrichment plant, or for the issuance of a license to manufacture, the presiding officer will:

(1) Determine whether the requirements of section 102(2) (A), (C), and (E) of NEPA and the regulations in this subpart have been met; (2) Independently consider the final balance among conflicting factors contained in the record of the proceeding with a view to determining the appropriate action to be taken;

- 203 -

(3) Datermine, after weighing the environmental, cconomic, technical, and other benefits against environmental and other costs, and considering l reasonable alternatives, whether the construction permit or license to 1

manufacture should be issued, denied, or appropriately conditioned to pro-tect environmental values; 1

(4) Determine, in an uncontested proceeding, whether the NEPA review conducted by the NRC staff has been adequate; and l (5) Determine, in a contested proceeding, whether in accordance with the regulations in this subpart, the construction permit or license to l manufacture should be issued as proposed.

[ .. .-- . . ..

,; . .w.

_ 9.. .

i 6 51.106 Public hearings in proceedings for issuance of operating licenses.

1 1

1 (a) Consistent with the requirements of this section and as appropriate, l the presiding officer in an operating license hearing shall comply with any applicabic requirements of il 51.104 and 51.105.

(b) During the course of a hearing on an application for issuance of an operating license for a nuclear power reactor, or a testing facility, the presiding officer may authorize, pursuant to i 50.57(c) of this chapter, I

the loading of nuclear fuel in the reactor core and limited operation within the scope of i 50.57(c) of this chapter, upon compliance with the procedures cescribed therein. In any such hearing, where any party opposes such authorization on the basis of matters covered' by subpart A of this part, "'

~

...- . . . . .~.... .

the provisions of 15 51.104 and 51.105'will ' apply, as appropriate.

~

I

- 204 -

. 'I' ,

(c) The presiding officer .in an operating license hearing shall not Ladmit contentions proffered by any' party concerning need for power or l ' alternative energy sources or alternative sites for the facility for which 1

g an operating license is requested.

(d) The presiding officer in an operating license hearing'shall not raise issues concerning alternative sites for the facility for which an 1

operating license is requested sua sponte.

l l

l Materials Licenses 6 51.108 [ Reserved]

2:.; . ,

. . . n..

. :. l \ , ., .r .:. .

.. . . .,> c , .. . .;, . .

. i:

Rulemaking 9 51.110 [ Reserved]

l l

l '

l

\

1 I.

P BLIC NOTICE OF AND ACCESS TO ENVIRONMENTAL DOCUMENTS 1

l 5 51.116 Notice of Intent.

(a) in accordance with i 51.26, the appropriate NRC staff director

~

~

. ;will publish in .the FEDERAL REGISTER: a notice of' intent stating .that. an

' eriviroinneritai' impachstat'er$ent' hiTf be 'pr'ep r'Ed. ti$e%t'icewllicon'ain' t l

- 205 -

4 the?information specified'in f 51.2'7.

y (b) Cop'es i of the notice will be sent to appropriate Federal, State, and local. agencies, and Indian tribes, appropriate State, regional, and metropolitan clearinghouses and to interested persons upon request. A public announcement of the notice of intent will also be made.

5 51.117 Draft Environmental Impact Statement - Notice of Availability.

'(a)' Upon completion of a draft environmental. impact statement or any supplement to a draft environmental impact statement, the appropriate NRC

= staff director will publish a notice of availability of the statement in the v . ' '

' FEDEkAC R'EdIISTER.

(b) The notice will request comments on the proposed action and on the

- draft statement or any supplement to the draft statement and will specify where comments should be submitted and when the comment period expires.

(c) The notice will (1) state that copies of the draft statement or .

any supplement to the draft statement are available for public inspection; (2) state where inspection may be made, and (3) state that any comments of Federal, 5 tate, and local agencies. Indian tribes or other interested persons will be made available for public inspection when received.

(c) Copies of the notice will be sent to appropriate Federal, State,

~

and local agen~ciesi'and Indian tribes, .approp~riate State, regional, and-

.. n < :. .: . :- .~ .:,.. .;.- , /~.-

-  :. . c. - . c. -

metropolitan clearinghouses, and to interested persons upon request.

- 206 -

5 51.118' Final Environmental Impact Statement - Notice of Availability.

j.' L Upon completion of a final environmental impact statement or any supple-ment to a final environmental impact statement, the appropriate NRC staff-director will publish a notice of' availability of the statement in the FEDERALLREGISTER. The notice will state that copies of the final statement-or any supplement to the . final statement are available for public inspection and'where inspection may be made.' Copies of the notice will be sent to appropriate Federal, State, and local agencies, and Indian tribes, appro-priate State, regional, and metropolitan clearinghouses and to. interested persons upon regt;est.

~ '

T5CIi9" P b'1'icakkbYd[Iin'dinI5f ho S'Ign'ikcant im' pact Nisiribuifion.

1.:

l(a) As. required by 5 51.35, the appropriate NRC staff director will publish'the finding of no significant impact in the FEDERAL REGISTER. The findin5 of no signif_icant impact will be identified as a draft or final finding, and will,contain the information specified in il 51.32 or 51.33, as appropriate. A draft finding of no significant impact will include a request .

for comments which' specifies where coments should be submitted and when the comment period expires.

(b) The finding rill state that copies of the finding, the environ-mental assessment setting forth the basis for the finding and any related environmental documents are available for public inspection and where inspec-tion may be madi.- ' -

n; ,.;a..q. .

%.. ._..: *.. ,, -j, 6:- .A - . , . .

i -

- L. -

- 207 -

(c) A copy of a final finding will be sent to appropriate Federal, _

~

State, and local agencies, and Indian tribes, appropriate State, regional,

, and metropolitan clearinghouses; the applicant or petitioner for rulemaking and any other party to the proceeding, and if a draft finding was issued, to ea'ch comenter. Additional copies will be made a~vailable in accordance with-6 51.123.

'l 51.120 Availability of environmental documents for public inspection.

Copies of environmental reports, draft and final environmental impact statements, environmental assessments, and findings of no significant impact, together with any related coments and environmental documents, will be

'#' '5

'61ac$d'in6th@ NRMs ' Pub 1'ii:%cbmeiit E hdo'$'at$1fi StriSti[ N. WF,'WashhIg '- -

ton, D. C., and in any public document room established by the Comission in the vicinity of the site of the proposed facility or licensed' activity where a file of documents pertaining to such proposed facility or activity is maintained.

5 51.121 Status of NEPA actions. .

Individuals or organizations desiring information on the NRC's NEPA l

process or on the. status of specific NEPA actions should address inquiries to:

Utilization facilities: Director, Office of Nuclear Reactor Regulation,

~

ihS.' NucTear Regulatory Comission, Washington; D.C. 20555. Telephone:

y ... . .

../ .' 2. .. ..

(301)492-7691.

- 208 -

i

Production faci 14 ties: Director. Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555.

I

' Telephone: (301)427-4063.

Materials licenses: Director, Office of Nuclear Material Safety and 1

Safeguards, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555.

l Telephone: (301)427-4063.

Rulemaking: Director, Office of Nuclear Regulatory Research, U.S.

Nuclear Regulatory Comission, Washington, D.C. 20555. . Telephone:

(301)427-4341.

~ ~-

General Envir'$'nmental"M$ttersi Exscut'ivs Tirecto'r'fdr'Op'er$ti6ns U.'S! ~ #

Nuclear Regulatory Commission, Washington, D.C. 20555., Telephone:

(301)A92-7511.

5 51.122 List of interested organizations and groups.

The NRC Office of Administration will maintain a master list of organi-zations and groups, including relevant conservation commissions, known to be interested in the Commission's licensing and regulatory activities. The NRC Office of Administration with the assistance of the appropriate NRC staff director will select from this master list those organizations and groups that may have an interest in a specific NRC NEPA action and will prcmptly notify such organizations and groups of the availability of a draft environ-menta1' impact statement or a draft findin'g of no significant impact.

.. . . 9, ._ ,;; . .,. .

.... u- ,: ..- . .- .. . . . .. ...:

- 209 -

b 6 51.123 Charges for environmental documents; distribution to public;-

V . .

~

' distr 1bution to governmental agencies.

(a[ Distribution to public. :Upon written request.to the Director, Division of Technical Information and Document Contro,1, U.S. Nuclear Regu-latory Comission, Washington, D.C. 20555, and to the extent available, 1

single copies of draft environmental impact statements and draft findings of no significant impact will be made available to interested persons without-l ~

charge. Single copies of final environmental impact statements and fintl findings of no significant impact will also be provided without charg'e to the persons listed in 5 51.93(a) and i 51.119(c), respectively. When more than one copy of an environmental -impact statement or a finding of no signifi-

' ' * . - ' cant~ impabt i

'is req 0e'ste'doi din 'availa51e 'NRC copieshhv6 been 2 exha'usiedi '

- - Y the requestor will be advised that the NRC will provide copies at the charges specified in paragraph (c) of this section.

(b) Distribution to governmental agencies. Upon written request to the Director, Division of Technical Information and Document Control, U.S.

Nuclear Regulatory Comission, Washington, D.C. 20555, and to the extent available, copies of draft and final environmental impact statements and draft and final findings of no significant impact will be made available in the number requested to Federal, State and local agencies, Indian tribes, and State, regional, and metropolitan clearinghouses. When available NRC copies have been exhausted, the requestor will be advised that the NRC will provide copies at the charges specified in paragraph (c) of this section.

= .

.C . ..e .r" .

.y y k, . * . ,_ , ,

n .

ll, .- e.

- 210 -

f ..

• (c)' Charges.. '

(1) Charges for the. reproduction of environmental doc'uments at the NRC Public Document Room' located in Washington, D.C. are as follows:

(i) Paper to paper in sizes up to 8-1/2 x 14 inches made on office copying machines - $0.05 per-page copy. 1.arger sizes - $0.50 to $1.00 per square foot per page copy depending on size.

(ii) Microform to paper - $0.05 per page copy for pages on microfiche.

$0.20 a square foot for a full size print or $0.25 for a reduced 18" x 24" size print of a drawing on an aperture card.

.- ; . .. *..~..x.  ?. . -

. . . . . .. Q: . s

. . .. . , ~ . . . .

c 1 1

(iii) Microform to microform - $0.10 per microfiche and $0.20 per aperture card.

-(iv) The charge for reproducing environmental documents other than those specified above will be computed on the basis of NRC's direct costs.

(v) Shipping, mailing or special delivery costs will be added to all mail orders. A handling fee will not be charged unless the user requests special packing materials.

(2) Charges for the reproduction of environmental documents by the NRC at locations other than the NRC Public Document Room located in Washington, D.C'. vary according to' location.-

.... .. . ..-. O . .y . . . ,

- 211 -

- +

.- .C'OMMENTING ~

L'51.124 i Commission duty ~to coment.

It _is the policy of the Comission to comment on draft environmental

' impact statements prepared by other Federal agencies,' consistent with the~

provisions of:40 CFR 1503.2 and 1503.3.

RESPONSIBLE OFFICIAL

$ 51.125 ' Responsible official..

~

' ~ ' '

gg.Exicuti[e 'Dir$i:tobfo'r OpeFat' 6nss'ha11' 1 be Nspon'siMe fo'r' overa1P '

review of NRC NEPA compliance, except for matters under the jurisdiction of a presiding officer, administrative judge, administrative law judge, Atomic

. Safety and Licensing Board, Atomic Safety and Licensing Appeal Board, or the Commission acting as a collegial body.

' APPENDIX A TO SUBPART A Format for Presentation of Material in Environmental Impact Statements

1. General.

(a) The Commission will use a format for environmental impact state-ments whicii wi.11 bncourage go'od analysis and'cTear presentation of

. .. .~.- -

. . . a_; ,,, , . ; ;. ;..,

- 212 -

the alternatives including-tha proposed action. The following

. standard format for environmental impact statements should be i

^

followed unless there is a compelling reason to do otherwise: -

(1)'Coversheet*

(2) - Summary *

(3) Table of Contents (4) Purpose of and Need for Action *

(5) Alternatives including the proposed action *

(6) Affected Envinmment*

(7) Environmental Consequences and Mitigating Actions *

(8) List of Preparers" (9) List of Agencies, Organizations and Persons to Whom Copi's e of

" ~~ #'

- ~ ~ ' ' '

T ' '" ' he Statenien( are"S'in't "-

i ~~

(10) Substantive Comments Received and NRC Staff Responses (11) Index (12) Appendices (if any)*

If a different format is used, it shall include paragraphs (1), (2),

(3), (8), (9), (10), and (11) of this section and shall include the substance of paragraphs (4), (5), (6), (7), and (12) of this section, in any appropriate format.

Additional guidance on the presentation of material under the format headings identified by an asterisk is set out in sections 2. - 9. of this appendix.

t ,.s . 4 .n - i . .. .  ;

4 c. ..,r' -.

- 213 -

6__-_-_ _ - -_________.______--__m ___._________.____-_______._-_-.-___.-..__________________m___.,,___.--____.__-____._.____--__-___________.._m___________

'(b)' The techniques of tiering and. incorporation by reference described .

l respec'tively in 40'CFR 1502.20 and 1508.28 and 40 CFR 1502.21b of CEQ's NEPA regulations may be used as appropriate to aid in the presentation of issues, eliminate repetition or reduce the size of an environmental impact L statement. In appropriate circumstances, draft or final environmental impact statements prepared by other Federal agencies may be adopted in whole or in-part in accordance with the procedures outlined in 40 CFR 150,6. N of' l' CEQ's NEPA regulations. .In final environmental impact statements, material under the following format headings will normally be presented in less than-150 pages: Purpose of and Need for Action, Alternatives Including the Proposed Action, Affected Environment, and Environmental Consequences and-Mitigating Actions. For croposals of unusual scope or complexity, the

....... .. u

,. ,:- ., ,. . . . ,. . > . , .

~

'iat'er'isi presented unde'r 'these f6r.-mat'hea' dings 'may ex'tIen. ~d to'300 p' ages.

l l 2. Cover sheet.

The cover sheet will not exceed one page. It will include:

l (a) The name of the NRC office responsible for preparing the statement and a list of any cooperating agencies.

l

-28/ Tiering 40 CFR 1502.20 40 CFR 1508.28 Incorporation by reference 40 CFR 1502.21 l- 19f Adoption ~'

~

. _1-. .

.*.40 CFR 1506_.3a . a. J-. s. - : - - .

- 214 -

(b) The title of the proposed action'that is the subjcct of the state-ment with a list of the states, counties or municipalities where the facility or other subject of the-action is located, as appropriate.

(c) The name, address, and telephone number of the individual-in' NRC who can supply further information.

(d) A designation of the statement as a draft or final statement, or a

. draft or final supplement.

(e) A one paragraph abstract of the statement.

> .c .c. .s -

. gf),. .g.,dd'eN[ronineNaf impaEt st3teme69[khe da'tF $f'shich' ' "

comments must be received. This date may be specified in the form of the following or a substantially similar statement:

"Coments should be filed no later than

• days after the date on which the Environmental Protection Agency notice stating that the draft environmental impact statement has been filed with EPA is published in the FEDERAL REGISTER. Coments received after the expiration of the coment period will be considered if it is practical to do so but assurance of consideration of late comments cannot be given."

• The number of days in the comment period should be inserted. The minimum comment period is 45 days (see 5 51.73.).

a.

. * '2* '

, , i; ,

. g.

• .7 , ,

- 215 -

3. Sumary. , ,

1 Each environmental impact statement will contain a sumary which adequately and accurately sumarizes the statement. The summary will stress the major issues considered. Thelsumary will discuss ~ the areas of con-troversy, will identify any remaining issues to be resolved, and will present the major conclusions and recommendations. The sumary will normally not exceed 15 pages.

4. Purpose of and need for action.

The statement will briefly describe and specify the purpose of and need for Oe pYopos'e'd adi'on.E' The alt $rnitfDelSf Mo actUon'wil'1 Ye hdis 5tissed.'" -

In the case of nuclear power plants, consideration will be given to the potential impact of conservation measures in determining the demand for power and consequent need for additional generating capacity.

5. Alternatives including the proposed action.

This section is the heart of the environmental impact statement. It will present the environmental impacts of the proposal and the alternatives in comparative form. Where important to the comparative evaluation of alternatives, appropriate mitigating measures for the alternatives will be discussed. All reasonable alternatives will be identified. The range of alternatives discussed will encompass those proposed to be considered by the

- . ultimate decisionmaker . 'A'n otherwise ' reasonable alt'ern' a t'ive will not be

- 216 -

~

- 1 excluded from discussion solely on the ground that it is not within the -

jurisdictionoftheNRC.3_0/ The discussion of alternatives will take into account,'without duplicating, the environmental information and analyses included in sections 4., 6. and 7. of this Appendix. -

In the draft environmental impact statement, this section will either include a preliminary recommendation on the action to be taken, or identify ,

the alternatives under consideration.

In the final environmental impact statement, this section will include a final recommendation on the action to be taken.

' '- 8

' 7 - 6.' ' A'ffic'te'd 'eh...virdnmenf."D

The environmental impact statement will succinctly describe the environ-ment to be affected by the proposed action. Data and analyses in the statement will be commensurate with the importance of the impact, with less important material summarized, consolidated, or simply referenced. Effort and attention will be concentrated on important issues; useless bulk will be eliminated.

7. Environmental consequences and mitigating actions.

This section discusses the environmental consequences of alternatives, including the proposed action and any mitigating actions which may be 30/. With respectate 'Timitht' ions.on.NRC's' NEPA authority and responsibility imposed by;the ' Federal Water Pollu. tion Control Act Amendments of 1972,. ,

see 95 51.10(c), 51.22(c)(17) and 51.71(d)..

- 217 -

b taken. Alternatives eliminated from' d tailed study will be identified

~

'and a discussion of those' alternatives will be confined to a brief state--

. ment of the reasons why the alternatives.were eliminated. The level of information [or.each alternative considered'in detail will reflect the depth-of analysis required for sound decisionmaking. .

The discussion will include'any adverse environmental effects which icannot be avoided should the alternative be implemented, the relationship

' between short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievab'le commitments of resources which would be involved in the alternative should it be implemented. This section will include discussions of:

; .. . . . y. n d'

': . . . e., . .' n . .. . :.; . i . ~ . , ..

. . . - v. --

m. ,

.c r; ,-  ;.

(a)~ Direct effects and their significance.

(b) Indirect effects and their significance.

(c) Possible conflicts between the alternative and the objectives of Federal, regional, State, and local (and in the case of a reservation, Indian tribe) land use plans, policies and controls for the area concerned.

(d) Means to mitigate adverse environmental impacts.

8. List of preparers.

. 'The. envi.ronmental ' impact' statement wil.1 list the names.a'nd qualifica- -

tions (expertise, experience, professional discip1Nes), of the' persons

- 218 -

( .

who were primarily~ responsible for preparing the environmental impact state-

~

ment or significant background papers, persons responsible for making an ,

independent evaluation of information submitted by.the applicant or peti-tioner for rulemaking or others will- be included in the list. - Where possi-

ble, the persons who are responsible for a particular analysis, including analyses in background papers, will be identified.

9. Appendices.

An appendix to an environmental impact statement will:

(a) Consist of material prepared in connection with an environmental

' ~

^

. impact stktIm5nk'(adlbisti$dtNdh $$5& rial'di$ti15' ~noNo pNer ared and'

~

s which is incorporated by reference (40 CFR 1502.21)).

(b) Normally consist of material which substantiates any analysis fundamental to the impact statement. Discussion of methodology used may be placed in an app 6.ndiX.

(c) Normally be analytic.

(d) Be relevant to the decision to be made.

(e) Be circulated with the environmental impact statement or be readily available on request.

• • * , b*', ,' " . .

219 -

i

. Footnotes 28/-Tiering.

40 CFR 1502.20 states:

" Agencies are encouraged to-tier their environmental- impact

. . statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review (9 1508.28). Whenever a broad environmental impact statement has'been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is

, then prepared on an action included within the entire program or l policy (such as a site specific action) the subsequent statement or l environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference and shall concentrate on-the issues specific to the subsequent action. The subsequent document shall state where the earlier document is available. Tiering may also be appropriate for different stages of actions. (Sec.1508.28)."

40 CFR 1508.28 states:

' Tiering _'...refe.rs. to the coverage. of. general matters in troader.

s environm'e'ntal .fmpact statements '(!!uch ds' national' program or; poHey

.. u. '"

statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ulti-mately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared. Tiering is appropriate when the sequence of statements or analyses is:

(a) From a program, plan, or policy environmental impact statement to a program, plan, or policy statement or analysis of lesser scope or to a site-specific statement or analysis.

(b) From an environmental impact statement on a specific action at an early stage (such as need and site selection) to a supplement (whichispreferred)orasubsequentstatementoranaly-sis at a later stage (such as environmental mitigation). Tiering in such cases is appropriate when it helps the lead agency to focus on the issues which are ripe for decision and exclude from consideration issues already decided or not yet ripe."

J l

)

. . s .

& p a e  % @ve f .

- 220 -

Incorporation by reference. __

40 CFR 1502.21 states:

" Agencies shall incorporate material into an environmental impact

. statement by reference when the effect will be to cut down on bulk without. impeding. agency and public review of the action. The incor-porated material shall be cited in the statement and its content briefly described. No material may be incorporated by reference unless it is reasonably available for inspection by potentially interested persons within the time allowed for comment. Material based on proprietary data which is itself not available for review and comment shall not be incorporated by reference."

29/ Adoption.

40 CFR 1506.3 states:

"(a) An agency may adopt a Federal draft or final environ-mental impact statement or portion thereof provided that the state-ment or portion thereof meets the standards for an adequate state-ment under these regulations.

. . -" (b).-If.the actions. covered by the. original environmental ,. -

'^ ' ;. ~ . .. impact statemdnt'shd'the yi6)os'ed action 'are ' substantially the sanih,'

~

the agency adopting another agency's statement is not required to ,

recirculate it except as a final statement. Otherwise the adopting agency shall treat the statement as a draft and recirculate it (except as provided in paragraph (c) of this section).

"(c) A cooperating agency may adopt without recirculating the environmental impact statement of a lead agency when, after an inde-pendent review of the statement, the cooperating agency concludes that its comments and suggestions have been satisfied.

"(d) When an agency adopts a statement which is not final within-the agency that prepared it, or when the action it assesses is the subject of'a referral under part 1504, or when the statement's adequacy is the subject of a judicial action which is not final, the agency shall so specify."

l

~

l -

1 l

- 221 -

L . ,

e CONFORMING AMENDMENTS

.PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

2. . Section 2.101-is amended by revising the first paragraph of para-graph-(a)(3), paragraphs (a)(3)(1) and (a)(5), the first par 6 graph of para-graph.(a-1), paragraphs (f)(1), (f)(4) and (f)(5) and paragraph (g)(2) to read as follows: ,

9 2.101 Filing c' application.

(a) * * * .

, e + <- *

> .: ...  :.;. :i- -

. .. .j ... . . -. .. . g. . a. ; . .. .

(3) If the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, determines that a tendered application for a construction permit or operating license for a production or utilization facility, and/or any environmental report required pursuant to.subpart A of Part 51 of this chapter, or part thereof as provided in paragraphs (a)(5) or (a-1) of this section are complete and acceptable for docketing, a docket number will be assigned to the application or part thereof, and the applicant will be notified of the determination. With )

respect to the tendered application and/or environmental report or part thereof that is acceptable for docketing, the applicant will be requested to:

(i) Submit to the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, such additional

. copies:'as ,the regulations -in Part 50 a'n d subpart A of Part 51 require;- .

l

- 222 -

i _ __1

(5) An' applicant for a construction permit for a production or utiliza ,

ztion facility which is subject to 5 51.20(b) of this chapter, and is of the type specified in SE 50.21(b)(2) or (3) or 50.22 of this chapter or is a test-L ing. facility may submit the information required of applicants by Part 50-of this chapter in three parts. One part shall be accompanied by the infor-mation required by 5 50.30(f) of this chapter, another part shall include 1

l any information required by 6 50.34(a) and, if applicable, 5 50.34a of this chapter and a third part shall include any information required by 5 50.33a.

One part may precede or follow other parts by no longer than six (6) months except that the part including information required by % 50.33a shall be submitted in accordance with time periods specified in 5 50.33a. If an applicant for a construction permit for a nuclear power reactor is exempted

~ ' ~

pursuantio' 6 '50.'33Eidf' thYs cfidpteE froin filing'tM "Infor6a' tion des'c'rNedJ "" k

by 5 50.33a of this chapter, such applicant shall file with the first part of'its application an affidavit setting forth facts as to the electrical generating capacity of its system. If it is determined that any one of the parts as described above is incomplete and not acceptable for processing, the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, will inform the applicant of this determination and the respects in which the document is deficient. Such a determination of completeness will generally be made within a period of thirty (30) days. Except for the part including information required by 5 50.33a, whichever part is filed first shall also include the fee required by 65 50.30(e) and 170.21 of this chapter and the information required by 55 50.33, 50.34(a)(1), and 50.37 of this chapter. The Director of Nuclear

~

& Reactor Regulation. or Director of Nuclear Material ^ Safety and Safeguards, as- -

- 223 -

1

r l .

I

[.

approp'riate,'will accept for docketing an application for ~a construction - ,

L permit for a production or. utilization facility which is subject.to i 51.20(b) of.this. chapter, and is of the type specified in il 50.21(b)(2) or (3) or. 4 l

50.22 of this chapter or is a testing facility where one part of.the appli-I cat. ion as described above-is complete and conforms to the requirements of Part50ofthischapter. Additional parts will be. docketed upon a deter-mination by the Director of Nuclear Reactor Regulation or Director.of Nuclear Material Safety and Safeguards, as appropriate, that they are complete.

.(a-1) Early consideration of site suitability issues. An applicant for a construction permit for a utilization facility which is subject to 9 51.20(b) of this chapter and is of the type specified in il 50.21(b)(2) or (3) or i ConinisU '"

50.22' 3f bis c$spker'o'r"1s i tdsting'f$'ci1' iip} 'may riqueWt' hat t5e' sion conduct an early review and hearing _and render an early partial decision in accordance with subpart F on issues of site suitability within the purview of the applicable provisions of Parts 50, 51 and 100 of this chapter.. In such cases, the applicant for the construction permit may submit the infor-mation required of applicants by the provisions of this chapter in three or (in the case of nuclear power reactors) four parts:

(f)(1) Each application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to Part 60 of this chapter and any environmental report required in connection therewith pursuant to subpart A of Part 51 of this chapter

-shall.be processed in.accordance with the provisions 1of this paragrap'h. -

.~ - '

- + ,  :. + .*. .. .* .*

- 224 -

( .

(4) The Director may determine the environmental report to be not complete. and therefore not acceptable for processing if.it fails t include the required. site characteri24 tion. data, including the results of appropriate in situ testing at depth for each site characterized, with respect to the number of sites and media sp2cified in section 114(f) of the Nuclear Waste Policy Act of 1982. If suc1 a determination is made, the Director shall l

. request the DOE to submit, Within a specified time, such characterization data as the Director detennines to be necessary. If the DOE fails to provide the requested data within the time specified, the application shall be subject to denial under 6 2.108.

(5) With respect to any tendered document that is acceptable for

'dockstingl :the"applic' ant w[11'Ee' req $es'ted to (I) s. . . ..ubinit' to"ti'ie Director'of ' * ^ '

Nuclear Material Safety and Safeguards such additional copies as the ,regula-tions in Part 60 and subpart A of Part 51 of this chapter require, (ii) serve a copy on the chief executive of tre municipality in which the geo-logic repository operations area is to be located or, if the geologic repository operations area is not to be located within a municipality, on the chief executive of the county (or to the Tribal organization, if it is

.to be located within an Indian reservation), and (iii) make direct distribu-tion of additional copies to Federal, State, Indian Tribe, and local offi-cials in accordance with the requirements of this chapter and written instructions from the Director of Nuclear Material Safety and Safeguards.

All such copies shall be completely assembled documents, identified by docket number. Subsequently distributed amendments, however, may include

.. *. , ., . s ,.

.y .

225 -

revised pages to prGvious submittals and,.in such cases, the recipients will ,

be responsible.for inserting the revised pages.

(g) *** .

(2) With respect to any tendered document that is acceptable for docketing, the applicant will be requested to (i) submit to the Director of Nuclear Material Safety and Safeguards such additional copies as the regula-tions in Part 61 and subpart'A of Part 51 of this chapter require, (ii) serve a copy on the chief executive of the municipality in which the waste is to be

1. dispo' sed of Uri if'th5NI5tS'iI'not'to beYNposNiof w'ithin S inu'niEipallth, * -

serve a copy on the chief executive of the county in which the waste is to be disposed of, (iii) make direct distribution of additional copies to Federal, State, Indian Tribe, and local. officials in accordance with the requirements of this chapter and written instructions from the Director of Nuclear Material Safety and Safeguards, and (iv) serve a notice of availability of the application and environmental report on the chief executives or governing bodies of the municipalities or counties which have been identified in the application and environmental report as the location of all or part of the alternative sites if copies are not distributed under paragraph (g)(2)(iii) of this section to the executives or bodies. All distributed copies shall be completely assembled documents identified by docket number. Subsequently distributed amendments, however, may include revised pages to previous sub-

. mittals and,cin such;/ cases,Jthelrecipients wil.1- be responsible for inserting

~

the revised' pageiL In~ complying with the requirements. of paragraph (g) of -

- 226 -

i

-. . - - _ . . _ - _ _ = . - _ _ - - _ _ - - _ _ _ _ _ _ - - - _ - - _ _ _ _ - _ _ - _ _ - _ . _ _ _ - _ _ - - - _ _ - - - _ _ _ _ - _ _ - _ _

n :, : , .

this section the applicant'shall not make public distribution of those parts '

i of the application subject to i 2.790(d). ,

3.- Section 2.104.is amended by' revising paragraph (b)(1)(v), the firstparagraphofparagraph(b)(3), paragraph (b)(3)(i)andparagraph(c)(7) with its attendant footnote 3 as follows:

'l 2.104 Notice of Hearing.

(b) c'

. .- .y ,. <

-)- . L . >... g ., . :.. . ~ . . ,.,.p,..

'. ~ . ~ .. :. , . . . . .... ,;

(l') * * *

^

~(v) If the application is for a construction permit for a nuclear power reactor, a testing facility, a fuel reprocessing plant, or other facility whose construction or operation has been determined by the Commission to have a significant impact on the environment, whether, in accordance with the' requirements of subpart A of Part 51 of this chapter, the construction permit should be issued as proposed.

(3) That, regardless of whether the proceeding is contested or uncon-

.. tested,.the presiding' officer wit 1, in accordance with subpart A of Part 51 .'

~

of"this.thapter. .

- 227 -

(1) Determine whether the requirements of section 102(2)(A), (C) and (E) of the National Environmental Policy Act and subpart A of Part 51 of-this chapter have been complied with in the proceeding; (c)

(7) If the application is for an operating license for a nuclear power reactor, a testing facility, or a fuel reprocessing plant, or other facility whose operation has been determined by the Commission to have a significant impact on the environment, whether, in accordance with the requirements of

' subpart' $ 'of' Part51' of.'thh' bhipte5 thb op raidngliheris~e shou'l'd'be ' issued-as proposed.3/

-37 Issues (1) to (6) are the issues pursuant to the Atomic Energy Act of 1954, as amended. Issue (7) is the issue pursuant to the National Environmental Policy Act of 1969.

l l

l

4. In 6 2.501, paragraphs (b)(1)(vii) and (b)(3)(i) are revised to read as follows:

5 2.501 Notice of hearing on application pursuant to Appendix M of Part 50 for a license to manufacture nuclear power reactors.

W

• w * *

% e

- 228 -

(b) Loo * -

(1);***

-(vii) Whether, in accordance~with the requirements of subpart A of-Part 51 and Appendix M of Part 50 of this chapter, the license should be issued as proposed.

(3) That, regardless of whether.the proceeding is contested or uncon -

tested, the presiding' officer will, in accordance with subpart A of Part 51 and paragraph 3 of Appendix M of Part 50 of this chapter,

. .~.

50 .

'. R.? .. . ;.., e. ? " ~ . p. ~ . '

. , .: l <. ?" N (i) Determine whether the requirements of section 102(2)(A),(C) and (E) of the National Environmental Policy Act and subpart A of Fart 51 of this chapter have been complied with in the proceeding;

5. Section 2.600 is revised to read as follows: .

6 2.600 Scope of subpart.

This subpart prescribes procedures applicable to licensing proceedings which involve an early submittal of site suitability information in accord-ance with 5 2.101(a-1), and a hearing ano early partial decision on issues of

. site suitability,'in ' connection with an application. for a permit to construct - -

- 229 -

o a utilization facility which is subject to 5.51120(b) of this chapter and is. *

)

of the type spec'ified in.El 50.21(b) (2) or (3) or 50.22 of this chapter.or 1 is a testing facility. ,

i

6. In_9 2.603, paragraph (b)(1).is revised to read as follows:

5 2.603 Acceptance and docketing of application for early review of ,

site suitability issues. ,,

l (b)(1) The Director of Nuclear Reactor Regulation will accept for docketing an application for a construction permit for a utilization facility whNh'iks'ubjecitbI'51Nd'(b[$fthis'chahthkandis"ofthetype'specified

~

in 95 50.21(b) (2) or (3) or 50.22 or is a testing facility where part one of the application as described in i 2.101(a-1) is complete. Part one of an application will not be considered complete unless it contains proposed findings as required by 5 2.101(a-1)(1)(i) and unless it describes the applicant's site selection process, specifies the extent to which that l process involves the consideration of alternative sites, explains'the rela-tionship between that process and the application for early review of site suitability issues, and briefly describes the applicant's long-range plans for ultimate development of the site. Upon assignment of a docket number, the procedures in 5 2.101(a)(3) and (a)(4) relating to fomal docketing and the submissicn and distribution of additional copies of the application L shall be followed.

s . . e.~  ;:. *- . *. ,* .

4

- 230 -

t

7. -In i 2.605, paragraph (b)(1) is revised to read as follows:

5 2.605 Additional considerations.

l (b)

(1) In cases where no partial decision on the relative merits of the proposed site and alternative sites under subpart A of Part 51 is requested, upon determination that there is a reasonable likelihood that further review would identify one or more preferable alternative sites and the partial decision on one or more site suitability issues would lead to an irreversible and irretrievable commitment of resources prior to the submittal of the

~

' ' 9e'maiiider 'ofEth'e' i'nhonnatiion' reksbefiby 5 50i.'3 0(f)of this%hNpt$r'~that # "b would prejudice the later review and decision on such alternative sites; or

8. In 5 2.606, paragraphs (a) and (b)(1) are revised to read as follows:

5 2.606 Partial decisions on site suitability issues.

(a) The provisions of 55 2.754, 2.755, 2.760, 2.761, 2.762, 2.763, and 2.764(a) shall apply to any partial initial decision rendered in accordance with this subpart. Paragraph 2.764(b) shall not apply to any partial initial decision rendered in accordance with this subpart. No limited work authoriza-tion may be issued pursuan.t to'5 50.10(e) of~Part 50 of,this. chapter and.no

- 231 -

construction permit may be _ issued without completion of the full . review required by section 102(2) of the National Environmental _ Policy Act of.1969,_.

~

l as amended, and subpart A of Part 51 of this chapter. The authority of the Commission and/or Appeal Board to review such a partial initial decision sua sponte, or to raise sua sponte an issue that has not been raised by the parties, will 5e exercised within the same ' time period as in the case of a full decision relating to the-issuance of a construction permit.

(b)(1) A partial decision on one or more site suitability issues pursuant to the applicable provisions of Part 50, subpart A of Part 51, and Part 100 of this chapter issued in accordance with this subpart shall (1) clearly identify the site to which the partial decision applies and (ii) indicate to

~ '

^ 'what~? exterkaddiIfNiaOM6rm tion' may bs biidehand Vadditichd review'ma ' *

- J'- -

be required to enable the Commission to determine in accordance with the provisions of the Act and the applicable provisions of the regulations in this chapter whether a construction permit for a facility to be located on the site identified in the partial decision should be issued or denied.

9. In 5 2.743, paragraph (g) is revised to read as follows:

5 2.743 Evidence (g) Proceedings involvinc acolications. In any proceeding involvir.g l-.. an : application, there:shall.be offered.in evidence by the staff.any report .-

submitt'e d by the. ACRS. in the proceeding in compliance with section 182b.. of

- 232 -

l* +.

l L the Act, any safety evaluation prepared by the staff and any environmental I impact statement prepared by the Director of Nuclear Reactor. Regulation or- -

l Director of Nuclear Material Safety and Safeguards, as appropriate, or his designee in_the proceeding pursuant to subpart A of Part 51 of this chapter.

10. Section 2.761a is revised to read as follows:

5 2.761a Separate hearings and decisions.

In a proceeding on an application for a' construction permit for a utilization facility which is subject to i 51.20(b) of this chapter, and is

~

' 't ' 'of?thb typh sp'ecif'iNd iif 65*50.21'(b)~ (2) 6'r'(5) ir'5'Oi25 ffibis cNa'ptEr'or "

"M is-a testing facility, the presiding officer shall unless the parties agre,e otherwise or the rights of any party would be prejudiced thereby, commence a hearing on issues covered by 5 50.10(e)(2)(ii) and subpart A of Part 51 of

. this chapter as soon as practicable after issuance by the staff of its final environmental impact statement, but no later than thirty (30) days after issuance of such statement, and complete such a hearing and issue an initial decision on such matters. Prehearing procedures regarding issues covered by subpart A of Part 51 and 5 50.10(e)(2)(ii) of this chapter, including any discovery and special prehearing conferences and prehearing conferences as provided in 65 2.740, 2.740a, 2.740b., 2.741, 2.742, 2.751a, and 2.752, shall be scheduled accordingly. The provisions of El 2.754, 2.755, 2.760, 2.762, 2.763 and 2.764(a) shall apply to any proceeding conducted and any

- ' initial,'decisi~on tendered'in -accordance.with.th'is section. Paragraph 2.764(by -

- 233 -

~

shall not apply to .any partial initial ~ decision rendered in accordance with-

t. ~

~

4 this'section. 's section shall not preclude separate hearings and deci-sions' on other particular issues.

11. In Appendix A to Part 2, sections 1(a), 1(c~)(2), and I(d) are l-revised to read as follows:

I.- PRELIMIi4ARY MATTERS

~

(a) A public hearing is announced by the issuance of a notice of hearing, published in the FEDERAL REGISTER as soon as practicable after the application has been docketed, signed by the Secretary of the Comission st'at'ing the' natdre 'oY th'e'hia'tinha$ the3 hsties- to b[ considered. 'The " W I

time and place of the first prehearing conference pursuant to i 2.751a will ordinarily be stated in the notice of hearing._ Unless the initial notice of hearing states the time and place of the hearing, and the Chairman and other members of the Atomic Safety and Licensing Board that will conduct the hearing, those matters will be the subject of further notice in the FEDERAL REGISTER after publication of the initial notice of hearing. It is the Commission's policy and practice to begin the evidentiary hearing in the vicinity of the site of the proposed facility. The notice of hearing also states the procedures whereby persons may seek to intervene or make a limited appearance and explains the differences between those forms of participation in the proceeding, and states the times and places of the availability, in an appropriate office near the site of the proposed facility, of the notice of; hearing,'an updated copy of the application .the re~ port of the Advisory -

~

j i

- 234 -

---

___--_j

5

, ,, 4 J ,

[ j , .

Comittee!on' Reactor Safeguards (ACRS), the staff safety evaluation, the

. applicant's environmental report, the Comission's environmental impact

~

. statement, the proposed construction permit or operating license and the

~ transcripts of the'prehearing conference and-the hearing.

(c)(1) * *L* -

.(2) In a proceeding relating to the issuance of a construction permit for a facility which is subject to the environmental impact statement require-ments of f section 102(2)(C) of the National' Environmental -Policy Act of 1969

- and subpart'A of Part 51-of this chapter and which is'a utilization facility

~

fNf *fhusNihl $it ' oNnEfhiniturpd$hs oNis :a iss~ ting 4acility$ sepa' rat [' +- V ; i c

hearings may be held 'and decisions may be issued on National Environmental Policy Act-and site suitability issues and other specified issues as pro-vided by subpart F and 5 2.761a.

(d) ' Prior to a hearing, board members should review and become familiar I

with: The record of any relevant prior proceedings in the case, including initial decisions and Comission orders, the application, the ACRS report,

- the staff safety evaluation, the applicant's environmental report, the Comission's environmental impact statement, all other papers filed in the l proceeding, the Comission's rules of practice, and other regulations or published statements of policy of the Comission as may be pertinent to the proceeding.

4

, =. , ,' s* . * - ,

+ ,

- 235 -

12. In Appendix A to Part 2,' sections V(d)(2), V(f)(1) and V(f)(3) are ,

revised to read as follows:

V. THE HEARING (d) Evidence:

(2) The parties are required to submit direct testimony in written form and serve copies of such prepared written testimony on all parties pur-suant to the schedule established at the second prehearing conference - in

~ ' ' '

'any eiedt' al'1' east'1[$E[s in idvabe"of'tIih s'ession of 't'he he'afing'at" which such testimony is to be presented, as provided by 5 2.743(b), unless the board orders otherwise on the basis of objections presented. The staff's position is reflected primarily in the safety evaluation and final environ-mental impact statement. Consequently, the staff will not present its case until these documents are available. The use of such advance written testi-mony is expected to expedite the hearing process.

(f) Participation by board members:

(1) In contested proceedings, the board will determine controverted matters as well as decide whether the findings required by the Act and the Commission's regulations should be made and: Whether, in accordance with sub-part A of Part 51, the construction permit should be' issued as proposed.

- 236 -

i _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ - _ _ _ _ _ - _ _ _ - __-

Thus, in such proceedings, the board will determine the matters in contro-versy and may be called upon to make technical judgments of its own on those matters'. As to matters pertaining to radiological health and safety which are not in controversy, boards are neither required nor expected to duplicate the review already performed by the staff and ACRS, and they are authorized to rely upon the testimony of the staff, the applicant, and the conclusions of the A'CRS, which are not controverted by any party.

(3) Whether the construction permit proceeding is contested or uncon-tested, the board will, as to environmental impact matters, (a) determine whether the requirements of section 102(2)(A), (C) and (E) of the National

~

^

' $i vi ro'nme'ntaf 'Policf Nckf oY '1'96'9 'and subhart Alof Part 51' o['tMs cidpte'r have been complied with; (b) independently consider the final balance among conflicting factors contained in the record, with a view to determining the appropriate action to be taken; and (c) detenaine whether the construction permit should be granted, denied, or appropriately conditioned to pr'otect environmental values.

13. In Appendix A, Part 2, sections VI(c)(1)(v) and VI(c)(3) are revised to read as follows:

~ . .

I

- 237 -

___._.__-______.--_---_________-_-_-____---Q

j- -

VI. POSTH. EARING PROCEEDINGS TNCLUDING THE INITIAL DECISION e .* -

• s 1 -

(c)

(1) -

(v) Whether, with respect to the requirements of section 102(2)(A), ,

(C) and (E) of the National Environmental Policy Act, in accordance with subpart A of Part 51 of this chapter, the construction permit should be issued as proposed.

^ '

"~

'(3f Rega' riles's of whhtNer the procee'dkN[is ontes' c tid or un' cont'e'st'ed, the board will, in its initial decision, in accordance with subpart A of Part 51 of this chapter:

(i) Determine whether the requirements of section 102(2)(A), (C) and .

(E) of the National Environmental Policy Act and subpart A of Part 51 of this chapter have been complied with in the proceeding; (ii) Independently consider the final balance among conflicting factors contained in the record of the proceeding with a view to determining the appropriate action to be taken; and

., .- ' s.. .. . c - .

238 -

l

~

(iii) Determine whether the construction permit should be issued, denied, or appropriately conditioned to protect environmental values.

I' I

14. In Appendix A of Part 2~, section VIII(b)(7) is revised to read:

4

-VIII PROCEDURES APPLICABLE TO OPERATING LICENSE PROCEEDINGS (b) ,

, D) Whethe'rI with re'$pec['t' SeWekui're$ents d'

b"sEctioii 1'0E(U)(A')S(C)?, I' 'I and- (E) of the National Environmental Policy Act, in accordance with subpart A of Part 51, the operating license should be issued as proposed.

PART 30 - RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING 0F BYPRODUCT MATERIAL

'I5. In i 30.32, paragraph (f) is revised to read:

5 30.32 Application for specific licenses.

e

- 239 -

L (f) 'An' application for a license to receive ~and possess byproduct ,

' aterial m for. the conduct of any activity which the Commission has determined p.ursuant in subpart A of Part 51 of this chapter will significantly offect 1

the quality 'of:the environment shall be filed at least 9' months prior to I l

commencement of construction of the plant or facility in which the activity 1

will be conducted and shall-be accompanied by any Environmental Report L . .

L _ required pursuant to subpart A of Part 51 of this chapter.

1

16. In i 30.33, paragraph (a)(5) is revised to read:

i 5 30.33 General requirements for issuance of specific licenses.

l a , ,: ' , ' . .

g. ,. g . j . z , : .:.. ~. y

. 1; . . ;:. .; - ..e.' . .. : ., . ... y

. ': .(, m.

(5) In the case of an application for a license to receive and possess byproduct material for the conduct of any activity which the Commission determines 'will significantly affect the quality of the environment, the Director of Nuclear Material Safety and Safeguards or his designee, before commencement of construction of the plant or facility in which the activity will be conducted, on the basis of information filed and evaluations made pursuant to subpart A of Part 51 of this chapter, has concluded, after weighing the environmental, economic, technical, and other benefits against environmental costs and considering available alternatives, that the action called for is the issuance of the proposed license, wir.h any appropriate

' ~

s

- 240 -

conditions to protect environmental values. Commencement of construction i prior to such conclusion shall be grounds for denial of a license.to receive-f l 'and possess byproduct material in such plant or facility. As used in this L

'.' paragraph the term " commencement of construction" means any clearing of land, i

excavation, or other substantial action that would adversely affect the '

environment of a site. The term does not mean site exploration..necessary froads for site exploration, borings to determine foundation conditions, or other preconstruction monitoring or testing to establish background informationrelatedtothesuitabilityofthesiteortheprotectionof environmental values.

~

' ~

PART"40/ DOM'E5TIULIdENSIN0FS'ONRC$'NdTERIhi. I - '# ' '

'N

17. In 5 40.31, paragraph (f) is revised to read:

5 40.31 Applications for specific licenses.

(f) An application for a license to possess and use source material for uranium milling, production of uranium hexafluoride, or for the conduct of any other activity which the Comission has determined pursuant to sub-part A of Part 51 of this chapter will significantly affect the quality of the environment shall be filed at least 9 months prior to commencement of construction of the plant or facility in which the activity will be conducted

- 241 -

end shall be: accompanied by.any Environmental Rep ~ ort required pursuant to-subpart.A.of Part 51 of this chapte.r.

18. In 5 40.32, paragraph (e) is revised to read: .

I 40.32 General requirements for issuance of specific licenses.

L I

(e) In the case of an application for a license to possess and use source and byproduct material for uranium milling, production of uranium hexafluoride, or for the conduct of any other activity which the Commission

'. . . . . . . . . .~u > . . . .

de'terinines Vi1f.s'isdifica$tly affect the' q6alfty of' thie ~environm'e nt, 'th'e- '

Director of Nuclear Material Safety and Safeguards or his designee, before commencement of construction of the plant or facility in which the activit; will be conducted, on the basis of information filed and evaluations made

. pursuant to subpart A of.Part 51 of this chapter, has concluded, after weighing the environmental, economic, technical and other benefits against environmental costs and considering available alternatives, that the action called for is the issuance of the proposed license, with any appropriate conditions to protect environmental values. Commencement of construction prior to such a conclusion shall be grounds for denial of a license to possess and use source and byproduct material in such plant or facility.

As used in this paragraph the term " commencement of construction" means any clearing of land, excavation, or other substantial action that would l adversely affect the env'ironment.of a site. The term does not mean site- -

- 242 -

- - - - - - - _ - - - _ - - _ - - - _-_J

exploration, necessary roads for site exploration, borings to determine foundation conditions, or.other preconstruction monitoring or testing to establish background information.related to the suitability of the site or the protection of environmental values.

PART 50 - DOMESTIC LICENSING OF PRODUCTION'AND UTILIZATION FACILITIES

19. In i 50.10, the'first paragraph of paragraph.(c), and para-graphs (e)(1), (e)(2), and (e)(3)(i) are revised to read as follows:

5 50.10 License required

w. . v - .

. . ,. . , . ; ; . ;, . c. ;,. . < . <

.,

• g : * ;i v ,: . ,

,- 'c (c) Notwithstanding the provisions of paragraph (b) of this section, and subject to paragraphs (d) and (e) of this section, no person shall effect commencement of construction of a production or utilization facility subject to the provisions of 5 51.20(b) of this chapter on'a site on which the facility is to be operated until a construction permit has been issued.

As used in this paragraph, the term " commencement of construction" means any clearing of land, excavation or other substantial action that would adversely affect the environment of a site, but does not mean:

(1)

(2)

(3)

. e...  : ..  : ._* - e. e * ~ -

- 243 -

~

(e)(1)The'DirectorofNuclearReactorRegulationmayauthorizean applicant for a construction permit for a utilization facility which is subject to i 51.20(b) of this chapter, and is of the type specified in il 50.21(b)(2) or (3) or 50.22 or is a testing facility to conduct the following activities: (i) Preparation of the site for construction'of the facility (including such activities as clearing, grading, construction of temporary access roads and borrow areas); (ii) installation of temporary construction support facilities (including such items as warehouse and shop facilities, utilities, concrete mixing plants, docking and unloading facili-

-ties,andconstructionsupportbuildings);(iii)excavationforfacility.

structures; (iv) construction of service facilities (including such faci-lities as roadways, paving, railroad spurs, fencing, exterior utility and

'iNjhM5g Isy'stenis', kra'nsmiss' i dn'iines', and'sanilary s3werage tre$tm2nti'f' c'111'-

a ties); and (v) the construction of structures, systems and components which do not prevent or mitigate the consequences of postulated accidents that could cause undue risk to the hef.th and safety of the public. No such authorization shall be granted unless the staff has completed a final envi-ronmental impact statement on the issuance of the construction permit as required by subpart A of Part 51 of this chapter.

(2) Such an authorization shall be granted only after the presiding officer in the proceeding on the construction permit application (i) has made all the findings required by 5% 51.104(b) and 51.105 of this chapter to be made prior to issuance of the construction permit for the facility, and (ii) has determined that, bcsed upon the available information and review to

- < date, there is.~ reasonable hs'surance thatthe' prop~osed site is.a suitable ~ ,-

- 244 -

location for a reactor of the general size and type proposed from the stand-

. point of radiological health and safety considerations under.the Act and rules and regulations promulgated by the Commission pursuant thereto.

(3)(1) The Director of Nuclear Reactor Regulation may authorize an applicant for a construction permit for a utilization facility which is

. subject.to 5 51.20(b) of this chapter, and is of the type specified in il 50.21(b)(2) or (3). or 50.22 or is a testing facility to conduct, in addition to the activities described in paragraph (e)(1) of this section, the installation.of structural foundations, including any necessary subsur-face preparation, for structures, systems and components which prevent or mitigate the consequences of postulated accidents that tculd cause undue

• fi k to# 'th's h'eal'th'!and saffEy' of t'hd'pbblic.'"- ' " ' '

20. In 5 50.30, paragraphs (c)(1)(iv), (c)(3)(iii) and (f) are revised to read as follows:

5 50.30 Filing of applications for licenses; cath or affirmation.

(c) Number of copies of application.

(1)

- - c. '

- 245 -

(iv) For an_ application for a license for a production or utili-zation facility: Forty-on'e (41) copies of any applicant's env.ironmental report required by subpart A of Part 51 of this chapter.

(3) -

(iii) Twenty (20) copies of any environmental report required by subpart A of Part 51 of this chapter. ,

(f) Environmental report. An application for a construction permit or an operating license for a nuclear power reactor, testing facility, fuel

'"i reprocessing [p[a6','o$'s0ch50th'er t 5VISic$onIor' utilization Ifadlity whose- -

construction or operation may be determined by the Conmission to have a significant impact on the environment shall be accompanied by any Environ-mental Report required pursuant to subpart A of Part 51 of this chapter.

21. A new section 50.36b is added to read as follows:

5 50.36b Environmental conditions.

Each license authorizing operation of a production or utilization facility which is of a type described in 9 50.21(b)(2) or (3) or i 50.22 or is a testing facility may include conditions to protect the environment to be set out in an attachment to the 1icense which is incorporated in and made

~

a part of the.. lice'se. n These. condition's will'be derived from information- .

contained in- the envir'onmental report and the supplement to the environmental

- 246 -

___ _______ _ _ __--__-__- _____-_ _ a

. .: : g report submitted pursuant to:il 51.50 and 51.53 of this chapter as analyzed and~ evaluated in the NRC record of decision, and will identify the 'obliga-E :tions of the' licensee'in the environmental area, including, as appropriate.

(1) requirements for reporting and-keeping records of environmental data, and (2) any conditions and monitoring requirements; for .the protection of the nonaquatic environment.

~22. In l' 50.40, paragraph (d) is revised to read' as follows:

^

l 50.40 Common standards. * * *

(d) ' Any applicable requirements of subpart A of Part 51 have been sa.tisfied.

23. In 6.50.54, a new paragrapei (z) is added.to read as follows:

5 50.54 Conditions of licenses.

f Whether stated therein or not, the following shall be deemed conditions in.every license. issued:

(z) The license shall be subject to all conditions deemed imposed as a matter of law by sections 401(a)(2) and 401(d) of the Federal Water Pollution Control Act, as amended (33 U.S.C.A. i 1341(a)(2) and (d).)

. . _ _ - _ _ ....c . - - _ 2 4-7~ - -

- e.

24. Appendix M. is amended by revising paragraphs 3, 5(g)'and 11 to i .

Lread as follows: ,

APPENDIX M Standardization of Design; M'nufacture a of Nuclear Power Reactors; ,

Construction-and Operation of Nuclear Power Reactors Manufactured Pursuant to Commission License.

3. An applicant for a manufacturing, license pursuant to this Appen-dix M shall submit with his application an environmental report as required of applicants for construction permits in accordance with subpart A of Part 51 of this chapter, provided, however, that such report shall be directed at the manufacture of the reactor (s) at the manufacturing site; and, in general terms, at the construction and operation of the reactor (s) at an hypothetical site or sites having characteristics that fall within the postulated site parameters. The related draft and final environmental impact statements prepared by the Commission's regalatory staff will be similarly directed.

5. ***

(g) On the basis of the evaluations and analyses of the environmental effects of the proposed action required by subpart A of Part 51 of this L - 248 -

.__..___...___.-._._m____________._m- _ _ _ _ _ _ _ _ _ _ - - - _ _ _ _ . _ _ _ _

i -

$hapter and paragraph 3.of this Appendix,.the action called for is the issuance'of the license.

NOTE: When an applicant has supplied n i'itially all of the technical information required to complete the' application, including the final design .

of the reactor (s), the findings required for the issuance of the license wili be appropriately modified to reflect that fact.

11. . An operating license for a nuclear power reactor (s) that has been manufactured under a Comission license issued pursuant to this Appendix M may be issued by the Commission pursuant to 9 50.57 and subpart A of Part 51

... . g . ..,v.... . .- .. a :s . . .. .

of this chapter 'except that the Co' mission shall ' find,' pursuant to >

l'50.57(a)(1), that construction of the reactor (s) has been substantially completed in conformity with both the manufacturing license and the construc-tion permit and the applications therefor, as amended, and the provisions of the Act, and the rules and regulations of the Comission. Notwithstanding the other provisions of this paragraph, no application for an operating license for a nuclear power reactor (s) that has been manufactured under a ,

Comission license issued pursuant to this Appendix M will be docketed until the application for an amendment to the relevant manufacturing license required by paragraph 7 has been docketed.

25. In Appendix N to Part 50, section 2, with its attendant fcctnote 2

- and section:3"are rev.ised;tocread as followst -

O

- 249 -

. APPENDIX N--STANDARDIZATION OF NUCLEAR POWER PLANT DESIGNS: ,

LICENSES TO CONSTRUCT AND OPERATE NUCLEAR POWER REACTORS OF-DUPLICATE DESIGN AT MULTIPLE SITES

2. -Applications for construction permif.s submitted pursuant to this Appendix N shall include the information required by 55 50.33, 50.33a, 50.34(a)and50.34a(a)and(b). The applicant shall also submit the infor-mation required by 9 51.50 of this chapter.

For the technical information required by 59 50.34(a)(1)-(5) and (8) and 50.34a(a) and (b), reference may be made to a single preliminary safety

~^ '

~

analy[fs 'of'Oe design 2_P sh'iAh,Iokiihe purpose's of i 50.34('a'i(1) includes one set of site parameters postulated for the design of the reactors, and an analysis and evaluation of the reactors in terms of such postulated site parameters. Such single preliminary safety analysis shall also include information pertaining to design features of the proposed reactors that affect plans for coping w:th emergencies in the operation of the reactors, and shall describe the quality assurance program with respect to aspects of ,

design, fabrication, procurement and construction that are common to all of the reactors. I l

1 2/ As used in this Appendix, the design of a nuclear power reactor included in a single referenced safety analysis report means the design of those structures, systems and components important to radiological health and safety.and the common defense and security.

3.

Applications for operating licenses submitted pursuant to.this Appendix N shall include. the information required by il 50.33, 50.34(b) and

- 250 -

(c),and50.34a(c). The applicarit shall also submit the information required

,by 5 51.53 of this chapter. For the technical information required by ll.50.34(b)(2)-(5) and 50.34a(c), reference may be made to a single final safety analysis of the design.

26. In Appendix 0 to Part 50, section 7 is revised to read as follows:

APPENDIX 0 - STANDARDIZATION OF DESIGN: STAFF REVIEW 0F STANDARD DESIGNS

7. The Commission may, on its own initiative or in response to a

'pelftfon for YulbIENing' ap' rov'e

, p "the~ design'in 'a [61e' ma ing ho'ce' edin'g anI " ' ' # ~

in that event, the approved design will be subjtut to challenge only as provided in 5 2.758 of this chapter. An environmental impact statement may be prepared for such a rule making action in accordance with il 51.20(b)(13) and 51.85 of this chapter. If an environmental impact statement is prepared, the Commission may require the petitioner for rule making to submit informa-tion to the Commission to aid the Comission in the preparation of the ,

environmental impact statement. -

27. In Appendix Q to Part 50, the introductory paragraph and sections 5 and 7 are revised to read as follows:

3 .

A ,

- 251 -

I APPENDIX Q - PRE-APPLICATION EARLY REVIEW OF SITE SUITABILITY.

1 ISSUES 1

This appendix sets out procedures for the filing, Staff review, and referral to the Advisory Committee on Reactor Safeguards of requests for. -

early review of one or more site suitability issues relating to the construc-tion and operation of certain utilization facilities separately from and prior to the submittal of applications for construction permits for the facilities. This appendix also sets out procedures for the preparation and issuance of Staff Site Reports and for their incorporation by reference in applications for the construction and operation of certain utilization facilities. The utilization facilities are those which are subject to

^J f 51.20(b)N 't$is 8hahter' and alfd 6'f"the k type'lipscifleh in'5 5 .21(b)(2) oh # * '

(3) or ! 50.22 or are testing facilities. This appendix does not apply to proceedings conducted pursuant to subpart F of Part 2 of this chapter.

5. Any Staff Site Report prepared and issued in accordance with this appendix may be incorporated by reference, as appropriate, in an application for a construction permit for a utilization facility which is subject to 5 51.20(b) of this chapter and is of the type specified in il 50.21(b)(2) or (3) or 50.22 of this chapter or is a testing facility. The conclusions of the Staff Site Report will be reexamined by the staff where five years or more have elapsed between the issuance of the Staff Site Report and its incorporation by reference in a construction permit application.

.c *- . ~.

• *c .

- 252 - ,.

I I

7. The staff will not conduct more than one review of site suita-bility issues with regard to a particular site prior to the full construc-tion permit review required by subpart A of Part 51 of this chapter. The  ;

staff may decline to prepare and issue a Staff Site Report in response to a submittal under this Appendix where it appears that. (a) in cases where no review of the relative merits of the submitted site and alternative sites under subpart A of Part 51 of this chapter is requested, there is a reason-able likelihood that further Staff review would identify one or more pre-ferable alternative sites and the Staff review of one or more site suita-bility issues would lead to an irrevers.ible and irretrievable commitment of resources prior to the submittal of the analysis of alternative sites in the Environmental Report that wculd prejudice the later review and decision on l'abernatise" sites t[ndekNdti$rt p F and/or' G 'df Part Tand'sub'part'A oNPart 51- '

of^this chapter; or (b) in cases where, in the judgment of the Staff, early review of any site suitability issue or issues would not be in the public interest, considering (1) the degree of likelihood that any early findings on those issues would retain their validity in later reviews, (2) the objections, if any, of cognizant state or local. government agencies to the conduct of an early review on those issues, and (3) the possible effect on the public interest of having an early, if not necessarily conclusive, resolution of those issues.

PART 61 - LICENSING REQUIREMENTS FOR LAND DISPOSAL OF RADI0 ACTIVE WASTE

28. Section 61.10 is revised to read as follows:

- 253 -

l .

L-1 .

'l 61.10 content of apt ' cation. -

L- ,

An application to receive from others, possess and dispose of wastes' l

containing or contaminated with source, byproduct or special nuclear l~

material by land disposal must co'nsist of general information, specific technical information, institutional information, and financial information

' as. set forth in 65 61.11 through 61.16. An environmental report prepared in accordance with subpart A of Part 51 of this chapter must accompany the application.

29. In % 61.20, paragraph (b) is revised to read as follows:

. c. , . .. .q.. .. .,

~

l 61.20' ' Filing'ani!' distribution 'of applita'tl.o'n ; ' ' '

(b). Another 85 copies of the application must be retained by the applicant for distribution in accordance with written instructions from the Director or designee.

30. Section 61.21 is revised to read as follows:

l

'l 61.21 Elimination of repetition.

In its application, the applicant may incorporate by reference information/ contained tin previous. applicatiofis; statements, 'or' reportsdiled wit.h' 'the Conshi'ssion if these references are^ clear'a'nd specific. '

- 254 -

U '

31. Section 61.22 is re~ vised to read as follows:

9 61.22 Updating of application.

(a) The application must be as complete as possible in the light of information that is available at the time of submittal.

L (b) The applicant shall supp'lement its application in a timely-manner,.

as. necessary, to permit the Commission to review, prior to issuance of.a

. license, any changes in the activities proposed to be carried out or new information regarding the proposed activities.

4

'~ '"

In'f"65.~2N[ par'agraph(II'isrevisedt'o read'as follo'wsii U '

32 .'

l

!.61.23 Standards for issuance of a license.

(1) The requirements of subpart A of Part 51 of this chapter have been met.

33. In 6 61.28, paragraph (a)(4) is redesignated as paragraph (b) and revised to read as follows and existing paragraph (b) is redesignated as paragraph (c):

- 255 -

l

< l 61.28' Contents of application for closure. ,

{ ,

I

~

f (a) * * * ..

• * *

• s-(b) An environmental report or a supplement to an environmental report

. prepared in accordance with subpart A of Part 51 of this chapter must accompany the' application.

~

(c) ***

PART 70 - DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

.- m .....:, p .,  :

. ,.: ., , p . ; : < . _;_,  ;., ,

yv 34 In % 70.21, paragraph (f) is revised to read as follows:

! 70.21 Filing.

(f) An application for a license to possess and use special nuclear ,

- material for processing and fuel fabrication, scrap recovery or conversion of ' uranium hexafluoride, or for the conduct of any nther activity which the Commission has determined pursuant to subpart A of Part 51 of this chapter will significantly affect the quality of the environment shall be filed at least 9 months prior to commencement of construction of the plant or facility l

4 - , ., -

s,. ,

~

. , ., . . ~

- 256 -

__-__-___-_____m__.m_-._._m. ---._____ta

in which the activ.ity will-be conducted; and shal1 be accompanied by an Environmental Report required under subpart A of Part 51 of this chapter.

35. In i 70.23, paragraph (')(7) a is revised to read as follows:

,5 70.23 '. Requirements for the approval of applications.

(a) + * *

~(7) Where the proposed activity is processing and. fuel fabrication,

' Yc' rap 7ecov'eh,'5berUIon' Sf utan um hexif'1'uorfdb[or'aIn/ bf.he[a'ckivit which the Commission determines will significantly affect the quality of the environment, the Director of Nuclear Material Safety and Safeguards or his designee, before commencement of construction of the plant or facility in which the activity will be conducted, on the basis of information filed and evaluations made pursuant to subpart A of Part 51 of this chapter, has con-cluded, after weighing the environmental, economic, technical, and other benefits against environmental costs and considering available alternatives, that the action called for is the issuance of the proposed license, with any appropriate conditions to protect environmental values. Commencement of construction prior to such conclusion shall be grounds for denial to possess and use special nuclear material in such plant or facility. As used in this paragraph the term "ccamencement of construction" means any clearing of land,

" excavation, or other substantial action ~that-would adversely affect the -

environment of a site. The term does .not mean sith explorat' ion, necessary

- 257 -

-roads.for site-e pioration, borings to determine foundation conditions, or other preconstruction monitoring or testing to establish background information related to the suitability of the site or the protection of environmental values.

.e PART.72 - LICENSING REQUIREMENTS FOR THE STORAGE OF SPENT FUEL IN AN INDEPENDENT SPENT FUEL STORAGE INSTALLATION

36. Section-72.20 is revised to read as follows:

'l 72.20 Environmental report.

. . . . 7 ... .

, .:.s c.;y ;,

. . w:,

.: a ,,,.se Each application for a license under this part shall be accompanied by an Environmental Recort which meets the requirements of subpart A of Part 51 of this chapter.

37. Section 72.31(b) is revised to read as follows:

5 72.31 Issuance of licenses.

(b) Grounds for denial of a license to store spent fuel in the proposed ISFSI may be commencement of construction prior to a conclusion or finding '

by the Director of the Office of Nuclear Material Safety and Safeguards or

~

- his designee, or after- k pub'lic hehring by. the presiding officer', Atomic - -

Safety and' Licensing Board,' Atomic' Safety- and Licensing Appeal Board, or the -

- 258 -

t I Comission acting as a' collegial' body; as appropriate, on the basis. of i

~

information filed and evaluations made pursuant to subpart A of Part 51 of this chapter, and after weighing the environmental, economic, technical and other benefits against environmental costs and considering available alter-natives, k. hat the action called for is the issuance of the proposed license with any appropriate conditions to protect environmental values.

38. Section 72.61(e) is revised to read as follows:

5 72.61 General considerations.

..,; .. . , - . .-. . r, . . s ._ ,. y , ,.

, e. .

.t .. .

(e) For each proposed site, pursuant to subpart A of Part 51 of this chapter, the potential for radiological and other environmental impacts on the region shall be evaluated with due consideration of the characteristics of the population, including its distribution, and of the regional environs, including its historical and esthetic values.

PART 110 - EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIALS

39. In 5 110.44, paragraph (d) is revised to read as'follows:

6 110.44 Issuance or denial of licenses.

.. . . 's . *. .

- 259 -

/(d)' The Comission will issue an import license if it determinGs that .

+

the proposed import would not be inimical- to the' comon defense and security or constitute an unreasonable risk to the public health and safety and that ,

any applicable requirements of subpart A of Part 51 of this chapter have

- been satisfied..

I' I

' Dated at Washington, D.C. this day of 1983.

For the U.'S. Nuclear Regulatory Comission.

Samuel J. Chilk Secretary of the Comission .

l

. -Q -: 6 . . ; . '_ e : %..: ..

?

..i ,... .

. , . .l : . ., ; , , , >p l

l 0

e, ,: .-  ? .: ,- .

• y . g

- 260 -

9

) .

• e l

1

\ .

1 1

l 1 ~

,~ ,

.  ; ~

. ~. .

.st, _

.

• L

^

< ENCLOSURE B

~

W y

• a O 4 6 I e b n ,

• a

• 1 .

- t

+ g.

e #

em-

• g

. h*

e. .

.r .- , _ *. -

./ .. s e

e 4

m 1

i e

14 8 9

j O n .,

e

• trg e

l I

l

=

k B

1. . i

_ _ _ . . _ . _ _ . . _ _ _ _ _ _ . . _ _ _ . _ ._ _ . . _ . _ _ _ _ _ . _ _ _ _ ___.________.____._____._____s

REGULATORY ANALYSIS

1. Problem and Objective.

To develop regulations which implement all the procedural provisions of section 102(2) of the National Environmental Policy Act of 1969, as amended (NEPA) and which, in accordance with the Commission's announced policy, take account of the regulations of the Council on Environmental Quality (CEQ) implementing the procedural provisions of NEPA voluntarily, subject to certain conditions. Part 51 of the Commission's regulations

-requires revision because it only implements those procedural provisions of NEPA which relate to environmental impact statements (sec. 102(2)(C)) and be'cause it is inconsistent with CEQ's regulations < implementing section 102(2) of NEPA.

Backoround.

The regulatic'ns of the Council on Environmental Quality implementing -

the procedural provisions of section 102(2) of NEPA were promulgated November 29, 1978 and became effective July 30, 1979. The direct and indirect effects of the revised procedures were fully considered during the CEQ rulemaking proceeding which led to promulgation of the final CEQ rule.

(See Notice of Rulemaking, 43 FR 55978-56007, November 29, 1978, daily edition. ) The CEQ regulations state (40 CFR Q 1507.1) that "[a),ll agencies of the Federal Government shall comply with these regulations. . . ." and

t

~

that ". . . each agency shall as necessary adopt procedures to supplement these regulations." (40 CFR 5 1507.3(s).) CEQ also stated that as of July 30', 1979, Federal agencies were bound by CEQ regulations even though they did not have supplementary implementing procedures in effect.

On May 31, 1979, the Commission informed the Council on Environmental Quality (see May 31, 1979 letter from Chairman Joseph M.' Hendrie, NRC, to

- Chairman Charles H. Warren, CEQ) that, consistent with the NRC's domestic

. licensing and related regulatory authority and subject to certain

~

conditions,theCommissionwouldundertaketodevelopre[ulationstotake account of CEQ's NEPA regulations voluntarily. On March 3, 1980, the NRC published a Federal'Reaister notice (45 FR 13739-13766) containing a proposed revision of 10 CFR Part 51 and related conforming amendments. The 50 day comment period expired May 2,1980. In that notice, the Commission stated that its existing environmental regulations would remain in effect until the Commission promulgated revised 10 CFR Part 51 in final form (45 FR 13739 at 13740, March 3, 1980.) For additional background, see, SECY-79-305, May 1, 1979, NRC Compliance with CEQ Regulations, and SECY-79-473, August 6, 1979, CEQ NEPA Regulations, Proposed Revision of 10 CFR Part 51 and Related Conforming Amendments.

f l

In preparing the text of revised Part 51 in final form, public comments were l

carefully considered. In addition to the preliminary views of the Council on Environmental Quality as set out in CEQ's letters of September 26, 1979 and October 29, 1979 which were published in Appendix B to the proposed J l

rule, the Commission received twenty-one letters of comment, expressing the views of interested Federal agencies, state and local governments, industry, including electric utilities, vendors and architect-engineers, professional organizations and individual members of the public. The letters contained more than 100 individual comments and, in some instances, represented the views of several commenters. The views of the commenters are fully set out

'in the individual letters of comment and in a subject matter compendium which has been placed with the letters in the Commission's Public Document Room at 1717 H Street, N.W., Washington, D.C., where they are available for inspection and copying. Detailed NRC responses to these comments are set ,

out in the compendium and in the preamble of the Federal Register notice

~

promulgating the final rule.

On October 19, 1982, following discussions with the Executive Legal Director and the submission by NRC staff of additional revisions to the preamble and text of the draft final rule,, the General Counsel of CEQ notified NRC that the Council had completed its review and determined that NRC's implementing i procedures " address all of the sections of the [CEQ] regulations required to be addressed by [40 CFR] Section 1507.3(b). . ." and ". . . will take effect and supplement the CEQ NEPA regulations after they are published in final form in the Federal Register."

2. Alternatives.

In light of the probleni and the stated objective, revision of Part 51 of the Commission's regulations is the only acceptable alternative.

~

3. Consequences and Implementation.

The changes made by this revision of the Commission's NEPA regulations l

. are primarily procedural. The Comission's substantive responsibilities under the National Environmental Policy Act of 1969, as amended, have not been changed. Consequently, the staff does not anticipate any difficulty with revised Part 51 from the standpoint of implementation. In general, the same persons who are required to submit environmental reports under the existing regulations will continue to be required to submit environmental reports under revised Part 51. The type and quantity of information which applicants must include in environmental reports required by revised Part 51 l

is similar to that which must be provided under the existing regulations.

Since revised Part 51 does not impose significant new reporting or record keeping requirements, the burden of those requirements is expected to remain about the same as it has in prior years. The NEPA procedures which the NRC staff will be expected to follow under revisec' Part 51 are similar in many respects to those which the staff now uses. Promulgation of revised Part 51 in final form should enable the staff to carry out NRC's NEPA responsibilities in a more effective and efficient manner. -

4. Decision Rationale.

There is no question but that the Commission should proceed to promulgate revised 10 CFR Part 51, and related conforming amendments (Enclosure A) in final form.

1

F e

. W 4

J .* -

e o' - *

-s .% -.... . . u.

a .

, #+

s . .-

e n e - s .,

J

- e ,

c' '

W b N. ,

e '

%. 9 Y .h e M g

. %F

+ ,

'1 j

• • j, O

. p ,.. . .

- ~

~' -

• e

~~ >

-:__) >s I , r -

9 s

1. 9 '

• h ,-

9 . 9.' ' p . g a'

.Q' , 'g *,e . *, * - - **

4 i

j, - ' - -%;' * * , ~ ^,

A.

-- r -,/.. = , ,  ;-

a

% I p- . .a , E an A

, . . , b g

N q 6

• 0 f

4 g

.4 I w

9 D r W"" O g -

p g, + fk

, ?  % <

p

• e% , -

, ,.y

+

4'h $'

i f 4 4 9 p, O bef'.

+ $

• m

1. , i

$...e e # -= * '

, , y F +

-d

+

h

,r

• w

/

ENCLOSURE C .

@ D.

4 ' O.

n s e 4

e

,P es D'M e

e d

a ma i

4 O

O

-4>

' ~ ~ ~ ' ~ ~ *= ~ ~ ~

.. . . . . . .,~. :. T w '* .

.:A l

LIST OF COMMENTERS

[ Copies of all numbered letters of comment are attached.] -

Commenters - Date of Comment Council on Environmental Letter to Executive Legal Quality Director, NRC, dated Septem-ber 26,1979.1/ -

Council on Environmental Letter to Executive Legal Quality Director, NRC, dated October 29, 1979.1/

1. Council on Environmental March 25, 1980 - Letter trans-Quali ty mitting Report of Environmental Law Institute entitled "NRC's Environmental Analysis of Nuclear Accidents: Is It Adequate?"

February 4,1980 and letter dated March 20,1980 from Chairman Speth,-

CEQ to Chairman Ahearne, NRC

2. Sargent &. Lundy, Engineers April 23, 1980 ,

3,&

18. Tennessee Valley Authority April 30, 1980 and May 19, 1980 4 Department of Energy, Clinch April 30, 1980 River Breeder Reactor Plant Project Office S. Washington Public Power Supply . April 29, 1980 System

6. State of Georgia, Department of May 1, 1980 Natural Resources

7. Yankee Atomic Electric Company May 1, 1980

8. State of New York, Depsrtment of May 2, 1980 Environment 1 ' Conservation 1

9. Consumers Power Company May 2, 1980 1/ Text publisneo in Appendix B, Notice of proposed rule making, 45 FR 13739 at 13765-13766, March 3, 1980.

4*

ENCLOSURE C -i- ,

1 f

L -- _.- _ - _ - _ - -__ _ _ _ _ _ _ _ _

_ .. . . , . . _. . _ . . ~

~

t i

Commente rs Date of Comment 1

10. Lowenstein, Newman, Reis, Axelrad May 2, 1980

& Toll on behalf of Boston Edison, Co.,

Combustion Engineering, Inc., ,

Florida Power & Light Co.,

Houston Lighting & Power Co., .

Northern Indiana Public-Service Co.,

Portland General Electr.ic Co.,

Puget Sound Power _ & Light Co.

11. Reilly, Like & Schneider on beha'1f May 1, 1980 .

of County of Suffolk, New York -

12. LeBoeuf, Lamb, Leiby & MacRae May 2,1980 as Counsel representing various utilities involved in the Commission's Licensing process.

13. Debevoise & Liberman May 7,1980 transmitting " Comments of Edison Electric Institute on Proposed NEPA Regulations."

14; United States Environmental May 5,1980 Protection Agency -

15. Canmittee on Public Archaeology April 7,1980 of the Society for American Archaeology

16. Carol Kasser Ford April 29,1980 Bensalem, Pennsylvania

17. Canmenwealth Edison April 30,1980

19. State of Illinois May 22,1980

20. Wyoming Mineral Corporation May 21, 1980

21. . State of California Department June 6,1980 of Health Services, Radiologic Health Section, Radioactive Materials Control Unit ENCLOSURE C -ii-

EXECUTIVE OFFICE OF THE PRESIDENT COUNCIL ON ENVIRON M ENT Ai, CU ALITY 722 JACKSON Pt,ACL N W.

WASHINGTON. c. C. 20006 .

F. arch 25, 1980 00:57 K:::7. !R -

- A, 30, MO, IO, jjg ygopustg ggg

~

e

(#5FR13739 h gg 1%

N 8

Sa=uel .T. Chilk, Secretary oc:KETED <2.

t;sse:

U.S. Nuclear Reculatory Co==1ssion 6-k'ashinston,. D.C. 20!!5 C, 1 g , [i grr.. ;{ tht StCftYig g/

Attn: Docketine and - - Eranch 9 Sust & I'# 0*

Dear Secretary Chilk:

\

V 2h 'I y

As you know. the Cour.cil recu , rep it to the Commission entitled "NRC's Envirer.s t4 calvsis of Nuclear Accidents: Is it Adecuate?" and a letter fro = Chai:=an Soeth to Chair =an Ahearne dated F. arch 20, 1980, concerning the Com=1ssion's analysis of nuclear accidents under the National Environ = ental Policy Act. I sub=1t the enciesed copies of the letter and report for consideration as a Council con =ent en the Coc=ission's proposed regulations for the i=plementation of NEPA published en F. arch 3. 1980 (45 Fed. Reg. 13739).

Thank you for your cooperation.

i

' Sine,erely , , _

o- -

. Q . *..<. . _ , .s s John F. Shea, III Counsel 1

Enclosures

\

1

• • 9 . 9

s , i EXECUTIVE OFFICE OF THE PRESIDENT COUNCIL CN ENVIRON M ENrAL QU ALfTY m ancxsom tver = w f was.uwsto= c c :ces a

March 20, 1980 The Honerable Jehn Ahearne Chairman 1 Nuc3 ear Regulatery Co==dssion Washingten. D.C. 20535

Dear Chair:

an Ahearne: I 1

Section 20* (3) cf the Natienal Inviron= ental policy Act (NI.?A) directs the j Council on Environmental Quality "to reviev and appraise the various progra=s anc activities of the Tederal Gover==ent . . . for the purpose of deter =ining the extent to which such progra=s and activities are contributing to the achieve =ent of the policy (of NI?A] . . . ." Last year, as part of the Council's overall effort te meet this responsibility, the Council initiated a study cf the Nuclear Regulatory Cen=1ssien's regulations and policy en the environ = ental analysis of possible nuclear accidents under NIFA. This letter contains the conclusions of our study. We were assisted in this review by the Inviron= ental Law Institute, which has prepared for us a report entitled "NRC's Environ = ental Analysis of Nuclear Accidents: Is It Adequate?", which I a= providing to the Co=:ission with this letter. The Council believes the report constitutes an accurate and i=portant assessment of the NRC's regulattens and policy on the analysis of nuclear accidents in enviren= ental i= pact statements. .

The results of our review of i= pact statements prepared by the SIC fer nuclear pouer reactors are very disturbing. The discussien in these state =ents of pctential accidents and their environ = ental i= pacts was found to be largely perfunctory, re=arkably standardized, ard uninfer=ative to the public. Despite  ;

the bread diversity of size, design, and locatien of the nuclear reacters '

licensed by the Co==ission over the years, virtually every IIS contains essentially identical, "boilerplate" language written in an unvarying for:at.

The typical IIS does not consider er analy:e the possibility of a =ajer accident even though it is these " Class 9" accidents which have the potential for greatest environ = ental har= and which have led to the greatest public cencern. 1 More:ver, for those accidents which are typically discussed in an EIS, the j

' potential i= pacts on hu=an health and the enviren=ent are presented in a j cursery and inadequate =anner with little attention to public understanding. 1 l

Each EIS relies on the NRC accident analysis policy, which has re= air ed essentially unchanged and in interi= form since 1971, asserting that "cerrect i manufacture, design, operation and quality assurance" vill provide "a high I degree of protectien" against the occurrence ef postulated accidents. A 11=ited range of accidents with varying c nsequences are discussed. Esti=ates

{

of =ateria14 released fr== such accidents, or " release fractiens," are I provided. Hevever, based on the conclusi:n that it is highly i:;r:bable that serious accidents vill occur, the policy prohibits the discussien of certain severe accidents, the Class 9 events.

I

l 2

The accident analysis in the EIS for the Three Mile Island Nuclear Station, Units 1 and 2 (TMI), exe=plifies the deficiencies of such a narrev approach to =ajor accidents. Net a single scenarie for a Class 9 accident is pro-vided in the TMI IIS, yet as attested to by Cc==ission staff, a Class 9 accident occurred at IM: en March 26, 1979. The reported releases of radio-activity fre: this accident have been Ice, but the TMI E!$ failed to consider the range of possibilities suggested by the accident.

Typically, public ce==ents, including those of other federal agencies, en the inadequacies of accider.t analyses in Draft EI5s receive NRC respenses which s1= ply reiterate the 1971 "interi=" accident policy. For exa=ple, the NXC respense te a Depart =ent of Interior ce==ent en the TMI EIS was as follows:

"The Int erior Depart =ent suggests that a specific study of the consequences of a Class 9 accident at Three Mile Island, Unic No. 2 upon the Susquehanna River should be =ade. The [NRC]

~

staff disagrees with this view. A general discussion of Class 9 accidents has been given in the Reactor Safety Study . . . .

The staff believes, in view of the re=cte possibility of occur-rence et a Class 9 event, that the enviren= ental risk cf such an event i= acceptably lov, and that generic discussien of these events are adequate." .

The past failure to discuss the consequences of the full range of potential accidents and their effects under=ines the basic purposes of the National Enviren= ental Felicy Act to infor= the public and other agencies fully of the ;etential consequences of federal preposals and to previde a basis for infer =ed decisions. Over the years the public and federal aFendies have repeatedly requested the AEC and NRC to consider the severe consequences of nuclear accidents in the centext of the Cc==1ssion's envirendental licensing reviews. These requests for full diselesure have been consistently rejected during this period, this Cc=:issien's Septe=ber 14, 1979, decisien in offshere Fever Svste s being a conspicuous and encouraging exceptien. Given the increasing public concern regarding nuclear safety and the'need to i=preve public confidence in nuclear regulation, we believe the ta=e is ripe for the Cc=:issien to depart sharply frc= the inherited policy in favor of a new approach stressinF full and candid discussien of accident risks. .

The Council's assess =ent of the Co==ission's statutcry obligations to discuss fully the enviren= ental effects of nuclear accidents, including Class 9 accidents, is set forth in the attach =ent to this letter. Based en our review, we do net believe that the Comnissien's prior legal justifiestien for severely 11=iting the discussion of nuclear accidents and their consequences in E!5s is any lenger sustainable, assuming it ever vas.

Tor both legal and colicy reasens, we believe that the Cc==1ssion =ust =cve quickly to revise its pelicy en accident analysis in II5s. A ce=pletely new policy, preferably involving a rejection of the existing accident classificatica syste=, should be adopted. Ter these reasons, we ce==end the Co==ission for the i=portant steps it has recently taken tevard revising its policy in this

. .g a area, especially your decision in offshore Pover Systems to hold a public rule =aking and to reexa:ine 10tC policy on the -inclusion of major accidents '

~

L in E15s. We are also pleased to note that in the preamble to its proposed- -

NEPA procedures the Commissien has indicated that "this reconsideration of-pelicy.nay result in adeption of-different practices with regard to ' worst case' accidents at nuclear power reactors." 45 Ted. Reg. 13739.-13742 (March 3,1950) .

Ve believe that the new policy should be based on the sensible approach of

-discussing the environ = ental and other consequences of. the full range cf accidents that might occur at nuclear reactors, including' accidents now classified as Class 9. This should include core melt events. In additien,,

E15s ' shou 1( present the best estimates of the likelihood of such events.

In order to comply with the disclosure requirements of NI?A the NRC should include in the analyses the likely ranFe of environmental and other conse-

• quences from severe and other accidents. In describing reacter accidents and. their pessible effects in i= pact statements, the NRC should follow closely the relevant provisions of the Council's NEPA regulations, includinF .

the following provision on "verst case" analysis:

"If . . . the information relevant to adverse impacts is i=pertant to the decision and the neans to obtain it are not.known (e.g., the means for obtaining it are beyond.

the state of the art), the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the. action to oroceed in the face of uncertainty. If the agency proceeds, it shall include a verst case analysis and an indication of the probabili-ty or improbability of its occurrence." 40 C.F.R. $ l'502.22(b)(1979).

The enclosed report suggests eight possible accident scenarios, with certain caveats, for consideration by the Commission for use in its -EISs. They have ,

been selected because they " span the range of likely consequences" of severe nuclear events. We believe that the use of such analyses ceuld i= prove the Co=nission's siting, design, licensing and emergency planning decisions.

We also urge the Co==ission tc broaden Ats range of variables (e.g., radia-tion pathways) in determining actifrat i= pacts, and expand its discussions in EI5s of the i= pacts of nuclear accidents on hu=an health, the natural environment and local economies. Site specific treatment of data should be substituted for "boilerplate" assessment of accident initiating events and potential i= pacts, and EISs should be comprehensible to non-technical members of the public.

Tinally. the Co= mission should pursue the approach described here vigoreusly in order to fulfill to the fullest extent possible the requirements of NEPA and the legitimate public interest in full disclosure of nuclear plant hazards.

The Com=$ssion at a mini =um should apply the appreach described here to pro-caedings where impact statements have not yet been issued. We also encourage the Commission to consider preparing supplemental accident analyses for plants currently licensed for operation, particularly for those located near high population centers and those with unique features suggesting higher risk.

.1

- I would be pleased to discuss the Council.'s- views with you at any time.

Please let me know hev ve can be of assistance to you in moving forvard in.this important area..

Sincerely, GUS S?ETE

' Chairman Inclosure ec: Me: bars of the Cc::=ission .

,b W

n 9

4 I

4 e

i l

O emme em

4 ,

4 t

~

ATTACENINT This attachment analyzes the adequacy under the existing law of the present AEC/NRC policy on discussing nuclear accident impacts in environmental impact stacaments.

NEPA's Mandate For Tu11' Disclosure Under Sectie 102 of NE?A ConFress has directed that

". . . to the fullest extent possible:

~

1) . . .

2) all agencies of the Tederal r.overnment shall -

(C) Include in every recommendation or report on. pro-posals for legislation and other major Federal actions significantly affectinF the quality of the -

human environment, a detailed statement by the responsible official on -

(1) The environmental impact of the proposed action As recegni:ed by the United States Court of Appeals for the District of Colu=hia Circuit, "the sweep of UE?A is extraordinarily broad, compel 11nF consideration of any and all types of environmental i= pact of federal action." Calvert C11ffs' Coordinating Co=m. Inc. v. Ateeic Enerrv Concission 449 F.2d 1109, 1122 (D.C. Cir. 1971), cert.-denied 404 U.S.

942 (1972).

Thus, NE?A requires Tederal agencies to assess more than simply the probable i= pacts of their proposed actions. Environmental i= pac statements required by Section 102(2)(C) must, at a mini =u=, contain adequate information to alert the public and Congress "to all known essible environ = ental consequences of' proposed agency actien.* Enviren-ental Defe se Tund v. Cerps of Ensineers, 325-T. Supp. 749, 759:(E.D. ,

Ark 1971) (e:phasis in the original).* Indeed, one of NEPA's prominent

• )

See also Sierra Club v. Treehlke, 486 T.2d 946, 951 (7th Cir., i 1973); Ean1v v. Kleindienst, 471 T.2d 823, 836 (2d Cir.1972),

cert. denied 412 U.S. 9081(1973) (agency must consider the increased )

j risk of crime that might result from operation of correctional

)

center and the 1= pacts from "the possible existence of a drug-

{

maintenance progra=."); Appalachian Mountain Club v. ,Erinerar. 394 {

T. Supp. 105, 114 (D. N.H. 1975): NRDc v. crant. 355 T. Supp. 280, 286 (E.D. No. Car. 1973): Breeks v. Volpe, 350 T. Eupp. 269, 276 (W.D. Wash. 1972) sff'd 487 T.2d 1344 (9th Cir. ,1973) Censervatten Council of No. Carolina v. Freehlke, 340 T. Supp. 222, 225 (M.D.

No. Car. 1972); 1:aak Walten Learue of Anerica v. .cc hlesineer, 337 T. Supp. 287, 294 at n. 26 (D.D.C. 1971); accord, Menree Countv

_ Council. Inc. v. Velee 472 T.2d 693, 697 (2d Cir.1972).

1

_ _ _ . __ _ _ . . _ _ . _ . . - . _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ . _ ..___._____________m___.________

- .- -  ;-- --- .. a.;= ; .

• . features fis the requirement that an agency " acknowledge and consider

' responsible scientific opinion concerning possible adverse environmental affects'" even where such opinion "is contrary to the official agency position . . .

Comnittee for Nuclear Responsibility. Inc. v. Seaberg, 149 U.S. App.-D.C.- 380, 463 T.2d 783, 787 (1971).* Natural Resources Defense Council v. U.S. ' Nuclear Rerulaterv Cemeission, 547 T.2d 633, 645

.(D.C. Cir., 1976), reversed on other Freunds sub nom. Vermont Yankee Nuclear Cerperation v. Natural Resources Defense Council 435 U.S. 519 (197E). As indicated by the Second Circuit. .the study and " considers -

tien of special hazards to the public health,: safety and welfare are vital.co any impact statement, and numerous statements have been over-turned.for their failure to address these questions." Natural Resources Defense Council v. U.S. Nuclear Rerulatorv Commission, 539 T.2d 824, 843 (2nd Cir., 1976), petition for rehearing denied, T.2d , 9-ERC 1414, vacated and remanded for consideration of mootness sub nom.

A311ed General Nuclear' Services v. Natural Resources Defense Council.

434 U.S. 1030 (1977) (emphasis in original). '

The Council's interpretation of this mandate under NEPA is codified in '

its regulations, which are binding on all federal agencies. E.O. 11991 (P.ay 24, 1977); 40 C.T.R. I 1500.3. The regulations contain a special provision for situations in which infor=ation is inco=plete or unavailable:

"When an agency is evaluating significant adverse effects on the hu=an environment in an environmental impact statement and there are gaps in relevant information er scientific uncertainty, the 3 agency shall always make clear that such information is' lacking or

hat uncertainty exists. .

(a) If the f.nformation relevant - to adverse impacts is essential to a reasoned choice among alternatives and is not known and the overall costs of obtaining it are not exorbitant,

^ the agency shall include the information in the environ = ental impact statement.

' (b) If .

(1) the information relevant to adverse i= pacts is essential to a' reasoned choice among alternatives and is not known and the overall costs of obtaining it are exorbitant or (2) the infor=ation relevant to adverse impacts is important to the decision and the means to obtain it I

are not known (e.g., means for obtaining it are

• beyond the state of the art), the agency shall weigh the need for the action against'the risk and severity of possible adverse impacts were the action to i

' proceed in the face of uncertainty. If the atency proceeds, it shall include a worst case analysis and an indication of the probability or improbability of its occurrence." 40 C.T.R. $ 1502.22 (IP79).

O

.__.m____________ _ _ _ _ _ . _ _ _ _ . _ _ . _ _ _ _w

4

• The Council was created by NI?A and charged with the responsibility to review and appraise programs and adtivities of the Tederal Gevernment and to make appropriate rece=cendatiens in light of the policy set forth under the Act. An d ru s v . _S_i e rra Cl ub , ____ U . S . 47 U.S.L.V. 4676,.

L 4679 (June II, 1979). Accordingly, the Supreme Court has ruled that the Council's interpretations of NEPA are " entitled to substantial deference."

Id.

Thus, under. NI?A, interpretative' cases, and the Council's interpretative NI?A regulations, one of the NRC's most important obligations is to present "to the fullest extent possible" (f 102) the spectru= ef nuclear accidents that may result from NRC actions and the details of their potential consequences for .he human environment. The NRC's responsi-b111 ties under the Act are further discussed belev.

The Ce==issien's poliev en Class-9 Accidents and the Need Ter Revisien The longstanding policy of the AIC and the NRC in the NI?A phase of its licensing preceeding has been not to consider ' Class 9 accidents",

meaning these events with severe ecusequences that have low probability of occurrence. The Com=1ssien's existing regulattens regarding the centent of IISs require staff to discuss only "the probable impact of the proposed action en the environment." 10 C.T.R. 5 6 51.23(a) and

51. 20(a) (1) (1979) (e=;hasis added). Based en what staff perceives to be

" low risk", the Ce==1ssien does not require Class 9 accidents to be discussed in either applicants' Invironnental Reports er staff's IISs.

• Such severe accidents are required to be discussed, however, in applicants' safety analysis reports. 10 C.T.R. 50.34 (1979).

• This policy was first prepounded in an Ato=le Energy Com=1ssd en directive to applicants, dated September 1,1971 (Appendix C to the enciesed re port.) . The directive explained hev the types of accidents included in applicants' safety analysis reports. vere to be handled in applicants' environmental reports. Subsequently, the Com:1ssien made the policy applicable to staff IISs as well. 36 Ted. Reg. 22851, n. 1. Dece=ber 1, 1971. The Ce==1ssion believed that in the "censideratien of the enviren-

= ental risks due to postulated accidents, the probabilities of their occurrence and their consequences must both be taken into account. It la not practicable to censider all possible accidents . . . ." The directive cencluded that "The highly conservative assu=ptions and calculations legitimately used for safety evaluations are not suitable fer envire== ental risk evaluatien, because the probability of occurrence is se low fer the unfavorable ec=binattens of circu= stances ussd. For this reasen, Class B events are to be evaluated realistically, and vill have consequences predicted in this way that are far less severe than these given for the same events in Safety Analysis Feports, using conservative evaluations.

l I

i

oc. 3

+

The occurrences in Class 9 involve sequences of postulated successive-

.. failures.more severe'than those postulated.for the design-basis for protection? systems and engineered safety features. Their consequences could be: severe. .However, the probability of.their occurrence is.

so smail that their environment] . risk is extremely-lov . .. ."

Based on anticipated efforts to assure quality of design, manufacture, and operation the directive concluded that .

"petential accidents in.this class are, and vill re ain sufficient 1v remote in probability that the environmental; risk.is extremely lov.

• For these reasons, it is not' necessary to discuss the: in Applicants '

Environmental. Reports."

The enclosed report demonstrates how the existing NRC policy on Class 9 accidents originated from decisions hastily made in the early'1970s-without credible scientific support. The original pclicy was drafted by AEC-staff for the Coc=1ssion in i= mediate response to the decision in

Calvert Cliffs' Coordinating Com=ittee. Inc. v. AIC, supra. The staff's probabilities for each class of accidents discussed in the directive were not based on the then-existing accident risk assessment studies prepared by the AIC.* Even if those studies had been utilized by AEC

~

staff, the conclusions in the directive regarding the_ consideration of Class 9.svents could not have,been based on those documents since they failed to estimate probabilities of large nuclear accidents. As a result, the record in support of the policy on accident analysis was virtually;non-existent.

.More recently,'another atte=pt was made to quantify accident probabili-ties for reactors -- the Reactor Safety Study, WASH-1400 (October, 1975). However, that . repert was criticize'd in a. reevaluation by H.V.

La.-is' Risk Assessment Review Group initiated by the NRC. The Lewis Group concluded. that WASH-1400 did not adequately indicate the full extent of the consequences of reaeter accidents;-that it failed to emphasize sufficiently the uncertainties involved in the calculation of j probability;.and that the WASH-1400 bounds of error en the estimates of l accident sequence probabilities were greatly underestimated. In additien  !

to these uncertainties critical gaps are present in the NRC's information pertaining to nuclear accident analysis. Recently H.W. Lewis, the leader of the Risk Assessment Reviev Group, noted that EASE-1400 had at .

least' identified for the Com=1ssion the relative i=portance of various ac'eident types. Unfortunately, this'had not resulted in the appropriate ic11ev-up research effort. Quoting from his Group's report, Lewis stated

"' Tor exa=ple, VASH-1400 concluded that transients, small LOCA

[ loss-of-coolant accidents) and human errors are i=portant con-tributors to overall risk, yet their study is n,et adequately reflected in the priorities of either the research or regulatory groups.' These three items - transients, small less-of-coolant accidents and human errors - were the central features of the Three Mile Island accident." H.V. Lewis, "The Safety of 71ssion Reactors",

Scientific A=erican (March 1980), p. 64.

WASH-740 (March, 1957) was the first study carried out by the AEC to assess nuclear power plant risk. An update of WASE-740 was issued in 1965.

4 Technical and legal weaknesses in the pelley's foundatien, discussed more fully in the ELI report, veuld of the:selves require a change in the NRC's stand en accident analysis. Revever, new deve2cpeents cake the need for a pelicy revisten even more ec=pelling. Significantly, the NRC staff found that:

"the accident at Three Mile Island Unit 2 involved a sequence of successive f ai2ures (i.e. , small-break less-ef-ecelant accident and failure of the ace:gency cere coeling syster) nere severe than these pestu2ated for the design basis of the plant. Therefore, ve conclude that the accident at Three M12e Island ves a Class 9 event." Matter of Public Service Elec;ric and Gas Co. (Sale:

Nuclear Generating Station, Unit 1), Docket 50-272, 'NP.C staff respense to questien no. 4 ef the Atetic Safety and Licensing Beard" at 3 (e:phasis added).

The President's further Cc==1ssien en the accident at Three Mile Is2and cade the finding that

". . . theprobabilityofoccurre$ceofanaccident like that at Three File Island was high enough, based en L'ASE 1400, that since there had been more than 400 reacter years of nuclear pcver plant eparatien in the United States, such an accident sheuld have been ernected durine that ceriod." Report of the President's Cc==issien en the Accident at Three M12e Is2and 32 (1979) (e:phasis addedi.

Clearly the realities cf Three Mile Is2and warrant a pre:pt reext inatten cf the Cerrissien's narrev policy en accident analysis.

In the Ce=:ission's Meterandu: and Order dated .4epte=ber 14.,1979 (In the Mat ter ef of fshere Fever Svsters, Docket No. STN 50-437), it determined that the potenttal censecuences of a Class 9 accident at a

f2cating nue2 ear pever plan (TNP) sheu2d be censidered in the centext cf the Cc=rissien's NI?A review of the application to depley vN?s. Phile the Cc=rissien did not express any definitive views en the need fer the envirennenta2 consideration of Class 9 accidents at land-based reaeters, it did declare its cencern about that questics and its intentien to reexatir.e Cc==ission policy and to eceplete the rule:aking begun in 1971. Id. at 9. In se doing, the Ce==issien held that it was net bound by

7. the policy en accident analysis fer=ulated under the AIC. Id. at 4, The Cc= issien ruled that "we are free te decide en the basis of the facts knevn to us today whether the Licensing Board should be alleved to censider the enviren= ental consequences of a Class 9 accident at the TNps which O!! shore preposes to =anufacture." Id. at 7. The Cc= issien i recognized that NRC staff had already prepared a repert en the enviren-mental consequences of a C2 ass 9 accident at an TN?.

• The Cem=1ssion's fer=ulation of the issue is mest signific ant. It deter:1 mad that the questien before it was whether it wished "to crder the Licensing 3 card to blind itself" to the infer:atien in the staff repert.

i Id. at 7.

The Cc==1sste.t ceneluded that under NI?A's full i

. 1 l

. - _ = _ _ . . . - . _

1

.o

. ' '~ ~ disclosure philesephy_the Cc==issica "should not refuse to consider in this case _the potential relevance of the NRC [ staff repert] to the censideratic= of Offshore's application . . . ." 'Id. at 8. Earlier, the' Appeal Beard had_ acknowledged

"that ,the NI?A randate to study the envirenzental consequences of major federal actic=s to the fullest extent possible supported a policy of deciding open questions in favor of considering matters of potential environ = ental significance." Id. at 6, citing 8 NRC-194, 220-21 (1978).

t Just as' the Ce==1ssten recernized that it could not blind its Licensing Board te the availa'ble infor=ation on Clast 9 accidenta at TNps. neither should the Co==issien blind itself to similar infor:ation?on the conse-

! quences of Class 9 accidents at land-based nuclear reactors. The potential consequences of a Class 9 accident at either type of facility weuld be of such a magnitude that they must be given consideration under NEPA.

• In view of the questionable basis for the NRC's Class 9 policy and the streng policy o,f the Atc=1c Energy Act that the NRC act'to protect fully public health and safety, revisien of the Cc==1ssien's policy and regulations ought to be undertaken censistent with the provisiens of the' Ate =ic Energy Act of 1954, as amended. Under the Act, Congress specifi-cally deter =ined that the utilization of special nuclear =aterial "cust be regulated in the nattenal interest and in order to provide for the cen=en defense and to protect the health and safety of the public." 42 4 - 'U.S.C. 5 2012(d). Likewise, utilization facilities, such as nuclear

reacters, have been found by Congress to require regulation 'to protect the health and safety of the public." 42 U.S.C. I 2012(a). Vith respect to license applications, the Act provides in part that the Co==ission require the develep=ent of such infor=ation as is necessary "t enable it to find that the utilization or production of special nuclear =aterial vill be in accord vtthL the ce=n== def ense and security and v111 provide adequate protection to the health and safety of the public . . . . " 42 U.S.C. I 2232(a).

The C ==ission is further authorized to require new infor:atien at any time during the life of an operating license "to deter =ine whether a license sheuld be =odified or revoked.' Id.

These provisions arei'of course, supplemented by- NEPA's require =ents.

Calvert Clif fs' Coordinating Cec =ittee v. AIC, supra at 449 T.2d 1112; 42 U.S.C. 5 4335. A=eng other requirements NEPA provides that "it is the continu'ing responsibility of the Federal Fevernment to use all practical means, consistent with other essential censidera-tiens of natienal policy, to approve and coordinata federal plans, furetiens, progra=s, and rescur:es to the end that the Natien may -

e 9

v

-_.___m_ - . _ _ _ _ _ , _ _ _ _ . _ _ - ___-___ -- _m

n- - _ _ - . _ --

o

. +

(3) straf.n the videst range'of beneficial uses of the environment withcut degradation, risk to health er safetv, er ether

~

undesirable and unintended connetuences.' 42 U.S.C. 5 4331 (b) (3) (e=phasis added).

The NRC is-under a legal ob11gatien to exercise its statutory powers in furtherance of these and the other provisions of the Act. Publie Service Ce. of New Ha : skire v. Kuelear Regulaterv Cer:-issier, 582 7.2d 77 (1st Cir. 1978), cert. denied 4 39 U.S.1046. NEPA's requirement that federal agencies strive te attain the videst range cf beneficial uses of the er.virennen vithout risk tc, health or safety or other undesirable or ur. intended consequences (i 101(b).(3)) is equally as ripreus a standard as that created under the Atomic Energy Act.

4 0

e e 0

y

~ ,. \

,7.,

a.i,, a .. i, , ,, ..

f ' .. '

./ /o Cyf72./3~137 #9

, SARozxT & Irxnr ENGINEERS  ;

roussero sv rarpspica sanotwt.cssi

[h' 55 CAST MON ACC STRCCT .

CMtCAOC,ILLINots 906C3

1. 5 O MIS TELen ooet -

31229920C0 sie-see-asao cacLE Acomess - san 6 wee-cmcaso April 22, 1980 CCC'Z5 M.CR w

m..__ _asM .2 dd.@ _ ,

h Ek M M Secretary of the Coc: mission i

Docketing and Service Section U. S. Nuclear Regulatory Commission -

Washington, D. C. 20555

Dear Sir:

?

Enclosed are our cem:nents on the proposed rule change to 10CFR51 to implement NEPA as noticed in the March 3, 1980 Federal Register. .

We. appreciate having been given the opportunity to comment.'

Yours very truly,

/

• i

, J. S. Loomis, Head Nuclear Safeguards &

Licensing Division JSL:MEJ:ep Enclosure Copies: cp &, .. ,, ...

R. F. Janecek (2/1) p 7 .,. .'4*.,,,,g;i,^('h#.

G. P. Wagner (1/1) -

.3 NSLD File: 13-4 (1/1) N upers

.I... 7 g i .

g. ,

- '~~

. MAY 5 $80 > t c!!!:s cf ttsser:ey 'I <"e

{

-MdE:e g

. ....i

, , . . , .. . , a. 5

-Q ; gc,g ~ ~ '

. .. .; . nn!

t.ye.e s. m A r EIGIS L d

1

u . , , . . . . . - . ..

~

i- .

' EN SIN E E R O j -w .. i smces- ..

~

.b Sarcent-& Lundy Comments'en NRC Rule Chances to Implement L

o ,

NEPA,'10CFR Part 51

1. . When read together, Sectiono 51.27 (a) (3) , 51.28,'51.40, ,

51.41, and-51.45 of the proposed regulations clearly indicate:that the preparation and submittal of the_  !

environmental report, including consultations between the utility and the NRC, occur before the NRC holds the l l

n scoping-meeting. As stated in the Council on Environmental Quality's regulations (40 CFR 1500), the purpose of the scoping meeting is to reduce unnecessary work andEimprove the EIS process by' identifying the important.. issues which require'a detailed analysis and the minor issues which require minimal analysis. The scoping process is not .

4 intended to merely reduce the agency's effort, rather its purpose is to eliminate unnecessary activity throughout the .

_; process. By requiring the utility to prepare the IR before the scoping meeting is_ held, the proposed NRC regulations defeat this purpose because the utility must operate withcut  ;

sufficient guidance and the possibility of unnecessary effort in one area or insufficient effort in another exists. .

As ' written, the' proposed regulations place an unnecessary burden of uncertainty on the utility. The proposed regulations should. be modified to allow the scoping meeting to be held earlier in the EIS process, i.e. , before the IR is prepared. ,

2. Read together, Sections 51.104 (a) and - 51.104 (b) ,seem to significantly limit the discussion of environmental issues at NRC held public hearings.. Section (a) states that the draft-EIS will be available at Ivast fifteen days before any relevant hearing. .However, the NRC staff will not present its opinion on environmental issues at any hearing unless the final EIS has been issued. Section (b) states that the final IIS will be introduced as evidence at the

- i hearing for the permit. These sections imply that there may be more than one hearing on environmental matters but  ;

that the NRC position will only be stated at the licensing hearing. Also, there is no guaranty that the final IIS will be available for review prior to. the day of the licensing  !

hearing. As written, the proposed regulations could lead to unnecessary litigation and licensing delays. The proposed l regulations should be modified to clarify the roles of the draft IIS, final IIS, and NRC staff in the hearing process. l 1

3. As written, Section 51.104 (a) is confusing on one point. --

l The last sentence refers to a fifteen (15) day period for J anf party to present its case. However p.it is not clear when the period begins. This type of regulatory ambiguity can lead to unnecessary litigation. The proposed regulations should be modified to specify the starting point for this period. -

i

TENNESSEE VALLEY AUTHORITY * '//0 cHa:TANooos. rENNEtsEE 37401 [( [3

• / _

400 Chest =ut Street Tower II g April 30, 1980 See Comment 18.

• W Secretary of the Co= mission a m f.f=Rhb .

U.S. Nuclear Regulatory Co==ission (.45 FR.1513 Washington, DC 20555 -

Attention: Docketing and Service Branch .

Dear Sir:

. In accordance with the March 3, 1980, Federal Reeister notice (45 TR 13739-13766), the Tennessee Valley Authority (TVA)' is currently" reviewing *

, the proposed amendments to 10 CFR Parts 2, 30 40, 50, 51, 70, and 110,

" Environ = ental Protection Regulations for Denestic Licensing and Related ,

Regulatory Functions and Related Confor=ing Amend =ents."

We will be unable to complete our review by' the May 2,1980, ce=ent period deadline established by the Comission. TVA vill sub=it any suggested

, ce=ents on the proposed a=endments on or before May 16, 1980.

Very truly yours, TENNESSEE VALLEY AUTHORITY a t bI h L. M. Mills, Managey sf4y

~

Naclear Regulation and Safety 9 ) I 11-9. p.,

20Cnn- "- , ;a .n c. . et,.. ,g ,,s 4 VI.V.M*.' *. )* 't* :.tos9nu*' ;n x Mg Y ~ /. '!i '.

g $$J:):.-- .

4. . . , ,

9* Clfice cf tts gg- 1 g 7- -

i-e -u:0 9 @ . , . ,, efsc i -tree 4 4. ' V . . _ . .

h ""* ' '8 W

. . _ . L w.ht r.' #:'v0 l %.4 l

n.s h., A:, .~ Idm2 gy .

. ~l: * * *

• l

c ,.

l i tI i

l. 'J

.i . g.'t -

4 .

W Departrnent of Energy Clinch River BreederReactor P! ant Project Office -

) R O. Box U L Oak Ridge, Tennessee 37830 a

April 30,1980 hm RUu PR-2. d aJ 04 d5 FL 13939)

Secretary of the Comission

! Docketing and Service Branch

! U. S. Naclear Regulatory Comission Washington, DC 20555 - -

Dear Sir:

COMMENTS ON PROPOSED RULEMAKING 10CFR PART 51 We have completed review of the proposed rulemaking to 10 CFR Part 51,

" Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions," noticed in the Federal Recister dated March 3, 1980. Our coments are enclosed.

Sincerely, mn . /

Ra , nd Cop- . //

PS:80:134 ng*sistantd.~irector Ac;'or Public Safety O \ \ l'?I Enclosure p 4 cc:rsTD tlsNRO 9'

MAY 5 580 > {

B 012:cfthe M T p;;,tg. : f. ELC . .

p sa:c c, -

ss \ W *-

9 e

• e um tr emer - -- _ . -

O e

i e .

Enclosure j j

COMMENTS ON PROPOSED RULEMAKING 10CFR PART 51 I I'

In general, the proposed changes will provide for a more thorough NEPA review of proposed actions and allow for categorical exclusion of certain-actions not having environmental impact. There are, however, several .

areas. where additional' clarification is required.

10CFk51.21(2) and (5)

The word "significant" should be defined to provide an exact indication or range of. compliance criteria. One suggestion is to express "sig-nificant" in terms of a percentage of some established baseline to provide a meaningful correlation. It is not apparent if signi'icant f

increases represent changes to baseline data above or below established exposure limits..

Will significant increases in occupational exposures apply only to radiation levels? If not, will these regulations from NRC and other regulatory agencies (i.e. , EPA, OSHA) be dichotomo'us in nature?

How is a significant potential release increase identified? Will a standard risk assessment be used to determine the probability of increase?

, 10CFR51.45c and 51.71d

. These sections propose changes in regulation from preparing a'" cost-benefit analysis which considers and balances the environmental and otner effects of the facility and the alternatives. . ." to "an analysis which considers and balances the environmental and other effects of tne proposed action and the alternatives. . ." The intent of this change and the modification to the current scope of environmental review is not apparent. Additional discussion in this area is required.

10CFR51.92 It is not apparent how supplements to the Environmental Impact Statement ._ .

(EIS) may effect preconstruction programmatic activities. Limitations

• during the supplement review should be so specified.

L .

l

.e .

___.m__.______.___._.____m_ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Y-P ,

@ Washington Public Power Supply System A JOINT CPERATING AGENCY I

S"'" hg S .......... ..........._ .... ... . _ ....._ .........

A ril 29,1980 cn ~%

vocsa

-uu Inusess PR- 2 <h ct , ss (M5 FlO (393@ Docee Mr. Samuel J. Chilk, Secretary usNac 3

U.S. Nuclear Regulatory Comission MAY 51980 p- --

Washington, D.C. 20555 'g -7 m g 3&% set D::*6:

Attention: Docketing and Service Branch kat g

Dear Mr. Chilk:

A 16

~

Subject:

Proposed Environment 1' Protection Regulatior.s for

. Domestic Licensing and Related Regulatory Functions '-

i (45 Fed. Rec.13739 (March 3,1980D I. BACXGROUND On March 3,1980, the Nucitar Regulatory Comission published in the -

Federal Register proposed rules which would revise Part 51 of the Cemission's regulations regarding implementation of section 102(2) of the Nat.onal Environmental Policy Act of 1969, as amended (NEPA). The proposed regulations reflect the Comission's policy to take into account the regulations of the Council on Environmental Quality (CEQ) which are

, intended to implement section 102(2) of NEPA. The Comission requested that all persons who would like to submit come.nts on the proposed regulations to do so by May 2, 1980. '

The Washington Public Power Supply System (" Supply System") respectfully submits the following comme 1ts on NRC's proposed NEPA regulations. The Supply System is currently constructing five nuclear power reactors.

Accordingly, these comments are directed toward those provisions of the proposed regulations which concern power reactors.

II. DISCUSSION OF PR0p0 SED REGULATIONS A. Introduction .,

The Supply System believes the Comission has generally done a commend'a ble job in proposing well-organized and appropriately detailed regulations consistent with the CEQ regulations implementing section '102(2) of NEPA.

40 CFR 1500 et sec. We share the Commission's reservations recarding .

the implementiition of certain of the CEQ regulations. 45 Fed.' Reg.. -

13742. In that regard, we believe the NRC is not required to implement

% eye.ns. W A ~_. O leo I . . . .

g4

, Mr. ' Samuel: J. Chilk, Secretary Page Two- -

April 29, 1980

,.. Proposed Environ = ental Protection Regulations.

the provisions of CEQ's NEPA regulations which have an impact on the Commission's performance of .its substantive responsibilities as an independent regulatory agency. . Ac'cordingly, our comments are directed primarily at three of the CEQ regulations on wnich the NRC has requested connents prior to issuance of proposed regulations implementing those CEQ provisions.

B. NRC Regulations Concerning' Treatment of Alternatives In Environmental Imoact Statements Should Not Be Based Uoon a0 CFR 1502.14(b)

Section 1502.14(b) of the Council on Environmental Quality regulations governing the treatment of alternatives in an Environmental Impact Statement (EIS) requires that the EIS "[d]evcte substantial treatment to each' alternative considered in detail...." (Empnas1s acceo). Despite CEQ's argument to the contrary, see, 45 Fed. Reg.13765, we believe this -

CEQ regulation is not a restatement of the requirement of NEPA with g regard to consideration of alternatives in an EIS. . In addition, we ' ' ' ' ' ~ '

. note, that as an independent regulatory agency, NRC is not required to implement CEQ regulations concerning NEPA which imp' a ct, as we bh1?; >

this provision would, upon substantive responsibilities and duties of the NRC. Consequently, the Supply System recommends that the NRC adopt a regulation on the treatment of alternatives in an EIS which ir con-Listent with current judicial interpretations of NEPA.

The examination of alternatives in an EIS mandated by section 102(2)(E) of NEPA requires consideration of all reasonable alternatives. As was stated by the United States Court of Appeals for the District of Columbia:

A sound construction of NEPA.... requires a presentatic'n of the environmental risks incident to reasonable alternative courses of action. [ Natural Resources Defense Council v. Morton, 458 F.2d 827, 834 (D.C. Cir.1972) (Empnas1s added)).

However, the discussion of alternatives in an EIS is not intended to be unlimited. The Supreme Court has said that: .

the ' detailed statement of alternative' cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man.

[ Vermont Yankee Nuclear power Core. v. NRDC, 435 U.S. 519, 551 (1978))

Stated another way, the consideration of alternatives pursuant to NEPA is subject to a " rule of reason". NRDC v. Mortrn suora, 458 F.2d at 834.

t e

< x --,~

~  : Mr. Samuel J. Chilk - Secretary Page --Three April 29, 1980 . ,

Proposed Environmental Protection Regulations .

i the detail required in tne discuss ~1onngof alterna that Court said: , where alternatives need not be Whatexhaustive.We reitera is required is tives so far as environmental aspects are concern -

[_NRDC v. Morton, supo n , 458 F.2d at 835] .

preting section .102(2)(E) of See NEPA.This statement n er-of NEPA la

_ ton Preservation 24), 244 (1st Cir. 1975); Brooks v. Coleman 518 f.2c 17 Committee v. Federal v e- Av1a '

1975). ~

, 19~{9th Cir.

We do not believe that 40 CFR 1502.14(b) accuratelyequire- reflects the r ments of NEPA concerning the discussion in an EIS, viz., "information sufficient to permit a reasoned choice of alternatives".

would require

" substantial that all alternatives considered Section treatment". in detail should receiv 1502.14(b)

It seems clear that the CEQ regulation could require by NEPA. a discussion of alternatives in greater detail than is mandated We recommend, therefore, that the NRC adopt a regulation concerning the discussion of alternatives in an EIS which is consistent with NEPA.

In particular, ,

the Scpply System believes that the information that would alternative need power to be included in an EIS with regard to alternative sites a the NRC, could si sources, if 40 CFR 1502.14 b) would be implemented by responsibilities.gnificantly affect NRC's per(for=ance of its substant is not necessary to devote substantial treatment 40 CFR 1502.14 b) could require. .

, as to each sites can gener(ally be adequately evaluated for adve impacts using only reconnaissance-level information.

So 1cng as upon superior to the proposed site from an environmenta mandate would be satisfied.

Pollution v. NRC, 582 F.2d 87, 95 (1st Cir.178).See See also, citiTens for New Encland Coaliti Safe Power v. NRC, 524 F.2d 1291,1301 and 1s appropriate for the environmental analysis only to focus (It~

on altn. 18 (DT which there isimpact.)

reason to believe might provide a significant difference ernatives in environmental in an IIS

, the detailed evaluation evidently contemplated by the e

e

-_w

_ 7 7- ,_ 7_- ,,,

Mr. Samuel J. Chilk, Secretary

'Page Four.

'E April 29, 1980-Proposed Environmental Protection Regulations provision is obviously unreasonable where for example, alternatives would not be available within the time frame- that power will be needed from the proposed facility or would not present obviously superior environmental benefits. See Citizens for Safe Power, suora, 524 F.2d at 1301.

C. The NRC Should Not Require the "Werst Case Analysis" As Set Forth In 40 CFR 1502.22(b).

Section 1502.52(b) of the CEQ NEPA regulations would require that an EIS include a " worst case analysis' if infomation " relevant" to the con-sideration of adverse environmental impacts to an alternative is not known and _an agency decides, despite this uncertainty, to proceed with the acticn. Such measures are not required by NEPA and would adversely impact NRC's perfomance ofits substantive responsibilities as an inde- -

t pendent regulatory agency.

The requirement that the EIS consider "the environmental risks incident to reasonable alternative courses of action", is subject to a rule of reason. Natural Resources Defense Council v. Morton, suora 458 F.2d at 834. It is well settled that tne ciscussion of alternatives in an EIS need not address improbable consequences. As was stated by the U.S.

Court of Appeals for the Eighth Circuit:

An environmental. impact statement need not discuss remote and highly speculative consequences.

[ Environmental Defense Fund v. Hoffman, 566 F.2d 1060',1067 IBtn Cir. 1977)] ,

Consequently, so far as 40 CFR 1502.22(b) would require discussien of remote and highly speculative consequences by mandating a " worst case analysis" it is inconsistent with the requirements of NEPA as inter-preted by the courts. Furthermore, the Supply System does not believe that the Comission's reevaluation of its policy tcward consideration of -

" Class 9" accidents in the environmental reviews of individual licensing proceedings, see Offshore Power Systems (Floating Nuclear Plants), Cl.I '

79-9, 10 NRC E T (1979); "Accicent Considerations Under NEPA", SECY 131 (March 1,1980), alleviates the conflict between 40 CFR 1502.22(b) and the requirements of NEPA. Accordingly, the Supply System reconrnends that this " worst case analysis" provision of the CEQ regulations not be implemented by the NRC on,the basis that it does not reflect the mandata of NEPA.

• In any event. 40 CFR 1502.22(b) should not be implemer.ted by the NRC because it does not promote the scals of reducing unnecessary paperwork and delay as set forth by CEQ in promulgating its NEPA regulations. See

l Mr. Samuel J. Chilk Secretary

. Page Five .

L .

- April 29,1980 L

2 Proposed Environmental Protection Regulations 43 Fed. Reg. 55978 (Nov. 29,1979)'. Requiring a " worst case analysis" would mercly serve to needlessly increase the papenverk required to reach a reasoned decision in environmental reviews, viz. , it would require more analysis than mandated by NEPA, and produce unnecessary l delay as the information required by section 1502.22(b) is prepared and its adequacy subsequently evaluated in licensing proceedings. Section 1502.22(b). is clearly not consistent with the CEQ goals to reduce unneces-L sary paperwork and delays. On this basis'alone that section should not L .t be implemented by the NRC.

' Finally, 40 CFR 1502.22(b) is unreasonably vague. There is no guidance with respect to detemining what infomation is " relevant to adverse impacts" and is " essential" to a reasoned choice among alternatives.

Most importantly, there is no definition of the " worst case" in the -

context of:a p=2rticular proposal and its alternatives. In particular, section 1502.22(b) does not indicate whether a worst case analysis would *'

t be made for-ea:h alternative. If the provision were implemented, we believe such a comparison would be recessary to assure reasoned decision- ,

making., Also it is not clear whether the Commission would need to-

• include an analysis of the most favorable consequences.for a particular alternative in conjunction with its analysis of the worst possible consequences of the proposed action. Also, would the Commission totally disregard occur? the probability)that Section the worst case 1502.22(b is, therefore, scenario not only inconsistent might actually with NEPA law and CEQ's own goals to reduce unnecessary paperwork and delay, but it is unreasonably vague. Accordingly, it should not be implemented by the NRC.

O. The NRC Should Not Implement 40 CFR 1502.22(a) Concerning The Gatherine of " Relevant" Information The Supply System disagrees with the CEQ's assertion, see 45 Fed. Reg.

13765, that the requirement set forth in section 1502.Wa) that an l

agency gather all " relevant" infomation " essential" to a reasoned decision is a restatement of NEPA law. It is well settled that the information required by NEPA for the discussion of the environmental effects of alternatives in an EIS...

need not be exhaustive. What is required is infomation sufficient to pemit a reasoned choice of alternatives so far as environmental aspects are concerned.

[NRDC v. Mercon, suora, 458 F.2d at 836.]

If implemented by the Conrnission, the CEQ provision could require that NRC obtadn any information that any person could argue was " essential to a reasonci choi:e of alternatives", so long as the cest of obtaining the

~

i .

I

~

' - ~ ~ ~ ~ ~ ~ ~

.. . . . , . . . _ .. . . ~

s Mr. Samuel J.,Chilk, Sacretary Page Six-April 29,1980 Proposed Environmental Protection Regulations.

i information is not "exhorbitant". This standard places a burden on the.

NRC in. preparing an EIS that is not reqdred by NEPA. In particular, -

cases the Commission may wish to seek information to the extent the

. associated costs of gn;.hering it are not exhorbitant, but such a require-ment should not be automatically imposed in every case.

Furthemore 40 CFR 1502.22(a) would be sn inefficient means to assure that information necessary to a reasoned decision is available before that' decision is made.- All relevant information regarding the adverse

- impact of alternatives need not be known before a decision is reacned.

See Cady v. Morton, 527~ F.2d 786, 796 (9th Cir.1975). The decision-maker in an environmental review must be informed of uncertain or unkncwn environmental effects, see, Sierra Club v. Freehlke, 534 F.2d 1289,1296 (8th cr.1976), and then detemine whetner the infomation available is sufficient to make a reasoned decision. If sufficient -

information was available, the decision-maker would make a reasoned

~~

. choice among alternatives, subject of course to review by the Courts. ' '~~

If there was not sufficient information, then the no action alternative could be chosen or more infomation would be requested. In contrast to this, the CEQ provision appears to require that the EIS not be used as a decision-making document, f.e., does not satisfy the mandate of NEPA, until all " relevant" information is available so long as the costs of obtaining such information are not "exhorbitant". This would be incon-sistent with the dictates of NEPA and, if adopted, would adversely impact NRC's perfomance of its substantive responsibilities as an independent regulatory agency by delaying environmental reviews until the infomation required by section 1502.22(a) is obtained.. Accordingly, tne' NRC should not implement 40 CFR 1502.22(a). ,

E. Cateenrical Exclusions

-1. Procedures fer requiring an EIS for actions included in the list of categorical exclusions should be established.

Proposed section 51.22(b) states that: ,

[t]xcept in soecial circumstances as detemined by the Comission... an cevironmental assessmer.t or environmental impact statement is not required for any action... included in the list of categorical exclusions....

Soecial circumstances include the circumstan:s here the proposed action involves unresolved conflicts concerning altarrative uses of available-resources within the meaning of section 102(2)(E) of NEPA. (Emhasis added).

The proposed regulations provide no further detail as to the meaning of "special circumstances" or to the procedures to be followed by the L - - - - - - _ _ _ _ _ _ - - - - - - - - - _ - _ _ - - - - _ - _ _ -

Mr. Samuel J. Chilk, Secretary Page Seven .

April 29, 1980 Proposec Enviremental protection Regulations Comission in makirg the determination to require an EIS fcr an action already included in the list of categorical exclusions. We believe the Comission should provide for notice and an opportunity for affected parties to present their views before a decision is made. It would also be helpful if the Comission would provide other examples of "special circumstances" beside " proposed action [s] involv[ing] unresolved con-flicts cor.cerning alternative uses of available resources."

2. The list of categorical exclusions %ould be more broad.

While the Supply System supports inclusion of each.of the items already on the list of categorical exclusicns, proposed 10 CTR 51.22, there are some additional items which we believe should be included in the list:

, a. Issuance, renewal or amendment of a part 20, 40 or 70 license to a holder of a construction pemit for a power reactor where such a license expires upon issuance of an cperating license, including the authorization for storage only of unirradiated reactor fuel prior te issuance of the operating license.

b. The renewal of a construction permit issued to a power reactor, pursuant to 10 CFR 50.55(b).

c. Any change in a principle environmental protection commitment by the holder of a ecnstruct'en permit or operating license which does not necessitate the issuance of an amendment to such permit or license. -

These actions would not involve adverse impacts en the environment that are significant or are net carefully examined during the licensing process. It would be appropriate, therefore, to include these actions on the list of categorical exclusions set forth in proposed 10 CFR 51.22.

F. Terminology With Regard To The Preparation Of. Environmental Reports Should Be Clarified The Supply System recomends that certain aspects of the proposed regu-1ations concerning an Applicant's and petitioner's Environmental Report (ER), proposed 10 CFR 51.45, should be clarified before promulgation of this rule in final fom. These coments are, as follows:

The ER is to discuss "the impact [s] of the propcsed action on the environment....in proportion to their significance". proposed 10 CFR

51. 45(b)(1 ). Also, the environmental impacts of alternatives and the 4

... ... . . . ..-; - w:-- a. ; ... _ . . - . _ _ . .

Mr. Samuel J. Chilk', Secretary

, Page Eight- .

, April 29, 1980 ..

Proposed Environmental Protection Regulations proposed action are to be " presented in comparative fom". Proposed 10 CFR 51.45(b)(3). The practical meaning of these tems is not clear. As stated, these requirements sugge:t that extensive discussion of each aspect of each alternative could be required by the NRC whers a concise presentation would equally serve to convey " sufficient" information "to aid the Comission in its development of an independent analysis"i Proposed 10 CFR 51.45(c). The Supply System recomends that these terms be explained or removed from the regulations when promulgated.

Furthermore, with respect to the requirements concerning an Applicants Environmental Report for the operating license stage (ER-OL), proposed 10 CFR 51.53 Cces not pemit the Applicant to incorporate by reference in the ER-OL infomation contained in the ER or the Final EIS prepared in connection with the construction permit, as is provided in the present -

Con =ission regulations. See 10 CFR 51.21. The Supply System recomends .. , , ,

t this provision be retainec in the new regulations as a means to reduce paperwork and promote efficiency in the license process.

G. " Specific Exemptions" Should Be Clearly Available With Regard To 'The Limitations On Actions Proposed section 51.10(a) would require, with regard to a proposed licensing or regulatory action for which an EIS is required, that neither

! the Comission o* Applicant may take any action concerning the preposal which would have an adverse environmental impact or limit the choice of-reasonable altern stives until, inter alia, a record of decision is issued. However, actions which may nevertheless be taken by Applicants prior to the issuince of a license or permit are also identified, e.c.,

certain activities at the proposed site of a nuclear reh: tor with de minimis environmental impacts as authorized by 50.1C(c). Proposed 10 CFR51.101(a)(2). Because proposed section 51.101 appears to.be intended to set forth all circumstances in which actions with the potential for impacting the environment are pemitted to be taken in connection with the construction or operation of a power reactor prior to issuance of the applicable permit or license, it is possible that confusion might arise as to the continued effect of 10 CFR 50.12 wnich sets forth the requirements for obtaining a " specific exemption" from Concission regulations.

To avoid the possibility of such confusion, the Su'pply System recomends that actions authorized by a " specific exemption" from Commission regulations, pursuant to 10 CFR 50.12, also be exempted from the limitations on actions set forth in proposed section 51.101.

H. Certain Drocedures Should Be Set Forth Recardine The Scocine process The Supply System supports the cencept of the secping process, as set i

forth in propcsed sections 51.28 and 51.29. Generally, we believe the  !

.. i L. . _ _ _ . _ _ _ _ _ ._____-___- _______ - _ __- _ _ -

• Mr. Samuel J. Chilk, Secretary .

Page Nine -

April 29, 1980

• Proposed Environmental Protection Regulations MRC proposed regulations adequately deal with this topic. We do, however wish to comment regarding the role of participants in the scoping p .

Proposed section 51.29(a)(5) invites "any person who requests n opportun y a to participate.

to participate in the scoping process" to be afforded such an We recommend that the NRC include within propcsed y_

section 51.29 a standard to govern the extent of such participation, par icularly where a public secping meeting will be held.

participation afforded by proposed section 51 The unlimited t,ardensome process to the NRC if numerous pers.29 could result in.a to participate in those meetings. ons request an opportunity limited by a standard such as "to the effect practicable".We suggest that this standard in the regulations would facilitate conductirg Inclusion of public scoping limits meetings~ by on presentations clearly at suct allowing the NRC to, for example, meetings.

Also, we specifically urge retention of proposed section 5129(b) final regulations. .

e in th licensing proceedings either as parties or to make a limiThe proce should not be cianged l in any way by the secping process. ted appearance consultation of an Applicant with the the NRC StaffFinally, with r the NRC to use this mechanism as a " scoping p*oc, ass" Supply System urges to aid Applicant:

in the preparation informa tion. of environmental reports or other environmental Ir. order to reduce unnecessary paperwork and delay for Applicants, it is impcrtant to avoid unnecessary environmental assessme .

that could result if current NRC guidance, e.o., Reg. Guide 4 2 the preparation ef an ER is utilized without early NRC . , concerning Staff guidance Accordingly, the Supply System urges the Commission to adopt a pol .

that the NRC Staff seek to achieve the same goals during consultations with Applicants pursuant to proposed 10 CFR 51.40 as are set forth in connection with the scoping process in proposed 10 CFR 51.28, e.o.,

identification of peripheral or already examined issues.

III. CONCLUSION The Washington Public Power Supply System appreciates the opportun comment NEpA. en these proposed regulations implementing section 102(2) of consistent Wewith urgethetheforegoing Commission to revise those proposed regulations comments.

Very truly yours,

./ M r AsOs. Ren tant e Technology D 'ctor, mch

. D

(.eBAs 3Bcparimtni af cMainral pescurtts 7 N , eD 37o w 2sec ucToN ST.. S.W.

4 Ati ANTA. GEORCIA 3o334 p

pocyiTE3 g e4cae ass.3soo

$oc $. Drm USNR:

1,my 51980 > I May 1, 1980

-1 Y -

9 DVa Dds!ntEM * ** * '/

En.:n. ,n /

Seeretary 13 gw 00C::D N 3 PecPc:;tD RUli) g g, U. S. Nuclear Regulatory Commission h'ashington, D. t.. 20555 ggy ATTEhTION: Docketing and Service Branch

Dear Secretary:

- The following comments are offered by the Georgia Department of Natural Resources to assist the Nuclear Regulatory Commission in the finali:ation of rules implementing Commission procedures pursuan: to Section 102(2) of the National Environmental Policy Act. The draft rule which our ce=ents address was published in the March 3 Federal Register (Vol. 45, No. 43) and proposes to amend 10 CFR Parts 2, 30, 40, 50, 51, 70 and 110. .

'this Department, including its Environmental Protection Division, is concerned about the proposed inclusion of materials licenses which may be issued under the Agreement State authority as a categorical exclusion (refer-ence " Category of Action 814" and Section 51.22 of the proposed rule).

Section 2N of the Atomic Energy Act of 1954 provides for the, delegation of

~

certain licensing cuthority to States and, pursuant to this delegation, an Agreement State is expected to operate its program in a manner compatible to

• that of the Co=ission. In Georgia, an Agreemen: State, the " Georgia Radiation Control Act", as amended, authori:es the Environmental Protection Division to review and concur wi:h all licenses (except medical licenses) issued under Georgia's program if a discharge to !!.e environment is involved.

Responsibility for the Georgia program is vested in another State agency, the Department of Human Resources. The Co=ission's final zule should recogni:e that it is certainly appropriate for those Agreement States which choose to i=plement a more stringent regulatory program for these licenses than that of the Co=ission to do so. Such program flexibility should be considered compatible to that of the Commissien and certainly considered seithin~the " - 4.'.

intent of the National Environmental Policy Act (NEPA) . *"

Also, it is not evident that this draft rule considers dovetailing the NEPA process, as strongly encouraged by Section 1502.25 of the Council of Environmental Quality's procedural regulations (40 CFR 1500-1508), with other environmental reviews mandated by federal law, regulation or -

executive order. By the incorporation of this concep: in the Commissien's final rule, the Co= mission can address its other environmental responsibilities concurrently with its NEPA procedures, thus streamlining the license decision-making process by avoiding unnecessary duplication while ensuring adequate resource consideration. Further, the final regulations should also include W- *

.~ c=v c cmo-c~te -*t~c tene~ c mem

,,, ,,4, . ,,,

.. . e

, , Sacrotary< ,

Page Two May 1, 1980 a process for the consideration of these other federal environmental mandates when the actien under considera:icn is determined to be a categorical exclu-sien and does not warrant an environmental assessment or statement.

Section 51.41 authori:es the Co==is :f on to require of an applicant an environmental report and Section 51.45(c) requires tha: this report include an analysis "which censiders and balances the environmental effects of the

! proposed action and the alternatives available for reducing or avoiding

' adverse environmental affects, as well as the environmental, technical and other benefits of the prepesed action." The data requested by the Cc==ission in these Sections is appropriate; however, as the responsible federal agency, it should no: be lef to the applicant to " balance" adverse and beneficial effects. The weighing of effects .should solely be the responsibility of the -

Co issien and its staff as outlined in Secticn 51.71, pertaining to the con-" ~ ~ ' ' - -

~~~

tents of draf enviren= ental i= pac statements.

In Georgia, as in other southeastern states, the State Clearinghouse has been designated by the Governor as the single recipien: of copies of environ-mental documents. The purpose of this designation is to ensure appropriate distribution to relevant State agencies. This procedure not only benefits the management of State government but, for federal agencies, reduces needless duplication of effer; and ensures receipt of a timely response reflective of all the State's concerns. The Department recommends, because this procedure is in place, that Sections 51.74, 51.117, 51.118, and 51.119 be revised to reflect this functien perfor:ed by State Clearinghouses. ,

The Department would like to make note that it appears that Sections 51.73 and 51.104 are in conflic:. See:icn 51.73 provides for a mini =u: cc=:ent period of 45 days on draft environmental impac: statements. Hewever, Section 51.104 only provides for a 15-day ec==ent period for public hearing participants when such documents are presented. The Department recuests that the Cc= ission's final rule clarify this discrepancy.

So that State and other agencies can provide the Ce==issien with werth-while ce= ents or have enough information to concur with either the draft er final " Findings of No Significant Impact", it is recommended that Secticn 51.119 be revised to provide that copies of the " Finding" will be accc panied by the envircnnental assessment en which these determina:icns are based.

Other federal agencies routinely follow this reco== ended procedure even when there has been a:ple agency review of the documents leading up to the agency's decisien. Public and agency review of environ = ental assessments and related documents should be given serious eensideration by the Co ission, particularly in light of public sensitivity to and ramifications associated with nuclear operations.

Although the Cc: ission has not elected to pursue several issues which lie at the heart of the NSPA process in the draft rule, the points cu: lined by the letters contained in Appendix B fic: the Council en Environmental ,

Quality should receive due consideration by the Com :ssion. ine Council's j discussien of these issues is well thought cut and the C : ission should

.- i

1.'

Se cr'etary * -

e' Page Three

- May 1, 1980 pursue the development and adoptien of procedures which accommodate these con-cerns in their final rule.  !

. The Department of Natural Resources appreciates the opportunity to provide l the Commission with comments on this rulemaking effort. As the State agency in Georgia with multiple resource concerns, the Department would appreciate being kept infomed of future NEPA-related rules prepared by the Comission, both draft and final. If any further clarification of these coments is needed, I may be reached at 404/656-5162.

Sincerely,

^

Wn. ap Barbara A. Hogan

~

Comprehensive Review Coordinator BAH:ch

/

e e

G S

4 0

m

e .N

=ac e & sse.1  ;

. r .,. m m,.,ei .

p ,*, * ,W,ss * ,wr2.1.1.1 YANKEE ATOMIC ELECTRIC COMP e

^* C' ggw VYC 80-11 20 Turnpike Road Westborougn. ,, ochusetts 01.581

.%xas

% ,,, May 1, 1980 Secretary of the Commission votag pua5R

) ,"

l .U.S. Nuclear Regulatory Commission pp o g gp ggtg

• Washington, DC 20555 gg Attention: Docketing & Service Branch

Subject:

Environmental Protection Regulations - Proposed Rule Change to Part 51 (45FR13739-3/3/80)

Dear Sir:

Yankee Atomic Electric Company appreciates the opportunity to comment on the Nuclear Regulatory Commission's proposed rule change to Part 51 of its regulations. Yankee Atomic owns and operates a nuclear power generating plant in Rowe, Massachusetts. The Yankee Nuclear Services Division also.provides engineering services for other nuclear power plants in the Northeast including Vermont Yankee, Maine Yankee, and Seabrook 1 and 2.

In paragraph 51.10(b)(2), the NRC reserves the right to prepare an independent environmental impact statement (EIS) whenever it has jurisdiction over a particular activity even though it has not been designated as lead agency for preparation of the statement. If another agency has been designated lead agency for preparing an EIS, NRC should work with the lead agency in developing one EIS. For the NRC to develop their own independent EIS, in our opinion, presents an opportunity for unnecessary duplication of effort among regulatory agencies. Such an action would be contrary to the government's interest in eliminating regulatory overlap as expressed in Section 101(f) of the Federal Water Pollution Control Act Amendments (FWPCA) of 1972 where it is stated that:

"It is the nacional policy that to the maximum extent possible the

- procedures utilized for implementing this Act shall encourage the drastic minimization of paperwork and interagency decision procedures, and.y.aka the best use of available manpower and funds, ~~so as to prevent. needless duplication and unnecessary delays at all levels of govern =ent." '-

Executive Order 12044 signed March 23, 1978 established a policy that j regulations "shall not impose unnecessary burdens on t.he economy, c'r  !

individuals, on public or private organizations ..." Yhe NRC responded to the Order, 43F.S.34358 (August 3, 1978), by stating.in.part that it " fully .

support (s) the basic objectives ..." and that "the NRC is fully cognizant of the importance of eliminating unnecessary burdens upon those being regula~ced and of reducing as,far as possible the cost o f "Go've rn=en t regulation."

. - - - ~--

'S cretory of the Ccamission. .May 1, 19f0  !

Attentica Dacketing & Service 3rsach Page 2 .

t NRC should. redraft -51.10(b)(2) so that responsibility to prepare the EIS is solely with the designated lead agency and that no additional-independent EIS development should be allowed.

In paragraph 51.10(c), the NRC admits that limitations on its. authority -

and responsibility pursuant to the National Environmental Policy Act of 1969 (NEPA) ss imposed by TWPCA are not addressed. While this acteer is addressed in part in the '.' Policy Statement on Implementation of Section 511 of FVPCA" attached as Appendix A to the "Second Memorandum of Understanding Regarding Implementation of Certain NRC and EPA Responsibilities" (40TR60115), it would be most appropriate for NRC to clearly delineate these limitations in toto in 51.10(c). These limitations on NRC responsibility can have di?ecTaEd important implications to the Yankee-plants. If limitations on NRC-responsibility had been clearly delineated, perhaps our lengthy. (greater than 1 year) negotiations with NRC concerning deletion of,non-radiological

-(Appendix B) technical specification would have been unnecessary. .

In paragraph 51.21, the NRC defines the criteria for and identification t of licensing and regulatory actions requiring environmental assessments. _

Specifically, criteria for issuance of an amendment to a construction permit or full power or design capacity operating license for a.ruelear power reactor-is given in $1.21(b)(2). A key term used in these criteria which determines the need for an environmental assessment is the word "significant". Because of the potential implicat.ons, this term needs defining. The definition should place emphasis on the magnitude of each of the listed categories of action that would necessitate an environ = ental assessment. As presently

. written and dependent on one's perspective, even minor changes in the listed criteria could be construed as-significant and-therefore require an environmental assessment. -

Furthermore, NRC could conceivably use paragraph 51.21(b)(2) as a means to circumvent restrictions on their authority and responsibility imposed by the TWPCA (see above Comment on 51.lO(c)). For instance, if we negotiate a change in a plant's NPDES discharge permit (e.g. use of hydrazine as a scale control agent) or are granted NPDES discharge li=itations less stringent than those NRC considers necessary (e.g. difference in opinion on chlorine use as expressed by EPA and NRC), NRC could impose $1.21(b)(2), call such changes -

in station effluents significant under $1.21(b)(2)(ii), and conduct their own environmental assessment. Thus, NRC could become reinvolved in matters which are considered the responsibility of other federal and state agencies rather than utilizing their resources to accomplish those duties and responsibilities for which it is directly charged.

Should you have any questions with regard to our com=ents, please contact

.us.

Very truly yours ,

YANKEE ATOMIC E1.ECTRIC COMPANY Y* w D. E. Vandenburgh g Senior Vice President

_ _ _ _ _ _ . . _ _ _ - - . _ _ _ _ . - - - _ . . . _ _ . ~ -____...___-..,____.m._______._.________m-__m_____.__m_ m

e.

$7 ATE Or Ngw YomM

, OEPARTMCNT OF "

' ENVIRON M ENTAL. CONS E RVATIO N ALaANY, New YomM ' 12233 M. Patt a I.AN AM AN .Jm.

,. m. . ,c.. .......

00cuc 30aest

>eam m ?R: .D+4 m 21980 f45 FR f 3739)

Mr.' Samuel J. Chilk Secretary 'of the Commission U. S. Nuclear Regulatory Comission

. Washington, D. C. 20555 Attention: Docketing & Service Branch . --

Dear Secretary Chilk:

New York State has reviewed the Proposed Rules of the Nuclear Regulatory Commission concerning Environmental Protection Regulations as promulgated irt the Federal Register, Vol. 45, No. 43, March 3,1980 (pp 13739-13766).

Section 51.22 of the proposed rulen sets forth procedures for establishing categorical exclusions from environmental review requirements. Among the sixteen categories of actions proposed for exclusion, New York State recommends that one subcategory,14(xi) (Source material lic,inses for fabrication of the products specified in 10 CFR Section 40.13, fabrication of military munitions, and laboratory use for research and development) be elininated from the proposed rules because of the potential for significant environmental impact.

The recommendation that 14 (xi) not be excluded is based upon recent experience in New York State wherein impacts resultirig from the operations of a licensee ' located in a densely populated area, appear to be significantly affecting the surrounding community. The attached comments detail our concerns.

Thank you for providing us with the opportunity to respond to the Proposed Rules and for carefully considering our recommendation.

~

Sincerely M. de er Lanahan, Jr.

ol .g First Deputy Commissioner O 4 .

Opcxrtg3 4 Listmc At Attachment

{ M4y g g ~_

CF 1 C

c=M:sof m s:n u s % :

se mhr </dx c, g - = o.n$. -

=

,, l l

l

_ _ . _ _ _ _ .__--_--.--_-_--_----------2--------- - - - - - - - - - - - -

e NEW YORK STAIE Co==ents On Proposed Rules of the Nuclear Regulatory Co==issien, l (NRC), Part'51 - Environ = ental Protection Regulations for Do=estic Licensing and Related Regulatory Functions Part 51.22 Criterion for identification of licensing and regula-tery actions eligible for categorical exclusion.

RECOMMENDATION - Subcategory (xi) of category 14,.

should be eliminated fro = the proposed' exclusions.

Sce cific Cc==ents . .

Environ = ental review of actions specified in (xi) should be s required'for the following reasons:

1. "As: low as practicable litits"' for depleted uranium have not been established or demonstrated for (xi) actions. Maxitum allowable doses should be established and considered.in developing such li=1ts.

2.- The NRC has not established guidelines for determining worker exposure to depleted uraniu= as.it has for enriched uraniu=- guide' lines would also' provide = ore accurate criteria for deter =ining potential exposure to the general public. In addition, NRC should address alpha and beta surface contamination levels

[ fer depleted uraniu=.

3 External exposure as a result of depleted uraniu= .

ground deposition should be established in NRC guides as has been done for nu=er'ous other isotepes- this would assist in deter =ining a total release litit based on allowable doses.

4. Disposal of depleted uranium wastes has not been properly addressed in the nuclear fuel cycle or in prpposed criteria for burial of radioactive wastes by NRC or the Environ = ental Protection Agency (EPA).

5. After one =1111cn years , depleted uraniu is the

=ost i=portant waste in the nuclear fuel cycle -

this is because it takes ti=e for radiu=-226 to grow in.

l 1.

3: -

4

~

6. Allowable releases of depleted uraniun to the.

D ' sewer should be reviewed because the present values are too high.

7. Allowable concentrations of depleted uranium in soil based on health effects by-wayL of resuspension should be established'by NRC or-EPA as was done for transuranic.

8. Requirements for collecting, storing, need for oxidation, packaging and transportation. of-various types of uranium metal wastes including oil slud E es or fluids should be established in -

order to identify and eliminate. potentially . -- - ---

I serious safety hazards. This is particular1y' i=portant in instances where theelicensee handles large volumes (e.E. A fire at a burial site was

~

started tur i= properly packaEed uranium fines.

Waste ship =ents were rejected at a burial site because of oil seeping out.)-

9. Guidelines for fenced exclusion areas and for pcpulation density' rest'rictions have not been established in the event of a fire or explosion.

4 e

S 9

0

. . 1

L.

i*

j -

s i "  !

@ Consumers90Wir Qq A Je ,# company General CMices: 212 Wa 4 Miehleen Avenue. Jackson. Micnneen de201 e (817) 7es.0SSO May 2, 1980 m isf Serial K-80 4 qg 00CKETC W RUI,E__ ~h h x t m""elgm ,. q N5F'Rj3739)

\-~" 1 T Office cf the Sectt1TI f Sem;t Docketir4 ,h Secretary of the Cc=.is. tic Branc p

\r,

, Att Dccheting and Service Sectic:  : g c9

=

US Hu: lear Regulater/- C ==issic Washi=gt==, DC 20555

?IC ~i CT FIDZ?.AL RI3IST, VCLG2 L5, 30. L3 .

DA"'ID F).RCE 3,1980.

We have reviewed the proposed NEC rule =aking =cticed in the Federal Register, Volu=e L5, No. L3 dated March 3, 1980. nese ; reposed rules affect 10 CTR Parts 2, 30, ho, 50, 51. To and 110. ~

ne folleving ec=ents "

concerning 10 CTE Pa:i. 51, "Invirc:= ental Prctectie:

Regulaticas . . . are ;revided fer yen e : sideration:

1. Se supple =entar/ infer =atic: sectics requested ec=ents c: several =atters

. =ct included in the proposed subpart A. Of these, the Cc=issic 's stance that reccc aissance-level infer =a ,ien is e.dequate to res;c d to LO CTP.

15C2.1h(t) c: treatment of alter:atives is in line with past practice and is quite acceptable.

2. Sectie 51.10(c) - Li=1tatiens c: the NRC autherity e=d res;cesibility i=;csed' by the 7"i?CX are act addressed in subpart A and are addressed culy to a 11=ited degree in A;;endix A to the Memorand= of Understanding by the URC and IPA. De industry still has =ct seen a clear definitics of these responsi-bilities.

a s n .a o ,

3. Sectie 51.12 - ne three paragraphs "a" threugh ."e" are goed.. Ecvever,"in Paragraph "b" the effective date of the NRC regulatien has =ct been inser ed.

L. See-ien 51.15(a) - the require =ent for establishi:g a .ti=etable schedule for the 3 IPA process is ver/ teceficial. .

5 Sectie 51.26 a=d 51.28 - ne previsiens f: a see;ing ;rceess a.re als: .

beneficial. Specifically the paragraphs relating t: initiatic: of the .

scoping process to the exclusic: et ite=s which have tee ::vered previously (51.28(t)(3)) and.to the preparati = ty the SEC cf a ::::ise s-- -/ cf the seeping precess (51.25(t)) should hel; substantially in es:17 definitiqp cf c;e ite s.

~ w tryc-e, &~ <hlm .

3., 2

6. Section 51.k1 - This paragraph is verded quite Icesely in alleving the Cc=issics to require an Applicant to suh it infc=atics the Cc=issic: deems useful in their ec=pliance vith NIpA.

7. Section51.L5($)(3)'-Theecesiderr. tic et alternatives is verded quite icosely; hevever, refer to our first ec=ent en ho CTR 1502.1h(b).

6. Section 51.53 and 51.05 - E a= eftert to = eld the ec:structica pe=it stage and operating license stage documents, Applicants provide a " Supple = eat to Applica t's hvirc =estal Report - Operating License Stage" as oppcsed to a separate second hvirc =enta.1 Report. As a supple =ent to the hvire= ental Report suh=itt=> fer the censtructics ;he.se, this ties the two licensing stages together =cre closely. Si=ilarly, the NRC at the operating license -

stage issues a Draft and Ti=al Supple =ent to the Final hvire=estal hyact State =est frc= the ec struction pe=it phase. These steps are beneficial to the industry.

k*e thach ycu for this cppertunity to provide cur recc=endations a:d ask that these ec=ents be ecesidered in your future deliheratices concerning the pro-

osed rules. -

,- jf rr l r/

sv -

Terence w Sullivan f

! Me.=ager CO: OpRef.^..an, p-2L-115 J'etCoc%/GS eeley, p-lh-113 J"Jeynolds/EpGreen, p-lh-303 SEEevell, p-26-3363 J13 aces, M-1085A

( .-

6.. orries.

LowzxsTz2x, NzwxAx, Rz2s, AxzLRAn & TOLL 808 5 CONNECT 4 CUT .vtwut. w. w.

...,.....= ' WASMt MGTON. O. C. 003.

ne...!.....

. .tfl. *u'...

.'T l

,"..'.'.'".,.s.. . .... c Uh

. ....... n.

. ..... . . . .T. ....

,ag e a gg. .t 55'1%?  : nomo m ' R - 2 eh. al. &  :~ W n%eo  :

1,=:::::::r

.=::::::.

(H5FR;5q3Q iym,,

it.ym.

e

• w......

May.2, 1980 D e t-5 . ---

.1 Samuel'J. Chilk, Secretary-U. S. Nuclear Regulatory Commission 1717 E Street, N.W.

Washington, D.C. 20555 1

Dear Mr. Chilk:

4 By~ Federal Register Notice' dated March 3,'1980 (45 Fed.

Reg. 13739), the Nuclear Regulatory Commission requested public comments on proposed revisions to 10 C.F.R. Part 51,

- its environmental protectica regulations for domestic li-consing and related functions.

t The following comments respond to the proposed revision of Part 51,~and are offered on behalf of Boston Edison Co.,

Combustion Engineering, Inc., Florida Power & Light Co.,

Houston Lighting & Power Co., Northern Indiana Public Service Co., Portland General Electric Co., and Puget Sound Power &

Light Co.

As the Commission's notice states, the proposed new regulations stem from the issuance by the President of Executive Order 11991 of May 24, 1977 (42 Fed. Reg. 26957 (1977).) There the President directed the Council on Environ--

mental Quality (CEQ) to issue regulations to the Federal agencies to implement the National Environmental Policy Act of 1969, as amended (NEPA). He also directed Federal'agen-cies to comply with regulations issued by CEQ "except where such compliance would be inconsistent with statutory require-ments." CIQ subsequently published final regulations "to 1'

l' L _ _ _ . _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ _ . _ _ _ . - _ _ _ . _ _ _ _ _ . _ _ _ _ . . _ - _ _ . _ . . _ _ . _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . _ _ _ _ u

',

• Lowtxcrznr. NzwxAN. Rrrs. AxzutAn a Teu. -

,e Samuel J. Chilk, Secretary

. May 2, 1980 Page Two implement the procedural provisions 1/ of . . . " NEPA, stating that, in accordance with pro isions of Executive Order 11991, "the Council's regulations are binding on all Federal agencies . . . ." (43 Fed. Reg. 55978 et see, (1978).) That statement raises profound and dTTficult questions concerning the relationship and relative powers in the circumstances of the President, the Congress and the

" independent regulatory commissions," such as the NRC._2,/

Apparently in order to minimize or avoid these problems to the extent possible, the NRC undertook to reach an accomo-dation "between NRC's independent regulatory responsibilities and CEQ's objective of establishing uniform NEPA procedures

. . . " by undertaking "to develop regulations to take account I of CEQ's NEPA regulations voluntarily . . . , " subject to specified conditions; and the instant notice contains the somewhat unusual statement that issuances of the regulations would reflect NRC policy undertaken voluntarily._3/ (45 Fed.

Reg. 13739 (19 8 0 ).)

~-

1/ The Supreme Court has recently reiterated its previous statement "that NEPA while establishing 'significant substantive goals for the nation, ' imposes up'on agen-cies duties that are ' essentially procedural.'"

Strveker's Bav Neighborhood Council, Inc. v. Karlen, 100 S.Ct. 497, 500 (1980), citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978).

Consequently, it is unclear what agency NEPA responsi-bilities fall outside the Executive order and the implementing CEO regulations by virtue of the purported limitation of the CEQ mandate to " procedural provisions."

In fact, the CEO regulations -(e.g. 40 C.F.R. Part 1504) confer upon that agency significant authority to make substantive decisions of other agencies.

2/ See, e.e., Memorandum for Charles H. Warren, Chairman, l CEQ from John M. Harmon, Acting Assistant Attorney General, Office of Legal Counsel, Dated April 4, 1977; Memorandum for Simon Lazarus, Associate Director, Domestic Council, frcm John M. Har=on, Assistant Attorney General, Office of Legal Counsel, dated July 22, 1977; Letter dated July 28, 1978, (and enclosures) from Hon. Abraham Ribicof f, Chairman, Senate Cc=mittee on Governmental Affairs, to Nicholas C. Yost, General Counsel, CEQ.

_3/ In issuing regulations, Federal agencies rarely find it necessary expressly to refute an implication that their adoption was under duress, a reflex act, or otherwise involuntary.

, . . - . .u..- , -

. Lowrxetrzx, Nzwx4x, Mrsa. Axzt.aAn im Tes.x,

~

Samuel'J. Chilk, Secretary L -

_ May 2, 1980 e .Page Three

The following comments address specific proposals

- either suggested by the CEO and not incorporated in the proposed regulations or proposed by the NRC.

1. In proposing its regulation, the NRC states that several' provisions of the CEQ regulations, referred to below, require further study before implementing regulations can.be promulgated. We'strongly urge'that those provisions not be adopted. For example, 40 C.F.R. 5 1502.22(b) would require performance of a " worst case" analysis in certain -

circumstances, including some whose occurrence is'improb-able. Such a requirement.could substantially modify NRC's

. , current NEPA approach. The AEC, and then the NRC, have long observed the policy.that " highly conservative assumptions ,

and calculations used in AEC safety evaluations are not i suitable for environmental r^isk evaluation, because their-use would result in a substantial overestimate of the environmental risk." 4/ In deter =1ning to reexamine Annex A_5/ (as to class of~ accidents), the Commission continued to maintain that "NEPA is based on the philosophy, that the Federal government should consider all available information about the reasonably likely environmental consequences of its proposed actions . , . ." 6/ The worst case analysis requirement is, moreover, inc_on,sistent with the existing judicial precedent which does not require consideration of events reasonably deemed to be of low probability. Carolina Environmental Study Group v. United States, 510 F.2nd 796, 799 (D.C. Cir. 1975). The Supreme Court has' stated pointedly that "every alternative . . . conceivable by the mind of man" need not be considered. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551 (1978).

~~

4/ Consideration of Accidents in Implementation of the National Environmental Policy Act of 1969, 36 F.R.

22851 (Annex A to Appendix D. Part 50).

_5/ Offshore Power Systems (FloatingNuc5earPowerPlants),

CLI-79-9, 10 NRC 257 (1979).

_6,/ Id., at 261.

8 0

_. . . . .. . . - - . . . n ---

?^ .

b Lowaxstarx, NzWMAN. RE!S, AXXI. RAD & 702.2.

.: Samuel J. Chilk, Secretary May 2, 1980 Page Four-CEQ's regulation (40 C.F.R. 5 1502. 22 (a) ) requires'the gatherine of extensive data for alternative sites beyond the type currently required under NRC regulations. This require- _

ment would have a substantive impact on utility siting studies.and NRC environmental reviews. It would be expen-sive and time-consuming to implement and would not lead to better decision-making, since it is fully possible toidecide

.whether an alternative site is "obviously: superior" tithout extensive, detailed information. Moreover, it is likely that, since alternative sites have not undergone the com- -

parable scrutiny that the proposed _ site has, examination of detailed information for the alternatives would reveal. -

adverse environmental impacts not initially observed. 7/

Thus, thorough examination of the alternate ' sites wouTE most ""

likely demonstrate the ecmparative advantages of the pro-posed site.

40 C.F.R. 5 1508.18 defines " major federal action" to include agency inaction where that inaction is reviewable under the Administrative Procedure Act or other applicable law. The impact of the CEQ' proposal is unclear: e.g. does it apply to denials of petitions for rulemaking? Such a denial is not now usually accompanied by the issuance of an impact statement. _ It is also unclear whether mere inaction would . trigger a claimed right to the preparation of a state-ment even prior to a judicial determination that the in-action was justifiable. The provision appears to be suscep-tible of adding wholly unnecessary complications to the administrative process and to be a possible additional source of unproductive litigation.

2. In addition to the foregoing CEQ regulations,.we also suggest that certain of the regulations proposed to be adopted by the NRC be limited. " Scoping" is intendad as a means for. identification of significant issues early in the NEPA process. We- agree that narrowing the issues to be considered in the NEPA review is worthwhile. Ecwever, we have serious reservations as to the efficacy of the scoping process as proposed (55 51.26-51.29). Notice of intent to issue an EIS (S 51.27) and a request for comments is useful, but the designation of " participants" (SS 51.27(a) (4);

51.29) connotes a formal process. We question whether a scoping meeting (S 51.27(a) (4)) will serve its intended purpose because the likelihood is that such a meeting will be adversary in character. The proposal seems to use

_2/ Public Service Company of New Hampshire, et al. (Sea-brook Station, Uns:s 1 and 2), 5 NRC 503, 529 (1977);

New England Coalition v. U.S.N.R.C., 582 F.2nd 87, 95 (1st Cir. 1976). i

_ _ _ _ _ . . _ _ _ _ _ _ - - - - - -- - - - - - - - - ~ - - - - - - - ' ' - - - ' ~ ~ - - - - ~ ' - ' ^ ' - " ' ' ' - - - ' '

. .. .. . s. _ _ - - - - .- - _ - - _ . , j 1

,, LowzxcTzrx, Nzwwax Rzzs. Axzu!AD & 701  !

l l

, Samuel J. Chilk, Secretary L. May 2, 1980 Page Five another overformalization of NEPA procedures. Therefore, we I' suggest that " scoping be limited to requests for comments, which should serve the informational requirements of S 51.28.

With regard to issuance of operating licenses, SS 51.53 and 51.95 would provide that a supplement to Applicant's Environmental Report and the FES for the construction permit will be prepared. These sections provide that the supple-ment "will cover only matters which differ from or which reflect significant new information in addition to those matters discussed 4in the final environmental impact statement."

(S 51.95, emphasis added.) The underscored language sug- - --- ~ - -

,i gests that the supplement not only addresses significant new information subsequent to issuance of the construction permit but also all prior information included in the con-struction permit FES. We believe SS 51.53 and 51.95 are intended to implement the principles stated in SECY-79-406 (June 18, 1979):

"There is no need, under present regu-lations, to duplicate the review perfor=ed at the construc-tion permit stage and the review at the operating license stage should be merely an update of the earlier stage. "

(SECY-7 9-4 0 6, p. 3. )

We reccmmend that SS 51.53 and 51.95 be changed to re-flect the above-quoted language from SECY-79-406.

Consistent with this recc=mendation, certain NEPA issues, e.c.

sites, alternate fuel, need for power, should not he alternate cen-sidered anew in the review of an already-constructed plant.

The Staff has previously suggested consideration of this policy. In NUREG-0499, supplement 1,_8/ the Staff stated:

No additional review of alternate sites would be required at the operating license stage unless there is new information which reason-ably demonstrates that, considering forward costs, there is a possibility that a cost benefit analysis would show that the plant should be rebuilt on an alternative site. In practice, this means that alternative sites likely will not be rereviewed and that rejec-tion cf the proposed site would only be on the demonstration that the proposed site is unsuit-able with respect to safety or the environment.

(NUREG-0499, Supplement 1, p. 19. ) The Staff's rationale is equally applicable to need for power and alternate fuel

_8/ General Considerations and Issues of Significance on the Evaluation of Alternative Sites for Nuclear Gener-ating Statiens under NEPA, December 1978. .

l

.- 1.ows ,strna. NrwxAx. Rzzs. Axzt. nan F2 Tcz.t.

Samuel J. Chilk, Secretary

-* May 2, 1980 Page Six issues. We therefore urge the Commission to limit the oper-ating license stage NEPA review of the above issues to consideration of "new information of significance to the ultimate decision on the proposed action." (45 Fed. Reg.

10492 (1980).)

S 51.103 requires the preparation of.a concise' record of decision (S 51.103). Clearly, environmental consider-ations along with economic, technical and national policy matters must be evaluated in reaching a decision on a major Federal action and the public is entitled'to know how these decisions were reached. In fact, however, an initial deci- .

sion in an adjudicatory licensing proceeding or a statement g of consideration for a rulemaking proceeding will ' accomplish'"*'~'" ^""

these goals set by CEQ (43 Fed.. Reg. 55978_.(1978).)

Preparation of a separate record of decision will surely involve additional paperwork and could result in delays in decision-making, while producing only duplication.

We appreciate the opportunity to provide these co=ments.

Lowenstein, Newman, Reis Axelrad & Toll p .

1 l

. _ _ _ _ _ _ . __-_---._--__-__-.__ _ - .__- - __ - ---- - - - A

$' , $4e 99 cdnek&m

.<._, a %s.z.

,C0 Yast A Staaet ts.-p+u a.i 5 9 a a., ,a r+~ H m.mo

%-.r fx.a au "' $sllon,JYee y $oad H702 d

l1%f PR430,40,so, say 1, 1580 ,

g ,,

% T + NO M5 FR 13?39) -

~ ~~C:E.,, t c.

Hon. Samuel J. Chilk . tw ee- C..

Secretary of the Co==1ssion '

MA F3 U.S. Nuclear Regulatory Co==1ssion O D

• 5.I i

Washington, D.C.

20555 - ~ ' - - ~

[~ - Dwe' W :'.*; :er ? sw%

. e A.

Attention: Docketing and Service Branch U* ', *

/ g$"

' i ;::;

Re: Co==ents of the County of Suffolk on Proposed Revision to Part 51 Regulations to Imple=ent.Section 102(2) of the National Environmental Policy Act of 1969 (NEPA)

Dear Secretary Chiik:

Tne County of Suffolk is an intervenor both in NRC construction license proceedings involving the Long Island Lighting Co=pany's application to site two 1150 K4 nuclear power stations at Jamesport, New York (Docket Nos. 50-516 and 50-517), and in operating license proceedings invciving that same utility's application to operate an 820 K4 nuclear power station at Shoreham, New York (Docket No. 50-322). By reason of its continuing participation in these cases, the County is vitally concerned with the manner in which the NRC responds to and implements NE?A's =andates and the recently-finali:ed CEQ Guidelines which further define those mandates.

A number of preliminary points should be addressed.

The NRC is the agency responsible for regulating, in the public interest, what has now been explicitly recognized as an in-herently dangerous technology. In these circumstances, faith-ful, painstaking adherence to the procedures deemed necessary to realize the benefits of the projections afforded by NEPA, would see='to be particularly appropriate. The NRC's past record in this regard, however, dees not inspire confidence that i=ple-

=entation of a new set of procedures, ostensibly designed to assure agency consideration of enviren= ental concerns and values, will result a fertierari in a beneficial change in the substantive approach or attitude brought by the agency to the discharge of its day-to-day licensing responsibilities.

~. ..~,. e . +f0lfL r mb>,,

Hon. Sa=uel J. Chilk May 1, 1980 2 .

Let =e illustrate. In the Jamesport construction license proceedings, the NEC, through its licensing board and staff, ti=e and again took the most restrictive view possible of the duties and responsibilities conferred on it by NEFA and then extant CEQ guidelines. Thus the NEC failed to require con-sideration of the Class 9 accident in the Ja=esport EIS, and to insist that the costs of such an accident - health, econc=10, social and psychological - be factored into the NE?A-required analysis of a project's relative costs and benefits. It failed to require EIS consideration and evaluation of responsible adverse scientific and technical opinions. It failed.to require EIS evaluation of the project's impact on proposed federal, state and local land use plans, policies and controls for the site location. And finally, the NRC refused to require preparation -

and circulation of a new or supple = ental EIS for the project despite drastically changed ciret= stances affecting issues related to need, alternatives, econc=1cs, and health and en-viron= ental impacts, issues at the very heart of'the NE?A process.

Si=11arly, the hearing board in the Shoreha= operating license proceedings has thus far declined to require preparation and circulation of a supplemental EIS in which the costs and i= pacts of a Class 9-type accident are considered. Instead, it has shifted its decision =aking responsibility on this issue to the NRC staff, deferring any decision on the need for a supple-

= ental EIS pending for=ulation of a staff position. The Board thus =1sperceives its responsibilities under NEPA. The Act i= poses a duty upon the responsible decision =aker to ensure consideration of relevant environ = ental costs and 1= pacts. If Class 9's are no longer considered by the NRC to be " improbable" events, as now must be the case following the TMI-2 accident, it is i=possible to conceive of any other single issue that would have a more profound i= pact on a project's " costs" than would analysis of a worst case nuclair accident. Yet, the NEC, in ongoing licensing proceedings, still ponders the relevancy under NEFA of such events while incremental investments in ongoing nuclear construction projects proceeds apace.

The point of this history is to de=cnstrate that estab-lishment of unifor= procedures designed to ensure consideration of environ = ental values and concerns cannot, by,.themselves, guaran-tee that this will be done. Rather, the key element of responsible regulation, as was made clear by both the Ee=eny Cc==issien and Rogocin Reperts, is to be found in the regulatcry attitude of the agency. If NEPA is to "... help public officials =ake decisiens that are based on an understanding of environmental consequences and take action that will prctect, restere and O

O

Hon. Samuel J. Ch21k ,

May 1, 1980 enhance the environment", there must first be an agency co==1tment to those goals. In the County's experience, the NRC's prime co==1t=ent has been to the expansion of the nuclear technology first, with health, safety and environ-mental concerns running a poor second.

The NRC's attempt to. reach "a sound acco==edation" between its independent regulatory responsibilities and CEQ's objective of establishing uniform NEPA procedures leaves one tp wonder whether the NRC's regulatory priorities remain un-changed even in the aftermath of the near disastrous accident at TMI-2. The NRC's proposed regulations take no position on -

several of the most critical of CEQ's NEPA regulations,' leaving g the issue of their imple= ente. tion to additional study.

• Most notably, the NRC defers taking a position on 40 CFR 1502.22(b) which requires an agency to perfor= a "werst case analysis" and indicate the probability or improbability of its occurrence whenever the agency is unable to obtain infor-mation relevant to adverse impacts important in making a reasoned choice among alternatives and the agency has decided, despite this uncertainty, to proceed with the action. The NRC's hesitation in i=plerenting this guideline is based on the following considerations: (1) impact on the lengt.h of ti=e and resources required to co=plete NRC licensing reviews; (2) a requirement that the agency perform a worst case analysis for both radiological and non-radiological i= pacts in situations where such analyses are not normally conducted; and (3) an i=-

pliedly adverse impact on NRC's regulatory activities if inter-preted to require in-depth analysis of the consequences of a

" worst case" accident in addition to an analysis of the like-11 hood that such an accident would occur. All of these justi-fications appear to stem fro = agency concerns about increased administrative burdens and have no relation to the nub of the issue, which is: "Are there any legally justifiable grounds for excusing the NRC frc= cc=pliance with the CEQ's " worst case analysis" requirement?" The County believes not.

There is no lenger any basis to argue, if there ever was, that a worst case, Class 9-type accident is such an i= probable event that it need not be considered in the licensing process. The NRC's repudiation of the central findings of the Reactor Safety Study - the repert previcusly used to support the argu=ent that occurrence of a catastrophic nuclear accident is a remote possibility - strips away any theoretical justifi-cation for such assu=ption. In addition, the TMI-2 accident, during which a far greater portion of the reactor cere was destroyed or damaged by heat than was thought possible, has been declared a Class 9 event. The NRC's cwn Siting Policy

' Hon. Samuel J.'Ch11k .

Ma-'1, 1980

. 4- , ,

Task Force (in NUREG-Oc25) made reco==endations to acceeplish.

the following goal, among others: 4 "To take into considerationfin siting 4

the risk associated with accidents beyond the design basis (Class 9) by establishing popula-tion density and distribution criteria".

1 The Commission's proposed amend =ents to emergency planning regulations (10 CFR, Part 50), explicitly reccgnize L 'that Class 9 accidents are events that now must be considered in state and local energency plans.

It is clearly contradictory.and inappropriate for the NRC to selectively recognize the need to evaluate " worst cas'e" accidents with regard to certain aspects ofcits licensing review function, and then to evade and/or equivocate on that duty when-it comes to imple=enting the mandates of.NIFA. In the view of the County, this duty to consider and evaluate the full health, environmental, economic and social costs and consequences of a Class 9 event extends not only to construc-tien license cases but to operating license cases as well.

A second area of CEQ guidance that troubles the NRC concerns.the scope of an agency's NIFA duty to comprehensively evaluate and compare alternatives to a proposed project. h0 CFR 1502.14(b) provides that the environ = ental impact statement

"...(d)evote substantial treatment to each alternative considered in detail including the proposed action so that reviewers.may evaluate their co=parative merits". 40 CFR 1502.22(a) requires an agency to obtain information relevant to adverse environ = ental impacts which is not known and which is essential to a reasoned choice among alternatives if the overall costs of so doing are

. net exorbitant.

1 The NRC's reservations again seem to be based upon a concern that the costs of ec=pliance, while they =1ght fall short of being exorbitant,will nevertheless be substantial.

This concern should be measured against the rationale-for the strong directives contained in these CEQ guidelines - that if there is one overriding i= perative called for Ey NE?A, it is the duty of the reviewing agency Oc consider and evaluate alternatives. Indeed, one of the pri=e purposes of the NEPA cost / benefit analysis is to per=it a rigerous ce=parison of a proposal to available alternatives. Si=ilarly, the concepts of " scoping" and of early E:S preparation help to assure that alternatives to a preposed =ajor federal action are not fore-closed by incre= ental decision =aking and invest =ents of resources.

• 6 .9

, , , . . . . s .. . . . . . . .

O - .

~.

Hon. Sa=uel"J. Chilk May! 1, 1980 c' '

In the case ~of nuclear power projects, the substantial-health, safety, enviren= ental and econe ic uncertainties which plague 1 that energy-option, reasoned, rigorous c,and which daily of consideration grow = ore pronounced, alternatives make.

all the more critical.

40 CFR 1502.9(c) provides:

" Agencies: (1)_shall prepare supple =ents

.to either draft or final environ = ental i= pact .

state =ents if: (1) the agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) there are' .-

significant new circumstances or information i

relevant to environmental concerns.and bearing

, on the proposed action or'its i= pacts." (Emphasis supplied).*

The NRC's proposed regulations only =ake preparation of a supplemental draft.EIS =andatory upon occurrence of the conditions specified in the above-quoted guideline (See, 10 CFR, 351.72). The NRC leaves the issue of the need to prepare supplements to final environmental i= pact statements to agency discretion and fails to specify the criteria that govern the exercise of-this discretion. (See, 10 CFR, 851.92,). The County maintains that the NRC should not depart frc= the strict letter of CEQ guidance in the =anner just described.

The Shoreha= operating license proceeding provides a' good example of why. -

The Shoreham final EIS issued in October, 1977. Since that time the following has occurred: (1) NRC repudiation of the Reactor Safety Study; (2) occurrence of a Class 9 accident at TMI-2; (3) a catalogue of technical, econc=ic, health, social and psychological impacts, problems,and uncertainties related to the clean-up of the TMI-2 plant; (4) issuance of an NRC Siting Study which, if applied to the Shoreham site, in all likelihood would eliminate'it as an appropriate place to construct a nuclear power plant; (5) an admission in cour: proceedings by the Shere-ha= project =anager that the plant was not designed to withstand a Class.9 accident and that it sits in several feet of groundwater; i

(6) a dra=atic decline in the rate of increase of electrical usage on Long Island, prc=pting applicant to recently state that the'Shereha= plant will not be needed until at least 1935; and (7) a dramatic increase in the construction ecs:s cf Shoreha=, which have risen by some 37 5% in the las year alene, frc= $1.56 to $2.2 billien. Only a little = ore than half of this $2.2 billion has been spen: by the applicant.

,. Hon. Sa=uel J. Chilk -

May 1, 1960 It could be argued that any one of the above items ,

constitutes a sufficient " substantial change" cr "significant new~ circumstance" as to require preparation of a supplemental EIS for Shoreham in which' the costs and. benefits of the project, and the alternatives thereto, could be reevaluated. Taken collectively, they represent an astonishing array of develop-ments that suggest the need for swift and serious reappraisal of the wisdem of going forward with the project. The decision of whether to require preparation of a supplemental EIS under circumstances.such as these just described should not be left to NRC discretion. As was found by both the Kemeny C6:=issien and the Rogovin Report, the agency has demonstrably failed to exhibit the kind of the regulatory zeal necessary for the r,esponsible exercise of such discretion. .

,,,Very truly yours, ,

David J. Gilmartin Suf *- 1: County At* . y By:

Ary p Like Richard C. Hand Of Counsel 4

O e

9 e

.i.,

=

_)s

.?

• i

'LESocur, LAMS, Letey & MAcRAE

~ 1333 Ncw HAMPsMemC AVENut,N.W.

WAa MINO?oN, D. C. SCC 36

,WhSpu 44..e.F*F.99

m. .. . a . . .. ..... ,.-.. .

m..,. o. o o ,s...........

.tu  ::' 1't'f.? :n..n.  :...';.::;r* =* ,m .. J..  ;;;~,=,= . ";; l:.*;;;;'.

. .... ..m

. s...n... . ... .. . - - . - s.. .a .. . . ... ..s .. -- -

.*'*:*  :~

...a.a

.o ..... . ...n':.s t:,;;t". :

.. .... t. ; ~~ ~

.%7f'W. 44' .

~~~~~

,m.- . .. .. .... .... .... --

2:.":.'

g g g g:n",,~~"

c,'f ; * .** *

: f;,.: :: w : -

so

= u.-. . .,e. . . . . -

.R 3.f e~;.' Qrc ~.a....~

uwia..c= =.

.........u.a. - a .un L ==>.u~.

u l' s.u.t.t:f : '*~

- *q ' ),uy 0!EO > e, -

~ .u:.'4 n "?*' ,u. ~ -

' .:.a

.C.6.

...a ,..

~r ic s. se -..u. - ~ a.==v awa.

. .. u y n ~n

. .. . . . a .. . .

g";3../.**.g6. t".;. %ti?"s*Lu CW2p,5mm smice = = a-as .'-- * >=c 6 E *

.s.,c m. ct i. gg Tsss.,a....

s.v eLse.n.c...tmi"l/s"

. . rv.much ta m. sw .c = - * . ,

sses

-s asm.s.F. L ...

= so m . .

u m... w.entrL m w v.T **

+

.m.s svg as.s'a b g4 was .. u =cs c== - .

i ,

es. m..

?>s ..

.ic'a. v = h.*

wem.m.t w s.o6evssov.

6swis ... .p.2is

.m.t.s

. . . . u , =.t= c . . . - .. t ., i e

. .csi..., m.v c . un-... eeries May 2, 1980

.. ...ns. vee .in..ev ,c.6u..a u.

N MDy Samuel J. Chilk, Esq.

Seeretary-

,0.S. Nuclear Regulatory PROF 03ED ELI i g g) g.j

. Commission g g 4g l Washington, D.C. 20555 (45 FR.13739)

Re Prooosed Amendments to 10 C.F.R. Part 51

Dear Mr. Chilk:

On March 3, 1980, the Commission published for comment a proposed new 10 C.F.R. Part 51, with related .

proposed amendments to other portions of _10 C.F.R. 45 Fed.

Reg. 13,739. With its notice, the Commission published two- ,

' letters from the Council on Environmental. Quality ("CEQ")

suggesting that additional consideration be given to _

certain matters. As counsel representing various utilities involved'in the Commission's licensing process, we wish to comment on both the proposed regulations and the CEQ suggestions.

l In general, we believe that the proposed new Part 51 represents a thoughtful effort by the Commission to conform its environmental review ~ procedures with those suggested by CEQ, while maintaining the independent authority of the Commission. Accordingly, we recommend that'the Commission adopt the new Part 51 in essentially the same form as proposed. We do wish to comment upon a few specific provisions that we believe could usefully be modified prior to the adoption of a final rule. For w .,epetyerd.

of?O m

m -n b 0%

.u- -- - z ,,  ;._z_-

. ._.- .p . ;_._ - ,; . - _ .g

..._ c m# _

i

' 4 -

y

=

convenience, our specific comments ~will be' keyed.to the ~

numbered sections of the proposed rule.

s

. . Section 51.10(c). We suggest that the~new Part .

51 should address une limitations on'the Commission's environmental review authority, imposed by. SS11(c)(2) of the Clean' Water Act. It has become clear from'the. decisions of the Atomic Safety and. Licensing Appeal Board' in ' Tennessee

-Vallev-Authority (Yellow Creek Nuclear' Plant, Units 1 and 2), ALAB-515, 8 N.R.C.-702 (1978) and Carolina Power and I

- Light Comoany~(H. B. Robinson, Unit No. 2),.ALAB-569, 10 N.R.C. 557 (1979) that the 1975 Memorandum of Understanding does not contain sufficient guidance on this issue. The ]1 Commission should consider. restating, as part of its new regulations, the limitations . imposed upon its review of non-radiological water quality matters. -

Section 51.20(a)_(2). This provision is ambiguous, since it falls to define any standard pursuant.to which the Commission's: discretion to prepare an environmental impact statement will be exercised. It is also unnecessary.

• Consideration of other proposed actions is adequately addressed in S51.20(b)(13). We recommend that 551.20(a)(2)

. be deleted.

'Section 51.21(b)(3). This subsection should be modified to conform with S51.20(b)(4) to provide that an environmental assessment will be required only "if a final environmental impact statement covering full power or design capacity operation has not been previously prepared."

[ .

. _Section 51.22(c)(9) & (11). These subsections H would create categorical exclusions for license amend =ents l~ '

that do not involve any change er. increase in the release of effluents or the exposure to radiation. It is submitted that the proposed definitions are too-restrictive. Section 51.21(b)(2) requires an environmental assessment where an amendment results in a significant change in the release of ,

effluents or exposure to radiation. To make the categorical  !

exclusions consistent with the requirements for an environ-mental assessment, the language of subsections (9) and (11) should be amended to include the word "significant".

Section 51.72(b). Those subsections would confer unlimited and undefined discretion upon the Commission's staff to prepare a supplement. We be.lieve that it is unnecessary to create such discretion. The circumstances in which a supplement is appropriate are adequately defined in subsection (a). Subsection (b) should be deleted. If it is not, then it is essentiil that the Commission provide a standard or standards to govern the axercise of discretion.

e

- ___________u_____.._________-__ _ _ _ _ _ _ . _ - . _ _

- - ;.  ;.a , . .u . a---- u ,w -- -

a. ; __.a-- .

r

-3 Section-51.73. This section provides for a comment period of 45 days from the date of publication of notice by the Environ = ental Protection Agency. Section 51.100 provides for the publication of notice by the Commission. We submit that these provisions are inconsis-tent. The co==ent period should be triggered by the publication of the commission's notice, rather than being dependent upon subsequent publication by EPA. . To do otherwise may result in delaying the receipt of comments and in confusion on the part of the public as to when.

comments are actually due.

Section 51.91(b). The requirement that responsible -

opposing views be discussed should be modified to require g the discussion of relevant responsible opposing views.

Section 51.92(a). This subsection contains nothing to define wnen ene preparation of a supplement is appropriate. The Commission should furnish such a defini-tion, as it has done in S51.72(a).

Section 51.100. This section would prohibit the Commission from taking various actions conditioned upon the publication of various Federal Register notices by EPA.

Sections 51.117 and .118 provide for the publication of notices by the Commission. It is submitted that the Commission's actions should be governed by its'own publica-tion of notices, not EPA's.

We turn now to a response.to the suggestions of  !

CEQ. Specifically, we wish to respond to the first three I numbered paragrahs in CEQ's September 26, 1979 letter.

1. CEQ crges the adoption of 40 C.F.R. 51502.14(b) - 1 as the standard for the treatment of alternatives in an '

EIS. CEO argues that this section is a restatement of existing NEPA law and is therefore binding on the Commission.

We believe that CEQ's position is not supported by existing NEPA law. ,

CEQ has failed to recognize the impact of several recent cases on the range of alternative sites which must be discussed in an EIS. In Seacos: Anti-Pollution Leacue

v. NRC, 598 F.2d 1221 (1st Cir. 1979), une courr nelc.tnat tne NEC had not violated NEPA when it decided to terminate late stage inquiry into nine alternative sites and six additional sites which had not been proven to be "obviously superior" alternatives to the proposed site. This "obviously superior" test was approved by the court in New Encland Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978), vnlen nolcs enat NEPA does not require that a plant ** built on the single best site for environ = ental 1

)

_ _ . _ _ _ _ _ _ _ _ _ . _ _ _ _ . _ _ - _ . 1

m . ,

[ .

-purposes. The court maintained 1"a12 that NEPA requires:is that alternative sites be considered and that effects of building the plant at the alternative sites be carefully.

l -studied and factored into the ultimate decision." 582 F.2d l at 95.

CEO fails to differentiate between the decision.

to proceed with the development of nuclear power itself and ll that of whether to locate a plant in a.particular area. As L the court stated in Seacost Anti-Pollution Leacue v. NRC,

.where the latter issue was involveo:

• Placing the plant'in'one place rather.than another will always have significant' environ-mental advantages from the perspective of those

^

who are spared the presence, in their region, of a plant they oppose.. But we do not think this shifting of burdens as between otherwise com-parable sites, warrants an environmental study."

598 F.2dHat 1232 n.9.

CEQ's recommendation that substantial treatment

' be given to each alternative :ensidered is a more rigorous standard than that currently required by NEPA law. Rather than demanding.a detailed study of all alternative sites, existing NEPA case law requires an in-depth ana)ysis of only those sites that might present a substantial measure of superiority over the proposed site. Alternatives that would result in similar or greater harm need no~t be discussed.

Sierra Club v.-Morton, 510 F.2d 813, 825 (5th Cir. 1975).

We believe that the. Commission is justified in its decision not to implement 40 C.F.R. 51502.14(b)-and that this decision is in conformity with existing NEPA' law. To require a detailed analysis of all alternative sites would be a wasteful expense of time and money and would not contribute to a reasoned decision under NEPA. .

2. CEQ contends that the Commission should be required to include within its EIS all relevant information which can be obtained concerning the environmental impact of a proposed project. CEQ argues that this requirement, as set forrh in 40 C.F.R. 51502.22(a), is a restatement of existing NEPA law. We believe that this argument lacks legal support.

The need to obtuin additional information must be assessed in conjunction with the purpose of an EIS. The fundamental purpose of an EIS is to ensure that decisions

, concerning federal actions will be made only after due consideration has been given to the environmental conse-queness. NEPA does not require that "the sum total of scientific kncwledge of the environmental elements affected by a preposal" be considered prior to the drafting of an

-5 . .  ;.7 .- ~ 1. ~ T---~ r - -

--~

r 4

w ~

^

EIS.- EDF v. Corps of Encineers, 348~F.Supp. 916, 927 (N.D. Miss. 1972). Similarly, in Alaska v. Andrus, 580 F.2d 465 (D.C. Cir. 1978), thp court asserted tnat "NEPA cannot be read as a requirement.that complete information concerning the environmental impact of a project.must be obtained before action may be taken." 580 F.2d at 473, quotinc Jicarrilla Apache Tribe of Indians v. Morton, 471 F.2d 1275,-1280 (9th Cir. 1973).

We understand that CEQ relies on EDF v. Hardin,-

325 F.Supp. 1404 (D.D.C. 1971).as authority for-its propo-sition that additional information must be obtained'if essential to a reasoned choice. However, EDF v. Hardin requires only that an adequate research program be completed -

p prior to a final decision. The case does not hold, or even

' "~

suggest, that information that is not readily available~ind

would be difficult or expensive to obtain must nevertheless be gathered.

Although CEQ acknowledges that the compilation of information for an EIS is subject to the rule 'of reason established in NRDC v. Morton, 458 F.2d 827 (D.C. Cir.

1972),.it ignores the courts' continual assertions that NEPA does not require that an EIS'be exhaustive in scope nor analytically perfect. We believe that the Commission is justified in its decision not to implement 40 C.F.R.

51502.22(a). so long as the Commission bases i.t actions upon sufficient information to permit a well-reasoned decision, the mandate of NEPA will be fulfilled.

3. CEQ asserts that the Commission should consider Class 9 accidents as part of its environmental review. CEQ's position has been reasserted and amplified in a March 20, 1980 letter from its Chairman to Chairman Ahearne. We believe that CEQ's position lacks both legal and factual support.

CEQ has chosen to ignore a line of court decisions upholding the Commission's established practice of refusing to analyze the consequences of any Class 9 accident in its environmental impact statements. In the latest of those decisions, Hodder v. NRC, 13 ERC 1711 (D.C. Cir. 1978),

cert. denied, 100 S. Ct. 55 (1979), the Court of Appeals said:

"It is we11' settled that, because of the extreme improbability of their occurrence, the NRC need not consider the environmental effects of so-called ' Class 9' accidents." 13 ERC at 1712.

Indeed, the Court of Appeals considered that conclusion to be so routine that it ordered its decision not to be O

4

2 e

-f pubished pursuant to 58(b) of its Rules. See 589 F.2d-1115 gn (D.C.'Cir. 1978).

CEQ argues-that He'dder'and the. cases preceeding it.are no longer good-law because.those decisions did not i

take into account the Commission's " repudiation" of the

.Rasmussen' report,' WASH-1400, Land the accident at Three Mile

-Island. Essentially the same~ arguments _were advanced by

~ Bodder in his petition for . a writ of certiorari. - The Supreme Court, however, routinelyTdenied certiorari six months after Three Mile Island. 100 S. Ct.'55.

CEQ's position is not simply that the Commission should consider.a Three Mile Island accident at other

. plants. .CEQ wants the NRC to analyze in' detail the.conse-quences of a core melt accident with a' breach of containment.

The fact-that Three Mile Island may be characterized as a Class 9 accident: scarcely. supports the conclusion that such' infinitely more serious events are now sufficiently probable to. require' detailed analysis. We believe that the Commission ,

Hi.s fully justified in continuing its refusal to analyze core melt accidents, and that the courts will continue to uphold such refusal. -

We do not mean to suggest that the Commission should ignore Three Mile Island or even ignore CEQ.- The Commission can and'should

. explain in greater' detail and better prort why it does not require environmental-an .ysis of core melt accidents

. acknowledge the possibility of accidents

, beyond design basis like Three Mile Island

. explain actions taken since.Three Mile Island to avoid recurrence of similar accidents

. analyze the effects of an accident like Three Mile Island at the candidate site

. include liquid pathways, at least to explain in greater detail and better prose why they are not significant at the. candidate site.

The future treatment of Class 9 accidents in environmental impact statements is a complicated question that, in our opinion, requires more detailed consideration than is possible in the present notice-and-comment rulemaking.

- We therefore reccmmend~that it be severed frem this docket and made the subject of'a new rulemaking based upon CEQ's u .

l 4

-+ '- .

p F ,

7 .

.c ,

March 20, 1980 letter and enclosures, together with an NRC.

staff report to be developed in response to CEC. Certainly it would be unfair (and probably unlawful) for the Commission to make any drastic changes in its existing policy.and in-the rules here proposed without republication.

i i

e sincerely, k ,

$$th, 4 ?N O

e O

P t

a - .. , . . . . ,

^

l .- -, _ 8800 BCvtNTEENtw stngtt, m. w, waSmewSTON, D. C. 20036 s.ess e 6,egnes.. ' .som.6s a s.w.mte soggy. ,,,,,,,3 p.soseeen 9. es.m6s - se.. mew 6 sessee -

~ " " "

sessem a . mens.,a . m.sse6m m. >=eure.sa.

wou a s ..sogn.sa. s.osames <=t.am.se vs ..e a esesveset sono e.. egtem wow .as a names a eswass6 .

mess .eemeenwg meneau m.vasmo a

. s. ... 6 . . .. r.

6. - , 6c .c -

6........,.. ~.u...- wens .. ..... -

.6. ... 6.. e . a. .u ,,,,,,,,,,.

. . .... ...... . m u....w.... ... .

857-9819:

May 7, 1980.

Secretary of the. Commission -

U.S.-Nuclear Regulatory Commission .

Washington', D. C., . . 20555 Attn: Docketing and Service Branch (Jane R. Mapes, Assistant '

Regulations Counsel).

~

Dear Sir Enclosed herewith for filing are " Comments of Edisch Electric Institute on Proposed NEPA Regulations". ,

. These comments are being filed after the date set in the. March 3, 1980' notice of preposed rulemaking pursuant ,

to a telephone conversation between the undersigned and '

Ms. Mapes on April 29, 1980. The appropriate executives of'EEI were not available to review and sign these comments the week of May 21, 19 80 because of an out-of-town meeting -

which required their attendance.

Very truly yours, l . pW Ric'ta rd C. Browne .

RCB/kiv Enc 1: As stated.

6 0

.* l

: 1 l

. l

. UNITED STATES OF AMERICA I

, BEFORE THE NUCLEAR REGULATORY COMMISSION Proposed environmental )

protection regulations ) 10 CFR Parts 2, 30, 40 for domestic licensing ) 50, 51, 70 and 110 and related regulatory ) (45 Fed. Reg. 13739) functions and related )

conforming amendments }

COMMENTS OF EDISON ELECTRIC INSTITUTE ON PROPOSED NEPA REGULATIONS Edison Electric Institute (EEI) submits the following comments on the Nuclear Regulatory Comm.ission's (NRC or Commission) proposed regulations which were published in the Federal Register on March 3, 1980 and which would revise Part 51 of the Commission's regulations regarding implementation of sect' ion 102(2) of the National Environ-mental Policy Act of 1969, as amended (NEPA). ,

EEI is the association of the nation's investor-owned electric utilities. Its member companies serve 99.6% of all ultimate customers served by the invest'r- o owned segment of the industry, including 65.5 million -

electric customers, about 77% of the nation's electricity users. Many members of EEI are NRC licensees which are constructing and/or operating nuclear power reactors.

EEI supports the Commission's proposal to revise its regulations which i=plement section 102(2) of NEPA (40 CFR S1500 et'. zse.). We agree with the Commission's assessment of its relationship as an independent agency, O

t

_.--_--__--_--J

lYN l -

2'- .

o . .

'te'CEQ and its. responsibility for implementing NEPA Requia--

tions. The_ Commission's policy decision to take account voluntarily, of CEQ Regulations subject'to certain' conditions is sound from the' perspective of effective NEPA' implementation.

On' balance the NRC has done a commendable job.'in proposing what are, in our judgment, well-organized and appropriately detailed regulations. In the comments'which follow we Loffer suggestions which we believe will clarify and improve the' proposed regulations. The first section of our comments addresses the three issues as to which NRC-indicated'need for further study and on which it expressly invited comments and suggestions.. Tne second section of this paper addresses suggestions >for specific _ changes to the proposed regulations,

- which changes would further clarify the Commission's intent on NEPA procedural matters. /

I ,

RECOMMENDATIONS OF CEQ 04 WH7,CH NRC INVITED COMMENTS f

In its discussion of the Proposed Rule (45 FR at

,,  ;, 13742) the Commission indicated that "additonal study" would be required by the NRC before regulations could be proposed to implement 40 CFR 1502.14(b) Treatment of Alternatives, 40 CFR 1502.22(a) obtaining Impact Infor-mation Which*is Not Known, and 40 CFR 1502.22(b) " Worst case" Analysis contained in the CEQ Regulations.

i

_____---_-___a

l . t.

c In these " Comments", EEI offers its suggestions on those considerations which NRC should take into account in its studies or proposals concerning 40 CFR Sections 1502.14(b), 1502.22(a) and 1502.22(b).

A. Treatment of Alternatives EEI recommends that the NRC adopt, independent of 40 CFR 51502.14(b), a regulation on this issue which is fully consis-tera with current judicial interpretations of NEPA. Such a regulation should articulate in detail, the categories and quantities of factual material which are to be incorporated in a NEPA record before NRC, and the standards and decisional criteria which will be applied to those materials. Such a regulation will promote a better understanding by applicants and licensees, by the NRC staff and decision makers and by the public at large, of the NEPA process within the Commis-sion. This better understanding will, in turn, tend to promote confidence in the fairness and objectivity of the NRC decisional process under NEPA.

We note that on April 9, 1980, NRC published a proposed .

Rule with an extensive statement of considerations (45 Fed.

Reg. 24168) which would articulate NRC's requirements f6r~~

treatment of alternative. sites. While we will not offer

. extended comment here upon that proposal, we cannot pass the opportunity to state that, in general, the April 9 M

) L. - .

L:i ..  ;

P ..

4.-

proposal provides the kind of guidelines and criteria which j are called for by the 'CEQ regulations. ' We:would hope' this proposal will result in a regulation which articulates in. j

. a advance both the categories and kinds of information which:

l j' can be expected to be'necessary for a: complete NEPA decisional record and the standards'for decision making which-will apply to the information.

~

It. is obvious to those who have experience in the NEPA.

decisional process that no regulation or guide can anticipate every kind'and category.of data which will be needed for all future cases. This is why courts. interpreting NEPA have consistently applied a common sense or reasonableness' test ,

to the NEPA procedural process. That which is clearly needed, and.that which.can be done,to assure an orderly

. Commission NEPA process is'to provide a clear statement for each action to 'which NEPA applies cbout how ' the process 'will work and what is expected of each participant in the. process..

-NEPA's procedural requirements have-been interpreted ,

extensively in the courts and a brief summary of the points which apply to selection and analysis of alternatives can be simply drawn. )

I It is well settled that in an EIS the examination of I alternatives mandated by section 102(2)(C) of NEPA requires '

consideration of all reasonable alternatives to the proposed

" major federal action". The United States Court of Appeals j

'for the District of Columbia has said:

i l

___._..__.--_-_x_- _____-_-__----.__A

-A sound construction of NEPA . . . requires a presentation of the environmental risks incident to reasonable alte' stive courses of action.

[ Natural Resources 'fense Council v. Morton, 458 F.2d 827, 834 s .C. Cir. 1972)]

This does not mean, however, that the scope of the consid-eration of alternatives is unbounded. The Supreme Court has said that:

Common sense . . . teaches us that the ' detailed statement of alternatives' cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. -

[ Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551 (1978))

Stated another way, the consideration of alternatives pursuant to NEPA is subject to a " rule of reason".

NRDC v. Morton, supra, 458 F.2d at 834.

Similarly, the detail required in the discussion of alternatives in the EIS is also subject to considerat.? 3 vi, reasonableness. It has been stated:

The detail required in an EIS is that necessary to establish that an agency with good faith objectivity has taken a sufficient look at the environmental consequences of a proposed action and at alternatives to that action.

[NRDC v. NRC, 606 F.2d 1261, 1271, n. 37 (D.C.

Cir. 1979), citing Save our Sycamores v. Metro-politan Atlanta Racid Transit Authoritv, 576 F.2d 573, 576 (5th Cir. 1978))

This concept was most succinctly stated in NRDC v. Morten, suora, wherein the Court said:

e 1

i l

l-1 ,

o

f,*. '

'6'.-

. We reiterate'that the discussion of environmental effects of. alternatives need not be exhaustive.

What is required is information sufficient to permit a reasoned choice.of alternatives so far as environmental

v. Morton, aspects supra, are458 concerned.

F.2d at 836. (emphasis

[NRDC added)]

This state.3ent of the requirements of NEPA has been roundly accepted by courts interpreting section 102(2)(C) .

of NEPA. See, e.g.: State of Alaska v. Andrus, 580 'F.2d 465, 480 (D.C. Cir. 1978); Monroe Countv Conservation.

Council v. Andrus,'56C F.2d 419, 425 (2d Cir. 1977), .

cert. den'd 435 U.S. 1006 (1978);~ Mason County Medical Association v. Knebel, 563 F.2d 256, 264 (6th Cir. 1977);

Coalition for Responsible Recional Development v. Coleman, 555 F.2d 398, 400 (4th Cir.1977); Robinson v. Knebel, 550 F.2d 422, 425 (8th Cir. 1977); Covington Preservation Committee v. Federal Aviation Administration, 524 F.2d.241,,

244 (1st Cir. 1975); Brooks v. Coleman, 518 F.2d '17, 19 (9th Cir. 1975); Sierra Club v..Morton, 510 F.2d 813, 826 (5th Cir. 1975).

It is important, in approaching the task of articu-lating procedural guides or regulations, to rely upon experience gained through applying this standard of rea-sonableness or common sense; to prescribe, seriously and objectively, those steps which are known to be required {

i l

. 1 l

l J

b.

'~' ' ~'^^~

. . . . : , . .. . a u ;. . o

. :- _y_ ,

1. in a11 Leases; and to account for the unusual case by clear caveat. The caveat would provide that additional steps, as needed, will be taken in the unusual: case to ' assure an adequate decisional record. Such guides must be applied in a way-wh'ch'i recognizes that the ultimate decision reached will always-be tested by the dictates of common sense.

To prescribe that the decision maker consider.infor-mation beyond that which is useful for the decision does just as much violence to common sense as to prescribe consideration of too little information.

?- As a final ~ general matter, the NEPA goal of reducing paperwork and duplication of ef fort deserves recognition as an i=portant element in the procedure. NRC has already recognized through its approach to generic rulemakin( that time,' effort'and expense can be conserved when decisions of general applicability based upon a single record (the rulemaking record) are applied in all: cases. For example, many alternative energy sources which would be considered in an EIS could be dismissed as inappropriate for further consideration for-reasons which become evident without detailed evaluation in each case.

As a further example,'most sites offered as alternatives to a proposed site can be evaluated for adversa environ-mental impacts using readily available information. So long as, upon reasonable examination, an alternative site does l

l- .

(

}

- [D * :. : '

-g- ,

not appear to- bel distinguishable ' from an environmental standpoint from the proposed site, then the alternative ' site is not obviously superior and NEPA's mandate would be j 1

satisfied. See New Encland Coalition on Nuclear Pollution

v. NRC, 582 F.2d 87, 95 (1st Cir. 1978); see,cenerally, Natural Resources Defense Council v. S'.E.C., 606 F.2d 1031,

~ 1054 (D.C. Cir.1979); Citizens for Safe Power v. NRC, 524 F.2d 1291, 1301-02 and n. 18 (D,.C. Cir. 1975); Iowa Citizens ,

for Environmental Quality, Inc. v. Voice, 487 F.2d 849, I

852-53 (8th Cir. 1973). In none of the decided NEPA cases' in the courts does there-appear a suggestion that the EIS I

analyze.the proposed site and all alternatives in equal detail.

A regulation.which deals with alternative site analysis should prescribe the categories and quantities of' data

~

required for the usual case, and ' couple with that prescrip-tien, the reminder that additional data may be called for in those: circumstances where common sense or reason requires it. We encourage NRC to adopt a regulation which does recognize the rule of reason and which fully reflects the current status of the decisional' law interpreting NEPA.

B. Worst Case Analysis In its regulations, CEQ calls for two part consideration of environmental impacts essential to a completed decision but for which no information is available [40 CFR 1502.22(b)].

0

The two> steps called for are (1) an indication of the probability of occurence of the ' impact, and (2)~an analysis of the " worst case" impacts upon the environment i_f,fthe* -

event should occur.

Much of what was said about principles for evaluating p alternatives applies equally to 'the principle that in some cases, absent critical data or information needed for a reasoned decision, hypothetical estimates of environme: c,a1 .

consequence may have to be constructed. Reasonableness is ~

again the point of departure for a decision to adopt this 4

surrogate procedure in a NEPA analysis.

While the EIS must consider " environ = ental risks incident to reasonable' alternative courses of action",

e this requirement is subject to a rule of reason. Natural-Resources Defense Council v. Morton, 458 F.2d 827, 834

_(D.C. Cir. 1972). With respect to the consequences of a' alternatives discussed in the EIS, it is well settled

^

that:

An environmental impact statement need not c discuss remote and highly speculative con-sequences.

[ Environmental Defense Fund v. Hoffman, 566 F.2d 1060, 1067 (8ta Cir. 1977)]

The surrogate " worst case analysis". procedure is likely rarely to be invoked because it will seldom occur that information about environmental impacts from foreseeable events will be "not known". It seems unlikely that the L .

. . _ _ _ _ . _ _ _ _ _ _ __ __ _ __ ___.____m___...m _.___.__.________.__._m __.m- _ _ _ _ _ _ _ _ . _ _ - _ _ _ _ _ . _ _ _ _ _ ___. --

~ -

10 -

procedure will be a cause of concern in-NRC proceedings so long as common Jense is used, and worst-case analysis is applied only to those environmental. impacts which may.

reasonably expect to be encountered in the lifetime of the authorized project.

The Commission has already begun separate consideration of a proposed Interim Policy Statement that would require discussion of " Class 9" accidents in an EIS and in a'n-Applicants' Environmental Report. See, " Accident Consider-ations Under NEPA", SECY-80-131 (March 11,1980) . Treatment of significant matters by generic rulemaking procedures should always be encouraged in order to avoid the burdens created by case-by-case analysis of such matters.

l 4

4 4

0 4 e 4%

d*: , .- .

L 11 - .

L .

C. Extent to Which Information Must Be obtained To. Analyze Relevant Adverse Impacts The CEQ regulations call for the collection of essential but unknown information about environmental impacts if the overall costs (including time, effort, resources,and delay

. costs as well as' dollar costs) are not "exhorbitant" (40 CFR 1502.22(a)].

For. cases where categories or quantities of information

, are not available for _ essential areas of NEPA analysis, the Commission should establish some guide to enable participants in the process t.o determine the level of effort which may reasonably be demanded to gather such information.

The keys to setting such guidelines are: (a) that the missing infor=ation be truly essential to the decision, and (b) that common sense be applied to the demand that time, effort, money and resources be spent in search of the information. If a " worst case analysis" is available as a bottom line surrogate when essential data cannot reasonably be obtained, common sense should be applied at the point .

where a choice is made between spendine valuable time,

~

effort and money or adoptine the surrogate method.

At all costs, it must he clear that the information to be sought is truly essential to the NEPA decision. Too often the impulse to "get more data" in the hope the decision will

• \

__.___.________m._._.____.___._____.._._____..___.__m.____ . __ _.

fe ....

be made easier,.is irresistible - though-reason and common-sense' dictate that the search for data be ended.

No interpretation of NEPA requires that the decision maker run to the ends of the earth. Few decisions could be.

made if the record of decision had to remain open until absolutely all information on all alternatives had come -in.

-Information collection in the NEPA process is a rational' exercise and'must at some time come.to an end. The courts -

have consistently approved agency action based upon reason-ably available information. .See: Vermont Yankee Nuclear Y

Power Core. v. NRDC, suerg at 551; cadv v. Morton, 527 F.2d 786,.796 (9th Cir. 1975); sierra Club v. Freehlke, 534 F.2d-1289,1296 (8th Cir.1976); NRDC v. Morton 458 F.2d 827, 836 (D.C.'Cir. 1972).'

• Even in the rare case where information trul essential to a decision among alternatives is "not known" reason must be applied to the choice between pursuing the quest for ,

information and relying upon the surrogate " worst case  ;

analysis". Though we believe the case will be rare' in which (

the cheice would be forced, the Commission should provide advance guidance by regulation so that the rules for choice will be known to the participants. Once again, knowing the rules will promote fairness to all participants. Whatever 0

r[

13 -

adjective (viz. significant, exhorbitant, disproportionate, substantial, etc.) is chosen to describe the costs in effort, money, delay or resources, some detailed and thoughtful statement of policy for commission proceedings will aid the decision maker in making the choice. Here again the decision maker must be required to use common sense in deciding whether the likelihood or probability of the impact occurring warrants seeking more information. Of equai '

importance, this statement of policy will allow staff, applicant and the public to know what level of effort will be expected, reasonably to assemble information for decision.

II PROPOSED NRC REGULATIONS A. Categorical Exclusions '

The' actions listed under proposed section 51.22 as categorical exclusions should be brcader. While we support inclusion of each of the items on the propos'ed

~

categorical exclusion list, there are some items which we believe should be included in the list at this time:

a. A general provision should be added such as 10 CFR S51.5(d)(4) of the Commission's present regulation 6 excluding the issuance of a materials license or an amendment or renewal of a materials or facility license other than those covered by the sectier.s specifically requiring environmental impact statements or environmental assessments.

e9

________________m__._ _ - . - _ _ _ _ _ _ _ _ - - - - -

• .~ --...

t 14 -

I. *

b. Issuance, renewal or amendment of a Part 30, 40 or 70 license to a holder ~ of a construction permit for a power reactor where such a lic'ense expires upon issuance of an operatinc license, including the-authorization for storage only of unirradiated reactor fuel prior to issuance of the operating license.

c. The renewal of a construction permit issued to

a. power reactor, pursuant to 10 CFR 550.55(b).

d. . Any change in a principal environmental protection commitment by the holder of a construction permit or operating license whita does not necessitate the issurnee of an amendment tc such permit or-1Leense. .

Because these additions would not involve adverse impacts on the environ =ent that are significant or are not carefully examined during the licensing process, we believe it would

- be appropriate to include these on the lis't of categorical exclusions.

B. Environmental Reeorts Th'ere are several instances where the proposed regulations concerning an applicant's and petitioner's environmental report (ER), proposed 10 CFR 551.41, are not clear and should be -

revised before publication in final form. These instances are as follows:

1. The environmental i= pacts of alternatives and the proposed action are to be " presented in ecmparative form".

Proposed 10 CFR 551.45(b)(3). The meaning of "cc=parative form" is not clear, and should be defined or ekplained, O e L_____________._______.__.____________.___ _ . _ _ _ _ _ . _ _ .

e. -

,... p including a presentation of examples. In any event, we recommend retaining the language, "to the extent possible" in this section as being a reasonable means to clearly accomodate those instances where environmental impacts of alternatives could not meaningfully be presented in any comparative form.

2. With respect to the requirements concerning an Applicant's Environmental Report for the operating license '

~~

stage (ER-OL), pr oposed 10 CFR 551.53, does not provide -

that the ' Applicant's ER-OL may incorporate' by reference information contained in the ER or the Final EIS prepared in connection with the construction permit. This provision is in the present Commissien regulations. See 10 CFR 551.21.

We reco= mend it be retained in the new regulation. ,

This provision would reduce paperwork and promote efficiency in the license process.

C. Environ = ental Imeact Statements Present NRC regulations allcw the EIS for operating license review to incorporate by reference, information contained in the final EIS prepared for the construction permit review. 10 CFR 551.23(e). The proposed regulations do not provide for this. See, proposed 10 CFR 551.95. We recommend this provision be retained in order to reduce delay and paperwork in accordance with those gosis as set f o r th by CEQ. See 40 CFR 551500.4 and 5.

O

- 1

~

I

D-y . . .

q. s. -

, D. Limitations en Actions The Commission proposes to require that prior. to 1

issuance of the " record of decision' in connection with l a proposed action for which an EIS is required, no action I

may be'taken concerning the proposal which'would have an adverse environmental i= pact or limit the choice of reasonable alternatives [ Proposed 10 CFR 551.101(a)].

l Section 51.101 then authorizes certain actions to be taken .

by applicants prior to the issuance of a license or permit, i.e. , certain activities at the proposed site of a nuclear reactor with de minimis environmental impacts as authorized by 10 CFR 550.10(c). [ Proposed 10 CFR S15.101(a) (2)] .

EEI. suggests that, in addition to those actions already listed in section 51.101 as being exe=pted from this section's prohibitions, actions which are authorized pursuant to a grant of a " specific exemption" frcm Commission regulations

[10 CFR 550.12), should also be included as exempt from_

the prohibition of proposed section 51.101. It is possible that proposed 551.101 as written, may be interpreted as repealing 10 CFR 550.12. To avoid the possibility of such confusion, EEI . recommends that proposed section 51.101 provide that actions authorized by a specific exe=ption frem e

O 4

, . - _ ..e . . . . .- . . .

mar.ayy4mm,s_.n ~n =- ---

.)

• a

- 17 -

Commission regulations, pursuant to 10 CFR 550.12, will also' be exempted from the limitations on actions set forth in proposed 51.101.

Respectfully submitted, EDISON ELECTRIC INSTITUTE By: . A chn J. arne Senior Vi resident -

9 h

e e

9 e

=

,..L.

. ,n . . ..,

(4,gj f UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 MAY 5 1830 ""

ADhttf615TRATOR Secretary of the Commission ,

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN: Docketing & Service Branch  ;

Deal- Sir:

The U.S. Environmental Protection Agency (EPA) has reviewed the Nuclear Regulatory Agency's (NRC) proposed rule revising Part 51 of its Regulations to Implement Section 102 (2) of the National Environmental Policy Act of 1969, as amended, (NEPA). We have several comments and suggestions for your consideration.

EPA is concerned that a critical element of the NEPA process, the consideration of alternatives to the proposed Federal action, is lost when the Commission limits its licensing

' functions to approval'or. denial of applications. NEPA -- i as shown in case law and as codified in the new CIQ regulations -- clearly requires the decision maker to consider the whole range of feasible alternatives. We note, especially, that Section 1502.14 (c) of the CEQ regulations includes the possibility that the reasonable alternatives to be evaluated need net be within the jurisdiction of the lead agency. EPA strongly urges that the NRC include within its proposed rule the requirement that the environmental documents comply with Section 1502.14 of the CEQ regulations.

If the NRC decides not to require that the applicant perform this analysis, then NRC should perform it itself.

In the event that the NRC exercises the "right to prepare an independent EIS" (45 FR 13740, 51.10 (b) (2)) , EPA suggests that the NRC assure that the NRC EIS is made available to the public and responsible agencies simultaneously with the IIS prepared by the designated lead agency to allow evaluation and comparisons between the environmental impacts described j by both agencies. ,

Whenever the NRC includes material in an EIS by reference, the NRC should assure that this material is readily available to the public for review.

-- 3 ;

l p .yj , ,

e t

We note a potential error (45 FR 13747 Item 14 (vi)): An exposure of 0.4 rem per year is 8% of the allowed limit, not

[

less than it" as is stated. '

We appreciate the opportunity to coment on the proposed regulations. If you have any questions regarding our coments, please contact Ms. Bett.y Jankus at 202/755-0770.

s ._ Sincerplly q you: ,

%N /*

William N. He man, J Director Office'of Environmental Review (A-104) e e

0 e e 4

l l

1 1

T

.e 2

OOC I ETY l' O M A M E R I CA N A R CHA EoLo0Y wo::+o+o9e+esceo+o.gosososo+ogogogogo..;..a 1 I

Committee On -c. Derart=ent of Anthre;clegy I fj Universit/ cf Massachuse::s L' A=herst, MA 01003 (t.

@M April 7, 1980 ,

g pu hc arc ecogy z..\fft._.

s a% s C Secretary cf the Cc==issic:

PROPD5tD aug ~k' 3 I L}Q@l2 -

t:snec D~ 1 U.S~ Nuclear Regulatcry Cc==ission Washingten, DC.

0, Sl,70 Ilo t '* 16 Le co 20555 , J > ria r, .

Attenties: Decketing and Service Branch 5 FR.13187 w.,c, a:.e;.r .x. .e' *

.w 5:an h-

\[,

Dear Sir:

NI I O \

This is a respense to the pre;csed Rules for 10 CTR 2,30,LO,50,51,70 and 110, as published fer pblic review in the Federal Register (45(43)).

I wish to call to your attentics that the pepesed rules do =ct indicate precedures fer the identificatics, evaluatic: and potectics of historical and/cr archaeological peperties which may be affected by HEC licensing.

Mest of the agencies which have p blished draft er f*-=1 r:les is resyc=se to 2011991 have ade efforts to coordinate histcrical property review in their IIS procedures, as rece== ended in 40CF215CO. Che cocr"% tics is by :o means unifer: frc agency to Egency, but the effort is there. Cec-pliance with 360.-M00 =ay be part of an EIS, er separate frem it c I

occasicus where no "S is re:;,uired but historical /archaeclegical rescurces are to be effe :ed. "'he Natic:a1 Eis:cri preservati: Act et,1966, a's a= ended, pir es responsibility fer the cc:sideratics cf i= pacts c- 'd ---d-properties u:o age:cies which issue licenses. U2; envirc::e :a1 review Fecedures would be ==re fully cc:;11ast with cc gressic-*' intent a :i with 40 CF2 1500 and 36 CTR 800 if they explicate the C:==issic 'a resyc=sibilities fer histeri: preperty review at ay;repriate p12:es in the, pla==iss stages of lice: sed actices.

Yours,. try.17, p- , -,, +s .. -

,, Q. n.c * -

Desa F. Dineau e Associate prefesser of A tre; legy Chair, Cc--'ttee c Public Archaeclegy of the Society for A=arica ArchaecicE7 Q g gbyc:rn4.8  ! "

u_________._._. _. -

pocI U .w e tR /

6312 Militia Court mvm aua 3R:-p.30 I40 ' sq 51' 74 no s4 3e==^1e=> F 'Sozo (4sf FR.13739) April 29' tesa m iiw Secretary of the Cc :ission b 3

U.S. Nuclear Regulatory Co :ission cm "hyge f',

7tashington, D.C. 20333 h

- MAY 19 GEO P- .G.

{ O!kt CI D8 88@dj g:6.dtg15th E:r.:n

Dear Sir:

y ,QA ~

I have been reading"Inviron= ental Frotection Regulations~ s t W '.l '

for Oo=estic Licensing and Related Regulatory Functions and Related Confor=ing Amendments #(Federal Register Vol. 43, no.43).

I find it appalling that a docu=ent like this one which purports to infer = the public is couched $n convoluted sentences and technical jargon =aking it impossible for the general reader to ec=prehend the contents.

This article contains frequent references to other docu ents of the nuclear Regulatory Co :ission, usually without footnotes explaining the nature of these other docu ents. Do you expect the public to have these dccuments cenritted to =e=ory, or do you ex;ect the readers to research the other docu=ents while they are reading this cue?

Actually, your intent is quite clear. Tou;tust make your documents public and so you do so. 2nt you purposely obscure the content in a =ane of cenplex sentences and technical vocabulary.

If you are really interested in inferming the public, 7hy not hire writers (not 1seyers or engineers, but people from the I general public) to yrite these dccu=ents or at least to paraphrase the: for the public.

Sincerely, c.. . . - ,,s,6hSL.WN*

Cercl zas=er Fcrd

• i

,@N Ccmmonwa2!!h Edh:an

. . / on1 First Natica.at Para CNc2cc Ithneis  ;

'.'N/

Q '.' Accress "CNcago.Acety to: F:st 0::2ce scx 767.

Ilhnois 60690 .

j j

,,g April 30, 1980 . T'\ I '4 Il mece na PR-2. 3Q h'O,50, 51, am 90,)ll0 4C

('15 FE I3739 .

c5 Secretary of the Commission M 19 Unitec States Nuclear Regulatory Commission  !

g..d ct,yQ* [., /

Washington, D.C. 20555 o twq(q,.* ,

Attention: Occketing and Service Branch N RE: Proposed rule for Environmental Protection Regulations for Domestic Licensing and Relatec Regulatory Functions and Related Conforming Amendments. l Gentlemen: -

Tne following comments are submitted on behalf of Commonwealth Edison Company (" Commonwealth") which has a major interest in these proceedings due to its substantial commitment to nuclear power, Commonwealth holds operating licenses for seven nuclear units. In addition, it has six nuclear units that are under construction and two nuclear units that are undergoing NRC review for' site suitability. Since all of these may well be affected by this rulemaking, Commonwealth has a substantial stake in the effectiveness of the resulting rules.

The preamble included in this notice of rulemaking states that various sections of the Council on Environmental Quality's (CEQ) procedures for implementing tne National Environmental Policy Act (NEPA) (November 29, 1978, 43 FR 55977) are not to be implemented by this rulemaking.

Commonwealth wishes to address these sections first:

(1) 40 CFR 1502.lc(b)

This section requires that the EIS " devote substantial treatment to each alternative considered in detail including the p;cposed action so that reviewers may evaluate their comparative merits." With regard to the consideration of alternative sites, however, Commonwealth agrees with the NRC position that the added costs of requiring cetailed site-specific inve,tigations anc analyses en all l candidate sites normally woulc not be justifiec by the resultant marginal imorevement in environmental protection, anc that major adverse environmental impacts can normally be icentifisc j using reconnaissance-level information. The NRC's notice o f proposec rulemaking ( April 9, 1980, 45 FR 24168) to amen: 10 CFR Part 5) -

Licensing and Regulatory P0licy anc F ccecures for Environmental Protection: Alternative Site l Reviews addresses this point specifically and

,, w. .-[;:. q.c .fy y. a d d . I

-_ _ _ _ _ _ - _ _ _ _ _ _ _ - _ - _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ )

g , ; ., . . _ .

H Y .. : d. l

~Y -

Ccmmonwaalth Edison is the proper rulemaking in which to address this issue.

(2) 40 CFR 1502.22(a)

' The Federal Register' notice states "This provision could impact any NRC decision in this-circumstance where the costs (in terms-of both information' gathering cost and project delay j costs)'of obtaining the information needed for a. 1 reasoned choice'among the alternatives are large but fall short of exorbitant." 1 We agree that care is needed in determining when i costly information is essential to a reasoned choice a;nong alternatives. Even when costs are '

large, but not exorbitant, restraint must be used. The NRC, after all, is committed to implement not only NEPA but also Executive Order  ;

12044, (March 24, 1978, 43 FR 12661) and Section H 3512 of the Federal Reports Act, 42 U.S.C. 3512.

All requests for data where costs are expected' '

to be large, should have to be justified on the basis that the magnitude

• of the benefits to be derived from the information clearly, exceed the costs associated witn cotaining and analyzing 3

• this information. Any requester of additional  !

l information should specify qualitative and  !

quantitative data requirements, recommended 1 scope of work, and expected benefits to be i derived from tne. data. Obtaining this data may  !

delay the NEPA decision and, nence, the project ccmpletion. The cost of obtaining and analyzing l j

this data should be aeded to the costs '

associated with project delay whien, in cases affecting the operation of nuclear units, would include escalation of construction costs, carrying charges on investment, and the cost of i replacement power, if available. With any  !

significant delay, the availability of acequate l replacement power is unlikely, and therefore, '

the socioeconomic impacts associated with power deficiencies should also be considered, such as, t lost wages, healtn anc safety o~f the puolic, etc.

e

__ _1 ____________.m_.___ _ _ _ _ - _ . _ . - _ . _ _ _ _ _ _ _ _ _ . _

9 Commenwocith Edison .

3:.. .

u . . ,

Therefore,. only l requirements for data that. f involve even "large costs" should:be limited to

i. matters that speak.to the basic license.acility i of the. preferred site / plant combination.

(3) 40 CFR 1502.22(b) '

The provision ~in this section.that requires an-agencyLto perform a " worst caseLanalysis".should be rejected unless the probability that-it would occur is reasonably likely. For events with remote probabilities,.little or no weight should

~

be given in the NEPA balance because concentrating on nightmares distorts decision making. See, for example, Report of the

• President's Commission on the Accident at Three Mile Island, Recommendation G.3.C. A person who opposes an action often' demands that all adverse "what if's" of the action be considered no-matter how remote. Often, there is no similar demand or even concession that the "what if's" of the alternatives be addressed on a comparative basis. .

Commonwealth Edison recommends that the present NRC practice of only evaluating events that have a realistic probability of occurring should ce.

anlyzed. This practice has been upheld repeatedly as being in compliance with NEPA by i

the Federal Courts. See, e.g. Hodder v. NRC, Nos. 76-1709 and 78-1649 (D.C. Circuit Decemoer

' 26, 1978), cert. denied 48 U.S.L.w. 3218 (October 2, 1979), Lloyd Harbor Studv Grouc v.

NRC, No. 73-2266 (D.C. Circuic Novemcer 9, T976), vacated on other grounds 1435 v.s. 964 (1978), decision on Class 9 accidents reaffirmed. No. 73-2266 (D.C. Circuit November 29, 1978).

(4) 40 CFR 1508. 18 The discussion of the implications of evoking the provisions of this section is not clear. We fully support the concept that failure to act by a responsible federal official should be

. reviewable by courts or administrative tribunals. However, where the denial in effect allows an activity to continue unchangec which has already been reviewed and approvec uncer NEPA, clearly no further environmental review is nec,essary or appropriate. Nothing in NEPA requires that the same ground be plowed twice.

. .. u

~

Ccmmonwaalth Edison 4_

Portland General Electric Co. (Trojan Nuclear Plant), ALAS-531, 9 NRC 262, 266-n.6 (1978).

And it is certainly permissible, under NEPA, to require a persen claiming significant on-going environmental harm to make some tnreshhold showing that there is substance to his claim prior to undertaking a ponderous and expensive NEPA review process. Vermont Yankee Nuclear Power Corp. v. NROC 435 v.s. 519 (1978).

Commonwealth has the following specific comments to make~on the proposed rules:

51.12 APPLICATION OF SUEPART TO PROCEEDINGS This section grandfathers environmental docume'nts ccmpleted as .of ef fective date of these regulations but is to apply to those not completed. This may delay the completion of environmental reports and impact statements that are well along in preparation, and may very well delay the project. We recommend that a grandfathering cate be set af ter the effective date of this rulemaking so that it will not cause undo -

project delays. We offer 180 days as reasonacle for an environmental recort document (that takes generally two years to prepare) and 90 days for an environmental impact statement.

51.15' TIME SCHEDULES The time schedule provisions as outlined in this

' section do not have any teeth. There shculd be a definite time allecated to certin portions of the NRC review. One such time period should cover the interval from the decketing of an environmental report to the end of scoping process that is intended to delineate any new information that is required. This time schedule should take into account the letter of 1 intent, scoping meetings and site visits. We would offer 3 months as a reasonable time period for this process. There should be another time schedule for the period from when the applicant has furnished the information requested by the reviewers to the publication of a Final Environmental Statement. We would suggest that this process snould be readily completed in 9 months, especially if tne staf f acheres to the CEQ recommendation that the EIS be short (Uo to 300 pages) and coes not contain volumincus information not needed for a reasonec encice.

. vc d{

. . Commonwealth Edison ]

I.

~5-7 51.22 CATEGORICAL EXCLUSIONS NRC. actions under the proposed Emergency Planning' Rule (December 19, 1979, 44 FR 75167), requiring licensees to shutdown operating facilities due to lack of NRC/ FEMA concurrence in state and local emergency plans,. allowing start up following-achievement of'  ;

concurrence,.or allowing continued operation despite nonconcurrence should qualify for treatment as p categorical exclusions. In the case of orders allowing continued or resumedfpl'nt operation, categorical exclusion is appropriate because the environmental ef fect of statien operation have already ~

been reviewed in licensing the facility. Nothing in NEPA requires that this work be redone..

In the case' of shutdown orders,' categorical' exlusion is appropriate as long as it is reasonadle to expect that the environment.'. ef fects of snutdown will be within the scope of those summarized in the NRC's ~

negative declaration and draft environmental assessment supporting the proposed emergency placning rule (Junuary 21, 1980, 45FR 3913). However, if for example, contrary to the expectations of the draf ters

~ of the draft environmental assessment, federal, state, and local emergency planners reach an imptsse on emergency preparedness requirements which threatens to result in plant shutdowns lasting months, or in multiple plant shutdown, NEPA may require that a new environmental assessment te prepared taking into account unanticipated impacts.

51.27 NOTICE OF INTENT .

The notice of intent that would be issued as a result of this section and 51.26, may be cenfused with the

" notice of intent" that is being put forth in the alternative site review rulemaking. It is recommended that standardized titles be developed to minimize possible misinterpretations. Within the two rulemaking mentioned herein, there are notice of intents for:

1. Early review of sites

2. Early Site Review

3. Balance of CP application

4. Before EIS CP stage

5. Before Supplement te EIS - CL stage 9

e. ..

. i

\

i 51.28 SCOPING - ENVIRONMENTAL IMPACT STATEMENT The scoping process as put forth in this section and in 51.27 NOTICE OF INTENT AND 51.29 SCOPING -  !

PARTICIPANTS, is an e f fective tool for the NRC staff that will prepara the EIS. This process, however, does not aid the applicant who has to make all tnese same decisions using a multitude of Regulation Guides, NUREGs, Public Laws, Executive Orders, Court decisions, etc., for guidance. After the applicant has committed substantial sums of money and precious time, submitted an environmental report, the scoping participants enumerated in 51.29 can then decide that the applicant has to drop back to square one and do additional studies,.. Scoping would be more effective .

if helo earlier in the process such as immediately

~-""-

af ter the letter of intent, wnich is being proposed by concurrent siting rulemaking, which prececes the applicant's detailed onsite baseline investigations by 90 days. This would allow the NRC reviewers to analyse the merits of requests for cata and issue guidance as to the quantitative and qualitative data that must be provided to support the application.

51.29 SCOPING - PARTICIPANTS In 51.26, there is a statement that "The secping process may include a public scoping meeting" and in this section, item 51.29(a)(5) assures that any person.

who request an opportunity to participate in the scoping prccess shall be invited to participate in the scoping process. These two statements appear to be redundant since anyone who wants to participate merely has to make a request. If this person (s) is a memoer-of the public, then the meeting is public. It is not clear to Commonwealth whether the intent of tne public -

meeting provision to permit interested members of the public to participate in the scoping process or to .

provide yet another forum for the expressien of viewpoints on nuclear power. This point shoulc be clarified in the final rules.

e e

n ,, w w. . .

La ..

Ccmmonwsclth Edison

?

_7 51.53' SUPPLEMENT TO ENVIRONMENTAL REPORT - OPERATING LICENSE STATE Commonwealth Edison supports the concept that the operating license stage environmental review should be treated as a supplement to the applicants construction permit environmental report. The need to include information should be based on significance. It does not seem beneficial to put into the' supplement large volumes of data collected during the construction

• period if the. data- does not show any significant change even though it would qualify.as "new" information. The final rule should give guidance'as to' what kind of significance or other test should be -

~ used to determine what information is included in this supplement.

51.95 SUPPLEMENT TO FINAL ENVIRONMENTAL IMPACT STATEMENT -

OPERATING LICENSE In this section it states "The supplement will cover only matters which differ from or which reflect significant new information--- ". The concept of significance should be explained in 51.53 as well as in 51.95.

51.10A NRC PROCEEDINGS USING PUBLIC' HEARINGS; CONSI ERATION OF 7 ENVIRONMENTAL IMPACT STATEMENTS; RECORD OF DECISION Reference is made to holding hearings after the draft

, environmental impact statement (DEIS) is issueo. The j . staff, however, will not present their position until after the final environmental impact statement has been issued to the Environmental Protection Agency. .

It does net seem logical to hold a hearing after the draft is issued and before the staff has taken a position. The final rule should state what the purpose is of holding a hearing after the DEIS and what findings are likely to flow from it.

Commonwealth Edison Company appreciates the Commission's efforts to improve the licensing process and we will participate in future efforts of rulemakings.

Sincerely, p* ,.

• e

,,  :-;- . .L .

D. L. Peoples 3423A 99

_______.__.____m___--------------m---- - - --- - - - - - - - - - - - - - - - - - - - - - - - - - - - " - - - - - - - - ~ - - - - - - ' '

I Sto Co=nent 3. I Ia 400 Chestnut Street Tover II l l

upito l l May 19, 1980 .s 9 )

%%PR-A 30,40 so 5li 70 no I I 12 -

c=== '.

e ess=r .:.

(45 Rt I3?37)l my m..=0 > W -

i Secretary of the Co==1ssion . -r" /.c j U.S. Nuclear Regulatory Co==1ssion ((f,,f;hl$81 V

j i

Washington, DC 20555 P .r :n

% mdf V:.y' Attention: Docketing and Service Branch  % ltc'

Dear Sir:

In accordance with the March 3,1980, Federal Recister notice (45 FR -

13739-13765), the Tennessee Valley Authority (TVA) is pleased to provide co==ents on the proposed amendments to 10 CFR Parts 2, 30, 40, 50, 51, 70, and 110, " Environ = ental Protection Regulations for Decestic Licensing and Rela:ed Regulatory Fune: ions and Related Confor=ing A=end=ents."

The Nuclear Regulatory Co ission (NRC) notice states that the Co= mission will study how to apply 40 CTR 1502.14(b),1502.22(a),1502.22(b), and 1508.1S (1979). Section 1502.14(b) deals with detailed consideration of alternatives in an IIS. NRC correctly points cut that reconnaissance level infor=atice is adequate to take reasoned decisions among alterna:ive si:es, and in other choices among al:e: natives, detailed studies are often unnecessary to reasoned decision =aking. In our view, the CIQ regulations should not be in:erpre:ed to be inconsistent di:h NRC's current practice. Section 1502.14 clearly recognizes that the level of infor=ation necessary to decisions a=ong alternatives will vary fro =

case to case. Thus, Section 1502.14(a) states that the EIS shall,

". . . for alternatives which were eli=inarci from detailed s:udy, briefly discuss the reasons for their having been eliminated." Si=11a:17, Section 1502.14(b) addresses the treatmen: of "each alternative considered in detail." We believe the CEQ regula:icns should be read in lish: of the .

judicially accepted rule of reason in NE?A application and thatuhose regu-lations should. cot be read to require study of al:ernatives in grea:er depth than necessary to a reasoned decision. i NRC's question regarding Section 1502.22(a) also appears :o be founded en an unreasonable reading of the regulation. The regulation requires informa:1on to be included in an EIS if "the infor:ation relevan: to adverse f= pacts is essential to a reasoned choice . . . and the overall costs of obtaining 1:

are not exorbitant." " Essential" is defined by Webs:er's New World Dictionary of the A=erican Language (2d ed.1972) as "3. absolu:ely necessary; indispensab a .

requisi:e." " Exorbitant" to defined as " going beyond wha: is reasonable, just, proper, usual, etc." In our view, here :co the CEQ regula: ions =erely incorporate a reasonableness rule, and any rational adoption of the rule by NRC would =erely reflect NRC's curren: prac:1ce of requiring applicants to supply infor=a:1on de: ermined by NRC to be necessary :o decision =aking.

Acae::.::ne.: a.d. 5&9 ta . nx!?.a

. es.

1 r .

2 Secretary of the Co==ission May 19, 1980 As with Sections 1502.22(a) or 1502.14(b), NRC's reading of Section 1502.22(b) is not reasonable. It is true that NRC regulations exe=pt Class 9 accidents fron consideration in an EIS and the CEQ regulations appear to regt. ire a .

discussion of such accidents to the extent necessary to a reasoned decision.

Eowever, a' reasonable application of the regulation would not require exhaustive analyses of such accidents. We believe that the essence of an acceptable analysis is contained in the Reactor Safety Study.

In dealing with Section 1508.18, the NRC states that "it is unclear whether

~

this provisien would require NRC staff to prepare e=viron= ental impset statements for such actions as denials of. petitions . . . which claim . .

significant ongoing envirec= ental har=." The answer to this question is that an EIS is required respecting a major Federal action only if it will significantly affect the quality of the hu=an envirec=ent. The l deter =ination of whether there is a significant eff ect on the quality of the hu=an envirec=ent is to be made by the NRC, not by a petitioner.

In the =ajority of cases the :t= pacts of licensed activities will have been analyted in an EIS and no additional IIS will be necessary.

Accordingly, we believe that the NRC can i=plement these CEQ regulations without unduly affecting its licensing activities.

We appreciate the opportunity to co=nent on the proposed a=end=ents to 10 CTR Parts 2, 30, 40, 50, 51, 70, and 110.

. Very truly yours, TENNESSIE VALLEY AUTHORI~f J'.. I

~

,I' . . -'

L'. M. Mills, Manager

. _ . . _ . _. Nuclear Regulatien and Safaty ec: Executive . Secratary Advisory Cc==ittee on Reactor Safeguards U.S. Nuclear Regulatory Cc=ission 1717 H Street, NW Washington, DC 20555

^~

Mr. Tred Stetson AIF, Inc.

7101 Wisconsin Avenue Washington, DC 20555

___m.___._________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _

w e.

s-

. gW-h}- '

• \i -

WILLIAM J. Scoi i Wf e ATTORNEY GENER AL STATE OP' ILLINCIS \

vcgremons- iso =carw 6. sacts stater p g"m.M3

?*8**- cHicAco sesot USNRc , a. .

' my28G53y ~l 0

N N El % 7'i

%X* ? 1-2,30,4D,60, (45 FE 13739 dl,)70, May 22, 1980 llo '

"E *

,C # l t ,.

Mr. Chase Stephens ,

Docketing and Service Branch

, United States Nuclea.

Regulatory Cc=dssion - - -

Washington, D.C.-20555

Dear Mr. Stephens:

Enclosed herewith for filing, as we discussed on the telephone on;May 20, 1980 are Illinois' ce=.ents regarding the NRC draf t NEPA Regulations.

If you have any questions, do not hesitate to' contact r.e.

Very truly yours,

,. /

.h Il DEAN HANSELL Assistant Attorney General Environ = ental Centrol Divisien 188 West Randolph Stree-Suite 2315 ,,

Chicago, I111nois.60601

[312] 793-2491 .

DE/sb Enclosure -

cc: Jane R. Ma:es i Assistant ilegulations Counsel gknewW by :: red. f*ar+ ,,,f pO ME e

r%

v m +-

. ~

cp.s

.'h.

~

4

.G 9

• :K%. :.:..s,.1;

.%{... fff b

WILLIAM J. Sco 4 4 ATTORNEY GENERAL i

$7 ATE OF JLLINoIS TELtPwC N E 868 NORTH La sALLt startT {

tes.ssoo CHICAGO 60601 (

l i

k May 22, 1980 Mr. Howard K. Shapar Executive Legal Directer United States Nuclear Regulatory Cc==ission Washington, D.C. 20555 Re: Proposed NRC Environmental Protection Re=ulations for Domestic Licensine, 43 F.R.

13739

Dear Mr. Shapar:

The following cc==ents are those of the People of the State of Illinois (" Illinois") on the proposed amendment to Part 51 of the Cc==ission's regulations imple=enting Section 102 (a) of the National Envi en= ental Policy Act of 1969, as amended (NEPA) .

GENERAL COMMENT

S

1. It is essential to NEPA that the Nuclear Regulatory Cc==ission (NRC) perfor= worst case analyses in order to be able to make a reasened choice a ong alternatives.

Further, if it was not clear in the past it is now clear that Class IX accidents must be analyced in the course of site specific reviews.

The NRC has found that the accident at Three Mile Island was a Class IX cvent. Public Service Electric and Gas Cc=pany (Sale = Nuclear Generating Station, Un:.: 11, Locxe: 50-272, "5RC staff response to Question Non 4 of the At==ic Safety and Licensing Scard" at 3. The Presidential Cc==issien en the accident at Three Mile Island further found that an accident such as Three Mile Island was to be expected since =cre than 400 reacter years of nuclear power plant oceration had occurred. Report of the Presidential Cc==ission en the Acciden: at Three Mile Island a 32 (1979). ~

1 i

l

2. The Co==ission should adopt 40 C.F.R. 1502.14Os) of the Council on Enviren= ental Quality's (CEO) regulations which requires that the Environmental I= pact Statement (EIS) " devote substantial treat-ntnt to each alternative considered in detail." This regulation is ,

simply a restatement of Section 102 (C) of NEPA, 42 U.S.C. 4 332 (C) and i a consideration of alternatives which is not detailed can not be made consistent with NEPA.

3. It appears that the NRC does not plan to prepare an EIS in the event of any inactien. There may be certain circumstances where the failure to act warrants the preparr tion of an EIS. For example, the denial of a Petition for Rulemaking or a Petition for an Order to Show Cause under 10 C.F.R. Section 2.206 =ay in certain circumstances requires preparation of an EIS. Further, inaction on the resolution ,

of a generic safety prcblem may warrant an EIS.

SPECIFIC COMMENTS 51.1. There should be no categorical exclusien from the scope of these regulations for export or import licensing matters. The NRC is an independent agency and need not be bound by Department ef State interpretations of the scope of NEPA as it affects import and export matters. Many exports and imports have a significant impact on the environment. -

51.5. A determination by an Atc=ic Safety and Licensing Board or the Ate =:c Safety and Licensing Appeals Board that an ' environmental impact statement is necessary in a certain circumstance is consistent

. with their adjudicatory functions and shoul.d be recognized.

51.12 (c) . This sec^tien should make clear that it not applicable to a supplement wnich has not yet been prepared to an environmental impact

-statement filed with the Enviren= ental Protection Agency before July 30, 1979.

51.13. The term " emergency" should be defined.

51. 2 0 (b) (1) , (2), (3), (5), (8), (9), (l'0 ) , ' (12 ) . The expan-cien of the type of f acilities scentifie in :nese sections also = erit the preparation of an enviren= ental i= pact statement.

51. 22 (c) (10) . Changes in the insurance or inde=nity requirements can' have a signif: cant i= pact on the environment. For example, if the scope of coverage of insurance or indemnity is altered it may have a ,

direct impact en certain activities. Hence no categorical exclusion for insurance or inde=nity require =ents should exist.

51. 22 (e) (ll) . This section should reflect the following addi-ticnal requirements: " (v) there is no potential for an accident of a different type that evaluated previcusly; (vi) there is no reducticn in

. the margin of safety of any feature. "

Ja ...

-w

, --3 -

w. ' '

' 51. 22 (c) (12 ) . The Cc==ission cannot categorically ~ exclude- -

matters relatec to. safeguards : and sabotage. Many such matters can have a significant impact on the . environment.

51. 22 (c) (13) . : There are circumstances where the type of packaging employec w111 have a significant impact on the environment. 'For example, package designs involving the transportation of spent fuel, special nuclear material, and the air shipment of nuclear material may have NEPA implications.. .

51. 2 2 (c) (14 ) . Th'is section'should be draftad in such a way as j to make clear taan it does not include generic or programmatic environ-i mental listed.

impact statements regarding each of the types of materials. licenses (v). This section should be more carefully drafted to cover only mater al-used for experiments and not such facilities.as research reactors.

l L

(vii). This should be limited in quantity. It is conceivable that tions.

a. major project of transporting nuclear waste may' have NEPA .implica-

51. 22 (c) (15) . Some (nonspent fuel) imports of nuclear- facilities and materials (pursuant to Part 110) may have NEPA implications. This, category should either be limited in. scope or eliminated as a categorical-exclusion. <

. 51. 35 (b) . Consideration must be given to providing a=ple time for impact prior to the action.

those wne seek to challenge such a Co= mission finding of no significan:

If you have any questions, do not. hesitate to contact me.

Respectfully submitted,

._ fij$.<d'bl*l \

DEAN HANSELL Assistant Attorney General Environ = ental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601

[312] 793-2491 DH/sb 0

94

_________.________._________.____._..____._______s. _ _ _ - . _ _ _

. i

)

yi.y

• . \ r ., l REP-80-291 i Wyoming Mineral g M 371) So Wa:swenn Elvd. f

)

Corporatic n Lasewooc. Ccc. $2225 nay 2r, 1980 nemo uu .1,2r 30,6I0,c#o,51,70) A Substary of {'

llO (45 FE 1373@/ ~5=smova t=

Corporaton U.S. Nuclear Regulatory Co _ission W I @/

Office of the Secretary of the Co==ission S

,. 6

. Washington, DC 20555 , g; g , ,

USNFO {

Attention: Docketing and Service Eranch <

l.iAY 2 8 $30 > L.

Subject:

Proposed Revision of Part 51 of Title 10,CTR p.,en.s terth y .I[

0;;tard & PMMn.@>

E+> ,

N ~.

' Gentle =en:

~ $, \. ? -

By notice published in the Federal Recister of March 3, 1980, the Co is-

. sien invited ce==ents on a proposed revision of the environ = ental protec-tion regulaticus contained in Part 51 of Title 10, code of Federal Regulations.

In response co'that invitation,'the Wyc=ing Mineral Corporation (WMC) vishes to s b=it one co==ent, even though th*. designated ce==ent period has expired. The ce=nent we propose deals with the provisions that

- qualify the categorical exrlusion established in proposed subparagraph 10CTR51.22(b) (11) .

As proposed, subparagraph 10CTR51.21(b)(5) properly li=its t!ie require =ent for an environ = ental assess =ent to those license a=end=ents that vould authorize or result in various "significant" changes. However, the wording in 10CTR51.22(b)(11) specifies that there be "no" changes. WMC sub=its that to el1=inate this confusion and reflect the Co==ission's clear intent, the verding of 10CTR51.22(b)(11) be revised to specify "no significant" changes. This requested change also would parallel the wording presently proposed for subparagraph 10CTR51.22(b)(9) .

The ce=plete revrite of Part 51 constitutes a =ajor change. As a practical

=atter, it =ay require actual experience functioning under it before all its ra=ifications are revealed. In the seenti=e, please include the

~

above ce==ent in your deliberaticus on this =atter to the extent practicable.

Very truly yours, Karl R. Schendel Manager, Licensing Ad=i=istration gg,q, g 34,5 f)[d,,(n[4 i Regulatory and Environ = ental Progra=s RRS/jp Jh E

~n .:

• i-stAtt & CAUPotNtA--MEALTM A>Q wtLFA38 AothecY EDMUNO o. StowN Jg., C2,wes.

C.i6EPARTMENTi OF HEALTH SERVICES

_ mn44 e statat "

D[3.

sAca w w o c4 usrA

]g16)kk5-0931 June 6, 1980 jy Secretary of the Cacnission

'US Nuclear Regulatory Cec:ission Washington, D. C. 20555 Atuction: _ Docketing and Service Branch .

Dear Sir:

l: his letter concer=s e=vircmental protectics regulations for licensing - -

and related regulatory functions of the U.S. Nuclear Regulatory Cc=sission published fer connent on March 3, 1980 (k5 3 13739).'

h e' Supplement Nunber 24 to 10 CFR was received in this office on May U ,

1980 u= der cover of a letter indicating that a pristing errer had occurred.

'Jhis supple =ent contained the proposed text of 10 CIR 51 upon which we now cCERBent.

We object =ost strenuously to the categ rical exclusion for ven logging from requirements for environ:nental i pact assess =ent and envi:o= ental -

impact state =ent under the Nati==al Invirec=== cal Policy Act of 1969 his

' proposed exclusion is contained in 10 cn 51.22(e)(ik)(xii) 'of the draft.

We think such exclusion is umvise and insupportable in the abse:ee of a generic e=vire= ental i= pact stata=e=t on the use of radicective =sterial for ven logging to provide a bacis for deter =ini=g whether or not to grant such exclusion.

Ve have reviewed the proposed rule with particuis: concern for protectics of underground water sources frem use of radioactive aterial devn-ven is both wire line icgging and tracer logging. Se point of our ec=cern is the possible dispersal of radioactive =aterial to an aquifer so as to preclude or ce=prc=1se its use as a source of drinki=g or irrigation water.

Experience with oil and gas wells suggests substantial probability that a source vin bec:ce stuck and vedged in fractures or rock fans necessitating recovery efforts and if these efferts are unsuccessful, abander=ent. We think the probability for loss of a source devn-vell is even greater when engineering test and mineral exploration bores, or water vens are being logged. Such recovery and abando==ent within an aquifer with a consequent rist of dispersel of highly toxic, long-lived radioactive =aterial which would preclude or compromise the use of the aquifer as the source of drinking or irrigatics vater reprece=ts a serious, and as yet, u: evaluated envirec=e:tal 1= pact.

The recent destructics of a one curie americiu:s:berf>11u= source in a mineral exploratics tore in Texas and subcequent deecn'a '-a**cn efferts v'1ch vere only partiany successful serves to highlite our eencern.

. I

. 1

- _ _ _ _ . _ _ _ _______m-____._____m_._ __m___ _ _ . . _ _ _ ____.__ - . _ . . . . ______.__ _._____m__._ _ _ __n _ -.

l o'

'* Secretary of the Ccmission

2. June 6, 1960 t

We in California have consiste=tly de=ded applications and requests for reciprocity for loggi:3 of engineering test and mineral exploration bcres and water wells.

It is appare=t that any rule making or further licensing action in this area vould benefit frt:xn and should be preceded by a thorough going environ-

mental i=,,act review which would treat the entire question of use of radio.

I active material in down-vell logging as a generic issue.

Sincerely, c- e . A Don D. Eoney -

~ -"

Supervising Eeslth Physicist

' Radioactive Materials Control U=it Radiologf.c Eeslth Section ec: Jare R. Mapes-Asnistant Reg.:lations Counsel Office of Executive legal Director US Nuclear Regulatory C---issio:

Washington, D.C. 20555 IDE/al e

n O

9 4

0

h

+

• g 4 .

- 9 e

1. +

9

~

a O . $*

e #9 e, e e m E .

4 e g S

e

• A a

O l k4

. ...~

$ l

h. m e 4 G . gg O'

,aM .

'.%. et e . #

t *

• 9 9 ( f

• 9

. . .~ , .-

e

• no- , e -

.t s b , e Q

• b s

e

%. f M

• 4 0 e # # 4 .g

• I ..e O - 9 e 9 4 .

• e 4 *]

e e s'.'%

. 0+ + +

, . 4 e 2 - **

e.,4 e 0 'W* -

g eS v @

w $

=

. .", ' p 4-

<*,+ -

• s m h

.e F b

e

• w e** w e

4 ENCLOSURE D e

, i s s

, e d

4 e

en e

us e

%- m e

eb d

e O 2

a h O

/

a .

9

==

• t a

r e

dt.

iS s ,

nt or Ca P

f -

od e  %

ns oi e v s

n ise sr o u p

s co e ist R de C ees R

M e_l 5 a e

.r ep e s v ne i oh pt t

a s n en r2 ri tes t C s R e larie h iv t

hm laa c r n ae er evi ot ne et t a gl r A e

t a r np of em f o tmo c a

er ri t e h

C lt 5

l a

l ie o

P tt na S a u tl t

R sa bv y d C

R s ue l ge .

)

y r

a e

5l N y l

• inl us st u a l o s tf y1 - l res enor(iat tt d r f

ea - . t reo e(htt s D

N t

o m -

iwna .en -

0tt eot s ch h2t c t

a tmepoa enc tese nt A vs ust gns .so 4 anhri 2.i e eore wrth e e c n r l hdl veel e rc het pw t2 rat niuvl t eth eie S

I N

dlereve eob riu .vr ee int f ,A s a0 sos ont cel h5l cn en ual s m t one at ct r cag E *1l t a" t sld l ag h orP e eE v t1 a liws e if et rerv ealun v n .deRCa d i n u eg 'C h t

9 fl a t st vNi s st b eygI P t e nr aust ri rgeeos reno t e) N dt eRt e d eil e D

e d erdju oveeea t b) s nf rN v s e gh ll rs C

s fi mrh n a(b .iao ti et nt ea e .

mt ri t eot r t4( Qhat t ai biev F ea e unad n t atM e s145 n ,et t na anvs csi '

O th h e qi e ena ft osrCi( nti aeeiot at th e ti s rt

.ola e2 11(i ea w rsmhsWdh a M t t rdaf es c02 tt e se i s ut n sos o t ,hrt t ehi dt ens i50naisht et)l re j r .

l rl roesigs t en et i

t cn edid ee yce n aa d asae t15 o

nR 1 amset noed r i

,t ntl ei a ( aeir".

n ed 4 ehdl hhli eat o t ao uhisd nf st s F nif v uusgg1 rt al tt as W'

pi lbt ms wsiI nm t aosl iess a

)Co C

nit eion i sit sl sco2 wr)tfdf c e a i O

P imt c a .oee st s r R0t e a vnem0 obeonoe C a er)crb nsoeyn N4 cvl nd ora 5hf(d a d p y lade t n

e reb ph ( e v" ly eenChl h mo tti eou tl

( eiererc ySt vel unys c

1i s 1. inh 4 t ndd goue tns eo n

e m he ur t4 1.thia el ath t eatt f

s.

nl opp . r a eti oil nnh n nll a at neaii roowo2 s0dl t so iit n mp no o

C Tf2at 0 n m prl ot un aot isa)ee 9t c gd eIbest sa5 e a s or g5 rno r

d gos t s o is o7l nn licee1 rncea occevr eiire rp ) n1 e o n ".n aee hrg ael c nt9aao u .

smsg

.t eSi nd lir ive 5i 1dllt no t

ot nebe m 1 o w(f saend1 4d .t eoidpu ahis a p qa nh et . e n .a rai ect t sirav r' d e i C o h8 oi a s i t.

vi e 2t osntt neae ur cor rot eg p p R.cant h tsm a nol nh es ofii bs y

ry 1 nnnt a onoa mr5 yT te0 h esec A eP ot hin ,

, f, e i c o r cby is) nu s plllx c e od8ioinnp1 r t u0t cs ror a lt usS.ebE v N y

r lat5 aeieiens . ac t lt d aaC af s yi d da t u sh od pn lsb( o i pi e s1 rrct st oseril tl aas hc al ot0t p 4 iiemi e4C s

n I. h aw r u e glddtdacIt c af eliniesodra ul es ano re tin os ret nil tf le o C2hil o ect no el nia Riashd gd een e cec .li yl rhn esoee c

s Pt net av 0thli n w,ont en bS o .f mt sbn el aemst e e5 h1f wase r a n)ct os etned nt o

eil sa idl a tt mt unl sd

.iS anet oroa n vt f se aje -

a e me t

l o ,nl r woe m u eob usano .ie r i(doa e ess onet cs*s a b hi l

oe rd rswrs nc (Dnatisis ra on e g . nas ol ao mb les2 s2l sreadiec . ," . a ctf a o dnht p hi.l id nl o

a

.tiollaivl aolh t

na ur R.tar i cr e f. etfh v eC e el u u n2aneirucoml u

em0tik o t

h o5 eoah oh rnrht af euhe TC1dpmct s pIf ssnorrsd celt r oaf l ydel oaut" de ueut gl op lh t e Il ntI en WCsnoT u cr ee sdi ss ihon T c

) y b

( l it 4 a 3 r 1 t o n 7 g h 2 e t 0 a I u

5 6 A 1 o .

y r 6 0 l i 2 e 8 v l 9 R n r

• l 1 f E e a C bm V) .

n 89 0 r e

o e e11 4

yp t e st y t

n l t e s vu a e iciS nl eaM n

m m ua n Ct C o

CQ ou T(

e3.

l p

0 1

.i

e s

n p

o s

e R

CI M

C 5

M D

P S

EI I

d .

C .

0 5

e a 9 hn d r d

e t o n n t t D iit e nu N no n r Qwt o e .

o t n

r' a s_

A etf i nh v nt a u y s it ef e 5

1 ip s

l I nluen[Ad it aEsmsE aih Pdsith nt nt cieon e cl o eb e

. l7 e

r7 i

t 1

eo.l c s .

rn uo N ed laneopiH n wa os sat rou2 o bt ns pt R

ve h nC t ,ii nr pt n oI h r 9

f 0

itaBa s imihcrtfIIIPbl t

s t

ea e o .E utleo n ras yt s you bs o aC at tO l

f nI2 a

is tdc oe nlt eB eh sbeI v C n l et vi v t .

a v a i' ensyIE snpc de se nih67 ro eS tiht0iel cgnues e

t ers e ed .F 5t 1 a aagnH cf qra ita v.

f O t ntt aEl mE nnoqri al t iri cn8 (h n lao t ea mnsr nCeebrngnusahA.

ei p e dl a nat uno5 .

qii4l n t yh

'e c t nVl eg ti r

St l areee i aar n a e t

I fI nertt eu rtit i w q n y c d C ph N e .oti(

cP mf S t rsc ane.d

)

adi ivned eM n l

t D

M odl ivaq l uep eirnl s , r oou ow S od e .t s ol inas aaat n gnnC e

e a

f".

t P

t u nu n ehe5 st co -.da5o f I nt Eioin .ifrori t& ss reeV1 ono M

r. h if rcd 6eea o a wcI l o e vie.

eh c(5 sMW i ns t

O eS 1h vl s CE s nte : ,l t ti n )e n aarelt e ae oa 3ti unnHl laeev 5 l

C. tas otS )1 t goo At s .i tt ie et rn l eEt nI oJ e.fonrt aeiiesh e e ai f

no inehb t dt m P n r vG ar nu f u sd n a1 t r a

t e m

i m( dg r aith na i u Hmewl1p E

ro oaem 15 rf ge ct nat naR nt td et etl v ti t e

s s yl enbo nciG o c eC cv eo t nt uene et nprot e ef sr vo C f t e

t eif3 nbt o4 d

ie n

e ia nt orems .

Ct mtid e med ep nr shvr a ep it cd ef oren(

nvioTi vu lam e e

mynd .

a sl nu m rS easetf e seti e ast o ontC2 f r el rnC or m

m e eet eaf aorQii tt nea iea 7 op t peim c" u ct hharh t etht sa n rrtt t ne9 u a at ml C n ur tttti5 s nf Ct ud nI et sc nS ttl ssaefi ea o S lfa 4 eon d nr t s gsr i uh en o h C g) sl(

n eb 4

f g ont

)brinat a( e ci riit e eaaneen s

t ramiae ac nvd sl mti eel u a laeat f

rws i t

cersOie rt sf ae no lt ef Dt sh sT u

d g yt v lenriey .

h . t o

,t yt f

iol t t2 a

1 pa e m a ". ,todsl e el esefd y n i e pb e r o u c i oAsD PA e

o cnl e s7 c s

id.

it vbp ane eo r ac we .

en0 (4'ovI t s . r s u i j nte ol

.h diacC ob eC de t t a ewelC rb3 j4 lpnm1 e5 1 2 glb au .asntl rioa et wient mt itf s t nt nrt uaou[ ei d

• duar db hs eu8 0st S

.t cho lt en aoer ot so nl v e t t eor Rrf 5 nn 1ioeel mtl cit nn ooo tt sis

,d me ab yt r n

imEt)if vo s na s eeeW hn A s rliB tl

,la euciw honeo osa ni a

CiC s nt nai t ee .iS s ar eu a(as rm tfi cP A2 d

R n0 o ler o x) nl e

e ele h leadt rt nyrc dP II I4 i t

rot col t ua ns app h e2 ra

( ee ve eKF c pivd ts t eb eenLnoeeeeueuhi gg 9pspet e2t p h9l p w

oo tI8 a

t o5 B SrE* it rrwrl rSt w t1 aA Ht 5t4 d

e u

n it n y

• o c lp p

- u

) S b r

(

e 4 u 1

n 2 P 0 0 5 c 9 1

i 9 l 1 l b u .

R P 9.

)2 I

n .

0 C

" o5l t(i g r 4 nmp i eA C:

PI

" ht ss a y etS 0

1 I ,i l

q  ;< l  ;' ji 1ll>

y! .

,5 j -

7 e

s n

o p

s e

R t

ne l

,4s E

5e g s n s is d e i a t e- e r d' at ef s - - 8s l 5 d. s h hil oat e 1 y i t

R r

a gS

. sd t ef n cror e sa tl rAUtC tCnW- .io h

e sI t

n eni gt t sy e ene a d a y y

lst n

o~ e n. a netl e ga

.t o Win w eI t . ae C r( ei e u - a t nv nel ov cor eas nit .ehnlel eunnWl oio

~ avcd ea ff u:c t

of5i rt e qcn v- siri".is .en t wet iittbmll r c ai yr nll ye s

D len u

a eet o roc co1 v ye 4A s c t at sac e e .l nnurnt a a mndociul o b i e i~

onbfavgt~ ui al eh t el> t M

A rn l asce h btTT a k

o l5arect os f1 emsMci e rlf ot ql nooel)1 nl eeur neaI s a a8 0 e l . -

dtWiuB 3 i

e t. ida r r o e(ftti s ft oedarrsaet o73 moa5 1 ntt1 -

S eS e r r ol ad yn n Inl wpet C]r.orne I

hs n ae boo a nsdn r n(

t t e te ans t

p d"e yae ra )sobls u u gt e es u eola nt btamsaI9vsna 1iom n v ic it hi hot e . t l clt dt eob e enil eeas h t ( 'C e s o co o

t r

tt ra .Wsc ae cc ie.C F )

ti oal rtli t d 4tl f e

1. I re cnaprn1(7nao 1 eern C on f r e

1 v .rs5 ne epl a3 ay, edT5 eD 7 a uo h

rncti uf gh aiau at qmec t r aa2taob t)ca apuae3 l s apo emnt p n ii d e rii v

F tt eva 0 l e e cidhneari cset h h g0 c t e5 e h e4 el v(s arwT l 2. hti seen d 0 el l ro S7 tE me1t asn armt aw i

sa fttat 7lI uoesds s r1f f c ad 1. t i tag nt i vN eF F rene r M osit a t ef ume f 5 e )csrblitS ehRaeo2snoon 942f oridi i

so nared i .1 sT s bsat uu pI vtI rt0 el nee e

e hes D

t H

i ano i oApn.

se en2 oF nA uP tr rI

.C s .

l)

(i es sono 4dre" 1

p cad e

(

han ieiC l

w lyo y1 0tT r 5hm cmosnSC5 ueSea 8 .t et t n no r ,i s or nl i l57 earent a e54 c aRsr o tihec M as ueti8 ei ef C e'4 9 2h vo C b1 a sf ,iw .dm.dI tl cr O

C t rs pu cb s t n4 v5 bodt41 t 0ttdiilII n 5 il etlHi n (f c . sC ii se srnere o d 2. Mphfr ie e s n uc it ne 2a7 1 gmucaa en,iie4tec0eeotfiF f

. owfi c e ss . s)( nroel t es t a i f vr r m i doe ni s a at v7 r.

r liewruehe linp gts t v s

ynegi snt n sssa ietises2 ti8rpe psdu o

m o ,d e car p h(5eIi tr )de i Sicilt a rmeit5eavt sw ni hdi )2 sl C in C oi t ef ru w24 e eobl rrtt rsio ,eervsa tW r t nuf ef as l2 a( .pD h r

t 0ct(u 4 n 4 oQthn eaa yd u bn lpdeodi vvoi etdftd s .ost ay CPI acg o a s , 09 29 ot1hI at r sl ssvt anaeeR e - nir Ma: hs t enso on A11 P

n t cn a e2 sCe r .t e pu ul roo uniie t nr ro i nsbf ei r f e fl ein

.l d a

<o t En 4

toT(9 hAi0l egel trc5lh ra Scecptarol e pd nw sI nef et ol v 3(t ne g

vf f eli sr I o d ngM 1 I

cFe s ttt eo aaa v4f ft i2.iS . etf v

ti1 e

at no f net t iff eo heim.e t e rt IC r . eld e a p o n r t

Atael vl ru w o7oT Tl n aie svt i

tlt ns r rnmi.

errt o ce F v- o n-1 7

ef uodasr .bef f

i ePla o ucttt t ee t le nu eo t eoav ts6Co3 n

i osi heen v vt a e huhale tD5 Dsen o a et t 'n rn C 6 l t nt vho roieif nrC tel e g5 ;i2 esnci iti attht ih~t l n e

udv i raI e l1 mn )t b t oe niSdaa rt

,s s l udn at n y eiesi c3 a anoi abaivsot n o ePl d l nQr ovt cie f ol tli lf ef slsI WoiaI tt I

ei tt s a e eM .S aT r t5 t et oma eendu rl rnc c e r yt eebsd beoeyaao t ra i

ti ra ral ut oe t rrI s1 s rn pdTi5 n ne rrm ".d oiosisl ecees t mi.

md itr nt ldurt rl g in n i s aerif T. op tt o r

Cde r . dufqnvneesmao A pdaesiutht t nudnsqnt e omen i r 'A l o C. l g yh f e e e. l s eAdle t ceP a c a pP c s~

sl0 n i s d

hhl Tt w 1i

e. n ylM

.l a W r" e

m eeIi oef eht tcsortM l aonet eeiues ut wemirmWqreslf a{ omAe6 e I u

i n

n t c

c

- y

)

b lp

( p 4 u 1 S 2 r 0 e 5 u po 1

1 0 c 8 R t e f i l)

C b d

• u .e 0 P 9u 4

n )2ni.

r o5lt e t(i n nmpcro t g n

e ieA(

m a ht s ss

o ay C C WS -

I P

O T

fI il!(L h h* .l !I i'

e s

n e

s s

ie l

C

• A N

. ,e e -

i, lbd n t

E S e e n t a e

t s ua eb sh o n o et eise nf nr P lol l ols u ,t hti mn pi oOit

• 5 y epa s a s E b vot . se rso s ni l r h t

oarn5pe0 meel s t .leo d . a e c t l

iluod uen nAv e e) n .g sMR CC n*l ni orroh nui e

C ise ben 1 m3 l rrisvr a f ss ee ntl e

5 neg tiMh ioe RI I

nt t rt h o rt ef5o nidc ceeo n

m r -

eae4(baec s1iWni a(t nd cevWti e .

etf ruo7wea pn t

t D

N oo inmv s

ia va era sh c c t cn 1. i d tua2t

) nl s

.ts et r e~

ad esi)l ev tld p auyi7 sTt tnl hi A ond sdieet (baueonnt e d uh e ess0c t s t e sl ldre2 vlf u

eendt es uh e ue t

sdi1 r s5 a 4 n ie s

l a

spat a sahl l

e .

l rf eea p 1. i osy f rp re aet h a i y u o-i l

od o wei4 st pef sh r pvort usnR 2 s ib e inslsl oC r b seet t

9 msee5 d r2 unAi pi enpe u qonTt epoCs 0et m 5 vnsd u vh ec n lWmd r nob mu o lT t sl noa

(

C 3

uvnusa .

eep nco o si e i d at t s rsld roc npr4 re0p a 1i eae I ae t mCt r s bi f ut o

i o fe te sb" ut oiosn1 a vi o lgspua a R l rt ap

,e i t e suo o r h nt eo ph F ed ii1 ala abyp dc eduom et ot . rah p sl rtt" O t n o eonl ch u s i

t h ati t el u l h t rl lss t riusso cth w R. tett s up ct oodseT w7 t f

0 ,el u c paoi c e td F. arol ens a ps i P. ce b e8ati f I.ti o . e thd nc sni ne de .N~ 4t hesn 0 l l Ans oa eon C t m i ei v o i eth cit en2 m M da v eP o si n c pi f ago nn enr

(

P t e

wiw

.rb eo P tN o

E c ty'l ssh c odnsl itdt ea e ra 4 0o tid s si ht eiA vnt et

.d a nestni ti f roi r2 iui r M

n ilaew pppne ot nerl c nh siiii o aus ol f n oeni ni t at)t r v ns9i eod uaqve C heann w ml mebn t

.m set sa ef st t a tfluua oC s e

r cst s o n 'n e i ntl o ere9nlt reo5 t et t a1 ea pso c .re enr n t s a eS hf e C er fi n ioat ei ecrt i

nl e npeCt rP e

n neh r

. t pr n oll aeh u Iti ae ot s t r eoi gas 7hweeohR ooE e

a m

o cr

,f oetf mo o ot ethtd isat e rhnT d c e os et ynsqi r

uve . pt sf s o

desrp eo o

cf niAibp eoICP n r nert y N~ n f C as ulsd al erans n ise n

hyn m

on no

.ar p . t r n anb neo ra ahie e

thh s r

og e

.tI E

I ooh t e t.

t ntd vFsen3s it h r t t 'Q s r

it.

dh eui rfd e e l z e m et ohdii rot ufl e etCs et mt t p t ot sE t nS1dn aI(eid