NUCLEAR
KEN
LICENSING
REFORM
KITZMILLER
1
-A,
NUCLEAR LICENSING REFORM
Environmental Law
Ken Kitzmiller
December 22, 1978
2
World War II ended with a demonstration of the
power and potential of nuclear energy.
Recognizing
the need for a program to manage this novel force,
Congress enacted the Atomic Energy Act of 19^6. *
Con-
trol of the program was vested in the five-man Atomic
2
Energy Commission.
The Commission was responsible for
"A program for Government control of the production,
ownership, and use of fissionable material to assure
the common defense and security and to insure the
3
broadest possible exploitation" of nuclear technology.
To maintain legislative control over this program Congress created the Joint Committee on Atomic
Energy.
This committee was to "make continuing
studies of the activities of the Atomic Energy Commission
and of the problems relating to the development, use,
and control of atomic energy."-' All legislation from
either house of Congress which related to the Commission
or to the development, use, or control of atomic energy
was to be referred to the C o m m i t t e e I n addition the
Committee was given the power to recommend ?legislation
concerning matters within its jurisdiction.
Between the years 19^6 and 195^ other nations,
particularly the Soviet Union, developed their own
nuclear capabilities.
"These developments at home and
abroad led to extensive reconsideration of some of
O
31
g
the premises underlying the Atomic Energy Act of 19^6."
"It was felt that if the United States was to take the
leadership in developing peaceful applications of atomic
energy, this objective could best be achieved by taking
advantage of the cost-cutting and other incentives of
Q
free and competitive enterprise."
This was achieved
by the passage of the Atomic Energy Act of 195^ which
authorised the licensed activity of private enterprise
in the area of nuclear technology.
Since the beginning of the licensing of private
enterprise involvement in nuclear power, the Commission
has been under criticism for its conflicting roles as
both a regulator and a promoter of the development of
the nuclear industry.
Professor Harold Green of George
Washington University pointed out that the Commission
has played an active role in the industry.3"1
It is by far the largest entrepeneur in the
industry, the largest consumer of the industry's
materials and services; it plays an active role
in promoting the industry and in encouraging
and subsidising private interests to enter
the industry at the same time that is a potential competitor of these interests? and,
finally, it licenses and regulates the
private firms0which it has encouraged and
subsidized."
In response to these criticisms. Congress, in
13
19?^> passed the Energy Reorganization Act,
J
The
central responsibility for policy planning and the
management of research and development programs for
4
15
all energy sources was given to the Energy Research
and Development Administration.
The Nuclear Regu-
latory Commission was established and given all the
licensing and regulatory responsibilities formerly
15
held by the Atomic Energy Commission.
Other criticisms of the licensing process concerned the lack of effective public participation.
Concern was expressed that the public was excluded
from preliminary deliberations between the construction permit applicants and the Commission regulatory
16
staff.
By the time public participation began,
the Commission regulatory staff and the applicant
had already hammered out the details of an agreement
for the proposed plant and dealt with any disagreements
they might have had.
This left the burden of proof
with the intervenor who had to face a united, front
17
consisting of the Commission staff and the applicant.
At the public hearing set for the issuing of a construction permit, the intervenor found himself having to
challenge the ultimate conclusions reached by the
application, the Commission staff, and their experts
18
who had already decided that a permit should be issued.
"Thus8 attaining a legal decision to halt the project is
unlikely to occur.
Any attempt to reach such a result
by a citizen intervener must be backed by substantial
resources in order to hire the lawyers and scientific
expertise needed to take interveners through a battle
19
destined to last mant years."
To the nuclear power industry the biggest objection
to the current licensing system is the length of
time it takes to bring a plant from the planning
stage to the operational stage.
A March 2, 1977
report by the General Accounting Office outlined the
reasons why construction
of a nuclear facility takes
20
10 years or more.
According to the report* two
years are spent in the planning stage beginning with
a decision to build and ending with an application to
build submitted to the Commission.
This time is filled
with site selection, the preparation of an environmental impact statement and the compiling of detailed
reports concerning plant design.
After an application for construction permission
is filed, there is a period averaging between two and
two-and-one-half years in which time the Commission
reviews whether to grant the permit.
It is at this
stage that public hearings must be held and challenges
to the proposed plant may be brought.
The actual construction of the plant requires
approximately six years according to the GAO.
Two
years before the completion oc construction is when
the utility seeks an operating license which permits
6
the commencement of plant operation.
Before this license
may be granted, further hearings must be held with the
possibility that more challenges will surface bringing
about additional delay.
Proposals to speed licensing have included the
limitation of hearings to a review of an applicant's
ability to meet technical standards established by the
NRC.
In addition, it was felt that if plant designs
could be standardized, the length of the process would
be reduced dramatically.
Once a basic plant design
had been approved, similar designs for future plants
could be certified without the necessity for further
21
detailed review.
The energy crisis and the need to convert from
oil and natural gas dictated increased production from
alternative energy sources.
President Carter made his
speech on energy22 to a joint session of Congress on
April 20, 1977-
In his address, the President called
for the reform of nuclear licensing procedures.
He
stated that "... even with the most thorough safeguards,
23
it should not take ten years to license a plant."
He proposed the establishment of "reasonable, objective
criteria for licensing, and that plants which are based
on a standard design not require extensive individual
?
31
2kdesign studies for licensing."
The Energy Department prepared a draft licensing
reform bill in August of 1977. but objections to it
voiced by other agencies and environmental 25
and public
interest groups caused it to be redrafted.
On March
21, 1978, the bill, which Energy Secretary James
Schlesinger said would be a major priority of the Carter
administration, was introduced into both chambers of
27
Congress.
One of the first major sections of the proposed
bill deals with construction permits and operating
licenses for nuclear power facilities.
The section
provides that the NRC may not issue a construction
permit until the state, a political subdivision of
the state, or some other authorized public authority
certifies to the NRC
28 that there is a specific need
for the facility.
Prerequisite to valid certifi29
fication is a hearing conducted by the state authority.
No later than sixty days prior to the certification
hearing, the applicant must supply the state a detailed
statement which explains the need for power and lists
30
all reasonable alternatives.
In the event that
the determination of the certification hearing is
judicially challenged, the state authority which held
8
the hearing is responsible for defending its action
31
in Federal Court.
Certification by the state is
conclusive on the issue of need for the power that the
32
new facility is to generate.
This conclusive deter-
mination by the state will prevent the issue of the need
for the proposed faciliy*s potential output from being
raised at subsequent stages of the licensing process.
The effect of this section appears to be a shift
of responsibility and power to the state level.
The
state authorities will be able to effectively block
the licensing of any power plant by refusing to certify
a need for power.
The state decides whether it needs
the facility and the state, not the NRG, must defend
its decision in the courts.
In an effort to speed the licensing process the
proposed regulations allow for the issuance of a combined construction permit and operating license for
33
a nuclear power plant.
The application must con-
tain sufficient information to support the issuance
of both licenses and there must first be a certification of the specific need for the facility by the
proper state authority.
The NRC is to provide for
on-site inspection of the construction
to ensure
35
conformance with the permit.
Before actual operation
9
of the plant is allowed to begin, the NRC must find
that the plant was constructed and will operate in
accordance with the combined permit, provisions of
the Act, and the Commission's own rules and regulations.
Such a provision is meant to streamline the
licensing process by eliminating the need for hearings
at both the construcion permit stage and the operating
license stage.
For environmentalists it will mean
one less opportunity to raise their objections, but
more importantly, perhaps, it also means the loss of
an effective tactical weapon.
After vast sums of money
have been spent in constructing a facility, the utility
company is understandably anxious to begin operation.
By intervening at the operating license stage, public
interest groups may be able to negotiate effectively
for compromises and modifications in plant operations.
The specter of interminable delay while an expensive
facility remains idle could perhaps make the utility
company more pliant and amenable to changes.
By
applying for the new combined license, the utility
will now be able to foreclose environmental issues
before reaching the operational stage.
Of significant interest to those who are concerned about participating in the decision making
10
28
125
process are the amendments concerning hearings.
In
many cases hearings will be held only upon request
of persons whose interests may be affected.
This
includes proceedings for the "suspending, revoking,
renewing or amending of a site permit," authorization
to do preliminary site preparation, or the "suspending,
revoking, amending or renewing of an approval of a
38
standardized facility design."
It is mandatory
for the Commission to hold hearings in proceedings
for the combined construction permit and operating
license, granting of site permits, and the approval
39
of standardized facility designs.
These hearings
are open to those persons whose interests might be
4o
affected by the proceeding.
The procedures for the hearings provide that
hearings on issues arising under the Atomic Energy
Act will be conducted in accordance with sections
554i 41
556, and 557 of the Administrative Procedure
Act.
In hearings on these issues, "A party is en-
titled to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence,
and to conduct such cross-examination as may be re- 42
quired for a full and true disclosure of the facts."
When dealing with issues arising under the National
11
31
Environmental Policy Act of 1969. as amended, the
hearings will be conducted in accordance with sec43
tion 553 of the Administrative Procedure Act.
This means an intervening party will be able to participate only by way of written or oral presentation
44
with no opportunity for cross examination.
Adju-
dicatory hearings will only be required when necessary
"to resolve particular factual or legal questions
45
which are essential to the outcome of the proceeding."
When the Commission is conductiong proceedings for
the issuance of rules and regulations,
46 hearings will
be conducted by way of section 553.
Within thirty days after the Commission receives
an application dealing with siting, licensing or
operation of a facility, it shall publish notice of
such receipt once in the 4?
Federal Register' and twice
in major area newspapers.
At least 180 days prior
to the granting of such application the same notice
must be given that the Commission is considering
granting, and will hold hearings on the issue.
(Mandatory hearings for granting combined construction
permit and operating license, a site
48permit, or an
approval of a standardized design).
Receipt of
applications for authorization to begin facility site
12
31
preparation prior to construction permit approval
requires that the Commission publish notice in the
Federal Register and major area newspapers stating
that a hearing will be held upon request of any person
49
whose interest may be affected.
When a plant for which a combined construction
permit and operating license was granted is ready to
begin operation* the Commission must publish in the
Federal Register and major area newspapers notice of
such fact at least 180 days
50prior to the expected
commencement of operation.
The notice should state
that the Commission will hold a hearing upon request
but only if the person making the request can make
a prima facie showing that because of significant new
information, or violation of permit or license, action
needs to be taken to protect the public health and
safety, the common defense and security, or the en51
vironment.
The scope of any hearings under paragraph 2 of
subsection 189 a. is limited to those issues for which
there has been no previous opportunity for hearing
in any previous proceeding before the Commission or
52
state authority.
The person requesting the hearing
may revive issues only upon a showing that significant
mm
13
31
new information has surfaced indicating that "the site
or facility design will not comply with the Act or
Commission's regulations for protection of public
health and safety, the common defense and security,
53
or the environment.
It is a reasonable objective to try and speed
the licensing process by attempting to prevent the
relitigation of issues which have already been reviewed
in previous hearings.
The new provisions go beyond
this, however, by preventing the relitigation of issues
which could have been raised at previous hearings.
This makes it imperative that interveners seize the
earliest opportunity for a hearing to prevent foreclosure of environmental challenges.
By the time a
power plant nears the oprating stage, environmental
issues not yet raised may be lost for failure to litigate them at a site approval or construction permit
hearing.
Prior to the conduct or completion of any required
hearings, the Commission has the power to issue an
interim operating license for a production facility
and may allow the interim operation of a facility
which has already been granted a combined construction
permit and operating license.
Before such an interim
license may issued or interim operation permitted,
14
31
the Commission must find that the action is necessary
due to an urgent public need or emergency and that
the required hearings have been completed on any
"significant site-specific issue presented in such
hearing pertaining to public health and safety or
55
the common defense and security."
At least 30 days before issuing of an interim
license or allowing interim operation, the Commission
is required to provide the appropriate notice of a
56
hearing and to request comments from interested persons.
The Commission will preside at the hearing which, at 57
their discretion, will be either formal or informal.
These interim licenses or operations are not to exceed
12 months unless good cause can be 58
shown the Commission
why the period should be extended.
These rules serve the purpose of speeding into
operation facilities for which there is an urgent
public need.
It also means, however, that the plant
may go into operation and production before the hearings,
which may involve complex environmental issues, have
been completed.
In this instance, it seems that
expediting the operation of a new facility carries
more weight in the balance than does a completed
hearing dealing with environmental challenges.
15
31
Before there has even been an application for
a construction permit, the Commission has been authorized by the new regulations to issue a site permit
for the approval of a site for nuclear power gener59
ating facility upon the application of any person.
The application must contain information about the
number, type, power level, and location of the facility,
the proposed maximum levels of thermal effluents, type
of cooling systems to be employed, and the seismic,
meteorological, hydrologic and
60 geological characteristics of the proposed site.
The Commission may,
after considering this information, making written
findings concerning the matters 61
specified, and holding
a hearing, issue a site permit.
The site permit is
valid for a period of 10 years and, upon application
no less than 18 months nor more than 48 months prior
to the end of the period, the Commission will renew
it for another 10 years unless it finds that significant new information is available pointing to the
likelihood that the site will not comply with the
Atomic Energy Act or with Commission regulations
pertaining to the protection of public health and
safety, the
62common defense and security, or the environment.
Upon giving 30 day written notice to
16
15
the Commission, and after publication of such notice,
an applicant for a construction permit for a plant to
be located on a site for which approval has been given
63
may begin site preparation and limited construction.
No hearings or other procedures are required due to the
fact that the issues concerning the environmental
acceptability of the location will supposedly
have been
6k
dealt with at the site permit stage.
At the site approval stage it is not necessary
to make a finding that a need for power exists at the
particular site. All that is required is a finding
65
that there is a generic future need for electric power.
This determination of a generic future need may be made
by the Commission, a state, or a regional organisation.
Apparently, no finding of need for power from the
particular facility will be made until the construction
permit stage when a certification of the specific need
67
for the facility must be made to the Commission.
To further speed the licensing process the new
regulations provide the Commission with the authority
to approve standard reactor designs even before there
68
has been an application for a construction permit.
The Commission may approve a standardized design through
31
a rulemaking proceeding after holding a hearing as
69
provided for in section 189 a. (1).
Once formulated,
the rule approving a standardized design is valid in
relation to any application for a construction permit
or combined construction permit and operating license
which satisfies the conditions set forth in the rule
and which is filed within five years of the original
70
approval.
No less than 12 nor more than 18 months
prior to the end of the period, the approval may be
extended for an additional
3 years upon application
71
to the Commission.
The Nuclear Regulatory Commission
is required to grant renewal of the design approval
unless significant new information has been discovered
which makes it likely that the design will not comply
with the Act or the Commission's regulations relating
to the protection of the public health
and safety or
72
the common defense and security.
To extend these
provisions to applications already under consideration,
the Commission is directed to review pending construction permit applications to determine which proposed
facilities will be using designs 73
which could qualify
as approved standardized designs.
The Commission
is then required to publish a list of all such facilities
74
m the Federal Register.
18
31
The Commission is thus enabled to avoid adjudicatory type hearings and use its rulemaking authority to approve basic plant designs without regard
to where the plant will eventually be located.
Once
the basic design is approved, they may be plugged
into individual plants in the future without the need
for protracted review.
Through the use of advance
site approval for a number of different locations
and approval of standardized designs, it is possible
to resolve many issues years in advance of actual
plant construction.
This should mean that the time
between the decision to build on a particular site
and the actual beginning of plant operation should be
greatly reduced.
In addition to the various proposals meant to
make the licensing quicker and more efficient, the
proposed bill would aid public participation by establishing a pilot program for the funding of citizen
75
interveners.
Originally the funding will be available
for interveners in initial or renewal license proceedings, but the Commission may, at its discretion,
76
extend the program to selected rulemaking proceedings.
The new section makes it clear that mere attendance or minimal participation will not qualify for
77
funding.
The criteria for funding eligibility
include requirements to establish the intervener's
interest in the proceedings, his lack of reasonable
19
31
access to adequate alternative funding, that funding
is needed for effective intervention, that the particular intervenor will bring forth views and substantive arguments which would not otherwise have
been presented, and that the intervener's argument is
78
needed to ensure a fair determination in the proceeding.
If the intervener qualifies for funding he will be
paid at the conclusion of the proceeding unless he
can convince the Commission that an advance payment
is necessary so that participation will not be sub79
stantially impaired.
The funds extended may cover
some or all of the costs, including attorney fees,
dependent upon the intervener's contribution
to the
80
proceeding and available appropriations.
Subsection d. makes the intervener liable for
forfeiture of rights to future payments or refunding
of any advance payments if the Commission determines
that he did not make the presentation for which the
funds were authorized, or else he acted to "unjustifiably delay, mislead, or otherwise
frustrate the
81
objectives of the proceeding."
Additionally,, in
cases where more than one intervener is seeking funding,
the Commission is authorized to require the consolidation of two or more presentations which will be
20
31
duplicative, or it may select the most effective rep82
resentative and fund only that presentation.
By providing this statutory authority for the
funding of citizen intervenors, the new rules advance
a step toward making the theoretical right to participate in the nuclear decisionmaking process more
than an empty gesture.
A major criticism of the decision-
making process has been that the private citizen
lacks the resources to challenge Commission deter83
minations.
Aside from having to pay legal fees
over protracted periods of time, the intervenor needs
the aid of expensive expert witnesses
84 to challenge
the conclusions of the Commission.
Perhaps with
funding removed to an extent as a major obstacle,
•
more private interest intervention will be stimulated.
Perhaps the most contraversial aspect of the
new licensing scheme deals with the respective roles
of the states and
S5 the Commission in the environmental
review process.
Under the proposed law the Commission
will give notice to the affected state within 10
days of the filing of an application for a site permit,
construction permit, or combined construction permit
and operating license for a nuclear powered generating
86
facility.
The state has the option to make a de-
21
.>
31
termination about the need for the proposed facility
87
ands its environmental acceptability.
From receipt
of the Commission's notice, the state has 60 days
in which to notify the Commission, that it will make
the determinations and whether it88has a Commission
approved program for making them.
If the Commission
receives notice that the state has decided to make
the determinations, it may not issue a site permit,
construction permit, or combined construction and
operating license until the state has determined
that construction will be environmentally acceptable
89
and that there is need for the facility.
Also,
if the state has decided to make only some of the
required determinations, the Commission is prohibited
from determining that construction and operation will
be environmentally acceptable or that there is a need
for the facility until
it has first received the
90
state evaluations.
These state evaluations and determinations are
to be made in accordance
with the National Environmental
, 91
Policy Act of 1969.
Once made they are not subject
to further review by the Commission under the National
Environmental Policy Act and are not subject to challenge
before the Commission or in a federal court review
22
21
92
of Commission action.
When the state notifies the Commission that
it has decided to make all the required determinations
and that it has an approved plan for making them,
the Commission is discharged from any resposibility
under the National Environmental Policy Act for making
93
any evaluations itself.
If the state gives notice
to the Commission that it will make some of the determinations, the Commission is relieved of responsibility for assessing the environmental acceptability
of the areas covered by those determinations and will
use such determinations in fulfilling the rest of
its duties under the National Environmental Policy
94
Act.
Only in the case where the state has failed
to notify the Commission within 60 days shall the
Commission have the exclusive authority
95to make the
required environmental determinations.
These provisions do not disturb the Commission's
authority to protect the public health and safety
or the common defense and security as provided under
96
current law.
It is reserved to the Nuclear Regulatory
Commission to assess, pursuant to the National
Environmental Policy Act, all the radiological health
and.safety questions surrounding the operation of
22
the new reactor.
9?
The Commission forwards its state-
ment of conclusions regarding these questions to the
state which will include it in its own statement
relating to the environmental acceptability of the
98
proposed facility.
The Commission's determination
regarding the radiological and safety impacts of reactor
99
operation are not subject to review.
If a state is to make the required environmental
reviews, it must have a Commission approved program
for making the evaluations and determinations.
This
program is submitted by the Governor of the state
100
to the Commssion for its review and approval.
The Nuclear Regulatory Commission sets the guidelines
for review of the program.
The program must have
provisions to ensure state compliance with the requirements of the National Environmental Policy Act,
and the state must submit to federal 101
court jurisdiction
for review and enforcement purposes.
The program
must provide that economically feasible alternate
sources of power will be considered and that the state
will make a determination regarding the generic need 102
for power when a site permit application is tendered.
There must be provisions to assure that the state will
have adequate resources and expertise to make the
24
31
determinations about the environmental impact of and
103
the need for the proposed facility.
The state
must also provide for public participation through
104
procedures such as hearings on final determinations.
To assure coordinated and timely decisions, the program
must provide that a timetable for completing evaluations
105
De established
and that one agency coordinate the
106
reviews of all agencies involved.
To prevent
duplication of effort there should be coordination
10?
with the federal reviews,
and in cases where the
state elects to make only some of the required determinations there should be 108
coordination between the
state and the Commission.
Finally, the program
should provide for consideration of regional factors
in. the determination of the environmental109
acceptability
of the plant and the need for its power.
Under the Act the states are encouraged to form
regional organizations which are authorized to make
the determinations regarding the environmental accept110
ability or the need for power of the new facility.
If the state gives notice to the Commission that the
regional organization is designated to act on its
behalf, then the state will be discharged from responsibility
25
28
125
for making the required determinations.
Commission
control is provided through its power to review any
state program and its performance, and through its
power to suspend or terminate aid to or withdraw
112
approval of the program.
Even states which do not have approved programs
may still provide information and assistance to help
the Nuclear Regulatory 113
Commission make its environmental determinations.
The Commission is allowed
to rely on state information and analysis in reaching
its conclusions about114
the environmental impacts of
a proposed facility.
However, unlike state analyses
and conclusions developed from an approved program,
this information is subject to challenge by any party
115
to an NRC proceeding.
To assist in the development of state or regional
programs, the Commission is authorized to make annual
116
grants to the appropriate state or regional agency.
The states may, subject to Commission approval, use
portions of these grants to fund intervenors in state
proceedings held to make environmental impact determinations and in proceedings
117 for the certification of
need for a new facility.
By transferring to the states most of the Commission's
26
31
responsibilities under the National Environmental
Policy Acts these proposed regulations mark a return
to the position taken prior to 19?0.
When environmental
issues began to be pressed upon the Atomic Energy
Commission in the 1960's, the AEC contended that it
was without authority to regulate non-nuclear effects
118
of the operation of nuclear facilities.
The Commission's
position was upheld in New Hampshire v. Atomic Energy
119
Commission.
In that case the Commission had refused
to consider evidence which the states of New Hampshire,
Vermont and Massachusetts sought to introduce to show
that heated water dischrged from the proposed plant
would result in thermal pollution of the Connecticut
River.
The Commission maintained that such consider-
ations were beyond its jurisdiction and therefore
reviewed the application for a construction permit
only for radiological health and safety impacts.
The most it could do was forward the recommendations
of agencies such as the Federal Water Pollution Control
Administration of the Interior Department to the
applicant and encourage their cooperation with one
another.
The First Circuit Court of Appeals felt that
Congress had intended that the Commission should
27
31
confine itself to the elimination of radiological
danger from nuclear facilities.
It was held, therefore,
that the Atomic Energy Commission was not in error
in refusing to consider evidence of possible thermal
pollution of the Connecticut River by the discharge
from the applicant's proposed plant.
With the passage of the National Environmental
Policy Act of 1969, it was felt that the Commission
would be obligated to consider environmental effects
of nuclear facilities other than those relating to
120
radiological health and safety hazards.
In section
101 (b) the Act states that "it is the continuing
responsibility of the Federal Government to use all
practicable means, consistent with other essential
considerations of national
policy," to prevent envi121
ronmental degradation.
Section 102 (B) mandates
that all Federal agencies are to develop© procedures
which will insure that environmental factors are
considered along with economic 122
and technical factors
in the decisionmaking process.
After the passage of the National Environmental
Policy Act, the Commission developed rules which it
thought would meet the requirements.
Its cavalier
attitude as evidenced by these rules toward environmental considerations was challenged in Calvert Cliffs
28
28
125
Coord. Com, v. United States AEC.
Among other
things, the Commission rules provided that environmental
factors need not be considered by a hearing board
in a permit or license proceeding unless a party to
the proceeding raises them.
This meant that although
the applicant's Evironmental Report and the Commission
staff's own report would accompany the application
through the review process, the hearing board was not
required to consider them unless an environmental
issue was raised.
Recognizing that the Commission's motive was
probably to avoid having to spend a significant amount
of time in review of the environmental statement in
an uncontested hearing, the court nonetheless felt
that the added cost and bother weren't enough to
undercut the requirements of the Act for full environmental consideration.
In addition, the court stated,
"NEPA establishes environmental protection as an integral part of the Atomic Energy Commission's basic
mandate.
The primary responsibility for fulfilling
124
that mandate lies with the Commission."
The
Commission "must itself take the initiative of considering environmental values at every distinctive
and comprehensive stage of the process beyond the
29
28
125
staff's evaluation and recommendation."
The rules also provided that if other agencies
had already certified that their environmental standards had been satisfied by the proposed action, the
Commission was precluded from undertaking its own
evaluation and balancing of those factors.
The court
held that NEPA did not permit the Commission to abdicate its responsibilities in this manner.
The
Commission is the only agency in a position to undertake an over all balancing analysis of the environmental costs against the economic and technical benefits
involved.
Piecemeal certification of a project by
several different agencies, none of which would have
an over all view of the project, would mean the balancing
analysis would not be made.
The court held that the
Act permitted consultation with other agencies but
did not authorize total abdication to them.
As a
result of this decision, the Commission was required
to completely revise its procedures for the implementaion of NEPA.
This resulted in a period of 17
months during which no nuclear power plant construction
126
permit or operating licenses were issued.
Rather than following what seems to be the clear
mandate of the Calvert Cliffs decision, the proposed
30
15
licensing reform plan allows the Nuclear Regulatory
Commission to abdicate its responsibilities to state
or regional authorities on environmental issues and
leaves the Commission solely responsible only for
radiological health and safety questions.
The bill
was criticized by the chairman of the House Subcommittee
on Energy and Power for being designed to expedite
the licensing of nuclear power plants without having
first conducted an investigation to identify the actual
12?
causes of delay.
The Congressman felt the plan
would weaken the National Environmental Policy Act
by allowing the transfer to the states of so many
federal responsibilities.
He thought that federal
responsibilities should not be compromised and that
their transfer to the states could result in environmental impact statements issuing from each state in an
affected area, which in turn would have the effect
of extending rather than expediting the licensing
process.
The bill received crticism from many other sources
even before it was introduced to Congress.
The Energy
Department draft of the bill brought objection from
the Nuclear Regulatory Commission which saw the shifting
of so much responsibility for government supervision
128
to the states as a major cutback in its role,
31
The Council on Environmental Quality criticized the
bill for its failure to address the issue of manage129
ment of nuclear wastes.
Public interest groups
were concerned that the bill would reduce public
130
participation in the licensing process.
Many argued that reforming the licensing process
was not the answer to the problem of delay in bringing
nuclear power plants from the planning to the operational
stage.
The industry had argued that streamlining
the licensing process would increase nuclear plant
production but a study by the Congressional Research
131
Service has disagreed with this view.
The study
concluded that factors outside the licensing process
such as the reduction in projected growth of future
electric demand and the difficulty in obtaining capital to construct plants have been the major causes
of delay.
George L. Gleason, executive vice-president
of the American Nuclear Energy Council, disagreed
with the Congressional Research Service report by
arguing that the actual time required to construct
a plant is 60 months and that 37 months of the 10
to 12 years it currently takes to bring a plant 132
into
operation is consumed in the licensing process.
This added time, he argued, was what made it difficult
32
31
for utilities to obtain investment capital.
Whatever the relative merits of the administration
proposals, neither the House nor the Senate reported a
licensing reform bill in the 95th Congress.
On August
14th, bowing to opposition from members of the Interior
Subcommittee on Energy, Senator Morris K. Udall,
chairman of a House Energy Panel, abandoned further
133
attempts to bring action on licensing reform in 1978.
33
FOOTNOTES
1.
Atomic Energy Act of 1946, 60 Stat. 755 (1946).
2.
60 Stat. 756 (1946).
3.
60 Stat. 756 (1946).
4.
60 Stat, 772 (1946).
5.
60 Stat. 772 (1946).
6.
60 Stat. 772 (1946).
7.
60 Stat. 772 (1946).
8.
Green, Nuclear Technology and the Fabric of Government,
33 Geo.'Wash. L." Rev, at 133 (1964).
9.
Id. at 133.
10.
Atomic Energy Act of 1954, 68 Stat. 919 (1954).
11.
Green, Nuclear Technology and the Fabric of Government,
33 Geo. Wash. L. Rev, at 148 (1964).
12.
Id. at 148.
13.
Pub. L. No. 93-438, 88 Stat. 1233 (1974).
14.
Id. § 101 88 Stat. 1234 (1974).
15.
Id. § 201 88 Stat. 1242 (1974).
16.
Whitney, Enhancing Public Acceptance of Nuclear
Decisionmaking, 15 Wm, & Mary L. Rev. 557 (1974).
17.
Id. at 563,564.
18.
Green, Public Participation in Nuclear Power Plant
Licensing^ The Great Delusion, 15 Wm. & Mary L. Rev,
at 513~Tl974l".
—
19«
Davis, Citizen's Guide to Intervention in Nuclear
Power Plant Sitings A Blueprint for Alice in
Nuclear Wonder!and, ^"Environmental Law at 651 (1976).
n &
20.
March 11, 1978 CONG. Q. WEEKLY REP. at 628.
21.
D. Meyers III, The Nuclear Power Debate, at 46 (1977).
22.
April 23, 1977 CONG. Q. WEEKLY REP. at 752.
23.
Id. at 751.
24.
Id. at 752.
25.
March 25, 1978 CONG. Q. WEEKLY REP. at ?45-
27.
S. 2775. 95th Cong., 2nd Sess., 124 CONG. REC. 4259
(1978). Hereinafter cited,Sec.
6
.
28.
Sec. 102 § 185 a.
29.
Id-
30.
Id.
31 • Id»
32.
Id.
33.
Sec. 102 5 185 b.
34.
Id.
35-
Id.
36.
Id.
37-
Sec. 103
38.
Sec. 103 S 189 a. (1) (A).
39•
Id.
40.
Id.
41.
Sec. 103 S 189 a. (1) (B).
42.
Administrative Procedure Act, 5 U.S.C. S 556 (d) (1976).
43.
Sec. 103 § 189 a. (1) (C).
189 a.
35
44.
Administrative Procedure
45.
Sec . 103 § 189 a. (1) (C)
46.
Sec . 103 5 189 a. (2) (A)
47.
Sec . 103 5 189 a. (2) (A)
48.
Id
49.
Id.
50.
Id. 2 (B).
51.
Id. 2 (B).
52.
Id. 2 (C).
53-
Id. 2 (C) .
54.
Sec . 104 5 1 9 2 a.
55.
Id. 5 192 b. (1).
56.
Sec . 103 J 189 a. (3)
57.
Id.
58.
Sec . 104 S 1 9 2 c. (1)
59-
Sec . 105 § 193 a.
60.
Id- % 193 b.
61.
Id- 5 193 c.
62.
Id. % 193 d.
63.
Id. 5 193 e.
64.
Id. § 193 e.
65.
Id. ^ 193 f.
66.
* 193 f.
67.
Sec . 102 5 1 8 5 a.
e
e
•
5 U.S.C. § 553 (c) (1976).
68.
Sec. 106 § 194 a.
69.
70.
Id. 5 19^ d. (1) .
71.
Id. I 19^ d. (2) (A).
72.
Id. § 194 d. (2) (B).
73.
Id. S 194 e,
74.
75-
Sec. 301 5 197 a. (1).
76.
Ia. § 197 a. (1).
77-
Id. 5 197 a. ( 2).
?8.
Id. i 197 b.
79.
Id. j 197 c.
80.
Id. 5, 197 b.
81.
Id. § 197 d.
82.
Id. § 197 f.
83-
Jacks, The Public and the Peaceful Atom: Participation
in AEG Regulatory Proceedings, 52 Texas L. Rev,
at 500,501 (1975)7
84.
Id. at 498.
85.
Sec. 202 I 195 a. (l)•
86.
Id.
87.
Id..
88.
Id. § 195 a. (2).
89.
Id. § 195 a. (3).
90.
Id. § 195 a. (4).
91 . Id. % 195 a. (5).
92.
Id. y 195 b. (l).
93.
Id. § 195 b. (2) .
37
§
195 b, (3)
94.
Id.
95-
Id. 1 195 d.
96.
Id- B 195 d.
97.
Id.
§
195 d.
98.
Id-
§
195 d.
99.
Id- s 195 e.
100.
Id-
§ 195 e. (1)
101.
Id-
§
102.
Id. § 195 e. (3)
103.
Id- s 195 e. (4)
104.
Id- § 195 3- (5)
105.
Id.
106.
Id- s 195 e. (7)
10?.
Id- § 195 e. (8)
108.
Id. s 195 e. (9)
109.
Id- § 195 f.
110.
Id-
Ill.
Id. S 195 g-
112.
Id.
113.
Id- 5 195 i.
114.
Id.
115-
Id- § 195 j -
116.
Id. s 195 3
195 e, (2)
§ 195 Q . (6)
§
195 f.
195 i.
§
195 i.
•
118.
Jacks, The Public and the Peaceful Atom: Participation
in AEG Regulatory Proceedings, 52 Texas L. Rev.
at W T C w W T ~
119.
New H_amj>sJure_ v A t o m i c Energy Commission, 406
F.2d 170 (1st Cir.), cert, denied.
120.
Jacks, The Public and the Peaceful Atom; Participation
in AEC_Jtegulatory Proceedings, 52 Texas L. Rev.
at T?? J l 9 ? W '
'
121.
National Environmental Policy Act of 1969,
42 U.S.C. § 4331.
122.
Id.
123.
Calvert Cliffs Coord. Com. v. United States A.E.G.,
449 F.2d 1109. (D.C„ Cir. 1971).
124.
Id.
at 1119.
125.
Id-
at 1119.
126.
Green, Public Participation in Nuclear Power Plant
Licensing! The Great Delusion, 15 Wm. & Mary L. Rev,
at 493 (1974).
~
—
127.
March 24, 1978 Environmental Reprter, Vol. 8, No. 47
at I 8 3 6 .
128.
March 11, 1978 CONG. Q. WEEKLY REP. at 627.
129.
Id. at 627.
130.
Id. at 627.
131.
Id. at 628.
132.
Id. at 628.
133-
August 19. 1978 CONG. Q. WEEKLY REP . at 218?
101 (b),
§ 102 (B), 42 U.S.C. j? 4332.
39