Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Com'n, s. 74-1385

• Citation: 178 U.S.App.D.C. 336,547 F.2d 633
• Decision Date: 22 February 1977
• Docket Number: 74-1586,Nos. 74-1385,s. 74-1385
• Parties: , 178 U.S.App.D.C. 336, 6 Envtl. L. Rep. 20,615 NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Vermont Yankee Nuclear Power Corporation, Intervenor. NATURAL RESOURCES DEFENSE COUNCIL, INC., and Consolidated National Intervenors, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Baltimore Gas and Electric Co. et al., Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 633

547 F.2d 633

9 ERC 1149, 178 U.S.App.D.C. 336, 6

Envtl. L. Rep. 20,615

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United

States of America, Respondents,

Vermont Yankee Nuclear Power Corporation, Intervenor.

NATURAL RESOURCES DEFENSE COUNCIL, INC., and Consolidated

National Intervenors, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United

States of America, Respondents,

Baltimore Gas and Electric Co. et al., Intervenors.

Nos. 74-1385, 74-1586.

United States Court of Appeals, District of Columbia Circuit.

Argued May 27, 1975.

Decided July 21, 1976.

As Amended Oct. 8, 1976.

Certiorari Granted Feb. 22, 1977.

See 97 S.Ct. 1098.

George W. Mayo, Jr., Washington, D. C., with whom Robert M. Jeffers, David J. Hensler, Patrick M. Raher, Richard E. Ayres and Anthony Z. Roisman, Washington, D. C., were on the brief for petitioners in No. 74-1385.

David Hensler and Patrick M. Raher, Washington, D. C., with whom Robert M. Jeffers, George W. Mayo, Jr., Richard E. Ayres and Anthony Z. Roisman, Washington, D. C., were on the brief for petitioners in No. 74-1586.

James A. Glasgow, Atty., U. S. Nuclear Regulatory Commission, Washington, D. C., with whom Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark, John J. Zimmerman, Attys., Dept. of Justice, Raymond M. Zimmet, Acting Sol., U. S. Nuclear Regulatory Commission, Washington, D. C., were on the brief for respondents. Marcus A. Rowden, Jerome Nelson, Joseph DiStefano, Washington, D. C., and Guy H. Cunningham, III, Attys., U. S. Nuclear Regulatory Commission and George R. Hyde and Edward J. Shawaker, Attys., Dept. of Justice, Washington, D. C., also entered appearances for respondents.

George C. Freeman, Jr., Richmond, Va., with whom W. Taylor Reveley, III, David S. Brollier and F. Case Whitlemore, Richmond, Va., were on the brief for intervenor, Baltimore Gas and Electric Co. in No. 74-1586.

Thomas G. Dignan, Jr., Boston, Mass., for intervenor, Vermont Yankee Nuclear Power Corp. in No. 74-1385.

Louis J. Lefkowitz, Atty. Gen., of the State of New York, and John F. Shea, III, Asst. Atty. Gen., New York City, of the State of New York, filed a brief on behalf of the State of New York as amicus curiae, urging reversal.

Arvin E. Upton, Washington, D. C., Harry H. Voight, New York City, and Eugene R. Fidell, Washington, D. C., filed a brief on behalf of Commonwealth Edison Co., Consolidated Edison Co. of New York, Inc., Niagara Mohawk Power Corp., Omaha Public Power District Powers Authority of the State of New York and Rochester Gas and Electric Corp., as amicus curiae urging affirmance.

Before BAZELON, Chief Judge, EDWARDS, ^* Circuit Judge for the Sixth Circuit, and TAMM, Circuit Judge.

Opinion for the Court filed by Chief Judge BAZELON.

Separate statement of Chief Judge BAZELON.

Separate statement filed by Circuit Judge TAMM, concurring in the result.

BAZELON, Chief Judge:

The problems posed in both these cases relate to the manner and extent to which information concerning the environmental effects of radioactive wastes must be considered on the public record in decisions to license nuclear reactors.

I. INTRODUCTION

Appeal number 74-1385 involves a proceeding to license a specific nuclear reactor (the Vermont Yankee Nuclear Power Station located near Vernon, Vermont). Pursuant to the National Environmental Policy Act, ¹ petitioners ² sought consideration of the environmental effects of that portion of the "nuclear fuel cycle" ³ attributable to operation of that reactor. The Appeal Board held that Licensing Boards ⁴ must consider the environmental effects of transportation of fuel to a reactor and of wastes to reprocessing plants, but need not consider the "operations of the reprocessing plants or the disposal of wastes" in individual licensing proceedings. In re Vermont Yankee Nuclear Power Corp., ALAB-56, 4 AEC 930 (June 6, 1972), I-J.A. 72, 76. ⁵

Appeal number 74-1586 involves a rulemaking proceeding which the Commission instituted shortly thereafter with specific reference to the Vermont Yankee decision. The purpose of the rulemaking was to reconsider whether environmental effects of all stages of the uranium fuel cycle should be included in the cost-benefit analysis for licensing individual reactors. 37 Fed.Reg. 24191 (Nov. 15, 1972), II-J.A. 1. The Commission concluded the environmental effects of the fuel cycle, including waste disposal, were "relatively insignificant," ⁶ but that it was preferable to take them into account. Therefore, a rule was promulgated requiring a series of specified numerical values (set out as Table S-3 accompanying the rule) be factored into the cost-benefit analysis for an individual reactor. These values are intended to represent the incremental contribution of an additional reactor to the environmental effect of the fuel cycle. The rule further provides that in addition to Table S-3, "No further discussion of such environmental effects shall be required." ⁷ Finally, it is declared that "(i)nsofar as this rule differs" from that announced in the Vermont Yankee decision, supra, that decision shall have "no further precedential significance." Id.

II. VERMONT YANKEE (74-1385)

It is undisputed that a reactor licensing is a "major Federal action () significantly affecting the quality of the human environment" which requires a "detailed" environmental impact statement under § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C). That section requires an impact statement to consider, inter alia,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

The plain meaning of this language encompasses radioactive wastes generated by the operations of a nuclear power station, just as it does the stack gases produced by a coal-burning power plant.

Nor are the wastes generated by the subject reactor de minimis. We were informed at argument that the Vermont Yankee plant will produce approximately 160 pounds of plutonium wastes annually during its 40-year life span. ⁸ Plutonium is generally accepted as among the most toxic substances known; inhalation of a single microscopic particle is thought to be sufficient to cause cancer. ⁹ Moreover, with a half-life of 25,000 years, plutonium must be isolated from the environment for 250,000 years before it becomes harmless. Operation of the facility in question will also produce substantial quantities of other "high-level" ¹⁰ radioactive wastes in the form of strontium-90 and cesium-137 which, with their shorter, 30-year half-lives, must be isolated from the environment for "only" 600 to 1000 years. ¹¹

The Appeal Board advanced two major arguments to justify its decision that reprocessing and waste disposal issues need not be considered at the licensing stage: (1) that these issues are too speculative; and (2) that they are more appropriately considered when reprocessing and waste disposal facilities are themselves licensed. We turn now to these contentions.

The Board agreed that "there will be an incremental environmental effect ultimately resulting from the operation of this reactor as the result of the operation of whatever reprocessing and disposal grounds may from time to time be used during the life of the plant." ¹² In its opinion, however, these effects were too "contingent and presently indefinable" to be evaluated at the time of licensing in view of the 40-year expected life of the reactor. The Board wrote:

It is evident to us that evaluation of the environmental effects of the operation of one or more unidentifiable reprocessing plants, employing separation processes which are unidentified and which may or may not now be known or used, during the course of the forty-year life of the plant, is not possible at this time and in this proceeding.

I-J.A. 82. This approach was decisively rejected in SIPI, supra, note 11, 481 F.2d at 1092. There we held that the obligation to make reasonable forecasts of the future is implicit in NEPA and therefore an agency cannot "shirk (its) responsibilities under NEPA by labeling any and all discussion of future environmental effects as 'crystal ball inquiry.' " "Meaningful information" concerning the effects of waste reprocessing and disposal technology is presently available, see SIPI, 481 F.2d at 1094, 1096. As the Board noted, a reprocessing plant has been operated by the Commission for some time, and additional plants are under construction. I-J.A. 79. The possibility that improved technology may be developed during the 40-year life span of a reactor does not render consideration of environmental issues too speculative, as the Board appears to suggest. NEPA's requirement for forecasting environmental consequences far into the future implies the need for predictions based on existing technology and those developments which can be extrapolated from it. ¹³

As more and more reactors producing more and more waste are brought into being, "irretrievable commitments (are) being made and options precluded," see SIPI, 481 F.2d at 1094, 1098, and the agency must predict the environmental consequences of its decisions as it makes them. See Aberdeen & Rockfish R.R. v. SCRAP, 422 U.S. 289, 320, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975).

The second argument advanced by the Board is that licensing proceedings for reprocessing plants are a more "appropriate proceeding" in which to weigh the environmental effects of reprocessing and waste disposal. I-J.A. 86. Licensing of a reprocessing plant or waste disposal facility is itself a "major Federal action" affecting the environment which requires a NEPA statement. The real question posed by the Board's opinion is whether the environmental effects of the wastes produced by a nuclear reactor may be ignored in deciding whether to build it because they will...