Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Com'n, 725
| Decision Date | 05 July 1978 |
| Docket Number | No. 725,D,725 |
| Citation | 582 F.2d 166 |
| Parties | , 8 Envtl. L. Rep. 20,646 NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Power Authority of the State of New York, et al., American Electric Power Company, et al., Boston Edison Company, et al., Pennsylvania Power & Light Company, Intervenors. ocket 77-4157. |
| Court | U.S. Court of Appeals — Second Circuit |
Ross Sandler, New York City, John Roger Beers, Helene M. Linker, Palo Alto, Cal., for petitioner.
Peter R. Steenland, Jr., Chief, Appellate Section, Land and Natural Resources Division, U. S. Dept. of Justice, Washington, D. C. (Jerome Nelson, Gen. Counsel, Stephen F. Eilperin, Sol., U. S. Nuclear Regulatory Commission, Washington, D. C.), for respondents.
LeBoeuf, Lamb, Leiby & MacRae, Washington, D. C. (Harry H. Voigt, James P. McGranery, Jr., Patrick K. O'Hare, Washington, D. C., Michael I. Miller, John W. Rowe, Isham, Lincoln & Beale, Chicago, Ill., of counsel), for intervenors Power Authority of the State of New York, et al.
Wm. Bradford Reynolds, Robert E. Zahler, Washington, D. C. (Shaw, Pittman, Potts & Trowbridge, Washington, D. C., of counsel), for intervenors American Electric Power Co., et al.
George C. Freeman, Jr., Donald P. Irwin, Richmond, Va. (Hunton & Williams, Richmond, Va., of counsel), for intervenors Boston Edison Co., et al.
Edward M. Nagel, Allentown, Pa., for intervenor Pennsylvania Power & Light Co.
Leonard J. Theberge, Washington, D. C. (Myrna P. Field, Mid-Atlantic Legal Foundation, Philadelphia, Pa., L. Manning Muntzing, Raul Robert Tapia, Doub, Purcell, Muntzing & Hansen, Washington, D. C., of counsel), for Amicus curiae Mid-Atlantic Legal Foundation.
Kathryn Burkett Dickson, California Energy Resources Conservation and Development Commission, Herbert H. Brown and Lawrence C. Lanpher, Washington, D. C. (Hill, Christopher & Phillips, Washington, D. C., of counsel), for Amicus curiae California Energy Resources Conservation and Development Commission.
Before MULLIGAN and GEWIN, * Circuit Judges, and MILLER, Judge. **
The Natural Resources Defense Council, Inc. ("NRDC") petitions for review of the June 27, 1977, decision of the Nuclear Regulatory Commission ("NRC") denying NRDC's petition for (1) a rulemaking proceeding 1 to determine whether high-level radioactive wastes generated in nuclear power reactors can be Permanently disposed of without undue risk to the public health and safety, and (2) withholding of action on pending and future applications for operating licenses for nuclear power reactors until such time as an affirmative determination has been made. The petition declares that no accepted and approved plan exists for Permanent disposal of high-level radioactive wastes; 2 whereas, under the Atomic Energy Act of 1954 ("AEA") NRC is required to determine that there will be "adequate protection to the health and safety of the public." 3 42 U.S.C. §§ 2232(a), 2133(b), 2013(d), and 2012(e). Although both at oral argument and in its brief NRDC has denied that its purpose was to stop NRC from issuing operating licenses for nuclear power reactors, it is evident that such would be the result if NRDC's petition were granted, since at this time there is no "accepted and approved plan" for Permanent disposal of high-level radioactive wastes. 4
In its petition, NRDC argued as follows:
One of the inevitable by-products of operating a nuclear power reactor is the creation of massive amounts of plutonium and other highly radioactive materials. During its projected 40-year life span, a one-thousand megawatt nuclear power plant can be expected to generate eight metric tons of plutonium, as well as millions of curies of other highly toxic radioactive elements. Plainly, a determination that operation of such a reactor will not create undue risk to public health and safety requires a determination that these highly hazardous and long-lived radioactive materials can be disposed of safely.
. . . .ter
To license a reactor as safe plainly requires the Commission also to determine that the highly hazardous wastes it creates can be handled and Permanently disposed of safely.
. . . .se
Petitioner alleges that the hazards posed by the radioactive wastes created during the operation of nuclear power reactors when evaluated in the current absence of an acceptably safe plan and means for disposal constitute an extremely significant and undue risk to the public health and safety. Specifically, petitioners allege that no adequately safe disposal plan has been approved and that creation of additional radioactive wastes in new reactors at the present time in the absence of an accepted plan for disposing of these wastes does not provide for adequate protection to the health and safety of the public, in violation of the Atomic Energy Act of 1954. (Footnote omitted; emphasis supplied.)
On the other hand, in its notice of denial, NRC concluded that it is neither obligatory nor appropriate that it make the "definitive finding" requested by NRDC, saying:
The Commission notes that prior to any licensing of High-level waste disposal facilities, a detailed finding concerning the safety of the proposed facilities will be made. There is, we believe, a clear distinction between Permanent disposal of wastes and their Interim storage. (Emphasis supplied.)
And further:
As part of the licensing process for an individual power reactor facility, the Commission does review the facility in question in order to assure that the design provides for safe methods for interim storage of spent nuclear fuel. But it is neither necessary nor reasonable for the Commission to insist on proof that a means of permanent waste disposal is on hand at the time reactor operation begins, so long as the Commission can be reasonably confident that permanent disposal (as distinguished from continued storage under surveillance) can be accomplished safely when it is likely to become necessary. Reasonable progress towards the development of permanent disposal facilities is presently being accomplished. Under these circumstances a halt in licensing of nuclear power plants is not required to protect public health and safety.
In its brief, NRDC argues that to date the federal government has failed to develop any proven means for the safe permanent disposal of radioactive waste; that "there is no guaranty that the federal government can or will ever develop a safe, permanent waste disposal facility"; and that "substantial doubts exist" over whether such disposal will ever be "technically or politically feasible." Therefore, NRDC says it would be "foolhardy to continue to license nuclear power reactors without any regard for whether safe (permanent) waste disposal can be accomplished."
However, this does not fairly frame the issue, since, as recognized in the California brief, NRC clearly does have "regard" for whether safe permanent waste disposal can be accomplished, and this notwithstanding that 42 U.S.C. § 2232, which specifies the information to be furnished in applications for "production or utilization facilities," does not require any information from an applicant regarding permanent disposal of high-level waste. 5 Thus, in its notice of denial, NRC stated:
The Commission would not continue to license reactors if it did not have reasonable confidence that the wastes can and will in due course be disposed of safely.
Further, it pointed to
the Commission's implicit finding of reasonable assurance that methods of safe permanent disposal of high-level wastes can be available when they are needed. Given this, and the fact that at present safe storage methods are . . . available and highly likely to remain so until a permanent disposal system can be demonstrated and licensed, 6 the Commission sees no reason to cease licensing reactors.
The technology for disposal is reasonably available, and the studies done to date, while not conclusive, are nevertheless promising for timely and safe implementation of the technology. Most importantly, ERDA has dramatically expanded the U.S. program for development of a permanent high-level waste repository. . . . ERDA has greatly expanded its program for selection of sites for geologic disposal and is expected to apply to the NRC for a license for such a facility in early 1980 7 or before. . . . Thus, there is now a coordinated Federal program to develop an actual disposal facility. Similarly, the NRC is expanding its own program to set the regulatory requirements for such an operation. The NRC is presently developing a set of regulations to govern licensing of federal repositories to insure that permanent disposal of high-level radioactive wastes will be accomplished safely.
Reduced to its essence, the issue in this case is whether NRC, prior to granting nuclear power reactor operating licenses, is required by the public health and safety requirement of the AEA to make a determination (in accordance with its rulemaking procedure) that high-level radioactive wastes can be Permanently disposed of safely. NRDC argues that NRC is so required and that the AEA and ERA (Energy Reorganization Act of 1974) show that Congress so intended. NRC maintains that it need not do so and that its long-continued regulatory practice of issuing operating licenses, with an implied finding of reasonable assurance that safe permanent disposal of such wastes can be available when needed, is in accord with the intent of Congress underlying the AEA and ERA; also, that in denying NRDC's petition, the NRC did not act arbitrarily or capriciously.
NRDC would find a congressional mandate for an affirmative determination regarding permanent disposal of high-level waste in 42 U.S.C. § 2133(d), which provides that no license (for utilization or production facilities for industrial or commercial purposes) may be issued if such...
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