State of Minn. by Minnesota Pollution Control Agency v. U.S. Nuclear Regulatory Com'n, s. 78-1269
| Decision Date | 23 May 1979 |
| Docket Number | 78-2032,Nos. 78-1269,s. 78-1269 |
| Citation | 602 F.2d 412 |
| Parties | , 195 U.S.App.D.C. 234, 9 Envtl. L. Rep. 20,531 STATE OF MINNESOTA, By the MINNESOTA POLLUTION CONTROL AGENCY, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Northern States Power Company, Intervenor. NEW ENGLAND COALITION ON NUCLEAR POLLUTION, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Vermont Yankee Nuclear Power Corporation, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Anthony Z. Roisman, Washington, D. C., with whom Karin P. Sheldon, Washington, D. C., was on brief, for petitioner in No. 78-2032.
Jocelyn Furtwangler Olson, Sp. Asst. Atty. Gen., Roseville, Minn., with whom Warren R. Spannaus, Atty. Gen., State of Minnesota, St. Paul, Minn., was on brief, for petitioner in No. 78-1269.
Stephen F. Eilperin, Sol., U. S. Nuclear Regulatory Commission, Washington, D. C., with whom William M. Shields, Atty., U. S. Nuclear Regulatory Commission, Edward J. Shawaker and Michael A. McCord, Attys., Dept. of Justice, Washington, D. C., were on brief, for respondents.
Robert E. Zahler, Washington, D. C., with whom Wm. Bradford Reynolds, Washington, D. C., was on brief, for intervenor in No. 78-1269.
Thomas G. Dignan, Jr., Boston, Mass., with whom R. K. Gad III and Faith S. Hochberg, Boston, Mass., were on brief, for intervenor in No. 78-2032.
James W. Moorman, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for respondent, United States of America.
Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.
Opinion for the Court filed by LEVENTHAL, Circuit Judge.
Petitioners challenge an order of the Atomic Safety and Licensing Appeal Board (Appeal Board), a unit of the Nuclear Regulatory Commission (NRC). The Appeal Board affirmed initial decisions of Atomic Safety and Licensing Boards (Licensing Boards) granting two operators of nuclear power plants amendments to their operating licenses to permit expansion of on-site capacity for the storage of spent nuclear fuel assemblies.
The crux of the case is current uncertainty about the prospects for developing and implementing safe methods for the ultimate disposal or even long-term storage of the highly toxic radioactive wastes created in the process of nuclear power generation.
In this opinion, we do not set aside or stay the challenged license amendments. On certain aspects of the case, we issue rulings approving the agency's procedural position. However, we conclude by remanding these cases to the agency for clarification and consideration in the light of a related proceeding and other current developments.
A nuclear reactor core contains a number of fuel assemblies, bundles of thin tubes (or "fuel rods") containing pellets of enriched uranium. The build-up of neutron-absorbing "poisons" during the chain reaction reduces the ability of the fuel to sustain an efficient chain reaction. "Spent" fuel assemblies must therefore be removed periodically from the reactor core and replaced with fresh fuel. When removed from the core, the assemblies generate enormous heat and contain highly radioactive uranium, actinides and plutonium. Under current practice, the assemblies are placed vertically on racks in a "spent fuel pool" adjacent to the reactor and within the containment vessel. The spent fuel pool is a large basin constructed of concrete, lined with stainless steel and filled with water to dissipate the heat generated by radioactive decay and to absorb radiation.
It was anticipated, when most of the nuclear power plants now in operation in the United States were licensed, that spent fuel would be stored at the reactor site only long enough to allow the fuel assemblies to cool sufficiently to permit safe shipment off-site for reprocessing (the extraction from the rods of usable uranium and plutonium) or permanent disposal. Spent fuel storage capacity at these plants is therefore limited.
Plans for off-site reprocessing or storage have not materialized. No facility for reprocessing of commercial nuclear wastes is currently licensed; indeed, in 1977 President Carter suspended indefinitely all commercial reprocessing, because of security concerns about plutonium proliferation. The availability of off-site storage facilities, not involving reprocessing, is limited, and no additional capacity is currently projected.
Operators of nuclear plants have sought from the Nuclear Regulatory Commission license amendments permitting expansion of on-site spent fuel storage capacity. Otherwise, as is evident from the foregoing description, these nuclear plants, which were designed in contemplation of off-site shipment of spent fuel, would be forced to shut down when the limited on-site storage capacity was filled.
More specifically, these consolidated appeals involve two applications for license amendment. Vermont Yankee Nuclear Power Corporation, the intervenor in No. 78-2032, operates a nuclear generating facility at Vernon, Vermont. Its spent fuel pool had an original capacity of 600 fuel assemblies. Scheduled refuelings would have filled the pool by 1977, and forced Vermont Yankee to cease operation in August 1978. On November 5, 1976, Vermont Yankee applied to the NRC for an amendment to its operating license to permit expansion of the pool's capacity from 600 to 2000 assemblies, thereby permitting on-site storage through 1987. The application contemplated no increase in the physical dimensions of the pool, but rather the installation of new racks that would permit closer spacing of the fuel assemblies in the pool. The New England Coalition on Nuclear Pollution (petitioner here) and others intervened.
Northern States Power Company, intervenor in No. 78-1269, operates the Prairie Island nuclear facility in Goodhue County, Minnesota. That facility has two reactors, which would have exhausted the 198-assembly capacity of their shared spent fuel pool by the spring of 1978, forcing the shutdown of both reactors by the spring of 1979. On November 24, 1976, Northern States requested that NRC grant an amendment to its operating license to permit expansion of the pool capacity to 687 assemblies, allowing storage through 1982. 1 Like Vermont Yankee, Northern States proposed to accomplish the expansion through closer spacing of racks within the pool. The Minnesota Pollution Control Agency intervened.
In separate proceedings on each application, the NRC Staff undertook evaluations of the safety of the proposed pool modifications and their environmental impact. The evaluations extended only to the safety and environmental effects of the proposed modifications themselves; the Staff did not consider any implications arising from the possibility that the unavailability of a permanent nuclear waste disposal solution might cause the plant sites to become permanent storage facilities, or even to continue on as storage beyond the expiration dates of the licensees' operating authority (for Vermont Yankee and Prairie Island, during the years 2007-2009).
Noting that the modification would entail no increase in the amount of wastes annually generated by the reactor, the Staff found "reasonable assurances" that the modifications would not endanger public health and safety, and hence satisfied the standards of the Atomic Energy Act and NRC regulations, 2 and concluded that the National Environmental Policy Act (NEPA) did not require the preparation of environmental impact statements because the modifications would not "significantly affect the quality of the human environment." 3
The initial decision of the Licensing Board in each proceeding essentially adopted the Staff's safety and environmental findings and approved the requested amendments. 6 N.R.C. 436 (1977) (Vermont Yankee); 6 N.R.C. 265 (1977) (Prairie Island). Each Board excluded from its determination any consideration of the safety and environmental effects of long-term storage of nuclear wastes on the site. 6 N.R.C. at 438 (Vermont Yankee); J.A. at 172 (Prairie Island) (order following prehearing conference).
Petitioners appealed. The Appeal Board consolidated the appeals and affirmed. 7 N.R.C. 41 (Jan. 30, 1978).
The Appeal Board first noted that there was no serious challenge to the evidence supporting the Staff's and Licensing Boards' safety and environmental conclusions. It then addressed the different issue raised by the intervenors (petitioners here). Those parties contended that the uncertainty as to the feasibility of ultimate solutions for the disposal of commercial nuclear wastes raised the possibility that the reactor sites might become long-term and possibly indefinite storage sites, persisting subsequent to the expiration of the plants' operating licenses. Before any expansion of on-site storage capacity could be approved, they argued, the Commission must consider the safety and environmental implications of indefinite storage on-site after decommissioning of the reactor.
In deciding to what extent it was bound to take into account these long-term implications, the Appeal Board began with NEPA's "rule of reason" as to the possible consequences of an action that must be considered. That doctrine was first enunciated in NRDC v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972), Quoted with approval, Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551 (1978); Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). The Board defined its inquiry not as whether it was "theoretically possible" that no off-site fuel repositories would be available at the expiration of the license; rather, it defined the question as whether that event was "reasonably probable." 7 N.R.C. at 49.
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