Natural Resources Defense Council, Inc. v. U.S.E.P.A., s. 85-1915

Citation824 F.2d 1258
Decision Date17 July 1987
Docket Number86-1096,Nos. 85-1915,s. 85-1915
Parties, 56 USLW 2068, 18 Envtl. L. Rep. 20,088 NATURAL RESOURCES DEFENSE COUNCIL, INC., Conservation Law Foundation of New England, Environmental Policy Institute, State of Maine, and State of Vermont, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and United States of America, Respondents. Arizona Nuclear Power Project, et al., Intervenors. Carolina Power & Light Company, et al., Intervenors. STATE OF VERMONT, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and United States of America, Respondents. Arizona Nuclear Power Project, et al., Intervenors. Carolina Power & Light Company, et al., Intervenors. STATE OF TEXAS, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas, Administrator, Respondents. Arizona Nuclear Power Project, et al., Intervenors. Carolina Power & Light Company, et al., Intervenors. STATE OF MINNESOTA, By Its Attorney General Hubert H. HUMPHREY, III, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Arizona Nuclear Power Project, et al., Intervenors. Carolina Power & Light Company, et al., Intervenors. to 86-1098.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Dan W. Reicher with whom Charles Magraw, Jacqueline M. Warren, Natural Resources Defense Council, Armond Cohen, Conservation Law Foundation of New England, Merideth Wright, Asst. Atty. Gen., State of Vt., Suellen Keiner, Environmental Policy Institute, and Philip Ahrens, Asst. Atty. Gen., State of Me., Chief, Natural Resources Section, were on brief for petitioners Natural Resources Defense Council, Inc., Conservation Law Foundation of New England, Environmental Policy Institute, State of Me. and State of Vt.

Carl A. Sinderbrand, Asst. Atty. Gen., State of Wis., Bronson C. LaFollette, Atty. Gen., State of Wis., Lacy H. Thornburg, Atty. Gen., State of N.C., S. Thomas Rhodes, Secretary, N.C. Dept. of Natural Resources and Community Development, and Michael J. Dowers, Atty. Gen., State of Georgia, were on brief for the States of Wis., Ga., and N.C., amici curiae.

David W. Zugschwerdt with whom Susan L. Smith, U.S. Dept. of Justice, F. Henry Habicht, II, Asst. Atty. Gen., Christopher C. Herman, U.S.E.P.A., Francis S. Blake, General Counsel, Alan W. Eckert, Associate General Counsel, and Charles S. Carter, Asst. General Counsel, were on brief, for respondents.

Renea Hicks, Asst. Atty. Gen., with whom Jim Mattox, Atty. Gen., Mary F. Keller, Executive Asst. Atty. Gen., for Litigation, Nancy N. Lynch, Chief, Environmental Protection Div., and Nancy E. Olinger, Asst. Atty. Gen., were on brief for petitioner, State of Tex.

Joseph G. Maternowski, Sp. Asst. Atty. Gen., with whom Jocelyn Furtwangler Olson, Sp. Asst. Atty. Gen., and Hubert H. Humphrey, III, Atty. Gen., were on brief, for petitioner State of Minn.

Scott A. Harman with whom Maurice Axelrad, Michael A. Bauser, Pamela A. Lacey and Newman & Holtzinger, P.C. were on brief, for intervenor utilities.

Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

This is a petition to review the standards promulgated by the Environmental Protection Agency ("EPA") for the long-term disposal of high level radioactive waste under the Nuclear Waste Policy Act of 1982, 42 U.S.C. Secs. 10101-10226 (1982). The states of Maine and Vermont, and the Natural Resources Defense Council, Conservation Law Foundation of New England, and Environmental Policy Institute were the original petitioners. Later Minnesota and Texas also challenged the same standards in separate proceedings. All suits have been consolidated in this circuit. A coalition of nuclear power utilities has been permitted to intervene.

I. STATUTORY BACKGROUND

The challenged standards were written by the EPA to regulate harmful releases into the environment from radioactive waste stored in repositories planned for its disposal. (The standards also regulate releases occurring while the waste is being managed prior to its disposal.)

The waste in question is derived from the fissioning of nuclear fuel in commercial nuclear power plants and in military reactors. Some of the material is first reprocessed so as to recover unfissioned uranium and plutonium. Reprocessing results in a transfer of most of the radioactivity into acidic liquids that are later converted into solid radioactive waste. Some spent nuclear fuel is not reprocessed and itself becomes a waste. Collectively this waste is called high level waste ("HLW"). It is extremely toxic and will maintain its toxicity for thousands of years.

Recognizing the need for repositories within which to dispose safely of the growing amounts of HLW, Congress in 1982 enacted the Nuclear Waste Policy Act ("NWPA"), 42 U.S.C. Secs. 10101 et seq. The Act provides for a coordinated effort within the federal government to design, construct and operate nationally at least two HLW disposal facilities. 42 U.S.C. Sec. 10134(2)(A). Without foreclosing other disposal methods, Congress focused in the NWPA on the creation of repositories located deep underground. These will depend on the surrounding underground rock formations together with engineered barriers, to contain safely the radioactivity from these wastes. See H.R.Rep. No. 491, 97th Cong., 2d Sess. 29-34, reprinted in 1982 U.S.Code Cong. & Admin.News 3792, 3795-3800.

The underground repositories are expected to be constructed using conventional mining techniques in geologic media such as granite, basalt (solidified lava), volcanic tuff (compacted volcanic ash) or salt. The solidified high level waste will be housed in canisters placed in boreholes drilled into the mine floor. When the repository is full, it will be backfilled and sealed. See Background Information Document for Final Rule at 4-1, 4-2.

In the NWPA, Congress prescribed a complex process for selecting the sites of the high level waste repositories. We shall summarize the selection process since it is relevant to an overall understanding of the standards in question. The Department of Energy ("DOE") begins the process by naming states containing "potentially acceptable sites." 42 U.S.C. Sec. 10136(a). Within 90 days of identification, DOE must tell the governors and legislatures of the identified states where these sites are. Simultaneously, DOE must adopt guidelines for the selection of sites in various geologic media. 42 U.S.C. Sec. 10132(a). DOE is then to apply the guidelines to the potentially acceptable sites and nominate at least five sites as suitable for characterization as candidate sites for the first repository. 42 U.S.C. Sec. 10132(a), (b)(1)(A). Under this format, DOE in February of 1983 identified nine potentially acceptable sites (a Nevada site in tuff; a Washington site in basalt; two Texas sites in bedded salt; two Utah sites in bedded salt; one Louisiana site in a salt dome; and two Mississippi sites in salt domes). See Background Information Document for Final Rule at 4-2.

The Act required DOE to recommend to the President three of the nominated sites for detailed characterization studies. 42 U.S.C. Sec. 10132(b)(1)(B). The President may then approve or disapprove a nominated site. 42 U.S.C. Sec. 10132(c). In December 1984 DOE tentatively identified five sites for possible detailed site characterization. Three of these sites were formally recommended for detailed site characterization studies (Yucca Mountain site in Nevada; Deaf Smith County site in Texas; and the Hanford site in Washington). See Background Information Document at 4-5.

Nominated sites recommended to and approved by the President are then to be characterized by DOE. 42 U.S.C. Sec. 10133. After conducting the detailed site characterization studies, DOE must make a recommendation to the President concerning the final site approval. Before DOE recommends a site it must hold public hearings, must notify any affected state or Indian tribe, and must prepare an environmental impact statement for each site to be recommended to the President. The President must then submit to Congress an endorsement of one site from the three sites characterized and recommended by DOE. 42 U.S.C. Sec. 10134(a)(2)(A).

The site recommended by the President becomes the approved site for the first repository after 60 days, unless the affected state or Indian tribe submits to Congress a notice of disapproval. 42 U.S.C. Sec. 10135(b). If such notice of disapproval is received, the site is disapproved unless, during the first 90 days after receipt of the notice, Congress passes a resolution of repository siting approval. 42 U.S.C. Sec. 10135(c). The same site approval process is prescribed for the selection of a second federal repository site.

Several federal agencies share responsibility for building, licensing and laying down standards for the HLW repositories. The Department of Energy is to design, build and operate each federally owned repository. 42 U.S.C. Sec. 10134. However, the Nuclear Regulatory Commission ("NRC") has responsibility to license the repositories. 42 U.S.C. Sec. 10134(d). Under its licensure powers, the NRC regulates the construction of the repositories, licenses the receipt and possession of high level radioactive waste at the repositories, and authorizes the closure and decommissioning of repositories. See 42 U.S.C. Sec. 10141(b).

The EPA also has a major regulatory role. The Act provides that EPA,

pursuant to authority under other provisions of law, shall, by rule, promulgate generally applicable standards for protection of the general environment from offsite releases from radioactive material in repositories.

42 U.S.C. Sec. 10141(a) (emphasis added). The language, "pursuant to authority under other provisions of law," refers to the EPA's responsibility and authority under the Atomic Energy Act of 1954, 42 U.S.C. Sec. 2201(b). The Reorganization Plan No. 3 of 1970 (which was the vehicle used by the...

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