Izaak Walton League of America v. Schlesinger

• Decision Date: 17 December 1971
• Docket Number: No. 2207-71,2208-71.,2207-71
• Citation: 337 F. Supp. 287
• Parties: The IZAAK WALTON LEAGUE OF AMERICA et al., Plaintiffs, v. James SCHLESINGER et al., Defendants, and Commonwealth Edison Company and Iowa-Illinois Gas and Electric Company, Defendant-Intervenors. PEOPLE OF the STATE OF ILLINOIS ex rel. William J. Scott, Atttorney General of the State of Illinois, Plaintiff, v. UNITED STATES ATOMIC ENERGY COMMISSION et al., Defendants, and Commonwealth Edison Company and Iowa-Illinois Gas and Electric Company, Defendant-Intervenors.
• Court: U.S. District Court — District of Columbia

337 F. Supp. 287

The IZAAK WALTON LEAGUE OF AMERICA et al., Plaintiffs, v. James SCHLESINGER et al., Defendants, and Commonwealth Edison Company and Iowa-Illinois Gas and Electric Company, Defendant-Intervenors.

PEOPLE OF the STATE OF ILLINOIS ex rel. William J. Scott, Atttorney General of the State of Illinois, Plaintiff, v. UNITED STATES ATOMIC ENERGY COMMISSION et al., Defendants, and Commonwealth Edison Company and Iowa-Illinois Gas and Electric Company, Defendant-Intervenors.

Nos. 2207-71, 2208-71.

United States District Court, District of Columbia.

December 17, 1971.

Joseph Karaganis, Special Asst. Atty. Gen., Harold A. Katz, Irving M. Friedman, William J. Scott, Atty. Gen. State of Ill., David C. Landgraf, Chief, Northern Region Environmental Control Div., Chicago, Ill., Wallace L. Duncan, Jon T. Brown, Washington, D. C., for plaintiffs.

Irwin L. Schroeder, Dept. of Justice, Washington, D. C., Marcus Rowden, Sol., Atomic Energy Comm., Charles Bechhoefer, Atomic Energy Comm., Germantown, Md., for defendants.

Lester S. Hyman, Richard P. Shlakman, Lois J. Schiffer, Washington, D. C., Michael I. Miller, Mark H. Virshbo, Chicago, Ill., for defendant-intervenors.

MEMORANDUM OPINION

PARKER, District Judge.

Before the Court are two consolidated actions seeking to compel the preparation of environmental impact statements and to perform other duties alleged to be required by the National Environmental Policy Act of 1969 (NEPA)¹ prior to the issuance of an interim operating license for the Quad Cities Nuclear Power Station at Cordova, Illinois.

The plaintiffs in the first proceeding are the Izaak Walton League of America, three of its local chapters, and the United Automobile Aerospace and Agricultural Implement Workers of America (UAW). The defendants are the Atomic Energy Commission (AEC) and certain named members and officials thereof.²

In the related suit, the complaint is brought on behalf of the People of the State of Illinois against the AEC, named members and officials, and the United States Army Corps of Engineers.³ In each proceeding the Commonwealth Edison Company and the Iowa-Illinois Gas and Electric Company were granted leave to intervene as defendants.

At this point in the proceedings the Court's concern is with the issues presented by the first two counts of the pleadings.⁴ In the first count it is contended that the AEC regulations in 10 C.F.R. Part 50, Appendix D (effective September 9, 1971)⁵ were promulgated without an accompanying environmental statement and without public hearings as required by NEPA,⁶ Executive Order No. 11514⁷ and the Council on Environmental Quality (CEQ) guidelines.⁸ Plaintiffs seek a declaration that these regulations are invalid and an order directing AEC to promulgate new regulations. In the second count it is contended that the AEC's regulations, Appendix D., Section D.3⁹ permits the issuance of an interim operating license without the preparation of a NEPA statement and opportunity for public hearings. Further, it is contended that operation of the Quad Cities Station would be controversial within the meaning of the CEQ guidelines.¹⁰ Plaintiffs request this Court to enjoin the defendants from issuing an interim operating license to Commonwealth Edison and Iowa-Illinois until a NEPA environmental statement is prepared and distributed by the AEC.

The AEC asserts that its regulations are proper; that their issuance complied with the law; that a NEPA statement was not required in their promulgation, nor is such statement required by law when an interim operation license is involved. Together with the intervenors, they also contend this Court lacks jurisdiction over the issues presented and move to dismiss counts one and two of the complaint.

For the reasons set forth, the Court agrees that it does not have jurisdiction over issues involving the issuance or modification of rules and regulations of the AEC and dismisses count one of the complaints. However, the Court concludes that it does have jurisdiction to consider plaintiffs' claim that the AEC violated a clear, non-discretionary, statutory mandate. Accordingly, the Court rules that the motion to dismiss the second count of the complaints should be denied, and further, that plaintiffs are entitled to a preliminary injunction restraining AEC from issuing an interim operating license authorization for the facilities.

The Quad Cities Nuclear Power Station will comprise two boiling water nuclear power reactors, each with an aggregate capacity of 809 electrical megawatts. Application for a construction permit for the first reactor was filed with the AEC by the intervenors on May 31, 1966. An amendment to that application, broadened to include a permit for the second reactor, was filed on August 18, 1966. Following a public hearing, an initial decision of an atomic safety and licensing board authorized grant of the construction permits and they were issued on February 15, 1967.

On September 3, 1968, application was filed for operating licenses for the units and the utilities submitted an environmental report dated November 12, 1970. A "Notice of Consideration of Issuance of Facility Operating Licenses" for both Quad Cities units appeared in the Federal Register on March 16, 1971 (36 Fed.Reg. 5008) and any affected persons could request a hearing within 30 days. No request was received, either within the prescribed time period or thereafter. The operating license requests are currently under consideration by AEC.

A series of steps is required to bring a completed nuclear power plant to operational status, commencing with fuel loading, testing and verification of plant performance, and proceeding thereafter to a sequential ascent to power. On October 12, 1971, the applicants filed a request for authorization to conduct all necessary testing for the Quad Cities units and authority to operate them (until March 15, 1972) up to an aggregate level of 809 megawatts. That request is the subject of the second count of the complaints in these cases. The AEC currently has these latter requests under consideration.

On September 9, 1971, the AEC issued substantially revised regulations for implementation of NEPA requirements in AEC licensing proceedings pursuant to the mandate of the Court of Appeals for the District of Columbia Circuit in Calvert Cliffs' Coordinating Committee, et al. v. United States Atomic Energy Commission, et al., 449 F.2d 1109 (D.C. Cir., July 23, 1971). There, because certain portions of the AEC regulations did not sufficiently implement NEPA requirements, the Court ruled that they must be revised so as to give full consideration to environmental issues. Accordingly, the AEC promulgated a revised Appendix on September 9, 1971¹¹ requiring stricter consideration of environmental matters by the applying licensee and the Commission. The revisions became effective, without prior notice and hearing, upon publication in the Federal Register. However, interested persons desiring to submit written comments or suggestions on the revisions could do so within 60 days from September 9, 1971, with the view that their observations would be considered in possible further amendments.

The revision was designed to implement and expedite review of the environmental effects of nuclear generating stations in accordance with Calvert Cliffs' and applies to facilities, such as Quad Cities, which were constructed and were almost at the point of applying for an operating license when the Circuit Court ruled. Section D.3 of revised Appendix D is applicable in those circumstances in which notice of opportunity for a hearing on an application for an operating license was issued after March 4, 1971, but prior to October 31, 1971. Consolidated Edison and Iowa-Illinois, pursuant to this section, applied for the issuance of an interim operating license to test the facility and to operate it, up to a capacity of 50% from date of issuance to March 15, 1972.

I

In count one the plaintiffs allege that the AEC should have prepared and distributed an environmental impact statement and conducted public hearings before undertaking a revision of Appendix D regulations implementing NEPA and Calvert Cliffs'. The Court will not pass upon the question whether under the circumstances impact statements and hearings are required with respect to the revised Appendix D since it agrees with the intervenors and the government that a review of regulations promulgated by the AEC lies outside the jurisdiction of this Court.

In 28 U.S.C. § 2342, the Congress, regarding judicial review of Appendix D, expressly stated that the exclusive remedy is in the court of appeals. Section 2342 provides:

The court of appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of ... (4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42. (Emphasis added.)

And 42 U.S.C. § 2239(a) provides:

In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees .... (Emphasis added.)

It is clear that we are dealing with a "proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees" of the AEC. The revised Appendix D rules and regulations in issue specify the procedures involved in the issuance of operating licenses. Since no further presentation before the AEC can affect the operation of such procedures, revised Appendix D is a final order under 42 U.S.C. § 2239(b) which provides:

Any final order entered in any proceeding of the kind specified in subsection (a) of this section shall be subject to judicial review in the manner prescribed in the Act of December 29, 1950, as amended, and to the

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