Lower Alloways Creek Tp. v. Public Service Elec. & Gas Co.

• Decision Date: 27 August 1982
• Docket Number: No. 81-2335,81-2335
• Citation: 687 F.2d 732
• Parties: , 12 Envtl. L. Rep. 21,029 The TOWNSHIP OF LOWER ALLOWAYS CREEK, Petitioner, v. PUBLIC SERVICE ELECTRIC & GAS COMPANY, and the United States of America Nuclear Regulatory Commission, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

Page 732

687 F.2d 732

18 ERC 1401, 12 Envtl. L. Rep. 21,029

The TOWNSHIP OF LOWER ALLOWAYS CREEK, Petitioner, v. PUBLIC SERVICE ELECTRIC & GAS COMPANY, and the United States

of America Nuclear Regulatory Commission, Respondents.

No. 81-2335.

United States Court of Appeals, Third Circuit.

Argued June 9, 1982.

Decided Aug. 27, 1982.

Carl J. Valore (argued), Valore, McAllister, Westmoreland & Vesper, Northfield, N. J., for petitioner.

Mark J. Wetterhahn (argued), Robert M. Rader, Conner & Wetterhahn, Washington, D. C., (Richard Fryling, Jr., Newark, N. J., of counsel), for Public Service Electric & Gas Co.

Leonard Bickwit, Jr., Gen. Counsel, James A. Fitzgerald, Asst. Gen. Counsel, Peter R. Steenland, Jr., Chief, Appellate Section, Martha A. Torgow (argued), E. Leo Slaggie, U. S. Nuclear Regulatory Commission, Washington, D. C., Maria Iizuka, Lands & Natural Resources Div., Dept. of Justice, Washington, D. C., for Nuclear Regulatory Commission.

James E. Tierney, Atty. Gen., Rufus E. Brown, Deputy Atty. Gen., Philip Ahrens, Robert S. Frank, Asst. Attys. Gen., Augusta, Me., amicus curiae for the State of Maine.

Before ADAMS and WEIS, Circuit Judges, and CONABOY, District Judge. ^*

OPINION OF THE COURT

ADAMS, Circuit Judge.

We are asked on this appeal to decide whether the National Environmental Policy Act (NEPA) required the Nuclear Regulatory Commission ("NRC" or "Commission") to prepare an Environmental Impact Statement ("EIS") before permitting the licensee of a nuclear generating plant in Salem County, New Jersey, to store additional quantities of spent fuel at the reactor site. The Township of Lower Alloways Creek ("Township"), the municipality near where the plant is located, intervenor in the proceedings below and petitioner here, contends that the Commission acted unlawfully and unreasonably when it determined that the proposed expansion would not "significantly affect( ) the quality of the human environment," and that therefore the preparation of an EIS was unnecessary. After carefully reviewing the record before us, we conclude that, in this instance, the requirements of NEPA have been satisfied. Accordingly, the petition for review will be denied.

I

A

The controlled fission reaction that takes place within a light-water nuclear generator produces not only heat-which is converted to steam and employed to drive the plant's electricity-yielding turbines-but also radioactive fission byproducts, which accumulate over time and eventually impede the progress of the nuclear chain reaction. At the point when the build-up of fission byproducts threatens to undermine significantly the efficiency of the reaction, the fuel is removed from the reactor core and replaced. This discharged fuel is commonly referred to as "spent fuel." ¹

Spent fuel, which contains elements of uranium and plutonium, is highly toxic and must be isolated from the environment for thousands of years. As the Supreme Court has recognized, nuclear wastes " 'pose the most severe potential health hazard,' " Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 539, 98 S.Ct. 1197, 1209, 55 L.Ed.2d 460 (1978) (quoting U.S. Atomic Energy Commission, Radioactive Wastes 12 (1965)). Proper disposal of spent fuel is essential if nuclear power is to be a safe and efficient form of energy production. ²

When removed from the reactor core, spent fuel, in addition to being thermally very hot, is intensely radioactive. As a result, before it can be "handled"-i.e., mechanically removed from the reactor site-the waste material must be cooled and shielded for at least 150 days. To accomplish this, spent fuel is transferred underwater from the reactor core, moved through a canal, and stored in what is known as a "spent fuel pool": an enormous, specially-designed, steel-reinforced concrete water basin. The used fuel cells are placed vertically in storage racks and surrounded by continuously circulating water; gradually, the fuel "cools," that is, it loses the major portion of its radioactivity. See U.S. Nuclear Regulatory Commission, Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel 202 (August 1979) (hereafter cited as GEIS ).

Most nuclear power plants in the country, including the Salem I reactor at issue here, were designed to store, onsite and temporarily, only a modest amount of the waste byproducts they generate. For example, as originally devised, the spent fuel pool associated with Salem I had the capacity to store approximately four years of discharged fuel. It was expected that after this initial storage period, the spent fuel would be transferred to another location either for reprocessing ³ or permanent disposal. In 1977, however, the NRC, in deference to President Carter's non-proliferation policy, indefinitely suspended the licensing of commercial reprocessing plants within the United States. ⁴ No facility has been or is soon to be designated a permanent waste depository, capable of receiving spent fuel from Salem I and other nuclear generators. ⁵ As a result of the unavailability of these two storage options, the operators of nuclear plants throughout the country were confronted with a dilemma: either their electrical generating activities had to be suspended indefinitely, or onsite storage capacity for nuclear wastes had to be increased. Not surprisingly, most licensee-operators preferred the latter alternative. This litigation, then, arises out of an attempt by one particular licensee-the Public Service Electric & Gas Company (PSE&G)-to amend its operating plan to allow for increased storage of spent fuel at one particular nuclear power plant-the Salem I facility. ⁶

B

The Salem Nuclear Generating Station consists of two mirror-image power plants-designated as Salem I and Salem II-located in southern New Jersey on an island in the Delaware River. The two light-water reactors function independently of each other, and this appeal involves only the status of the Salem I facility. ⁷

After the necessary and detailed environmental and safety studies had been performed, the Salem I generator received its operating license in October 1976. As previously mentioned, the spent fuel pool associated with the reactor was originally designed to stock nuclear wastes that accumulated over approximately four years. In November 1977, PSE&G initiated proceedings to expand the onsite storage capacity of Salem I by filing a proposed amendment to its operating plan with the NRC. See 43 Fed.Reg. 5443 (1978). The amendment envisioned the redesign of the spent fuel pool in order to accommodate approximately four times as much (or about fifteen years' accumulation of) spent fuel. After the NRC prepared an Environmental Impact Appraisal report and held the appropriate hearings, discussed infra, the amendment was approved, and the expanded storage plan took effect, and remains in effect at present.

In order to clarify the underlying dispute in this case, it is instructive to examine more closely the precise design of the Salem I spent fuel pool. Nuclear waste is stored in what are referred to as fuel assemblies, each of which is approximately nine inches square and fourteen feet long. According to the original design for the Salem I pool, 264 fuel assemblies were to be stored in stainless steel open-frame racks. Under the new arrangement, however, the number of fuel assemblies was quadrupled, to 1170. Moreover, the amendment to the operating license also called for the replacement of the existing fuel storage devices with newly configured fuel storage racks. Under the previous plan, each of the fuel assemblies was approximately twenty-one inches apart. Under the new, more dense design, the center-to-center spacing between assemblies has been decreased to 10.5 inches.

When spent fuel is removed from the reactor core, it is still capable, if not properly shielded and cooled, of attaining "criticality," that is, of producing a self-sustaining fission reaction, resulting from the interchange of neutrons among the fuel assemblies. Spent fuel pools are designed to guard against this possibility. The spent fuel assemblies are immersed in water that has been treated with boric acid, which absorbs neutrons. Then, the entire procedure is carefully monitored, lest a defect in the valves or pumping system results in a substantial loss of the pool's contents. An additional factor in the previous Salem I pool design which mitigated against a possible self-generating reaction was that the fuel assemblies were separated by a distance sufficient to prevent excess neutron interaction. One consequence of adding 906 new fuel assemblies and placing each fuel assembly twice as close to its neighbors, however, is that criticality can no longer be prevented simply by reason of the distances between the assemblies. Thus, in the revised Salem I pool design, PSE&G has sought to prevent a spontaneous chain reaction by equipping the new, close-configuration storage racks with double-walled stainless steel cells filled with boral, a neutron absorbing substance. It is thought that the new assembly system will avert a self-sustaining reaction by inhibiting the travel of neutrons from one spent fuel assembly to another, inasmuch as any escaping neutron will be absorbed in the first instance by the boral within the cell walls, and in the second instance by the boric acid in the spent fuel pool itself. ⁸

C

Upon receipt of the PSE&G proposed amendment for increased onsite waste storage at Salem I, the NRC invited interested parties to seek leave to intervene and to request a public hearing. 43 Fed.Reg. 5443 (1978). In March 1978, the Township filed a petition to intervene and raised eleven objections to the proposed expansion. The Atomic Safety and Licensing Board ⁹ concluded that ten of the Township's contentions were either too underdeveloped or beyond the scope of its review. ¹⁰ The Licensing...