Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Com'n
| Decision Date | 12 August 1976 |
| Docket Number | D,1051,Nos. 963,s. 963 |
| Citation | 539 F.2d 824 |
| Parties | , 9 ERC 1414, 6 Envtl. L. Rep. 20,513 NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. The UNITED STATES NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, Allied General Nuclear Services, et al., Intervenors. ockets 75-4276, 75-4278. |
| Court | U.S. Court of Appeals — Second Circuit |
Anthony Z. Roisman, Washington, D.C. (Roisman, Kessler & Cashdan, Washington, D.C., of counsel), and J. Gustave Speth, Washington, D.C., for petitioners Natural Resources Defense Council, Inc., and others.
Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City , for petitioner the State of New York.
Peter L. Strauss, Gen. Counsel, Nuclear Regulatory Commission, Washington, D.C. (Stephen F. Eilperin, Asst. Gen. Counsel, Steven P. Goldberg, Atty., Nuclear Regulatory Commission, and Peter R. Taft, Asst. Atty. Gen., and Edmund B. Clark, Atty., U. S. Dept. of Justice, Washington, D.C.), for respondents.
Bennett Boskey, Volpe, Boskey & Lyons, Washington, D.C., for intervenors Allied-General Nuclear Services, and others.
George C. Freeman, Jr., Donald P. Irwin, and James N. Christman, Richmond, Va. (Hunton, Williams, Gay & Gibson, Richmond, Va., and Alvin G. Kalmanson, New York City, of counsel), Henry V. Nickel, Michael B. Barr, Washington, D.C. (LeBoeuf, Lamb, Leiby & MacRae, and Arvin E. Upton, Washington, D.C., of counsel), for intervenors Baltimore Gas & Electric Co., and others, Commonwealth Edison Co., and others, and The Babcock and Wilcox Co.
Robert Lowenstein, Washington, D.C. (Lowenstein, Newman, Reis & Axelrad, Maurice Axelrad, Michael A. Bauser and Linda L. Hodge, Washington, D.C., of counsel), for intervenor Nuclear Fuel Services, Inc.
Milton Waxenfeld, New York City (Weisman, Celler, Spett, Modlin, Wertheimer & Schlesinger, New York City, and Elliot S. Katz, Pittsburgh, Pa., of counsel), for intervenor Westinghouse Electric Corp.
Before CLARK, Associate Justice, and PIERCE and OWEN, District Judges. *
Petitioners Natural Resources Defense Council, Inc., five other environmental groups, and the State of New York seek review of an order of the respondent, the United States Nuclear Regulatory Commission, dated November 11, 1975 and published at 40 Fed.Reg. 53056 on November 14, 1975. The order below sets forth procedures and schedules which the Commission will follow for the completion of its generic environmental impact statement on uranium and plutonium mixed oxide fuel ("GESMO") and for the conduct of associated hearings. The order also sets forth criteria under which the Commission will proceed to grant interim licenses for commercial utilization of mixed oxide fuel related activities during the period prior to the completion of the GESMO study and the Commission's final decision on wide-scale use of mixed oxide fuel in light water nuclear power reactors. 1 The November 11, 1975 order is the result of comments solicited by the Commission in response to a prior Notice on the subject of mixed oxide fuel, published at 40 Fed.Reg. 20142 (May 8, 1975). Petitioners seek review in this Court pursuant to 28 U.S.C. § 2342(4) and 42 U.S.C. § 2239. 2
Petitioners ask this Court to set aside the Commission's November 11, 1975 order on the ground that the decision to allow interim licensing of the use of plutonium in light water reactors and interim licensing of related nuclear fuel recycle activities prior to the completion of the GESMO study, and prior to a final decision thereon, is in violation of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq., 3 the Atomic Energy Act, 42 U.S.C. §§ 2201 et seq. and the Energy Reorganization Act of 1974, 42 U.S.C. §§ 5841 et seq. Petitioners also claim that the order violates NEPA by bifurcating the on-going environmental review, by providing that the final impact statement will be issued in two parts at different times, and by setting forth procedures whereby the environmental issues will be addressed in hearings which are to be primarily legislative rather than adjudicatory in character. The Commission urges that the order under review is not a "final order" within the meaning of 28 U.S.C. § 2342 and 42 U.S.C. § 2239, that the decision to allow interim licensing does not violate NEPA or the energy acts, and that its pronouncements concerning procedures and schedules are matters within its discretion. The intervenors, representatives of the nuclear power industry, similarly argue that the order is not "final" and that it does not violate NEPA.
We agree with petitioners that the order below is final and reviewable in this Court. We agree with the Commission that the procedures and schedules set forth in the order are matters within its discretion. However, we find that the portion of the order which allows the Commission to proceed to grant interim commercial licenses for the use of mixed oxide fuel and related activities prior to the completion of the GESMO study and the final decision on wide-scale use would allow the commencement of major federal action without the benefit of an adequate environmental impact statement. Accordingly, we conclude that the decision to proceed to interim licensing is in violation of the NEPA, and that portion of the order is reversed and remanded.
The vast majority of nuclear power plants presently in operation in this Nation are fueled by fissionable uranium. These reactors start with uranium-235, and through the fission process, release large amounts of energy which is used to generate electrical power. The uranium fission process produces large quantities of radioactive waste material, or "spent fuel". Because of the growing quantity of nuclear wastes and because of the fact that natural resources of uranium are limited, the federal government, in conjunction with private industry, has since 1957 investigated the potential of recycling spent fuel in order to produce a new source of nuclear energy. The Commission estimates that the cost of this research to the government alone has been in excess of 100 million dollars.
As a light water nuclear reactor operates, heat is generated from the fissioning of uranium-235 atoms in the fuel. The fission process also creates atoms of plutonium from uranium-238 atoms. For each gram of U-235 fuel consumed in the reactor, as much as 0.9 grams of fissile plutonium is formed within the fuel. Generally, more than half of the plutonium so produced is consumed in the reactor process without any external recycle, before the discharge of the spent fuel. Accordingly, all present light water nuclear reactors to some extent generate and use plutonium as fuel.
The spent fuel which remains after the completion of the fission process contains elements of uranium and plutonium which, if properly separated from the waste, reprocessed, and fabricated into new nuclear fuel, would constitute a significant new source of energy. Cognizant of the nation's pressing need for new sources of energy, as well as of NEPA's mandate that natural resources be recycled so as to preserve depletable sources of energy, see 42 U.S.C. § 4331(b)(6), the Commission has undertaken a broad-scale inquiry into the commercial feasibility of plutonium recycle. According to the Commission, the nuclear power industry plans to carry out the spent fuel recycle process in a series of nine steps. 4
The first step in the recycle is to store the spent fuel to allow for some decay of radioactivity. Certain existing nuclear plants have facilities for such storage, but the Commission reports that developing forms suitable for long-term storage of fuel wastes are presently only experimental.
Once some radioactive decay has been accomplished, the plutonium and uranium elements of the spent fuel are separated out as nitrate solutions. This step of the recycle chain must be carried out through the use of remote operating technology behind massive protective shielding. However, once the separation has been accomplished, the purified materials no longer contain the highly penetrating radiation which is present in fission products. Following separation, the uranium nitrate is converted into uranium hexafloride which is in turn enriched to increase the concentration of uranium-235. The enriched uranium hexa- floride is then converted to uranium dioxide. Similarly, the plutonium nitrate is converted to plutonium oxide. The resulting materials are fabricated into fuel rods containing mixed plutonium and uranium oxides; hence the term "mixed oxide fuel".
The mixed oxide fuel rods then are fabricated into fuel elements for insertion into light water nuclear reactors converted from use of uranium to use of mixed oxide fuel. The fission wastes remaining after the separation and reprocessing must be converted to a form suitable for long-term storage. The various steps of the recycle must be achieved through transportation of the nuclear materials from light water reactors to separation and conversion facilities, to fabrication plants and back to the converted light water reactors. 5
Three light water nuclear power reactors are presently licensed to operate with limited amounts of mixed oxide fuel. The amount of mixed oxide fuel employed ranges from less than 0.1 percent of the total fuel core in the commercial scale reactor at Quad-Cities 1, Illinois, to approximately eleven percent in the very small reactor at Big Rock Point in Michigan. Between 1966 and 1971, the Nuclear Fuel Services plant at West Valley, New York, performed separation and reprocessing of spent fuel, processing approximately 640 metric tons of spent fuel. However, that plant is presently shut...
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