Potomac Alliance v. U.S. Nuclear Regulatory Com'n, 80-1862

Decision Date20 July 1982
Docket NumberNo. 80-1862,80-1862
Citation682 F.2d 1030
Parties, 221 U.S.App.D.C. 81, 12 Envtl. L. Rep. 20,937 POTOMAC ALLIANCE, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Virginia Electric and Power Company, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

James B. Dougherty, Washington, D. C., for petitioner.

Marion E. Moe, Atty., Nuclear Regulatory Com'n, Washington, D. C., with whom Anne S. Almy, Thomas H. Pacheco, Attorneys, U. S. Dept. of Justice, and Stephen F. Eilperin, Sol., U. S. Nuclear Regulatory Com'n, Washington, D. C., were on the brief, for respondents.

James W. Moorman, Atty., U. S. Dept. of Justice, Washington, D. C., also entered an appearance for respondents.

James N. Christman, Richmond, Va., with whom Michael W. Maupin and James M. Rinaca, Richmond, Va., were on the brief, for intervenor.

Before BAZELON and McGOWAN, Senior Circuit Judges, and WILKEY, Circuit Judge.

Opinion PER CURIAM.

Separate Concurring Opinion filed by Senior Circuit Judge BAZELON.

PER CURIAM:

Petitioner Potomac Alliance seeks review of a decision of the Nuclear Regulatory We note that this same issue has, heretofore in the recent past, been raised in, and addressed by, this court. In Minnesota v. NRC, 602 F.2d 412 (D.C.Cir.1979), this court, on virtually an identical set of facts, found itself unable to sustain, as against a claim of NEPA violation, 2 an NRC order amending an operating license to expand spent fuel storage capacity, absent a meaningful exploration by the agency of the dangers presented by the continuing existence of the storage pool after the final closing date of the plant, and a finding based thereon that either (1) a satisfactory solution is presently available or (2) there is a reasonable probability of such availability by the shut-down date. This is precisely what the NRC failed to do in the case before us. Mindful of our rules with respect to the maintenance of uniformity in dispositions of like cases by different divisions of this court, we conform the result we reach in this case to that one.

Commission (NRC) amending an operating license to authorize Virginia Electric Power Company (VEPCO) to increase the storage capacity of the spent fuel pool at its North Anna Nuclear Power Station. Petitioner claims that the NRC violated the requirements of the National Environmental Policy Act (NEPA) 1 in failing to consider, prior to granting the requested amendment, the long-range future effects of permitting the increased storage capacity, including the situation as it will exist on the date of the plant's permanent closing in 2011.

In Minnesota, the court, despite the apparent NEPA violation, declined to vacate or stay the license amendment in question, indicating instead that the Commission was free to proceed with consideration of the effects of modifying the spent fuel storage capacity by such means as it might deem effective to that end. The court was careful to say that it did not contemplate that a trial-type adjudicatory proceeding was required, and it suggested the appropriateness of the generic rulemaking which the NRC had professed to have in view. Adopting the court's suggestion, on August 2, 1979, the NRC noticed a generic proceeding to reassess the outlook for the availability of safe nuclear waste disposal methods, focusing on the specific question raised by the Minnesota court. This rulemaking, termed by the Commission the "Waste Confidence" proceeding, is currently continuing. Therefore, as in Minnesota, we decline to vacate or stay the challenged license amendments.

The Commission has recently informed the court, in response to a specific inquiry by it after this case was taken under submission, that

(t)he earliest that the proceeding might conclude and a decision issue would be about six months after the January 1982 oral presentations, but it is possible that a year or more might pass before a final Commission decision could be reached.

NRC Response to Request Concerning Status of Waste-Confidence Proceeding, at pp.

2-3. Implicit, however, in the disposition by the panel in Minnesota was the assumption that the NRC would proceed as expeditiously as possible.

Under these circumstances, and taking into account the lengthy period of time that has elapsed since Minnesota, as well as the scientific and technical difficulties that appear to characterize this problem, we think an appropriate response to the NRC's latest progress report is for us to assert that its failure to act by June 30, 1983, will place in jeopardy the expanded authority at issue in this case.

The case is remanded to the NRC for further proceedings and consideration consistent with the purposes of this remand.

It is so ordered.

BAZELON, Senior Circuit Judge, concurring:

I concur fully in the court's opinion in this case. I write separately, however, to illuminate the substantive issues underlying our per curiam disposition.

BACKGROUND

In 1971, when the Nuclear Regulatory Commission (NRC) authorized the construction of VEPCO's North Anna power plant, the Commission also authorized the construction of an on-site pool for used or "spent" fuel assemblies. 1 At the time, both the NRC and the Virginia Electric and Power Company (VEPCO) expected the pool to be used to cool spent fuel assemblies for periods of five months, after which time the assemblies would be shipped to an off-site reprocessing or storage facility. 2 As originally constructed, the North Anna spent-fuel pool could hold 400 spent fuel assemblies, more than would have had to be stored in the pool at any one time if the anticipated off-site facilities had been developed. 3 Such facilities, however, have not been developed and the North Anna spent-fuel pool has become a de facto mid-term nuclear waste repository, and may yet become a long-term repository. 4 As a result, the storage capacity of the spent-fuel pool has come to impose an impending constraint on the continued operation of the plant. Once the pool is full, and the last fuel assembly in the reactor is spent, the reactor cannot be refueled and the plant will have to shut down.

From virtually the beginning of the North Anna plant's operating life, 5 VEPCO recognized the critical function that the spent-fuel pool would serve, and on May 1, 1978, it applied for an amendment to its operating license that would allow an expansion of the pool's capacity to 966 spent fuel assemblies. 6 VEPCO proposed to increase the pool's capacity by replacing the original storage racks with new, more closely spaced racks. 7 The pool itself was to remain the same size. Without this modification, VEPCO predicts that the North Anna plant would be able to continue full operation only until the end of 1984. 8

In reviewing VEPCO's application, the Atomic Safety and Licensing Board analyzed the need for increased storage capacity at North Anna, alternatives to the proposed expansion, and the environmental effects of the expansion through the year 2011. 9 The Board limited its environmental analysis to pre-2011 environmental effects because the plant's operating license expires in 2011. On the basis of its analysis, the Board concluded that "the proposed license amendment will not significantly affect the quality of the human environment and that there will be no significant environmental impact attributable to the proposed action other than that which has already been predicted and described in the Final Environmental Statement dated November 1973." 10 The Licensing Board also concluded that the alternatives to expanding the pool's capacity were either infeasible or environmentally less desirable.

On January 29, 1979, the Potomac Alliance was granted leave to intervene in North Anna's licensing proceeding, 11 and on June 15 of that year, the Alliance moved to introduce the issue of post-2011 environmental effects into the Licensing Board's determination of environmental significance. The Alliance argued that NEPA requires the Licensing Board to consider the environmental consequences of the proposed amendment over the entire time period during which the pool might be used for spent-fuel storage-even if that period extended beyond the operating life of the plant. Specifically, the Alliance contended that, under NEPA, the Board was obliged to undertake a two-step inquiry before approving the amendment: First, the Board needed to assess the possibility that the additional spent fuel contemplated by VEPCO's proposal would remain in the on-site pool beyond the year 2011. If, at the time the proposal was evaluated, that contingency appeared "reasonably foreseeable," the Board was then required to consider its likelihood and environmental impact. In August 1979, however, the Board declined to consider the possibility of such a long- term impact and approved VEPCO's license amendment. 12 The Potomac Alliance thereafter appealed the Licensing Board's decision to the Commission's Appeal Board but did not seek a stay pending the outcome of its appeal. VEPCO, therefore, proceeded with the expansion of the pool, completing the job on September 11, 1979, and placing the first load of spent fuel assemblies in the storage pool on October 17, 1979. Ultimately, the Appeal Board affirmed the Licensing Board's decision and the Commission itself denied review. 13 The Potomac Alliance now seeks review of the NRC's action in this court.

II. ANALYSIS

The NRC does not claim that its environmental assessment satisfied NEPA. Instead, the Commission argues that this court's decision in Minnesota v. NRC 14 authorized it to approve VEPCO's license amendment without considering the post-2011 environmental effects of doing so. This court has concluded that the NRC violated the National Environmental Policy Act (NEPA) by failing to consider the...

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