Westinghouse Elec. Corp. v. U.S. Nuclear Regulatory Com'n

• Decision Date: 19 April 1979
• Docket Number: 78-1993 and 78-1994,78-1189,Nos. 78-1188,78-1895,78-1204,78-1892,78-1894,s. 78-1188
• Citation: 598 F.2d 759
• Parties: , 9 Envtl. L. Rep. 20,338 WESTINGHOUSE ELECTRIC CORPORATION, Petitioner in 78-1188/89, 78-1894/95, Scientists and Engineers for Secure Energy, Mid-Atlantic Legal Foundation, and Capital Legal Foundation, Petitioners in 78-1204 and 78-1892, Allied-General Nuclear Services, Allied Chemical Nuclear Products, Inc. and General Atomic Company, Petitioners in 78-1993/94, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Respondent, Natural Resources Defense Council, State of Texas, State of New York, State of Wisconsin, Intervenors.
• Court: U.S. Court of Appeals — Third Circuit

Page 759

598 F.2d 759

13 ERC 1168, 9 Envtl. L. Rep. 20,338

WESTINGHOUSE ELECTRIC CORPORATION, Petitioner in 78-1188/89 78-1894/95 Scientists and Engineers for Secure Energy, Mid-Atlantic Legal Foundation, and Capital Legal Foundation, Petitioners in 78-1204 and 78-1892, Allied-General Nuclear Services, Allied Chemical Nuclear Products, Inc. and General Atomic Company Petitioners in 78-1993/94, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Respondent Natural Resources Defense Council, State of Texas, State of New York, State of Wisconsin, Intervenors.

Nos. 78-1188, 78-1189, 78-1204, 78-1892, 78-1894, 78-1895,

78-1993 and 78-1994.

United States Court of Appeals, Third Circuit.

Argued Feb. 13, 1979.

Decided April 19, 1979.

Barton Z. Cowan (argued), Samantha Francis Flynn, Karl K. Kindig, Andrew M. Roman, Stuart A. Williams, Eckert, Seamans, Cherin & Mellott, Pittsburgh, Pa., for petitioners in Nos. 78-1188, 78-1189, 78-1894 and 78-1895; John R. Erbey, Westinghouse Elec. Corp., Pittsburgh, Pa., of counsel.

Anthony C. Liotta, Acting Asst. Atty. Gen., James L. Kelley, Acting Gen. Counsel, Stephen F. Eilperin, Sol., Dirk D. Snel, John J. Zimmerman, Land & Natural Resources Div., Dept. of Justice, Richard S. Mallory (argued), Irwin B. Rothschild, III, Mark E. Chopko, Nuclear Regulatory Commission, Washington, D. C., for respondent.

Anthony Z. Roisman, Washington, D. C., argued, for intervenor, Natural Resources Defense Council, Inc.

Myrna P. Field, Mid-Atlantic Legal Foundation, Philadelphia, Pa., L. Manning Muntzing (argued), Perry B. Seiffert, Doub, Purcell, Muntzing & Hansen, Washington, D. C., for petitioners in Nos. 78-1204 and 78-1892; James R. Richards, Capital Legal Foundation, Washington, D. C., of counsel.

Bennett Boskey, Thomas S. Moore, Volpe, Boskey & Lyons, Washington, D. C., for petitioners in Nos. 78-1993 and 78-1994.

George C. Freeman, Jr., Donald P. Irwin, Hunton & Williams, Richmond, Va., for amici curiae, Baltimore Gas & Electric Co., et al.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen. of the State of New York, John G. Proudfit, Asst. Atty. Gen. of the State of New York, New York City, John L. Hill, Atty. Gen. of the State of Texas, Austin, Tex., Bronson C. La Follette, Atty. Gen. of the State of Wisconsin, Madison, Wis., for intervenor States of New York, Texas and Wisconsin; John F. Shea, Before ALDISERT, ADAMS and HIGGINBOTHAM, Circuit Judges.

III, Asst. Atty. Gen. of the State of New York, and Charles E. Tennant, Legal Assistant, New York City, Richard Lowerre, Asst. Atty. Gen. of the State of Texas, of counsel.

OPINION OF THE COURT

ADAMS, Circuit Judge.

On December 23, 1977, the United States Nuclear Regulatory Commission (NRC) suspended for approximately two years its decisionmaking process regarding proposals for the recycling of spent nuclear fuel and the use in nuclear reactors of plutonium recovered from that fuel. This suspension was announced in an order terminating informal rulemaking and related licensing proceedings concerning this subject. In part, the decision to place a moratorium upon these deliberations was taken in deference to President Carter's stated objective of deferring domestic plutonium recycling while the United States initiated a multinational evaluation of alternative fuel cycles that would pose a lesser risk of international proliferation of nuclear weapons. Petitions for review were filed requesting us to set aside and enjoin the NRC's order on the grounds that, in terminating these proceedings, the NRC violated the Atomic Energy Act (AEA) ¹ and the National Environmental Policy Act (NEPA). ² Because we conclude that the NRC acted within the scope of its authority and that there is no requirement to have a NEPA statement at this time, the petitions for review will be denied.

I.

For over two decades, the federal government, initially through the Atomic Energy Commission (AEC) and later through the NRC, a successor agency to the AEC, ³ has been exploring, together with the private sector, the feasibility of reprocessing spent nuclear fuel and employing the plutonium recovered from such fuel in nuclear reactors utilized to generate electricity. ⁴ Commercial implementation of the plutonium recycling process would have the advantages of conserving uranium resources and of alleviating the problem of disposing of radioactive wastes, but might also pose the dangers of a proliferation of nuclear weapons and the possible sabotage of reprocessing facilities. This is so because, unlike the slightly "enriched" uranium currently used in nuclear reactors, plutonium can be employed in the production of nuclear explosives and might be diverted to that end by foreign governments or by terrorists. ⁵

Recognizing that a decision to implement a wide-scale program for the commercial recycling of plutonium constitutes a major federal action significantly affecting the environment, and thereby necessitating an environmental impact statement (EIS) in order to comply with § 102(2)(C) of NEPA, ⁶ the AEC in 1974 commenced work on a Generic Environmental Statement on the Use of Recycle Plutonium in Mixed Oxide Fuel in Light Water Cooled Reactors (GESMO). ⁷ Concomitant with the GESMO informal rulemaking proceeding, the Commission (this term will be used to include both the AEC and the NRC) conducted adjudicatory licensing proceedings on applications by private companies dealing with the construction and operation of nuclear fuel reprocessing plants, some of which were already pending when GESMO was undertaken. Among the applications before the Commission were those of Allied-General Nuclear Services (Allied-General) for a license to operate the nearly-completed fuel reprocessing plant that it had permission to construct at Barnwell, South Carolina, and of Westinghouse Electric Corp. (Westinghouse) for a license to construct a similar plant at Anderson, South Carolina.

One of the concerns expressed while the rulemaking and adjudicatory proceedings were progressing was that dangers to world security might ensue from the commercial reprocessing of nuclear fuel. For example, the AEC staff's first draft of GESMO, which was published on August 21, 1974, ⁸ prompted a number of critical comments by the public. These included a letter from the President's Council on Environmental Quality that was directed at GESMO's failure (a) to address the proliferation dangers, (b) to explore what safeguards were available, and (c) to weigh the possibility of developing alternative sources of energy. ⁹ In response to this criticism, the staff undertook to reassess its study and to supplement the draft GESMO with an analysis of proliferation risks and safeguards. ¹⁰ And, on October 28, 1976, President Ford discussed the risks entailed in plutonium recycling in a statement on nuclear policy. He declared that the nation "should pursue reprocessing and recycling in the future only if they are found to be consistent with our international (non-proliferation) objectives." ¹¹

President Carter disclosed his administration's policy concerning plutonium recycling on April 7, 1977. Noting with alarm the serious proliferation risks of plutonium recycling, the President stated that part of the government's response would be to "defer indefinitely the commercial reprocessing and recycling of plutonium produced in the U.S. nuclear power programs," and to sponsor an international nuclear fuel cycle evaluation (INFCE) program aimed at developing alternative processes with lower proliferation risks. ¹²

Almost immediately thereafter, a motion was filed to terminate the GESMO proceeding, and the NRC's GESMO Hearing Board postponed further hearings. ¹³ On May 3, 1977, the NRC announced its intention to reassess "the future course and scope of GESMO, the review of recycle-related applications, and the matter of interim licensing," and invited GESMO participants, the Executive Branch, and other interested persons to submit their views on the subject. ¹⁴ President Carter's position was explained on October 4, 1977, in a letter by Stuart Eizenstat, Assistant to the President for Domestic Affairs and Policy. ¹⁵ The NRC then solicited further public comment on the President's position and on several alternative courses of action. ¹⁶

Thereafter, on December 23, 1977, the NRC issued an order terminating the GESMO proceeding as well as most proceedings relating to pending or future plutonium-recycle license applications. Among other things, the order also committed the NRC "to re-examine the above matter after the completion of the ongoing alternative fuel cycle studies, now expected to take about two years," and to publish shortly after the decision a statement of the reasons underlying the decision. ¹⁷ That statement, in the form of a Memorandum of Decision, was issued on May 8, 1978. ¹⁸

Petitioners sought judicial review within the prescribed period of sixty days ¹⁹ following entry of the December 23 Order. Westinghouse filed petitions in this Court, which were assigned docket numbers 78-1188 and 78-1189, challenging the termination of both GESMO and the licensing proceedings with respect to its Anderson, South Carolina facility. Four days later, Allied-General (together with Allied Chemical Nuclear Products, Inc., and General Atomic Company) filed a similar petition in the United States Court of Appeals for the district of Columbia objecting to the cessation of GESMO and licensing proceedings concerning its Barnwell plant. On the same day, Scientists and Engineers for Secure Energy, Mid-Atlantic Legal Foundation, and Capital Legal Foundation (Scientists), filed a petition in this Court, which was assigned docket number 78-1204, seeking review only of the NRC's termination of GESMO.

Concerned that the December 23 Order might not be deemed final, the parties also took several protective actions after the May 8, 1978, Memorandum of Decision was issued....