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Natural Resources Defense Council v. NRC

Citation: 8 ELR 20646
No. No. 77-4157, 582 F.2d 166/11 ERC 1945/(2d Cir., 07/05/1978)

The Second Circuit denies petitioner's request for review of the Nuclear Regulatory Commission's denial of its petition for a rule making to determine whether the highly radioactive wastes generated by nuclear power reactors can be safely disposed of on a permanent basis. The petition filed with the Commission also sought postponement of further processing and consideration of applications for construction and operating licenses for new reactors until a demonstrably safe means of long-term nuclear waste storage has been developed. Petitioner argued that these two actions by the Commission are required to fulfill its mandate under the Atomic Energy Act (AEA) to determine that there will be adequate protection of the health and safety of the public. The court prefaces its analysis with an acknowledgement that since no safe means of long-term nuclear waste storage currently exists the granting of the petition would mean a halt to the licensing of nuclear reactors. The court then finds that the Commission's mandate under the AEA does not require it to grant the requests. The legislative history of the Act shows that Congress was aware that there might be some problems with waste storage, but it did not intend to condition the growth of the industry on their resolution. Continuing congressional oversight of the Commission's progress in solving this problem reveals that its lack of success has not been viewed by successive Congresses as violative of its duty to protect the public health and safety. Thus, the Commission's decision in this case not to bring an immediate end to the reactor licensing process, and hence to deny petitioner's request, can not be deemed arbitrary and capricious.

Counsel for Petitioner
Ross Sandler
Natural Resources Defense Council
15 W. 44th St., New York NY 10036
(212) 869-0150

John Roger Beers, Helene M. Linker
Natural Resources Defense Council
2345 Yale St., Palo Alto CA 94306
(415) 327-1080

Counsel for Respondents
Peter R. Steenland, Chief, Appellate Section
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2813

Jerome Nelson, General Counsel; Stephen F. Eilperin, Solicitor; John W. Griggs
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-1465

Counsel for Intervenor Power Authority of the State of New York
Harry H. Voight, James P. McGranery, Jr., Patrick K. O'Hare
LeBoeuf, Lamb, Leiby & MacRae
1757 N St. NW, Washington DC 20036
(202) 457-7500

Counsel for Intervenor American Electric Power Co.
William Bradford Reynolds, Robert E. Zahler
Shaw, Pittman, Potts & Trowbridge
1800 M St. NW, Washington DC 20036
(202) 331-4100

Counsel for Intervenor Boston Edison Co.
George C. Freeman, Jr., Donald P. Irwin
Hunton & Williams
707 E. Main St., Richmond VA 23212
(804) 788-8200

Counsel for Amicus Curiae Mid-Atlantic Legal Foundation
Leonard J. Theberge
National Legal Center for the Public Interest
1101 17th St. NW, Washington DC 20036
(202) 296-1683

Counsel for Amicus Curiae State of California
Evelle J. Younger, Attorney General; R.H. Connett, Ass't Attorney General; Craig C. Thompson, Deputy Attorney General
State Capitol, Sacramento CA 95814
(916)445-4334

For himself, Mulligan and Gewin,* JJ.