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New York v. NRC

Citation: 40 ELR 20006
No. No. 08-3903, (2d Cir., 12/21/2009)

The Second Circuit denied a petition for review challenging the NRC's decision not to reverse its 1996 EIS finding that spent fuel pools at nuclear power plants do not create a significant environmental impact within the meaning of NEPA. Because the NRC has given due consideration to the relevant studies concerning the rulemaking petitions, the court must defer to the NRC's expertise in determining the proper risk level associated with the storage of nuclear material in spent fuel pools. The relevant studies cited by the NRC constitute a sufficient "substantial basis in fact" for its conclusion that the overall risk is low. The petitioners simply disagree with the NRC's interpretation of those studies. And while the NRC relies in part upon mitigation at nuclear power plants to conclude that the risk of an accidental or terrorist-caused fire in the pools is uniformly low, an agency may take into account attempts to mitigate an environmental impact when determining that an environmental impact is small enough to not require an EIS so long as the effectiveness of the mitigation is demonstrated by substantial evidence. Here, the NRC relies on numerous studies detailing the effectiveness of its required mitigation measures. The petition was therefore denied.