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Westinghouse Elec. Corp. v. NRC

ELR Citation: 9 ELR 20338
Nos. Nos. 78-1188/89 et al., 598 F.2d 759/13 ERC 1168/(3d Cir., 04/19/1979)

The Third Circuit denies petitions for review of the Nuclear Regulatory Commission's (NRC's) suspension, for a period of two years, of rulemaking proceedings concerning the reprocessing of spent nuclear fuel. The court first disposes of the intervenors' claim that the District of Columbia Circuit is the proper forum in which to decide the case. Where petitions for review of a particular agency action are filed in separate circuits, courts may, based on their experience and the interests of justice, deviate from the usual rule that the case will be heard in the forum in which the first petition was filed. Because in this case the D.C. Circuit properly deferred to the Third Circuit, the court elects to retain jurisdiction. With respect to the merits, the validity of NRC's decision to suspend its program for reprocessing spent fuel depends on the extent of its discretion to make such judgments under the Atomic Energy Act (AEA) and whether it exceeded that discretion in this case. On the first question, the court rules that the Commission possesses broad authority under §103 and other provisions of the AEA to pursue its statutory mandate where consistent with the congressional policies of promoting the common defense and security and the public health and safety. Since the decision to suspend the spent fuel reprocessing program was based in large part on the risk that promoting this technology might lead to worldwide proliferation of nuclear weapons, this decision was well within the agency's statutory mandate. The court is not persuaded that, because NRC's judgment was influenced by presidential requests to halt the program, NRC violated its responsibility to act independently. The court also dismisses petitioners' argument that the decision to halt the program required preparation of an environmental impact statement (EIS) under the National Environmental Policy Act. The fact that the principal purpose of the rulemaking proceeding in question was to generate an EIS shows that the reprocessing program was in an embryonic stage and not sufficiently ripe to trigger the Act's EIS requirement.

Counsel for Petitioners
Barton Z. Cowan, Samantha Francis Flynn, Karl K. Kindig, Andrew M. Roman, Stuart A. William
Eckert, Seams, Cherin & Mellott
42d Floor, 600 Grant St., Pittsburgh PA 15219
(412) 566-6000

I. Manning Muntzing, Perry B. Seiffert
Doub, Purcell, Muntzing & Hansen
1775 Pennsylvania Ave. NW, Washington, DC 20006
(202) 467-6460

Counsel for Respondent
James L. Kelley, Acting General Counsel; Stephen F. Eilperin, Solicitor; Richard S. Mallory, Irwin B. Rothschild III, Mark E. Chopko
Office of the General Counsel
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3288

Anthony C. Liotta, John J. Zimmerman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2736

Counsel for Intervenor Natural Resources Defense Council, Inc.
Anthony Z. Roisman
Natural Resources Defense Council, Inc.
1015 15th St. NW, Washington DC 20005
(202) 737-5000

Counsel for Amici Curiae Baltimore Gas & Electric Co., et al.
George C. Freeman Jr., Donald P. Irwin
Hunton & Williams
707 E. Main St., Richmond VA 23212
(804) 788-8200

Aldisert and Higginbotham, JJ., concur.