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Seacoast Anti-Pollution League v. NRC

Citation: 9 ELR 20384
No. No. 78-1172, 598 F.2d 1221/13 ERC 1243/(1st Cir., 05/30/1979)

The First Circuit Court of Appeals upholds the decision of the Nuclear Regulatory Commission (NRC) to terminate its inquiry into three alternative locations for the partially constructed Seabrook Nuclear Power Station. These alternative sites had been proposed by petitioners in the administrative proceeding concerning the issuance of a construction permit for the plant and had been investigated pursuant to an order of the Commission. On review of a decision by the Atomic Safety and Licensing Appeal Board ruling the review of the sites inadequate under the National Environmental Policy Act (NEPA), the Commission determined that further exploration of such sites was unnecessary. In ascertaining whether the NRC's failure to complete its review of the alternative sites violates its duty under NEPA, the court first looks at whether this inquiry was required in the first instance and finds that it was not. The alternative sites inquiry was initiated because it was convenient under the then-existing circumstances and because it may have been required under the case law, which has changed significantly in the interim. Further, because petitioners did not support their proposal of the alternative sites with meaningful evidentiary contributions to the subsequent administrative review process, they cannot now challenge the agency's failure to carry that proces forward. As to the ultimate question of whether the alternative sites were unreasonable and thus outside the reach of NEPA's mandate, the court upholds the termination of the site review process on the rationales that (1) because 18 other alternative sites had been adequately investigated and found not obviously superior to the one chosen, it was unlikely that the others in question would be, and (2) there was no convincing evidence that the alternative sites were in fact superior.

Counsel for Petitioners
Robert A. Backus
O'Neill, Backus, and Spielman
116 Lowell St., Manchester NH 13101
(603) 668-7272

Counsel for Respondents
Stephen S. Ostrach; Stephen F. Eilperin, Solicitor; James L. Kelley, Acting General Counsel
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3288

Peter R. Steenland, Jr., Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748

Counsel for Intervenor Public Service Co. of New Hampshire
Thomas G. Dignan, Jr., John A. Ritsher
Ropes & Gray
225 Franklin St., Boston MA 02110
(617) 423-6100

Counsel for Amicus Curiae New Hampshire Voice of Energy
Harrison A. Fitch
New England Legal Foundation
110 Tremont St., Boston MA 02108
(617) 482-1410

Before Coffin, Campbell, and Bownes, JJ.