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Natural Resources Defense Council v. NRC

Citation: 12 ELR 20465
No. No. 74-1586, 685 F.2d 459/17 ERC 1457/(D.C. Cir., 04/28/1982) On remand

For the second time, the court invalidates the Nuclear Regulatory Commission's (NRC's) "S-3 Table," a generic rule dictating how nuclear reactor licensing decisions take into account the environmental impacts associated with all stages of the nuclear fuel cycle, including the long-term handling and storage of nuclear waste. The court's prior invalidation of the S-3 Table on procedural grounds, 6 ELR 20615, was reversed by the Supreme Court, 8 ELR 20288, with instructions to reevaluate it on the basis of its evidentiary support in the record. On remand, the court finds that the Table violates the Commission's responsibilities under the National Environmental Policy Act (NEPA) to the extent that it (1) describes the impacts of fuel cycle activities in terms of the quantities of pollution released rather than their actual environmental or human effects and (2) assigns a value of zero to the expected radiological releases from underground repositories for transuranic and high-level waste. NEPA requires disclosure of all significant environmental risks posed by federal actions. The S-3 Table's zero-release figure for long-term repositories represents a finding that this means of nuclear waste disposal entails no substantial environmental risks. The court concludes that this finding is arbitrary and capricious as it is not supported by the record, which indicates the view of many experts that long-term waste disposal is surrounded by substantial scientific uncertainty. The zero-release figure thus violates NEPA's mandate to disclose uncertainty and significant risks. If, however, the zero-release assumption was not a finding of fact but rather a device for allocating decisionmaking authority between the Commission and licensing boards, it violates NEPA and is arbitrary and capricious in a different way. Decisionmaking under NEPA can be accomplished generically, provided that individual licensing decision take into account the full range of the environmental costs of the action. The S-3 Table, however, acts to prevent licensing boards from weighing the environmental risks attendant to long-term waste storage, and it therefore violates NEPA. With respect to petitioners' additional argument that the Table disregards other uncertainties surrounding waste management issues, the court finds the Table adequate. The Commission's use of conservative, "worst-case" figures to describe the environmental impacts of other aspects of the fuel cycle is a proper means under NEPA of considering effects whose magnitude is uncertain. The court also finds that the S-3 Table, in the form in which it was first promulgated and after it was amended once, violated NEPA by providing only quantitative estimates of effluents without translating those discharges into estimates of tangible environmental impacts such as numbers of cancer deaths or genetic defects. Similarly, the failure to address the socioeconomic and cumulative effects of siting, constructing, and operating waste storage facilities is a fatal defect under NEPA. The court rules that, while licenses granted under the original and interim rules may be in jeopardy, by amending the Table in 1978 to permit licensing boards to consider such impacts, the Commission cured these defects. Finally, the court finds a reasonable basis in the record for the Commission's determination that the nuclear waste disposal technology on which the Commission relied to support its zero-release estimate will not be so expensive that it is economically infeasible.

In a separate opinion one judge concurs with the opinion for the court except for its conclusion with respect to the economic feasibility of the Commission's designated means of nuclear waste disposal. On this issue he would remand for more analysis of who will be responsible for the costs of waste disposal. He also adds that the reprocessing, handling, and reuse of plutonium is subject to such high risks of theft and sabotage that the Commission's prediction of insignificant environmental effects arising therefrom was not in accordance with the law.

Another member of the panel dissents, principally on the ground that the majority, contrary to the mandate of the Supreme Court, shows too little deference to the Commission's policy determinations and substantive conclusions. The Commission acted well within its statutory authority when it determined to consider the risks of nuclear waste disposal generically, and its use of a zero-release figure for long-term disposal risks was not a factual finding which violated NEPA, but a reasonable device for preventing individual licensing boards from engaging in repeated, endless inquiries into speculative environmental issues.

Counsel for Petitioners
Ronald J. Wilson
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

Roger Beers
Beers & Dickson
380 Hayes St., San Francisco CA 94102
(415) 861-1401

Counsel for Respondents
E. Leo Slaggie; Stephen F. Eilperin, Solicitor
Nuclear Regulatory Commission, Washington DC 20555
(202) 624-3288

David C. Shilton, Sanford Sagalkin, George R. Hyde, Edward J. Shawaker, John J. Zimmerman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2737

Counsel for Intervenors
George C. Freeman Jr., Donald P. Irwin, K. Dennis Sisk
Hunton & Williams
P.O. Box 1535, Richmond VA 23212
(804) 788-8200

Before: BAZELON, Senior Circuit Judge, GEORGE C. EDWARDS, JR.,* Circuit Judge for the Sixth Circuit, and WILKEY, Circuit Judge.

PER CURIAM: Judge Bazelon's opinion constitutes the opinion of the court. Judge Edwards concurs in all but Part IV-D of the opinion, and Judge Wilkey concurs in only Part IV-D.