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Minnesota v. NRC

ELR Citation: 9 ELR 20531
Nos. No. 78-1269, 602 F.2d 412/13 ERC 1183/(D.C. Cir., 05/23/1979)

The court remands to the Nuclear Regulatory Commission two licensing proceedings in which the Commission granted amendments to the operating licenses for the Vermont Yankee and Prairie Island nuclear power plants permitting increases in the capacity of the plants' spent fuel storage pools. The Atomic Safety and Licensing Appeal Board (Appeal Board), ruling that under the National Environmental Policy Act (NEPA) such action could be taken only if it were first determined there was a reasonable probability that when the plants' licenses expired an alternative means of disposing of the nuclear wasters would be available, found that the requirement for such a finding was satisfied by a previous policy determination by the full Commission stating that alternative spent fuel repositories should be presumed to be available when needed. The Appeal Board thus upheld issuance of the license amendments. In rejecting this decision, the court finds that this policy statement does not suffice as the finding required under NEPA. The Commission must consider the question anew, in either an adjudicatory or informal proceeding. The questions to be resolved in such a proceeding or proceedings are whether an alternative fuel disposal technology is reasonably likely to be developed by the expiration date of the plants' licenses, or if not, whether there is reasonable assurance that the fuel can be stored safely in the plants' spent fuel pools until an alternative technology is reasonably predicted to become available. While remanding the proceedings, the court declines to stay the license amendments, which would effectively shut down the plants. In a concurring opinion, Judge Tamm emphasizes that the findings ordered by the court are required by NEPA and the Atomic Energy Act, and that if the Commission determines that an alternative means of spent fuel disposal is not reasonably expected to be available when the plants' operating licenses expire, the question is then whether the use of spent fuel pools is an acceptable disposal method over an indefinite period.

Counsel for Petitioners
Anthony Z. Roisman, Karin P. Sheldon
Sheldon, Harmon, Roisman & Weiss
1725 I St. NW, Washington DC 20006
(202) 833-9070

Jocelyn Furtwangler Olson, Special Ass't Attorney General; Warren Spannaus, Attorney General
102 State Capitol, St. Paul MN 55155
(612) 296-2591

Counsel for Respondents
Stephen F. Eilperin, Solicitor; William M. Shields
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3288

Edward J. Shawaker, Michael A. McCord; James W. Moorman, Ass't Attorney General
Department of Justice, Washington DC 20530
(202) 633-2701

Counsel for Intervenors Vermont Yankee Nuclear Power Corp.
Thomas G. Dignan Jr., R.K. Gad III, Faith S. Hochberg
Ropes & Gray
225 Franklin St., Boston MA 02110
(617) 423-6100

Before TAMM, LEVENTHAL, and MACKINNON, Circuit Judges.

Concurring statement filed by Circuit Judge TAMM.