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New England Coalition on Nuclear Pollution v. NRC

Citation: 8 ELR 20707
No. Nos. 77-1219 et al., 582 F.2d 87/(1st Cir., 08/22/1978)

The First Circuit rejects challenges to the Nuclear Regulatory Commission's (NRC's) final approval of construction permits for intervenor's Seabrook nuclear power plant. The Commission did not violate its regulations requiring that nuclear plants be located at a sufficient distance from population centers of more than 25,000 despite the fact that more than that number of people live within a "critical" distance from the plant. Because the local population pattern is dispersed, the Commission has properly concluded that an adequate margin of safety has been assured. The court accords defendant equally wide discretion in applying the Atomic Energy Act's requirement that applicants for construction permits be financially sound. The Applicant's financial health is questionable, but the Commission's contrary finding on this issue is supported by substantial evidence. Petitioner also asserted that respondent had violated the National Environmental Policy Act (NEPA) by failing to revise the environmental impact statement (EIS) to reflect the subsequent modification of the plant's cooling water intake tunnel until the decision to require such a modification had already been made. The court upholds this procedure, finding that NEPA does not require that the EIS be prepared until after the decision to embark on an enterprise has been made final. Furthermore, the timing question is not relevant to this case because as amended, the project plans called for lesser environmental impacts than the first version. The court also rejects petitioner's argument that respondent's criteria for analysis of alternative plant locations violates NEPA. The criteria in question appear to be biased, but they are not so facially invalid that the court must decide their validity here rather than on review of specific agency decisions applying them in the future. Nor does NEPA require that the permits be voided because the Commission relied on the extensive ecological studies performed by the Environmental Protection Agency rather than conduct its own analysis of the aquatic impacts of the plant. NEPA provides that the agency must factor the results of such studies into its decisionmaking processes, but it does not dictate the manner in which environmental data must be collected. The court also dismisses petitioner's final NEPA claim that the Commission's EIS inadequately assessed the effects of the plant's decommissioning as well as its impact on local tourism, finding itself unwilling, because of the considerable evidence in the record on these issues, to declare that the Act was violated. With respect to the claim that respondent neglected its duty under the Atomic Energy Act to require a showing of need for the power to be produced by the proposed plant, the court declines to overturn the agency's determination that the applicant made the required showing. Petitioner's final allegation is that under the Administrative Procedure Act (APA) the permits are invalid because the decision to issue them was not made by the presiding officer of the panel which collected the evidence because he withdrew from the panel during the course of the proceeding. The APA does not require that the entire proceeding be repeated, because in this case there was no need for the continuing presence of one presiding officer to weigh the credibility and demeanor of witnesses. Here the relevant evidence was largely factual and technical and could adequately be reviewed from the record by the presiding officer's replacement.

Counsel for Petitioner
Karin P. Sheldon
Sheldon, Harmon & Roisman
1025 15th St. NW, Washington DC 20005
(202) 833-9070

Counsel for Respondents
Stephen S. Ostrach; James L. Kelley, Acting General Counsel; Stephen F. Eilperin, Solicitor; Peter G. Crane
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-1465

Peter R. Steenland, Chief
Appellate Section, Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2813

Counsel for Intervenors Public Service Co. of New Hampshire and New England Power Co.
Thomas G. Dignan, Jr., R. K. Gad, III, John A. Ritsher
Ropes & Gray
225 Franklin St., Boston MA 02110
(617) 423-6100

Counsel for Intervenor New Hampshire Voice of Energy
Albert Ferri, Jr., Lawrence P. Jones
Pacific Legal Foundation
1990 M St. NW, Washington DC 20036
(202) 466-2686

Harrison A. Fitch, Peter D. Kinder
New England Legal Foundation
110 Tremont St., Boston MA 02108
(217) 482-1410

Counsel for Intervenors-Appellants Seacoast Anti-Pollution League and Audubon Soc'y ofNew Hampshire
Robert A. Backus
O'Neill, Backus and Spielman
116 Lowell St., Manchester NH 03101
(503) 668-7272

Counsel for Intervenor Commonwealth of Massachusetts
Ellyn R. Weiss, Special Ass't Attorney General; Francis X. Belloti, Attorney General
1 Ashburton Pl., Boston MA 02108
(617) 727-2200

Before Coffin, Campbell and Bownes, JJ.