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Lower Alloways Creek, Township of v. Public Serv. Elec. & Gas Co.

Citation: 12 ELR 21029
No. No. 81-2335, 687 F.2d 732/18 ERC 1401/(3d Cir., 08/27/1982)

The court upholds the Nuclear Regulatory Commission's (NRC's) decision not to prepare an environmental impact statement (EIS) before amending a New Jersey nuclear plant's license to allow additional storage of spent fuel at the plant. The court first determines that it must apply a reasonableness standard of review to the NRC's negative determination. Before applying this standard, the court notes that intervenor bears a burden of showing that the project could significantly affect the quality of the human environment and explaining how and why the NRC's finding of no significant impact was unreasonable. However, the court rejects intervenor's contentions that the NRC was required by the National Environmental Policy Act to prepare an EIS for the project. Intervenor's primary, "common sense," argument that greatly increasing the amount of fuel stored constitutes a significant impact is insufficient to overturn the apparently adequate environmental impact appraisal conducted by the NRC. The court also rejects (1) intervenor's contentions that an EIS is required because the plant is located in a sensitive coastal area, (2) its objections to an NRC "policy" of refusing to prepare EIS's on spent fuel storage capacity increases for all other such proposals, and (3) its argument that the NRC failed to give adequate consideration to alternatives to the project.

Counsel for Petitioners
Carl J. Valore
Valore, McAllister, Westmoreland & Vesper
Mainland Professional Plaza, Drawer A-1, Northfield NJ 08225
(609) 645-1111

Mark J. Wetterhahn, Robert M. Rader
Conner & Wetterhahn
1747 Pennsylvania Ave. NW, Washington DC 20006
(202) 833-3500

Counsel for Respondents
Richard Fryling Jr.
Public Service Electric & Gas Co.
80 Park Place, Newark NJ 07101
(201) 430-7000

Leonard Bickwit Jr., General Counsel; James A. Fitzgerald, Martha A. Torgow, E. Leo Slaggie
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3288

Marcia A. Iizuka, Peter R. Steenland Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2753

Counsel for Amicus Curiae State of Maine
James E. Tierney, Attorney General; Rufus E. Brown, Philip Ahrens, Robert S. Frank
State House, Station #6, Augusta ME 04333
(207) 289-3661

Adams joined by Weis and Conaboy, JJ.*