Ecology Action of Oswego v. Nuclear Regulatory Commission

No. 78-1855 (D.C. Cir. March 12, 1980)

In a memorandum decision the court affirms the Atomic Safety and Licensing Appeal Board's denial of a motion (1) to suspend the construction permit for the Sterling Nuclear Power Project and (2) to enjoin the plant's owner from contracting for nuclear fuel for the plant until the Nuclear Regulatory Commission (NRC) has reevaluated the environmental impacts of uranium mining and milling. The court first rules that petitioners have not shown that they will be irreparably injured if relief is denied because they have not shown that serious injury will result from the continued mining and milling of uranium. Second, the requested relief is not within the power of the Appeal Board because it lacks power to prevent utilities from purchasing nuclear fuel.

Counsel for Plaintiffs
Dirk S. Adams
Robinson, Williams & Angeloff
1600 First Federal Plaza, Rochester NY 14614
(797) 454-1990

Counsel for Defendants
Stephen F. Eilperin, Solicitor
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3288

Larry Boggs
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2753

Before Robinson, Robb, and Davis,^* JJ.

[10 ELR 20293]

Per curiam:

Judgment

This cause came on for consideration on the petition for review of an order of the Nuclear Regulatory Commission and briefs were filed by the parties. On consideration of the foregoing, it is

ORDERED AND ADJUDGED by this Court, that the order of the Nuclear Regulatory Commission under review herein is hereby affirmed, for the reasons set forth in the attached memorandum.

Memorandum

Petitioner Ecology Action of Oswego seeks review of the Nuclear Regulatory Commission's denial of its motion (1) to stay a construction permit issued to Rochester Gas & Electric Company for the Sterling Nuclear Power Project and (2) to enjoin the utility from contracting for uranium to fuel the proposed plant until the Commission completes its reevaluation of the environmental impacts of the mining and milling of uranium. Petitioner's motion was made to the Atomic Safety and Licensing Appeal Board (Appeal Board) during the pendency of petitioner's administrative appeal from a Licensing Board decision authorizing issuance of the Sterling Construction permit. On May 5, 1978 the Appeal Board denied that motion, finding it likely that it would decide petitioner's administrative appeal before construction of the plant started in the fall of 1979, and that even if it had jurisdiction to enjoin the utility from contracting for uranium, petitioner had not shown that the mining and milling of uranium during that time would release radon in quantities sufficient to have possible serious health or environmental consequences. The Appeal Board's order became a final Commission order when the Commission declined review. 10 C.F.R. § 2.786(b)(5). We affirm the Commission's order.

Petitioners assert that they will be irreparably injured by the continued release of radon-222 from uranium that will be mined and processed for the Sterling plant. They argue that the existence of the construction permit will encourage Rochester to enter into contracts to purchase uranium and that those contracts will in turn encourage an increase in uranium mining and processing, with a consequent increase in the release of radon-222.

At the outset, we note that the Sterling plant is not scheduled to begin operating until 1988, and petitioners have not shown that it is likely that the uranium needed at that time will be mined and processed before the Commission reaches a decision. In any event a construction permit is not a prerequisite to entering into a contract to purchase uranium. 10 C.F.R. § 70.20 (1979). Therefore, it does not appear that suspension of the permit would alleviate the harm alleged by petitioners; even if we ordered the Commission to suspend the permit until it completes its reevaluation and decides Ecology Action's appeal, Rochester would remain free to enter into contracts to purchase uranium. Finally, we note that Congress has addressed the problem of radon-222 emissions in the Uranium Mill Tailings Radiation Control Act of 1978, Pub. L. No. 95-604, 92 Stat. 3021. This Act reflects a congressional judgment that the problem of radon-222 emissions is a serious one, but that it can be controlled without halting all uranium mining and processing. Although the Act is not dispositive of the issue before us, it is relevant in evaluating petitioners' contentions that serious irreparable injury will result from the continued mining and milling of uranium.

Petitioners have also failed to show that they are likely to succeed on the merits of their appeal to the Board. They have cited evidence of the long-range effects of radon emissions but have not demonstrated that this evidence casts doubt on the Commission's finding that the radon hazard associated with construction and operation of the reactor is not significant. Nor have they succeeded in undercutting the Commission's conclusion that the benefits anticipated from the Sterling Project outweigh any possible radon hazard.

Petitioners also asked the Appeals Board to issue an order forbidding Rochester to enter into contracts to purchase uranium until the appeal is decided. The Appeals Board correctly ruled that it lacked authority to do so.

For the foregoing reasons, the decision of the Appeals Board is affirmed.

So ordered.

* Sitting by designation pursuant to 28 U.S.C. § 293(a).