Cuomo v. United States Nuclear Regulatory Commission

No. 85-1042 (D.C. Cir. March 12, 1987)

The court holds that a challenge to orders issued by the Nuclear Regulatory Commission (NRC) authorizing low-power testing at the Shoreham nuclear power plant in New York was mooted when the low-power testing was conducted. The court therefore does not reach claims raised by Suffolk County and the Governor that the NRC violated the National Environmental Policy Act by issuing these orders without preparing a supplemental environmental impact statement to account for the potential denial of a full-power license due to the lack of an emergency evacuation plan.

[This opinion has not been officially approved for publication. An earlier opinion in this case is published at 15 ELR 20772. Related cases appear at 14 ELR 20284, 15 ELR 20511, and 16 ELR 20631.]

Counsel for Petitioner
Herbert H. Brown
Kirkpatrick & Lockhart
1900 M St. NW, Suite 800, Washington DC 20036
(202) 452-7000

Counsel for Respondent
Peter Steenland, Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Counsel for Intervenor
W. Taylor Reveley III
Hunton & Williams
P.O. Box 1535, 707 E. Main St., Richmond VA 23212
(804) 788-8200

Before Ginsburg, Buckley, and Davis,^* JJ.

[17 ELR 20662]

Per Curiam:

Memorandum

The County of Suffolk, New York, and the Governor of the State of New York bring this petition for review of two final orders of the United States Nuclear Regulatory Commission (the "NRC" or "Commission") authorizing intervenor, the Long Island Lighting Company ("LILCO"), to commence low-power testing of its new nuclear power plant at Shoreham, Suffolk County, New York. Petitioners argue that the orders should be vacated because the Commission failed to prepare a supplemental environmental impact statement they believe to be required by the National Environmental Policy Act of 1969, as amended ("NEPA" or the "Act"), 42 U.S.C. § 4332 (1982).

In 1977, the NRC prepared an environmental impact statement ("EIS") assessing the risks and benefits of the Shoreham plant. The EIS concluded that adverse environmental effects from full-power operation of the plant would be offset by its economic benefits. As had been the usual practice, the EIS did not make a separate assessment of the environmental impact of the low-power testing programs that precede full-power operation. By 1984 the construction of the Shoreham plant had been completed, and the Commission was satisfied that LILCO had resolved all technical safety issues pertaining to the plant's operation. In preparation for full-power operation, the NRC divided LILCO's testing of the Shoreham plant into four phases:

a. Phase I: fuel loading and precriticality testing;

b. Phase II: cold criticality testing;

c. Phase III: heatup and low-power testing to rated pressure/temperature conditions (approximately 1% rated power); and

d. Phase IV: low-power testing (1-5% rated power).

Brief for Respondent NRC at 9.^**

On November 21, 1984, the NRC issued the first of the two orders challenged by petitioners. That order authorized LILCO to carry out Phases I and II. The second order, which authorized LILCO to carry out Phases III and IV, was issued on June 14, 1985, and the license to conduct the tests followed on July 3, 1985. Id. at 9-10. LILCO carried out a low-power testing program from July 7 to October 8, 1985, and another in August 1986. Brief for Intervenor at 6.

The amended petition for review challenges both orders. The issue petitioners present is: "Whether the NRC violated NEPA by authorizing operation of Shoreham without supplementing the 1977 Shoreham EIS to consider significantly changed circumstances." Brief for Petitioners at 2. Regulations issued pursuant to NEPA require the preparation of a supplement to an EIS if "significant new circumstances" arise that are "relevant to environmental concerns . . . bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1)(ii) (1986). Petitioners maintain that such circumstances have arisen as a result of a statute enacted after the accident at the nuclear power plant on Three Mile Island, Pennsylvania. Pub. L. No. 96-295 § 109, 94 Stat. 780 (1980). That statute requires that before appropriated funds are used in connection with the issuance of a nuclear operating license, the NRC must determine, inter alia, that "there exists a State or local emergency preparedness plan" satisfying certain requirements. Id. § 109(a)(1) at 783.

Because petitioners have concluded that it is not possible to [17 ELR 20663] devise an effective emergency evacuation plan for the Shoreham plant, given the population density and the geographical constraints of the surrounding area, they have refused either to develop one of their own or to cooperate with one independently developed by LILCO. As petitioners maintain that state and local cooperation are essential to any plan meeting statutory requirements, they conclude it is now unlikely that an operating license will issue and, therefore, that the benefits of full-power operation foreseen in the 1977 EIS will be realized. That fact, they contend, creates a "significantly changed circumstance] [" requiring preparation of a supplemental EIS. They also argue that the 1977 EIS is deficient because (1) it makes no provision for deferring low-power testing pending resolution of the emergency evacuation issues that have arisen since 1977; and (2) it does not make an independent assessment of the environmental consequences of low-power testing, something that is now necessary because of the high likelihood that full-power licensing will never be allowed in light of the emergency evacuation plan requirement. Brief for Petitioners at 21.

The NRC responds that Shoreham's full-power operation has always been uncertain because it is never possible to be sure a full-power testing license will issue with respect to any nuclear power project. The NRC also argues that the benefits of low-power testing and its minimal dangers remain unchanged since 1977, and that petitioners should not be allowed to obstruct the completion of the plant because of "significantly changed circumstances" they themselves have created. Intervenor LILCO questions our statutory subject matter jurisdiction on the ground that the petition is untimely because petitioners waited beyond the 60-day time allotted in 28 U.S.C. § 2344 for challenges to the Commission's June 4, 1984 order denying petitioners' request that the 1977 EIS be supplemented.

We need not pass on the merits of any of these arguments because the intervening low-power testing of the Shoreham plant has rendered the underlying issue moot. Whatever might have been the appropriate course of action at the time New York State and Suffolk County first asked for the preparation of a supplemental EIS, we are faced with the fact that low-power tests have since taken place. At oral argument counsel for both sides acknowledged that the major share of the environmental consequences resulting from low-power operation had already occurred. In particular, LILCO has already irradiated the reactor core and coolants. Even though additional environmental consequences may result from subsequent testing under the existing license, the parties conceded at oral argument that these would range from "minor" to "virtually zero." We decline to vacate a nuclear low-power testing license and order a supplemental EIS where petitioners' prospective injury is so equivocal.

Accordingly, the petition for review is Dismissed.

Judgment

This case was reviewed on the record from the Nuclear Regulatory Commission, and was briefed and argued by counsel for the parties. The court has considered the issues presented and finds that they occasion no need for an opinion. See D.C. Cir. R. 13(c). For the reasons stated in the accompanying memorandum, it is

ORDERED AND ADJUDGED by the court that the petition for review is dismissed. It is

FURTHER ORDERED by the court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See Local Rule 14, as amended on November 30, 1981 and June 15, 1982. This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.

* Sitting by designation pursuant to 28 U.S.C. § 291(a).

** All references are to the parties' supplemental briefs.