ML19029A820

Motion for Reconsideration of Dismissal of Colemans Contention No. Seven

ML19029A820
Person / Time
Site:	Salem
Issue date:	06/25/1979
From:	Van Ness S State of NJ, Dept of the Public Advocate
To:	Atomic Safety and Licensing Board Panel
References
Download: ML19029A820 (17)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of PUBLIC SERVICE ELECTRIC

& GAS CO.

(Salem Nuclear Generating Station, Unit #1)

MOTION FOR RECONSIDERATION Docket No. 50-272 Proposed Issuance of Amendment to Facility Operating License No. DPR-70 OF DISMISSAL OF COLEMANS CONTENTION_ NO. SEVEN KEITH A. ONSDORFF ASSISTANT DEPUTY PUBLIC ADVOCATE On the Brief STANLEY C:. VAN NESS PUBLIC ADVOCATE OF NEW JERSEY DEPARTMENT OF THE PUBLIC ADVOCATE DIVISION OF PUBLIC INTEREST ADVOCAC POST OFFICE BOX 141 520 EAST STATE STREET TRENTON, NEW JERSEY

MOTION Pursuant to 10 CFR S 2.730, Intervenors, Coleman, hereby move for an Order reopening consideration of their Contention Seven in order to fully and fair-ly comply with the Court's mandate in Minnesota v. NRC, Nos. 78-1269, 78-2032 7 *

(D.C. Circuit Court of Appeals) decided May 23, 1979.

In support of this motion, intervenors will rely upon the attached brief and exhibit.

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I KEITH A. ONSDORFF i1 L ASSISTANT DEPUTY PUBLIC ADVOCATE

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STATEMENT IN BEHALF OF MOTION On May 24, 1978, the Atomic Safety and Licensing Board, empaneled to adjudicate the several challenges to the license amendment application filed by Public Service Electric and Gas Company seeking NRC approved to increase the capacity of its Salem one SFP from 264 to 1170 fuel assemblies,entered the pre-hearing Order that established the parameters for this proceeding.

Said Board Order rejected Colemans' seventh proposed contention which asserts that the licensee has given inadequate consideration to the issue of the safety of on-site nuclear waste storage beyond the duration of the plant's operating license.

Order May 24, 1978, p.8.

The au:thority for this dismassal of Contention Sev_en was the decision of the Atomic Safety and Licensing Appeal Board in Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2) ALAB-445, 7NRC41 (1978).

Within the last month, however, the ALAB's holding in the Northern States Power Company case has been effectively reversed by the United States Court of Appeals for the District of Columbia Circuit.

.. On May 23,. 1979:1.* the. Un:+/-.ted States.Court of Appeals for' the District of Columbia*

Circuit held,that, prior to approval of *a proposal to permit expanded storage of spent fuel, the Nuclear Regulatory Commission must (Minnesota v. Nuclear Regulatory Commission, Op. p. 14):

F.2d

, Nos. 78-1269, 78-2032, decided May 23, 1979, Slip

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"deterrnin [e] whether there is reasonable

• assurance that an off-site storage solution will be availably by the years 2007-09, the expiration of the plants' operating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates."

[Copy attached hereto as Exh."A"]

To date, the Commission has not instructed the various Atomic Safety and Licensing Boards which are considering applications to increase the capacity of reactor spent fuel pools how they must implement this mandate from the Court of Appeals.

Nonetheless, the clear import of the Court's decision is that considera-tion of long term on-site storage safety will have to be addressed by the Commission, if it can not determine with reasonable assurance that an off-site waste disposal.

solution will *not be available by the termination date of the plant's operation license.

Within the limits of the law, the Minnesota Pollution Control Agency decision left to the NRC the selection of procedures it will employ in its determination of satisfactory solutions to this vexing radioactive waste problem.

The Court noted, however, that any method chosen by the Commission would have to afford the opportunity for all interested parties to make a judicially reviewable record on these issues.

Slip Op. pp. 11 & 15.

In light of this unequivocal injunction by the D.C. Circuit Court of Appealsr the Colemans (along with all other intervenors in reracking license amendment proceed-ings throughout the United States) are confronted with a situation where they have been vindicated in their legal position that the Nuclear Regulatory Commission ~ust seriously address the consequences of Artificial Island (along with other reactor sites) becoming defacto radioactive dumps for the foreseeable, indefinite future.

Nonethe-less, this may be a hollow victory indeed if Commission action on the Court's remand (no timetable for NRC consideration was included in the Court ruling) is not forth-coming prior to the conclusion of the within proceeding.*

Conceiveably, the Commission staff, understandably pre-occuppied with the Three Mile Island regulatory reform fall-out, could delay completing its proposals to comply with the Minnesota mandate until all the pending reracking applications are decided,.

rendering the Court's Order essentially meaningless in that no proceedings would still be active to have it applied to.

Such a non-retroactive application is not inconsis-tent with Judge Leventhal's opinion which appears to limit its applicability to "subsequent adjudicatory proceedings."

Slip Op. p. 10.

In order to prevent such a manifest injustice, it is essential that consideration of Colemans' Contention Seven be reopened to.allow the parties herein the opportunity to present evidence on the issue of the safety, environmental and health consequences of long term nuclear waste storage on Artificial Island-Such evidence then can be submitted to the Cormnission as part of its compilation of a full and fair record on this issue.

In the alternative, the Board should not close the record in this pro-ceeding until the Commission has acted upon the Court remand so that its determination may be applied to the instant application.

To do otherwise would in effect be to rule that the Colemans have a right with no remedy.

Such a cramped response*.to*the court's mandate would not be consistent with accepted principles of fundamental fair-ness, equal protection and due process of law.

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CONCLUSION For all_ the foregoing reasons, it is respectfully submitted that the Board should reopen its consideration of Colemans' Contention Seven in order to fully and fairly comply with the Court's mandate in Minnesota v. Nuclear Regulatory Conunission; Nos. 78-1269, 78-2032 (Exh. "A")

Respectfully submitted,

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KEITH A. ONDSORFF

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ASSISTANT DEPUTY PUBLIC ADVOCATE r

Notice:

This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press.

FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 78-1269 STATE OF MINNESOTA, BY THE MINNESOTA POLLUTION CONTROL AGE.i.'lCY, PETITIONER

v.

UNITED STATES NUCLEAR REGULATORY COM~IISSION AND UNITED STATES OF A~IERICA, RESPONDENTS NORTHERN STATES POWER COMPANY, INTERVENOR No. 78-2032 NEW ENGLAND COALITION ON NUCLEAR. POLLUTION, PETITIONER

v.

UNITED STATES NUCLEAR REGULATORY CO~HiIISSION AND UNITED STATES OF AMERICA, RESPONDENTS VER:;:>.IONT YANKEE NUCLEAR POWER CORPOR..\\TION7 INTERVENOR Bills of costs must be filed,~;thin 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.

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Petitions fo1* Review of Orders of the Nuclem* Regulatory Commission Argued May 2, 1979 Decided May 23, 1979 Anthony Z. Roisman with whom Karin P. Sheldon was on '9brief, for petitioner in No. 78-2032.

Jocelyn Furtwangle1* Olson, Special Assistant Attorney General, with whom lYarren Spannaus, Attorney General, State of Minnesota, was on the brief, for petitioner in No. 78-1269.

Stephen F. Eilperin, Solicitor, United States Nuclear Regulatory Commission, with whom lVilliam M. Shields,

. Attorney, United States Nuclear Regulatory Commission, Edward J. Shawalcer and Mi'chael A. McCord, Attor-neys, Department of Justice, were on the brief, for respondents.

Robprt E. Zahla1* with whom Wm. Bradford Reynolds was on the brief, for intervenor, in No. 78-1269.

Jamas G. Dignan, /?'. with whom R. I(. Gad III and Ji'ai"'!'!" S. Hochberg were on the brief, for intervenor in No. 78-2032.

Also J a-nies lV. Moorman, Assistant Attorney General, Department of Justice, entered an appearance for re~

spondent, United States of America.

Before TAMM, LEVENTHAL and MACKINNON, Cfrciiit Judges.

Opinion foi* the Court filed by Cirmiit Judge LEVEN'l'HAL.

Concul'ring statement filed by Cfrcuit Judge TAMM..

LEVEN'l'HAL, Cfrcm'.t Juclga: Petitioners challenge an order of the Atomic Safety and Licensing Appeal Boa1*d

.3 (Appeal Doarcl) 1 a unit of the Nuclear Regulatory Com-mission (NRC). The Appeal Bonrd nffirmecl initial de-cisions of Atomic Safety and Licensing Boards (Licens-ing Boards) granting two operators of nuclear power plants amendments to their operating licenses to permit expansion of on-site capacity for the storage of spent nuclear fuel assemblies.

The crux of the case is cunent uncertainty about the

• prospects for developing and implementing safe methods fo1* the ultimate disposal-or even long-term storage-of the highly toxic radioactive wastes created hi the process of nuclear power generation.

In this opinion, we do not set aside or stay the chal-lenged license amendments. On certain aspects of the case, we issue rulings approving the agency's procedural position. However, we conclude by remanding these cases to the agency for clarification and consideration in the light of a related proceeding and other current de-velopments.

I.

BACKGROUND AND DECISION UNDER REVIEW A nuclear reactor core contains a number of fuel as-semblies, bundles of thin tubes (or fuel rocls") contain-ing pellets of enriched uranium. 'fhe build-up of neutron-b

• b' II II cl th h

• a soi mg poisons urmg e c am react10n reduces the ability of the fuel to sustain an efficient chain reaction.

"Spent" fuel assemblies must therefore be removed per-iodiCally from the reactor core and replaced with fresh fuel. When removed from the core, the assemblies gene-rate enormous heat and contain highly radioactive ura-nium, actinides and plutonium. Under current practice the assemblies are placed vertically on racks in a "spent fuel pool" adjacent to the reactor and within the con-tainment vessel. The *spent fuel pool is a lnrge basin constructed of concrete, lined with stainless steel and

filled with water to dissipate the heat generated by radio-active decay and to absorb radiation.

It was anticipated, when most of the nuclear power plants now in operation in the United States were li-censed, that spent fuel would be stored at the reactor site only long enough to allow the fuel assemblies to cool sufficiently to permit safe shipment off-site for re-processing (the extrnction from the rods of usable ura-n91 and plutonium) or permanent disposal. Spent fuel storage capacity at these plants is therefore limited.

Plans for off-site reprocessing or storage have not ma-terialized. No facility for reprocessing of commercial nuclear wastes is currently licensed; indeed, in 1977 President Carter suspended indefinitely all commercial reprocessing, because of security concerns about pluto-nium proliferation. The availability of off-site storage facilities, not involving reprocessing, is limited, and no additional capacity is currently projected.

Operators of nuclear plants have sought from the Nu-clear Reguatory Commission license amendments pet-mittiifg expansion of on-site spent fuel storage capacity.

Qlii.erwisc, as is evident from the foregoing description,

• e nuclear plants, which were designed in contempla-tion of off-site shipment of spent fuel, would be forced to shut down when the limited *on-site storage capacity was filled.

More specifically, these consolidated appeals involve two applications for license amendment. Vermont Yankee Nuclear Power Corporation, the intel'venor in No. 78-2032, operates a nuclear generating facility at Vernon, Vermont. Its spent fuel pool had an original capacity of GOO fuel assemblies. Scheduled refuelings would have filled the pool by 1977, and forced Vermont Yankee to cease operation in August 1978. On November 5, 1976, Vermont Yankee applied to the NRC for an amendment 5

to its. operating license to permit expansion of the pool's cap~c1ty from GOO to 2000 assemblies, thereby permitting on-site storage through 1987. The application contcm-*

plated no incre~se in th.e physical dimensions of the pool, b~t rather the.mstallat10n of new racks that would per-mit closer spacrng-of the fuel assemblies in the pool. The New England Coalition on Nuclear Pollution (petitioner here) and others intervened.

Northern States Power Company, intervenor in No.

78-1269, operates the Prairie Island nuclear facility in Goodhue County, Minnesota.

That facility lfas two reactors, which would have exhausted the 198-assembly capacity of tl.1eir shared s1jent fuel pool by the spring of ~978, forcrng the shutdown of both reactors by the sprmg of 1979. On November 24, 1976, Northern States requested that NRC grant an amendment to its operat-ing license to permit expansion of the pool capacity to 687 assemblies, allowing storage through 1982.1 Like Vermont Yankee, Northern States proposed to accomplish the ex-pansion through closer. spacing of racks within the pool.

The Minnesota Pollution Control Agency intervened.

In separate proceedings on each application, the NRC Staff undertook evaluations of the safety of the proposed pool modifications and their environmental impact. The evaluations extended only to

• the safety and environ-mental effects of the proposed modifications themselves*

the Staff did not consider any implications arising fro1~

1 The projected dates for Vermont Yankee and-Prairie Is-Ia~d assume retention of sufficient capacity in the pool to pcr-nut tho temporary removal of all fuel assemblies from the reactor core to facilitate core maintcmance. Use of this "off-load" capacity for storage of spent fuel assemblies, while un-desirable from an engineering perspective, would extend the period of available storage capacity another two or three yen rs.

6 the possibility that the unavailability of a. permanent m1clea1* waste clispmml solution might cause the plant sites to become permanent storage facilities, or even to continue on as storage beyond the expiration dates of the licensees' operating authority (for Vermont Yankee ai~d P1*airic Island, during the years 2007-2009).

Noting that the modification would entail no increase in the amount of wastes annually generated by the re-actor, the Staff found "reasonable assurances" that the n.fications would not endanger public health and s<

y, and hence satisfied the standards of the Atomic Energy Act and NRG regulations,2 and concluded that the National Environmental Policy Act (NEPA) did not require the preparation of environmental impact state-ments because the modifications would not "significantly affect the quality of the human environment." 3 The initial decision of the Licensing Board in each proceeding essentially adopted the Staff's safety and en-vironmental findings and approved the requested amend-ments.

G N.R.C. 436 (1977)

(Vermont Yankee); 6 N.R.C. 2G5 (1977) (Prairie Island). Each Board ex-cluded,from its determination any consideration of the safet;1 and environmental effects of long-term storage

--.A. at 16 (Vermont Yankee); id. at 216 (Northern States) ; see 42 U.S.C. § 2133 (cl) (1876) (no license may be issued, if, in the opinion of the Commission, issuance would be "inimical to the common defense and security or to the health and safety of the public") ; 10 C.F.R. § 50.57 (a) (3)

( 1078) (license mny be issued upon finding that "[t] here is reasonable assurance (i) that the activities authorized by the license can be conducted without endangering the health and safety of the public") ; see also 10 C.F.R. § 50.91 (1878)

(Commission guided in granting amendments to license by considerations entering into initial approval).

aJ.A. at 48 (Vermont Yankee); id. at 213 (Prairie Island);

see National Envil'onmentnl Policy Act, § 102 (2) (C), 42 U.S.C. § 1332 (2) (C) (1076).

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of nuclem* wastes on the site. G N.R.C. at 138 (Vermont Yankee) ; J.A. at 172 (Prairie Island) (order fol1o\\ving prehearing conference).

Petitioners appealed. The Appeal Board consolidated the appeals and affirmed. 7 N.R.C. 41 (Jan. 30, 1978).

The Appeal Board first noted that there was no serious challenge to the evidence supporting the Staff's and Licensing Boards' safety and environmental conclusions.

It then addressed the different issue raised by the 1nter-venors (petitioners here). Those parties contended that the uncertainty as to the feasibility of ultimate solutions for the disposal of commercial nuclear wastes raised the possibility that the reactor sites might become long-term and possibly indefinite storage sites, persisting subse-quent to the expiration of the plants' operating licenses.

Before any expansion of on-site storage capacity could be approved, they argued, the Commission must consider the safety and environmental implications of indefinite storage on-site after decommissioning of the reactor.

In deciding to what extent it was bound to take into account these long-term implications, the Appeal Board began with NEP A's "rule of reason" as to the possible consequences of an action that must be considered. That doctrine was first enunciated in NRDC v. JY!orton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972), quotecl with ap-vroval, Vermont Yankee Niiclear Powe1* Corp. v. NRDC, 435 U.S. 519, 551 (1978); Kleppe v. Sierra Clilb, 427 U.S. 390, 410 n.21 (1976). The Board defined its in-quiry not as whether it was "theoretically possible" that no off~site fuel repositories would be available at the expiration of the license; rather, it defined the question us whether that event was "reasonably probable." 7 N.R.C. at 49.

Although evincing uncertainty as to the conclusion it might reach on its own, the Board believed the question

8 forcclosecl by an earlier determination of the NRC. 4 rl'hc Board invoked an NRC decision denying a petition of the Natural Resources Defense Council that it initiate u rulemaking to determine "whether radioactive wastes can be. generated in nuclear power reactors and subse-quently disposed without undue risk to the public health and safety" and that it refrain from granting further o.ating licenses until such a "definite finding of safety" vi made. 42 Fed. Reg. 34,391 (1977). 'l'he Commis-sion premised its denial on its "reasonable confidence that wastes can and will in due course be disposed of safely." Pointing to what it called "a coordinated Fed-e1*al program to develop an actual disposal facility," the Commission noted its 11imp1icit finding of reasonable as-surance that methods of safe permanent disposal of high-level wastes can be available when they are needed."

Id. at 34,393. The Appeal Board recognized that* the NRC's conclusion did not stem from a formal record developed in a rulemaking or. adjudicatory proceeding.

But it nonetheless gave effect to the ruling as "a policy declaration that, for the purposes of licensing actions, it bot-Ji can and should be presumed that there will be sAt fuel repositories available 'when needed'-i.e., well b?ore the termination of the Prairie Island or Vermont Yankee operating licenses." 7 N.R.C. at 51.

The NRG itself entered a simple order declining to re-view the Appeal Board's decision and providing no fur-ther reasoning or comment. In a separate statement, Commissioner l3radf ord attacked the Bonrd's reasonable probability finding, because the conclusion of. the NRC denial of rulemaking from which it was derived "was 4 Ha<l we been compelled to come to grips with thnt ques-tion unaided, it is not certain what result might have been reached. It hns turned out, however, that the Commis-sion has spoken on the subject.

7 N.R.C. at 49.

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not based on oi* tested by any eviclcntiary hearing." J.A.

vt 121. Petitioners then sought review in this court.

II.

ANALYSIS Petitioners renew the claims they acl'vancetl before the Appeal Board nnd the Commission.~ They submit: Prior to the issuance 0£ a license amendment pel'mitting ex-pansion of on-site storage capacity, the NRC must make a determination of probability that the wastes. lo be generated by the plants can be safely handled a~d dis-G The Minnesota Pollution Control Agency makes an addi-tional argument. It contends that NRC violated NEPA by im" properly "segmenting" its consideration of the environmental impact of expansion of onsite storage capacity at Prairie Is-land. The theory is that because the present expansion of the spent fuel pool will accommodate the spent fuel assemblies pro-duced at Prairie Island only until 1982, a request fo1* further expansion is inevitable. Citing Kleppe v. Sierra Club, 427 U.S.

390 ( 1976), :Minnesota argues that the NRC was required to take into account the environmental impact of this "tm-avoidable consequence" of the current expansion.

We find this argument without substance. lHinnesota hns not pointed to any consequence of future expansion thnt coulCl not be adequately considered nt the time of nny requests for further expansion. Indeed, the NRC Starr in its environmentai impact *analysis of the proposed expansion expressly con-sidered five factors articulated by the NRC for consideration of individual license amendment applications pending prep-aration of n generic EIS on the question of interim on*site storage of spent fuel assemblies. See 40 Fed. Reg. 42,802 (1975). The Staff specifically found that the licensing action here would not foreclose alternatives available with respect to other licensing actions designed to ameliorate n possible shortage of spent fuel capacity (noting that "taking* this ac-tion would not necessarily commit the NRC to. repeat this action or a related action") and that addressing the e11viron-1r.. :mtal impact associated 'with the proposed licensing action would not overlook any cumulative environmental impacts.

J.A. nt 239... 12,

10 posed of. If no "off-site" solution (either an ultimate solution to the problem of waste disposal, or some interim solution involving storage facilities off the reactor site),

is projected as probably available, the NRC must take into account the safety and environmental implications of maintaining the reactor site as a nuclear waste dis-posal site after the expiration of the license term.

Petitioners do not take issue with the Appeal Board's

~nclusion that all that is required* is a reasonable prob-

• ility that a solution will be available when needed.

They claim the Appeal Board erred in making its de-termination of reasonable probability not on the basis of evidence adduced on the record in the adjudicatory proceedings, but on the basis of the NRC's "declaration of policy" in its denial of rulemaking on the NRDC petition.

No one disputes that solutions to the commercial waste dilemma arc not currently available. rrhe-critical issue is the likelihood (or probability) that solutions, either ultimate or interim, will be reached in time. Petitioners propound a number of theories for why the "fact" of this likelihood must be tested within the context of an ad-

. dicatory proceeding and its evidentiary procedures, '\\Ve not consider these contentions in detail. \\Ve agree with the Commission's position that it could properly consider the complex issue of nuclear waste disposal in a "generic" proceeding such as rulemaking, and them apply its determinations in subsequent adjudicatory pro-ceedings. Vlhere factual issues do not involve particu-larized situations, an* agency may proceed by a com-prehensive resolution of tho questions rather than re-litiguting the question in each proceeding in which it is raised. Ecology Aclion v. AEC, 492 P.2d 998, 1002 (2d Cir. 1974) (li1riendly, J.); sec American Afrlines, Inc.

v. CAB, 123 U.S.App.D.C. 310, 359 li\\2d 624 (en bane),

cert. denied., 385 U.S. 843 (19GG).

Petitioners hypo-

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thesizc the need for individualized determinations, but wJ think it clear that the central issue posed by petitioner~

-the feasibility of interim or ultimate nuclear waste dis*

posnl solutions-is one essentially common to all nuclear facilities.

Petitioners fear that determination of the question in a "generic" proceeding, which would proceed as a rulc-making rather than adjudication, will deprive them of procedures, such as cross examination, to test the evidence underlying the probability determination that,\\rottld be afforded by an adjudication. '\\Ve do not dictate the }Jl'O-cedures of the "generic" proceeding. Ve1"mont Yanlcce Nuclear Powe1* Co'l'p. v. NRDC, 435 U.S. 519 (1978).

The breadth of the questions involved and the fact that the ultimate determination can never rise above a pre-diction, suggest that the determination may be a ldncl of legislative judgment for which rulemaking would suffice.

In its decision, the Appeal Board relied on the NRC's rulemaking request. The NRC's decision was one of statutory interpretation, concluding that Congress did not intend in enacting the Atomic Energy Act to re-quire a demonstration that nuclear wastes could safely be disposed of before licensing of nuclear plants was permitted. The Second Circuit affirmed on this basis.

NRDC v. NRG, 582 F.2d 166 (2d Cir. 1978). Thus, the NRC in its denial of rulemaking chose not to undertake the kind of comprehensive inquiry into the question of disposal solutions that would be required to give content to a "generic determination. NRC did state its "rea-,

sonable confidence" that solutions would be available when!

needed. While based on a description of current federal*

efforts in the area, NRC's "assurances" are not tlrn product of a rulemaking record devoted expressly to con-

12 siclcring the questions. 0,Further, that proceeding did not address *the particular problem focused by petitioners-that even if ultimate disposal solutions will be found, they will not be available before the expiration of the plants' operating licenses.

vVe need not consider what course we would _have followed if this were all that were before us. As is clear fr. the records of this. court, and as confir~n~d by c01:

el, thern is now pendmg before the Comm1ss10n a related generic proceeding-the so-called "S-3" proceed-ing, in which the issues of the storage and disposal of commercial nuclear wastes are of central-concern. That proceeding commenced in 1972 when the Commission's predecessor (the Atomic Energy Commission) proposed rulemaking-to reconsider whether the environmental ef-fects of the uranium fuel cycle should be included in the cost/benefit analysis prepared in licensing each nuclear plant. Although concluding that the environmental effects of the fuel cycle were "relatively insignificant, the Commission found it preferable to take them into account.

It promulgated its rule as "Table 8-3," 7 which specified

. a lzj~s of numerical values intended to *represent tho

° Cf. NRDC v. NRC, 17.8 U.S.App.D.C. 836, 361, 047 F.2d 633, 658 (1976) (Tamm, J., concurring ~n result) ("NEPA requires the Commission fully to assure itself that safe and adequate storage methods are technologically and economic-ally feasible. It forbids reckless decisions to mortagage the future for the present, glibly assuring critics that techno-logiCal advancement cnn be counted upon to save us from the consequences of our decisions"). As appears below, the Su-preme Court, in Vermont Yankee Nuclear *Power Corp. v.

NRDC, 435 U.S. 519 (1978), reversed the ruling of the ma-jority opinion requiring further procedures but rcmnndcd for the kind of inquiry called for in Judge Tamm's concurring opi.nion.

7 The current, "interim," Tnblc S-3 appears in 10 C.F.R.

§ ~1,20 (c) (1D78) I I

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13 incremental contribution of one nuclear reactor to the total enviromnc.mtal impact of the. uranium fuel cycle.

See NRDC v. NRG, 178 U.S.App.D.C. 336, 3413, 547 F.2d 633, 642 ( 1976), reve1*sed silb noni. Vennont Yankee Nuclea1* Power Corp. v. NRDC, 435 U.S. 519 (1978).

In reaching its conclusion that the environmental im-.

pact was "relatively insignificant," the Commission re-lied substantially on testimony of agency personnel that the as-yet tinsolved problems of ultimate disposal-of nuclear wastes would be resolved. Id. at 349-56,** 547 F.2d at 046-53. This reliance was challenged on judicial review. While the Supreme Court reversed this court's holding that NRC's procedures were inadequate, Vermont Yankee, suvra, 435 U.S. at 539-48, it did not disapprove the view expressed by Judge Tamm in his concurring opinion, NRDC v. NRG, siipra, 178 U.S.App.D.C. at 361-64, 517 F.2d at GGS-Gl, and remanded to this court to permit a determination whether the administrative record contained sufficient evidence to support the NRC's find-ing-. 435 U.S. at 549.

On remand, this court has held in abeyance its review of the original S-3 rulomaking, us well as that of an "interim" rule now before the court, pending completion of NRC proceedings to promulgate a new fuel cycle rule.

At oral argument, NRC counsel informed the court that this new final fuel cycle rule is pending before the Com-mission. Counsel also told the court that the current feasibility and likelihood of implementation of nuclear waste disposal solutions was a matter contested in the hearings on the new final rule.

It would be inappropriate for this court to ignore the relevance of proceedings in which some of the basic ques-tions raised now are the subject of current exploration.

Since the disposition of the S-3 proceeding, though it has

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~ somewhat different focus, 8 may have a bearing on the I

pending. cases, m:d being advised of rec.m;t. develop1;1ents 0 that rmse new issues about the fcns1b1hty of chsposal

~3olutions, we think it appropriate in the interest of sound administration to remand to the NRC for further con-1 siclel'ation in the light of its S-3 proceeding and analysis.

In pal'ticular, the court contemplates consideration on remand of the specific problem isolated by petitioners-determining whether there is reasonable assurance that an &site storage solution will be available by the years 200~9, the expiration of the plants' operating licenses, antl if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates.

\\Vo neither vacate nor stay the license amendments, which would effectively shut down the plants.

At oral argument intervenors Vermont Yankee and Northern States stressed the argument that the court has no legitimate basis for concerning itself with issues of 8 The on-going S-3 proceedings have focused only on thr.

i!-:lsue arising under NEPA, as to the environmental impact of nuc,lcar waste disposal, and not on the effect of the un-certainty as to solutions under the public health nnd safety stanclarcl for licensing under the Atomic Energy Act, which NRAomrnel acknowledged is more rigorous than NEPA sla~rds in certain aspects. And the S-3 proceedings may I not be concerned with the more limited issue identified in the pending cases of whether ofrsite storage solutions will be available prior to the expiration of the operating cer-tificates.

0 At oral argument counsel for petitioner New England Coalition told the court of a final Report to the President by the Intern.gcncy Review Group on Nuclear Waste Manage*

ment, issued March 19, 1979, that casts some doubt on whether current proposed solutions to the permanent waste disposal proi.Jlcm arc technologically feasible. Id. at 42, The Report also pointed to gathering institutional problems, e.g., the resistanco of localities lo storage of wastes within their jurisdiction's, that "may well be niore difficult than finding solutions to re~

maini11rr technical problems." Id.. at 8'.7-88.

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',i 15 ultimate waste disposal in the context of the public health and safety stanclai*cl of the Atomic TGnergy Act. The Appeal Board did not deem these concerns irrelevant, but it held that an analysis was required only where it was "reasonably probable" thut solutions would not be reached. 'I'hc question is whether there has been an NRC disposition in generic proceedings that is adequate to dispose of the objections to the licensing amendments.

Intervenors rely on NRDC v. NRG, 582 F'.2cl lGG (2d Cir. 1978), The Second Circuit found that Congress was well informed that disposal solutions 'vere not ctir-rcntly feasible,

~1 et it permitted continued licensing of nuclear plants. \\V c clo not read that opinion, however, to hold as a matter of law that storage and disposal concerns arc never relevant to the licensing of nucleai*

plants. Rather, as the NRC itself recognized, Congress has chosen to rely on the *NRC's (and its predecessor's) assurances of confidence that u solution will be reached.

See 42 Fed. Reg. at 34,392. There is no implication that Congress intended that the NRC ignore new knowledge or analysis in its licensing decisions. As the Supreme Court implicitly recognized by i*emancling for a review of the sufficiency of the S-3 evidence in Vermont Yanlcee, supra, 435 U.S. at 549, this court docs not exceed its judicial province by inquiring into the basis of those assurances of confidence. As Commission counsel rightly notes, it is for the Commission to decide the ultimate question of certainty implicit in health and safety judg-ments and to resolve technical disagreements, but that is not to say that these matters are totally immune from judicial review.

III.

CONCLUSION The court confines its action at this time to rejection of certain contentions by petitioners, notably the claim of need for an adjudicatory proceeding. vVe agree with the Commission that it may proceed in these matters by.

16 generic determinations. rrhe complex and vexing ques-tion of the disposal of nuclear wastes is a matter that is currently before the Commission in a related proceed-ing, and is characterized by continuing evolution of the state of pertinent knowledge. Accordingly we remand the balance of these cases, and issues raised, for further consideration by the Commission with such procedure as it may deem appropriate.10 So ordered.

10 Vermont Yankee Nuclear Power Corp. v, NRDC, 435 U.S.

51G, 543-44 (1978), The Commission mny integrnte tho is.

suss with the pending s.3 proceeding, designate a follow-on genetic. proceeding, or follow such other courses ns it deems appropriate.

1 TAMM, Circuit Jmlge, conct/.?'1'ing: The Nuclear Regu-latory Commission 1 ruled that pri01* to appl'oval of* a license amendment permitting-expansion of a nuclear plant's spent fuel pool capacity, there must be a detern1i-nntion concerning future spent fuel storage. Specific::iJly, there must be a dete1*mination whether it is reasonably probable that an offsite fuel repository will be available when the operating license of the nuclear plant in ques-tion exph*es. *we remand this case to the Commission for appropriate proceedings devoted to determining whether such a reasonable probability exists.

Although I concul' in the court's opinion, I write septl.-

rately to emphasize my belief that section 102 (2) (C) of the National Environmental Policy Act of 1969,2 and sec-tion 103 (cl) of the Atomic Energy Act of 1954,9 mandate the determination that the Commission identified in this case. In addition, if the Commission determines it is not reasonably probable that an offsite. waste disposal solu-tion will be available when the licenses of the plants in question expire, it then must determine whether it is rea-sonably probable that the spent fuel can be sto1*ed safely onsite for an indefinite period. Answers to these inquiric~

are essential for adequate consideration of the safety and environmental standards of the relevant statutes. It is undisputed that questions involving storage and disposal of nuclear waste pose serious concerns for health and the environment. See Ve1*11wnt Yankee Nuclea1* Power Co1'p.

v. NRDC, 435 U.S. 519, 538-39 (1978).

This interpretation of the relevant statutes is con-sistent with the recent decision of the Second Circuit in NRDC v. NRG, 582 F.2cl 1GG (1978). The court of ap*

1 The decision wns rendered by tha Commission's Atomic Snfcty and Licensing Appeal Board.

2 42 U.S.C.' § 4332 (2) (C) {1976).

3 42 u.s.c. § 2133 (d) (1976).

2 peals in that case held that the Commission need not halt licensing of nuclear plants pending a dcterminntion that an approved method of permanent nuclear waste disposal exists. The Second Circuit clccided that congressional intent is satisfied by a reasonable assurance that a safe method for permanent disposal of wastes will be avail-able when needed. See id. at 171-75. Our opinion merely remands this case to the Commission for such proceed-ings as it deems appropriate to determine whether there is reasonable assurance that an offsite storage solution will be available when needed-in this case, by the years 2007-2009.

I*

i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of PUBLIC SERVICE ELECTRIC

& GAS CO.

{Salem Nuclear Generati_ng Station, Unit #1)

CERTIFICATE OF SERVICE Docket No. 50-272 Proposed Issuance of Amendment to Facility Operating License No. DPR-70 I hereby certify that copies of Intervenors, Colemans'" Motion for Reconsideration of Dismissal of Colernans' No. Seven in the above captioned matter have been served upon the* parties to this proceedings by deposit in the United States mail at the post office in Trenton, N.J., with proper postage thereon, this 25th day of June, 1979.

Dated:

June 25, 1979