ML19206A276
| ML19206A276 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/08/1978 |
| From: | Fahy, Mackinnon, Mcgowan U.S. COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT |
| To: | |
| Shared Package | |
| ML19206A274 | List: |
| References | |
| 78-1160, NUDOCS 7904190016 | |
| Download: ML19206A276 (7) | |
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-e-FOR TH E Ot S T Rf CT O F COLU?
- Ul t-COJIT No. 7s-1160
. September Term,1977 Chauncey Kepford, Ungd ~on.y Nu,a o r, p,y -
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Petitioner
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V.
United States Nuclear Regulatory Commission and United States of
- America, Respondents Metropolitan Edison Co.,
et al.,
Intervenors EEFORE:
Fahy, Senior Circuit Judge: McGowan and MacKinnon, Circuit Judges 780419ooIL S2-120
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This matter came on to be heard on petitioner's motion st led as a recuest for "immediate emergency injunctive relief to be followed by a more permanent interlocutory injunctive relief," the oppositions thereto of the Nuclear Regulatory Commission and the intervencr-respondents, and the oral argu-ments of the earties.
At issue is an operating license for a second nuclear ower plant to ccmplement a presently operating nuclear power plant that was previously licensed.
The license for the secor plant was issued by the Commission in accordance with a deci-~
sion of the Atomic Safety and Licensing Board.
That decision is under challenge bv petitioner in an appeal pending before the Atomic Safety and Licensing Appeals Board, and, of course, final action at the administrative level adverse to petitione:
is subject to judicial review.
Thus, what petitioner essen-tially seeks en an emergency basis is a stay of the plant's commencement of operations. new scheduled for March 10, pend-ing final determination of his present and possible future appeals.
Petitioner's principal challenge to the merits of the Licensing Ecard's action derives frca the dangers he believes,
to inhere not in the operation cf the plant itself (which is located in Pennsylvania) but in the seepage of gases from the -
tailings left from the mining and milling cf uranium, which tailings are not at the nuclear pcwer plant site but at the cc -4 o<
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~ mills operated at various unspecified sites in the Western United States.
In particular, pe'_itioner asserts that the environmental impact statement before the Licensing Board inadequately identifies and addresses this asserted danger.
He contends, inter alia, that since a modification was sug-gested after the final EIS was issued, the EIS is insufficient.
That question is a merits issue which may be explored on appellate review within the agency or in the courts.
Mean-while, it is clear, as petitioner forthrightly conceded in response to our queries at oral argument, that the commence-ment of operations at the plant in question will contribute in no way to, nor will enjoining those operations eliminate or re-duce, the alleged danger presently in being by reason of the mine and mill tailings.
Respondents point out that the uraniu; needed to begin operation of the plant is presently installed, and a 3 1/2 year supply of that fuel is on hand.
Petitioner's only contention that the operation of this plant pending appea will increase the existing danger he perceives, consists of an assertion that if the plant were not operated the uranium for it could be transferred to other plants already operative and the total amount of uranium needed to be mined would thereby 'r reduced.
We do not find that argument substantial.
To the extent that there may be deficiencies in the e n..
ronmental impact statement or in -he precedures observed with respect to it, those will be explert d in appellate examinatior-of the merits of the challenge to the license.
No more than
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the Appeals Ecard and the Commission itself, both of which ha.
p.
LJk 'aiO
No. ib-ilsJ denied petitioner's request for a stay, do 'ee think petitioner in the somewhat unusual facts of this case, has made a showing of irreparable injury to himself or anyone else, directly at-tributable to the plant operation sought to be stayed, warrant-ing our issuance of an injunction pending appeal.1/
Wherefore, in view of the foregoing it is hereby v'
ORDERED that petitioner's motion for injunctive re-lief is denied; and, it is FURTHER ORDERED that the temporary stay and clari-fication orders issued by this court on February 23, 1978, having served their limited purpose, are vacated.
Per Curiam Fahy, Senior Circuit Judge, dissenting:
The insuance by the Commission of an operating licerse on February 8,
- 1973, considered rith the earlier decision of the Atomic Safety and Licensing Board, constitutes in my opinion major federal 1/
The situation before us might conceivablv. be analocized te
-those in which courts have reviewed interim authorizations pen ing consideration of possible =cdifications of an environmenta impact statement.
E.g.,
Natural Rescurces Oefense Council z.
United States Nuclear Regulatory Comm'n, 539 F.2d $24 (2d Cir.
1976), cert. cranted, 430 U.S.
944 (1977), vacated fer cossibl mootness, 46 U.S.L.W.
3452 (Jan. 16, 1973).
That is to say, the authorized procedures of the Nuclear Regulacory Commissicr might be said to allow interim operations of plants approved b the Licensing Board pending appellate review both uithin the agency and in the courts of.the suf ficiency of their environ-mental impact statements, as well as of other matters.
Even -
analogized as such, we do not feel that a stay of such an "in-terim" authorization is in order in this case in light of the fact that, as petitioner admitted in cral argument, the harms emanating frca the alleged deficienc; in the environmental im-~
pact statement will not come to pass during the " interim" period.
See Aberdeen & Reckfish R.R.
v.
SCRAP, 422 U.S.
- 2S9, 322-26 (1975), discussed in Natural Rescurces Defense Council, supra, 539 F.2d at 344-45.
U2 '123
!;c. 78-1150 action which must be preceded by a final environmental impact statement.
When this operating license was issued, however, there was pending before the agency a modification of a pre-viously issued environmental impact statement, which I assume was intended to be final at the time of its issuance.
The modification was concerned with the problem of~ human health in the mining and processing of coal and uranium, a subject which the intended final environmental impact statement had mentioned.
Comments were requested respecting the modifica-
- ion and no action has been taken in light of such comments as have been or might be received so that a final environmentz impact statement has not yet been issued.
In this situation I would stay the effectiveness of the operating license of February 8, 1973, or enjoin operation of the plant, pending disposition by the agency of the proceedings still undetermine with respect to the finality of the environmental impact state ment.
See Natural Resources Defense Council, Inc., et al.
v.
U.S.
Nuclear Reculatory Cctmission, et al., 539 F.2d 824, S40-(1976); Scciety for Animal Richts, Inc.
v.
Schlesincer, 163 U.
App.
D.C.
1, 4,
512 F.2d 915, 913 (1975); Sierra Club v.
Callt way, 499 F.2d 982, 994 (5th Cir. 1974); and NR C v.
- Morton, O
GZ-124
Mo. 73-1160 5-337 F.
Supp. 170, 172 (D.D.C.
1972).
If there is, as I think, no final enrironmental impact statement as required by UEFA, the court in my opinion may enjoin operation of the nucicar plant,tithout analyzing the situation under the cri-teria of Vircinia Petroleum Jchbers Ass'n v.
FPC, 259 F.2d 921, 925.
See Jones v.
District of Columbia Land Develop-ment Co.,
499 F.2d 502, 512 (D.C. Cir. 1974).
The agency has conceded the significance of the notification hy request-ing cc=ments with respect to it, thus holding open, as I understand the matter, a final environmental impact state-ment for this plant itself.
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