ML19330A284
| ML19330A284 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/11/1971 |
| From: | Graves H, Lowenstein R CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007151084 | |
| Download: ML19330A284 (44) | |
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CONSUMERS POWER COMPANY ) Docket Nos. 5 -329
) 50-(Midland Plant, Units 1 and 2) )
APPLICANT'S ANSWER TO THE PETITION TO INTERVENE OF THE STATE OF_ KANSAS
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THIS DOCUMENT CONTAINS P00R QUAllTY PAGES LOWENSTEIN AND NEWMAN 1100 Connecticut Ave., N.W.
Washington, D.C. 20036 Attorneys for Applicant Consumers Power Company Of Counsel, Harold P. Graves Robert Lowenstein John K. Restrick Jerome E. Sharfman Richard G. Smith 8007151Oh
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m 3 INDEX ED'll' INTRODUCTION ........................................... 1 ARGUMENT I. KANSAS SHOULD NOT BE PERMITTED TO INTERVENE BECAUSE THE ISSUES RAISED IN ITS PETITION ARE NOT PROPER ISS UES IN THIS CASE . . . . . . . . . . . . . . . . . . . 3 A. The Issue As To The Safety Of Depositing Wastes From The Midland Plant In Lyons, Kansas -
. . . . . 4 B. The Issue As To Whether Any Construction Permit May Be Granted For A Nuclear Power Plant Until A Definite National Plan For The Disposal Of High Level Radioactive Wastes Produced By Nuclear Reactors Has Been Worked Out And All Doubts About It Have Been Resolved . . . . . . 13 l
1 C.. The Other Iryues Raised in the Petition...... 22 II. KANSAS SHOULD NOT BE PERMITTED TO JOIN IN .
THE INTERVENTION OF OTHERS....................... 22 III. KANSAS SHOULD NOT BE ALLOWED TO PARTICIPATE UN DE R S 2 . 715 ( c ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CONCLUSION ............................................. 25 I
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- i UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of )
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CONSUMERS POWER COMPANY ) Docket Nos. 50-329
) 50-330 (Midland Plant, Units 1 and 2) )
APPLICANT'S ANSWER TO THE PETITION TO INTERVENE OF THE STATE OF KANSAS The State of Kansas has filed a " Petition to Intervene, Or in the Alternative to Join Prior Interventions, or in the Alternative Notice of Participation Under 10 C.F.R.
S2.715(c). Applican't Consumers Power Company hereby files its answer in opposition to that petition, pur'suant to 10 CFR S2.714(b).
The petition of the State of Kansas raises not only legitimate concerns about the health and safo.ty of the people of Kan:sas but also very substantial questions of public policy. Applicant's position is not that these questions should be shunted aside or ignored but that this particular proceeding, both as a matter of law and of good judgment, is not the proper ,
vehicle in which to explore them.
Applicant's position deserves particular weight because 1
- Congress has enacted legislation expressly providing that an l
Advisory Council should investigate the matter.of particular
- The State of Kansas has agreed to extend our time to reply to October 11, 1971. (See our letter to the Board of Sept. 27, 1971).
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y concern to Kansas and its people, that the council report to Congress itself and that in no event shall action having a possibly adverse impact on Kansas be taken without Congress having an opportunity to legislate with respect to it.
The petition should also be denied insofar as it urges that the application by Consumers Power Company should not be granted "until such time as the AEC can demonstrate that the high level wastes will be disposed of in a manner assuring the complete protection of the health and safety of the public." Such a contention, which raises questions of national energy policy, should be considered in a general rulemaking or legislative-type proceeding of general applica-bility and not in a specific power reactor licensing case.
Accordingly any attempt by this Board to deal with the matter raised by Kansas would be wholly inappropriate.
This Board cannot lay these problems of concern to Kansas to rest, and intervention by Kansas would only serve to further '
lengthen and complicate an already complex and protracted litigation. Applicant therefore asks that the petition be l denied in all respects.
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l I. KANSAS SHOULD NOT BE PERMITTED TO INTERVENE BECAUSE THE ISSUES RAISED IN ITS PETITION ARE NOT PROPER ISSUES IN THIS CASE. ,
"[0]ne of the most usual procedur al rules is that an intervenor is admitted to the proceeding as it stands, and in respect of the pending issues, but is not permitted to enlarge those issues or compel an alteration of the nature of the proceeding." Vinson v. Washington Gas Light Co., 321 U.S. 489, 498 (1944). Where the sole' purpose of an intervention is to enlarge or alter the issues, it follows that the inter-vention would not be proper. "Thus, an undue broadening of the issues is 'a common ground for denying intervention." 1 DAVIS ADMINISTRATIVE LAW TREATISE 58.11 at 564 (1958).
Though 10 CFR S2.714 (d) permits the Board to enlarge the issues in an order allowing intervention, it would appear that this was contemplated to be the exception and not the rule.
Certainly there is no suggestion that issues not properly within the scope of the proceeding should be added. l l
Applicant will demonstrate that the proposed intervention '
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of Kansas is designed solely to introduce into this proceeding l 1
issues which have not been raised before in this case and are
.not properly before the Board. Applicant submits that the petition should therefore be denied. -
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. /. , .q A. The Issue As To The Safety Of Depositing Wastes From The Midland Plant In Lyons, Kansas The Kansas petition is wholly unrelated to any issue unique to the construction of the Midland plants involved in this proceeding. As appears from that petition, it has been filed only because the AEC is contemplating the use of a salt mine near Lyons, Kansas as a repository for solid radioactive wastes produced by nuclear electric power plants. The Kansas petition states (at p.3) :
"Because it is contemplated by the AEC that the Lyons, Kansas, facility will be the nuclear waste repository for the foreseeable future, wastes inevitably created by the operation of the Consumers Power C.ompany l Midland plants may be unavoidably committed '
1 to transportation and disposa' in Kansas, involving a potential threat to the lives, health, and well being of Kansans."*
This primary concern of Kansas relates to the safety of the proposed Lyons repository. Thus, at p.2 of the petition, it is stated that the Governor of Kansas has expressed concern that the locatton of the re'pository in Kansas "without a complete l l
environmental impact analysis as required by the National Environ- l l
mental Protection [ Sic] Act (NEPA) would be prejudicial to the interests of all Kansans." And the petition goes on to say that
- The petition, in the preceding sentence, made the following quotation from the AEC's NEPA statement on the project: "' ...it is anticipated that this facility will ultimately be designated ,
as the federal waste repository,....' (page 2) (emphasis supplied)"
The entire sentence, at p.2 of the Environmental Statement reads:
"Although it is anticipated that this facility will ultimately .
be designated as the Federal Waste Repository, it will be initially operated as a demonstration facility. "
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- "the Attorney General's intervention in the instant matter j is aopropriate for the protection of Kansas citizens from the potential dangers of the proposed waste repository project."
We earnestly submit that the issue of whether a radioactive waste repository in Lyons, Kansas would be safe or not, or whether its benefits would outweigh its dangers, is not a proper issue in this case, for two reasons.
The first is that Congress has created ' other, more appro-priate forums and procedures for the resolution of that issue i
than a grab bag of reactor licensing cases in which it would be , at best, tangential.
Under S102(2) (C) of NEPA, the AEC is obligated to obtain the comments of other Faderal, state and local agencies
- and to write a detailed statement on the environmental impact-i of such a repository. It has followed this procedure with respect to the Lyons repository. A final detailed statement was issued in June of this year and a supplement to it was
- issued in July of this year. As is evident from both the Appendix and the Supplement to the Detailed Statement, the 7
officials and elected representatives of Kansas made their views and concerns known to tJ.e'AEC.
! Moreover, in response to the understandable fears expressed
- by Kansans and their representatives, Congress adopted a rider to the recent AEC Authorization Bill for Fiscal 1972 (Public Law 92-84) dealing specifically with this problem.
L See 1971 U.S. Code Cong. & Ad. News, Vol. 7 at pp. 1651-52.
This rider stated:-
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" Project 72-3-b, national radioactive easte repository, Lyons , Kansas , $3,500,000: Provided that--
(A) Except as provided in subparagraph (E) ,
no funds shall be obligated or expended (i) for the acquisition of a fee simple interest in land or for the acquisition of any other interest in land which exceeds three years from the date of enactment of this Act, or (ii) for or in connection with the burial of radioactive materials at the proposed site other than for experimental purposes, including demonstrations, and then only when and if such materials are fully retrievable throughout such three year period.
(B) The President of the United States shall appoint an advisory council which shall be composed of nine members at least three of whom shall be from Kansas. The advisory council may report to the Congress from time to time.
(C) The Atomic Energy Commission (acting directly or by contract) shall conduct labora-tory ant other tests and research (whether onsite or elsewhere) relating to the safety of the project, the protection of public health, '
and the preservation of the quality of the environment before any high level radioactive waste material is placed in salt mines at the proposed site except as provided in subparagraph (A).
(D) No high level radioactive materials shall be buried or used, other than as provided by clause (ii) of subparagraph (A), at the proposed site until the advisory council reports to the Congress that construction and operation of such project and the transportation of waste materials to the project can be carried out in a manner which assures the safety of the project, the protection of public health, and the preservation of the quality of the environ-ment of the region.
(E) The limitations provided by subparagraph (A) shall not apply after the expiration of sixty calendar days of continuous session of the Congress after the date on which the' advisory council submits its report under subparagraph (D).
For purposes of the preceding centence, continuity of session is broken only by an adjournment of Congress sins die, and the days on which either House is not in session because of an adjourn-ment of more than three days to a day certain are excluded in the computation of the sixty day period."
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Thus, Congress has created a special advisory council to decide on the safety, health and environmental consequences of the proposed Lyons repository. Moreover, paragraph E of the rider, as well as the fact that the advisory council must report to Congress, contemplate a final decision by Congress after the report of the advisory council comes in. Thus, it would be presumptuous for an Atomic Safety & Licensing Board to try to decide whether or not there shouldbe a repository at Lyons.
Moreover, even if Congress did not act and Kansas was not satisfied with a favorable report from the advisory council or the AEC proceeded with the project despite an adverse report from the advisory council, a Federal District Court wou'l still have jurisdiction to review the adequacy of the AEC's attempted compliance with NEPA while entertaining an action -
by Kansas to enjoin the AEC from beginning work on the project.
See Committee for Nuclear Responsibility v. Seaborg, unpublished, !
No. 71-1732 (D.C. Cir. Oct. 5, 1971) (Held: District Court !
i should have granted full hearing on action to enjoin AEC from conducting an underground nuclear test in Alaska for failure to adequately comply with NEPA) *; temporary injuiction against further construction of the Tennessee-Tombigbee Waterway in Mississippi reported in the Washington Post, September 22, 1971, p.1 col. 3
-(D.D.C. ) ; EDF v. Hardin, 1 ELR 20207, 20209 (D.D.C. April 14, 1971)
(held: court had jurisdiction to review decision by Secretary of Agriculture to proceed with a program involving aerial spraying of the pesticide Mirex) ;
- A copy of this opinion is enclosed.
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'l Q-Sierra Club v. Hardin, 1 ELR 20161, 20166 (D. Alaska March 25, 1971) (held: Court had jurisdiction to review sale of timber and land and grant of a pulp mill - sawmill construction permit in a national forest for compliance with NEPA although injunction was refused, partly due -to failure to exhaust administrative remedies) ; EDF v. Corps of Engineers , 2 ERC 1260 (E.D. Ark.
Feb. 19, 1971) (he ld: jurisdiction exists to' enjoin construction of a dam and reservoir pending compliance with NEPA) ; Sierra Club v. Lyird, 1 ELR 20085 (D. Aug. 1970) (Corps of Engineers enjoined from doing channel clearing work on Gila River because NEPA hadn't been complied with) ; Wilderness Society v. Hickel, 1 ELR 20042, 20043 (D.D.C. 1970) (Secretary of Interior enjoined i
from issuing permit for construction of Trans-Alaska Pipe Line .
for faj ' dre to comply with NEPA) ; Pennsylvania Environmental Council v. Bartlett, 315 F. Supp. 238, 245-46 (M.D. Pa. 1970)
(held: there is jurisdiction to review compliance with NEPA in action to enjoin a road building project) . And a court action of that type would focus exclusively on the Lyons repository and its environmental implications, unclouded by
, all of the peculiarly local and unrelated factors which enter into a licensing decision for a particular nuclear power plant.
In sum, Congress has created other forums, both ample and more suitable, for the resolution of the issues with respect
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to the Lyons repository than this case. Indeed, one would have to conclude from all of the foregoing that it was Congress' intent that the matter should be resolved elsewhere, perhaps ultimately by Congress itself.
The second reason.why the health risks, safety and environmental impact of the Lyons repository are not proper issues in this case is that it is too uncertain that radio-active wastes from the Midland plant will ever be deposited in Lyons or that tests will not have demonstrated the safety of the project to Kansas' satisfaction prior to the time that the repository becomes operational. The impact on Kansas of a nuclear plant in Midland is both contingent and remote.
For one thing, the AEC itself has not ma'de a decision to .
use the Lyons site ac a radwaste repository. Thus, in a letter to Governor Docking of Kansas dated June 4, 1971 from John A.
Erlewine, Assistant General Manager for Operations of the AEC, on the first page of the Appendix to the Environmental State-ment on Lyons, Mr. Erlewine stated:
"We share your concern that the future of Kansas be protected and we assure you that the necessary studies and investigations will be conducted and a final determination of the site suitability made prior to the permanent emplacement of any wastes in the Lyons facility."
- Committee for Nuclear Responsibility v. Seabore , supra, held that a Congressional appropriation for an atomic test did not constitute, by implication, a pro tanto repeal of NEPA. Our posi-tion here is not that the 1972 AEC authorization bill made NEPA inapplicable to the Lyons repository project but that it also provided procedures supplementary to NEPA for resolving the issues with respect to that project. As we have said, we think compliance with NEPA on Lyons is still necessary and subject to judicial review.
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Moreover, the Commission last month decided, because of the identification of certain potential problems with I respect to the Lyons site, to hold in abeyance the leasing of !
I land and plugging of holes at Lyons and to conduct a " literature I study" on possible alternative sites. See letter of Sept. 30, l 1971 from John A. Erlewine to Edward J. Bauser, Executive '
Director of the Joint Committee on Atomic Energy, Atomic Energy clearing House, Oct. 4, 1971 at pp. 3-4. (The full excerpt from the letter reprinted there is annexed hereto as Appendix A).
Although the study is designed to find alternative sites in Kansas, the fact that even the AEC sees possibly insuperables problems connected with the Lyons repository shows how uncertain it is that the project or one similar to it in Kansas will ever by carried out.
If there were any doubt about the AEC's intentions, however, there can be no doubt about those of Congress. The rider to the Authorization Bill makes it clear that Congress is still a long way from deciding whether the Lyons project should be carried to completion and suggests that Congress may well want to make the ultimate determination itself. In the recent debate on the Public Works and AEC Appropriations bill, Congressman Rhodes of Arizona, a member of the conference committee, stated, in response to questioning from Congressman Skubitz of Kansas (117 CONG. REC. H8634 (Sept. 22, 1971)):
"I certainly am sure that the rest of the committee will agree with me when I say that
! it was our intent for.the Atomic Energy Commis-sion to spend only so much money as is necessary to acquire rights to the surface and rights to drill under the surface to determine
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what the underpinnings of the carth are in that particular point, so that facts can be found
' which would either indicate safety or lack of safety. We do not intend for the Atomic Energy Commission to take any steps whatsoever which
, are not necessary for this particular purpose.
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The gentleman from' Kansas, I hope, understands that the ' subcommittee, and the full Committee :
on Appropriations share the desire expressed by '
the. gentleman and by other responsible officials in the State of Kansas to make absolutely certain ,
that the project is completely safe'before there
, is any thought of proceeding with it."
And the Joint Committee on Atomic Energy, in a report recommending an authorization for the project without the restrictive rider sub-sequently attached, stated, "that if th.e research and demonstration program at the salt mine in Kansas does not meet reasonable standards before commercial operations begin, the project will be cancelled and appropriate' steps will be taken to safely terminate any activities undertaken prior to that. decision."
S. REP. NO.29-249, 92d Cong., 1st sess. 62 (July 8, 1971) .
2 Of course, even if the site is approved by the AEC, the I
advisory council and Congress, and the disapproval of any one 1
of them-would probably be fatal to the project, a reviewing court may still decide that NEPA has not been properly complied {
with. See authorities cited at p. 6-7, supra.
Even the first unit of the Midland plant will probably not be in operation before 1977 . There will not be any spent fuel
.sent-from it to a reprocessing plant until a year and a half after operations start and the separation of high level radioactive waste from that fuel will probably take an additional half- year. _
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Puragraph 2 of Appendix F to 10 CFR Part 50 provides that solid high level radioactive wastes may be stored at the reprocessing plant for up to ten years. Thus,,it will be over eighteen years before any high level radioactive waste from the Midland plant will have to be buried at a repository.
By that time, either all doubts about the safety of the Lyons repository will have been removed by research and
. testing or some alternative repository will have been established.
It can be seen then, that any' injury to Kansas from radioactive wastes produced by the Mi'dland plant is highly conjectural. The law on standing to sue in the Federal courts, although not strictly applicable to standing to litigate before Federal administrative agencies, has become so liberal in recent vears that it should provide some guidance to rules of standing before such agencies. One of the two requirements for standing to sue in a Federal court is an allegation by the plaintiff "that the challenged action ,
has caused him injury in fact, economic or otherwise".
Association of Data Processing Service Organizations v.* Camp, 397 U.S. 150, 152 (1970). Kansas cannot now claim, with any degree of assurance, that construction of the Midland plant will cause it any sort of injury in the future.
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B. The Issue As To Whether Any Construction Permit May Be Granted For A Nuclear Powcr Plant Until A Definite National Plan For the Disposal Of High Level Radioactive Wastes Produced By Nuclear Reactors Has Been Worked Out And All Doubts About It Have Been Resolved.
The Kansas petition states (p.4) : "The Attorney General contends that no operating license may lawfully be granted to the Consumers plant until such time as the AEC can demonstrate that the high level wastes will be disposed of in a manner assuring the complete protection of the public health and safety."
This proceeding involves an application for a construction permit, not an operating license. We will assume, therefore, that the issue Kansas intended to pose was whether a construction permit should be granted before a definite plan for disposing of the high level wastes from the plant can be demonstrated. '
to be completely adequate. '
This issue is no different for the Midland plant than for any other plant. It really is a question of whether the entire power plant licensing program should come to a complete halt until such time as all questions relating to the problem of ,
disposal of high level wastes are definitively resolved. This is a national policy question of the first order.
The Commission has heretofore chosen to deal with the general policy questions involved in disposal of high level radioactive wastes by rulemaking rather than by adjudication. See Appendix F to 10 CFR Part 50 and the Statement of Considerations accompanying its issuance - Siting of Fuel Reprocessing Plants and Related
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. : Waste Management Facilities, 35 Fed. Reg. 17530 (1970), a copy of which are annexed hereto as Appendix B. It has long been held that "the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency."
(SEC v. C,henery Corp. , 332 U.S. 194, 203 (1946); accord Alabama-Tennessee Natural Gas Co. v. FPC, 359 F.2d 318, 343 (5th Cir. ) ,
cert. denied, 385 U.S. 847 (1966); Regular Common Carrier Conference v. United States, 307 F. Supp. 941, 943 (D.D.C.
1969) (three-judge court) ; see American Airlines v. CAB, 123 App. D.C. 310, 359 F.2d 624 (en banc), cert. denied, 385 U.S.
843 (1966). Thus, even a court would "have to respect the Commission's decision to treat the high level radioactive waste disposal problem by rulemaking rather than adjudication. '
Certainly, this Board, which is clearly subject to the Commission's rulemaking power, should do so.
Moreover, there are good reasons supporting the Commission 's decision to treat a problem such as this by rulemaking rather than adjudication. As Judge Friendly stated in WBEN, Inc. v.
United States; 396 F.2d 601, 618 (2d Cir.), cert. denied, 393 U.S. 914 (1968). .
" Adjudicatory hearings serve an important function when the agency bases its decision on the peculiar situation of individual parties who know more ,
about this than anyone elee. But when, as here, a new policy is based upon the general characteristics i of an industry, rational decision is not furthered l by requiring the agency to lose itself in an excur-l sion into detail that too often obscures fundamental '
issues rather than clarifies them." J
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3 Indeed, in the Alabama-Tennessee case, supra, at 341, the Court of Appeals characterized the action of the Federal Power Commission deciding an important, industry-wide issue relating to the use of liberalized depreciation by natural gas companies 1 in the context of a specific rate increase proceeding as "singulary eccentric". Despite this reservation, the Court felt compelled by the Chenery rule to, respect the agency's choice of procedures. However, unlike the instant j
case, Alabama-Tennessee did not involve a situation in which l Congress had created a special body to deal with an important aspect of the general problem of high level radioactive waste.
Thus, there is even more reason here for the Board to permit this quasi-legislative problem to be handled either t
by Commission rulemaking or by Congressional enactment or by a combination of both.
Two recent decisions of the U.S. Court of Appeals for the
, D.C. Circuit are directly in point.
In Hale v. FCC, 425 F.2d 556 (D.C. Cir. 1970), the appellants had protested renewal of a radio station license in Salt Lake City, alleging, inter alia, that the station was owned by a subsidiary of the Mormon Church which also is the ultimate owner of other TV and radio stations, a university and two daily newspapers in the Salt Lake City area. Th appellants alleged that "it is unwise for newspapers to be under common ownership with radio and television interests, and for both to be part of a broader business conbine." The FCC denied the
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- 7 9 requests for a hearing on the ground that there were no sub-stantial quest. ions of fact and granted the renewal. The Court of Appeals affirmed. In dealing with the question of concentration of ownership of the mass media which had been raised by appellants, it stated (id. at 560) :
" Appellants essentially argue that the fact of the concentration, without further showing,
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is enough to require a hearing to. determine whether the license renewal would serve the public interest. This is in reality a challenge to the wisdom of the Commission's existing multiple ownership rules, which have allowed the granting of licenses to conglomerate structures of the kind involved here. Thus it is that, in the context of this particular renewal proceeding, appellants seek a hearing to effectuate an overhaul of the Commission's general policy that multiple ownership and resulting concentration 4
are not per se against the public interest. The Commission has, however, embarked upon rulemaking in this very area of multiple ownership of AM, ,
FM, and TV operations, 33 Fed. Reg. 5315; and it has initiated investigations into conglomerate ownership. Dismissing informal renewal protests very similar to those made by appellants, the Commission had this to say:
We believe that, in view of this showing, there is no basis for ad hoc action against the licensee on grounds of undue concentra-tion of control of media of mass communica-tions. Rather, any actions in this area as i to a licensee such as this would be appro-priate only in the context of overall rule-making proceedings. In this connection we point out the outstanding inquiry on 3
conglomerate ownership and the specific rule-making proceeding, FCC Docket No. 18110.
There is a rational foundation for the. commission's position that a basic change in policy such as appellants here seek is better and more fairly examined and considered in rule-making proceedings, where the inquiry can be thorough and where all interested parties can participate. Appellar. :s ' ,
protests seem to us to assert that undue concentration of. communications media has a tendency towards l
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adverse impact on the public interest which warrants a policy of aat prohibition without reference to whether there are incidental injuries in fact. But this is the very question which the Commission is presently pursuing in actual rule-making and in investigations looking toward rule-making. That pursuit may be more effectively and properly carried on there than by setting this renewal application down for hearing with a view to a change in policy with respect to this particular applicant." (Footnote omitted) .
In Martin-Trigona v. FPC, 432 F.2d 682- (D.C. Cir. 1970), the petitioner had asked the FCC to revoke the licenses of three television stations in New York City, raising questions about the wisdom of the ownership of broadcast licenses by the networks.
He argued that networks are conglomerates and therefore have conflicts of interest, that the network structure lends itself to conflict with antitrust policies and creates undesirable concentrations of power. Although not specifically challenging the program content of the stations in question he asserted that the networks are guilty of excess commercialism and undue I
sensitivity to the interests of advertisers and that network programs are therefore cautious and dull. The FCC dismissed the petitions on the ground that the allegations failed to '
show the kind of interest which would give plaintiff standing to oppose the renewal. The Court of Appeals affirmed, stating (id. at 683) :
"Much is made by petitioner here of our decision in Office of Communications of United Church of Christ v. FCC, 123 U.S. App.
D.C. 328, 359 F.2d 994 (1966). We, however, see little or no relationship between him and I
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3 y the complainants in that case, who were ob-jecting on specific grounds to the license renewal of the key station in their viewing area. Petitioner, in contrast, raises broad policy questions, and doubtless important ones, about the broadcasting structure as a whole.
Those questions are in important respects identical with the issues which we recently said are more appropriate for exploration and resolution in. rule making than in adjudication.
Hale v. FCC, 138 U.S. App. D.C. 125, 425, F.2d 556 (1970). As we said there, the ' policy ques tions [ raised] are applicable to the communications industry as a whole, and are not peculiar to one unit of it. '
The network intervenors have suggested that, while petitioner may well be regarded as having standing to petition the Commission to initiate rule making and, in appropriate circumstances, to secure judicial review of the denial of such a petition, he is without standing to complain of these license renewals. Whether the matter is best approached analytically in traditional standin'g terms seems to us questionable. In any event, the particular verbal formulation is not of critical significance in this instance to our decision to leave the Commission's disposition -
undisturbed. The issues which petitioner sought to raise do not have such relevance to the ,
individual station license renewals as would necessitate their pursuit by the Commission in the renewal proceedings." (Footnote omitted) .
The same sort of broad policy issues are raised in the petition at issue here. Kansas' position, if adopted, would ,
stop the entire nuclear power plant licensing program. Thus far, it has chosen to seek intervention in the Vermont Yankee case and in this one. It could seek to intervene in any
- It has been permitted to participate in Vermont Yankee under has not10 yetCFR beenS2.715 (c) , although the scope of its participation determined. See tr. of August 10, 1971 at pp. 395-425.
. . s q other pending case on the same theory and with the same sort of interest. " Flexibility in agency proceedings is imperative so that an agency may carry out its policies in the most intelligent, expeditious and efficient manner possible, con-sistent with the requirements of due process." Regular Common Carrier Conference v. United States, 307 F. Supp. 941, 944 (D.D.C. 1969). Obviously it is neither efficient nor expedient to have this issue determined by different Atomic Safety &
Licensing Boards in particular power plant licensing cases.
It is a matter for the entire Commission to dec'ide in a rule-making proceeding in which any interested party or member of ~
the public can participate. Besides, the question of whether to put a moratorium on the issuance of nuclear power plant licenses until the waste disposal issue is completely resolved is not a question of fact but a policy question which goes far beyond ,
i the interests of Kansas and of the parties to this case; it is 1 1
therefore not well suited for resolution by a trial type of :
hearing in this proceeding. See K. DAVIS, ADMINISTRATIVE LAW TREATISE 57.02 at 413-14 (1958). For these reasons, we submit i that Kansas' only proper remedy on this broad question is to petition the Commission under 5 U.S.C. 5553 (e) to modify or repeal ;
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its Appendix F to Part 50 and the statement of considerations '
with it (Appendix B hereto) or to substitute a. rule stopping all reactor licensing until final resolution of the high level waste disposal problem.
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Dealing with the issue by rulemaking does not mean that NEPA could or would be ignored. But there is nothing in NEPA which requires an agency to deal with a broad issue of policy in separate adjudicatory proceedings (involving the safety of different. facilities) rather than in rulemaking.
Moreover, Mr. Roisman's argument in Vermont Yankee (August 10, 1971 tr. at 402) that the part'of the D.C. Circuit's Calvert Cliffs decision dealing with water quality requires that Kansas be allowed to intervene in any reactor licensing case is not well taken. In the old Appendix D to 10 CFR Part 50 invalidated in Calvert Cliffs, the AEC tried to rule out any NEPA evaluation of water pollution to be caused by a given plant where a water quality certificate had been obtained under the Water Quality Improvement Act. Our position here' is not that there should be no NEPA review at all of the broad issue raised by Kansas but that it should be done in one rulemaking proceeding rather than in multiple, adjudicatory, reactor-licensing proceedings.
Finally, it should be remembered that Congress, in considering the AEC authorization and appropriations bills for fiscal 1972, gave extensive consideration to the problens posed by the Lyons repository. See Hearings on AEC Authorizing Legislation for 1972 Before the Joint Committee on Atomic Energy,
- As we have pointed out, there has already been a NEPA review of the Lyons project itself.
9
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92nd Cong., 1st Sess., Part 3, pp. 1307-1586 and related
^
Appendices 1908-2235 and Part 4, 2473-2478 (1971) ; 117 CONG. REC.
H1049 (Mar.1,1971) ; H1678 (March 17,1971) ; S3416 (Mar. 19, 1971) ;
- H1797 (Mar. 22, 1971) ; E2420 (Mar. 29, 1971); H3244 (Apr. 29, 1971) ; H6321 (May 6,1971) ; H3937 (May 13, 1971); H4733 (Jun. 4, 1971); H5043 (Jun. 10, 1971); H5157 (Jun. 14, 1971); H5722 (Jun. 22, 1971); H5845 (Jun. 23, 19 71) ; S9852 (Jun. 24,1971) ; H5901 (Jun. 24, 1971); S10,639 (July 8,1971) ; H6738 (July 14,1971) ;
H6760 (July 15,1971) ; H6762-6801 (July' 15,1971) ; E7716 (July 15, 1971); Sll,502-ll,565 (July 20, 1971) ; H6921 (July 20,1971) ;
H7046 (July' 21,1971) ; H7131 (July 26, 1971); H7189 (July 27,1971) ;
E8456 (July 28, ' 1971) ; S12,695 (July 31,1971); H7826 (Aug. 3, 1971) ; H8131 (Aug. 5, 1971) ; H8634 (Sept. 22, 1971) ; (All daily ed.). Significantly, it was never suggested by anyone',
in the course of the hearings or debates, that the entire power plant licensing program be held up until all doubts could be resolved about the safety of the Lyons repository or some other type of waste repository. The fact that Congress handled the problem by setting up an advisory council to report on the ,
Lyons project and by narrowly restricting what can be done at Lyons pending submission of the council's report is an indication that it did not favor the kind of drastic acfac.ach suggested by Kansas here. ,
eg S C. The Other Issues Raised in the Petition Kansas raises other issues (petition, pp. 3-5) which it says are already in the case. As to these, Kansas obviously either has no interest in them (compliance with the Clean Air Amendments, for example) or its only interest stems from :
its interest in the Lyons repository which,' as we have shown, is not cognizable here. They therefore do not constitute a proper basis for permitting intervention.
II. KANSAS SHOULD NOT BE PERMITTED TO JOIN IN THE INTERVENTION OF OTHERS.
Kansas asks that, if its motion to intervene is denied, it be permitted to join in the intervention of the Saginaw intervenors. The Staff seems willing to go along with this, with certain reservations and conditions, despite the fact that it does "not concede that Kansas is entitled to parti-cipate in this proceeding in its own right." (Staff's answer
- p. 2) . We strongly object to it.
We frankly do not understand how Kansas can be allowed to " join" in the intervention of others if it is not entitled 10 CFR to participate in the proceeding in its own right.
S2.714 only speaks of one kind of intervention. We fail to see what could be meant by " joining" in the Saginaw intervention or how joining in the intervention of others is significantly different from intervening independently. Id would mean that I i
Kansas, as a party intervenor, could assert the issues raised in its petition not only before this Board but before the Appeal Board and the Courts. If we are right in our argument
s - -
that it has no business as a party in this case, then it should not be permitted to intervene in any way, shape or form.
The Staff ( Answer, p.2) further states that it does not
" concede that all of the issues as to which Kansas has indicated concern are within the scope of this proceeding" and mentions certain issues, among them " ultimate disposal of high-level wastes resulting from reprocessing", which it contends "are outside the scope of this proceeding."
4 The Staff has, moreover, made it perfectly clear that ,
l the only issues of real concern to Kansas are, in its view, beyond the scope of this proceeding. ,
In a. letter to the members of this Board dated October 8, 1971, counsel for the I
1 AEC Regulatory Staff has stated: ,
" ~
...we note our disagreement with the inter-venors' apparent view that the environmental evaluations to be performed in this proceeding l must cover the entire nuclear fuel cycle. !
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"...We will not consider, will not require the j applicant to address himself to, and oppose evidentiary consideration in the public hearing of, the effects of mining, milling, feed material preparation, fuel enrichment, fuel fabrication, -
fuel reprocessing or the subsequent interim storage, solidification, transportation, and .
ultimate disposal (long term storage) of high level wastes which result from reprocessing.
We do not believe that consideration of these matters at this time and in this proceeding is required by the National Environmental Policy Act, the Calvert Clif fs ' decision, or the Commission's rules and regulations, including 10 CFR Part 50, Appendix D." i 1
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- 24 In these circumstances it makes no sense to allow Kansas in at all, for, as we stated in Part IC, supra, the other issues raised by Kansas are ones in which they have no real interest which would constitute a proper basis for permitting their
- interver. on.
III.
KANSAS SHOULD NOT BE ALLOWED TO PARTICIPATE .UNDER S2. 715 (c) .
The Kansas petition (Point V at p.6) s'tates :
"Should the petition to intervene or request to join in pending intervention be declined, the Attorney General hereby serves notice of his intention to participate through his repre-sentative in any and all proceedings on the matter under 10 C.F.R. S 2. 715 (c) . "
Ordinarily, we would not deem it necessary to reply to such an expression of intention but would reserve ouf objections until such time as Kansas actually attempted to participate in this proceeding. However, as Kansas seems to treat its
, proposed S2. 715 (c) participation as an alternative way of doing what it would like to do by an intervention' and as the Vermont Yankee Board ruled on Kansas' rights under S2.715(c) in the context of deciding whether it should be allowed to e i
intervene, we deem it advisable to make our objection to .ich participation now.
- 52. 715 (c) provides:
"The presiding officer will afford a repre-sentative of an intresed State which is not a party a reasonable opportunity to participate and to introduce evidence, interrogate witnesses,
. 1
O and advise the Commission without requiring the representative to take a position with respect to the issues." (emphasis added).
This regulation is designed to implement the second part of S274(1) c f t ne Atomic Energy Act. Section 274 (1) provides:
"With respect to e sch application for Commis-sion license authorizing an activity as to which the Commission's authority is continued pursuant to subsection c. , the Commission shall give prompt notice to the State or States in which the activity will be conducted of the filing of the license application; and shall afford reasonable opportunity for State representatives to offer evidence, inter-rugate witnesses, and advise the Commission as to the application without requiring such representa-tives to take a position for or against the granting of the application."
As S274 (1) deals with the rights of " States in which the activity will be conducted", S 2. 715 (c) must also be dealing with the rights of such states. As Kansas is not a state in which th'e !
l activity authorized by the construction permit applied for l here will be conducted, it has no rights under 52.715 (c) . )
i l
Moreover, S2.715(c) only affords rights to "an interested !
l State". For the reasons stated in parts IA and B of this Answer, Kansas has no cognizable interest in this proceeding. ,
CONCLUSION For all the foregoing reasons, the petition of the State of Kanaas should be denied. However, it should be made clear that this is without prejudice to the right of.K.ansas to challenge the selection of Lyons as a waste repository in any other forum in which that issue is an appropriate one and without prejudice l
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~26-to the right of Kansas to petition the Commission for rulemaking with the object of putting a m o ratorium on nuclear power plant licensing until a definitive satisfactory plan has been adopted for the ultimate disposal of high level radioactive wastes.
As we have argued, it makes no sense to let Kansas into this case if the issues dis-ussded in Parts IA and IB of this Answer are not properly within the scope of this proceeding.
However, if the Board should nevertheless permit Kansas to participate on other issues, it should clearly rule out the raising of the issues discussed in Part IA and IB of this Answer.
Dated: October 11, 1971 Respectfully submitted, LOWENSTEIN AND NEWMAN ,
1100 Conn. Ave., N.W.
Washington, D.C. 20036 .
Attorneys for Applicant Consumers Power Company Of Counsel, Harold P. Graves Robert Lowenstein '
l John K. Restrick f Jerome E. Sharfman . !
Richard G. Smith 1 i
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of )
)
CONSUMERS POWER COMPAhl ) Docket Nos. 50-329
) 50-330 (Midland Plant, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of the "Applic' ant's Answer to the Petition To Intervene Of the State Of Kansas", dated Jctober 11, 1971, in the above-captioned matter has been served on the following in person or by deposit in the United States mail, first class or airmail, this lith day of October, 1971.
Arthur W. Murphy, Esq., Chairman Thomas F. Englehardt, Esq.
Atomic Safety and Licensing Board U.S. Atomic Energy Commission Columbia University School of Law Washington, D.C. 20545 Box 38, 435 West ll6th Street -
New York, New York 10027 Milton R. Wessel, Esq.
Kaye, Scholer, Fierman, Hays Dr. Clark Goodman and Handler Professor of Physics 425 Park Avenue ,
University of Houston New York, New York 10022 3801 Cullen Boulevard Houston, Texas 77004 James N. O'Connor, Esq.
The Dow Chemical Company Dr. David B. Hall 2030 Dow Center Los Alamos Scientific Laboratory Midland, Michigan 48640 P.O. Box 1663 ,
Los Alamos, New Mexico 87544 Myron M. Cherry, Esq. I 109 N. Dearborn Street l William J. Ginster, Esq. Suite 1005 l Chicago, Ill. 60602 Suite 4 ,
Merrill Building Saginaw, Michigan 48640 Algie A. Wells', Esq.
Atomic Safety and Licensing James A. Kendall, Esq. Board Panel 135 N. Saginaw Road U.S. Atomic Energy Commission Midland, Michigan 48640 Washington, D.C. 20545 Anthony Z. Roisman, Esq. Irving Like, Esq.
Berlin, Roisman and Kessler 200 West Main Street 1910 N Street, N.W. Babylon, New York 11702 Washington' D.C.
, 20036 l
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Stanley T. Robinson, Esq. Edward G. Collister, Jr., Esq.
Chief, Public Proceedings Branch Assistant Attorney General Office of the Secretary of the Office of the Attorney General Commission State Capitol Building U.S. Atomic Energy Commission Topeka, Kansas 66612 Washington, D.C. 20545 William H. Ward, Esq.
Vern Miller, Esq. Assistant Attorney General Attorney General of Kansas Office of the Attorney General
' Office of the Attorney General State Capitol Building State Capitol Building Topeka, Kansas 66612 Topeka, Kansas 66612
- x. oN'd__, &** Yuc/lk f2 .
Anthony / J '. .Gambardella, Jr.
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, APPENDIX A "This letter is to confirm discussions held on September 2h,1971, with you and Mr. Shwiller by Dr.Pittman and R . Donoghue- of the Atomic Energy Commission's Division of Waste Management end Transportatien regarding a literature study which we plan to make on possible alternative sites in Kansas for the National Radioactive Waste Repository. !
"The Commission decision to make this study arose as a result of certain additional information, given in more detail in the enclosure hereto, which has recently corre to light concerning: (1) operations of the American Salt Company mine near the Lyons site; and (2) problems of plugging of- the numerous deep oil and gas wells located on or imediately adjacent.to the Lyons site.
"In each instance, the neu information raises questions concerning our ability to escure that water will not be introduced into the bedded salt formation at the reposi-tory site. Since absence of water is a key factor in the long range safety of the use of the bedded salt as a storage repository for radioactive waste, the Commission feels that its only prudent course of action, pending a more detailed and extensive evalua-tion of the new information is to make a literature search to identify other potential I repository sites in the Kansas salt bed fomation. We would stress that the Comis-sien has not made a finding that the Lyons site is unacceptable or that any other more neceptable site can be found. Our objective is to assure that, should our future svaluation indicate that Lyons is not safe and acceptable by reason of unresolvable problems raised by American Salt Company operation or by the existence of oil and gas well penetrations which cannot be satisfactorily sealed, continuity of this very important effort will not be compromised.
"We have, therefore, instructe~d the Oak Ridge National Laboratory to enter into a ,
contract with the Kansas Geological Survey, as the group having the most knowledge and I greatest degree of expertise on the situation in the State of Kansas, in cooperation with Dr. Robert Walters, an ORNL consultant from the Kansas area, to undertake a literature survey of various potential locations in Kansas where' salt bed thickness and ;
l depth, the overlying and underlying formations, and other geologic and hydrologic factors '
cre similar to those at Lyons. As a part of this overall ' study, the KGS will work with the AEC and ORNL in the development of detailed critei'ia which could be used for specific site selection should this be necessary. The study. uill be complete by November 1,1971, and the final report will be available by December 1,1971.
i "Pending further evaluation of the ' hole plugging' problem and further discussions with the American Salt Company management to lead to a better understanding and evalua-tion of potenti'al problems raised by their activities, and avaiting the results of the KGS study, we are holding in abeyanca any further site oriented work at Lyons, including leasing of land and plugging of holes.
"During the course of the naeting on Septerrber 2h,1971, you raised questions con-carning the Advisory Council called for by the FT 1972 Authorization Act. We have no l information on the status of appointT.snt or potential membership of the Council, nor are wa informed on how the administrative aspect of the Council's operation will be handled. .
I "We hope that this letter and its enclosures furnish' you the information you need, however, should you require additional information, please let us know. . '.
S
O PPENDIX B PMIT 50. - LICditSII G si P110DUCTIOM MID UTILIZNn FACILITIES f 35 FR 17530 Published 11/14/70 Effect1ve 2/12/71 t.
t
$lting of Fuel Reprocessing Plants and Related Weste Management Fecilities On June 3,1960, the Atem!c Ener:y Commission published in the FIczt.ar. '
Rzerstra (34 F.R. 8712), and invited pu'uilc comment on, a proposed state-ment of policy, in the form of an ap-
. pendit to 10 CFR Part 50, concerning the siting of fuelreprocessing p! Its and related waste mana;ement f acilities. The function of reprocessing plants is to recover valuable unused nuclear fuel from fuel ele:nents rernoved from re-actors when the elements have reached the end of their usefullives.In addition to the unused fuel, the e:ements contain radicactive fission products generated during reactor operation. They emerga from the chemical retrocessing sa liquid or solid wastes which must be ssfely-disposed of. .
The proposed statement of po!!cy dealt principany with (1) the quest!on as to whether the safety prob! ems and characteristics associate.! Mth operation or with the decommissioned statns of a
- licensed fuel reprocessing ' plant require.
from the standpoint of the public herith and safety, that these plants be locr.*ed on land owned and controUed by the Federal Governme:\t; and (2) the ques-tion of ultimate disposal of high-level rad!oactiva fission product we.stes gener-sted at these plants. The Commission has concluded that public health and i
safety considerations relating to fuel g reprocessing plants do not require that such facilities be locate 1 on land oned
. and controlled by the Federal Govern-
. ment. Such plants, including the facill-t}es for the temporary storage of h!;h-levc! radloactive wastes, may be located
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l On privately c rned property. This con-clusion was based on (1) the avanab!!!ty of technology for sondifying .the h!;h .
level wasta in fort.ts suititic for 02fc
. tranjpoti ts and d!s;c:21 at s Federrl repository spec!PHy s:: cted and dest; .cd for permanent removal of such radio *
- active wastes from the bissphere, and
3 7 m PART 50 - LICENSING OF PRODUCTION AND UTILIZATION FACILITIES (2) a rccognition that fuc! reprocessing It is anticipated that this storace fa.21 the biosphere for centur!cs.The research planta can be to desi:ned that radiologi- ity--constructed in a deep, bcdded-salt and development program at Savannah cidly 51cnificant contaminants may be formation-will be designated as the int. River to date, and further exploratory removed or otherwise satisfactoriiy dis
- drilling and m!ning to determine the tial Federal repository for solid radioac- suitability of the bedrock under the site,
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- posed of when the plant is retired from cperational service, are expected to cost 'about $14 milhon.
tiveAs wastes't stn c din the Commission's Such a rescarch and development pro-The propxed app:ndix to 10 CFR Part June 1*lth announcement, bedd d salt gram is a necessary prcrcquisite to a 50 would state, among other thin::s, that f .r long-term storage of radioactive decision to construct a facility solely for the hich activityliquid westes generated wastes is particularly attractive. It is Savannah River wastes. Nevertheless, be-in a fuc! reprocessing plant must be con- widespread and abundant; it has good Cam M be large volume of wastes al-verted to an AEC-approved solid form structural properties; it is relatively in- rea# M eMstme at that site, lone cnd transferred to a Federal waste re- expensive to mine; its thermal properties term storage of the wnste in caverns pository.The liquid waste could be stored are better than those of most other rock mined in the bedrock ofiers the potential et the fuel reprocessing plant as long as types; and it occurs generally in arcas of signincant cost savings as compared 5 years before conversion to solid form. of low scismicity. Most importantly, salt deposits are free of circuldting ground to the alternative of solidification and Shipment to a Federal repository would storage o!Tsite. HowcVer, it is doubtful not be required until 10 years after gen. waters and completely isolated from un- that bedrock storage of liquid wastes tration of the liquid waste.The proposed derground aquifers by essentially imper- would be attractive for licensed reproc-appendix would also provide that re. meable rock formations. Furthermore, this situation tends to be preserved be. essing plants. Specifically, the high cost processing plants must be. dest;ned to of the research and development pro-IIcilitate decontamination and renioval cause any fractures which might develop Kram that would be required to prove cf all significant radioactive wastes in are readily healed by plastic deforma. out the bedrock at each location, the un-the event a plant is retired from opera. tion of thesalt, certainty and associated delay unti* the tional status. License applicants would There is no indication that alternative site is accepted, and the high estimated be required to furnish information on technologies, suitable for power reactor costs of constructing each such disposal financial qualifications to provide for the fuels, will be availab!c in the foreseeable facility, support this conclusion.
removal and disposal of radioactive future. However, should alternate tech-nology become available, and should it At this time there is only one licensed wastes in accordance with the Commis. fuel reprocessing plant in operation; con-sion's existing regulations. appear to be equivalent to or an improve- sequently the industry does not have a Interested persons were invited to sub. ment over that sxcified in the policy significant volume of existing stored liq-mit comments and suggestions for con. adopted by the Commission, it will be evaluated and given appropriate uid wastes. Planners of new reprocessing sideratton in connection with the pro. plants have available to them proven posed statement of po!!cy rathin 60 days considerttion, The Commission is continuing to AEC-developed processes designed to citer publication in the FrorRAt. Rec. generate relatively small volumes of acid IsTER. The comment period v.as later evaluate the feasibility of storage of wastes and to reduce these wastes to ac-extended to September 15. 1960, high-levelliquid radioactive wastes from its production facilities at Savannah ccptable solid forms. Recent AEC studies Upon consideration of the comments (e.g ORNL-4451, " Siting of Fuel Re-received and other factors involycd, the - River. S.C., and Hanford, Wash., in un- processing Plants and Wr.ste Manage-Commission has adopted the statement derground caverns beneath these sites.
The over 80 million gallons of high-level ment Facilities ) Indicate the esti-cf policy which follmvs. The statement mated cost of solidiacation and shipment is the same as that published for com. wastes now stored in tanks at these in, stallations constitute over 95 percent by of wastes from licensed reprccessing ment on June 3,1063, except as noted plants to Federal repositories for s*4 rage below, volume of all high-level wastes in this country. However. such wastes differ wi!! not have a signincant impact on the Of primary concern in developing a nuclear power industry.
policy for the s! ting of fuel reprocening materially in radio 2ctivity level, heat The Commission does not now regard plants is the need to restrict,in the inter. output and chemical composition from wastes produced by licensed fuel reproc, storage of liquid high-level wasles in sst of public h alth and safety, the quan, tanks as constituting an acceptable titles and niobility of the high-level essing plants planned or under c'onstruc-tion. For example, the Savannah River method of long-term storage. Commis-radioactive wastes stored onsite at fuel slon experience with its tank storage of reprocessing p!ar's. During the past 15 and Hanford wastes have been chem!. liquid high-!cvel wastes is extensive and years the Commisuon has been carrying cally neutralized, contain large volumes of nonfission product materials, and have while .tynk . design, construction and cut research and devc!opment programs maintenance have improved, the fact cimed at developing a method for e'!ec. heat and radioactitty outputs many times lower than the licensed plant remains that tanks can deteriorate and tive!y and permanently removing these leak and that wastes in liquid form of-wastes from man's biolog! cal environ. wastes. Most of the Savannah Elver and fer a much more serious potential for ment. These programs have also been Hanford wastes were generated as the result of operations to neet defense dispersal in the environment in the designed to reduce the possibility of the event of an accident no matter how un-inadvertent release of such wastes to the D"d8- .
There are a number ct unique con- likely such an siccifat may be, and pre-environment. sent far more dif'Iculty for recovery and The major emphasis in these programs siderations and incentives for the Com-mission's decision to support research decontamination than sol! dined wastes.
has been directed toward the conversion Tank Morage requires extensive sur-Cf liquid wastes into solid forms suitable and development on long-term storage in underground caverns beneath these veillance, and often requires mechant-f:r interim onsite storage' safe transporg cal cooling apparatus to be functioning and disposal- in se!ccted deep geologic Savtnnah River and Hanford sites.These continuously. Over periods of centuries f;rmations. These general concepts were include: The large volume of the Savan-one cannot assure the continuity of sur-initially suggested in 1955 by the Com- nah River and Hanford wastes; the rel-atively low heat output of these wastes ,veillance and care which tank storage mittee on Radioactive Waste Disposal requires.
cf the National Academy of Science-Na, as compared uith those from IIcensed reprocessing plants; and the tremendaus Some period of in-tank storage of 114-
! tional Research Council. The concepti uid wastes at the reprocessing plant-have been supported by successor com- estimated cost and related problems of site may be required for cooling pur-solidifying and shipping these wastes mittees of the Academy. In the interim oirsite. This research and development poses depending upon the solidincation tha technical feasib!!ity of both wute process to be used. However, the requirc-
< solidification and solid waste disposal in prog:am is being performed in phases. ment to solidify such wastes, within 5 l deep geo!o:ic formations has been dem- In the interim both Savannah River - years of their generation. into a form onstrated. On June 17, 1970, the Com. and Hanford are immobiliring their suitable for cff-site shipment and long-mission announced the tentative selec- tank-stored !! quid wastes by evaporat. term storage will assure that liquid tion of a siM ne-- I ing them to salt cakes in the exist.
for th Ing tenks. mfore any dmslon h mids s accu:nulate on site in location of a dbon,7cus Kanstrabon rchoditory. q
- t sto e tastes in undr;rcund cav-Author:2ation and appropil.ticus i for
- * " ***
- 0" construct!an of the re;csitor wi:1 ba -
n E. = be numary to as-sought in the f! scal year 1972 budget. sure that the wastes will be isolated from
- 3 W i l, i TI F.S
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- PART .50 - LICI'.NS) OF l'It01)l!CTION AMI) UTTI,1XATIOt The Comm!aivn has tiven cateful this liolicy uilt twt tirecluile conwims- untiements for tic ..ntofunninut hm aJun mi etc Musideration to the safety considera- tion of State part!cipatiota ha fetiemlly co:maNionhe f urt reluis cilitica will be developett in conaultat,1:t-ion tions assoejated with the transport of owned lepo.51torics or in high-Icyc1 v.aste solid radioactive v.astes to a Federal rc- management activities at some thne in with competent groups. Public comment pository. The technology cud experience the future.
will be luvited before such rules are traulting from the transportation cf The health and safety of the public, made cITective.
The propo ,cd policy statement, as prc-Irradiated fuel c!cments over the last 20 both of the present and future centra-years provide a firm basis for developing tions, requires that any permanent vlously published, also included provi-safe, reliab!c systems for shipping solidi- repository for high-Icycl radioactive sions, desi::nated as paragraphs G and fled high-1ctel radioactive wastes. Ship- wastes provide complete isolation of the 7 of the policy, which related to the dis-ments of solidified radioactive wastes wastes froin man's1 biological environ- posal of radioactive hulls and other solid ctrried out in accordance with regula- ment. The Commission believes that Fed- wastes resulting frotn operation of fuel tions of the AEC and the Department of cral ownership of and responsibility for reproce. sing plants. Since publication of TrInsportation should not endanCer the the proposed Lyonk, Kazu., repository the prsposed policy the Commission halth and safety of the public. will provide the ntost productive and has undertaken studies in connection As noted, the policy includes a 5-year timely means of demonstrating that such with the ultimate disposal of wastes con-limit on interim liquid storace of high- repositories can be operated without en- taminated with plutonium or other I; vel wastes. The polley would also re- dangering the health and. safety of the tran< uranium nuclides. The Comn:Ission quire tht the waste be transferred, in public, ant.cipates that these studies may re-solid form, to a Federal repository no Paragraph 2 of the proposed policy sult in amendments to its regulations liter than 10 years follov. irs separation published for comment on June 3,1969: Identifying certain radioactive materials cf the fission products from the irradi- Provided That "High-level IIquid radio- deemed unsuitable for disposal at 11-ct:d fuct. These inventory restrictions active wastes in excess of this authorized consed, privately operated land burial would be imposed in the interest of mini- inventory must be converted to an AEC- facilities. Public comment will be invited mizing any potential hazard to the public approved solid form." Paragraph 2 has on such proposed amendments. Any health and safety and of assuring that becn revised to specify the forms of Commission rules on eventual disposal shipments of a Federal repository are solidified high-IcVel radioactive wastes of such wastes will be rules of general made on a timely basis. The Commission considered by the Commission to be ac- applicability to all licensecs. According-believes that these inventory limitations ceptable for reccQt and disposol at a ly, paragraphs 6 and 7 have been deleted.
cre reasonable from the standpoint of Federal repository. The speciGcations The Commission staff plans to con-waste management economics. While a have been developed with the view of vene a conference of interested industry pennity may be incurred in terms of providing maximum ficxibility to 11- representatives prior to the expiration Federal repository space utilization if censees in producing solid forms which of the CO-day comment period for the wastes are placed in a repository at an would satisfy the safety requirements purpose of assuring a full discussion and rge under 6 to 8 years, there appears to associated with onsite interim storage. exchange of views regarding the policy be litt!c economic incentive to defer transportation, and Federal repository statement. The date and place of tha placement in the repository of wastes operations. conference will be announced at an early cred more than 10 years.This conclusion Data are presently available which will date, takes into account the cost and main- permit independent develcpment of unit 'Ihe text of the statement of policy tenance of interim solid-storage facili- costs for all waste manage:nent opera- set out below is the same as that pub-tics. tions involved in comp 41ng with the 11shed for comment on June 3, IDS 3, ex-Some concern has been expressed that policy other than repository . charges. cept for minor editorial changes and required solidifleation of hi;;h-level Following congressional authoriza- (1) the redesignation of the appendix wastes will render unavailab!e a poten- tion and the cornpletion of the detailed as Appendix F of 10 CFR Part 50; (2) tlally valuable resource in that these repository design a firm schedule of the revision of the definition of "high-
%astes represent a unique source of repository charges will be developed and les si liquid radioactive wastes" in para-radlonucIldes which are useful in vari- published by the Commission.For interim graph 1 of the appendix to clarify its cus applications, such as compact best guidance the previously cited ORNL application to fuel reprocessing systems cnd power sources. Ho.vever, under the , report identifies the bases upon which other than solvent extraction; (3) the Commluton po!!cy, the permiss ble 5- such charges may be developed and pro- revision of paragraph 2 of the appendix year inventory of 11guld wastes will pro- Vides preliminary estimates. For ex* to include a speci!! cation of AEC-ap-vide a ready supply of feed material for ample, the . cost for disposal of a con . proved solid form; (4) the inclusien of a cn isotope recovery facility, and the tainer of waste may be determined as statement in paragraph 4 of the appen.
separated byproducts will not be subject the product of the cost per unit of floor dix to indicate that the decontandna-to the inventory limitations. Further- area of the mine and the area that is tion to be required upon decommission-more, the quantity of isotopes generated required to pr. <ide for su"icient dissipa- ing will be the subject of criteria which in the production of nuclear power will tion of heat from the container. In addi- the Commission will develop in consul-continue to expand rapidly in the fore- tion, there would likely be a minimum tation with competent groups; (5) the sceable future; thus, the isotope produc- charge far handling. Of course, all such deletion of the previously proposed part-tion in any given year will represent a charges would be subject to adjustment graphs 6 and 7 of the appendix, dealing significant fraction of the total quantity as experience is gained in the operation with ultimate disposal of nitscellaneous then availabic. 6! the rapository. solid wastes generated at fuel reprocess-Interest has been expressed regarding One el the elements of the policy is ing facilities, in view of current AEC that aspect of the policy which provides that fuel regrocessing plants be designed studies which the Commission antici-that disposal of high-level radioactive to facilitate decontamination and re' pates may result in proposed amend.
fission product waste would not be per. moval of all significant radioactive ments to its regulations identifying mitted on any land other than that wastes at the time the f acility is permn- certain
- radioactive materials deemed cwned and controlled by the Federal nently decommissioned. Viewed from the unsuitable for disposal onsite or at 11-Government. It has been urged that the perspective that each generation is trus- censed, privately owned land burial fa-Commission permit the establishment of tes of the environment for succeeding cilities; and (G) the inclusion in the repositories for such wastes on State- generations. the Commission considers appendix of a new paragraph 6 provid.
Gwned land with operation under AEC that the public interest requires that a ing'that with respect to fuel reproc'ess-licenses. The Commiss!on has considered hi;h degree of decentamination capabil- ing plants already licensed. the !! censes these suggestions but te11 eves at this ity be included in such facilities and that will bo. appropriately conditioned to time that high-Icvel waste repositories any residual radioactive contamination carry out the purposes of the policy should be under Federal o inership and after decommissioning be suf:'clently stated t.bove.
responsibility. The Com alssion w!shes to lov as not to represent a hanid to the Fursuant to the Atomic Energy Act emphasi e, ho cever, that adopt!cn of pub!ic health e.nd safety. SpccLCe re- of 104, as amended, and sections $52 November 28, 1970
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- PART 50 - LICENGING OF PRODUCTION AND UTILIZATION' FACILITIES and b53 of title 5 of the United States Code, the following amendment to 10 CFR Part 50 is published as a docu-ment subject to codification, to be e!Iec-tive 90 days after publication in- the FzurnAL Rzctsrta. The Commission in-
. vites all interested persons who desire to submit written comments or sugges.
tions in connection with the amendment to send them to the Secretarr, U.S.
Atomic Energy Commission, Washing-ton, D.C. 20515, Attention: Chief. Pub-lic Prcceedings Branch, withiri GO days Cfter publication of this notice in the FrognAL Recrsita. Consideration will be
- siven such sub:nissions with the vier.'
to possible amendments. Copics of com-ments received may be examined at the Commission's Pub!!c Document Room at 1717 II Street NW., Washington, D.C.
A new Appendix Fis added to 10 CFR Part 50 to read as follows:
T
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t scember 31, 1970 sen ,
m r.nlsu n m -~
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PART 50 - LI l SING OF PRODUCTION AND UTILIZ .ON FACLLITIES g,,gungx p Itquid storage. In cither case. such equipment shall be installed at the earliest practicable roi.!CT aELATINo To THE s!TINo or rVEL mE* date, taking into account the time required PaocEsstNo PLANTS A.ND saLATED WASTE MAN. for design. procurement and installation acEMENT rACILITIES thereof. With respect to such plants, the
- 1. Public health and safety considerations application of the policy stated in this ap.
relating to Itcensed fuel reprocessing plants Pendh to existing wastes and to wastes do not require that such fac111ttes be located generated prior to the installation of such h land owned and contro!!cd by the Federal equipment, will be the subject of a further Oovernment. Such plants including the fa. Tule making proceeding.
(111tles for the temporary storage of high.
level radioactive wastes, may be located on privately owned property.
- 2. A fuel reprocessing plant's inventory of high-level liquid radioactive wastes will be limited to that produced in the prior 5 years.
(For the purpose of this statement of policy,
- hlgh-level liquid radtoactive wastes ** means those aqueous wastes resulting from the operatio's of the first cycle solvent extraction l Cystem, or equivalent, and the concentrated wastes from subsequent extraction cycles, or (quivalent, in a facility for reprocessing tr.
radiated reactor fucts.) High level liquid
- radioactive wastes aball be converted to a .
e dry sol!d as required to comp:y with this O inventory 11mitation. and placed in a sealed a container prior to transfer to a Federal re.
6 pository in a shipping cast meeting the re.
, quirements of 10 CFR Part 'll. The dry settd a cha!! be chemically, thermally, and radioly.
- t!cally stab!c to the extent that the equ11th. j tium pressure in the sealed container will not exceed the safe operating pressure for that conta!ner during the period from can.
ning through a minimum of 90 days after recetpt (transfer of physical custody) at the
- Federal repository. A!! of these high-levet radioactive ws.stes sha!! be transferred to a Federal repository no later than 10 years fo!!owing separation of Saston products from
' the Irradiated fuel. Upon receipt, the Federal repository wt!! assume permanent custody ,
if these radioactive waste materials although Industry will pay the Federal Government th charge which together Mth interest on unexpended balances wt!! be designed to de. .
fray a!! costs of disposal and perpetual sur.
- veillance. AEC will take title to the radioac.
tive waste matertal upon transfer to a Federal reposttery. Eefore retirement of the i
repr9 cessing plant from operational status End before termination of licensing pursuant to I 50.82, transfer of all such wastes to a i Federal reposttory aba!! be completed. Federal repositories, which wt!! be limited is number, 7111 be des!gnated later by the Commission.
t 3. Disposal of high-leve1 radioactive Sssion g product waste material will not be permitten an any land other than that owned and con.
trolled by the Federal Government. ~
- 4. A desfgn cbjective for fuct reprocessing
- slants shall be to fact!! tate decontamination 3
t,04 removal of all algn1 Scant radioacttre - ,
eastes ht the time the factitty is permanently *
, (ccomtr.tssioned. Criteria for the extent of l (econtarninstion to be requ! red upon decom.
Inissioning and license termination wLil be developed in consultation with competent i groups. Opportunity will be aforded for pub.
11e comment before such criterla are made
! (Nective. .
- 3. App!! cants proposing to operate fuel re.
processing plants, in submitting information l concerning Snancial quallScations as re-i quired by l 30.33(f). shall include informa.
- tion enabitng the Commission to determine ,
%hether the applicant is Snancially qualtfled.
- I (tuong other things, to provide for the re.
i' Inovat and disposal of radioacttre wastes, t (uring operatton and upon decommissiontag of the facility. In accordance wLth the Com. ,
Inlaston's regulations, including the require.
Ants act out in this anoend;r.
- s. With respect to fuel reprocesstng plants C! ready Itcensed, the licenses wt11 be ap.
-propriately conditioned to carry out the pur.
Q poses of the pe!!cy stated above with respect Wto htsholevet radiosettre Sssion product
- '8'""**'"*****l'"*""'"'"
e E *eg*u**tpoient for interim storage of !! quid
- wastes, or after installation of equtpment
} required for solidiacation without Interim * *
{ May 5s 1971
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UIIITED STA'1SS COURT OF APPEALS
' for the District of Columbia Circuit No. 71-1732 -
THE COI2ET1'EE FOR IRJCLEAR RESPOI!SIBILITY, IIIC., ET AL.,
Appellants
. v.
Appeal from the United States District Court .
for the District of Columbia United States Court of Appeals for the District cf Cdurnbia Citait Decided October 5, 1971 [ SED OCT 51971 AafL., ad.% >
CCERK Mr. David Sive, a member of the bar of the Supre=c Court of New York, tro hac vice, by special leave of court, with whom Mr. Samuel H.' 'rieissbcrd was on the brief, for appellants.
k Mr. Edr.und B. Cled, Attorney, Department of Justice, vith '
whom Ecssrs. Shiro .:ashiva, Assistant Attorney General, and Thoses L.
_McKevitt, Attorney, Deper: ment of Justice, vere on the brief, for appellees.
- Before PAZELOIT, Chief Judne, and LEVEITTHAL and ROBIIiSOIT, Circuit Judges. -
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PER CURIAM: Plaintiffs seek to enjoin an underground nuclear
, test, code-named Cannikin, to be conducted by the defendant Atomic I
Energy Commission ( A.E. C) . The district court granted summary i
_1/
judgment for defendants,, and plaintiffs, appealed. The case came on for consideration of plaintiffs' motion for a stay pending appeal and expedited consideration o'f the appeal. The parties stipulated at the time of oral argument that since briefs on the merits had l
already been submitted by both parties, the case should be heard on -
, the merit s. Accordingly, we consider in this opinion the substantive questions presented. We reverse, and remand the case to the district
, court for continued proceedings consistent with this opinion, m I.
l The A.E.C. is completing plans for an underground test of a
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nuclear warhead on Amchitka Island, Alaska. As required by the I National Environmental Policy Act (NEPA), 42 U.S.C. 4331 et seg,
, (1970), the Commission issued an impact statement evaluating the i
, environmental effects of t'he test. Plaintiffs, seven conservation 1/ For purposes of this o' pinion we refer to appellants in this court as " plaintiffs" and appellees as " defendants.f' .
jh/ The precise yield of the nuclear test has not been released
+
although it is in the range of five megatons. The test was originally scheduled for october, 1971', but Congress has provided that it may not take place sooner than May, 1972, unless the President gives his direct approval for an earlier date.
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. l groups, seek to enjoin the test'primarily on the grounds that the
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impact statement did not satisfy NEPA's requirements.
Plaintiffs commenced discovery proceedings in an effort to establish the deficiency of the impact statement's treatment of potential dangers of the test. Defenda~nts moved for dismissal of the complaint or in the alternative for summary judgment, and all discovery was stayed pending the outcome of the motion to dismiss.
Immediately at the conclusion of the argument on the motion, the i district court denied the motion to dismiss but granted summa.ry
? .
.' judgment for defendants. This appeal followed.
II . .
The district court specifically upheld the sufficiency of the complaint by denying the motic? to dismiss. The court did'not articulate its reasons,for granting summar~y judgment, but from the record in the case, including the expedition with which the motion for summary judgment was granted, we conclude that the district court accepted the validity of the contention that was most strongly presset
,i by the Government: that Congres's's passage of authorization and appropriations bills for the test represented a conclusive determinat.
jb/ Appellants also rested their claim for injunctive relief on three other grounds, asserted v'iolations of:
(1) The Nuclear Test Ban Treaty, (2) Various statutes designed to protect wildlife, and (3) The rights under the Fifth and Ninth Am.endments of citizens endangered by Cannikin.
.3 s
of -the sufficiency of the impact statement. This contention was, in our view, erroneous, and in Order to avoid the continuance of an order that was predicated on an impermissible basis, the judgment of the District Court must be reversed. See The Delaware and Hudson
_Ry. Co. v. United Transporteiion Union,' No. 71-1183, March 31, 1971.
Congress could, of ocurse, withdraw the question of the statement's compliance from the courts by repealing NEPA as it applied to the Cannikin test. But it is well settled that repeal by ,
i implication is disfavored, and the doctrine applies with. full
.' vigor when, as here, the subsequent legislation is an appropriations i AU'
- measure, and when the prior Act is to continue in its general applicability, as construed by the courts, but the claim is made that
~/
5 it is to be subject to a particularized legislative exception.
Congress must be free to provide authorizations and appropriations
' for projects proposed by the ex.ecutive even though claims of illegalit -
on grounds of noncomplia'nce with NEPA are pending in the courts.
~
There ,is, of course, nothing inconsistent with adoption of appropriati-and authorizations measures on the oro tanto assumption of validity,
- 1 l
jb/ See, e.g., United States v. Langston, 118 U.S. 389 (1886). !
5/ Cf. , District of Columbia Civic Assn. v.'Volpe, U.S. App.
D.C. , 434 F. 2d 436, 444-47 (1970).
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while leaving any claim of invalidity to be determined by the 5l courts. That is the effect of the authorization and appropriations measures relating to the cannikin test. This conclusion is establishc by the general principles just discussed. Nothing in the legislative history leads to a'different result. On the contrary, there is an affirmative indication that at least some of the congressmen voting for the authorization and appropriations measures specifically l contemplated that the claim of illegality remained for resolution 7/
by the courts. The legislative history indicates that while the impact statement was used as reference material by both proponents and opponents of the test, congress did not purport to make a binding determination on the issue whether the statement was in compliance with NEPA. .
El Thus, plaintiffs clearly presented a cognizable claim under NEPA, !
and summary judgment would be appropriate only if they failed to provide any factual underpinning for their claim. il/ ,
jb/. That was precisely the conclusion as t,o the intent of Congress reached in anothe'r NEPA case by the court in Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 749, 762-63 (E.D. Ark. !
1971). '
7/ Thus, Representative Price, in voting for the project, stated concerning the issue of whethe the impact, statement complied with l NEPA: "This matter is before the court. I submit that if there !
l has been any violation of the law, the court will supply the !
appropriate remedy." 112 cong. Rec. 6785, July 15, 19,71 !
8/ See next page. '. , l -
jh/ See next page. . -
9
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. . . -.g III Section 102 of NEPA requires, inter alia, that an impact statement assess adverse environmental effects and discuss alternatives to the proposed action.10/ on the ultimate issue whether a project should be undertaken or not, a matter involving the assessment and weighing of various factors, the court's function is limited. However, the court has a responsibility to determine whether the agencies involved have fully and in good faith followed the procedure contemplated by Congress: that is,,
setting forth the environmental factors involved' in order that those entrusted with ultimate determination whether to authorize, abandon or modify the project, shall be clearly advised of*the 8/ In view of our disposition of the case, it is not necessary to rule on whether any of plaintiffs' other three grounds for relief state a claim on which relief can'be granted. Our order does not foreclose the district court, on remand, from striking
, any or all of 'th'se o grounds for failure to state a claim.
9/ Rule 56, Fed.R.Civ. Pro,, permits summary judgment only when
, no material issue of fact is in dispute and the moving party is' by law entitled to judgment. See Sartor v. Arkansas Gas Corp.,
321 U.S. 620, 627 (1944).
1,0f NEPA, section 102, 42 U.S.'C. 4332.(1970):
The Congress authori:es and directs that.'to the chapter, retich wili insure that presently unquan-fullest extent ;oscib!c: (1) the po:icles, regulations. t!!!ed endremental amenities and valuca m2y be and pub!!c laves of the IJn!ted states sha!! be Inter- girca app.~.d l'ato consideration in dec!s!cnmeking
. preted and adrain!stcred in accordance with the po!!- along viith economic and te:hnical cons!derations:
cles set forth in this chapter, and (2) all agencia (C) inc!:fe in every recommendation or rc; ort
'of the Feder:1 osvernment shill- on proposals for Icg! station cnd other major Fed-(A) ut!!ite a systematic, in:crdise!pl!n?.ry ap- eral act!ons s!gnificant y af'ectin; the que.Ilty of proach which wil! insurc the int!Jrated use of the the human envirenment, a detailed stateme:it by natural' and socist s:frnceu and the enc;ronme::tn! the respone:ble o01cial on .
des!;n arts in ptanning and in decisionmah!n; (1) the environmentn! Impact of the prepoced which may have r.n in W' cn n. n's emiinne ent, action.
(B) identify na1 decyMa r"c*.heds nd pr# 2- (i!) any adser'c enstrene.en*al effects t.h!ch
. dures.1:s censu!!ati/. n h the Cn;nc.! cn Ennr0n- cannot 1.4 avold:d sho.dd the proposal be adntal Quality est:blahcd by sut: chapter II of tid implemented. .
'g .
~) environmerital factors which they must take into account. See Calvert Cliffs' Coordinating Committec v. Atomic Energy Commission, No. 24,839, slip opinion at 11 The statement has importance in focusing the environmental factors involved even.when the officials ultimately responsible are in, or more likely the head of, the office or agency that prepared the, report. The ultimate decision must of course take into account matters other than environmental factors, but insofar as staff has prepared the environmental statement for transmission and consideration throughout the entire executive process the officials making the ultimate decision, whether within or out. side the agency, must 'be informed of the full range of responsible opinion on the environmental effects in order to make an informed choice. Moreover, the statement has significance in focusing environmental factors for informed 'apprais~al by the President, who has broad concern even when not directly involved in the decisional process, and in any ever.t by Congress'and the public.
10/'
'(Con't.)
(11D siternsthes to the propos;d action, respect to s=y environmental impact invc!ved.
(tv) the relationship between local short- Copies of sus statement and the com:nents and ter:n itscs cf rn:.n's envircnment ar.d the m .!n- Vic ts of the :?pic?riate Federal. S*>.te. and Iccal tenance and enhancement o!!ong.tcrin produc- agencies, stich a.re authorized to devc!ap and tivity. and enforce env.rcamental standards, shall be rn:dc (v) any irreversible and irretrievab!c cc:ntn(t- available to th: President the Council on Drr.ttn-ments of resources which flot'Id be invohed in mental Qua%:7:and to the pubit: as provided by the proposed letion should it be imp;emented. section 552 cf Titto 5. and shall accompany the Prior to making any dete.!%d staternent. the re- propos.d th > ugh the existing agen y revie.7 sponsib!c Federal o..le!21
" shill cons *ft Mth and . proccases; e . .
obtain the com:nents of any Feder.$.12rency wh!:h ,
has jurisdiction by :.v.e or spe:!al expertisc vf.th
_b, When, as here, the issue of procedure relates to the sufficiency of the presentation in the statement, the court is not to rule on the relative merits of competing scientific opinion. Its functi'on is only to assure that the statement sets forth the opposing scientific views, and does not take the arbitrary and impermissible approach of completely omitting from the statement, and,hence from the focus tha,t the statement was intended to provide for the I deciding officials, any reference whLtever to the existence of responsible scientific opinions concerning possible adverse en-l 11/
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l vironmental effects. Only responsible opposing views need be i
j included and hence there is room for discretion on the part of l the. officials preparing the statement; but there is no room for an', assumption that their determination is conclusive. The agency l need not set forth at full length views with which it disagrees, t .
- all that is required is a meaningful reference that identifies j
i the problem at hand for the responsible official. The agency, j of course, is not foreclosed from noting in ,the statement that' 12/
it accepts certain contentions or rejects others.
)
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11/ Comoare Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 749,759 (E.D. Ark.1971). ,
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12/ Compare Environmen tal Defense Fund v.. ~ Corps of Engineers, 325 F.Supp. 749, 759 (E.D. Ark.1971).
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By means of discovery and the introduction of the affidavit of a scientific expert, plaintiffs attempted to prove that the requirement of the law was not met " fully and in good faith"
~
by the A.E.C. The district court's grant.of summary judgment erroneously foreclosed this line of ing'uiry to plaintiffs.
Summary judgment is only appropriate when there is no bona fide material issue, and Rule 56 clear 1y contemplates that the
, parties shall have opportunity for deposition in order to establish 12/
the existence of a material issue. Here, plaintiffs sought.
.' to establish that there was responsible scientific opinion as i
to possible adverse environmental consequences, a fact that would be material in support of their legal claim that omission of all reference to such scientific opinion was contrary to the process 14/
prescribed by NEPA.
Plaintiffs also alleged the existence of reports by federal ,
j agencies'recommen' ding against Cannikin specifically because of l potential harm to the ent ironment. , NEPA clearly indicates that the agency responsible for a project should obtain and release such !
1
., s .
. l M/ g.', Rule 56 (f) , Fed.R.Civ. Pro, , Berne Street Enterprises, Inc.
- v. American Etoort Isbrandtsen Co., Inc., 289
~~~ F.Supp. 195 (S.D.N.Y.
1966),, 6'kqpresC Federal Practice, S 56.24 .
I
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14/ We do not here decide that the statement is inadequate, j but only that'the district court is not to foreclose.an opportunity I
, to plaintiffs to make their submission on this point.
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adverse r'eports. If these reports exist, and they are not subject to some statutory exemption, plaintiffs must prevail on this 15 /
contention as well. Plaintiffs attempted, through deposition of the A.E.2 and through attempted deposition of the agencies whom
.- they believed to have such reports, to uncover facts supporting their claim. The grant of summary judgment prematurely terminated the discovery process and foreclosed plaintiffs' opportunity to substantiate their allegations.
, , Since unresolved questions of fact existed as to both of plaintiffs' -arguments under NEPA, summary judgment was plainly inappropriate, on remand, plaintiffs' discovery--subject of course to the pos~sible interposition of valid claims of privilege--
M/
- should be allowed to continue. , .
i Reversed and remanded.'
T 15/ 42 U.S.C. 433'2 (1970).
11/ We do not consider whether the court may decline to order the
- release of agency comments on the ground that they are 6ot so related to the impact statement as to reJuire their inclusion therein, or on the ground that they are exempt from public disclosure by virtue of exemptions set forth in the Freedom .of Information Act, 5 U.S.C.
- 552 (1970) , which' should be transported into NEPA. No such grounds were presented to us at this time, and accordingly we express no opinion
- thereon. - -
17/ Since defendants stated that the test would not take place without' ample' not ice to the plaintiffs, we see no need to consider
, whether or not'to issue a stay pendente lite. If the need arises, l
. the. question' of a stay may, 'of course, be addressed to the d'istri,ct court. - <
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