ML19329F072
| ML19329F072 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/11/1971 |
| From: | Graves H, Lowenstein J, Lowenstein R, Restrick J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | |
| References | |
| NUDOCS 8006190876 | |
| Download: ML19329F072 (46) | |
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.5 ... eed ,j.9j 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 i and 2) )
APPLICANT'S ANSWER TO THE PETITION TO INTERVENE OF THE STATE OF KANSAS 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 THis DOCUMENT CONTAINS Richard G. Smith P00R QUAUTY PAGES i
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INDEX Page INTRODUCTION ........................................... 1 ARGUMENT I. KANSAS SHOULD NOT BE PERMITTED TO INTERVENE BECAUSE THE ISSUES RAISED IN ITS PETITION ARE NOT PROPER ISSUES IN THIS CASE. . . . . . . . . . . . . . . . . . . 3 A. The Issue As To The Safety Of Depositing Wastes From The Midland Plant In Lyons, Kansas ..... 4 B. The .Tssue 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 C. The other Issues 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 PARTICIPATO UN DE R S 2 . 715 ( c ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CONCLUSION ............................................. 25
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- 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 f
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. 52.715 (c) . Applicant Consumers Power Company hereby files its answer in opposition to that petition, pur'suant to 10 CFR 52.714 (b) .
The petition of the State of Kansas raises not only legitimate concerns about the health and safety of the people of Kansas but also very substantial questions of public 4
policy. Applicant's position is not that these questions shoGld 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 explora them.
Applicant's pos i tion deserves particular weight because Congress has enacted legislation expressly providing that an Advisory Council should investigate the matter of particular
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- The State of Kansas has agreed to extend our time to reply to Octvber 11, 1971. (See our letter to the Board of Sept. 27, 19~1).
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o 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 ruspect to it.
The petition should also be denied insofar aJ it urges that the application by Consumers Power Company should not be granted "until such cime 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 ler.gthen and complicate an already complex and protracted litigation. Applicant therefore asks that the petition be denied in all respects.
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9 1 I. KANEAS SHOUI.D NOT BE PERMITTED TO TNTERVENE BECAUSE THE ISSUES RAISED IN ITS PETITION ARE NOT PROPER ISSUES IN THIS CASE.
"(Olne of the v.ost usual procedural 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 tale 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 IJW TREATISE $8.11 at 564 (1958).
Though 10 CFR 52.714(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.
Applicant will demonstrate that the proposed intervention of Kansas is designed solely to introduce into this proceeding 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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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 fo'reseeable future, wastes inevitably created by the operaticn of the Consumers Power Company Midland plants may be unavoidably committed to transportation and disposal 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 location of the repository in Kansas "without a complete environmental impact analysis as required by the National Environ-mental Protection [ Sic] Act (NEPA) would be prejudicial to the interests of all Kansans." And the petiticn goes on to say that
- The petition, in the preceding sentence, made the fcilowing quotation f rom the AEC's NEPA statement on the project: "'
...it is anticipated that this facility will ultimately be designated as the federal wasto repository, . . . . ' (page 2) (emphasis supplied)"
The entire sentence at p.2 of the Environmental Statement reads :
"Although it is antAcipated that this facility will ultimately i
be designated as the Federal Waste Repository, it will be initially operated as a demenstration facility."
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"the Attorney General's intervention in the instant matter is appropriate for the protection of Kansas citizens from the potential dangers of the proposed waste repository project."'
We earnest 1y 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 net a proper issue in this case, for two reasons.
The first is that Congress has created other, more appro-priate forums and procedures fcr the resolution of that issue than a grab bag of reactor licensing cases in which it would be, at best, tangential.
Under $102(2) (C) of NEPA, the AEC is obligated to obtain the comments cf other Faderal, state and local agencies and to write a detailed statement on the environmental impact
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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 officials and elected representatives of Kansas made their views and concerns known to the 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 92-94) dealing specifically with this problem.
See 1971 U.S. Cede Cong. & Ad. News, Vol. 7 at pp. 1651-52.
This rider stated:
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" Project 72-3-b, national radioactive waste repcsitory, 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 exeseds 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, a3d then only when and if such materials are ,
fully retrievablo 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 and other tests and research (whether onsite or elsewhere) relating to the safety of the project, the protection of public healdt, 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 propcsed 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 af ter the expiration of sixty calendar days of continuous session of the Congress after the date on which the advisory coune 1 submits its report under subparagraph (D).
For rurposes of the preceding sentence, continuity of sassion is broken only by an adjournment of Congress sine 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."
.- 9 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 shoddbe a repository at Lyons. g 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 would-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 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 injuxtion 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.); EDP 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 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 - sawalli construction permit in a national forest for compliance with NEPA although injunctinn was refused, partly due to failure to exhaust administrative remedies) ; EDF v. Corps of Engineers , 2 ERC 1260 (E.D. Ark.
Feb. 19, 1971) (held jurisdiction exists td enjoin construction of a dam and reservoir pending compliance with NEPA); Sierra Club v. Laird,1 ELR 20085 (D. Aug.1970) (Corps of Engineers enjoined from doin, :harnel 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 from issuing permit for construction of Trans-Alaska Pipe Line for failure 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 t
, 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
. v 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 I 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 made a decision to use the Lyons site as a radwasta 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."
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- aCommittee for Nuclear Responsibility _ v. Seaborg, supra, held i
that a Congressional appropriation for an atomic test did not constitute, by implication, a gro 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 l with NEPA on Lyons is still necessary and subject to judicial review.
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h Moreover, the Commission last month decided, because of the identification of certain potential problems with respect to the Lyons site, to hold in abeyanc'. the leasiaq of land and plugging of holes at Lyons and to conduct a " literature study" on possible alternative sites. See letter of Sept. 30, 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 p'roject or one similar to it in Kancas 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 debats on the Public Works and AEC Appropriations bill, Congressman Rhodes of Arizona, 4 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 r - - - -
what the underpinnings of the earth are in that particular point, so that facts can ba 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.
e e e The gentleman from Kansaa, I hcpe, understands
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that the subconmittee, 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 Comrittee on Atomic Energy, in a report recommending an authorization for the project without the restrictive rider sub-sequently attached, stated, "that if the research and demonstration program at the salt mine in Kansas does not meet reasonable standards before corrorcial 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) .
Of course, even if the site is approved by the AEC, the advisory council and Congress, and the disapproval of any one 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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Paragraph 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 Midland 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 years 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 f act, economic or otherwise".
Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152 (1970). Kansas cannot new 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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- 5. The Issue As To Whether Any Construction Permit May Be Granted For A Nuclear Pcwer 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 ar.1 safety."
This proceeding involves an application for a construction permit, not an operating license. We will assume, therefore, that the issue Kansas intended to pos5 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 issus 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 co=plete 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 ar.d the Statement of considerations accompanying its issuance - Siting of Fuel Reprocessing Plants and Related 8 A
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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."
(EEC v. Chenery 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 adjudicaticn.
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.2a 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 else. But when, as here,
, a new policy is based upon the general characteristics
( of an industry, rational decision is not furthered by requiring the agency to lose itself in an excur-sion into detail that too often obscures fundamental issues rather than clarifies them."
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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 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 ageney's choice of procedures. However, unlike the instant case, Alabama-Tennessee did not involve'a situation in which 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 .
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 l
l daily newspapers in the Salt Lake City area. The 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 combine." The FCC denied the l
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, requests for a hearing on the ground that there were no sub-stantial questions 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, 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 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. 531S; 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 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 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. Appellants' protests seem to us to assert that undue concentration of communications media has a tendency towards i
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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-raking and in investigations looking toward rule-making. That pursuit may be more effectively and properly carried on there than by setting this renewal applica. tion 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 indesirable concentrations of power. Although not specifict 4 challenging the program content of the stations in question he asserted that the networks are guilty of excess commercialism and undue 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):
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, "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 h
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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 pet! tion, he is without standing to complain of these license renewals. Whether the matter is best approached analytically in' traditional standing 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 Commissien 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 l
case and in this one. It could seek to intervene in any l
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- It has been permitted to participate in Vermont Yankee f under 10 CFR 52.715 (c), although the scope of its participation i has not yet been determined. See tr. of August 10, 1971 at l pp. 395-425.
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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 poscible, con-sistent with the requirements of due process." Regular Common Carrier Conference v. United States, 307 F. Supp. 941, 944 (D. D.C. 196 9) . 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 ques' tion 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 the interestsof Kansas and of the parties to this caset it is 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 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 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 reso2ution of the high level waate 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 argumer.t 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 he 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 appr;priations bills for fiscal 1972, gave extensive consideration to the problems 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.
, 92nd Cong., 1st Sess., Part 3, pp. 1307-1586 and related Appendices 1908-2235 &nd Part 4, 2473-2470 (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); H3157 (Jun.14,1971); H5722 (Jun. 22, 1971); H5845 (Jun. 23,1971); 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); S11,502-11,565 (July 20,1971); H6921 (July 20,1971);
H7046 (July 21,1971) ; H7131 (July 26,1971.); H7189 (.Tuly 27,1971) ;
E8456 (July 28,1971); S12,695 (July 31,1971); H7826 (Aug. 3, 1971); H9131 (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 i
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 i it did not favor the kind of drastic approach suggested by l Kansas here.
l I
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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 inte rvenors . 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 to participate in the proceeding in its own rignt. 10 CFR 52.714 only speaks of one kind of intervention. K fail to see what could be meant by " joining" in the Saginaw intervention er how joining in the intervention of others is significantly different from intervening independently. It would mean that 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
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h,
. 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 iJsues 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."
The Staff has, moreover, made it perfectly clear that 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 9,1971, counsel for the AEC Regulatory Staff has stated:
"...we note our disagreement with the inter-venors' apparent view that the environmental evaluations to be performod in this proceeding must cover the entire nuclear fuel cycle.
".. .k's will not consider, will not require the 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 Eavironmental Policy 1
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Act, the Calvert Clif fs' decision, or the Commission's rules and regulations, including 10 CFR Part 50, Appendix D."
.m, _- ,. . - - -
h k 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 intervention.
III. KANSAS SHOULD NOT BE ALLOWED TO PARTICIPATE UNDER 52.715 (c) .
The Kansas petitica (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. 52.715 (c) . "
Ordinarily, we would not deem it necessary to reply to such an expression of intention but would reserve our objections until such time as Kansas actually attempted to participate in this proceeding. However, as Kansas seems to treat its proposed $2.715(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 52.715(c) in the context of deciding whether it should be allowed to intervene, we deem it advisable to make our objection to such participation now.
S 2.715 (c) provides:
l "The presiding officer will af ford a repre-sentative of an intrestd State which is not a party a reasonable opportunity to participate and to introduce evidence, interrogate witnesses, t
t l
g
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
$ 274 (1) of the Atomi c Energy Act. Section 274 (1) provides:
"With respect to each 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-rogate 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 5274 (1) deal's with the rights of " States in which the activity will be conduc',ed", 52.715(c) must also be dealing with the rights of such states. As Kansas is not a state in which the activity authorized by the construction permit applied for here will be conducted, it has no rights under $2.715(c) .
Moreover, 52.715(c) only affords rights to "an interested' 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 Kansas should be denied. However, it should be made clear I
that this is without prejudice to the right of Kansas 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
E,.
to the right of Kansas to petition the Commission for rulemaking with the object of putting a mo 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 lut Kansas into this case if the issues discusssed 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 John K. Restrick Jerome E. Sharfman Richard G. Smith
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of )
)
CONSUMERS POWER COMPANY ) Docket Nos. 50-329
) 50-330 (Midland Plant, Units 1 and 2) )
CLRTIFICATE OF SERVICE I hereby certify that copies of the "Applic' ant's Answer to the Petition To Intervene Of the State Of Kansas", dated October 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 116th Street New York, New York 10027 Milton R. Wessel, Esq.
Kaye, Schcler, 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.
109 N. Dearborn Street William J. Ginster, Esq. Suite 1005 Suite 4 Chicago, Ill. 60602 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
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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 YYW $_. ItmYWrEl Y {t.
Anthony / J'..Gambardella, Jr.
4 4
-y - m o -s,--m, y -, --- - e,wm- _ . - . - - - -nng_.s
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APPENDIX A "This letter is to confirm discussions held on Septenber 2h,1971, with you and Mr. Shwiller by Dr.Pittun and Mr. Donoghue of the Atonic Energy Corntission's Jivision of Waste Managerent and Transportation regarding a literature study which we plan to make on possible alternative sites in Kansas for the National Radioactive Waste Repository.
"The Comissien decision to nake this study arose as a result of certain additional information, given in more detail in the enclosure hereto, which has recently cera 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 sits.
" "In' each instance, the new infomation raises questions conceming our ability to assure that water will not be introduced into the bedded salt romatica 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 Comissien feels that its only prudent course of action, pending a more detailed and extensive evalua-tion of the new information is to nake a literature search to identify other potential repository sites in the Kansas salt bed fornation.. . We would stress that the Co= is-sien has not made a finding that the Lyons site is unacceptable or that any other more acceptable site can be found. Our objective is to assure that, should our future evaluation indicate that Lyons is not safe and acceptable by reason of unresolvatle problems raised by American Salt Cogany operation or by the existence of oil and gas well penetrations which cannot be satisfactorily sealed, centinuity of this very important effort will not be conpronised.
. "We have, therefore, instructed the Oak Ridge National Laboratory to enter into a contract with the Kansas Geological Survey, as the group having the most letowledge and greatest degree of expertise en the situation in-the State of Kansas,' in cooperatien with Dr. Robert Walters, an CEL consultant from the Kansas ares, to undertake a literature survey of various potentiallocations in Kansas where salt bed thickness and depth, the overlying and underlying fornations, and other geologic and hydrologic factors are similar to those at Lyons. As a part of this overall study, the KGS will work with the AEC and OP3L in the development of detailed criteria which could be used for specific site selection should this' be necessary. The study will be complete by November 1,1971, and the final report will be available by Decenber 1,1971.
"Pending further evaluation of ths ' hole plugging' problem and further discussions with the American Salt Company managenent to lead to a better understanding and evalua-
~
tion of potential probl?ms raised by their activities, and awaiting the results of the KOS study, we are holding in abeyance any further site oriented work at Lyons, including leasing of land and plugging of holes.
'During the course of the nseting on Septer5cr 2h,1971, you raised questiens con-cerning the Advisory Ccuncil called for by the FI 1972 Authorization Act. We have no infornation en the status of appois.t=snt or potential =embership of the Council, ner are we informed on how the adninistrative aspect of the Council's operation will be bandled. .
"We hope that this letter and its enclosures furnish you the infor=ation you need, however, should ycu require additienal information, please let us know. . . .
APPENDIX B
- PART 50 - LIC::USING 0;' P30DUCTIO3 AND UTILIZATIOU FACILITIES f 35 FR 17530
! Published 11/14/70 Effective 2/12/71
. I t
Siting of Fuel Reprocesstng Plants and Related Weste Monocemer. Faciti!!ss On June 3.190, the Atem!c Ener2y Commission published in the Frazast.
Rrcsstra (34 FJt. 4712), and invited pub!!c comment on, a prcposed stata=
ment of poney, in the form of an sp.
pendix to 10 CFR Part 30, concerning the siting of fuelre;rocessing p! ants and related t aste management facilities.The flanction of reprocessing plants is to recover valuable unused nuc! ear fuel from fuel elements removed from re-actors when the e:ements have resched the end of their usefullives. In additan 12 the unused fuel, the e:e=ents contain radicactive fission products generated during reactor operation. They emerge from the che:tical refrocessing sa lud or solid wastes wh!ch must be safely disposed of.
The proposed stat
- ment of po!!cy dealt principany with (D the cluescica as to whether the safety prob! ems and sharacteristics associated Mth o;eratt3n or with the decommissioned stata of a Ilcensed fael reprocessing plant require, from the standpoint of tne pubuc hestth and safety, that these p; ants be 1ccated on land owned and contro!!ed by the Federal Octernme:\tt and (2) the ques-tica of ultimate disposal of high-level radioactive f.ssion product wastes gensr=
sted at these plants. The Commtssion has concluded that pub!!c health and safety considerttions retating to fuel t reprocessing piants ds not require that euch facilities be located on land oned
. and controUed by the Federal G3vern-ment. Such plants. Including the twili-ties for the temporary storage of h';h.
level radioactive wastes, raar be 2:sted on privately o ?ned pro;erty. This con-c!usion was based on (D the avail-11!ty of technology for sondL* ring .the h!;h-le7e1 wasta in fo ..u sa!*stie f 3 osfa tran.2 port t3 and dispc:21 at a yafst:1
- re;iository spMia'ly s:3cted and destr.td for permanent removal of su:h radia *
- active wastes from the bus;here, ani
, Noveciber 28, 1970
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"C
- PART 50 - 1.ICENSIt:G OF PRODUCTION A!!D UTILIZATION FACILITIES (3) s' recognition that fuel reprocessing It is anticipated that this storage facil. the biosphere for centurics.The research plants can t,e so designed that radiologi. ity-constructed in a deep, bedded-satt and development program at Savannah eslly algnincant contaminants may be formation-will be designated as the Int. River to date. and further exploratory -
removed or otherwise satisfactority d:s* tial Federal repository for solid radioac. drining astd rnining to deternine the posed of when the plant is retired from tive mastes. suitabtHty of the bedrock under the site, sperational service. an npected to cost atWt 514 annon.
As a t a t e d in the Commtssion's Such a research and development pro.
The proposed appendis to 10 CTR Part June 17th announcement, bedded salt gram is a necessary prerequisits to a 50 would state, among other things, that for long term storage of radioactive decision to construct a faculty solely for the high-activity IIquid wcstes generated wastes is particularly attractive. It is Savannah Ittver westes. Nevertheless, be.
in a fuel reprocessing plant must be con. widespread and abundant: it has good cause of the large volunie of wastes al.
verted to an AEC-approved solid form structural properties; it is relatively in. ready in existence at that site. long.
and transferred to a Federal waste re. expensive to mine lts thermal properties term storage of the waste in camns pository.The 11guld T aste could be stored are better than those of most other rock mined in the bedreck of"ers the potential at the fuel reprocessing plant as loag as types; and it occurs generaUy in areas of signlScant cost savings as compared B years before conversion to soud form. of low seismicity. Mas 6 importantly, salt Shipment to a Federal repository would depostts are free of circulating ground to the alternative of so!!diacation and storage ossite. Houtver, it is doubtful not be required until 10 years after gen. waters and completely isolated f rom un. that bedrock storage cf 11 uld erstion of the liquid waste.The proposed derground aquifers by essentially imper. G mastes meable roc % formations. Furthermore, would be attractive for licensed reproc.
appendix would also provide that re. essing plants. Spec 15cally, the high cost processing plants must be designed to this situation tends to be preserved be. of the research and development pro.
facilitate decontamination and renloval cause any fractures wluch might develop gram that would be required to prove et all significant radioactive wastes in are readny healed by plastic deforma. out the tidrock at each location, the un.
the event a plant is retired from opera. t!on ot the satt. certainty and associated delay untC 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, suitab:e for power reactor costs of constructing each such disposal Snancial gustifications to provide for the fuels. will be availab:e in the foreseeable facility, suDport this concluston, removat and disposal of radinactive 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: cen.
sion's esisting regulattons, appear to be equivalent to or an improve.
ment over that spec 12ed in the policy sequently the industry does not h*ve a Interested persons were inytted to sub. sigmf! cant volume of ertst!ng stored 114 amit comments and suggest: ens for con. adopted by the Commission, it will be evaluated and given appropriate uid wastes, Planners of new reprocessing alderation in connection with the pro. plants have available to the:n proven posed statement of po!!cy within 50 days consideration. AEC-developed processes des!rned to after publication in the Frtraar. Rtc. The Commission is continuMg to generate relatively small volumes of scid Isna. The comment period was later evaluate the feasibility of stonage of wastes and to reduce these attes to ac.
entended to September 15.1969. high-levelliquid radioactive aastes from ceptabla solid forms. Eecent AEC sturtles Upon consideration of the comm(nts its production factllties at Savannah (e g. ORNL-4s51. ' Siting of Fuel Re.
received ard other factors involved, the . River. 5 C and Hanford, Wash In un. Processing Plants and Waste 3tanage.
Commission has adopted the staterr.ent derground caverns beneath these sites.
ment Faculties ) Indicate the esti.
Of policy which follows. The statemeng The over 80 minion gallons of h!gh-!evel 2nated cost of so!!di!! carton and shipment la tt's same as that pub 1!shed for com, wastes now stored in tanks at there in. of wastes from Ilcensed reprocessing ment on June 3,1963. except as noted 8tsilations constitute over 95 percent by pisnts to Federal repositortes for storage below, volume of a:1 hJgh.Irvel wastes in th:s ,
country. However. such a mates d12er will not have a signiftcant impact on the Of primary concern in develeping a nuclear power industry.
polley for the siting of fuel reprxessing msterttHy D: radiosetMty level, heat output and chemical composition from The Comrnission does not now regard plants is the need to restrict. in the inter. storage of Yquid blW!evel wastes in ese of pub!!c health and safety, the quan, wastes produced by licensed fuel reproc.
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ess1r g plants planned or under construe, tanks as constituting an acceptable t&tles and mottlity of the high-leveg trethod of long-term storage. Commis.
radioactive wastes stored onsite at fuel tion. For example, the Satannah- Elver saon experience with its tanic storage of reprocessing plants. During the past 15 ~ and Hanford wastes have Seen chem 1, years the Commission has t,een carrying ca!1r rieutralized. contain large volumes 11ould while h!gh-level sastes
.tpnk . design, is extensive construction andand out research and deve!opment programs of nonfission product materials, and have maintenance have irnproved, the fact aimed at developing a method for e2ec, heat and radioactivity outputs many times louer than the licensed p ang remains that tan's can deteriorate and tively and permanently removing these was'es. htost of the Savannah River and leak and that wastes in 11guld form of.
wastes from man's biolog! cal enstron. fer a much more serious potent:a! for asent. These prograrns have also teen Hantard wastes sere generated as the dispersal in the environment in the -
designed to reduce the possibi!!ty of the result of ODerattons to meet defense ennt M an ac@nt no maner how un-inadvertent release of such tastes to the needs. .
likely such an acetdent may be, and pre.
There are a number of unique con, environment. sent far more di".culty for recovery and The majoremphasis in these programs siderations and incentives for the Com. decontamination than soudified wastes, b** been directed toward the conversion mission's deelslon to support research Tank storage requires eatensive sur.
and development on long. term storage vetnance. and often requires mechant-s Nutd wastes into solid forms suitable in underground caverns beneath these for interim onsite storage. safe transpcrt cat cooung apparatus to be functioning and disposat in selected deep geologic Savannah River and Hanford sites.inese continuous:y. Over periods of centuries formations. These general concepts were include: The large volume of the Savan-one cannot askare the continu'ty if sur-inttlauy sunested in 1955 by the Com- nah Rher and Hanford wastes; the rel-Teillance and care thtch tank storage niittee on Radioactive Waste Disposal ative!y low heat output of these ernstes requires.
ss compared alth those from !! censed reprocessing p! ants; and the tremendous Some period of In-tanit storage of litt.
of the National Academy of Science-Na.j.
tional Resesrch Council. The concep und wastes at the repretessing plant-have been supported by successor com, estimated cost and related problems of alte may be required fCT Cooung pur-solfo:tjing and shipping these wastcJ silttees of the Academy. In the interun o!! site. This research and development poses depending upon the solidification the technical feastbitity of both waste solidificathrt and solid waste disposst in pregram is being performed in phases In the interim both Savarmah River 8
88,IO, g y'[,3 '['
e , '[
f deep geolog!c formations has been dem. years of their generation, inw a form onstrated. On June 17.194. the Com. and Hanford are immobitring their attssion announced the tentatise selec. tank-stored 11guld wastes by evaporat. suitabl,e g ,fo,r ctf g,g g tite s,h!pment ggand long.
ing them to salt takes in the exist- m .g gg . y,g , ggg, g, tton of a s!!e nest f.yons. Dns.. fcr the location of a de:nonstration re;osito y. Ang tan s. tefore any d cstan 3 n: ads y , gg Authort2ation and appronrtaticns for
- '## " ' #d ###*
construction of the re;csttory sul be
. sought in the fiscal year 1972 budget, h on t a he f sure that the s astes will te isolated from 18ovember 28s 1970 35,01
" s: *
.u_..
, . PART 50 - LICENSING OF PROD"CTION AND UTILIZATION FACILITIES The Commission has given careful this policy will not preclude considera- quirertents for decontamination and de-consideration to the safety considers- tion of State participauon in federally commissioniny of fuel reprocessing fa-tions usociated w!th the transport of osned repositories or in hl:h-level waste cinties wi!! be developed in consultation
- - solid radioactive wastes to a Federal ree management activities at some time In with competent groups. Public comment pository.The technology and experfertce the futura. will be invited before sucli rules are V resutting from the transportation of The health sed safety of the public, made ef!cctive.
The proposed polley statement. Es pre-trradiated fuel elements over the irst 20 both of the present and future genera-years provide a firm basis for developing tions, requires that any permanent vlously published, also included provi-safe, reliable systems for shipping solidt- repository for high-level radioactive sions, designated as paragraphs 6 and fled high-levet radioactive wastes. Ship- wastes provide complete isolat!on cf the 7 of the polley, uhtch related to the dis-snents of so!!dHied radioactive wastes wastes from man's biological environ- posal of radioactive hul;s and other solid carried out in accordance with regula- ment. The Commission believes that Ted- wastes resulting from operation of fuel tions of the AEC and the Department of eral ownership of and responsibility for reprocessing plants. Since publication of Transportation should not endanger the the proposed 1.yons. Kans repository the proposed pc!!cy the Commission health and safety of the pubile. will provide the most productive and has undertaken studies in connection As noted, the policy tacludes a 5 year timely means of demonstrating that such with the ultimate disposal Ll wastes cune limit on intertra 11guld storage of high- repositories can be operated without en- taminated with plutonium or other
- 1evet mastes. The policy would also re- dangering the health and. safety of the transuranium nuclides.The Commission quire that the maste be transferred in public, anticipates that these studles may re-sond form, to a Federal repository no Paragraph 2 of the proposed policy sult in amendments to its reg 71stions later than 10 years following separation published for comment on June 3,1969: identifying certain radioactive materials of the fLssion products from the irradia Prorided. That "High-level liqu!d radio- deemed unsuitable for disposal at 11-
- sted fuel. These inventory restrictions active wastes in excess of this authorized censed. privately operated land buttal would be imposed in the interest of mint- inventory must be converted to an AEC* !aeilities. Public comment wC1 be invited maring any potential harard to the public approved solid form." Paragraph 2 has on such proposed amendments. Any health and safety and of assuring that been revised to spacify the to.ms of Commission rules on eventual disposal ahlpments of a Federsi repository are solidif!ed high-levet udioactive wastes of such wastes will be rules of general snade on a timely basis. The Commission considered by the Coramtssion to be ac- applicability to tillicensees. Accordms-be11 eves that these inventory 11mitatioris ceptable for receipt and disposal at a ly, paragraphs 6 and 7 have been de:eted.
are reasonable from the standpotat of Federal repository. The specifications The Commission staff plans to con-waste management economics. While a have seen developed sith the view of vene a conference of interested industry penalty may be incurred in terms of providmg maximum fieribility to 11* representatives prior to the erpiration Federal repository space ut111 ration if censees in producing solid forms which of the go-day comment period for the wastes are placed in a repository at an would sat!sfy the safety requirements purpose of assuring a full discussion and age under 6 to g years there appears to. associated with onsite Interim storage, exchange of views regarding the policy be 11ttle economic incentive to dcrer transportation, and Federal repos; tory statement. The date and place of the placement in the repository of wastes operations. conference will be announced a$ an early a sed more than 10 years. This conclusion Data are presently available which will date, takes into account the cost an4 main- perrnit independent development of unit ne text of the statement of policy tenance of inter'm solid. storage fact 11 costs for all waste management opera
- set out below is the same as that pub-SJes, tions involved in complying with the 11shed for comment on June 3.1953.ex-Some concern has been expressed that pollay other than repository charges. cept for minor editorial changes and
.,- Touostng congressional at thortra- tu the redesignat*.on of the appendix requ! red solidineation of high.! eve!
wastes will render unavailabfe a poten. tion and the completion of the detailed as Appendix F of 10 CFR Part 50; (2) repository dealgn a firm schedule of the revistort of the dennition of *high.
tially wastes valuable resource represent in that a unique theseof source repository charges will be developed and level liquid radioactive wastes
- in para.
radionuclidas which are useful in vart. published by the Commisslos. Fc Lnterim graph 1 of the appendix to clanfy its out applications, such as ccmpact beat guidance the previously ite. ORNL application to fuel reprocessLng s> stems and power sources. Ifowever, under the report identines the bases won XNeh other than solvent extraction; (3) the Commission policy, the permissible S. such charges may be developed and pro
- revrston of paragraph 2 of the appendix year inventory of liquid wastes wt!1 pro- vides pre;1minsry estimates. For ex* to include a speciScation of .AEC-sp-vide a ready supply of feed material for ample, the cost for disposal of a con
- proved solid form: (4) the inclusion of a an isotope recovery facility, and the tainer .of waste 'rnay be determined as statement in paragrtph 4 of the aren.
separated byproducts stil r*ot be subject the product of the cost per knit of floor dix to indicate that the decontaMna-to the inventory 11mitations. Further. area of the mine and the area that is tion to be required upon decommission.
msore, the quantity of 1sotopes generated required to provide for suScient dissipa* ing wul be the subject of criteria which in the production of nuctear power stil tion of heat from the container. In addL* the Commission wiD develop in consul.
continue to expand rapid!y in the fore. tion, there would 11kely be a minimum tation with competent groups: (5) tne seeable future; thus, the isotope produc. charge for handling. Of course. au such dt etion of the previous!y propened pard.
tion in any given year will represent a charges would be subject to adjustment graphs 6 and T of the appendix. dealing significant fraction ef the total quantity as experience is gained in the operation with ultimate disposal of nuscenaneous 4f the repository, solid wastes generated at fuei reprocess.
then available. One of the elements of the policy 14 ing facilities in view of current AEC Interest has been expressed regardIng that fuel reprocessing plants he designed studies which the Commission antici.
that aspect of the policy shleh provides to facG1 tate deconttmination and re* pates may result in proposed s. mend =
that disposal of blgh. level radicactive moval of all sign!! cant indioactive ment.s to its regulations identifyLng fission product waste would not be per. wastes at the time the facility is perma
- certain ' radioactive materials deemed stitted owned on andany land other controUed than by the that nently decommissioned. Vievi trem the unsuitable for dispossi onsite or al li.
Federal Government. It has been urged that the perspective that each generatwn is trus* censed, privately owned land burial fa.
Commission permJt the estabushment of tee of the enviSnmect for succeeding calities; and (63 the inclusion in the repositories for such wastes on State. generations, the Commission conniers sprendix of a new paragraph 6 proy1d-that the pubito interest requires that a ing that with respect to fuel reprocess.
owned land with operation under AEC high F ree of decontamination capabi1* ing plants already licensed, the licenses 11 censes.We these Commission suggestions has considered but belleves at this ity be included in such facilities ar.d that wi.1 be. appropraately cond;ttoned to time that high-level waste repositories any residual radioactive contaminetten carry out the purposes of the policy should be under rederal ownership and after decommissioning de su=clentir stated ,.bove. 13 the Atomic Ene*gy Act Pursuant c tempons!bil!!y.The Com:sission wishes to low as n3t to represent a hszard to the
(- , emphasLre, ho%ever, that adCptien of pub'ic health anf. safety. Specif3 re. of 193s, as amended, and s:ctions 53-November 28, 1970 350ct m
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- PART 50 - LICENT,ING 0F PRC:TJCTION AND UTILIZATION FACILITIES and 55'3 of title 5 of the United States Code. the following amendment to 10 CTR Part 50 la published as a docu.
ment subject to codification, to be esee.
, tive 90 days after publication in the l Psosast Rronstan. The Commission in.
vites sti interested persons who desire to submit written comments or su;tes.
tiens in connection with the amendment
{ to send them to the Secretary. UJ5.
- Atomic Energy Commission. Washing.
- ton, D C. 20545, Attention: Chief. Pub.
De Proceedings Branch. within 60 days after pub!! cation of this notice in the Psosant Raststaa. Consideration w111 be
- given such submissions with the view to possible amendme'ats. Copies of ccm.
menta received may be examined at the Commisston's Public Document Room at 1717 H 8treet NW Washington. D.C.
A new A'spendix P is added to 10 CFR Part 50 to read as follows:
I l
l December 31, 1970 350n
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. e APDFFDIY B
- ' ' " PART $0 - LICENSING CF PRODUCTION AND UTILIZATION FACILITIES Arramma F 11guld storage. In etther case, such equapment shan be installed at the earnest pracucable
. pot.tCT s&I.aftNG To TNE art 1Ne er rVak es. date. taking into seceant the time required Paocasa:No etassts ans mas.atse wasta asas. for design, procurement and instausuon 44EstaNT raCILtTIts thereof. WIth respect to such plants. the
- 1. Pubtle health and safety consadorations ePptication of the polley stated in thse ap.
pendts to esasung wastes and to wastes N- relaueg to ucensed fuel reprocessing plants de not require that such feet!!ttes be located generated prior to the instanation of such on land owned and ecatreued by the Federal equipment, w31 be the subMet of a War Oovernment. Such plants including the fa. ' '*I' ""E1" 8 PM'"8'"8-
- s. lines for the temporary stoeste of high.
levet radioscure wastes. may be loested en privately ewned property.
- 3. A fuel reprocessing plant's inventory of high-level Equid radioscure wastes udt be usuted to that produced In the prior 5 years, trer the purpose of this statement of poucy.
- htsh-leve111 quid radioactive was*es* sneans those aqueous wastes resulting trora the operation of the $rst cycle solvent estraction systena. er equivalent, and the concentrated westee from subsequent entraction cycles, or equivalent. In a faculty for reprocessirg Ir.
radiated resetor fuels ) Elgh4evel L quid 2 radteactive wastes sha!! be converted to a
= dry soud na required to cores:7 with this
, *; naventory unutauon. and placed in a sealed
, eentainer prter ta transfer to a Federal re.
m pository in a shipping eas:: moeung tDe re.
, quiremente of 10 CFR Part 11. The dry soitd se a&all be ehenucally, thermatty, and radicty.
SteaUy stable to the extent that the equuth.
rtum pressure in the sealed container vt!I not raceed the safe operating pressure for that container dartag the period from cano ning through a statmum of 90 days after recetyt (transfer of physteal custody) at the Federal repository. 4!! of thess high-levet radioactive wastet shall be transferred to a Federal repository no later than 10 years foNwtag separation of Assion products from the arradiated fuel.1.*pon receipt. the Federal repository wtu assume perminent custody ,
of these radioactive taste materia:s a:though ladustry wtu pay the Federal Government a charge which together with interest of.
unespended baiences wtu be designed to de.
fray alt costs of disposal and perpetuti sur.
woulance. AEC will take stue to the radiose.
tire waste matertal upon transfer to a Federal repository. Before retirement of the reprocesstng plant from operational status and before termination of neensing pursuant to 5 8032. transfer of au such saates to a Federal Repository shnu be completed. Federal repositortes, wNen wiu be umited in number, wu! be des:gnated later by the Comm:ssion.
- 3. Disposal of high4evel radioactive $aston product waste material wiu not be permitted en any land other than that owned and coa.
trolled by the Federal Government.
4 A design objecuve for fuel reprocesstag plants shan be to facultate decontamination aqd removal of au signtScant radioactive westes ht the time the faculty is permanently
- decommissioned. Crtter:a for the extent of decontamination to be requires upos decom.
musatoning and utense termination wul be deeeloped in eensultation with comeetent groupa Opportunity wiu be a2orded for pub.
IAe commeal before such ertteria are made efective.
- 3. Applicante preposing to operate fuel re.
processtag plants. in submitting Informstlen concerning Saanctal quatttentions as re.
qutred by l 50 33(fl. shall tactude informs.
tion enabitag the Commission to determine whether the opptteant is Saant.latly qual 13ed.
among other things, to provide for the re.
movat and disposat of radiosettre wastes, during operation and upon decommisaloning of the factitty. In accordance with the Com.
nueston's regutsuons. including the require.
Jnf.ats e Watametrespect out to this amoendit-to fuel reprocesstag plants already Licensed, the tscenses udt be ap.
propriately conditioned to carry eut the pur.
- m of the poney stated above with respect w te h!gh-tetet radiesettte $ssion produer ~
(--
ustes greersted after installatton of new g equipmeest *cr Interim storage of 11gu14,
,e wastes er an.er instairation of equipment
] reguired far motidines lon without interina May 5 e 1971 163f (Next page is 164a) d'%
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I' UIIITED STATES COURT OF AFFFES
' for the District of Columbia' Circuit P
No. 71-1732 THE CCIOMEE FCR IiUCLEAR RESFO::SIBILITY, IIIC., ET AL.,
i Appellants
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3 Appeal from the United States District Court for the District of Columbia United States Court of Appeals for the District cf Cafumbia C;rcit Decided October 5, 1971 SEU OCT 51971 crrnK Mr. Da rid Sive, a member of the tar of the Supre=0 Court of l New Yoric, m he vice, by special leave of court, with whom Mr. Semel H.' Weisroc.M was on the brief, for appellants.
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[ , Mr._Ei und B. Cle.rk, Attorney, Department of Justice, with whom Essrs. Shiro Xeshiva. Assistant Attorney General, and S.0 es L.
, McKevitt, Attorney, Department of Justice, vere on the brief, for i appellees.
, Before F/2ELOIT, Chief Juice, and LEVEITIHAL and ROBII;SOIT,
+ Circuit Jadces. - -
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l PER CURIAM: Plaintiffs seek to enjoin an underground nuclear i
8 test, code-named Cannikin, to be conducted by the defendant Atomic Energy Commission ( A.E. C) . The district court granted summary
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W judgment for defendants, and plaintiffs appealed. The case came on for consideration of plaintiffs' motion for a stay pending appeal and expedited consideration df the appeal. The parties stipulated at the time of oral argument that since briefs on the merits had already been submitted by both parties, the case should be heard on
, the merits. Accordingly, we consider in this opinion the substantive I questions presented. We reverse, and remand the case to the district court for continued proceedings consistent with this opinion.
I.
The A.E.C. is completing plans for an underground test of a 2/
nuclear warhead on Amchitka Island, Alaska. As required by the National Environmental Policy Act-(t? EPA), 42 U.S.C. 4331 et seg, (1970), the Commission issued an impact statement evaluating the environmental effects of t'he test. Plaintiffs, seven conservation J/ For purposes of this o' pinion we refer to appellants in this court as " plaintiffs" and appellees as " defendants."
jb/ The precise yield of the nuclear test has not been released although it is in the range of five megatons. The test was l originally scheduled for October, 1971, but Congress has provided
! that it may not take place. sooner than May, 1972, unless the I President gives his direct approval for an earlier date.
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. groups, seek to enjoin the test' primarily on the grounds that the ib' impact statement did not satisfy NEPA's requirements.
Plaintiff $ comn.enced 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 I 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 summary
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' judgment for defendants. This appeal followed.
II . .
I' The district court specifically upheld the sufficiency of the complaint by denying the motion to dismiss. The court did not articulate its reasons for granting summary judgment, but from the
! record in the case, including ' the expedition with which the motion j for summary judgment was granted, we conclude that the district court j .
- accepted the validity of the contention that was most strongly pressed by the' Government
- that congres's 's passage of authorization and tppropriations bills for the test represented a conclusive determinatic
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jh/ 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 Amendments of #
citizens endangered by cannikin.
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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 wa's predicated on an impermissible basis, the judgment of the District Court must be reversed. See The Delaware and Hudson 1
Ry. Co. v. United Transportation Union,' No. 71-1183, March 31, 1971 l
Congress could, of course, 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
i implication is disfavored,. and the doctrine t,g < lies with full I
.' vigor when, as here, the subsequent legislation is an appropriations l 1 21 /
measure, and when the prior Act is to continue in its general applicability, as construed by the courts, but the claim is made that i 5/
I it is to be subject to a particularized legislative exception.
Congress must be free to provide authorizations and appropriations
'for projects proposed by the enecutive even though claims of illegalit;
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on grounds of noncompliance with NEPA are pending in the courts.
There .is, of course, nothing inconsistent with ' adoption of appropriati.
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j and authorizations measures on the gr2 tanto assumption of validity, 4/ See, e.g., United States v. Langston, lla U.S'. 389 (1886).
5/ Cf. , District of Columbi'a Civic Aran, v.'volpe. U.S. App.
D.C. , 434 F. 2d 436, 444-47 (1970).
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- o I while leaving any claim of invalidity to be determined by the .
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courts. That is the effect of the authorization and appropriations measures relating to the Cannikin test. This conclusion is established i
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by the general principles juct discussed. Nothing in the legislative I
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 d
contemplated that the claim of illegality remained for resolution 1/
by the courts. The legislative history indicates that while the l
.I i impact statement was used as reference e.aterial by both proponents
! and opponents of the test, congress did not putport to make a binding determination on the issue whether the statement was in compliance I'
with NEPA. .
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i Thus, plaintiffs clearly presented a cognizable claim under NEPA, 4 .
I and summary judgment would be appropriate only if they failed to I 9/
provide any factual underpinning for their claim!
(b/. That was precisely the conc,1usion as t,o the intent of congress i
reached in another NEPA case by the court in Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 749, 762-63 (E.D. Ark.
1971).
2/ Thus, Representative Price, in voting for the project, stated concerning the issue of whether the impact, statement complied with NEPA: "This matter is before the court. I submit that if there has been any violation of the law, the court will supply the appropriate remedy." 112 cong. Rec. 6785, July 15, 19,71 Ih/ See next page. '. [
'9/ See next page. -
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III Section 102 of NEPA requires, inter alia, that an impact statement assess adverse environmental effects and discuss
.I alternatives to the proposed action.10/ On the ultimate issue I
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 I
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, f
abandon or modify, the projec t, shall be clearly advised of the
^
l 8/ In view of our disposition of the case, it is not necessary I to rule on whether any of plaintiffs' other three grounds for relie,f state a claim on which relief can'be' granted. Our order does not foreclose the district court, on recand, from striking
.any or all of those groun ds for failure to state a claim.
9/ Rule 56, Fed.R.Civ. Pro. , permit s summary judgmefit only when no material issue of fact is in dispute and the moving party is e
by law entitled to judgment. See sartor v. Arkansas cas corp.,
321 U.S. 620,.627 (1944),
,1,0_/ NEPA, section 102, 42 U.S.'C. 4332 (1970):
The Congress authort:es and directs that, to the chapter, stJ:h mili ins':re that presently unquan-fu'lest estent pos Me: (1) the po;ictes, regulatfor.s. t:fted endumental amen. ties and vatuss may be
, and pub!!c lass of the Umted States shall be Inter- . given appr.::riate considerat:on in decis!cnmaking preted and adinir.Istered in acco-dsnce m1th the so!1- alons zith e:onomic and te:hnical considsrattens:
'cles set forth in t:1:s chapter, and (2) all agenc:es (C) ine::fe in escry recommendation or re; ort
+ of the Federal ootcrament shall- on propos2:s for legis'ation c:13 other ma*or red-(A) ut!!ste a systematic. Interdise!p!'s.sry aD- ' tra! act!rns sitti": ant *y acecting the quntity cf proach abich mit!1Muro the letatrated use of the the human envirenment, & detailed statement by riatural and s.ccial scien:c 6 and the endicantentn! the resporet!e o"ctst on .
- design arts in p!anning and in decisionmC!r.3 (1) the ens 1ranmentallrr.pset of the propoced
- h!ch raay have f.r.!=lP:t en n.ar/s enviMn- ent: act!on,
. (BI (dentify sul d ece*cp ev.heh and prJte- -(d) arJ zoverse enstronmentr.t e !cets whic!r *--
e dures. in Crtsu!* %h M*h the CMnf t en Enferen* Cannot le aFotDd should the propon1 be adntal QJality estabt.,heJ t,y s Achapter II of thJ imp:emen*ed.
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- environmental factors which they must take inte account. See calvert cliffs' coordinating committee v. Atomic Energy commission, No. 24,839, slip opinion at 11
' The statement has importance in focusing the environmental
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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 factc,rs, but insofar as staff has prepared the environmental statement for transmission
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, and consideration throughout the entire executive process the officials making the ultimate decision, whether within or outside.
the _ agency, must 'be informed of the full range of responsibic l opinion on the environmental effects in order to make an informed l
l choice. Moreover, the statement has sign'ificance in focusing i . .
I environmental factors for informed appraisal by the President, J
who has broad concern even when not directly involved in the decisional process, and in any event by Congress and the public.
I .
J OOf '(Con ' t . )
(1111 atterna!!ves to the p t,;os?d act!cn. respect to any environmentst imps:t invclveJ.
(tvl the reistionship bctaten Io:At short. Coples of su:S s'atement and the comments and serva uscs cf run's enttMS /.tr.t and the rn vieirs of the 37.--eprLste Federat. state, a-f !ccal tenance and enhancement ef long terin ptcdac- agencies. st2h are au:hortred to devctop arid l
livity, and enforce ene.r:smental standards sh211 be m de til any trrr.'ers!ble and1:Tetriesab'e comer. t. availabte to tu Presid:nt. the Council on Environ
- r asents of rescyrces which t.w:4 te inv,hed in atentat Qu.f;:s and to the puth as prog (ei by 4 the procesed ac'.:on should it be tr.i$emented. section 552 cf Title S. ar.d shalt a: con: piny the
' Prior to rnaitn any detsikd sta:catent, the re- proposal tenush the existing asene/ Jede*
sponsible 3 ede:41 of2ctst thst! conMt suh and ~ processes: . . . **.
- j obtain the comnter.ts of any Fede:Rt ste .cy s-hich has jurisd:ction by Liw cr sx:lal expertise er.th i.
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l When, as here, the issue of procedure relates to the sufficiency I
- of the presentation in the statement, the court is not to rule on t the relative merits of competing scientific opinion. Its function is only to assure that the statement sets forth the opposing
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l scientific views, and does not take the arbitrary and impermissible I
I approach of completely omitting from the statement, and hence from the focus tha,t the statement was intended to provide for the
.! deciding officials, any reference whatever to the existence of
' ' responsible scientific opinions concerning possible adverse en-
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l vironmental effects. Only responsible opposing views need be included and hence there is room for discretion on the part of j the officials preparing the statement; but there is no room for l an', assumption that their determination is conclusive. The agency
' need not set forth at full length views with which it disagrees, y all that is required is a meaningful reference that identifies the problem at hand for the responsible official. The agency, l of course, is not foreclosed from noting in _the statement that i 12/
it accepts certain contentions or rejects others.
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, 11/ Compare Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 749,759 (E.D. Ark.1971).
12/ Compare Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 749, 759 (E.D. Ark.1971).
9 3
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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 mot " 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 clearly contemplates that the parties shall have opportunity for deposition in order to establish
- the existence of a material issue.
2/
Here, plaintiffs sought.
. to establish that tSere was responsible scientific opinion as t
' 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 1
prescribed by NEPA.
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Plaintiffs also alleged the existence of reports by federal agencies recommending against Cannikin specifically because of potential harm to the ' environment., UdPA clearly- indicates that the agency responsible for a project should obtain and release such I JJ/ Cf. , Rule 56 (f) , Fed.R.Civ. Pro. , Berne gereet Enterprises. Inc.
- v. American Exo' ort Isbrandtsen Co., _Inc., 289 F.Supp. 195 (S.D.N.Y.
1968), 6 Moores' Federal Practice, S 56.24 J4/ We do not here decide that the statement is inadequate,
' but only that the district court is not to foreclose.an opportunity.
to plaintiffs t'o.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 ettempted, through deposition of the A.E.C. 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 possible interposition of valid claims of privilege--
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should be allowed to continue.
I Reversed and remanded.' .
15/ 42 U.S.C. 433'2 (1970).
Jj/ We do not consider whether the court may decline to order the release of agency comments on the ground that they are not so related to the impact statement as to require their inclusion therein, or on the ground that they are exe:pt ~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. -
J7j Since defendants stated t .at the test would not take place f
without ample rut ice to the plaintiffs, we see no need to consider whether or not'to iss'ue a stay pendente lite. If the need arises, the question of a stay may, of course,-be addressed to the district
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