ML19241B831

Brief in Support of Motion for Reconsideration of Contention 7 Submitted by Intervenors Colemans.Aslb Order Would Comply W/Mandate in Mn Vs NRC Re Storage of Radwaste Beyond Term of Ol.Certificate of Svc Encl

ML19241B831
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Site:	Salem
Issue date:	06/25/1979
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STATEMENT IN PEHALF OF MOTION Cn May 24, 1978, the Atomic Safery and Licensing Board, empaneled to adjudicate the several challenges to the license amendnent application filed by Public Service Electric and Gas Ccmpany seeking NRC approved to increase the capacity of its Salem One SFP frem 264 to 1170 fuel assemblies, entered the pre-hearing Order that established the parameters for this proceeding. Said Board Order rejected Colgr-aris' seventh proposed contention which asserts that the licensee has given inadequate nnsideration to the issue of the safety of on-site nuclear waste storage beycnd the auration of the plant's cperating license. Order May 24, 1978, p.8. The authority for this dismassal of Contencien Seven was the decision of the Atclaic Safety and Licensing Appeal Board in Northern States Power Cc==any (Prairie Island Nuclear Generating Plant, Units 1 and 2) ALAB-445, 7NRC41 (1978). Within the last month, however, the ALAB's holding in the Northern States Pcwer Ccmpany case has been ,

effectively reversed by the United States Court of Appeals for the District of Columbia Circuit.

On May 23, 1979,. the United States Court of Appeals for the District of Colu=hia Circuit held that, prior to approval of a proposal to permit expanded storage of spent fuel, the Nuclear Regulatory Cc= mission must (Minnesota v. Nuclear Regulatory Cc= mission, F.2d , Nos. 78-1269, 78-2032, decided May 23, 1979, Slip Cp. p. 14):

"determin[e] whether there is reascnable assurance that an off-site stcrage solution will be availably by the years 2007-09, the expiration of the plants' operating licenses, and if not, whether there is reasonable assurance that the fuel can be secred safely at the sites beycnd those dates." [ Copy attached hereto as Exh."A"]

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To date, the Ccenission has not instructed the various Atcmic Safety and Licensing Boards which are considering applicataons to increase the capacity of reactor spent fuel pools how they must implement this =andate frcm the Court of Appeals. Nonetheless, the clear import of the Court's decision is that considera-tien of long term on-site storage safety will have to be addressed by the Commission, if it can not determine with reasonable assurance that an off-site waste disposal solution will not be available by the terminatica date of the plant's operation license. Within the limits of the law, the Minnesota Pollution Control Agency decisicn lef t to the NEC the selection of procedures it will employ in its determination of satisfactory solutions to this vexing radioactive waste problem. The Court noted, however, that any method chosen by the Commissicn would have to afford the opportunity for all interested parties to make a judicially reviewable record on these issues.

Slip Op. pp. 11 & 15.

In light of this unequivocal injunction by the D.C. Circuit Court of Appeals, the Colemans (along with all other interveners in reracking license amend =ent proceed-ings throughout the United States) are confronted with a situation where they have been vindicated in their legal position that the Nuclear Regulatory Cornission must seriously address the consequences of Artificial Island (along with other reactor sites) beccming defacto radioactive dumps for the foreseeable, indefinite future. None the-less, this may be a hollcw victory indeed if Ccemissica action en the Court's r e .d (no timetable for NRC consideration was included in the Court ruling) is not forth-ccming prior to the conclusien of the within preceeding.*

Ccnceiveably, the Ccemission staff, understandably pre-occuppied with the Three Mile Island regulatory reform fall-out, could delay ccepleting its proposals to comply with the Minnesota mandate until all the pending reracking applications are decided, rendering the Court's Order essentially meaningless in that no proceedings wculd still be active to have it applied to. Such a non-retroactive application is not inconsis-tent with Judge Leventhal's opinion which appears to limit its applicability to

" subsequent adjudicatory proceedings." Slip Cp. p. 10.

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In order to prevent such a : anifest injustice, it is essential that consideration of Cole =ans' Contention Seven be reopened to allow the parties herein the opportunity to present evidence en the issue of the safety, environmental and health censequences of long term nuclear waste storage on Artificial Island. Such evidence then can be submitted to the Ccemission as part of its cc=pilation of a full and fair record on this issue. In the alternative, the Board should not close the record in this pro-ceeding until the Commission has acted upon the Court romand so that its determination may be applied to the instant application. To do otherwise would in effect be to rule that the Colamans have a right with no remedy. Such a cramped response.to the Court's mandate would not be consistent with accepted principles of fundamen*al fair-ness, equal protection and due process of law.

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CONCLUSICN For all the foregoing reasons, it is respectfully submitted that the Board snould reopen its consideration of Colemans' Contention Seven in order to fully and fairly co= ply with the Court's mandate in Minnesota v. Nuclear Pagulatorf Commission, Nos. 78-1269, 78-2032 (Exh."A")

Respectfully submitted,

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KEITH A. O DSGRFF / /

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I Notice: This opinion is subiaet to formal revision b+rore pub!Ication in the Federal Reporter or U.S. App.D.C. Reports. Users are requested to notify the Clerk of any for:nal errors in order that corrections may be made befare the bound volumes go to press.

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STATE OF MINNESOTA, BY THE LIINNESOTA POLLtmoN CONTRot AGENCY, PETITIONER v.

UNITED STATES NcCLEAa REGUI tToar Co:nnSsION AND UNITED STATES OF A3IERICA, RESPONCENTS NoaTHERN STATES PowEn CO3IPANY,INTERVENOR No. 78-2032 i NEw ENGLAND COALm0N ON NcCLEARPOLLtmoN, PETITIONER V.

UNITED STATES NucIIta REGULATORY CO3DHS3 ION AND UNITED STATE 3 0F A3tERICA, RESPONDENTS VER .IONT YANKEE NcCLEAa power CoaFoaATION, INTERVENOR Bills of costs must be filed within 14 days after entry of Jud;=ent.The court looks with disfavor upon motions to fde biUs of costs out of time.

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I 3 i en 2 a Petitions for Review of Orders .

(Appeal Board), a unit of the Nuclear H g latory Com-of the Nuclear Regulatory Commission mission (NRC). The Appeal Board aDirmed initial de-cisions of Atomic Safety and Licensing Boards (Licens-ing Boards) granting two operators of nuclear power plants amendments to their operating licenses to permit Argued May 2,1979 expansion of on-site capacity for the storage of spent nuclear fuel assemblies.

Decided May 23,1979

! Tho crux of the case is current uncertainty about the Anthony Z. Roisman with whom Karin P. Sheldon was prospects for developing and implementing safe methods on the brief, for petitioner in No. 78-2032. for the ultimato disposal-or even long-term storage-f tho highly toxic radioactive wastes created id the Jocelyn Furtwangler Olson, Special Assistant Attorney General, with whom IVarren Spannaus, Attorney General, pr cess of nuclear power generation.

State of Minnesota, was on the brief, for petitioner in , In this opinion, we do not set aside or stay the chal-No. 78-12G9. j lenged license amendments. On certain aspects of the Stephen F. Kilperin, Solicitor, United States Nuclear i C"8?'.we issue rulings approving the agency's procedural Regulatory Commission, with whom Irilliam AI. Shields, Attorney, United States Nuclear Regulatory Commission,

1. jJ p sition. Howevei, we conchyde by remandmg these cases to the agency for clarification and consideration in the fp Ndward J. Shawaker and Alichael A. AtcCord, Attor- N 9 light f a related proceedmg and other current de-neys, Department of Justice, were on the brief, for g velopments.

respondents.

}g 3 I. BACKGROUND AND DECISION UNDER REVIEW Robrrt N. Zahler with whom TVm. Bradford Reynolds was on the brief, for intervenor,in No. 78-12G9. [ )2 A nuclear reactor core contains a number of fuel as-Thomas G. Dignan, Jr. with whom R. K. Gad III and semblies, bundles of thin tubes (or " fuel rods") contain-Faith S. Ilochberg were on the brief, im intervenor in g

- :f Ing pellets of enriched uranium. The buihl-up of neutron-No. 78-2032.

Also James IV. AIostman, Assistant Attorney General,

{h. absorbing " poisons" during the chain reaction reduces the ability of the fuel to sustain an eflicient chain reaction.

Dcpartment of Justice, entered an appearance for re-spondent, United States of America.

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Spent fuel assemblies must therefore be removed per-i dically from the reactor core and replaced with fresh

. e fuel. When removed from the core, the nssemblics gene-Before TAntot, LEVENTIIAL and MAcKINNON, Circutt j rate enormous heat and contain highly radioactive Ura-Judpes- ~

l nium, actinides and plutonium. Under current practice, Opinion for the Court filed by Circuit Judge LEVENTHAL, a the assemblies are placed vertically on racks in a " spent Concurring statement filed by Circuit Judge TAhtre, fuel pool" adjacent to the reactor and within the con-

. tainment vessel. The spent fuel pool is a large basin LEVENTHAL, Circuit Judge: Petitioners challenge an constructed of concrete, lined with stainless steel and order of the Atomic Safety and Licensmg Appeal Board

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the possibility that the unavailability of a permanent nuclear waste disposal solution might cause the plant of nuclear wastes on the site. 0 N.ll.C. at 433 (Vermont sites to become permanent storage facilitics, or even to Yankee); J.A. at 172 (Prairie Island) (order following continue on as storage beyond the expiration dates of the prehearm, g conference).

licensees' operating authority (for Vermont Yankee and Petitioners appealed. The Appeal Board consolidated Prairie Island, during the years 2007-2009). ,; the appeals and allirmed. 7 N.II.C. 41 (Jan. 30,1978).

Noting that the modification would entail no increase The Appeal Board first noted that there was no serious in the mnount of wastes annually generated by the re- challenge to the evidence supporting the Staffs and actor, the Staff found " reasonable assurances" that the Licensing Boards' safety and environmental conclusions.

modifications would not endanger public health and n It then addressed the different issue raised by the inter-safety, and hence satisfied the standards of the Atomic ccd venors (petitioners here). Those parties contended that Energy Act and nil 0 regulations,' and concluded that the National Environmental Policy Act (NEPA) did not CM the uncertainty as to the feasibility of ultimate solutions require the preparation of environmental impact state-en

d. , d for the disposal of commercial nuclear wastes raised the possibility that the reactor sites might become long-term ments because the madifications would not "significantly tar 3 and possibly indefinite storage sites, persisting subse-affect the quality of the human environment."' } quent to the expiration of the plants' operating licenses.

The initial decision of the Licensing Board in each @d c a Defore any expansion of oneite storage capacity could be approved, they argued, the Commission must consider proceeding essentially adopted the Stafrs safety and en-viromnental findings and approved the requested amend- @'n] ,

the safety and environmental implications of indefinite ments. G N.lt.C. 43G (1977) (Vermont Yankee); G storage on-sito after decommissioning of the reactor.

N.II.C. 2G5 (1977) (Prairic Island). Each Board ex-h In deciding to what extent it was bound to take into cluded .from its determination any consideration of the safety and environmental efIcets of long-term storage f_ b account these long-term implications, the Appeal Board 2 J. A. at 10 (Vermont Yarkee); id. at 210 (Northern b> f began with NEPA's " rule of reason" as to the possible consequences of an action that must be considered. That States); src 42 U.S.C. s 21M(d) (197G) (no !! cense may be i n s doctrine was first enunciated in NRDC r. Morton 148 e issued, if, in the opinion of the Commission, issuance would x U.S. App.D.C. 5, 458 F.2d 827 (1972), gnoted with ap-be " inimical to the common defenso and security or to the M> proval, Vcrmont Yanhec Nuclear Power Corp. v. NRDC, health and safety of the public"); 10 C.F.R. } G0.fi7(a)(3) 435 U.S. 519, 051 (1978); KIcppe v. Sierra Club, 427 (1978) (licene,e may be issued upon finding that "[t]here is U.S. 300, 410 n.2t (1970). The Board defined its in-reasonable assurance (i) that the activities authorized by the quiry not as whether it was " theoretically possible" that license can be conducted without endanger,ngi the health and J safety of the public ); see nIso 10 C.I .it. 6 50.01 (1978) no o@sik fuel repsibics Md k M&W d N (Commission guided in granting amendments to licenso by  ! expiration of the license; rather, ,ti defined the question considerations entering into initial approval). t us whether that event was " reasonably probable." 7 8 J.A. at 48 (Vermont Yankee) ; id. at 243 (Prairic Island) ; N.R.C. at 49.

sce National Environmental Policy Act, { 102(2)(C), 42 Although evincing uncertainty as to the conclusion it U.S.C. @ 4332(2) (C) (197G). might reach on its own, the Hoard believed the question

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9 foreclosed by nn earlier determination of the NRC.' '

not based on or !csted by any evidentiary hearing." J.A.

The Board invoked an NRC decision denying a petition at 121. Petitioners then sought review in this court.

of the Natural llesources Defense Council that it initiate a rulemaking to determine "whether radioactive wastes II. ANALYSIS can be generated in nuclear power reactors and subse-quently disposed without undue rish to the public health ,

7 Petitioners renew the claims they advanced before the and safety" and that it refrain from granting further , i Appeal Board and the Commission.8 They submit: Prior operating licenses until such a " definite finding of safety" to the issuance of a license amendment permitting ex-was made. 42 Fed. Reg. 34,391 (1977). The Commis. pansion of on-site storage capacity, the NRC must make J]m [

sion premised its denial on its " reasonable confldence n determination of probability that the wastes, to be that wastes can and will in due course be disposed of 4 J generated by the plants can be safely handled and dis-safely." Pointing to what it called "a coordinated Fed- 7, ~;:

7 eral program to develop an actual disposal facility," the Commission noted its " implicit finding of reasonable as- g[ $% e The Minnesota Pollution Control Agency makes an addi-tional argument. It contends that NitC violated NEPA by im- -

surance that methods of safe permanent disposal of high- q  ; properly " segmenting" its consideration of the environmental level wastes can be available when they are needed." 9 ~a impact of expansion of onsite storage capacity at Prairic Is-Id. at 31,393. The Appeal Board recognized that the land. Le theory is that because the present expansion of the NRC,s conclusion did not stem from a formal record

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spent fuel pool will accommodato the spent fuel assemblica pro-duced at Prairie Island only until 1982, a request for further developed in a rulemaking or adjudicatory proceeding.

expansion is inevitable. Citing Kleppe v. Sierra Club,427 U.S.

But it nonetheless gave effect to the ruling as "a policy 390 (1970), Minnesota argues that the NitC was required declaration that, for the purposes of licensing actions, to take into account the environmental impact of this "un-it both can and should be presumed that there will be 7_> av Idab!c consequence" of the current expansion.

spent fuel repositories available 'when needed'-i.e., well u a We fmd this argument without substance. Minnesota has before the termination of the Prairie Island or Vermont A !! n t p inled to any consequence of inttyre expansion that couhl Yankee operating licenses." 7 N.R.C. at 51. Yl n b adequa y c nsidmd at um time of any requests for

% further expansion. Indeed, the NRC StalT in its environmental The NRC itself entered a simple order declining to re. On impact analysis of the proposed expansion expressly con-view the Appeal Board's decision and providing no fur- sidmd nye factors articulated by the NitG for consideration of Individual license amendment applientions pending prep.

ther reasoning or comment, in a separate statement, aration of a generic EIS on the question of interim on site Commissioner Bradford attacked the Board's reasonable stornge of spent fuel assemblics. Sec 40 Fed. Reg. 42,802 probability finding, because the conclusion of the NRC y (1975). The SlMr specincally found that the licensing action denial of rulemaking from which it was derived "was i here would not foreciose alternatives available with respect to other licensing actions designed to ameliorate a possible

• Ilad we been compelled to come to grips with that ques- .r shortage of spent fuel capacity (noting that "taking this nc-tion unaided, it is not certain what result might have been I tion wouhl not necessarily commit the NRC to repeat this

' reached. It has turned out, however, that the Commis-  ! action or a related action",) and that addressing the environ-sion has spoken on the subject. mental Impact nssociated with the proposed licens,mg netion l would not overlook any cumulative environmental impacts.

7 .N.R.C. nt 49. J.A. nt 230-12.

10 11 posed of. If no "off-site" solution (either an ultimate thesize the need for individualized determinations, but we solution to the problem of waste disposal, or some interim ca think it clear that the central issue posed by petitioners solution involving storage facilitics off the reactor site), -the feasibility of interim or ultimate nuelcar waste dis-in projected as probably available, the NRC must, take 'C posal solutions-Is one essentially common to all nuclear into account the safety and environmental implications facilities.

of maintaining the reactor site as a nuclear waste dis- D.

C posal site after the expiration of the license term. Petitioners fear that determination of the question in a " generic" proceeding, which would proceed as a rule-Petitioners do not take issue willi the Appeal Board's '

conclusion that all that is requ, red m, a reasonable prob-making rather than adjudication, will deprive them of procedures, such as cross examination, to test the evidence ability timt a solution will be avmlable when 11 ceded.

unde $W Um pohbiliy dhmhum ud wdd W

'lhey claun the Appeal Board erred m making its de-ternu, nation of reason.,ble probability not on the basis gd, afforded by an adjudication. We do not dictate the pro-g# y ndums f the generic,, proceedm.g. Vermont l.ankee of evidence adduced on the record in the adjudicatory 6 proceedings, but on the basis of the NRC's " declaration on Nuclear P nier Corp. v. NRDC, 435 U.S. 519 (1978).

of poliev" in its denial of rulemaking on the NRDC The breadth of the questions involved and the fact that petition. the ultimate determination can never rise above a pre-V diction, suggest that the determination may he a kind No one disputes that solutions to the commercial waste of legislative judgment for which rulemaking wouhl T@

dilemma are not currently available. The critical issue F suflice. 1 is the likelihood (or probability) that solutions, either A b ultimate or interim, will be reached in time. Petitioners propound a number of theories for why the " fact" of this h In its decision, the Appeal Board relied on the NRC's rulemaking request. The NRC's decision was one of likelihood must be tested within the context of an ad-judicatory proceeding and its evidentiary procedures. We 64 W4 statutory interpreta!!nn, concluding that Congress did

, not, intend in enacting the Atomic Ennrgy Act to re-do not consider these contentions in detail. We agree quire a demonstration that, nuclear wastes couhi safely with the Conunission's position that it could properly be disposed of before licensing of nuclear plants was consider the complex issue of nucicar waste disposal permitted. The Second Circuit aflirmed on this basis, in a " generic" proceeding such as rulemaking, and then h4 NRDC v. NRC, 582 F.2d 100 (2d Cir.1978). Thus, the apply ils determinations in subsequent adjudicatory pro- NRC in its denial of rulemaking chose not to undertake ccedings. Where factual issues do not involve particu- the kind of comprehensive inquiry into the question of larized situations, an agency may proceed by a com- 3 disposal soluunns that would be required to give content prehensive resolution of the questions rather than re- to a " generic" determination. NRC did stato its "rea-litigating the question in each proceeding in whleh it is j sonable confidence" that solutions wouhl be available when raised. Ecology Action, v. ABC, 402 F.2d 908,1002 (2d needed. While based on a description of current federal Cir. 1974) (Friendly, J.) ; see American Airlutes, Inc. effods in um area, NRC's " assurances" are not the

v. CA n,123 U.S. App.D.C. 310,359 F.2d 02;l (en banc), prodd of a rulemaking record devoted expressly to con-cert, demcci, 385 U.S. 813 (1900). I ctitioners hypo-

12 13 rn sidering the questions.* Further, that proceeding did not address the particular problem focused by petitioners-

['. incremental contribution of one nuclear reactor to the total environmental impact of the uranium fuel cycle.

that even if ultimate dinposal solutions will be found, they '

See NRDC v. NRC,178 U.S. App.D.C. 330, 345, 547 will not be available bcfore the expiration of the plants' l '_ F.2d 033,042 (1970), rerersed sub nom. Vermont Yankee operating licenses.  !

2, Nuclear Powcr Corp. v. NRDC, 435 U.S. 519 (1978).

We need not consider what course we would have Mi In reaching its conclusion that the environmental im-followed if this were all that were before us. As is cicar from the records of this court, and as confirmed by yc Y pact was "relatively insignificant," the Commission re-lied substantially on testimony of agency personnel that counsel, there is now pending before the Commission a .'

the as-yet unsolved problems of ultimate disposal. of related generie procceding-the so-called "S-3" proceed- nuclear wastes would be resolved. Id. at 349-50,' 547 mg, in which the issues of the storage and d,sposal i of %'

'l F.2d at 040-53. This reliance was challenged on judicial commercial nuclear wastes are of central concern. That , . review. While the Supreme Court reversed this court's proceedmg commenced in 1972 when the Commission's ~

holding that NRC's procedures werc Inadequate, Vermont predecessoi- (the Atonn,e Energy Comnussy,on) proposed ~

Yankee, supra, 435 U.S. at 539-48, it did not disapprove rulemaking to reconsider whether the environmental ef- --

fects of the uranium fuel cycle should be included in the G H.m.w n[ntssed by Judge S,amm in lu,s concurring jnm n, RDC v. NRC, supra,178 U.S. App.D.C. at 301-cost / benefit analysis prepared in licensing each nuclear -,

,S _ c 04, 547 F.2d at 058-G1, and remanded to thm court to plant. Although concluding that the environmental effects permit n determmation whether the adnumstrative record of the fuel cycle were "relatively insignificant," the r .. .

contmned suflicient ev,dence to support th9 NRC's find-Commission found it preferable to take them into account. '. -

ing. 435 U.S. at 549.

i It promulgated its rule as " Table S-3,"' which specified ,

a sedes of numerical values intended to represent the ' On remand, this court has held in abeyance its review of the original 8-3 rulemaking, as well as that of an

• Cf. NItDC v. NRC,178 U.S. App.D.C. 330, 3G1, 547 F.2d i " interim" rule now before the court, pending completion 033, 058 (197G) (Tamm, J., concurring in result) ("NEPA of NRC proceedings to promulgate a new fuel cycle rule.

requires the Commission fully to assuro itrelf that safe and At oral argument, NRC counsel informed the court that adequate storage methods are technolog,callyi and economic- g , g gg gg I K ally feas,ble.

i It forbids reckless decisions to mortagage the future for the present, gilbly assuring critics that techno. mission. Counsel also told the court that the current logical advancement can be counted upon to save us from the feasibility and likelihood of implementation of nuclear consequences of our decisions"). As appears below, the Su- waste disposal solutions was a matter contested in the preme Court, in Vermont Yankee Nuclear Power Corp. v. i hearings on the new final rule.

NRDC, 435 U.S. 519 (1978), reversed the rrling of the ma- ,

jority opinion requiring further procedurca but remanded It wouhl be inappropriate for this court to ignore the for the kind of inquiry called for in Judge Tamm's concurring relevance of proceedings in which some of the basic ques-DI "I "* tions raised now are the subject of current exploration.

' The current, " interim," Table S-3 appears in 10 C.F.R. Since the disposition of the S-3 proceeding, though it has S 51.20le) (1978).

4 -

.15 Li i~

, i ultimate waste disposal in the context of the public health a somewhat different focus, may have a bearing on the  ; and safety standard of the Atomic Energy Act. The pending cases, and bemg ad(vised of recent developments  ;

Appeal Board did not deem these concerns irrelevant, but that raise new issnes about the feasibility of disposal C it held that an analysis was required only where it was colutions, we think it appropriate in the m, terest of sound I "rcasonably probable" that solutions would not he admimstration to remand to the NitC for further con-i reached. The question is whether there has been an NRC suleration m the light of its S-3 proceedmg and analysis. i disposition in generie proceedings that is adequate to in particular, the court contemplates consideration on dispose of the objections to the licensing amcndments.

remand of the specific prob!cm isolated by petitioners- ,

determining whether there is reasonah!c assurance that

' Intervenors rely on NRDC v. NRC, 582 F.2d 100 an oft-site storage solution will be available by the years (2d Cir.1978). The Second Circuit found that Congress 2007-09, the expiration of the ph nts' operating licenses, - was well informed that disposal solutions were not cur-and if not, whether there is reasonable assurance that the g rently feasible, yet it permitted continued licensing of fuel can be stored safely at the sites beyond those dates. i nuclear plants. We do not read that opinion, however, We neither vacate nor stay the license amendments, which cf( @S: 52 to hold as a matter of law that storage and disposal wouhl effectively shut down the plants.

cL;U3 concerns are never relevant to the licensing of nuclear At oral argument intervenors Vermont Yankee and hh plants. Rather, as the NItC itself recognized, Concress has chosen to rely on the NRC's (and its predecessor's)

Northern States stressed the argument that the court has M-a M assurances of confidence that a schition will be reached.

no legitimate basis for concermng itself with issues of h Sec 42 Fed. Reg. at 34,392. There is no implication that

• The on-going S 3 proceedings have focused only on tho issue arising under NEPA, as to the environmental impact hh Congress intended that the NRC ignorn new knowledge or analysis m its beensmg decis, ions. As the Supreme of nudear waste disposal, and not on the effect of the un- (. 9 Court implicitly recognized by remanding for a review certainly as to solutions under the public health and safety of the sulliciency of the S-3 evidence in Fermont Yankec, standard for licensing under the Atomic Energy Act, which NRC counsel acknowledged is more rigorous than NEPA t[NG F

e supra, 435 U.S. at 549, this court does not exceed its judicial province by inquiring into the basia of those standards in certain aspects. And the S-3 proceedings may p assurances of confidence. As Commission counsel rightly not he concerned with the more Im, nted issue identified in notes, it is for the Commission to decide the ult.imate the pending cases of whether offsite storage solutions will $h

" question of certainly implicit in health and safety judg-be available prior to the expiration, of the operating cer.

tificates. ments and to resolve technical disagreements, but that

' At oral nrgument counsel for petitioner New England is not to say that these matters are totally immune from Coalition tohl the court of a final Report to the President by judicini review.

the Interagency Review Group on Nuclear Waste Manage- III. CONCWSION ment, issued March 19,1979, that casts some doubt on whether current proposed solutions to the permanent waste disposal The coun confines its action at this time to rejection problem are technologically feasible. Id. at 42. The Report also l of certain 'ontentions by petitioners, notably the claim pointed to gathermg institutional prohicms, c.g., the res,istanco .

of need for an adjudicatory proceed.mg. ,We agree with of localities to storage of wastes within their jurisdictions, j that "may well be more difficult than finding solutions to re-  !. the Commissmn that it may proceed in these matters by maining technical problems." Id. at 87-88. l

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A UNITED STATES CF MIERICA

• /*

NUCLEAR REGULATRY CC:CIISSION 4 s f

Before the Atomic Safety and Licensinc Board In the Matter cf  : Decket No. 50-272 PUBLIC SERVICE ET.ECTRIC  : Proposed Issuance of Acend=ent

& GAS CO. to Facility Cperating License (Salen Nuclear Generating  : No. DPR-70 Station, Unit #1)

CERTIFICATE CF SER'TICE I hereby certify that copies of Intervenors, Colemans' Motion for Recensideration of Dismissal of Colemans' No. Seven in the above captioned matter have been served upcn the parties to this proceedings by deposit in the United States mail at the post office in Trenton, N.J. , with proper postage thereon, this 25th day of June, 1979.

A - a p;.. J. u'g'<)X

- 'p g w.in y /'

+

KEITH A. CNSOCPIF ' , ,/

ASSISTANT DEPUTY PUBLIC A::VCCATE Dated: June 25, 1979 i ~i h[ . 3 u I

.