Potomac Alliance v. United States Nuclear Regulatory Commission and United States of America, Virginia Electric and Power Company, Intervenor

682 F.2d 1030, 221 U.S. App. D.C. 81, 12 Envtl. L. Rep. (Envtl. Law Inst.) 20937, 17 ERC (BNA) 1785, 1982 U.S. App. LEXIS 17321, 17 ERC 1785

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 20, 1982
• Docket: 80-1862
• Status: Published

Opinions

Opinion PER CURIAM.

Separate Concurring Opinion filed by Senior Circuit Judge BAZELON.

PER CURIAM:

Petitioner Potomac Alliance seeks review of a decision of the Nuclear Regulatory Commission (NRC) amending an operating license to authorize Virginia Electric Power Company (VEPCO) to increase the storage capacity of the spent fuel pool at its North Anna Nuclear Power Station. Petitioner claims that the NRC violated the requirements of the National Environmental Policy Act (NEPA)¹ in failing to consider, prior to granting the requested amendment, the long-range future effects of permitting the increased storage capacity, including the situation as it will exist on the date of the plant’s permanent closing in 2011.

We note that this same issue has, heretofore in the recent past, been raised in, and addressed by, this court. In Minnesota v. NRC, 602 F.2d 412 (D.C.Cir.1979), this court, on virtually an identical set of facts, found itself unable to sustain, as against a claim of NEPA violation,² an NRC order amending an operating license to expand spent fuel storage capacity, absent a meaningful exploration by the agency of the dangers presented by the continuing existence of the storage pool after the final closing date of the plant, and a finding based thereon that either (1) a satisfactory solution is presently available or (2) there is a reasonable probability of such availability by the shut-down date. This is precisely what the NRC failed to do in the case before us. Mindful of our rules with respect to the maintenance of uniformity in dispositions of like cases by different divisions of this court, we conform the result we reach in this case to that one.

In Minnesota, the court, despite the apparent NEPA violation, declined to vacate or stay the license amendment in question, indicating instead that the Commission was free to proceed with consideration of the effects of modifying the spent fuel storage capacity by such means as it might deem effective to that end. The court was careful to say that it did not contemplate that a trial-type adjudicatory proceeding was required, and it suggested the appropriateness of the generic rulemaking which the NRC had professed to have in view. Adopting the court’s suggestion, on August 2, 1979, the NRC noticed a generic proceeding to reassess the outlook for the availability of safe nuclear waste disposal methods, focusing on the specific question raised by the Minnesota court. This rulemaking, termed by the Commission the “Waste Confidence” proceeding, is currently continuing. Therefore, as in Minnesota, we decline to vacate or stay the challenged license amendments.

The Commission has recently informed the court, in response to a specific inquiry by it after this case was taken under submission, that

[t]he earliest that the proceeding might conclude and a decision issue would be about six months after the January 1982 oral presentations, but it is possible that a year or more might pass before a final Commission decision could be reached.

NRC Response to Request Concerning Status of Waste-Confidence Proceeding, at pp. 2-3. Implicit, however, in the disposition by the panel in Minnesota was the assumption that the NRC would proceed as expeditiously as possible.

Under these circumstances, and taking into account the lengthy period of time that has elapsed since Minnesota, as well as the scientific and technical difficulties that appear to characterize this problem, we think an appropriate response to the NRC’s latest progress report is for us to assert that its failure to act by June 30, 1983, will place in jeopardy the expanded authority at issue in this case.

The case is remanded to the NRC for further proceedings and consideration consistent with the purposes of this remand.

It is so ordered.

1 . Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C) (1976), provides in part that

all agencies of the Federal Government shall ... include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement ... on

(i) the environmental impact of the proposed action, [and]

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, [and]

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

2 . Petitioner in Minnesota raised challenges based both on NEPA and on the Atomic Energy Act. Potomac Alliance also argues before this court that the Commission violated the Atomic Energy Act by approving the license amendment without a prior finding of “reasonable assurancef ] that the modification of the North Anna spent fuel pool for long term storage would not endanger the public health and safety.” Appellant’s Br. at 21. This claim was not, however, raised before the Appeal Board or the Commission and may not be raised for the first time here. Cf. Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”).