Petition for review of a decision of the Nuclear Regulatory Commission denying a petition of the Natural Resources Defense Council for a rulemaking proceeding to determine whether hig-level radioactive wastes generated in nuclear power reactors can be permanently disposed of safely and for withholding of action on applications for operating licenses for nuclear power reactors until an affirmative determination has been made. Petition denied.
Before Mulligan and Gewin,*fn* Circuit Judges, and Miller, Judge.*fn**
The Natural Resources Defense Council, Inc. ("NRDC") petitions for review of the June 27, 1977, decision of the Nuclear Regulatory Commission ("NRC") denying NRDC's petition for (1) a rulemaking proceeding*fn1 to determine whether high-level radioactive wastes generated in nuclear power reactors can be Permanently disposed of without undue risk to the public health and safety, and (2) withholding of action on pending and future applications for operating licenses for nuclear power reactors until such time as an affirmative determination has been made. The petition declares that no accepted and approved plan exists for Permanent disposal of high-level radioactive wastes;*fn2 whereas, under the Atomic Energy Act of 1954 ("AEA") NRC is required to determine that there will be "adequate protection to the health and safety of the public."*fn3 42 U.S.C. §§ 2232(a), 2133(b), 2013(d), and 2012(e). Although both at oral argument and in its brief NRDC has denied that its purpose was to stop NRC from issuing operating licenses for nuclear power reactors, it is evident that such would be the result if NRDC's petition were granted, since at this time there is no "accepted and approved plan" for Permanent disposal of high-level radioactive wastes.*fn4
In its petition, NRDC argued as follows:
One of the inevitable by-products of operating a nuclear power reactor is the creation of massive amounts of plutonium and other highly radioactive materials. During its projected 40-year life span, a one-thousand megawatt nuclear power plant can be expected to generate eight metric tons of plutonium, as well as millions of curies of other highly toxic radioactive elements. Plainly, a determination that operation of such a reactor will not create undue risk to public health and safety requires a determination that these highly hazardous and long-lived radioactive materials can be disposed of safely.
To license a reactor as safe plainly requires the Commission also to determine that the highly hazardous wastes it creates can be handled and Permanently disposed of safely.
Petitioner alleges that the hazards posed by the radioactive wastes created during the operation of nuclear power reactors when evaluated in the current absence of an acceptably safe plan and means for disposal constitute an extremely significant and undue risk to the public health and safety. Specifically, petitioners allege that no adequately safe disposal plan has been approved and that creation of additional radioactive wastes in new reactors at the present time in the absence of an accepted plan for disposing of these wastes does not provide for adequate protection to the health and safety of the public, in violation of the Atomic Energy Act of 1954. (Footnote omitted; emphasis supplied.)
On the other hand, in its notice of denial, NRC concluded that it is neither obligatory nor appropriate that it make the "definitive finding" requested by NRDC, saying:
The Commission notes that prior to any licensing of High-level waste disposal facilities, a detailed finding concerning the safety of the proposed facilities will be made. There is, we believe, a clear distinction between Permanent disposal of wastes and their Interim storage. (Emphasis supplied.)
As part of the licensing process for an individual power reactor facility, the Commission does review the facility in question in order to assure that the design provides for safe methods for interim storage of spent nuclear fuel. But it is neither necessary nor reasonable for the Commission to insist on proof that a means of permanent waste disposal is on hand at the time reactor operation begins, so long as the Commission can be reasonably confident that permanent disposal (as distinguished from continued storage under surveillance) can be accomplished safely when it is likely to become necessary. Reasonable progress towards the development of permanent disposal facilities is presently being accomplished. Under these circumstances a halt in licensing of nuclear power plants is not required to protect public health and safety.
In its brief, NRDC argues that to date the federal government has failed to develop any proven means for the safe permanent disposal of radioactive waste; that "there is no guaranty that the federal government can or will ever develop a safe, permanent waste disposal facility"; and that "substantial doubts exist" over whether such disposal will ever be "technically or politically feasible." Therefore, NRDC says it would be "foolhardy to continue to license nuclear power reactors without any regard for whether safe (permanent) waste disposal can be accomplished."
However, this does not fairly frame the issue, since, as recognized in the California brief, NRC clearly does have "regard" for whether safe permanent waste disposal can be accomplished, and this notwithstanding that 42 U.S.C. § 2232, which specifies the information to be furnished in applications for "production or utilization facilities," does not require any information from an applicant regarding permanent disposal of high-level waste.*fn5 Thus, in its notice of denial, NRC stated:
The Commission would not continue to license reactors if it did not have reasonable confidence that the wastes can and will in ...