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NATIONAL RESOURCES DEFENSE COUNCIL v. ADMINISTRATO

May 8, 1978

NATIONAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs,
v.
ADMINISTRATOR, ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION, et al., Defendants.



The opinion of the court was delivered by: CHARLES R. RICHEY

MEMORANDUM OPINION OF UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY

 I. INTRODUCTION

 Plaintiffs are the Natural Resources Defense Council, Inc. (NRDC), Oregon Environmental Council, Friends of the Earth, and Environmentalists, Inc., as well as one individual. They bring this suit to challenge the Energy Research and Development Administration's (ERDA) failure to apply for and obtain licenses under section 202(4) of the Energy Reorganization Act of 1974, 42 U.S.C. § 5842(4) (Supp. V 1975) (hereinafter, the 1974 Energy Act), for the construction of 22 high-level radioactive waste storage tanks at the Hanford Reservation in Richland, Washington, and at the Savannah River Plant in Aiken, South Carolina (Count I). Plaintiffs also challenge the failure of the Nuclear Regulatory Commission (NRC) to assume jurisdiction and exercise its licensing authority under section 202(4) over the 22 ERDA tanks in issue (Count III). Finally, plaintiffs challenge ERDA's decision not to prepare site-specific environmental impact statements (EIS's) under section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C) (1970), with respect to the ERDA tanks in issue (Count II). This case is now before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment, and on plaintiffs' cross-motion for partial summary (judgment. For the reasons hereinafter stated, the Court will grant defendants' motion for summary judgment on Counts I and III and grant plaintiffs' motion for summary judgment with respect to Count II.

 II. BACKGROUND

 The Federal Government has since 1945 generated substantial quantities of high-level radioactive waste in connection with, inter alia, (1) nuclear weapons production, (2) nuclear research and development, and (3) nuclear fuel reprocessing (chiefly from naval vessels). Most of these wastes have been generated and stored at ERDA facilities at Hanford and at Savannah River. *fn1" These wastes contain varying quantities of highly toxic and long-lived radio-nuclides, including plutonium-239, strontium-90, and cesium-137. The Government will continue to produce such high-level radioactive wastes for the foreseeable future, and, for at least the next 15-20 years, it intends to continue storing such wastes in ERDA facilities primarily at Hanford and Savannah River.

 ERDA considers its present program for the management of such nuclear wastes at Hanford and Savannah River to be an interim program. It is presently in the process of researching, testing, and developing suitable methods for the ultimate storage of these wastes, including the use of geologic repositories, and it presently anticipates that it will select and implement a program for the ultimate storage of Government-generated radioactive wastes sometime during the years 1994-2000. In the meantime, new storage tanks are required both to replace deteriorating tanks and to store newly generated wastes.

 The 22 storage tanks at Hanford and Savannah River here in issue were authorized by appropriations acts for fiscal & years (FY) 1976 and 1977. ERDA Projects 76-8-b and 76-8-a respectively authorized 6 tanks at Hanford and 6 tanks at Savannah River; ERDA Projects 77-13-e and 77-13-d respectively authorized 6 tanks at Hanford and 4 at Savannah River. The 12 FY 1976 and the 10 FY 1977 tanks are now undergoing construction. The 6 FY 1976 tanks at Hanford are scheduled for completion in 1979, and both the FY 1977 Hanford tanks and all the Savannah River tanks are due to be completed in 1980. All 22 of these tanks are double-shell, stress-relieved carbon steel tanks which will be constructed in underground vaults. *fn2" These tanks were designed in an attempt to eliminate the waste leakage that has occasionally occurred from some of the existing tanks in the past, particularly as a result of "stress-corrosion cracking."

 In May 1975, ERDA determined not to prepare impact statements for the FY 1976 tanks, and it thus issued "negative declarations" with respect to both the Hanford and Savannah River projects. See 40 Fed. Reg. 22,165-66 (May 21, 1975). On August 7, 1975, plaintiff NRDC submitted to both ERDA and NRC a memorandum in support of its contention that the 12 FY 1976 tanks should be licensed under section 202(4) of the 1974 Energy Act. That same day, NRDC formally protested ERDA's decision not to prepare EIS's on these 12 tanks.

 On September 9, 1976, plaintiffs filed the initial complaint herein. Then, on September 14, 1976, NRC notified NRDC that it had determined that the licensing requirements of section 202(4) of the 1974 Energy Act did not apply to the FY 1976 tanks at both Hanford and Savannah River. In the fall of 1976, ERDA decided not to prepare EIS's for the FY 1977 tanks, and it thus again prepared "negative declarations" with respect to both the Hanford and Savannah River projects. See 41 Fed. Reg. 38,209 (Sept. 9, 1976); 41 Fed. Reg. 48,398 (Nov. 3, 1976). *fn3" Plaintiffs then filed the amended complaint herein on November 8, 1976.

 After plaintiffs' amended complaint was filed, NRDC, on December 10, 1976, again wrote to NRC, this time requesting NRC to reconsider its decision not to license the FY 1976 tanks and further requesting NRC to license the FY 1977 tanks. On March 31, 1977, NRC issued a final Memorandum and Order which reaffirmed its "earlier determination that the ERDA waste tanks authorized by FY 1976 are beyond the scope of section 202(4), and [determining] that the FY 1977 tanks are similarly beyond the scope of section 202(4)."

 III. MERITS

 A. Counts I & III: The Licensing Issues

 Defendants have moved to dismiss Counts I and III of the complaint herein on the ground that 42 U.S.C. § 2239 and 28 U.S.C. § 2342(4) make the courts of appeals the exclusive forum for judicial review of NRC licensing issues. In the alternative, they have moved for summary judgment on both counts on the ground that the Hanford and Savannah River storage tanks are not within the purview of section 202(4) of the 1974 Energy Act. Plaintiffs have opposed the motions to dismiss, and have filed a cross-motion for summary judgment on Count III. Plaintiffs have not, however, filed a cross-motion for summary judgment on Count I because they allege that material facts remain in dispute with respect thereto. For the reasons stated herein, the Court will deny defendants' motion to dismiss, but will grant defendants' motion for summary judgment on both Count I and Count III.

 (1) The Statutes Upon Which Defendants Rely as the Basis for Their Motion to Dismiss do not Apply to the ERDA and NRC Determinations Here in Issue.

 As a threshold matter, defendants seek the dismissal of Counts I and III of the complaint herein on the ground that 42 U.S.C. § 2239 and 28 U.S.C. § 2342(4) make the courts of appeals the exclusive forum for judicial review of NRC licensing issues. Section 2342(4) of Title 28 of the United States Code provides for exclusive review by the courts of appeals of "all final orders of the [Nuclear Regulatory Commission] made reviewable by section 2239 of title 42." Section 2239 of Title 42 in turn provides for such review of "any final order" entered

 
in any proceeding under this chapter, for the granting, suspending, revoking or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees . . . .

 Defendants contend that since review of ERDA's refusal to seek licenses from NRC on the Hanford and Savannah River tanks involves the same issues that would arise from a section 2239 licensing proceeding, review is properly left to the Court of Appeals.

 The Court finds this argument wholly untenable and will therefore deny the motion to dismiss Count I. Section 2342(4) of Title 28 vests exclusive jurisdiction in the courts of appeals only for NRC final orders and only then if such orders are entered into in a section 2239 proceeding. Since ERDA's decision not to seek licenses on the tanks in issue is not an NRC order and was not the result of any proceeding conducted pursuant to section 2239, 28 U.S.C. § 2342(4) is, by its express terms, inapplicable to ERDA's decision. Accordingly, jurisdiction to review ERDA's decision is properly vested in this Court under 28 U.S.C. § 1331 since plaintiffs' Count I claim arises under section 10 of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06 (1970). See Califano v. Sanders 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977).

 The Court will also deny the motion to dismiss Count III. It does not appear to the Court that NRC at any time treated plaintiff NRDC's petitions as requiring a section 2239 proceeding. Indeed, there is no indication in the record that NRC invoked the procedures established by its own regulations, 10 C.F.R. §§ 2.100-.108 (1977), to govern section 2239 proceedings "for the granting of . . . licenses." Accordingly, the Court concludes that the NRC's determinations at issue herein were not entered in a "proceeding . . . for the granting of . . . [a] license" within the meaning of section 2239, and jurisdiction is properly vested in this Court.

 (2) ERDA's Decision Not to Seek Licenses From NRC for the Storage Tanks in Issue was in Accordance With Law Because These Tanks Have Not Been "Authorized for the Express Purpose" of Long-Term Storage and are Thus Not Licensable Facilities Within the Scope of Section 202(4) of the 1974 Energy Act.

 Counts I and III of the complaint herein, which allege a claims against ERDA and NRC respectively, both "seek ultimately to have [the 22 tanks in issue] subjected to a licensing proceeding before NRC in which the environmental, safety, and economic effects and implications of possible long-term waste storage in these tanks are fully recognized and evaluated." Plaintiffs' Memorandum of April 25, 1977, at 28. Section 202(4) of the 1974 Energy Act, which plaintiffs contend mandates the licensing of these tanks, provides in pertinent part:

 
The Nuclear Regulatory Commission shall . . . have licensing and related regulatory authority . . . as to the following facilities of the [Energy Research & Development] Administration:
 
* * * *
 
(4) Retrievable Surface Storage Facilities and other facilities authorized for the express purpose of subsequent long-term storage of high-level radioactive waste generated by the Administration, which are not used for, or are part of, research and development activities.

 Both parties agree that the wastes to be stored in the Hanford and Savannah River tanks are high-level radioactive wastes which are not part of or used for ERDA's research and development activities. And both parties further agree that the tanks in issue are not "retrievable surface storage facilities." Thus, the sole question is whether these tanks are "other facilities authorized for the express purpose of subsequent long-term storage." *fn4"

 The undisputed facts herein show that ERDA has consistently, both in its various environmental impact statements, see Exhibits 39 and 95, and in its communications with Congress, taken the position that its current program of nuclear waste management, including the use of the Hanford and Savannah River tanks here in issue, is an interim program. ERDA has committed itself to and is presently engaged in conducting research, development, and demonstration of waste-storage programs in order to formulate an optimum program for the ultimate storage of high-level radioactive wastes. Thus, ERDA has represented to Congress that its present plans are as follows:

 
. . . [The Hanford and Savannah River tanks here in issue] are required to continue our existing programs for the safest containment of existing and future high level radioactive waste from the chemical processing plants at Savannah River and [Hanford].
 
The ERDA waste management program, as discussed with Congress on many occasions, provides for the interim (i.e., short term) storage of waste in a retrievable form until a suitable long-term disposal process or processes for the very large quantities of waste at the Savannah River and [Hanford] sites have been developed and adopted. Upon selection of the optimum long-term storage method or methods, the waste would be processed as necessary and transferred to a long-term storage site or stored at a site analagous to a Retrievable Surface Storage Facility proposed for commercial wastes until a long-term site has been made ready.
 
We would expect to use the planned tanks only until ERDA can implement an approved plan for the long-term storage of the wastes. It is presently anticipated that facilities for long-term storage will be available between 15 and 20 years after construction of the tanks in question has been completed. This period of between 15 and 20 years after construction is complete will allow time to develop the disposal processes, budget for new long-term storage facilities, undergo the licensing procedures which would be required under section 202 of the Energy Reorganization Act and construct and start up such long-term storage facilities.

 S.Rep. No. 94-514, 94th Cong., 1st Sess. 76 (1975) (Conference Report on 1976 ERDA Appropriations).

 Plaintiffs do not dispute the veracity of ERDA's representations concerning its present intention to choose an ultimate, long-term nuclear waste management program in the next 15-20 years. Rather, they propound a multifarious argument as to why, notwithstanding ERDA's present intent, the Hanford and Savannah River storage tanks are in their view "facilities authorized for the express purpose of long-term storage." Relying upon assorted fragments of legislative history, plaintiffs interpret "long-term storage" to include any storage in excess of 20 years, and they interpret "authorized for the express purpose" of such storage to mean substantially likely to be used for more than 20 years. Thus, plaintiffs oppose defendants' motion for summary judgment on the ground that material facts remain in dispute as to: (1) whether ERDA has now the technical capability to remove all high-level liquid wastes from so-called double shell tanks, and (2) whether ERDA can or will remove all high level liquid wastes from so-called double shell tanks within 20 years.

 Upon consideration of section 202(4), its legislative history, and the arguments of the respective parties, the Court concludes that no material facts are in dispute and that defendants are entitled to judgment as a matter of law. As a preliminary matter, the Court rejects plaintiffs' argument that "long-term" storage means any storage for more than 20 years. Plaintiffs premise their construction of this term on the following language from the Senate committee report:

 
[Sections 202(3) & (4)] provide [NRC] the authority and responsibility for licensing and related regulation of retrievable surface storage facilities and other facilities for high-level radioactive wastes which are or may be authorized by the Congress to be built by ERDA or with ERDA financial assistance for long term (tens to hundreds of years) storage of such radioactive wastes generated by the Administration or to which present high-level radioactive wastes may be transferred by the Administration in the future.

 S.Rep. No. 93-980, 93d Cong., 2d Sess. 59 (1974) (emphasis added). Plaintiffs interpret the word "tens" to manifest Congress' intent that 20 years be considered the outer limit of non-"long-term" storage. While the Court agrees that the aforequoted language indicates that "long-term" storage may be as short as 20 years, it does not suggest that any storage which in fact lasts 20 years must be licensed by NRC. *fn5" As the NRC, in its decision of March 31, 1977, noted, "had Congress intended a precise number of years to be determinative, it hardly could have chosen a more imprecise means of saying so." Exhibit E, at 6 n.4. Accordingly, the Court concludes that the precise duration of storage was not intended to be determinative of NRC's licensing authority.

 It thus becomes necessary to consider the meaning of the statutory phrase "authorized for the express purpose." Plaintiffs contend that in order to determine the "purpose" of any storage facilities, it is necessary to make "a factual determination of projected long-term use." Plaintiffs' Memorandum of May 26, 1977, at 19. This construction of section 202(4), however, fails to take into account the plain meaning of the words "authorized" and "express," and thus contravenes the well-accepted maxim of statutory construction that all words and provisions of statutes are intended to have meaning and are to be given effect, and words of a statute are not to be construed as surplusage.

 Wilderness Society v. Morton, 156 U.S. App. D.C. 121, 479 F.2d 842, 856 (D.C. Cir.) cert. denied, 411 U.S. 917, 36 L. Ed. 2d 309, 93 S. Ct. 1550 (1973); 2A Sutherland's Statutory Construction, § 46.06 (Sands ed. 1973). At the very least, the phrase "authorized for the express purpose" of long-term storage requires that ERDA in fact intend to use the waste storage facilities in issue for such "long-term storage." *fn6" It is not sufficient, notwithstanding plaintiffs' contentions, merely for there to be the possibility (or even the likelihood) that ERDA may have to use the tanks in question for a few years in excess of 20 because of its technical capabilities.

 This construction of section 202(4) is buttressed by its legislative history. This history indicates clearly that Congress was only concerned that NRC assume jurisdiction over waste storage facilities that are or become part of ERDA's future plan for an ultimate long-term ...


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