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08/17/79 Natural Resources Defense v. United States Nuclear

August 17, 1979

NATURAL RESOURCES DEFENSE COUNCIL, INC., PETITIONER

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION, RESPONDENT; NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

v.

ROBERT C. SEAMANS, JR., ET AL., APPELLANTS;

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL., APPELLANTS

v.

ROBERT C. SEAMANS, JR., ETC. 1979.CDC.151



Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

Appeals from the United States District Court for the District of Columbia.

APPELLATE PANEL:

Opinion for the court filed by TAMM, Circuit Judge.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM

Petition for Review of an Order of the Nuclear Regulatory Commission.

This case concerns the construction of twenty-two tanks for the storage of high-level radioactive waste by the Energy Research and Development Administration at the Hanford Reservation in Richland, Washington, and the Savannah River Plant in Aiken, South Carolina. We decide whether the Nuclear Regulatory Commission (NRC or Commission) must license these tanks under section 202(4) of the Energy Reorganization Act of 1974, 42 U.S.C. § 5842(4) (1976), and whether ERDA must prepare an environmental impact statement for the tanks under section 102(2)of the National Environmental Policy Act of 1969 , 42 U.S.C. § 4332(2)(1976). I. LICENSING

Congress authorized funds for the construction of the twenty-two tanks in appropriations acts for fiscal years 1976 and 1977. *fn1 The tanks are intended for storage of nuclear wastes generated by ERDA's nuclear weapons materials production program. See S.Rep.No.94-762, 94th Cong., 2d Sess. 37 (1976); H.R.Rep.No.94-1081 (Part I), 94th Cong., 2d Sess. 35-36, 43 (1976);2 H.R.Rep.No.94-696, 94th Cong., 1st Sess. 4-5, 74-75 (1975) (Conference Report). Under section 202(4) of the Energy Reorganization Act of 1974, NRC must license ERDA facilities "authorized for the express purpose of subsequent long-term storage of high-level radioactive waste generated by , which are not used for, or are part of, research and development activities."3 In August 1975, the Natural Resources Defense Council, Inc. requested ERDA to obtain a construction permit from NRC for the waste storage tanks. NRDC also requested NRC to assert its licensing authority.

In February 1976, ERDA advised NRDC that a license was unnecessary because the tanks were intended only for short-term storage. In September of that year, NRC advised NRDC that the tanks were not subject to its jurisdiction. NRDC sought review of both agencies' actions in the District Court for the District of Columbia and requested injunctive and declaratory relief.4 Specifically, NRDC sought a declaratory judgment that ERDA was required to obtain a license from NRC under section 202(4), and that NRC erred in refusing to assert licensing jurisdiction over the tanks.5 While the case was pending in the district court, NRC issued a formal memorandum and order ruling that the tanks authorized for fiscal years 1976 and 1977 are beyond the scope of its jurisdiction under section 202(4).6

The district court, in a memorandum opinion, denied the agencies' motion to dismiss for lack of jurisdiction,7 and reviewed the merits of ERDA's and NRC's section 202(4) decisions. The court held on motions for summary judgment that the tanks were not "authorized for the express purpose of subsequent long-term storage" and thus are not subject to the license requirement of section 202(4).8

A. District Court's Jurisdiction

At the outset, NRC argues that the district court lacked jurisdiction to review its decision. NRC relies on 28 U.S.C. § 2342(4) (1976) and section 189 of the Atomic Energy Act of 1954, 42 U.S.C. § 2239 (1976), for the proposition that its order is reviewable only in the courts of appeals. Under these statutes, the courts of appeals have exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or determine the validity of all final orders of NRC entered in any proceeding for the granting, suspending, revoking, or amending of any license.9

There is no dispute that NRC's decision constitutes a "final order" under 28 U.S.C. § 2342 and 42 U.S.C. § 2239. The question is whether the order was "entered in a proceeding" for "the granting . . . of any license." 42 U.S.C. § 2239. NRDC asserts that the order was not entered in such a proceeding because no license application was pending before the Commission. The district court adopted essentially this position.10 NRC counters that the order is within 42 U.S.C. § 2239 because it was entered in a proceeding to determine whether a specific project fell within the scope of NRC licensing authority.

We conclude that NRC's decision concerning jurisdiction over particular tanks is well within the class of final orders reviewable under 28 U.S.C. § 2342 and 42 U.S.C. § 2239.11 In the circumstances of this case, the absence of an application for a license is not dispositive. Since a licensing jurisdiction determination is a necessary first step in any proceeding for the granting of a license, we hold that NRC's decision was "entered in a proceeding" for "the granting . . . of any license."

Furthermore, exclusive jurisdiction in the courts of appeals over such orders will eliminate unnecessary duplicative review and the delay and expense incidental thereto. As long as we have an administrative record on which to base our review, as we do here, there is no need for evidentiary hearings in the district court.12 See generally Investment Co. Institute v. Federal Reserve System, 179 U.S.App.D.C. 311, 317, 320-322, 551 F.2d 1270, 1276, 1279-81 (1977). In this case, NRC solicited the comments of ERDA and NRC staff in acting upon NRDC's request for a decision on its licensing jurisdiction over the tanks. The Commission considered over 300 pages of correspondence and submissions from these sources and from NRDC. NRC assessed the issue before it and ruled that statutory language and congressional intent precluded assertion of licensing jurisdiction over the tanks under section 202(4).

For the foregoing reasons, we hold that exclusive jurisdiction to review NRC's determination rests in the courts of appeals. The district court erred in reviewing NRC's licensing decision on the merits.13 We therefore review NRC's determination directly rather than via the decision of the district court.14

B. Section 202(4) of the Energy Reorganization Act of 1974

The crucial question in determining whether the tanks at Hanford and Savannah River are within NRC's licensing authority is whether they are "authorized for the express purpose of subsequent long-term storage of high-level radioactive waste" generated by ERDA.15 42 U.S.C. § 5842(4). NRDC contends that resolution of this question turns on the likelihood that the tanks will be used for long-term storage, rather than whether Congress or ERDA actually authorized them for that purpose. ERDA consistently has treated the tanks as part of its short-term waste management program.

Legislative history assists us in our review. The Energy Reorganization Act of 1974 abolished the Atomic Energy Commission and established ERDA and NRC as distinct, independent agencies within the executive branch. See S.Rep.No.93-980, 93d Cong., 2d Sess. 1-2, Reprinted in (1974) U.S.Code Cong. & Admin.News, p. 5470. Congressional desire to separate the developmental and promotional functions from the licensing and regulatory functions of the Atomic Energy Commission impelled this action. Congress, for the most part, placed the former functions in ERDA and the latter in NRC. See id. at 2, 24; H.R.Rep.No.93-707, 93d Cong., 1st Sess. 2 (1973). In so doing, Congress gave ...


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