NUCLEAR COMMITTEE v. SCHLESINGER 13 even were the "extreme case" to occur, and radioactive water migrate to the sea within a few years, "dilution of that water by the sea water would take place rapidly. With the seeping water being swept up by the passing ocean current and mixed through tidal action and wave action, oceanographers have estimated that there would by an effective dilution factor of about 100,000 within a few hours. In this manner, the sea water tritium would quickly dilute to levels comparable to those freshwater levels acceptable for lifetime use by humans." I. S., p. 25.. Compare this use of the dilution figure with that of Train: "Even if the dilution is as great as a hundred thousand, there is the possibility of concentration of tritium well above background levels in various steps of the food chain." Train memo., p. 5. MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL would grant a temporary restraining order pending plaintiffs' filing of a petition for certiorari and action by the Court on the petition. The question to be presented is whether the detonation of CANNIKIN would be illegal if the Atomic Energy Commission did not comply with the mandate of § 102 (c) of the National Environmental Policy Act of 1969. The Court of Appeals did not accept the holding of the District Court that the Commission had complied with § 102 (c), stating, "In our view the case does present a substantial question as to the legality of the proposed test." The oral argument confirmed this view. In that circumstance, to avoid mootness, the Commission must be enjoined from proceeding with CANNIKIN until the Court decides whether to review the question of its legality. CORRESPONDENCE: JCAE/AEC AEC ACTIONS AS A RESULT OF THE CALVERT CLIFFS DECISION Hon. GLENN T. SEABORG, CONGRESS OF THE UNITED STATES, JOINT COMMITTEE ON ATOMIC ENERGY, Chairman, U.S. Atomic Energy Commission, DEAR DR. SEABORG: The explanation of the July 23 Calvert Cliffs decision at the July 29 briefing was very helpful to me and to the other members who attended. The presentation confirmed my understanding that the decision is a significant one from the standpoint of the AEC process for licensing nuclear power reactors. I expressed the view in my opening statement that the decision requires prompt and decisive action, but not overreaction on the part of the Commission. I recognize, of course, that it is the Commission's responsibility to decide on the course of action which should be followed and the timing of the various steps in that course of action. Without some guidance I do not understand how the Atomic Safety and Licensing Boards are expected to react to the decision in proceedings now underway or to be commenced in the near future; how applicants can be responsive to the need for supplemental information; or how intervenors or potential intervenors would be informed as to the changes in licensing procedures as a result of the decision. I can appreciate the need for adequate time to modify the provisions in the regulations which the Court found invalid, to study other revisions in the regulations in the light of the decision, and to coordinate with other interested agencies and departments in the Executive Branch. I am concerned that holding up announcing the Commission's policy regarding compliance with the decision, or announcing a policy which is not entirely clear as to the course which the Commission will follow, could encourage petitions to courts for injunctions. Language in the decision already establishes a foundation for such judicial remedy as regards the large number of nuclear power reactors which are directly affected by the Court's decision. I continue to believe as I urged at the July 29 briefing, that one of the most effective means for minimizing the potential for injunctions being issued is to issue a policy statement which clearly sets forth the Commission's course of action for the prompt implementation of the decision. I again urge the Commission to consider seriously the desirability of issuing promptly a statement of policy regarding the course of action to comply with the decision. Sincerely yours, MELVIN PRICE, Hon. MELVIN PRICE, U.S. ATOMIC ENERGY COMMISSION, Washington, D.C., August 6, 1971. Joint Committee on Atomic Energy, DEAR MR. PRICE: Thank you for your letter of July 30, 1971, concerning your views and those of the other members of the Joint Committee on the Calvert Cliffs Court decision. The Commission issued, on August 4, 1971, a statement detailing our actions as a result of the Court of Appeals decision. The Director of Regulation, on the same day, provided interim guidance to licensees and applicants affected by the decision, and I am enclosing copies of the letter to AEC applicants and licensees in this regard for your information. As the Commission indicated to members of the Joint Committee during our July 29 briefing, we are proceeding as promptly as possible in our implementation of the decision including the issuance, as soon as possible, of appropriate AEC regulations. We will keep the Committee informed of our actions regarding this matter. Sincerely, (S) C. E. LARSON, Acting Chairman. |