49 QUAD CITIES DECISION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Action No. 2207-7 THE IZAAK WALTON LEAGUE OF AMERICA, ET AL., PLAINTIFFS v. JAMES SCHLESINGER, ET AL., DEFENDANTS and COMMONWEALTH EDISON COMPANY AND IOWA-ILLINOIS GAS AND ELECTRIC COMPANY, DEFENDANT-INTERVENORS Civil Action No. 2208–7 PEOPLE OF THE STATE OF ILLINOIS, EX REL., WILLIAM J. SCOTT, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, PLAINTIFF v. UNITED STATES ATOMIC ENERGY COMMISSION, ET AL., DEFENDANTS and COMMONWEALTH EDISON COMPANY AND IOWA-ILLINOIS GAS AND ELECTRIC COMPANY, DEFENDANT-INTERVENORS FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER This cause having come on for hearing on November 24, 1971 on plaintiffs' motion for a preliminary injunction ordering defendant members of the Atomic Energy Commission and defendant Peter A. Morris to withhold issuance of a partial operating license pending preparation and distribution of a detailed statement pursuant to Section 102(2) (C) of the National Environmental Policy Act, and upon consideration of the motion, defendants' opposition thereto, and evidence adduced at the hearing and through affidavits and exhibits submitted by the parties, the Court, in accordance with Rules 52 and 65 of the Federal Rules of Civil Procedure, makes the following findings of fact and conclusions of law. FINDINGS OF FACT 1. Plaintiffs are William J. Scott, Attorney General of the State of Illinois; the Izaak Walton League of America; the United Automobile Aerospace and Agricultural Implement Workers of America (UAW) Illinois State Community Action Program; the Izaak Walton League of America, Illinois Division; the Izaak Walton League of America, Iowa Division; the Izaak Walton League of America, Blackhawk Chapter; and the Isaak Walton League of America, Clinton, Iowa Chapter. 2. Defendants are James Schlesinger, James T. Ramey, Wilfrid E. Johnson, and Clarence E. Larsen, as members of the United States Atomic Energy Commission; the United States Atomic Energy Commission; the United States Army Corps of Engineers; Stanley Resor, as Secretary of the Army; Lt. Gen. Frederick J. Clark, Chief of Engineers of the United States Army Corps of Engieers; and Col. James E. Bunch, District Engineer, Rock Island District, U.S. Army Corps of Engineers; and Commonwealth Edison Company and Iowa-Illinois Gas and Electric Company, defendant intervenors. 3. The United States Atomic Energy Commission has statutory responsibility for the licensing of construction and operation of nuclear power steam generating electric facilities pursuant to the United States Atomic Energy Act, 42 U.S.C. §§ 2133 and 2201 (1954), and the regulations promulgated pursuant thereto, 10 C.F.R., Part 50. On September 9, 1971, the Atomic Energy Commission promulgated a revised Appendix D of 10 C.F.R., Part 50, 36 Fed. Reg. 18071 (1971). 4. Section D.3 of Appendix D promulgated by the Atomic Energy Commission allows the issuance of an operating license for operation up to and beyond 20% of full power of a proposed nuclear power generating facility without preparation of a detailed statement outlining the environmental consequences of the operation pursuant to the procedure established by Section 102(2) (C) of the National Environmental Policy Act. 5. Defendants intervenors, Commonwealth Edison Company and Iowa-Illinois Gas and Electric Company, filed an application before defendant United States Atomic Energy Commission for a partial operating license pursuant to Section D.3 of Appendix D for 50% operation of their Quad Cities Nuclear Generating Power Station at Cordova, Illinois. The application was filed October 12, 1971. 6. At 50% operation during the month of December, 1971, through March, 1972, the Quad Cities Nuclear Generating Station will discharge into the Mississippi River a plume of heated water at 11.5° above the temperature of water taken in by the Station. The volume of water discharged will be approximately 2,270 cubic feet per second, or 1,018,780 gallons per minute. 7. The average and median flow of the Mississippi River during the months of December, 1971, through March, 1972, at the plant site will be between 20,000 and 30,000 cubic feet per second. 8. At these flow rates, the discharge plume from the plant at 2,270 cubic feet per second at 11.5° temperature increase will cause the water temperature of the Mississippi River to be raised in excess of 5° at points some 4,000 feet downstream from the point of discharge. 9. At these flow rates, the discharge plume will raise the maximum naturally occurring temperature in the Mississippi River at points 600 feet or more from the point of discharge approximately 10° to a level in excess of 45° in January and February, and 57° in March. 10. The proposed discharge may inhibit egg production in sauger and walleye fish in the Mississippi River by raising average monthly temperatures in the river by approximately 10° to approximately 43° in January and February, and 44° in December. 11. The proposed discharge may stimulate early spawning of sauger and walleye in the Mississippi River by creating artificially high temperatures at or above the temperatures which sauger and walleye normally spawn. Early spawning may result in the hatching of fry at a time when food supplies are unavailable, thus causing the death of the fish fry. 12. The proposed discharge will violate both present and proposed Illinois water temperature regulations for the Mississippi River, as well as suggested federal criteria for the maintenance of a wellbalanced fish population in the Mississippi River by raising water temperatures at points beyond a 600 foot mixing zone in excess of 5° over naturally occurring temperatures, and in excess of monthly maximum temperatures allowed for January, February and March (the duration of the proposed permit). 13. The operation of the Quad Cities Station at heated discharges contemplated by the 50% license application has been strongly opposed by plaintiffs Illinois Atorney General and Izaak Walton League of America. 14. Plaintiffs did not learn of the proposed discharge until after the 30-day period for intervention by right in the current licensing proceedings had expired. Plaintiffs' next opportunity for intervention by right will not become available until after an environmental impact statement has been prepared and distributed for the entire plant operation. Such distribution will occur sometime after December 15, 1971, and after Commission action on the proposed 50% operating license. 15. The defendant, Atomic Energy Commission, has stated that it will not prepare and distribute a Section 102(2) (C) detailed statement under the National Environmental Policy Act of 1969 prior to the issuance or denial of the partial 50% operating license. The Atomic Energy Commission's position is based on Appendix D, regulation D.3 promulgated by the AEC on September 9, 1971. CONCLUSIONS OF LAW 1. The proposed discharge at 50% operation will have a "significant impact on the quality of the human environment" within the meaning of $ 102(2) (C) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332, and raises the "potential that the environment may be significantly affected" within the meaning of Section 5(b) of Statements on Proposed Federal Actions Affecting the Environment, Guidelines, 36 Fed. Reg. 7724 (1971) published by the President's Council on Environmental Quality. 2. The impact of the proposed discharge at 50% operation is "highly controversial" within the meaning of Section 5(b) of the above-cited guidelines. 3. The refusal of the Atomic Energy Commission to prepare the "detailed statement" prior to taking action on the 50% operating license application constitutes "final agency action" within the meaning of 5 U.S.C. § 704 (1966), in that the refusal has a direct impact on plaintiffs' rights to said detailed statement prior to the grant or denial of the permit and adequate administrative or appellate remedies are uncertain and unavailble. 4. The requirement that all federal agencies prepare a Section 1021 (2) (C) detailed statement prior to the taking of action which may have a significant impact on the environment is a mandatory obligation not within the discretion of the agency, and must be performed. in all circumstances prior to the taking of the agency action which may have a significant impact on the environment. 5. This Court has jurisdiction to order the Atomic Energy Commission to prepare and distribute a Section 102 (2) (C) statement prior to taking action on the 50% license application for the following reasons: (a) 28 U.S.C. § 1361 (1962) confers jurisdiction upon the district court to compel officers of the United States, or any agency thereof, to perform duties owed to the plaintiffs; and (b) 28 U.S.C. § 2342 (1966) et seq, establishing exclusive jurisdiction of review of final orders of the Atomic Energy Commission in the Court of Appeals, does not bar this Court's exercise of jurisdiction because: (1) the refusal of the Atomic Energy Commission to prepare the § 102 (2) (C) statement, while "final action" within the meaning of 5 U.S.C. § 704 (1966) is not a "final order" within the meaning of Section 2342; (2) plaintiffs are not "parties" to the agency proceedings. Consequently, Court of Appeals review is not available. 28 U.S.C. § 2344 (1966). Plaintiffs had no concrete right of intervention since the time for intervention passed prior to their having learned of the change in the proposed heat discharge systems. Although permissive intervention is available to plaintiffs in the discretion of the Commission, such discretionary remedies are not commensurate with the absolute right of the plaintiffs to a § 102 (2) (C) statement prior to the agency taking action; For the above stated reasons, review of the agency's refusal to perform its § 102(2) (C) responsibilities is unavailable or inadequate in the Court of Appeals. Consequently, this Court has jurisdiction. 6. Plaintiffs have made a substantial showing of a likelihood that in the processing of the application for a 50% operating license without preparation of a § 102(2) (C) statement defendant Atomic Energy Commission has not complied with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. 7. If a preliminary injunction does not issue, plaintiffs rights to a detailed environmental statement under Section 102 (2) (C) of the National Environmental Policy Act, 42 U.S.C. § 4332, will be irreparably injured and plaintiffs have no adequate remedy at law. ACCORDINGLY, an Order will issue enjoining defendant members of the Atomic Energy Commission and defendant, Morris, Director, Division of Reactor Licensing of the Atomic Energy Commission, from granting or denying the defendant utility companies' application for a 50% operating license, pending the final disposition of this suit. A Memorandum Opinion in connection with the Findings and Conclusions will be filed by the Court. December 13, 1971. BARRINGTON D. PARKER, UNITED STATES DISTRICT COURT Civil Action No. 2207-7 THE IZAAK WALTON LEAGUE OF AMERICA, ET AL., PLAINTIFFS v. JAMES SCHLESINGER, ET AL., DEFENDANTS and COMMONWEALTH EDISON COMPANY AND IOWA-ILLINOIS GAS AND ELECTRIC COMPANY, DEFENDANTS-INTERVENORS Civil Action No. 2208–7 PEOPLE OF THE STATE OF ILLINOIS, EX REL., WILLIAM J. SCOTT, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, PLAINTIFF v. UNITED STATES ATOMIC ENERGY COMMISSION, ET AL., DEFENDANTS and COMMONWEALTH EDISON COMPANY AND IOWA-ILLINOIS GAS AND ELECTRIC COMPANY, DEFENDANTS-INTERVENORS ORDER This cause having come on for hearing on November 24, 1971 on plaintiffs' Motion for the Issuance of a Preliminary Injunction ordering defendants, the Atomic Energy Commission, the individual members and commissioners thereof, and Dr. Peter A. Morris, to withhold issuance of a partial operating license for Quad Cities Nuclear Power Station until the procedures of Section 102 (2) (C) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. have been complied with, and the Court having fully considered the pleadings, memoranda of law and affidavits filed by the parties, and oral argument by counsel, and the Court also having fully considered the Motion to Dismiss of defendants-intervenors Commonwealth Edison Company and Iowa-Illinois Gas and Electric Company, and the memoranda of law and oral argument of counsel with respect to such motion, and the Court being fully advised in the premises, as set forth in the Findings of Fact and Conclusions of Law attached hereto, and for the reasons |