499 F.2d 1069 (D.C. Cir. 1974), 73-1099, Union of Concerned Scientists v. Atomic Energy Commission

Docket Nº:73-1099.
Citation:499 F.2d 1069
Party Name:UNION OF CONCERNED SCIENTISTS, Petitioner, v. ATOMIC ENERGY COMMISSION and United States of America, Respondents, Boston Edison Company, Intervenor.
Case Date:June 10, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1069

499 F.2d 1069 (D.C. Cir. 1974)

UNION OF CONCERNED SCIENTISTS, Petitioner,

v.

ATOMIC ENERGY COMMISSION and United States of America, Respondents, Boston Edison Company, Intervenor.

No. 73-1099.

United States Court of Appeals, District of Columbia Circuit.

June 10, 1974

Argued Feb. 21, 1974.

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Thomas B. Arnold, Boston, Mass., for petitioner.

Guy H. Cunningham, III, Atty., Atomic Energy Commission, and Jerome Nelson, Sol., Atomic Energy Commission, for respondents.

Wallace H. Johnson, Asst. Atty. Gen., Marcus A. Rowden, Gen. Counsel, Atomic Energy Commission, Harvey S. Price, Atty., Atomic Energy Commission, at the time the brief was filed, and Edmund B. Clark, Atty., Dept. of Justice, were on the brief for respondents. Kent Frizzel, Asst. Atty. Gen. at the time the record was filed, also entered an appearance for respondents.

George H. Lewald, Boston, Mass. and Dale G. Stoodley were on the brief for intervenor. Harold F. Reis, Washington, D.C., entered an appearance for intervenor.

Before BAZELON, Chief Judge, McGOWAN, Circuit Judge and CHRISTENSEN, [*] United States Senior District Judge for the District of Utah.

McGOWAN, Circuit Judge:

The Union of Concerned Scientists (UCS) seeks review of an order of the Atomic Energy Commission (AEC) affirming the Initial Decision of an Atomic Safety and Licensing Board (ASLB) to authorize the issuance of an operating license to intervenor Boston Edison Company (Edison) for its Pilgrim Nuclear Power Station (Pilgrim). UCS assigns ten separate errors, which we deal with sequentially after an introductory section stating so much of the history of this case as is necessary to an understanding of the issues raised. For the reasons hereinafter set forth, we affirm.

I

The Atomic Energy Act of 1954, as amended, provides that nuclear facilities must be the subject initially of a construction permit and thereafter of an operating license. 42 U.S.C. § 2235. Edison sought permission to build Pilgrim at Plymouth, Massachusetts in 1967, and its application was reviewed by the AEC staff and the Advisory Committee on Reactor Safeguards (ACRS). 1 It was approved, after a hearing, by an ASLB. 2 The Commission issued the construction permit in August, 1968, and construction was begun. 3

In January, 1970, Edison initiated the process of obtaining an operating license by filing an application therefor, together with its Final Safety Analysis Report (FSAR). 4 The information and analyses

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required for such a report is extensive, 10 C.F.R. § 50.34(b), as witness the fact that the report on Pilgrim ran to five volumes as originally submitted. The FSAR was reviewed by the Staff, and then by the ACRS, and additional information requested of and supplied by Edison. By this process of successive administrative reviews, the FSAR was refined and amended to the satisfaction of each body. 5 Each made its own safety report. 6

In April, 1971, after more than a year of administrative processing, the AEC noticed its consideration of Edison's operating license application and the opportunity for affected persons to be heard. 36 F.R. 7696. The Commission received a number of requests for a hearing, including the joint petition of UCS and the Sierra Club, and accordingly scheduled a hearing before a designated ASLB at Plymouth, Massachusetts. 7

Pursuant to the regulation governing intervention, UCS filed its 'detailed specifications' of matters it wished to have considered at the hearing, to which both Edison and the Staff filed answers. 8 Of the thirty-one radiological and safety contentions raised, 9 seventeen were rejected on grounds such as relevance, generality, and facial lack of merit; three were waived; one was set down for hearings; and the remainder were held to be challenges to AEC regulations or criteria for emergency core cooling systems (ECCS) and reserved for possible reference to the Commission under the AEC's Calvert Cliffs doctrine (see Part IV, infra). The ASLB set December 6, 1971, to begin hearing evidence on both the need for certification of rule challenges to the Commission and the remaining issue on the merits.

Meanwhile, on November 26, 1971, the Commission announced a rule making proceeding to begin in January, 1972 on the question of amending or making permanent the ECCS Interim Acceptance Criteria (IAC), a policy statement adopted without a hearing the previous June 25th. 10 Accordingly, the ASLB ruled that, since the IAC would be subject to general reconsideration in the rule making proceeding at which UCS could be heard, challenges thereto in a particular adjudication had been rendered moot, and would not be entertained for possible certification to the Commission (see Part III, infra). The December 6-8 hearing was limited, therefore, to the one contention held properly to be in issue.

An additional hearing on environmental matters, necessitated by this court's decision in Calvert Cliffs Coordinating Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971), and the promulgation of new regulations intended to comply with that decision, 36 F.R. 18071

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(Sept. 9, 1971), was held in June, 1972, to evaluate the Commission's Final Environmental Statement. Completion of this proceeding, in which UCS again participated, closed the record and the ASLB issued an Initial Decision based thereon on September 13, 1972. Under AEC regulations, 10 C.F.R. § 2.764, an Initial Decision directing issuance of a license is effective immediately notwithstanding the filing of exceptions thereto. Thus, while Edison was issued an operating license for Pilgrim on September 15, UCS prosecuted ten exceptions before the Atomic Safety and Licensing Appeal Board, (ASLAB), which issued its decision of affirmance (ALAB-83) on December 4, 1972. Failing sua sponte review by the Commission itself, the decision became the final decision of the AEC twenty days later, 10 C.F.R. § 2.786, and UCS sought review in this court.

II

The most novel of UCS's many exceptions is its threshold disagreement with the Commission over the proper role of an ASLB. UCS has contended since the beginning of the hearing that the ASLB must, despite the absence of controversy, review de novo and independently evaluate the evidence to determine whether the issuance of an operating license is consistent with 'the health and safety of the public.' 11 This the ASLB declined to do, since the Commission Rules of Practice suggested it should not. The rule then in effect provided in part: 12

In contested proceedings, the board will determine controverted matters as well as decide whether the findings required by the Act and the Commission's regulations should be made . . .. As to matters which are not in controversy, boards are neither required nor expected to duplicate the review already performed by the regulatory staff and the ACRS and they are authorized to rely upon the testimony of the regulatory staff and the applicant, and the conclusions of the ACRS, which are not controverted by any party.

As UCS acknowledges, the substance of its argument goes to, and is inconsistent with, the validity of this rule. There is no merit, therefore, to Edison's suggestion that the challenge to the rule is raised for the first time in this court. We think the rule a valid one, however, and turn to the framework within which it operates, and within which it must be evaluated, in order to show why.

The two-step procedure by which nuclear facilities are successively licensed for construction and for operation originated in the Atomic Energy Act of 1954.

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Before a construction permit could be issued, an applicant was required to submit to the Commission detailed design and safety information sufficient to enable it to find that a proposed facility would 'provide adequate protection to the health and safety of the public.' Section 182, 42 U.S.C. § 2232(a). The application was reviewed by the Staff, and by the ACRS, whose report was not made public. If the Commission decided to approve the construction application, it was required to give public notice and to grant a hearing at the instance of 'any person whose interest might be affected.' Again at the operating license stage, any interested person could require that a hearing be convened, and again, if no one so requested, no hearing would be held, even though 'the definitive safety determination' would occur at the second stage. Power Reactor Development Co. v. International Union of Electrical Workers, 367 U.S. 396, 407, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961).

The Joint Committee on Atomic Energy initiated a study of Commission procedures in 1956. 13 As a result, 14 the Act was amended in 1957 to give the ACRS statutory status, require ACRS review of every license application and publication of its report, and make mandatory the holding of public hearings at both the construction and operating license stages. 71 Stat. 579 (1957), 42 U.S.C. §§ 2039, 2232(b), 2239(a).

By 1960 it had become apparent to both the AEC and the Joint Committee that the agency's regulatory organization and procedures were in need of further refinement to meet problems associated with the combination of regulatory and promotional functions and the increasing workload arising from an accelerating number of license applications. Accordingly, each body conducted its own study and made recommendations, 15 and the Act was amended again in 1962. Pub.L.No. 87-615, 76 Stat. 409 (1962).

The Committee staff had recommended a number of changes in the reactor licensing process, including the creation of an 'internal board with final licensing authority (not...

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