Nader v. Nuclear Regulatory Com'n

• Decision Date: 30 May 1975
• Docket Number: No. 73-1872,73-1872
• Citation: 168 U.S.App.D.C. 255,513 F.2d 1045
• Parties: , 168 U.S.App.D.C. 255, 5 Envtl. L. Rep. 20,342 Ralph NADER and Friends of the Earth, Petitioners, v. NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, Carolina Power and Light Co. et al., Southern California Edison Co., and San Diego Gas & Electric Co., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1045

513 F.2d 1045

7 ERC 2059, 168 U.S.App.D.C. 255, 5

Envtl. L. Rep. 20,342

Ralph NADER and Friends of the Earth, Petitioners, v. NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents Carolina Power and Light Co. et al., Southern California Edison Co., and San Diego Gas & Electric Co., Intervenors.

No. 73-1872.

United States Court of Appeals District of Columbia Circuit.

Argued May 24, 1974.

Decided May 30, 1975.

Anthony Z. Roisman, Washington, D. C., with whom Myron M. Cherry was on the brief, for petitioners.

Guy H. Cunningham, III, Atty., Atomic Energy Commission, with whom Wallace A. Johnson, Asst. Atty. Gen., Marcus A. Rowden, Gen. Counsel, and Jerome Nelson, Sol., Atomic Energy Commission, and Edmund B. Clark, Atty., Dept. of Justice, were on the brief, for respondents.

George C. Freeman, Jr., Donald P. Irwin, David S. Brollier, Richmond, Va., Arvin E. Upton, Harry H. Voigt and Eugene R. Fidell, Washington D. C., were on the brief for intervenors Carolina Power and Light Company, and others, John J. Adams, Washington, D. C., also entered an appearance for intervenors Carolina Power and Light Co., and others.

C. Hayden Ames, San Francisco, Cal., Rollin E. Woodbury and Alan M. Nedry, Rosemead, Cal., entered appearances for intervenors Southern California Edison Co. and San Diego Gas & Electric Co.

Before McGOWAN, and ROBINSON, Circuit Judges and WEIGEL, ^* United States District Judge for the Northern District of California.

On Petition for Review of an Order of the Atomic Energy commission.

Opinion for the Court filed by Circuit Judge Robinson.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

We are summoned to review an order of the Atomic Energy Commission, predecessor of the Nuclear Regulatory Commission, ¹ denying a petition seeking a shutdown or derating of twenty nuclear power plants licensed for operation in various parts of the Nation. The petition is grounded on the premise that the effectiveness, as safety measures, of the emergency core cooling systems ² of the reactors utilized at these plants has not been suitably established. The Commission held that the questioned systems fully conformed to the design standards applicable, and that immediate shutdown or derating of the reactors was unwarranted. ³ We have examined petitioners' claim with a concern commensurate with our judicial responsibilities, in this case heightened by our sensitivity to the potentially disastrous consequences of unsafe nuclear ventures. We conclude that the Commission's order refusing relief should be affirmed.

I

Nuclear power reactors typically generate thermal energy through a process of controlled fission reaction in the reactor core. ⁴ The energy is absorbed by cooling water circulating through and around the core, ⁵ and ultimately is converted into steam which drives turbines to produce electric power. ⁶ Reactor safety is promoted by a "defense in depth" ⁷ a combination of numerous protective features, of which the emergency core-cooling system ⁸ is but one. ⁹ The function of that system is to reflood the core with cooling water ¹⁰ in the event of a loss-of-coolant accident. ¹¹

On February 20, 1971, the Atomic Energy Commission adopted, for effective operation the following May, a bundle of "General Design Criteria" ¹² for light-water nuclear power reactors. ¹³ One General Design Criterion 35, specified that "(a) system to provide abundant emergency core cooling shall be provided." ¹⁴ On June 29, 1971, the Commission published an "Interim Policy Statement" ¹⁵ detailing four "Interim Acceptance Criteria," ¹⁶ operative at once, ¹⁷ "in order to give immediate effect to standards developed on the basis of new information arising in the course of industry design changes in, and AEC semiscale testing of," emergency core cooling systems. ¹⁸ The policy statement explained that "ongoing industry and AEC programs (had) produced a large amount of information not available at the time of earlier reviews," ¹⁹ and that the Interim Acceptance Criteria were promulgated to reflect emerging technological data. ²⁰

Shortly thereafter, on November 30, 1971, the Commission launched a comprehensive rulemaking proceeding to enable further exploration of scientific opinion as to possible refinements of the Interim Acceptance Criteria. ²¹ The burden of the inquiry was an evaluation of the sufficiency of those criteria to prevent loss-of-coolant accidents, and to determine whether the criteria should be permanently adopted and, if so, with what modifications. ²² To complement the investigation, a draft environmental statement was prepared and circulated for public comment. ²³ Subsequent to submission of this case, the rulemaking proceeding was completed and the Commission announced the results. ²⁴ There were some deviations from the Interim Policy Statement, but three of the four original Interim Acceptance Criteria were left intact with modifications in language. ²⁵

II

Petitioners' current effort did not originate as a part of the administrative litigation concerning requirements for emergency core cooling systems. They were not participants in the proceeding forerunning promulgation of the General Design Criteria, or that following publication of the Interim Acceptance Criteria, ²⁶ nor did they seek judicial review of either after adoption. The petition for review before us ventures beyond a challenge to the emergency core cooling systems in terms of conformity with applicable regulations. In no small degree, it is the second of two collateral attacks which petitioners have launched upon the adequacy of the Acceptance Criteria as safety measures.

The first attack came in an action in the District Court for the District of Columbia wherein petitioners sought injunctive relief against further operation of the reactors and ultimately the revocation of the licenses authorizing their use. ²⁷ Prominent among petitioners' arguments was the contention that compliance with the Acceptance Criteria did not alone insure the effectiveness of emergency core cooling systems. ²⁸ In denying preliminary injunctive relief, the court concluded that it was unlikely that petitioners would suffer irreparable injury or ultimately prevail on the merits, ²⁹ and that the adverse economic impact of an injunction upon the utilities and to the public would be "substantial." ³⁰ Proceeding beyond that ruling, the court dismissed the action on the grounds that petitioners had failed to invoke and exhaust available administrative remedies, ³¹ and that in permitting operation of the reactors under the Acceptance Criteria there was "no violation of a 'clear, nondiscretionary legal duty' by the" Commission. ³² An appeal from the District Court's rulings was taken, but later was dismissed by agreement of the parties. ³³

Petitioners then turned to the Commission for the shutdown, ³⁴ raising precisely the same issues previously tendered to the District Court. ³⁵ Treating, upon a formidable record, ³⁶ their petition as a request that it "issue, amend, or rescind (a) regulation," ³⁷ the Commission issued a memorandum opinion and order denying the request. ³⁸ The Commission referred to its formulation of General Criterion 35, ³⁹ its subsequent promulgation of the Acceptance Criteria as implementations, ⁴⁰ and the then pending rulemaking investigation as to whether the Acceptance Criteria should be retained in their present form or some other. ⁴¹ The Commission noted that the extensive rulemaking proceeding ⁴² had recently been submitted to it for final decision, and that it was anticipated that the decision would soon be forthcoming. ⁴³

Against this backdrop, the Commission addressed petitioners' claim that the plants in question should be shut down because compliance with the Acceptance Criteria did not "assure" the effectiveness of the emergency core-cooling systems:

Neither the statute nor the Commission regulations in issue . . . require such an unattainable guarantee of risk-free operation. . . . We do not live in a risk-less society, nor could modern technological societies exist on that basis. We are, of course, aware of the potential risks in nuclear matters if safety is not given the very close attention it deserves. In this regard, the (loss-of-coolant accident) has been characterized as "perhaps the most-studied hypothetical accident in history" ⁴⁴ . . . . These studies continue. It is precisely because of this perceived risk that we have always imposed stringent and overlapping protective measures in implementing the concept of defense in depth. However we cannot and do not claim "assurance" as an absolute. ⁴⁵

"Rather," the Commission continued, "the regulatory process turns upon the concept of 'reasonable assurance' to public health and safety." ⁴⁶

The Commission then found that "(m)easured by this standard, . . . reactors operating under the (Interim Acceptance Criteria) provide reasonable assurance of protection to the public health and safety in the highly unlikely event of a major loss-of-coolant accident." ⁴⁷ It elaborated:

Petitioners case ignores the substantial showing of scientific and engineering support for the (Interim Acceptance) Criteria. . . . Of course there is a variety of expert opinion in the (emergency core-cooling system) rulemaking record ranging from those who take the view that even the Interim Criteria are too conservative to those few who have reservations about some aspect. None of the experts upon whom petitioners rely supports the extraordinary relief they seek. . . . We have not been shown, nor have we found, any factual basis which would warrant short-circuiting the orderly culmination of the (emergency core-cooling system) rulemaking proceeding. On the record presented in the instant case, we specifically reaffirm our conclusion that compliance with the (Interim Acceptance Criteria) provides reasonable assurance that emergency core cooling systems will adequately protect the public...