751 F.2d 1287 (D.C. Cir. 1984), 81-2034, Deukmejian v. Nuclear Regulatory Com'n
|Docket Nº:||81-2034, 81-2035, 83-1073, 84-1042 and 84-1410.|
|Citation:||751 F.2d 1287|
|Party Name:||Envtl. SAN LUIS OBISPO MOTHERS FOR PEACE, et al., Petitioners, v. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Pacific Gas and Electric Company, Intervenor. SAN LUIS OBISPO MOTHERS FOR PEACE, et al., Petitioners, v. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Pacific Gas and Electric Company,|
|Case Date:||December 31, 1984|
|Court:||United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit|
As Amended 31 Dec. 1984.
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Joel R. Reynolds, Los Angeles, Cal., with whom David S. Fleischaker, Washington, D.C., was on the brief, for petitioners in Nos. 81-2034, 81-2035, 83-1073, 84-1042 and 84-1410. Herbert H. Brown, Charles Lee Eisen and Lawrence Coe Lanpher, Washington, D.C., entered appearances for petitioner in No. 81-2034.
William H. Briggs, Jr., Sol., Nuclear Regulatory Com'n, Washington, D.C., with whom Herzel H.E. Plaine, Gen. Counsel, E. Leo Slaggie, Deputy Sol., Nuclear Regulatory Com'n, Peter R. Steenland, Jr., Appellate Section Chief, Dept. of Justice, Jacques B. Gelin, Atty., Dept. of Justice, Richard L. Black, Sheldon L. Trubatch, E. Neil Jensen, Carole F. Kagen, A. Laurence Ralph, and Lawrence J. Chandler, Attorneys, Nuclear Regulatory Com'n, Washington, D.C., were on the brief, for respondents in Nos. 81-2034, 81-2035, 83-1073, 84-1042 and 84-1410. Mark E. Chopko and Richard A. Parrish, Attorneys, Nuclear Regulatory Com'n, Washington, D.C., entered appearances for respondents in Nos. 81-2034, 81-2035 and 83-1073.
William T. Coleman, with whom Malcolm H. Furbush, San Francisco, Cal., Douglas A. Oglesby, Joseph B. Knotts, Jr., Scott M. DuBoff and Daniel F. Stenger, Washington, D.C., were on the brief, for intervenor, Pacific Gas and Electric Co., in Nos. 81-2034, 81-2035, 83-1073, 84-1042 and 84-1410. F. Ronald Laupheimer, Washington, D.C., entered an appearance for intervenor in No. 81-2034 and 81-2035. J. Michael McGarry, III, Washington, D.C., entered an appearance for intervenor in Nos. 81-2034 and 83-1073.
Barton Z. Cowan, Pittsburgh, Pa., was on brief, for amicus curiae, Atomic Industrial Forum, Inc., in No. 84-1410, urging affirmance.
Peter B. Kelsey, Edward H. Coner and William L. Fang, Washington, D.C., were on brief, for amicus curiae, Edison Electric Institute, in No. 84-1410, urging affirmance.
Before WALD and BORK, Circuit Judges, and WILKEY, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge WILKEY.
Opinion concurring in part and dissenting in part filed by Circuit Judge WALD.
WILKEY, Senior Circuit Judge:
On this appeal we review orders of the Nuclear Regulatory Commission granting licenses for low power and full power operations at the Diablo Canyon Nuclear Power Plant in San Luis Obispo County, California. 1 Petitioners are groups and individuals who intervened in the licensing proceedings before the Commission; petitioners and their members live and work in the vicinity of the Diablo Canyon plant. Petitioners contend that, in granting licenses to Pacific Gas and Electric Company ("PG & E") for operation of the facility, the Commission violated specific legal requirements of the National Environmental Policy Act, 2 the Atomic Energy Act, 3 the Administrative Procedure Act 4 and numerous regulations promulgated pursuant to those statutes. Respondent Commission and intervenor PG & E characterize petitioners' contentions as fundamental disagreements with the Commission's factual findings. They defend those findings as lying well within the range of agency discretion afforded the Commission under applicable statutes and regulations, and they urge this court to defer to the Commission's scientific expertise in assessing the legality of the licensing actions challenged herein.
After an exhaustive examination of the record in these prolonged and complex proceedings, we conclude that the Commission acted within the parameters of legal discretion in all but two minor respects. The Commission committed technical errors in licensing reactor operators who had been trained on computer simulators, and in denying petitioners a hearing on issues of construction quality assurance when it twice extended the term of Diablo Canyon's license. The Commission has corrected its first error by amending its operator license requirements to recognize experience gained on computer simulators, and there exists no impediment to relicensing the Diablo Canyon operators under the new provision. The second error remains uncorrected, but we conclude that it would serve no discernible purpose to allow petitioners now to introduce the evidence they would have produced had they been properly accorded a hearing. Because that evidence was not material or safety-significant, we conclude that its exclusion calls into question neither the Commission's decision to license Diablo Canyon nor the safe operation of the plant. Under these circumstances we believe a remand would be an empty gesture, and one with which we decline to burden the Commission. We therefore affirm the Commission's decision to allow issuance of low power and full power licenses for the Diablo Canyon Nuclear Power Plant.
I. THE LIMITED ROLE ON JUDICIAL REVIEW
While our analysis necessarily critically examines individual decisions of the
Commission and its boards, we recognize and respect the great deference due such expert determinations. The Atomic Energy Act of 1954 created a regulatory scheme which is "virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives." 5 As the Supreme Court has recently reminded us, "the Commission is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential." 6
Just as we must not usurp the scientific role properly accorded the Commission by the Atomic Energy Act and other governing statutes, neither are we permitted to question this nation's commitment to the development of nuclear power as a significant power source. On several occasions--often in the course of reversing decisions of this court--the Supreme Court has explicitly recognized Congress's commitment to the careful nurturing of the nuclear power industry. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council 7 a unanimous Supreme Court described the limited mandate under which courts act in deciding questions of nuclear regulation:
Nuclear energy may someday be a cheap, safe source of power or it may not. But Congress has made a choice to at least try nuclear energy, establishing a reasonable review process in which courts are to play only a limited role. The fundamental policy questions appropriately resolved in Congress and in the state legislatures are not subject to reexamination in the federal courts under the guise of judicial review of agency action. Time may prove wrong the decision to develop nuclear energy, but it is Congress or the States within their appropriate agencies which must eventually make that judgment. In the meantime courts should perform their appointed function. [The National Environmental Policy Act] does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural. It is to insure a fully informed and well-considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute, not simply because the court is unhappy with the result reached. 8
On remand from the Vermont Yankee decision this court held that a "zero-release" assumption adopted by the Commission to describe the environmental impacts of radioactive waste storage violated both the Administrative Procedure Act ("APA") and the National Environmental Policy Act ("NEPA"). 9 Because the Commission had not factored into the licensing process uncertainties underlying its assumption, this court concluded that the assumption was arbitrary and capricious and a violation of NEPA.
The Supreme Court reversed, holding that the Commission had not acted arbitrarily
and capriciously in assigning a zero value to the environmental impact of radioactive waste storage. 10 The Court again emphasized the limited nature of the judicial role in reviewing such Commission determinations:
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