Carolina Environmental Study Group v. U.S., 73--1869

• Decision Date: 21 January 1975
• Docket Number: No. 73--1869,73--1869
• Citation: 166 U.S.App.D.C. 416,510 F.2d 796
• Parties: , 166 U.S.App.D.C. 416, 5 Envtl. L. Rep. 20,181 CAROLINA ENVIRONMENTAL STUDY GROUP, Petitioner, v. The UNITED STATES of America and the United States Atomic Energy Commission, Respondents, Duke Power Company, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 796

510 F.2d 796

7 ERC 1675, 166 U.S.App.D.C. 416, 5

Envtl. L. Rep. 20,181

CAROLINA ENVIRONMENTAL STUDY GROUP, Petitioner, v. The UNITED STATES of America and the United States Atomic Energy Commission, Respondents Duke Power Company, Intervenor.

No. 73--1869.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 31, 1974.

Decided Jan. 21, 1975.

George S. Daly, Jr., Charlotte, N.C., and Norman B. Smith, Greensboro, N.C., were on the brief for petitioner.

Marcus A. Rowden, Gen. Counsel, Raymond M. Zimmet, Asst. to Sol., Joseph DiStefano, Atty., Atomic Energy Commission, Wallace H. Johnson, Asst. Atty. Gen., Dept. of Justice, Edmund B. Clark and Peter R. Steinland, Attys., Dept. of Justice, were on the brief for respondents.

William H. Grigg, Charlotte, N.C., W. L. Porter, Louisville, Ky., Troy B. Conner, Jr., Joseph B. Knotts, Jr., and J. Michael McGarry, III, Chevy Chase, Md., were on the brief for intervenor.

Before ROBB and WILKEY, Circuit Judges, and MARKEY, ^* Chief Judge, of the United States Court of Customs and Patent Appeals.

MARKEY, Chief Judge:

This is an appeal under 42 U.S.C. § 2239(b) and 28 U.S.C. § 2342 from a decision of the Atomic Safety & Licensing Appeal Board (Appeal Board) of the Atomic Energy Commission (A.E.C.) which resulted in a final order granting Duke Power Company (Duke) a construction license to build two nuclear reactors for generation of electricity. We affirm.

The two nuclear reactors are of the 'pressurized water' type ¹ and are to be located on Lake Norman, approximately 17 miles from Charlotte, North Carolina.

Duke's construction application was filed with the A.E.C. in 1970. A public notice of hearings pursuant to 10 C.F.R. 2.104 was issued. Thereafter, Carolina Environmental Study Group (Study Group) was made a party-intervenor under 10 C.F.R. 2.714. Hearings were held during 1972 and the Atomic Safety & Licensing Board (Board) issued its decision on February 21, 1973, granting the construction licenses sought by Duke. The Appeal Board's June 13, 1973 decision upheld the Board's decision and became the final order of the A.E.C. (10 C.F.R. 2.770). This appeal followed.

The Study Group also filed an action in the District Court for the Western District of North Carolina, seeking to overturn the Appeal Board's decision and raising essentially the contentions raised here. On the A.E.C.'s motion to dismiss for lack of jurisdiction, countered by the Study Group's allegation of jurisdiction under the Administrative Procedure Act (5 U.S.C. § 703), District Judge McMillan stayed the action pending our decision on this appeal.

THE ISSUES

The Study Group contends that the A.E.C. failed to comply with sections 102(2) (C)(i) and 102(2)(C)(iii) of the National Environmental Policy Act ² (NEPA) because its Environmental Impact Statement reflects inadequate consideration of the impact of a breach-of-reactor containment accident and the alternatives of no power, other power sources, or the possibility of a decreasing demand for power. Appellant requests that we declare the final order of the A.E.C. illegal and order Duke's construction license stricken.

The Study Group further prays that we remand this action and order proceedings in the District Court in North Carolina because the A.E.C. cannot accord them 'the due process and unbiased consideration to which they are entitled.' Appellant alleges that the question of whether construction permits should issue was never truly open because of the A.E.C.'s 'bias' in favor of commercial nuclear power development. Appellant points to the A.E.C.'s failure to consider in this and other cases certain environmental factors, its deferral of such consideration until the licensing stage herein, and its allowance of construction exemptions.

OPINION

(I) ENVIRONMENTAL IMPACT CONSIDERATION

Section 102(2)(C)(i) of NEPA requires a 'detailed statement' on 'the environmental impact of the proposed action.' That language requires description of reasonably foreseeable effects. A 'rule of reason' is used to ascertain those effects anticipated. Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972). The 'detailed statement' is required as a basis for intelligent balancing of the effect on the environment with the economic and technical factors. Calvert Cliffs Coordinating Committee v. A.E.C., 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). A 'finely tuned' balance is envisioned.

The A.E.C. has classified hypothetical reactor accidents from Class 1 (trivial incidents with high occurrence probability) to Class 9 (ultimate severity with occurrence highly unlikely). The Class 9 accident, known as a breach-of-reactor containment accident, involves concurrent rupture of the three-foot thick concrete containment vessel and the several inches of steel surrounding the reactor core, resulting in the exposure of the radioactive core to the atmosphere. Such an accident would necessarily involve simultaneous malfunction of all safety systems.

The A.E.C.'s Final Environmental Statement, section 7, page 3, included this comment:

The postulated occurrences in Class 9 involve sequences of successive failures more severe than those required to be considered in the design bases of protective systems and engineered safety features. The consequences could be severe. However, the probability of their occurrence is so small that their environmental risk is extremely low. Defense in depth (multiple physical barriers), quality assurance for design, manufacture and operation, continued surveillance and testing, and conservative design are all applied to provide and maintain the required high degree of assurance that potential accidents in this class are, and will remain, sufficiently small in probability that the environmental risk is extremely low.

What the A.E.C. means by the small probability of such accidents is seen in its report ³ that

some experts held that numerical estimates of a quantity (of major accidents) so vague and uncertain as the likelihood of occurrence of major reactor accidents have no meaning. They declined to express their feeling about this probability in numbers. Others, though admitting similar uncertainty, nevertheless ventured to express their opinions in numerical terms. Estimations so expressed of the probability of reactor accidents having major effects on the public ranged from a chance of one on 100,000 to one in a billion per year for each large reactor. However, whether numerically expressed or not, there was no disagreement with the opinion that the probability of major reactor accidents is exceedingly low.

Focusing on the degree of possible damage resulting from the occurrence of a Class 9 accident, ⁴ the Study Group argues that the risk is very real, thus tending to equate damage with risk. At the same time, the Study Group accuses the A.E.C. of equating probability with risk. We agree with neither equation.

The A.E.C. is required by NEPA to set forth the factors involved, to the end that the ultimate decision on a proposed course of action shall be enlightened by prior recognition of its impact on the quality of human environment. Viewing the record as a whole, we cannot say that the A.E.C.'s general consideration of the probabilities and severity of a Class 9 accident amounts to a failure to provide the required detailed statement of its environmental impact. That the probability of a Class 9 accident is remote and that its consequences would be catastrophic are undisputed. Neither the A.E.C.'s finding of low probability, nor its methodology or basis for that finding, are challenged here by appellant.

Because each statement on the environmental impact of a proposed action involves educated predictions rather than certainties, it is entirely proper, and necessary, to consider the probabilities as well as the consequences of certain occurrences in ascertaining their environmental impact. There is a point at which the probability of an occurrence may be so low as to render it almost totally unworthy of consideration. Neither we, nor the A.E.C. on this record, would treat lightly the horrible consequences of a Class 9 accident. Recognition of the minimal probability of such an event is not equatable with nonrecognition of its consequences. We find nothing in the instant record which would indicate that the A.E.C. findings regarding Class 9 accidents are clearly erroneous or that the A.E.C.'s compliance with NEPA Section 102(2)(C) (i) in this case was inadequate.

(II) ALTERNATIVES

The Study Group's challenge under NEPA Section 102(2)(C)(iii) is bottomed on the premise that '(i)n the Detailed Statement, an analytically unsound conclusion of an urgent need for power led to short shrift in consideration of alternative means of producing power and no consideration of not producing power.'

Duke predicted the area's future need for electrical generating capacity by extrapolating its historic increase in demand for electricity. Although the Study Group takes issue with those predictions, Duke's prior forecasts of future demand have been accurate within 1 1/2% for one year predictions and within 5% for 5 year forecasts. The Study Group has not persuaded us that Duke's predictions or its prediction methodology...