Carolina Environmental Study Group, Inc. v. United States Atomic Energy Commission

Citation431 F. Supp. 203
Decision Date31 March 1977
Docket NumberNo. C-C-73-139.,C-C-73-139.
PartiesCAROLINA ENVIRONMENTAL STUDY GROUP, INC., et al., Plaintiffs, v. UNITED STATES ATOMIC ENERGY COMMISSION et al., Defendants.
CourtU.S. District Court — Western District of North Carolina

Norman B. Smith, Smith, Patterson, Follin & Curtis, Greensboro, N. C., George S. Daly, Jr., Casey & Daly, Charlotte, N. C., William B. Schultz and Alan B. Morrison, Washington, D. C., for plaintiffs.

Douglas M. Martin, Asst. U. S. Atty., Charlotte, N. C., Joseph DiStefano, Atomic Energy Commission, Peter L. Strauss, Gen. Counsel, and Stephen F. Eilperin, Asst. Gen. Counsel, James Fitzgerald and E. Leo Slagge, Attys., U. S. Nuclear Regulatory Commission, John T. Boese, U. S. Dept. of Justice, for defendant U. S. Atomic Energy Commission; Joseph B. Knotts, Jr. and J. Michael McGarry, III, Conner & Knotts, Washington, D. C., Clarence W. Walker, Kennedy, Covington, Lobdell & Hickman, and William L. Porter, Duke Power Co., Charlotte, N. C., for defendant Duke Power Co.

MEMORANDUM OF DECISION

McMILLAN, District Judge.

PRELIMINARY STATEMENT

Plaintiffs brought this action to obtain a declaration of the unconstitutionality of those portions of the Price-Anderson Act, 42 U.S.C. § 2210(c) and § 2210(e), which place a limitation of $560,000,000 on the maximum amount of liability of a power company or a contractor for damages resulting from a nuclear accident involving an atomic power plant.

Damages and injunctive relief are not sought.

Defendants in their pleadings denied the merits of the claims of the plaintiffs and asserted that the plaintiffs lack standing and that the claims are not ripe for decision.

On the 21st day of May, 1975, at a hearing on the motion to dismiss, it appeared that full dress consideration was desired on the issues of standing and ripeness. Time was allotted, therefore, to develop evidence, and a hearing, four days in length, was conducted on September 27, 29 and 30 and October 1, 1976, on these subjects. Briefs were subsequently filed and the case is ready for decision.

THE PLAINTIFFS

Plaintiffs are a group of people with a common interest in protecting themselves, and other present day citizens and their children, against what they see as the deterioration and destruction of their property and the world they live in. Some of them have fought against nuclear power at numerous administrative and legal levels. They have opposed licensing the defendant Duke to construct nuclear plants, and they oppose ultimate issuance of a license to operate those plants after they are completed. They have not slept on their rights. They are vigorously represented by able and experienced counsel. Their claims are seriously advanced. They number people who live and own property on Lake Norman and at other places within short distances of the McGuire Nuclear Plant and the Catawba Plant, now under construction. They include people who have moved away from homes near the nuclear plants and some who plan to leave the area because the plants are being constructed; people whose use and enjoyment of the lakes and their shores (for living, breathing, swimming, fishing, boating, skiing and gardening) will be affected by operation of the plants; people who have legitimate fears that nuclear power plants are dangerous, and who contend that but for the Price-Anderson Act such dangers would not exist.

THE PRICE-ANDERSON ACT

The Price-Anderson Act was adopted in 1957. In pertinent part, 42 U.S.C. § 2210(e), it provides:

"(e) Aggregate liability for a single nuclear incident. The aggregate liability for a single nuclear incident of persons indemnified, including the reasonable costs of investigating and settling claims and defending suits for damage, shall not exceed (1) the sum of $500,000,000 together with the amount of financial protection required of the licensee or contractor or (2) if the amount of financial protection required of the licensee exceeds $60,000,000, such aggregate liability shall not exceed the sum of $560,000,000 or the amount of financial protection required of the licensee, whichever amount is greater: Provided, That in the event of a nuclear incident involving damages in excess of that amount of aggregate liability, the Congress will thoroughly review the particular incident and will take whatever action is deemed necessary and appropriate to protect the public from the consequences of a disaster of such magnitude . . .."

In other words, $560,000,000 is the maximum amount that all persons injured could recover for injury, death or property damage in the event that a domestic nuclear power plant got out of control.

The Act authorizes the Commission to pay the first $500,000,000 incurred in investigating and settling claims and defending suits from such an accident, but allows the Commission to require that the power companies themselves provide indemnity for at least the first $60,000,000. The Commission is authorized to require that this indemnity by the power companies be increased as the Commission may decide up to an amount of $500,000,000. Some such increases in power company shares in this indemnity have been required, but the $560,000,000 overall limit remains.

Detailed provisions are made for handling claims. One provision of particular interest is § 2210(o), which says that if, upon petition and showing, a cognizant United States district court determines that a particular incident has produced losses that exceed the $560,000,000 limit of liability: (1) payments going beyond 15% of that limit ($84,000,000) may not be made without court approval; (2) payments above 15% must be under a plan of distribution or found to be not prejudicial to the subsequent adoption of such a plan; (3) claims for later discovered and future injuries must be provided for; and (4) all further distribution must be determined by the district judge.

THE NUCLEAR POWER PLANTS IN QUESTION

Defendant Duke Power Company has harnessed many miles of the Catawba River, in Western North Carolina and South Carolina, with numerous dams to supply water for a number of coal fired and water powered and atomic powered electric generating plants. In South Carolina it operates a three-nuclear reactor turbine plant at Oconee, and it has begun the process of building two atomic turbines at a plant on Lake Wylie, also in South Carolina, some fifteen or so miles southwest of Charlotte (population nearly 300,000). The plant on Lake Wylie is called the Catawba Nuclear Station.

In North Carolina, Duke has under construction the McGuire Nuclear Station which is located on Lake Norman, approximately seventeen miles northwest of Charlotte. This plant, a twin-reactor installation of cost reportedly approximating a billion dollars, is nearing completion. Within a fifty-mile radius of each plant, present population is about one and one-half million people, and estimated population in 2000 A.D. is about two million.

The McGuire Nuclear Station is a twin-reactor nuclear pressurized water (PW) power plant, with turbines and controls, designed to produce power enough to supply a million people (about 1,180,000 kilowatts of net electric energy per reactor).

The "furnace" in each half of the plant is the nuclear reactor chamber, or vessel.

The nuclear reactor chamber is a steel cylinder thirty feet or more long and twelve feet or more in diameter, with steel walls ten inches and more in thickness. With controls and a load of uranium oxide fuel, it weighs about five hundred tons, or one million pounds.

The reactor chamber is situated below ground level in the containment building, which is somewhat more fully described later on. The relative sizes and positions of the reactor chamber within the containment building are very roughly illustrated if one visualizes a somewhat elongated and symmetrical goose egg sitting on one end in a hole in the ground with a ten-gallon can turned upside down above it, and with numerous other pipes, tanks and other installations mounted elsewhere in the can.

Heat is produced in the reactor by splitting atoms. This is done by bringing together a "critical mass" of uranium oxide fuel.

The uranium oxide fuel is contained in cylindrical pellets about the diameter (.366 inches) of a blank .32 caliber pistol cartridge and .60 inches in length. These pellets are enclosed, end on end, in metal "fuel rods," twelve feet long and .422 inches in diameter. A group of 50 to 200 fuel rods makes a fuel "assembly," and there are several hundred "assemblies" in the reactor "core." Total weight of the fuel thus enclosed in each reactor is about one hundred tons.

No blueprint was supplied as to the exact mechanism by which atomic reactions in the fuel assemblies are started and shut off. Apparently, however, it works this way:

The fuel rods in the reactor stand on end, with vacant spaces among them.

Control rods, with some type of insulating or shielding function, are let down from above, and occupy the spaces among the fuel rods and separate the fuel rods, thereby preventing atomic reaction. The physical layout is roughly similar to that which would obtain if one hair brush were laid on a table with its bristles (fuel rods) sticking up, and another hair brush were pressed down on it with its bristles (control rods) pointing down.

When heat is desired, the control rods are lifted, the fuel in the fuel rods starts reacting, and atomic fission or atom-splitting takes place.

When the control rods are re-inserted, atomic fission stops and heat from atomic fission stops.

However, once atomic fission has been begun, decay of the atomic materials also begins, and the atomic fuel continues to decay and give off heat. This radioactive decay continues, unstoppable, for hundreds of thousands of years.

This radioactive decay is in fact the source of about seven per cent of the reactor's output of heat.

In a small reactor this might not be of great significance.

In a reactor the...

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