Com. of Mass. v. U.S.

• Decision Date: 08 June 1988
• Docket Number: 87-2033,88-1121,Nos. 87-2032,s. 87-2032
• Citation: 856 F.2d 378
• Parties: , 19 Envtl. L. Rep. 20,168 The COMMONWEALTH OF MASSACHUSETTS, Petitioner, v. UNITED STATES of America, and United States Nuclear Regulatory Commission, Respondents. Public Service Company of New Hampshire, Scientists and Engineers for Secure Energy, Inc., Long Island Lighting Company, Nuclear Management and Resources Council, Inc., and Edison Electric Institute, Intervenors. UNION OF CONCERNED SCIENTISTS, et al., Petitioners, v. UNITED STATES REGULATORY COMMISSION and United States of America, Respondents. Public Service Company of New Hampshire, Nuclear Management and Resources Council, Inc., Edison Electric Institute, Long Island Lighting Company, Citizens Within the 10-Mile Radius, Inc., and Scientists and Engineers for Secure Energy, Inc., Intervenors. STATE OF NEW YORK, Mario Cuomo, Governor, and County of Suffolk, Petitioners, v. UNITED STATES of America and United States Nuclear Regulatory Commission, Respondents. Public Service Company of New Hampshire, Nuclear Management and Resources Council, Inc., Edison Electric Institute, Long Island Lighting Company, and Scientists and Engineers for Secure Energy, Inc., Intervenors. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 378

856 F.2d 378

57 USLW 2175, 19 Envtl. L. Rep. 20,168

The COMMONWEALTH OF MASSACHUSETTS, Petitioner, v. UNITED STATES of America, and United States Nuclear

Regulatory Commission, Respondents.

Public Service Company of New Hampshire, Scientists and

Engineers for Secure Energy, Inc., Long Island Lighting

Company, Nuclear Management and Resources Council, Inc., and

Edison Electric Institute, Intervenors.

UNION OF CONCERNED SCIENTISTS, et al., Petitioners, v. UNITED STATES REGULATORY COMMISSION and United States of

America, Respondents.

Public Service Company of New Hampshire, Nuclear Management

and Resources Council, Inc., Edison Electric Institute, Long

Island Lighting Company, Citizens Within the 10-Mile Radius,

Inc., and Scientists and Engineers for Secure Energy, Inc.,

Intervenors.

STATE OF NEW YORK, Mario Cuomo, Governor, and County of

Suffolk, Petitioners, v. UNITED STATES of America and United States Nuclear

Regulatory Commission, Respondents.

Public Service Company of New Hampshire, Nuclear Management

and Resources Council, Inc., Edison Electric Institute, Long

Island Lighting Company, and Scientists and Engineers for

Secure Energy, Inc., Intervenors.

Nos. 87-2032, 87-2033, 88-1121.

United States Court of Appeals First Circuit.

Heard June 8, 1988.

Decided Sept. 6, 1988.

James M. Shannon, Atty. Gen., with whom Stephen A. Jonas, Frank W. Ostrander and John Traficonte, Asst. Attys. Gen., Boston, Mass., were on brief, for petitioner Com. of Mass.

Karla J. Letsche with whom Herbert H. Brown, Jonathan N. Eisenberg, Frederick W. Yette, Kirkpatrick & Lockhart, Washington, D.C., Robert Abrams, Atty. Gen., Alfred L. Nardelli, Asst. Atty. Gen., New York City, Fabian G. Palomino, Sp. Counsel to the Governor, Albany, N.Y., and E. Thomas Boyle, Suffolk Co. Atty., Stony Brook, N.Y., were on brief, for petitioners of New York State, Governor Mario M. Cuomo, and Suffolk County.

Ellyn R. Weiss with whom Diane Curran, Andrea C. Ferster, Anne Spielberg, Dean R. Tousley and Harmon & Weiss, Washington, D.C., were on brief, for petitioners Union of Concerned Scientists, et al.

Robert A. Backus and Backus, Meyer & Solomon, Manchester, N.H., on brief, for intervenor Citizens Within The 10-Mile Radius, Inc.

William H. Briggs, Jr., Sol., with whom William C. Parler, Gen. Counsel, E. Leo Slaggie, Deputy Sol., Peter G. Crane, Counsel for Sp. Projects, Office of the Gen. Counsel, U.S. Nuclear Regulatory Com'n, Roger J. Marzulla, Asst. Atty. Gen., Anne S. Almy, Asst. Chief, Appellate Section, and John T. Stahr, Appellate Section, Land and Natural Resources Div., Dept. of Justice, Washington, D.C., were on brief, for respondents.

Thomas G. Dignan, Jr., George H. Lewald, Deborah S. Steenland and Ropes & Gray, Boston, Mass., on brief, for intervenor Public Service Co. of New Hampshire.

James P. McGranery, Jr., Washington, D.C., on brief, for intervenor Scientists and Engineers for Secure Energy, Inc.

Donald P. Irwin, Lee B. Zeugin, Jessine A. Monaghan, Charles L. Ingebretson and Hunton & Williams, Richmond, Va., on brief, for intervenor Long Island Lighting Co.

Jay E. Silberg, Robert E. Zahler, Delissa A. Ridgway, Shaw, Pittman, Potts & Trowbridge Robert W. Bishop, Gen. Counsel, Nuclear Management and Resources Council, Inc., Robert L. Baum, Sr. Vice President and Gen. Counsel, Edison Elec. Institute, Washington, D.C., on brief, for intervenors Nuclear Management and Resources Council, Inc., and Edison Elec. Institute.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and ACOSTA, ^* District Judge.

LEVIN H. CAMPBELL, Chief Judge.

These consolidated petitions ¹ are for review of a regulation promulgated by the Nuclear Regulatory Commission ("NRC"). The regulation provides standards by which the NRC, in deciding whether to license a utility to operate a nuclear power plant, evaluates a radiological emergency plan that is prepared by the utility alone because local governments have refused to participate in emergency planning. Petitioners specifically contest the rule's incorporation of what is known in NRC parlance as the "realism doctrine," a doctrine that allows the NRC, in evaluating a utility emergency plan, to make the following pair of presumptions: 1) in the event of an actual radiological emergency state local officials will do their best to protect the affected public, and 2) in such an emergency these officials will look to the utility plan for guidance and will generally follow that plan. Petitioners contend the rule is arbitrary and capricious, was promulgated under deficient "notice and comment" procedures, and is beyond the scope of the NRC's statutory authority.

I.

Under the Atomic Energy Act of 1954, 42 U.S.C. Secs. 2011 et seq. (1982), the Nuclear Regulatory Commission is empowered to

prescribe such regulations or orders as it may deem necessary ... to govern any activity authorized pursuant to this chapter, including standards and restrictions governing the design, location, and operation of facilities used in the conduct of such activity, in order to protect health and to minimize danger to life or property....

Id. Sec. 2201(i)(3). Prior to the 1979 accident at the Three Mile Island nuclear power plant near Harrisburg, Pennsylvania, both Congress and the NRC had directed their regulatory efforts primarily at plant design. However, in response to the perceived inadequacy of prior planning and coordination between the utility and local governments during the Three Mile Island accident, Congress included in the NRC's 1980 authorization legislation new provisions aimed to ensure that "offsite" emergency planning was taken into consideration as well. The relevant part of the 1980 authorization legislation provided as follows:

(a) Funds authorized to be appropriated pursuant to this Act may be used by the Nuclear Regulatory Commission to conduct proceedings, and take other actions, with respect to the issuance of an operating license for a utilization facility only if the Commission determines that--

(1) there exists a State or local emergency plan which--

(A) provides for responding to accidents at the facility concerned, and (B) as it applies to the facility concerned only, complies with the Commission's guidelines for such plans, or

(2) in the absence of a plan which satisfies the requirements of paragraph (1), there exists a State, local, or utility plan which provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned.

Pub.L. No. 96-295, Sec. 109(a)(1), 94 Stat. 780 (1980). The disjunctive language in subsection (2)--"State, local or utility plan "--indicates that this legislation did not condition the issuance of a license exclusively upon the existence of a state or local emergency plan. Rather, the statute's emergency planning requirements may be satisfied by either 1) a state or local plan complying with NRC guidelines or 2) a state, local, or utility plan that provides "reasonable assurance that public health and safety is not endangered."

After the accident at Three Mile Island, but prior to the 1980 authorization legislation, the NRC began revising its own emergency planning requirements. Its final emergency planning rule was promulgated in August 1980, just a few weeks after Congress had passed the authorization legislation. The NRC rule provided generally, in its initial paragraph, that "no operating license for a nuclear power reactor will be issued unless a finding is made by NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 10 C.F.R. Sec. 50.47(a)(1) (1980). Paragraph (b) of the regulation, along with Appendix E, provided specific substantive standards for emergency response plans. Under subsection (c), however, a licensing applicant's failure to meet paragraph (b)'s standards was not necessarily fatal: an applicant could still demonstrate to the Commission that certain deficiencies were not significant for the plant in question, that interim compensating actions had already been taken or were imminent, or that there were other "compelling reasons" to permit plant operation. The rule did not specifically discuss or refer to emergency plans that were prepared by a utility without input from state or local governments.

The 1980 rule remained unchanged until the 1987 amendment here in issue. Two developments occurred in the meantime, however, that are worthy of note. First, in two authorization acts subsequent to the 1980 authorization act discussed above, Congress reaffirmed that a plant could be licensed by the NRC on the basis of a "State, local, or utility plan which provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned." Pub.L. No. 97-415, 96 Stat. 2067, Sec. 5 (1982-83 Authorization Act); Pub.L. No. 98-553, 98 Stat. 2825, Sec. 108 (1984-85 Authorization Act). These are the only post-1980 authorization acts. Second, in a 1986 adjudicatory ruling, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986), the NRC explained how its 1980 rule would apply in evaluating the adequacy of a utility emergency plan. The question then before the NRC was whether the Long Island Lighting Company's emergency plan for its Shoreham Nuclear Power Plant was inadequate as a matter of law because of the refusal of Suffolk County and New York State to participate in the planning. Noting that it was legally obligated to consider whether a utility plan prepared without government cooperation could pass muster, the Commission stated that such a plan might be adequate under 10 C.F.R. Sec. 50.47(c), see supra, notwithstanding its inability to comply with the specific standards of paragraph (b), which are premised upon a high level of utility-government cooperation. Id. at 29. The Commission stated that the "root question" under paragraph (c) was...