Limerick Ecology Action, Inc. v. U.S. Nuclear Regulatory Com'n, s. 85-3431
| Decision Date | 25 April 1989 |
| Docket Number | 85-3606,86-3314,87-3565,Nos. 85-3431,87-3508,87-3190,85-3444,s. 85-3431 |
| Parties | 19 Envtl. L. Rep. 20,907 LIMERICK ECOLOGY ACTION, INC., Petitioner in 85-3431, 86-3314, 87-3508, Thomas Martin, F8255, Petitioner in 85-3444, 87-3190, 87-3565, Robert L. Anthony, Petitioner in 85-3606, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, Philadelphia Electric Company, Intervenor. |
| Court | U.S. Court of Appeals — Third Circuit |
Charles W. Elliott (argued), Brose and Poswistilo, Easton, Pa., for petitioner Limerick Ecology Action, Inc.
Angus R. Love (argued), Montgomery County Legal Aid, Norristown, Pa., for petitioner, Thomas Martin.
Robert L. Anthony, Moylan, Pa., pro se.
William C. Parler, Gen. Counsel, William H. Briggs, Jr., Sol., E. Leo Slaggie, Deputy Sol., Irwin B. Rothschild, III, Deputy Asst. Gen. Counsel, G. Paul Bollwerk, III (argued), Michael B. Blume, Sr. Attys., Office of the Gen. Counsel, U.S. Nuclear Regulatory Com'n, Peter R. Steenland, Jr., Chief Appellate Section, Vicki L. Plaut, Arthur E. Gowran, Jacques B. Gelin, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for respondents, Nuclear Regulatory Com'n and U.S.
Bernard Chanin, Wolf, Block, Schorr and Solis-Cohen, Edward G. Bauer, Jr., Eugene J. Bradley, Philadelphia, Pa., Troy B. Conner, Jr., Robert M. Rader (argued), Nils N. Nichols, Conner & Wetterhahn, P.C., Washington, D.C., for intervenor, Philadelphia Elec. Co.
Richard D. Spiegelman, Chief Deputy Gen. Counsel, Timothy D. Searchinger, Deputy Gen. Counsel, John R. McKinstry, Asst. Counsel, Dept. of Environmental Resources, Office of Gen. Counsel, Harrisburg, Pa., for amicus curiae, Com. of Pennsylvania.
Ellyn R. Weiss, Harmon & Weiss, Washington, D.C., for amicus curiae, Union of Concerned Scientists.
Before BECKER, HUTCHINSON and SCIRICA, Circuit Judges.
OPINION OF THE COURT
*722 TABLE OF CONTENTS
PAGE
I. Introduction 722
II The Statutory Framework 724
A. The Atomic Energy Act and the Licensing Process 724
B. The National Environmental Policy Act 725
III. Procedural History 728
IV. The Appeal of Limerick Ecology Action 728
A. Does a Finding of Adequate Protection Under the AEA Preclude 729
Consideration Under NEPA?
B. Severe Accident Mitigation Design Alternatives 731
1. The Commission's Decision 731
2. The Propriety of General Exclusion by Final Policy 733
Statement
a. The NRC's Pronouncement: Policy Statement or Rule? 733
b. The NRC's Failure to Give Careful Consideration to 736
SAMDAs
3. Is the Risk Remote and Speculative? 739
4. Summary 741
C. Sabotage Risk 741
1. The Commission's Decision 741
2. Discussion 742
a. Whether Worst Case Analysis Is Required 743
b. Whether the NRC's Determination that LEA's Sabotage 743
Contention Was Unsupported Is Arbitrary and
Capricious
D. Industrial or Economic Damages After One Year 745
V. The Appeal of the Graterford Inmates 747
A. The Regulatory Framework and Procedural History 748
1. The Regulatory Framework 748
2. Procedural History 748
B. Contentions Not Considered by the NRC 749
1. The Need for Union Approval of the Plan 750
2. Panic Potential 750
3. The Civilian Evacuation Training Claim 750
C. The Accuracy of Estimate of Time of Evacuation Claim 751
D. The Manpower Mobilization by Telephone Claim 752
VI. Conclusion 754
This opinion addresses several petitions for review of orders of the Nuclear Regulatory Commission ("NRC") granting a full power license to the Philadelphia Electric Co. ("PECO") for operation of Unit I of the Limerick Nuclear Power Generating Station ("Limerick") in Limerick, Pennsylvania. The Limerick plant is, along with the Indian Point plant near New York City, and the Zion plant near Chicago, one of three operating nuclear plants in the country located within 50 miles of a major metropolitan area. The Limerick plant is twenty-five miles from Philadelphia and approximately eight miles from the State Correctional Institution at Graterford ("Graterford"), the largest maximum security prison in Pennsylvania.
Two parties challenge the grant of a full power license. First, Limerick Ecology Action Inc. ("LEA"), a citizens' group formed in opposition to the plant, contends that, in granting the full power license, the NRC violated the National Environmental Policy Act of 1969, 42 U.S.C. Secs. 4321 to 4361 (1982) ("NEPA"), by failing adequately to consider: (1) severe accident mitigation design alternatives ("SAMDAs"); (2) the threat of reactor sabotage; and (3) the possible industrial and economic effects that might arise more than one year after a severe accident. The NRC has described severe accidents as "those in which substantial damage is done to the reactor core whether or not there are serious offsite consequences." Policy Statement on Severe Reactor Accidents Regarding Future Designs and Existing Plants, 50 Fed.Reg. 32,138, 32,138 (1985) ("Final Policy Statement"). Second, Thomas Martin, a Graterford inmate, challenges the adequacy of the Commonwealth of Pennsylvania's plans to protect or evacuate the inmates in the event of a nuclear accident.
We are confronted at the outset by the NRC's contention that by making decisions under the Atomic Energy Act, 42 U.S.C. Secs. 2011 to 2282 (1982) ("AEA"), it has precluded the need for consideration of environmental implications under NEPA. Because we conclude that consideration under NEPA should not be precluded by the AEA, we must address LEA's three specific contentions.
LEA's first contention requires us to address the question whether, by excluding consideration of the environmental impact of SAMDAs through the use of a policy statement instead of a rulemaking, the NRC violated the first of NEPA's twin aims: consideration of "every significant aspect" of the environmental consequences of government actions. The Supreme Court has stated that "[t]he role of the courts [under NEPA] is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious." Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983).
Although NEPA requires the Commission to undertake "careful consideration," Baltimore Gas, 462 U.S. at 98, 103 S.Ct. at 2253, of environmental consequences, under Baltimore Gas it may issue a rulemaking to address and evaluate environmental impacts that are "generic", i.e., not plant-specific. We find in this case that (1) the SAMDAs were addressed through a policy statement, not a rulemaking, and that the policy statement does not represent the requisite careful consideration of the environmental consequences; and (2) the Commission did not find that such risks are remote and speculative and failed to give the requisite careful consideration to SAMDAs. Because the level of consideration given was legally inadequate, we will grant LEA's petition for review as to its first contention and remand the case to the NRC for consideration of severe accident mitigation design alternatives.
LEA's second contention requires us to consider whether the NRC's refusal to consider specifically and separately the risk of sabotage in the Final Environmental Statement, NUREG-0974 (1984) ("FES") or in the licensing proceedings, on the ground that estimation of the risk is beyond the state of the art of risk assessment, violated NEPA. Because we conclude that LEA did not produce sufficient evidence to support its claim, and therefore that the NRC did not act arbitrarily or capriciously in denying specific and separate consideration of the risk of sabotage, we will deny LEA's petition on this issue.
LEA's third and final contention requires us to decide whether the NRC impermissibly excluded consideration in the FES of the amount of any industrial or economic damages arising more than one year after a nuclear accident. Again, we conclude that the NRC did not act arbitrarily or capriciously in refusing to consider such damages.
We then turn to the AEA based challenge of petitioner Thomas Martin, a Graterford inmate, to the prison evacuation plan. 1 Martin challenges the adequacy of the nuclear accident emergency response evacuation plan prepared by the Commonwealth's Bureau of Corrections, which provides for evacuation of maximum security inmates through two important steps: (1) telephone calls to off-duty guards to notify them of the need...
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