Nader v. Ray, Civ. A. No. 1058-73.

• Decision Date: 13 July 1973
• Docket Number: Civ. A. No. 1058-73.
• Citation: 363 F. Supp. 946
• Parties: Ralph NADER et al., Plaintiffs, v. Dixy Lee RAY et al., Defendants, Carolina Power & Light Company et al., Intervenors-Defendants, and General Electric Company, Intervenor-Defendant.
• Court: U.S. District Court — District of Columbia

363 F. Supp. 946

Ralph NADER et al., Plaintiffs, v. Dixy Lee RAY et al., Defendants, Carolina Power & Light Company et al., Intervenors-Defendants and General Electric Company, Intervenor-Defendant.

Civ. A. No. 1058-73.

United States District Court, District of Columbia.

July 13, 1973.

COPYRIGHT MATERIAL OMITTED

Myron M. Cherry, Chicago, Ill., for plaintiffs.

Arnold T. Aikens, Asst. U. S. Atty., Jerome Nelson, Sol., Guy H. Cunningham, III, Atty. Atomic Energy Commission, for defendants.

John Jay Adams, George F. Trowbridge, Washington, D. C., for intervenors Carolina Power & Light Co. and others.

Wm. R. Perlich, Washington, D. C., for intervenor General Elec. Co.

John B. Denniston, Washington, D. C., for Nat. Elec. Reliability Council, amicus curiae.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JOHN H. PRATT, District Judge.

Findings of Fact

A. Background and Plaintiffs' Complaint

1. On May 31, 1973 plaintiffs filed a verified complaint alleging that the defendant United States Atomic Energy Commission ("AEC" or "Commission") was in violation of § 186(a) of the Atomic Energy Act of 1954 (42 U.S.C. § 2236(a)) and also in violation of its own regulations (10 C.F.R. § 50.100). The complaint asserts that under the facts alleged therein, the AEC is under a non-discretionary legal duty to revoke the operating licenses of 20 named nuclear power reactors. Complaint ¶¶ 13, 14, 36 On June 15, 1973 plaintiffs filed a motion for a preliminary injunction restraining the AEC from permitting the continued operation of the 20 named plants.

2. The issue raised by plaintiffs concerns the "emergency core cooling system" ("ECCS") of each of the named reactors. The ECCS is an engineered safety system whose function is to prevent the "core" of the reactor¹ from attaining excessively high temperatures and experiencing excessive loss of integrity in the event of a particular kind of hypothesized reactor accident, called a "loss-of-coolant accident."²

3. Commission regulations require every light-water-cooled nuclear power reactor to contain an ECCS which must "provide abundant emergency cooling." 10 C.F.R. Part 50, Appendix A, Criterion 35. Each of the 20 reactors named in the complaint is a light-water-cooled nuclear power reactor, and each has an ECCS.

4. In order for the ECCS of such a reactor to be found acceptable by the Commission, it must be shown by complex computer calculations that the ECCS complies with certain criteria imposed by the Commission and embodied in Commission regulations. Those criteria, which are generally referred to as the "Interim Acceptance Criteria" ("IAC") were contained in an Interim Policy Statement published by the Commission on June 29, 1971. 36 Fed.Reg. 12,247-48 (June 29, 1971). The calculational methods by which compliance with the IAC must be shown are specifically prescribed in detail by the Commission, in the form of complex mathematical "evaluation models." 36 Fed.Reg. 12,249-50 (June 29, 1971); 36 Fed.Reg. 24,082-83 (Dec. 18, 1971).

5. Plaintiffs' complaint alleges (a) that the AEC's scientific advisors in ECCS matters are in "virtually unanimous" agreement that compliance by a reactor's ECCS with the IAC is not sufficient to ensure the effectiveness of the ECCS; (b) that the Commission nevertheless has licensed and continued to permit the operation of the nuclear plants named in the complaint on the basis of compliance with the IAC; (c) that the continued operation of these nuclear plans represents agency action beyond the Commission's statutory authority; and (d) that consequently the Commission is under a non-discretionary legal duty to revoke the licenses of those plants. Complaint, ¶¶ 30, 32-36.

B. Motions to Intervene

6. Nineteen electric utility companies filed timely motions to intervene as defendants as of right under Fed.R.Civ.P. 24(a), with supporting affidavits. The 19 utilities own the 20 nuclear power plants named in the complaint, and operate those plants under facility operating licenses granted by the AEC. If plaintiffs prevail, these operating licenses would be suspended or revoked and the 20 plants would be shut down. 42 U.S. C. § 2131.

7. The General Electric Company ("GE") filed a timely motion to intervene as a defendant as of right under Fed.R.Civ.P. 24(a), with supporting affidavits. The affidavits, which are uncontroverted, show that GE is a designer and manufacturer of "boiling water" nuclear power reactors, which have been sold and are being sold to electric utility companies. Some of the 20 reactors named in the complaint were designed and manufactured by GE. If the IAC were to be declared invalid by this Court, or if this Court were to find that compliance with the IAC is not, as a matter of law, a sufficient finding to permit the granting of an operating license, the licensability of GE reactors designed to comply with the IAC could be open to question, and GE's ability to compete with other nuclear reactor manufacturers and with vendors of fossil-fueled generating plants could be impaired. If the Court sets aside the present IAC, GE might be subjected to contractual claims for any necessary modifications to reactors it has sold or contracted to sell and for which AEC operating licenses have not yet been issued. Changes in the IAC might also delay contractual payments to GE by delaying the time in which GE could meet its contractual obligations. In addition, GE is a participant in the AEC's ECCS Rule-making proceeding (discussed below). Affidavit of Robert Lowenstein, passim.

C. Adoption of the Interim Acceptance Criteria

8. In the June 29, 1971 Federal Register notice promulgating the IAC and three approved ECCS evaluation models, the Commission invited comments and suggestions from interested members of the public for a 60-day comment period. The notice stated that

"the Commission will consider all such comments and suggestions with the view to possible amendments and will issue a report." 36 Fed.Reg. 12,250.

Plaintiffs did not submit any comments or suggestions to the Commission.

9. In the December 18, 1971 Federal Register notice prescribing two additional evaluation models, the Commission invited comments and suggestions from interested members of the public for a 30-day period. 36 Fed.Reg. 24,083. Plaintiffs did not submit any comments or suggestions to the Commission.

10. The record before the Court contains no evidence that plaintiffs moved the Commission for reconsideration of, or otherwise challenged, the adoption of the IAC or the evaluation models.

11. The record before the Court contains no evidence that plaintiffs sought judicial review of the Commission's promulgation of the IAC or the evaluation models under 28 U.S.C. § 2342 or otherwise.

D. The ECCS Rulemaking

12. On November 30, 1971 the AEC published in the Federal Register notice of a public rulemaking hearing styled "In the Matter of Acceptance Criteria for Emergency Core Cooling Systems for Light-Water-Cooled Nuclear Power Reactors" ("the ECCS Rulemaking"), which is AEC Docket No. RM-50-1. 36 Fed.Reg. 22,774. The notice set forth the procedure by which persons could request to become participants in the rulemaking. The notice also provided that any person wishing to make an oral or written statement in the rulemaking, but not wishing to become a full participant, could request to make a limited appearance. The notice stated that the ECCS Rulemaking was held "for the purpose of aiding the Commission in its determination as to whether or not the subject Interim Acceptance Criteria should be retained in their present form or adopted in some other form." Id.

13. On January 8, 1972 the AEC published in the Federal Register a Supplemental Notice of Hearing for the ECCS Rulemaking in AEC Docket No. RM-50-1, setting forth the detailed procedural rules to be followed in the ECCS Rulemaking, including extensive adversary rights. 37 Fed.Reg. 288-89.

14. The ECCS Rulemaking is presided over by a three-man Hearing Board. The "technological" or "safety" phase of the ECCS Rulemaking hearing commenced on January 27, 1972. The hearings in that phase of the ECCS Rulemaking ran substantially without interruption (except for recesses provided for the purpose of preparing testimony) through December 11, 1972, and the transcripts of that phase comprise 122 volumes totaling over 22,000 pages. Over 260 exhibits totaling thousands of pages were received in evidence during that phase of the ECCS Rulemaking. Affidavit of Michael L. Burack (Burack Affidavit, ¶¶ 14(a)-(b); Affidavit of Donald P. Irwin (Irwin Affidavit), ¶¶ 13-15.

15. There are eleven full participants in the ECCS Rulemaking. They are (a) the Consolidated National Intervenors (CNI), which is a group of over 50 constituent individuals and environmental organizations from all parts of the nation, (b) the Lloyd Harbor Study Group, an environmental organization from Long Island, (c) GE, (d) three other manufacturers of nuclear power reactors, (e) a consolidated group of electrical utilities,³ (f) the States of Minnesota, Vermont, and Maine, and (g) the AEC Regulatory Staff. Burack Affidavit, ¶ 9; Irwin Affidavit, ¶ 7.

16. Neither plaintiff Nader nor plaintiffs Friends of the Earth is, and neither requested at any time to be admitted as, a participant in the ECCS Rulemaking. Burack Affidavit, ¶ 10(a); Irwin Affidavit, ¶ 10.

17. Neither plaintiff Nader nor plaintiff Friends of the Earth made, and neither requested an opportunity to make, a limited appearance in the ECCS Rulemaking for the purpose of making an oral or written statement, as provided for in the November 30, 1971 Federal Register notice of proposed rulemaking hearing. Burack Affidavit, ¶ 10(b); Irwin Affidavit, ¶ 10.

18. On December 30, 1971 CNI filed its request to become a full participant in the ECCS Rulemaking hearing. The CNI request enumerated the more than 50 organizations and individuals who were constituent members of CNI.⁴ As late as June 7, 1972 the ...