New England Coalition on Nuclear Pollution v. U.S. Nuclear Regulatory Com'n

• Decision Date: 22 August 1978
• Docket Number: 77-1342 and 78-1013,77-1306,Nos. 77-1219,s. 77-1219
• Citation: 582 F.2d 87
• Parties: , 8 Envtl. L. Rep. 20,707 NEW ENGLAND COALITION ON NUCLEAR POLLUTION, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION et al., Respondents, Public Service Company of New Hampshire et al., Intervenors.
• Court: U.S. Court of Appeals — First Circuit

Page 87

582 F.2d 87

51 A.L.R.Fed. 451, 8 Envtl. L. Rep. 20,707

NEW ENGLAND COALITION ON NUCLEAR POLLUTION, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION et al., Respondents, Public Service Company of New Hampshire et al., Intervenors.

Nos. 77-1219, 77-1306, 77-1342 and 78-1013.

United States Court of Appeals, First Circuit.

Argued May 3, 1978.

Decided Aug. 22, 1978.

Karin P. Sheldon, Washington, D. C., with whom Sheldon, Harmon & Roisman, Washington, D. C., was on brief, for petitioner.

Stephen S. Ostrach, Atty., U. S. Nuclear Regulatory Commission, Washington, D. C., with whom Peter R. Steenland, Jr., Chief, App. Section, Land and Natural Resources Div., U. S. Dept. of Justice, James L. Kelley, Acting Gen. Counsel, Stephen F. Eilperin Thomas G. Dignan, Jr., Boston, Mass., with whom R. K. Gad, III, Ropes & Gray, and John A. Ritsher, Boston, Mass., were on brief, for intervenors Public Service Company of New Hampshire and New England Power Company.

Sol., and Peter G. Crane, Atty., U. S. Nuclear Regulatory Commission, Washington, D. C., were on brief, for respondents.

Harrison A. Fitch and Peter D. Kinder, New England Legal Foundation, Boston, Mass, Albert Ferri, Jr., and Lawrence P. Jones, Washington, D. C., on brief, for intervenor, New Hampshire Voice of Energy.

Robert A. Backus, Manchester, N. H., with whom O'Neill, Backus & Spielman, Manchester, N. H., was on brief, for intervenor-appellants, Seacoast Anti-Pollution League and Audubon Society of New Hampshire.

Ellyn R. Weiss, Sp. Asst. Atty. Gen., Environmental Protection Div., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for intervenor, Commonwealth of Massachusetts.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

This latest episode in our continuing review of agency decisions concerning the proposed nuclear power plant at Seabrook, New Hampshire, is before us on four petitions for review of decisions of the Nuclear Regulatory Commission (NRC or Commission). Each petition has been brought by the New England Coalition on Nuclear Pollution (NECNP). We have granted motions to intervene made by the Commonwealth of Massachusetts and the Seacoast Anti-Pollution League and Audubon Society of New Hampshire (SAPL). NECNP and Massachusetts briefed the same issues (and both are included in "petitioner" as used herein), and SAPL briefed a separate set. The petitions name the NRC as respondent. Public Service Company of New Hampshire (PSCO) and New Hampshire Voice of Energy intervened, by permission of the court, on respondent's side.

PSCO, as lead applicant for a consortium of several New England utilities, applied in March, 1973, for a permit to build a two unit nuclear generating station at Seabrook, New Hampshire. Evidentiary hearings were held in 1975 and 1976 before the NRC's Atomic Safety and Licensing Board (Licensing Board). The Licensing Board issued its initial decision granting construction permits by a divided vote in June, 1976. Public Service Co. of New Hampshire, 3 N.R.C. 857 (A.S.L.B. 1976). In 1977, after the permits had been suspended for a period, 5 N.R.C. 39 (A.L.A.B. 1977), due to decisions made by the Environmental Protection Agency (EPA), ¹ the Atomic Safety and Licensing Appeal Board (Appeal Board) affirmed the issuance of the permits. 6 N.R.C. 33 (1977). The full Commission affirmed the Appeal Board in January of 1978. 7 N.R.C. --- (1978). Other aspects of the case's procedural history will be developed as the issues concerning them arise.

Petitioners assert that the NRC failed to carry out its responsibilities as to a variety of issues under the Atomic Energy Act, 42 U.S.C. §§ 2011 Et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 Et seq., and the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 Et seq. We will discuss each issue and its factual background separately, organized according to the Act under which it arises.

THE ATOMIC ENERGY ACT

1. The NRC Siting Regulations

Under the Atomic Energy Act "no license may be issued . . . if, in the opinion of the Commission, the issuance of a license . . . would be inimical to the common defense and security or to the health and safety of the public." 42 U.S.C. § 2133(d). The Act authorizes the Commission to "prescribe such regulations or orders as it may deem necessary . . . to govern any activity authorized pursuant to this Act, 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." 42 U.S.C. § 2201(i)(3).

The regulations adopted, codified at 10 C.F.R. part 100 (Reactor Site Criteria), attempt to accomplish the statutory mandate, Inter alia, ² through criteria designed to assure a safe separation between the reactor and surrounding population even in the event of a hypothetical "major accident . . . that would result in potential hazards not exceeded by those from any accident considered credible." 10 C.F.R. § 100.11(a) n.1. Immediately around the reactor the applicant must control an "exclusion area" "in which the reactor licensee has the authority to determine all activities including exclusion or removal of personnel and property. . . ." 10 C.F.R. § 100.3(a). This area must be large enough so that someone at the perimeter of the area for the first two hours of an accident would not receive more than the "once in a lifetime . . . dose for radiation workers which . . . may be disregarded in the determination of their radiation exposure status." 10 C.F.R. § 100.11(a) (1) & n.2.

Immediately surrounding the circular exclusion area there must be a concentric band, labelled a "low population zone", with a sufficiently small number of residents so "that there is a reasonable probability that appropriate protective measures could be taken in their behalf in the event of a serious accident." 10 C.F.R. § 100.3(b). This band must be wide enough so that an individual at its perimeter during the entire period of the accident (assumed to be roughly 30 days) would not receive more than the once in a lifetime radiation dosage. 10 C.F.R. § 100.11(a)(2). Finally, the regulations require that the "Population Center Distance", "the distance from the reactor to the nearest boundary of a densely populated center containing more than about 25,000 residents", 10 C.F.R. § 100.3(c), be "at least one and one-third times the distance from the reactor to the outer boundary of the low population zone." 10 C.F.R. § 100.11(a)(3).

The dispute in this case turns on the proper determination of the population center distance. The Licensing Board found that Portsmouth, New Hampshire, 12 miles away, was the nearest "densely populated center containing more than about 25,000 residents". Since the low population zone radius was 1.5 miles, the Board found that the plant complied with the regulations. NECNP argued to the Appeal Board that the nearby towns of Seabrook, Hampton Falls, and Hampton ³ and the Hampton/Seabrook beach with its large summer population should be considered as one single population center.

The Appeal Board rejected this argument as to the towns because it decided that the purpose of the population center distance was "to insure that the cumulative exposure dose to the population as a whole is kept within bounds in the event of a postulated major accident." Given this interpretation, drawn from language in 10 C.F.R. § 100.11(a)(3) and from the requirement of a "center" and a straight line distance rather than the circular areas focused on for the exclusion area and low population zone, the Appeal Board determined that the semi-circle of towns ⁴ was so spread out that the large population mentioned in the regulations would not be threatened to the required extent. This is so because the regulations, concerned about hazards produced by the worst credible accident, assume that the radiation released in an accident would, because of constant wind direction, all be blown over the densely populated center, whereas the whole population described above would be threatened only if the wind were to shift. In that event any particular location would be exposed to less than the contemplated radiation dose. ⁵ Therefore, any damage to the genetic pool would still be within the bounds suggested by 10 C.F.R. § 100.11(a)(3).

The Appeal Board reached a different conclusion with respect to the beach population. On particular days during the summer the beach is the most densely populated place in New Hampshire, with up to 37,000 people on a projected peak day in 1980. The Appeal Board was troubled because these people were not technically "residents" of the beach, but recognizing the mandate to apply the regulations flexibly, See 10 C.F.R. § 100.2(b), it held that the beach was the nearest population center. The nearest point of the beach was 1.67 miles from the reactor; therefore, the low population zone radius could be no more than 1.25 miles. It is undisputed that the plant meets this reduced low population zone requirement. ⁶ Therefore, the Appeal Board upheld the determination that the plant met the siting safety criteria. 6 N.R.C. at 42-54. The NRC declined to review this decision.

We affirm. The Supreme Court has held that the Commission's interpretation of its regulations is controlling so long as it is reasonable and consistently applied. Northern Indiana Public Service Co. v. Porter County Chapter of the Izaak Walton League of America, Inc., 423 U.S. 12, 15, 96 S.Ct. 172, 46 L.Ed.2d 156 (1975). We find that the Appeal Board acted reasonably in deciding that the three towns should not be considered as a single population center, and petitioners have not alleged that the decision is inconsistent with other decisions of the NRC. The NRC, not this court, is entrusted with the task of making sure that nuclear power is safe. Our job...