San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Com'n
| Decision Date | 25 April 1986 |
| Docket Number | 84-1042,84-1410 and 81-2034,83-1073,Nos. 81-2035,s. 81-2035 |
| Citation | 789 F.2d 26 |
| Parties | , 16 Envtl. L. Rep. 21,006 SAN LUIS OBISPO MOTHERS FOR PEACE, et al., Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Pacific Gas and Electric Company, Intervenor. (Three Cases). SAN LUIS OBISPO MOTHERS FOR PEACE; Scenic Shoreline Preservation Conference, Inc.; Ecology Action Club; Sandra Silver; Gordon Silver; Elizabeth Apfelberg; and John J. Forster, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Pacific Gas and Electric Company, Intervenor. George DEUKMEJIAN, Governor of the State of California, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Pacific Gas and Electric Company, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Joel R. Reynolds for petitioners, San Luis Obispo Mothers for Peace, et al. in Nos. 84-1410, 81-2034, 81-2035, 83-1073 and 84-1042.
David S. Fleschaker entered an appearance for petitioners in Nos. 81-2035, 83-1073 and 84-1042.
Herbert H. Brown, Charles Lee Eisen and Lawrence Coe Lanpher entered appearances for petitioner in No. 81-2034.
William H. Briggs, Jr., Sol., Nuclear Regulatory Com'n, with whom Herzel H.E. Plaine, Gen. Counsel, E. Leo Slaggie, Deputy Sol., Nuclear Regulatory Com'n, Peter R. Steenland, Jr., Jacques B. Gelin, Attys., Dept. of Justice, Richard L. Black, Sheldon L. Trubatch, E. Neil Jensen, Carole F. Kagen, A. Laurence Ralph, and Lawrence J. Chandler, Attys., Nuclear Regulatory Commission were on the brief for respondents in Nos. 84-1410, 81-2034, 81-2035, 83-1073 and 84-1042.
Mark E. Chopko and Richard A. Parrish, Attys., Nuclear Regulatory Commission entered appearances for respondents in Nos. 81-2034, 81-2035 and 83-1073.
William T. Coleman, Jr., with whom Aaron S. Bayer, Malcolm H. Furbush, Douglas A. Oglesby, Joseph B. Knotts, Jr., Scott M. DuBoff and Daniel F. Stenger were on the brief for intervenor, Pacific Gas and Elec. Co. in Nos 84-1410, 81-2034, 81-2035, 83-1073 and 84-1042.
F. Ronald Laupheimer entered an appearance for intervenor in Nos. 81-2034 and 81-2035.
J. Michael McGarry, III entered an appearance for intervenor in Nos. 81-2034 and 83-1073.
Barton Z. Cowan entered an appearance for amicus curiae, Atomic Industrial Forum, Inc., in No. 84-1410.
Peter B. Kelsey, Edward H. Comer and William L. Fank entered appearances for amicus curiae, Edison Elect. Institute, in No. 84-1410.
Before ROBINSON, Chief Judge, and WRIGHT, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge BORK.
Concurring opinion filed by Circuit Judge MIKVA, concurring in Parts I and II of Circuit Judge BORK's opinion and in the result reached by Part III.
This case presents two questions. The first is whether the Nuclear Regulatory Commission ("NRC" or "Commission"), before issuing a license for the operation of the Diablo Canyon Nuclear Power Plant, is required to hold a hearing concerning the potential complicating effects of an earthquake on responses to a simultaneous but independently caused radiological accident at the plant. The risk of that happening is calculated as being one in several tens of millions. The second question is whether this court should examine transcripts, not a part of the record, of a closed meeting of the Commission.
In San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C.Cir.1984), a panel of this court affirmed a decision by the NRC to allow issuance of low power and full power licenses for the Diablo Canyon plant. In so doing, the panel majority considered and rejected petitioners' claim that the Commission improperly excluded from licensing hearings specific consideration of the potential complicating effects of an earthquake on planned emergency responses at the Diablo Canyon facility. The same majority refused to examine the proffered transcripts. See id. at 1323-29. Subsequently, the full court vacated a portion of the original opinion and judgment and granted rehearing en banc to consider the questions more fully. See 760 F.2d 1320. We now affirm the Commission's decision.
Licensing proceedings for nuclear power plants are typically long and complex and the Diablo Canyon proceedings were no exception. In this section, we set forth only a skeletal history of those proceedings, taken largely from the panel opinion. See 751 F.2d at 1296-97. Additional facts relevant to the specific issues we consider are set forth throughout the opinion.
The petitioners in this case consist of a number of individuals who, and groups whose members, live and work near the Diablo Canyon plant. They have been active in the Commission's proceedings related to the licensing of the plant.
The Atomic Energy Commission ("AEC"), the predecessor to the NRC, issued construction permits to the Pacific Gas and Electric Company ("PG & E") for Units 1 and 2 of the pressurized water reactor plant at Diablo Canyon in 1968 and 1970. See Docket No. 50-323, 4 A.E.C. 447, 460 (1970), aff'd, ALAB-27, 4 A.E.C. 652, 664 (1971) (Unit 2); Docket No. 50-275, 4 A.E.C. 89, 98-99 (1968) (Unit 1). Construction began shortly thereafter, based on the assumption that the nearest significant earthquake fault was eighteen to twenty miles away. See ALAB-519, 9 N.R.C. 42, 45 (1979). Four years later, offshore exploration for petroleum revealed the presence of the Hosgri Fault within three miles of the Diablo Canyon site. See id. Petitioners, who had intervened in the administrative proceedings, requested that construction at the facility be stopped until the implications of the discovery could be assessed, but the AEC permitted construction at the plant to continue. See 4 A.E.C. 914 (1972). Following an extensive reexamination, the Commission's Appeal Board approved the plant's seismic design on June 16, 1981. ALAB-644, 13 N.R.C. 903 (1981).
On September 21, 1981, the Commission rejected claims that the emergency planning program at Diablo Canyon was deficient and issued a license to PG & E to load fuel and conduct low power testing at Unit 1. See CLI-81-22, 14 N.R.C. 598 (1981). Investigation by PG & E and the Commission's staff, however, soon uncovered various design errors, see CLI-81-30, 14 N.R.C. 950, 951 (1981), and on November 19, 1981, the Commission suspended PG & E fuel loading and low power test license. Id. at 950. To ensure that the plant would be adequately protected against seismic disturbances, the Commission ordered PG & E, as a condition of reinstatement of the license, to institute an independent design verification program. See id. at 951, 955-58. In addition, several requirements concerning seismic and other design verifica tion issues were imposed on PG & E as conditions of its eligibility for a full power license. See CLI-84-13, 20 N.R.C. 267 (1984).
Professionals expended more than 2,000,000 hours on the reanalysis and modification of the plant's design, which were completed in October 1983. CLI-84-5, 19 N.R.C. 953, 971 (1984) (views of Commissioner Bernthal). The NRC staff undertook an independent review of the results of the Independent Design Verification Program after which the Commission progressively reinstated elements of the suspended low power license in late 1983 and early 1984. See CLI-84-5, 19 N.R.C. 953 (1984); CLI-84-2, 19 N.R.C. 3 (1984); CLI-83-27, 18 N.R.C. 1146 (1983). Reinstatement of the license was consistent with the Appeal Board's findings that "[t]he applicant's verification efforts provide adequate confidence that the Unit 1 safety-related structures, systems and components are designed to perform satisfactorily in service and that any significant design deficiencies in that facility resulting from the defects in the applicant's design quality assurance program have been remedied." ALAB-763, 19 N.R.C. 571, 619 (1984).
On August 10, 1984, the NRC approved issuance of a full power license for the Diablo Canyon plant. CLI-84-13, 20 N.R.C. 267 (1984). Petitioners appealed both the low power and full power orders to this court and, before the license had issued, the court granted petitioners' motion for a stay. On October 31, 1984, after oral argument, the court lifted the stay, thereby permitting issuance of the full power license and the commencement of operations at Diablo Canyon. On December 31, 1984, the court affirmed the Commission's decision to permit issuance of the low power and full power licenses. See San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C.Cir.1984). The court found that the Commission made two legal errors (not related to the issues considered in this en banc proceeding), but that neither warranted judicial relief since one was harmless and the other had already been remedied by the Commission. See id. at 1311-12.
Specifically with regard to emergency planning, the panel majority held that the Commission did not err by excluding consideration of the effects of earthquakes on emergency responses at Diablo Canyon. In addition, the majority denied petitioners' motion to supplement the administrative record with the transcripts of a closed meeting of the NRC. See 751 F.2d at 1323-29. Judge Wald, dissenting in part, thought that the Commission's exclusion of consideration of earthquakes was arbitrary and capricious and that the court should make an in camera inspection of the transcripts in deciding whether to grant petitioners' motion to supplement the record. 751 F.2d at 1329-35.
Petitioners argue that the Commission's decision to exclude from the Diablo Canyon licensing proceedings consideration of the potential complicating...
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