Union of Concerned Scientists v. U.S. Nuclear Regulatory Com'n
| Decision Date | 02 July 1984 |
| Docket Number | No. 82-2053,82-2053 |
| Citation | 735 F.2d 1437 |
| Parties | , 14 Envtl. L. Rep. 20,639 UNION OF CONCERNED SCIENTISTS, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, Attorney General of Massachusetts, Arkansas Power & Light Co., et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William S. Jordan, III, Washington, D.C., with whom Diane Curran and Ellyn R. Weiss, Washington, D.C., were on the brief, for petitioner.
Dan M. Berkovitz, Atty., Nuclear Regulatory Com'n, Washington, D.C., with whom Herzel H.E. Plaine, Gen. Counsel, E. Leo Slaggie, Acting Sol., Mark E. Chopko, Atty., Nuclear Regulatory Com'n, Anne S. Almy and Blake Watson, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents. Michael B. Blume, Atty., Nuclear Regulatory Com'n, and Peter R. Steenland, Atty., Dept. of Justice, Washington, D.C., also entered appearances for respondents.
Robert E. Zahler, Washington, D.C., with whom Hannah E.M. Lieberman, Washington, D.C., was on the brief for intervenor, Arkansas Power & Light Co., et al.
Jo Ann Shotwell, Boston, Mass., was on the brief for intervenor, Atty. Gen. of Mass., Francis X. Bellotti and Stephen M. Leonard, Asst. Atty. Gen., Boston, Mass., also entered appearances for intervenor, Attorney General of Massachusetts.
Before WALD and GINSBURG, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WALD.
The Union of Concerned Scientists (UCS) petitions for review of a rule promulgated by the Nuclear Regulatory Commission (NRC or Commission) providing that an atomic safety and licensing board (licensing board) need not consider the results of emergency preparedness exercises in a licensing hearing before authorizing a full power license to operate a nuclear power plant. The rule provides, in lieu thereof, that final NRC issuance of the license must be preceded by satisfactory completion of an emergency preparedness exercise, and a conclusion by the NRC, based on this exercise, that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. UCS contends that this rule denies its statutory right to a hearing on a material issue in licensing proceedings, under Section 189(a)(1) of the Atomic Energy Act (AEA or Act), 42 U.S.C. Sec. 2239(a)(1) (1976). Additionally, UCS also contends that the Commission acted arbitrarily and capriciously in promulgating the rule, in violation of the Administrative Procedure Act (APA), 5 U.S.C. Sec. 706(2)(A) (1982).
We find that because the rule denies a right to a hearing on a material factor relied upon by the Commission in making its licensing decisions, the rule was issued in excess of the Commission's authority under section 189(a), and must be vacated.
In authorizing the NRC to issue licenses for nuclear power plant operation, the AEA delegates to the Commission broad discretion to decide what information it requires in making the licensing decision. 1 The Act provides that "the applicant shall state such technical specifications ... as the Commission may, by rule or regulation, deem necessary in order to enable it to find that the [applicant's activity] ... will provide adequate protection to the health and safety of the public." 42 U.S.C. Sec. 2232 (1976).
The Act itself establishes a two step licensing procedure. An applicant for a nuclear power plant operating license must first obtain a construction permit. Section 189(a) of the Act mandates a public hearing before a construction permit can be issued. 2 If a hearing is requested, the Commission, under its regulations, designates a licensing board to conduct the proceeding. The licensing board, however, determines only whether the issuance of a license is authorized; the Commission actually issues the license at a later date. 10 C.F.R. Secs. 2.760, 2.760a (1983). To authorize a license, the board must find that "there is reasonable assurance that the activities to be authorized by the operating license can be conducted without endangering the health and safety of the public ...." 10 C.F.R. Sec. 2.104 (1983). The scope of the board's hearing is determined by the specific issues material to that determination that are raised by the requesting party.
After a permit is issued, the prospective operator must apply for a license. The Act requires a hearing before the license is issued only if requested by an interested party.
If the licensing board authorizes a license, prior to its issuance the NRC staff conducts preoperational testing to ensure that the operation of the completed plant comports with the expectations underlying the authorization. If in the course of this final review significant safety hazards are discovered, then additional hearings may be held at the Commission's discretion. See generally Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), 14 NRC 950 (1981).
After the 1979 accident at Three Mile Island (TMI) the Commission, for the first time, required offsite emergency plans as a condition of a nuclear reactor operating license. Up to that time, state and local governments prepared such emergency plans on a voluntary basis, if at all. Following the TMI incident, the President's Commission on the Accident at Three Mile Island found that "the [emergency offsite] response was dominated by an atmosphere of almost total confusion." Report of the President's Commission on the Accident at Three Mile Island--The Need for Change: The Legacy of TMI 17 (1979). The President's Commission recommended that in the future before a utility was granted an operating license, offsite emergency response plans should be developed by state authorities, evaluated by the Federal Emergency Management Agency (FEMA), and the means for implementing them put in place.
The TMI episode also produced a shift in the NRC's attitude about offsite emergency planning. After the accident, the Commission announced that it now "view[ed] emergency planning as equivalent to ... siting and design in public protection." 44 Fed.Reg. 75169 (1979) (). In 1980, after rulemaking proceedings, the Commission published its first final rule addressing offsite emergency preparedness. This rule provides:
No operating license for a nuclear power reactor will be issued unless a finding is made by NRC that the state of onsite and offsite emergency preparedness provides 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) (1983). Pursuant to the rule, FEMA is to make findings and determinations on whether offsite "emergency plans are adequate and whether there is reasonable assurance that they can be implemented." 10 C.F.R. 50.47(a)(2) (1983). The Commission in turn will base its findings on the state of emergency preparedness on FEMA's findings, which constitute a rebuttable presumption as to the adequacy and implementation capability of the emergency plans. Id.
a full scale exercise which tests as much of the licensee, State and local [onsite and offsite] emergency plans as is reasonably achievable without mandatory public participation shall be conducted ... within one year before issuance of the first [full power] operating license.
10 C.F.R. Part 50, Appendix E, Section F1 (1983) (emphasis supplied). As originally promulgated, the rule said nothing specific either way about including the results of these compulsory exercises within the scope of the licensing authorization hearing. 4
On July 13, 1982, the NRC issued an amendment to its rule on emergency preparedness, eliminating the emergency exercise as a prerequisite to authorization of a license. 10 C.F.R. Sec. 50.47(a)(2) (1983) []. The Amendment added to the language of the original rule the following provision:
Emergency preparedness exercises ... are part of the operational inspection process and are not required for any initial licensing decision.
10 C.F.R. Sec. 50.47(a)(2) (1983). Despite this language, however, it left intact Appendix E's requirement for emergency preparedness plans that full scale exercises be held within one year before full power operation and the original rule's requirement that identified deficiencies be corrected. And, in response to comments by interested parties, the Commission reiterated that "exercise[s] will [still] be held before full power [operation], and all significant deficiencies will be properly addressed." 47 Fed.Reg. 30233 (1982). The Commission's rationale for the Amendment was that it would allow exercises to be held at a time closer to full power operation of a plant, thereby making them more meaningful. See 47 Fed.Reg.
30233 (1982); 48 Fed.Reg. 16693 (1983). It in no way contended in its explanation for the rule, nor does it do so on this appeal, that the exercises are no longer material to its licensing decision. It argues instead that, under the Amendment, "these exercises are treated as part of preoperational testing of nuclear...To continue reading
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