ML19329G064
| ML19329G064 | |
| Person / Time | |
|---|---|
| Issue date: | 04/29/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| TASK-IR, TASK-SE SECY-80-220, NUDOCS 8007110532 | |
| Download: ML19329G064 (19) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20665 WH 29, M80 INFORMATION REPORT SECY-80-220 For:
The Commission From:
Leonard Bickwit, Jr., General Counsel
Subject:
ANALYSIS OF BASIC LEGAL ISSUES IN EMERGENCY PLANNING RULEMAKING Discussion:
In preparation for final rulemaking on emer-gency planning, cud in response to several comments, OGC has reviewed the NRC's legal authority to undertake this rulemaking which proposes to condition reactor operation on a finding that State and local governments have adeonate emergency plans.
We conclude that NRC i. i sufficient authority to promulgate these rules, which are premised on the Com-mission's judgment about the significance of adequate emergency plans as an essential ingredient to protect the public health and safety.
As such, these rules would not be arbitrary, capricio.us, unreasonable, or con-trary to any law.
They can be legally applied, not only to original license appli-cations, but also to existing licenses.
Our detailed analysis follows.
ELD concurs in the conclusions reached in this paper.
Licenses and External Conditions Generally W1.en the Nuclear Regulatory Commission grants a.'icense to an applicant, it authorizes that applicant to carry on some particular activity which could not be engaged in without a license.
"The word ' license' means per-mission, or authority... to do what is within the terms of the license."
Gibbons v.
Oaden, 22 U.S.
1, 213 (1824).
The terms of a license, however, express more than a posi-tive grant of power.
It is well settled that "the right to engage in" regulated activities is "not unqualified.
It" can "only be done Contactz:
Mark E. Chopko, GC Michael A.
Irene, Jr., GC X-43224 kY 800133g
2 when authorized by the Government, in the mode prescribed.
No one" is compelled "to procure that authorization, but whosoever" elects "to do so" takes "it necessarily cun.
onere, and hence has no right to complain L*f any condition imposed.... "
Finch v. United States, 102 U.S.
269, 272 (1880).
There is no dispute over the ability of an agency to predicate the granting of a license upon a set of conditions.
Indeed, the " power to approve (a grant of authority] implies the power to disapprove, and'the power to dis-approva necessarily includes the lesser power to condition on approval."
Southern Pacific Co. v. Olympian Dredging Co., 260 U.S.
- 205, 208 (1922).
The proposed NRC rule hero at i
issue, however, raises the question of the extent to which an agency may consider external conditions when deciding whether to grant a license.
External conditions rest upon circumstances that lie beyond the control of the applicant.
To our knowledge, no federal statute expressly mentions that consideration of external conditions is a proper concern in licensing actions.
Instead, federal legislation directs licensing agencies to act in furtherance of broad notions of the public interest or public safety.
The Supreme Court has recog-nized that NRC licenses "can be issued only consistently with the health and safety of the public."
Power Reactor Development Co.
- v. International Union of Electrical Radio l
Machine Workers, 367 U.S.
39,, 404 (1961).*/
Acting pursuant to such a broad mandate, at l
least one other agency takes into account external conditions concerning emergency i
plans when discharging its licensing duty.
The Federal Aviation Administration is "em-powered to issue airport operating certifi-cates... and to establish minimum safety j
1I For its part, the NRC conditions its licenses on, among other things, a showing that an applicant has the requisite fie.ancial qualifications.
Those qualifica-tions rest to a great extent on a State's utility rate l
structure and bond approval system, matters external to the
' licensee or applicant.
See generally Public Service Co.. of New Hampanire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 8-23, aff'd sub nom. New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978).
Through its rato system, a State may, in effect, veto in-f l
nuclear power plant.
3 standards for the operation of such air-ports."
49 U.S.C. 1432(a).
"Each airport operating certificate shall prescribe such terms, conditions and limitations as are l
reasonably necessary to assure safety in air transportation."
49 U.S.C. 1432(b).
Pur-suant to this authority, the FAA has adopted a regulation requiring applicants for an airport operating certificate to demonstrate that they 'iave "an emergency plan that insuras prompt response to all emergencies and other unusual conditions in order to minimize the possibility and extent of personal and property 4amage on the airport."
14 CFR 139.55 (1979).1/
The requirements set forth in section 139.55 indicate that the FAA could refuse to grant an airport operating certificate to an appli-cant whose airport would be located in an area lacking the necessary medical facilities to handle flight-related accidents, or in an area where local emergency response authori-ties did not, for whatever reason, partici-pate in the development of the emergency plan.
The FAA regulation, like the proposed NRC rule, demonstrates the necessity of 1/
This regulation provides in pertinent part:
- The applicant must list in its plan the following:
-~
(i)
The name, location, and emergency capability of each hospital and other medical facility, and the business f.ddress of malical personnel, on the airport and in the communities it serves, that will provide medical assistance or transportation, or both.
(ii) The name and location of each rescue squad, ambulance service, and military insta.11ation, on the airport or in the communities it serves, that will provide medical assistance, or transportation, or both.
+
(c)
The applicant must show before applying that it has coordinated its emergency plan with law enforce-ment and firefighting and rescue agencies, medical re-sources, the principal tenants at the airport, and other interested persons.
In addition, af ter Octo-ber 18, 1977, the applicant est show that all facili-ties, agencies, and personnel specified in this para-graph have participated in the development of the plan
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and have indicated that they will participate to the extent practicable, in the implementation of the plan during an emergency.
4 4
L 4
considering external conditions when attempt-ing to insure that an operator in a perva-1 l
sively regulated industry pursues his activity l
in a manner consistent with the public health j
and safety.
l While the FAA rule supports the concept of i
accounting for external events,2/ the URC 1
proposed rules must still be analyzed with i
respect to various statutory review criteria.
NRC Enabling Legislation f
"The rulemaking power granted to an adminis-trative agency charged with the administra-l tion of a Federal statute is not the power to make law.
Rather, it is 'the power to adopt regulations to carry into effect the will of 1
Congress as expressed by the statute. '"
j Ernst & Ernst v. Hochfelder, 425 U.S.
- 185, i
213 (1976).
Where the will of Congress is expressed through a broad delegation of l
authority and " substantial discretion is lodged with the administrative agency charged with its effectuation, it is to Im expected j
that the agency will fill in the interstices left vacant by Congress."
Public Service i
i U
While the FAA regulation lands support to the validity of the proposed NRC rule, this support should not be over-I estimated.
First, unlike nuclear power plants, airports are almost universally operated by governmental entities.
Of the 475 airports operating in this country in 1979, 473 were operated by the federal, State, or local government, while only two were operated by private concerns.
See data on file with the National Flight Center, FAA, U.S.
Dept. of
~
Transportation, Washington, DC.
These governmental entities would have much less difficulty establishing emergency plans with the network of surrounding medical facilities, than nuclear plant licensees would have doing the same with State i
governments.
In addition, it seems a fair assumption that a I
community having a population large enough to support an airport, would likewise have existing medical facilities capable of handling flight-related injuries.
No similar
' assumption can be made concerning the existence of evacua-I tion plans within the States.
Perhaps because of these factors, the FAA regulation has been accepted without challenge.
5 Co. of New Hampshire v. URC, 582 F.2d 77, 82 (1st Cir.), cert. denied, 439 U.S. 1046 (1978).
A valid rule must therefore effec-tuate the will of Congress and operate within the scope of delegated power.
"Adminis-trative regulations are not absolute rules of law and should not be followed when they cQnflict with the design of the statute or exceed administrative authority granted."
Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1118 (10th Cir. 1977).
The legislation authorizing the Commission to regulate the development of nuclear power "is virtually unique in the degree to which broad responsibility is reposed in the administer-ing agency, free of close prescription in its charter as to how it shall proceed in achiev-ing the statutory objectives."
Siegel v.
AEC, 400 F.2d 778, 783 (D.C. Cir. 1968).
See Westinghouse Electric Corp. v. NRC, 598 F.7d 759, 771 & n.47 (3d Cir. 1979).
"Both the l
Atomic Energy Act of 1954 and the Energy Reorganization Act of 1974 confer broad regulatory functions on the Commission and specifically authorize it to promulgate rules and regulations it deems necessary to fulfill its responsibilities under the Acts, 42 U.S.C.
S 2201(p)."
Public Service Co. of New Hampshire v. NRC, 582 F.2d at 82.
One of i
the Commission's major responsibilities is the licensing of persons whose activities involve the use of nuclear material.
It is unlawful "for any person within the United States to transfer or receive in interstate commerce, manufacture, produce, transfer, a quire, possess, use, import, or export any utilization or production facility except under and in accordance with a license issued j
by the Commission..."
42 U.S.C. 5 2131.
These licenses "shall be issued subject to such conditions as the Commission may by rule or regulation establish to effectuate the purposes and provisions of this chapter."
42 U.S.C. 5 2133(a).
The purpose of the Atomic Energy Act of 1954 and the Energy Reorganization Act of 1974 is I
beyond dispute.
Congress has declared that l
i 6
the " regulation by the United States of the production and utilization of atomic energy
... is necessary in the national-interest to i
assure the common defense and security and to protect the health and safety of the public."
42 U.S.C. 2012(e).
Pursuant to this objec-tive, the " mission of the. -.. Commission is 3
to ensure the safety and security of the nuclear industry..."
S. Rep. No.93-980, 93rd Cong., 2d Sess., cited in [1974] U.S.
i Code Cong. & Adm. News 5470.
When the Commission considers whether to issue a license to a particular applicant, its decision must necessarily be based upon t
I a thorough examination of the health and safety factora involved.
"It is clear...
that before licensing the... reactor, the AEC will have to make a positive finding that the operation of the facility will ' provide adequate protection to the health and safety i
of the public.'"
Power Reactor Development Co.,
supra, 367 U.S.
at 406.
Indeed, 42 O.S.C.
2133 provides that "... no license may be issued to any person within the United 4
States if, in the opinion of the Commission, l~
the issuance of the license to such person i
would be inimical to the common defense and security or to the health and safety of the public."
1 Based upon the Commission's determination of the health and safety significance of emer-gency planning, the proposed URC rule, inso-far as it conditions the issuance of a license upon the existence and scope of off-site emergency preparedness plans, directly effectuates the congressional intention that nuclear activity be strictly regulated so as i
to protect the health and safety of those residing near nuclear facilities.
Since the Atomic Energy Act " clearly contemplates that the Commission shall by regulation set forth what the public safety requires as a pre-requisite to the issuance of any license or permit under the Act," Power Reactor Development Co.,
supra, 367 U.S.
at 404, the NRC acts within the scope of its grant of authority when formulating such a rule.
7
7 I
Judicial Review The determination that a rule is promulgated pursuant to delegated authority and that it is in line with the broad will or intent of Congress is not the end of the inquiry.
Although " administrative regulations properly promulgated under statutory authority are presumed valid," Marshall, v. Whirlpool Corp.,
)
593 F.2d 715, 721 (6th Cir. 1979), reviewing courts will nevertheless examine the rule to insure that it is not (1) unreasonable, (2) arbitrary and capricious, or (3) contrary to other law.
(1)
The " reasonableness" test is essentially nothing more than a determination that the rule is indeed consistent with the purpose of the authorizing statute.
"The agency's interpretation of what is properly within its jurisdictional scope is entitled to great deference... and will not be overturned if
~
~
reasonably related to the language and pur-poses of the statute."
Public Service Co.
of New Hampshire v. NRC, 582 F.2d at 82.
As discussed above, the proposed rule would further the purpose of the enabling legisla-tion.
This being the case, the " court is not empowered to substitute its judgment for that of the agency."
Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 416 (1971).
The court "need not find.that (the agency's] construction is the only reasonable one, or even that it is the result (the court) would have reached had the question arisen in the first instance in judicial proceedings."
Udall v. Tallman, 380 U.S.
1, 16 (1965).
"The NRC, not [the] court, is entrusted with the task of making sure that nuclear power is safe.
(The court's] job is to see that the NRC performs that task in accordance with the law."
New England Coalition v. NRC, 582 F.2d 87, 92 (1st Cir.
1978).
.(2)
After determining that agency action is
" reasonable," section 706(2)(A) of the Administrative Procedure Act " requires a finding that the actual choice made was not 1
i v
8
' arbitrary, capricious, an abuse of dis-cretion, or otherwise not in accordance with law.'
5 U.S.C. S 706(2)(A)."
Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S.
at 416 2/
Under that test, "the court must
~
consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment."
Id.
The Commission developed the proposed rule as a direct response to facts which indicated that emergency preparedness and evacuation i
plans would be essential to safeguard the i
public health in the event of a nuclear accident.
Previously, the ITRC had regarded
" engineered safeguards" as sufficient pro-tection.
Thc " analysis of how close the accident at Three Mile Island came to a situation in which evacuation might have been required on a precautionary basis, at least, leads us to conclude that this philosophy simply is not valid."i/
"The accident showed clearly that protection provided by siting and engineered safety features r.ast be bol-stared by the ability to take protective measures during the course of an accident."5/
The Commission reached its determination that emergency preparedness plans are necessary to protect the public health and safety after considering a number of studies and reports, all of which pointed to the same conclusion.
The report of the EPA-NRC Joint Task Force on Emergency Planning, published in December 1/
This standard, rather than the " substantial evidence" test, is used because the rule is developed through a "nonadjudi-catory, quasi-legislative" pr,ocess that "is not designed to produce a record that is the basis for agency action -- the basic requirement for substantial evidance review."
Citizens
'to Preserve Overton Park v. Volpe, 401 U.S.
402, 415 (1971).
A The Rogovin Study, "Three Mile Island: A Report to the Com-missioners and to the Public"; Vol.1, pg.130 (1980).
EI Supplementary information to proposed rule, 44 Fed. Reg. 75167 (Dec. 19, 1979 ).
i
9 1978, recommended that there be a deliberate effort to establish policy concerning the development of Federal-State emergency pre-paredness planning.
A General Accounting Office study,. issued. coincident with the TMI accident, advised that no new nuclear power plants be permitted to operate "unless off-site emergency plans have been concurred in by the NRC."1/
A report from the House of-Representatives entitled " Emergency Planning Around U.S. Nuclear Power Plants" urged that the NRC " undertake efforts to upgrade its licensees'emg7gencyplansandStateand local plans."_.
The President's Commission on the Accident at Three Mile Island (the Kemeny Report) recommended that approved State and local emergency plans be a condi-tion for licensing new power plants.
Responding to the recommendations of the above studies, and guided by the findings of its own Emergency Planning Task Force which articulated the need for intensive NRC efforts to upgrade offsite emergency plans, the Commission has concluded that adequate,
emergency preparedness plans are essential to safeguard the public health and safety.
This determination was based upon a consideration of all relevant factors, including dramatic recent experience, and can certainly not be deemed "a clear error of judgment."
The United States Court of Appeals for the Dis-trict of Columbia Circuit, while speaking about EPA regulations, uses language that is 5
GAO Rep., EMD-78-110 (March 30, 1979).
1!
H.R. Rep. No.96-413, 95th Cong., 1st Sess. (Aug. 8, 1979).
On the other hand, the Uruse has given contrary messages on emergency planning issues.
The House version of URC's Authorization Bill for VY 1980 did not contain any express link between reactor operation and adequate off-site emer-gency plans, adopting only a requirement that URC. assess _
plans and report on their status, believing that such a link would raise serious constitutional problems.
See H.R.
Rep.
No.96-194 (Pt. II), 96th Cong., 1st Sess. 26-27 (June 29, 1979).
The matter is still before a Conference Committee.
Whether the proposed rule is-constitutional is discussed below.
e
+ - - - -
., - ~ -
10 equally applicable here.
The court states:
"Yet the statutes -- and common sense --
demand regulatory action to prevent harm, even if the regulator is less than certain that harm is otherwise inevitable."
Ethyl Corp. v. EPA, 541 F.2d 1, 25 (D.C. Cir.),
cert. denIel, 426 U.S. 941 (1976).
(3)
The validity of a rule that is neither unreasonable nor arbitrary and capricious is confirmed only af ter the rule is shown not to be contrary to other law.
"The Government cannot make a business dependent upon a permit and make an otherwise unconstitutional i
requirement a condition to the permit."
Standard Airlines, Inc. v. CAB, 177 F.2d 18, 20 (D.C. Cir. 1949).
(a)
Tenth Amendment Because the proposed NRC rule deals with emergency evacuation plans formulated by a State, the rule must be examined in light of the Tenth Amendment's reservation of power to the States.
In National League of Cities v.
Usery, the Supreme Court has stated that
~
"our federal system of government imposes definite limits upon the authority of Con-gress to regulate the activities of the State as States by means of the commerce power."
426 U.S.
833, 842 (1976).
NRC evaluation of State evacuation plans with-stands Tenth Amendment scrutiny, however, because the proposed rule speaks directly to the licensee rather than to the States.
"It is one thing to recognize the authority of Congress to enact laws regulahing individual businesses necessarily subjecs to the dual sovereignty of the government of the Nation and of the State in which they reside.
It is quite another to uphold a similar exer-cise of congressional authority directed, not to private citizens, but to the States as States."
Id. at 845.
Unlike the Fair Labor Standards Act at issue in National League of Cities, the NRC rule does not speak "directly to the States qua States,"
nor does it directly impene substantial costs upon the States or' displace " state policies regarding the manner in which they
11 will structure delivery of those govern-mental services which their citizens re-l quire."
Id. at 847.
Indeed, the States need not alter existing programm, cce need they take any action at all under the pro-posed rule.
Although the proposed rule does not directly require the States to act, there is a def-inite " string" attached to the state decision concerning emergency planning.
Should a State decide not to establish the necessary evacuation plans, and it has total freedom to so decline, it makes such a decision with the knowledge that it will be unable to make use of nuclear power as a means of meeting the energy needs of its citizens.
Hence, there is obviously a strong inducement for a State to develop the required emergency plans if it at all desires the benefits of nuclear power.
The question becomes, however, whether this inducement rises to the level of impermis-sible coercion.
The federal government may not interfere with the right of a State to carry on those activi-ties necessary to preserve its sovereignty.
This may not be done directly, nor may it be done indirectly by forcing a State to make a prescribed " choice" under threat of fiscal and political destruction should it choose o therwise.
The decision not to establish appropriate emergency plans under the pro-posed rule might necessitate reorganization of State energy resource plans, and it might even result in some economic loss (as States are required to buy substitute power), but it certainly would not threaten the continued existence of the State as a sovereign ent'.y.
l The courts have held that the federal govern-ment may condition grants of federal funds upon certain critaria, leaving the States the choice to accept or decline the of fer with its " strings," without contravening the Tenth Amendment.
King v. Smith, 392 U.S.
309 (1968).
In upholding the Social Security -
Act (provisions requiring employers to pay a federal tax, but allowing a credit for
12 t
j -
contributions made to a federally approved State unemployment fund) against claims that the Act coerced States into establishing j
unemployment funds, the Supreme Court stated:
l "There is only a condition which the State is free at pleasure to disregard or ful-fill."
Steward Machine Co. v. Davis, 301 l
U.S.
548, 595 (1937).
The Court added that f
"the law has been guided by a robust common i
sense which assume 9 tha freedom of the will j
as a working hypotheals in the solution of i
its problems."
Id. at 590.
Any distinction between attaching " strings" to a grant of funds and directing that no nuclear power plants will operate without the i
existence of approved off-site emergency plans carries little legal weight.
The federal government, through its Article I spending power, has complete control over the federal purse.
Similarly, through the Com-merce Clause, the federal government erar-cises exclusive control over the radiological aspects of nuclear power, " including the imposition of federal controls over health and safety standards."
Northern States Power Co. v. Minnesota 447 F.2d 1143, 1147 i
(8th Cir. 1971), aff'd mem., 405 U.S.
1035 (1972).
Just as the federal government may impose conditions upon the recipients of federal funds to insure that such funds are i
spent wisely, County of Los Angeles v. Adams, 574 F.2d 607 (D.C. Ciz. 1978), it may like-wise establish conditions necessary for the safe operation of nuclear facilities.
In the case of the proposed rule, the NRC has recognized the necessity of off-site emer-gancy planning to insure the safety of the i.
public, and, rather than mandate that the States develop off-site emergency plans (a I
mandate that could arguably contravene both i
the Atomic Energy Act and, if the statute were changed, the Tenth Amendment),8/ has instead conditioned the issuance of a license upon 8/
A reviewing court would probably not reach the Tenth Amend-ment issue under the current statute, since that Act would appear not to sanction the direct exercise of authority against non-licensees in circumstances such as these.
_~
13 the existence of emergency plans, leaving to the States the choice of formulating such plans or declining to do so.
"In no way does the administrative scheme diminish the States' sovereign powers or undercut their ability to discharge their sovereign responsibilities."
Id. at 609 (upholding a challenge to the Secretary of Transportation's regulations requiring a metropolitan planning organiza-tion, designated by the involved State and composed of representatives of its local governments, to endorse a project's con-sistency with a long-range plan before the State may request federal aid).
The condi-tioning of such licenses upon the existence of approved off-site emergency plans is neither a " direct" nor an "in41 rect" viola-tion of the Tenth Amendment.1/
AI In addition to the Tenth Amendment issue, the proposed rule may also give rise to a strange twist of the federal pre-emption doctrine.
The federal government, under the pre-emption doctrine, has exclusive authority to regulate the radiological aspects of nuclear power.
The States, on the other hand, may regulate NRC licensees only for the manifold
' health, safety, and economic purposes "other than radiation protection."
Northern States Power Co. v. Minnesota, 447 F.2d 1143.
The argument could be raised, therefore, that by having the power to decline to establish emergency plans, the States exercise a " veto" over the development of nuclear power in contravention of the preemption doctrine.
This argument misses the mark.
First, no State is being asked to exercise regulatory authority under the proposed rule.
Rather, the Federal Government intends to evaluate as one of the facts relevant to its own regulatory decision the calibe'r of the State's emergency planning activity.
This distinguishes the purpose of the Federal Government from that which was considered objectionable in Northern States Power.
Moreover, unlike reactor design matters where NRC authority is plenary, offsite emergency planning authority has always been considered to be primarily within the pur-view of the State.
Thus State action or inaction in this field is entirely within the State's authority and NRC is compelled to rely on exercise of State _ authority if it wishes to make offsite emergency planning a matter of pri-mary importance to its licensing procecs.
Thus the situa-tion is entirely dissimilar to the situation in Northern States Power where the State attempted tc act in a field reserved exclnsively to the federal government.
l l
14
)
In summary, althotgh a congressional mandate directed at "the States as States" could run afoul of the Tenth Amendment, the Supreme Court has recognized "the authority of Con-gress to enact laws regulating individual i
businesses necessarily subject to the dual sovereignty of the government of the Nation 4
and of the State in which they reside."
National League of Cities v. Usery, 426 U.S.
at 845.
The proposed rule, derived from a valid delegation of congressional authority, does not violate the Tenth Amendment, nor does it give rise to preemption doctrine problems.
1 (b)
Due Process i
l The proposed rule might also be challenged through resort to dtte process arguments l
arising under the Fifth Amendment.10/
In this context due process may be taken to mean j
that utilities are being required to assume the burden of showing that off-site planning
}
is adequate at the same time that the Federal Emergency Management Agency (FEMA) process for reviewing such plans is incomplete and 4
the criteria under which such plans will be
. judged have not be en finally adopted.
Under these circumstances, the licensee may com-plain that it is being bound to a requirement without adequate " notice" of what that burden merit.
. We believe that argument lacks entails.
Licensees have not been given inadequate i
i notice of their responsibilities and burdens.
The process by which NRC and now FEMA examine offsite preparedness is well known by custom.
While it is being modified, it is not being i
fundamentally altered, and that fact has been made clesr in guidance to licensees and State and local governments.
In addition, the criteria for evaluating plans are also not new.
S!
The Fif th Amendment to the U.S. Constitution provides:
"No person shall... be deprived of life, liberty, or property, without due process of law (It, rather than the iden-tical phrasing in the Fourteenth Amendment, applies to the federal government.)
Whether and to what extent this applies to license revocation will be treated below.
4
15 These criteria are a compilation of existing NRC staff guidance and various other docu-ments into one document.
Both the review process and the criteria are factored (by reference) into the proposed rules in such a way that persons subject to the rule are
"' fairly advised' of exactly what the Com-mission proposed to do sufficiently in advance... to give them adequate time to j
formulate and to present objections to the Commission's proposal."
United States v.
Florida East Coast R.
Co., 410 U.S.
224, 243 (1973); K.
Davis, Administrative Law of the Seventies,.S 6.01-1, pp. 170-172 (1976).
By the time the proposed rules are effective, these criteria, in present form, will have been available for about one year.
The notice thus seems fully compatible with our process requirements.
(c)
Fundamental Fairness (i)
The Siting Connection i
The proposed NRC rule conditions the grant of a license upon the existence of an acceptable State evacuation plan.
The State is not a j
party to the licensing proceeding, nor need the State take any action whatsoever under the rule.-
Potential licensees might be heard to complain that conditioning the license upon circumstances beyond their control violates some notion of Sindamental fairness.
Yet the prime concern of the Commission in the licensing context is the grotection of i
the public health and safety.
Conditions beyond the control of the applicant, most notably population density, are regularly considered by the NRC when analyzing the siting factors involved in. a given applica-tion.
The evaluation of local emergency preparedness and evacuation plans, insofar as this consideration is inextricably entwined with siting matters, should be~ in~cIdded in
~~
the siting analysis.
"The regulations adopted, codified at lv CFR part 100 (Reactor Site Criteria), attempt to accomplish the statutory mandate, inter f
t 16 alia, through criteria designed to assure a safe separation between the reactor and surrounding population even in the event of a hypothetical ' major accident...'"
New England Coalition v. NRC, 582 F.2d at 3T-Population density is a major factor con-sidered by the Commission in making a siting decision.
To effectuate a safe separation between a nuclear facility and the local population should a nuclear accident occur, the agency must have considered not only the size of the local population, but also the ability to evacuate these people should sucW action become necessary.
"In developing cr'.=ria for future siting, we believe the NRC will have to give consideration to the specific characteristics of the area that influence the effectiveness of evacuation:
population density; population centers...;
evacuation routes;" and any measures appro-priate to minimize the possibility that large numbers of people will later mye into the area surrounding the facility.ll/
Although the emergency evacuation criterion
- is a new condition attached to the granting of a license, it should be noted that emer-gency plans were not totally absent from consideration in past licensing proceedings.
The Commission required each applicant for an operating license to include in its final safety analysis report plans for coping with emergencies.
10 CFR S 50.34(b).
The final r,afety analysis report was to include a description of procedures "for notifying, and agreements reached with local, State and Federal officials and agencies for the early warning of the public and for public evacua-tion or other protective measures should such warning, evacuation, or other protec-tive measures become necessary or desirable 10 CFR Part 50, App.
E, IV(D).
The Commission has since determined that off-site emergency plans are essential to safe-4 guard the public health and safety.
The evaluation of such plans could appropriately become an integral part of the siting analysis.
11!
The Rogovin Study, "Three Mile Island: A Report to the Com-missioners and to the Public"; Vol.1, pg. 130 (1980).
17 (ii) Revocation of Licenses The revocation of a license because of failure to meet conditional criteria estab-lished subsequent to the initial grant of l
the license raises questions of fundamental fairness.
"So the problem before us con-carns the statutory and constitutional rights of one who has a substantial. property i
investment acquired in dependence upon a Government permit which is subject to immediate suspension at any time.
What are the requirements of the statute and of due process of law in such a situation?"
Standard Airlines, Inc. v. CAB, 177 F.2d at 20.
A license condition based on the adequacy of off-site emergency plans would not be "funda-mentally unfair."
Clearly, the revocation of licenses may be based on new facts and circum-stances.
" Numerous cases are persuasive that the delegation to an administrative agency of discretion as to the revocation of a license is not unconstitutional."
Wright v. SEC, 112 F.2d 89, 95 (2d Cir. 1940).11/
See 1 K.
Davis, Administrative Law Treatise, S 2.13 134 (1958).
Congress has provided that
"(a]ny license may be revoked... because of conditions revealed by such application or statem2nt of fact or any report, record, or inspection or other means which would warrant i
the Commission to refuse to grant a license I
on an original application... "
42 U.S.C.
S 2236(a), 10 CFR 50.100.
" Congress, when it enacted (this] section, must have envi-sioned that licensing standards, especia11.y in the areas of health and safety regulation, would vary over time as more was learned about the hazards of generating nuclear energy.
Insofar as those standards became l
more demanding, Congress surely would have wanted the new standards, if the Commission deemed it appropriate, to apply to those nuclear facilities already licensed."
Ft. Pierce Utilities Authority v. United States, 606 F.2d 986, 996 (D.C. Cir. 1979).
11!
See Hall v. Geiger-Jones Co.,
242 U.S.
539, 553 (1917);
3rinkley v. Hassig, 83 F.2d 351, 354 (10th Cir. 1936);
Board of Trade v. Wallace, 67 F.2d 402, 407 (7th Cir. 1933).
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~
18 The provisions in the Code and the NRC regulations not only empower the Commission to revoke licenses when necessary, but also serve to place licensees on notice that subsequent developments may necessitate such j
revocation.
Protection of the public health and safety takes precedence over a licensee's l
~
property rights in this situation.
i i
conclusic..
The Atomic Energy Act of 1954 and the Energy Reorganization Act of 1974 direct the Nuclear Regulatory Commission to regulate the nuclear industry so as to protect the public i
health and safety.
"Thus, the task awaiting 4
the [NRC) is' considerable.
It will require j
strong, effective regulation to keep pace with the industry, and to ensure its safe development."
S. Rep. No.93-980, supra.
The proposed NRC rule is just such a regula-l tion.
It give's effect to the Commission's recognition that adequate emergency pre-1 paredness and evacuation plans are essential to safeguard the health of those residing j
near nuclear facilities.
It is true that the proposed rule involves consideration of an external condition, but i
external circumstances, notably the many siting factors, have been considered in past i
licensing proceedings.
Likewise, a descrip-tion of local evacuation plans, when exist-ing, have been included in a licensee's 1
final safety analysis report.
The exist-ence, however, of an effective State emer-gency or evacuation plan in case of an i
accident has not been a condition for grant-1 ing a reactor cperating licensa.
Recent experience has demonstrated the need for I
such plans, and the proposed NRC rule squarely resolves this deficiency.
"Thus, it may be fairly said that ' [i]n the con-struction of a grant of powers, it is a general principle of law that where the end is required the appropriate means are given 2
and that every grant of power carries with i
it. the use of necessary and lawful means for its effective execution.'
1 Am. Jur. 2d, t
19 Administrative Law S 44, at 846 (1962)."
Chamber of Commerce v. Dept. of Agriculture, 459 F.Supp. 216, 221 (D.D.C. 1978).
The proposed NRC rule is lawful.
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f.
Leonard Bickwit, Jr.*
General Counsel DISTRIBUTION Comissioners Comission Staff Offices Exec Dir for Operations ASLBP ASLAP ACRS Secretariat 1
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