ML20154B729

Forwards Decision by Us First Circuit Court of Appeals Denying Various Petitions for Review of Commission Incorporation of Realism Doctrine in Emergency Planning Regulations Where Govts Decline to Participate in Planning

ML20154B729
Person / Time
Site:	Seabrook
Issue date:	09/09/1988
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Harbour J, Linenberger G, Smith I Atomic Safety and Licensing Board Panel
References
CON-#388-7045 OL, NUDOCS 8809140099
Download: ML20154B729 (18)

Text

N UNITED STATES

!" n NUCLEAR REGULATORY COMMISSION

$ e WASHINGTON, D. C. 20555

. A, q i y s<<

l UMr September 9, 1988 SEP 12 P2:31 Oc'HydEj gig /'

Ivan W. Smith Esq., Chairman Gustave A. Linenberger, Jr. "*"

Administrative dudge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. N uclear Regulatory Commission Washington, DC 20555 Washington, D C 20555 Dr. Jerry Harbour Administrative Judge A:omic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D C 20555 In the Matter of PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, ET AL.

(Seabrook Station, Units 1 and 2)

Docket Nos. 50-443, 50-444 Off-Site Emergency Planning -06

Dear Administrative Judges:

Enclosed please find a copy of a decision by the First Circuit Court of Appeals in Commonwealth of Massachusetts v. United States, No. 87-2032 (1st. Cir., Sept. 6, 1988), denyirig various petitions for review of the Comission's incorporation of the "realism doctrine" in its emergency planning regulations where State or local governments decline to participate in emergency planning.

Sincerely,

/

dhueLE/ d Sherwin E. Turk Senior Supervisory

, Trial Attorney cc w/ Encl.: Service List 8009140099 800909 PDR ADOCK 05000443 0q o PDR

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Urdted States Court of Area's For the First Circuit "" -

No. 87-2032 TNE CCMHCHWEALTH CF MA58ACNUSETTE, ,

Petitioner,

v.

• UNITED STATES OF ANZRICA, and UNITED STATE $ NUCLEAR REOUIATORY COMMISSION, Respondents.

PV5LIC SERVICE CCNPANY OF NEW HAMPSHIRE, SCIENTISTS AND ENGINEEM FOR 82 CUR 2 ENERGY, INC.,

LONG ISI/JD LIONTINC COMPANY, NUCLEAR MANA0DE*T AND RZSCVRCES COUNCIL, INC. ,

and EDISCN ELECTRIC IN;'TI".UTE, Intervenors.

No. $7-2033 UNION OF CONCERNID SCIENTISTS, IT AL.,

Petitioners, l Y.

UNITED STATES REGUP.TCRY COMMISSION and UNITED STAT 1.6 0F AMERICA, Respondents.

PUBLIC 87RVICE CCXPANY OF NEW NAMP8 MIRE, NUCLEAR MANAGDTNT AND RE80VRct$ CCONCIL, INC. ,

EDISON ELEC'!T.IC !WsTITUTE,

!4NG 15thlD LIGHTING CCKPANY,

. CITIZENS WIT!!!N TIT 10-KILE RADIUS, INC. ,

and SCIENTISTS AND ENGINZERS FOR SECURE INERGY,INC.

Intarveners.

v.. .

,? ., ,

No. $$-1121 ' '

STATE OF NTW YORK, MARIC CUOMO, GOVERNOR, and COWIY OF SUFFOLX, '

i Petitioners, v.

UNIT!D STATES OF A12RICA and UNITZD STATEC NUCLEAR RESULATORY COMMIs5ICW, Respondents.

PVELIC SERVICE CCXPAh"t CF NEW MAXPSHIRE, '

NUCL3AR MANAGEXD"2 AND RZSOURCES COUNCIL, INC. ,

EDISON ELECTRIC 2N!TITUTE, LONG ISLAND LIONTING COMPANY, and SCIENTISTS AND ENGIN11R8 FOR SECVR3 ENERGY, INC.,

Intervanors.

CN PETITION FOR REVIEW 0F AN ORDER OF TME' NUCLEAR RESULATORY COMMISSION Sofore camp' gell, chief Judea, 5:syar, C_ircuit Judea, 1

and Acosta,* District Juden. ,

l

'Of the District of Puerto Rico, riding by designation.

t EtO .

34eer M. Fhannen, Attorney General, with when 111712Lin A. Jon*=,

Fr e nk _w . ortrrnde r and Jehn Trzficente, Assistant Attorneys General, were on Erief for petitioner Cor.=envecith of Massachusetts.

yarla 3, t_e ticht with whom Errber M. Brevn, Jene.thtn L fis_enbara, Trr e rick __v, Yt_tte, Mirkw3 rley s tackherJ., Rebr rt Abrase, Attorney Gencral, IJ f r d L . Errh 111, Assistcnt Attorncy Gsnersl, fehian G.

and 51 Theras Bevle, Suffolk Eclerine,Attcynty, c:unty Spccit.1 Counscl were on to the GoYtrnor,itionars brief for pet of New YorX 5 tate, Governer Mario M. Cue =o, and suffolk County, ril_yn F. Weirr with whom Dianc_Curren, Andrea_C. Forster, &mit seielbera, DrJ.n R. Teuriev and Ha men & Wrise vara on brief for et al.

petitioners Royc_rt_A.Union Ba ckur of Concerned Scientists,leren and ELcivr m Mrytr_ ASc on brief for intervener l Citizent Inc. l W111'IWithin tR _P . inc E rlec 10-M11s r>-- J r . , kt61us,itor, Solic With whom Willier em Perler, Gencral Counsc1, r. I.c o s t a e el e , Deputy solicitor, Pr_ttr 0; (ir. Ant, .

Counsel for Special office of the General Counsel,  !

U.S. Nuolaar Regulatory Co miss proj ects, ion, accrr_1, _MLrrulla, Assistant Attorney General, Anne f. AlPV, Assistant chief, Appellate section, and

_;hn T, stehr, Appc11ste 6ection, Land and Natural Resources Division, Depart

. cat of Justice, vara on brist fer racpondents.

Thete r_G_._Dien e n, Jr._ , fcepxgf M. If,W11d, Etkoy h S. Itaenited and

. E;3 g & Gray on brief for intarvcnor Public Service Cc=pany of New Ha.ipshire.

JJ;.rr _ P_. Mecranerv, Jr., on brief for intervonor Scientists and Enginatru for Secure Entrqy, Inc.

D.c .e ld P . _ h' i M , Le a, 7 eyeln , Je p p i n e _ A . Mona chltn, charles L hy_chretrra and Mua. ten & villiant on brist for intervanor Long Island Lighting Ccrpany.

J1y h _filbr re, EA)f rt r. Zahler, Deliss e A . Ridesay, Of._v> Pittzm Esity & Trorbri@f., Rohrt W h..Birtsn, Nuclear Managcncnt and heaources Council, Inc., Rebrfs A ku , C&ntral~ Counsel,Sen ior Vice President and General Counscl, Edison Electric Inctitute on brief for interveners Nuclear Management and Resources Council, Inc., and Edison Electric Institute.

SEPTEM3ER 6,19M e

G ys

CAMPBELL, chief Judea. These consolidated petitions' are for review of a regulation promulgated by the Nuclear Regulatory Co=sission ("NRC")., The regulation provides .

standards by which the NRC, in deciding whether to license a .

to operate a nuclear power plant, evaluates a utility radiological energency plan that is prepared by the utility alone because local governments have refused to participate in emergency planning. petitioners specifically contest the rule's incorporation of what is known in NRc parlancs as the "raalism doctrine,# a doctrine that allove the NRc, in evaluating a utility smergency plan, to make the foll'oving pair of presumptions: 1) in the event of an actual radiological emergency state local officials will do their best to protect energency these the affected public, and 2) in such an l

1. Petitioners are the cc =envaalth of Massachusetts (No. 87a 2032), the State of Netf York (No. 8C-1121), and the Union of concerned scientists (HUC3"), the New England cos,11 tion on Nuclear Pollution, the seacoast Anti-Pollution League, the town Nacpton, New Nampchire, the towns of Amesbury and of Xensington, Massachusette, and United States Representative An organization called Edvard J. Markey (No. 87-2033).

citizeng Nithin the 10-Mile Radius has intervened on behalf of petitleners. Five parties have intervenedPublic on behalf of Service respondent, the Nuclecr Regulatory co==iscient Lighting Cospany, ccupeny of Nov Kampchire, Long Island tcicntists and Enginacts for secure Energy, Inc., Nuclear l

l Nanaccccnt and Resources Council, Inc , and Edison Electrio l

Institute.

The arguments advanced by the various petitioners and intervanor-petitioners are substantially similar, For as are those brevity's of the respondant and intervenor-respondants. case only as ,

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sake, we refer to the opponents in this "p4titioners" and "NRC.a 4

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p. .

- officials will look to the utility plan for guidanc9 and will

generally follow that plan. Petitioners contend the rule is arbitrary and capricious, was promulgated under deficient a nstice and commenta procedures, and is keyond the scope of the.

NRC's statutory authority.

Z.

Under the Atomic Energy Act of 1954, 42 U.s.C.

ll 2011 et m e er . (1982), the Nuclear Regulatory Commission is empowered to l properike such regulations or orders as it may deem necessary . . . to govern any activity authorized pursuant to this including standards and chapter, rettrict ions governing the design, location, and operation of facilities used in the conduct of such activity, in order to protect haalth and to minimise danger to life or property . . . .

& I 2201(i)(3) . Prior to the 1979 accident at the Three Mile Island nuclear power plant near Harrisburg, Pennsylvanit, both Congress and the NRC had directed their requintory af forts primarily at plant design. However, in response to b

the perceived inadequacy of prior planning and coordination between the utility and local gove..nments during the Three Mile Island accident, Congress included in the NRc's 1980 authorisation legislation new provisions aimed to ensure that l

• offsite" emergency planning was taken into consideration as well. The relevant part of the 1980 authorisation legislation provided as fallows:

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authorised to be (a) Punds

'. appropriated pursuant to this Act may be ustd by the Nuclect Requistory consission to conduct roceedings, and take other wi recpect to the issuance of  !

actions, ting license for a utilisation '

l an operafacility only if the commission determines j that== -

(1) there exists a state or local amargency plan which--

(A) provides for responding to accidents at the facility concerned, and se 'c applies to the (3) .

complies with the f acility concerned only, for such plans, or cc=sission's guidelines (2) in the absence of a plan which para-of satisfies the requirements or graph (1), there existe a state, local,ble utility plan which provides reasona assurance that public health and safety is the not endangered by operation of facility concerned.

The Pub. L. No.96-295, I los(a)(1), 94 stat, 180 (1980).

astate, local RK disjunctive language in subsection (2) ==

utii tty elan" --

indicates that this lagislation did not issuanca of a licanas exclusively upon the condition the Rather, the existence of a state or local emergency plan.

statuts's emergency planning requirements may be satisfied by either 1) a state or local plan complying with NRC guidelines utility elan that provides state, local, er or 2) a i "reasonable assurance that public hazith and safety is not endangered.a l

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After tho ecoident at Three Mile Isacnd, but prisy to the 1980 authorization legislation, the NRC began ravising its own emergency planning requirements. Its final emergencp planning rule was promulgated in August 1980, just a few weeks' after Congress had passed the authorisation legislation. The NRC rule provided generally, in its initial paragraph, that a no operating license for a nuclear power reactor will be issued unless a finding is r,ade by NRC that there is reasonable assurance that adequate protective r.easures can and will be taken in the event of a radiological energency.8 10 C.F.R. I 50.47(a)(1) (1980). Paragraph (h) of the regulation, along with Appendix E, providad specific .

substantive standards for e=argency response plans. Under subsection (c), however, a licensing applicant's failure to

= set paragraph (b)'s standards was not necessarily fatal: En applicant could still de=enstrate to the com=1ssion that certain deficiencies were not significant for the plant in question, that interim cc pensating actions had already been taken or vers imminent, or that there were other "compelling .

reasons" to permit pisnt operation. The rule did not specifically discuss or refer to energency plans that were prepared by a utility without input from state or local govern::ents.

The 1980 rule rs=ained unchanged until the 1987 a:end=ent here in issue. Two developments occurred in the

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- meantite, however, that are worthy of note. First, in two

' authorisation acts subsequent to the 1980 authorisation aat discussed above, congress reaf firmed that a pit.nt could be licensed by the N'RC on th6 basis of a astate, local, or utility plan which provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned." Pub. L. No.97-415, 96 stat. 2067, I 5 .

Authorisation Act); Pub. L. No. 98=553, 98 Stat.

(1982-83 2825, i 108 (1984-85 Authorisation Act). These are the only post-1980 authorisation acts. Second, in a 1986 adjudicatory ruling, rene raiand tiehtine com (shoreham Nuclear Power Station, Unit 1), CL2 86-13, 24 NRC 22 (1986), the NRC explained how its 1980 rule would apply in evaluating the adequacy of a utility asergency plan. The question then before the NRC was whether the long Island Lighting Company's amargency plan for its shorehe.m Nuclear Power Plant was inadequate as a matter of lav because of the refusal of l Suf folk County and New YorX 1 tate to participate in the planning. Noting that it was legally obligated to consider whether a utility plan prepared without government cooperation could pass muster, the Ccz=ission stated that such a pian might he adequate under ic C.F.R. I 50.47 (c) , 3,f3 3EIA, notwithstanding its inability to co= ply with the specific standards of paragraph (b), which are promised upon a high level of utility = government cooperation. & at 29. The

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consissien stated that the "root quest 6en" under paragraph (c) was identical to the question posed by the "fundamental licensing standard of i 50.47(a)," nanely, whether "there l's reasonable assurance that adeplate protective neasures can and will be takett in the event of a radiological exargency." In Its decision, the ceumission also put forth what has becone l

a

- known as the "realism doctrine t

[I)f shoreham vare to go into operation and there were to be a seriousprotective accident requiring consideration of actions for the public, the State and County of ficials would be obligated to assist, both as a satter of law and as a matter of discharging their public trust.

Thus, in evaluating the LILeo plan we balieve that we can reasentlly assume some "best efforta state and County response in the event of an accident. We also believe that their "best effortn v:uld utilize the LILeo plan as the beet source for e=argancy planning inferration and options. After all, when f aced with e l

serious accident, the State and county I

zust recognize that the LItco plan is l

l clearly superior to no plan at all.

1 at 31 (citations omitted).

Against this backdrop, the NRC pro =ulgated the regulation in dispute here, a:ending paragraph (c) of the 1980

. rule. 3,ga suera. The current rule reads in relevant part as follows:

In making its determination on the adequacy of areclity utility plan, the NRC will recognize the that in an actual state and local govern =ent energency, officials w ill 1xaroise their best ef forts to protect the health and sefety of the publio. The FRc will determine the

.p.

l adequacy of that expected respense, in l

conbination with the utility's (

ccQcasating measures, on a case-by-case bccie, subject to the following guidanos. i In addressing the circumetance where (

applict.nt's inthility to cor. ply with the '

requireacnts of pcragreph (b) of this scotion is wholly or substantially the .

recult of non participction of state and/or local governments, it may be presumed that in the event of an actual .

radiological escrgency state and local officiale would generally follow the I utility plan. However, this presumption a goed l scv fclthbcand rabutted tiaclyby,proffer for example, of an dequate a  :

and feasible state and/or local l radiologiosi startency plan that would in fact be relied upon in a radiological emergency.

10 c.F.R. I 50.47 (o) (iii) (3) (1988). In short, the amendment reflects the "raalism doctrine" the NRC announced in the IdDS Irland fAehtiws es- adjudication, modified by an arpress provision that the doctrine's second presumption is rebuttable.

Petitioners contend as a threshold matter that the disputed rule is not entitist to the judicial deference

normally owed agency action. Its 5 U.S.C. I 706(2)(A) (1982)

! (courts can set aside agency action only if Marbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"). They argue that, for exsaple, offsite l

emergency planning -- as opposed to technical matters relating to plant construction and design == is outside the NRC's area

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of expertise. We do'not agree. The substantive crea in which an agency is deemed to be expert is determined by statutet here, under the relevant congressional enactments, 3.11 ausza, che NRC is specifically authorized and directed to determine '

whether energency plans adequately protect the public, gas cuke _ power- ee. v. tinited statac ruelaar Ree.11aterv cenismian, 770 F.2d 3s6, 390 (4th Cir. 1985). We also reject petitioners 8 argument that the NRC is owed no deference because the issue in this case is a npure question of statutory construction." The issue is 33 a pure @tstion of statutory construction. Petitioners do not ask us 'puraly' to 4

construe a statutes they ask us to hold that, given the statutes, the agency has acted unreasonably. hen if we were to assuse, for the sake of argument, that the issue were purely one of statutory construction, petitioners still have not directed us to any enact =ent in whish Congress has clearly indicated a view of suergency planning that is at variance with the NRC rule or that forecloses the NRC's adoption of the i approach here adopted. Without such an indication of contrary congressional intent, va should norr. ally defer to the agency's '

reasonable construction of the statute it adainisters.

chevrpn U 8. A. v. Neturri An n e_ure a s Defame cousell t fme ,_

467 U.S. 837, 842-45 (1984) ; Mavhura y, Jeoretarv of Wenith I

and Hu-an services, 740 F.2d 100 (1st Cir. 1984). As it is, '

cur standard of revieV here is dictated by section 704(2)(A) 8 L ,_

e of 'the Administrative Procedure Act, and we must uphold the agency's action se long as it is "reasonable and defensible.N Eure.su of Aleehol, Tebacce 1 Jiramms V. FJ.EA, 464 U.S. 49, 97

& n.7 (1983).

Petitioners advance a host of argunants why the NRC l rule -- specifically, its incorporation of the second  ;

presumption contained in the "realism doctrine" -- is unreasonable. Petitioners' primary contention is that it is unreasonable for the NRC to presur.e that, in the event of an actual radiological amargency, states and localities that have previously refused to participate in emergency planning vill

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follow an er.orgency plan adopted by the utility.3 We cannot l say that this presumption is unreasonable. That state and - 1 local governments have refused to participate in emergency l Planning, or have indicated a belief that such planning is inherently i:possible in a particular piant location, does not indicate hov thess govern =ents vould respond in an actual amargency. It is hardly unreasonable for the NRC to predict

2. None of the petitleners seriously contests the first .

presumption of the realisa doctrins, the presuuption that state and local governments will try to protect the public in an emergency. Pctitioner Ucs argues that the rule contains an implicit third assumption that states and localities have the resources necesstry to comply with the utility plan inthird the event of an emergency. We do not censider this presumption to be implicit in the realism doctrine, and to the extent the.t this of UCS 8 s argument is a challenge to "interim criteria"partadopted by the NRC subsequent to the pre =ulgation of the. disputed rule, the issue is not properly before us.

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that state and local governments, notwithstonding their i misgivinge ,about the adequacy of a utility plan or their opposition to a particular plant location, would, in the event of an actual energency at a plant they were lawfully obligated.- l l

to coexist with, follow the only existing emergency plan. l This prediction is supported by comaca sense, and also by the uncontested fact -- part of the administrative record of this rule -- that state and local governments prefer a planned emergency response to an ad hos response. Saa 82 Fed.

Reg. 42,0s2 (1947).

Nor is the NRC rule objectionable because it is a  !

"presumption." Agencies are penitted to adopt and apply presu=ptions if the provan facts and the inferred f ao'ts are rationally connected. } m v. nietint HeneitaL Inc ,

442 U.S. 773, 787 (1979). As we indicated above, the interred fact of state and local adherence to a utility plan ir, rationally reisted to the proven (in this case, hypothesized) l fact of an actual radiological emergency. Moreover, the presumption here is expressly made rebuttable:

I It may be presuzad that in the event of an actual radiological energancy state and  ;

local officiala vould gancrally follow the f utility plan. However, this presu=ption Pay be rebutted by, for exa=ple, a good faith and tincly proffer of an adequate and feasible state and/or local radio-i logical energency plan that would in fact '

t be relied upon in an emergency.

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10 c.r.R. I 50.47(o)(111)(3). The proffer of an adequate

. state or local plan -- an option that some states and localitice may have expressly rejected -- is only one possible method of rebutting the presur.ption. Nothing in the rule's '

language precludes other means of rebuttel. l Petitioners also contend that the a= ended ruls l

reflects an irpermissible deviation from the NRC's regulatory l position in 1980. Assuming, without deciding, that the NRC has in fact changed its position with respect to the role of states a.nd localities in emergency planning, we conclude that such a change was net irrational. The NRC might reasonably have believed that, in light of the proven nonparticipation of states in emergency planning subsequent to 1980, the new rule was necessary to serve Congress's policy that the NRC consider plans prepared by utilities without governmental participation, 113 Atchison. Tepaka A fanta Fe Ry. v. Wichit4 2eard of Trade, 412 U.S. 800, 808 (1973) (agency may alter Policy in light of changed circu= stances in order to serve congesssional policy). There is adequate on-the-record

• l justification for the NRC's adoption of the new rule. KAA ,

NAACP v. Ef4, 682 F.2d $93, 998 (D.C. Cir.1982) (deference is owed to an agency's determination that circustances have changed and to the agency's response therato).

Another of petitioners' contentions is that the WRc failed to comply with the notice and cos.zent procedures 1

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j required under section 553 of the Administrative Procedura l *. Act, 5 U.s.C. l 553 (1982). They contend the NRC's notice of proposed rulemaking failed to address the realism doctrine.

Petitioners ignore, inter alia, the following statement, which:

appeared in inforsation accompanying the noticas the Commission believes that State and i not lect.1 govern =ents which have cooperated in planning will carry out their traditional public health and safety  ;

roles and would therefore respond to an l accident. It is reasonable to expect that '

this response would follow a comprahansive utility plan.

52 Fed. Reg. 4943 (col. 2). f_se also 16, at 6980 (col.1),

6984 (col. 1). This notics was satisfactory, St.g watural meneurou Befense council v. I.P.A, 824 P.2d 1258,1282-86 (1st cir.1987); petitioners' argument is without merit.  :

Petitioners also contend on a miscellany of grounds that the NRc rule violates the Atomic Energy Act. For example, they claim the nov rule permits the NRC to consider a utility's econesio costs in determining whether a plan provides "ade@ ate protection" to the public, a result arpably in conflict with the D.C. Circuit's decision in Union of concerned Scientirts v. Ea2, 824 F.2d 108 (D.C. Cir. 1987).

But even if we were to think that that case controlled here, We do not believe the requiation necessarily opens the door to such economic considerations. Nothing on the 2N1e's face suggests this, and such a motivation is specifically

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disclaimed by the NRC. 52 Fed. Reg. 42,082 (1987). Nor can we accept petitioners' claim that such an inference is warranted by the rule's provision that,, in evaluating a .

utility plan, the NRC shall make due allowance for the possibility that state and/or local nonparticipation will make l the utility plan's compliance with enu=erated safety standards "infeasible." 10 C.I.R. I 50.47 (c) (iii) (A) . Petitioners claim the word "infeasible" ne=essarily invites cost-benefit analysis. We reject this argunent. A fair reading of this provision of the rule in context suggests that compliance would be "infeasiblea simply because some of the specific safety standards clearly contemplate utility-government cooperation.

We have considered and rsjected petitioners' other arguments about the rule's statutory invalidity. These arguments are unpersuasive either because they fail to acknowledge the discretion the Act itself vests in the Nuclear Regulatory commission, 13.3 PJblic service comet New Hereshira v . 22.2, 5 8 2 F . 2 d 77, 82 (1st Cir.), cert. denied, 439 U.S. -

1046 (1974), or because they attack an imagined unlawful ,

application of the rule. The latter argu=ents are inappropriate here, where the rule is being challenged on its face, Cr.ir holding is, of course, li=ited to the question of f

whether the rule is involved on its faces petitioners remain

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- free to cha11 cage the NRcis application of tho rule individust case.

The netitlens fer review are danled, 6

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