ML20154B821

Forwards Decision of Us Court of Appeals for First Circuit in Commonwealth of Ma Vs Us.Decision May Be Relevant to Proceedings

ML20154B821
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	09/09/1988
From:	Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Johnson W, Kohl C, Moore T, Rosenthal A, Wilber H NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#388-7054 OL-3, OL-5, NUDOCS 8809140152
Download: ML20154B821 (18)

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yp paaugfg .t UNITED STATES

! c NUCLEAR REGULATORY COMMISSION .

WASHING TON, D. C. 20666 10 + '-

SEP 0 01989 *88 SEP b.

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Thomas S. Moore, Chairman Alan A. Rosenthgi. ,hnel"WM Administrative Judge Administrative JudgeWW~

Atomic Safety and Licensing Aopeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Reguletory Commhston Washington, D C 20555 Washington, D C 20555 -

Howard A. Wilber Christine N. Kohl, Chairman Administrative Juuge Administrative Judge Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D C 20555 Washington, D C 20555 Dr. W. Reed Johnson '

Administrative Judge ,

Atcmic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555  :

1 In the Matter of LONG ISLAND LIr,HTING COMPANY (ShorehamHuclearPowerStation, Unit 1)  !

Docket No. 50-322-OL 3 1 5 (EP Exerc us) '

Dear Administrative Judges:

Enclosed herewith is the decision of the U.S. Court of Appeals for the l l

First Circuit in Commonwealth of Massa:husetts vs. United States (No. 87-2032, September 6,1988). This decision may be relevant to thet,e proceedings.  !

Sincerely,

. 0 h- [{y yy,,- l De yds ant General Counsel  ;

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United States Court of Ap"oea's For the First Circuit No. 87-2032 TKE COMNONWEALTH OF MASSACHUSErrs, ,

Petitioner, V.

WITED STATES OF AMIRICA, and UNITED STATES WLCLEAR REGULATORY COMMISSION, Respondants.

PV8LIC SERVICE COMPANY OF NEW MAMPSNIRE, SCIENTZ5T5 AND IN0!NEpa FOR 8ECUM ENERGY, INC.,

LONG Z8 ZAND LIONTING COMPANY, NUCLEAR MANAGEMENT AND RE80VRCES COUNCIL, INC. ,

and EDISON ELECTRIC INSTITUTI, Interveners. ,

No. 47-2033 WION OF CONCERNED SCIENTIST 5, IT AL.,

Petitioners, Y,

WITED STATES MGULATORY COMMISSICW <

and WITED STATES OF AMERICA,

Respondants.

PUBLIC SERVICE COMPANY OF NEW NAXFsNIR2, NVCLEAR MANAGEMENT AND A8s0VR754 CCWCIL, INC. ,

EDISON ELECTRIC !NSTITUTI, 14M 281AND LIGHTIM COMPANY, l - CITIZEN 5 WITHIN THE 10= NILE RADIUS, INC.e and SCIENTISTS AND ENGINEERS PCR SECURE ENERQY,INC. '

i Interveners.

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Na, $$-1121 STATE OF NEW YORK, MARIO CUOMO, 00VERNCR, and COUNTY OF SUFFOLX, l

j Petitioners, v.

i UNITID STATFJ OF AMIRICA and UNITED STATt8 NUCLEAR R24UtATORY COMMISSION, -

i Respondents.

PUBLIC SERVICE COMPANY OF NEW MAMPSHIRE, '

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' NUCLEAR MANAGENINT AND RISCDCES COUNCIL, INC.,

2DISON ELECTRfC INSTITUTE, IANG ISLAND LIGHTING COMPANY,

' and 8CIENTIST8 AND EN0!NBERS FOR SECVRE ININY, INC.,

Intervener 8.

! CW FITITICW FOR REVIEW 0F AN CRDE A 0F l

TMI NUCLEAR R20VIATORY COMN:58 ION

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' Sefore i Campbell, h m , >

(; 3 rayer, circuit Judna,

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I 'Of the District of Puerto Rise, sitting by designation.

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James M- shannen, Attorney General, with whom stanhan A. Jonan, Frank W. ostrtsdar and John Traficenta, Assistant Attorneys General, were on brief for petitioner Cor.nonwealth of Massachusetts.

Karla 3. tettehe Vith When Narbart M. Brevn, Iemathan W. finanbara, Fra.ie' Fick W. Yatta, Mirkeatrick & i.c e k =. a r t , Jted e r Abrama, Attorney General, 4p rad L. WardOli, Assistant Attort..y General, Fabin G.

and I. Theras nevle, suffolk Patcaing, Special G u n t y .',l ' ' V n e Counsel to the y , Vere en brief for petOcVernor,itioners of New York state, Governor Mt.tio M. Chaomo, and Suf folk County.

r11vn R. Waias Vith whom Diana curran, Andrea c. Fareltz. h scialbara, Dean R. Teuslav and Hanen a waian vers on brief for et al.

petitioners Rehart A. Union nackua of Concerned and sackun. Maver Scientists,le-en a sa on brief for intervenor citizens Within The 10-Mile Taetuoi Inc.

William L triers. 3ri, felicitor, With whom Willin em Pariar, General Counsel, r. t.a e slaeela, Deputy solicitor, Datar o. crana, Counsel for Special office of the General Counsel, U.S. Nucisar Regulatory Cosaiss Projects, ion, 1 e e e r 3_. Marrutia, Assistant and Attorney General, Ms. Airv, Assistant eniet, Appellate section, ion, John T. SLAhr, Appellate Section, Land and Naturth ResoQrGe8 DiVis Department of Justice, were on brief for respondents.

Themas C._Dien n. J r . , Secre a M. Lavald, Deborah R. ItaaMiand and

. Re e a r _ & cray on brief for intervenor Public Service Company of New Marpshire.

Juan F. Mecranarv. Jh, on brief for intervenor Scientists and Engineers for secure Energy, Inc.

Donald P. Irv!M, Lea B. rauein, Jessina_A. M e r.a o h a n , charles L

?-eahatsen and wur_ ten a villiams on brief for intervenor 14ng Island t Lighting Company.

Ja y T . f 11bant , Rehart E. Zahlar, Belissa A. Ridevav, thav. pittman.

Petts & Trevkridae, Robert W. Bishen, General Counsel, Nuclear Manage =ent and Resources Council, Inc., Robert L. Baum, Senior Vice President and Genorm1 Counsel, Edison Electric Institute on brief for intervenors Nuclear Management and Resources Council, Inc., and Edison Electric Institute.

SEPTEMSER 6,19M 0

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l CAMP 5 ELL, chief Jues. These consolidated petitions' are for review of a regulation promulgated by the Nuclear The regulation provides Regulatory Commission (anC").

standards by which the MC, in deciding whether to license a nuclear power plant, evaluates a utility to operate e radiological energency plan that is prepared by the utility alent, because local governments have refused to partiGipate in energency planning. Petitioners specifically contest the rule's incorporation of what is knevn in nc parlance as the the MC, in Frwilisa doc t'.'ine , " a doctrine that allove evaluating a utility taergency plan, to take the foll'oving pair of presumptions: 1) in the event of an actual radiological emergency state local officials will do their best to protect an energency these the affected public, and 2) in such l

1. Petitioners are the Co:sonvaalth88-1121), of Massachusetts and the Union (No. 47a of 2032), the State of New Concerned Scientists (UC3 8 ) ,

York (No.the New England coalition on Nuclear Pollution, the fcacoast Anti-Pollution of League, the town Amesbury and l

Hampton, New Hampshire, the towns of Kensington, Massnehusetts, and United states Representative Markey An organisation called Edward J. (No. 87-2033).

citisens Within Five the 10= parties Milehave RadiusinterYened has intervened on behalf on behalf of of petitioners. public Servios respondant, the Nucisar Regulatory Cosaissioni Island Lighting Company, company of New Hampshire, Long Inc., Nuclear scientlets and Engineers for secure Energy, ement and Resources Council, Inc. , and Edison Electric Xana!tute.

Inst The arguments advanced by the various petitioners and ,

intervenor-petitioners are substantially similar, as are theseFor brevity's of the respondent and intervanor-respondents. case only as sake, we refer to the opponents in this I

"petitioners" and "NRC."

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- officia5s will look to the utility phan fer guidance and will generally follow that plan. petitio.. ora contend the rule is arbitrary and capricious, was promulgated under deficient "notice and comment" precedures, and is beyond the scope of the.

NRC's statutory authority.

1.

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

I l 2011 31.Aa&, (19 82 ) , the Nuclear Requintory commission is empowered to prescribe such regulations or orders as it

. to govern any may deem necessary . .

activity authorized pursuant to this including standards and chapter, restrict ions governing the design, location, and operation of facilities used in the conduct of such activity, in order to protect health and to sinimise danger to life er property . . . .

& I 2201(i) (3) . Prior to the 1979 accident at the Three Mile Island nuclear power plant near Harrisburg, Pennsylvania, both Congress and the NRC had directed their regulatory of forts primarily at plant design. Xewever, in response to the perceived inadequacy of prior planning and coordination between the utility and legal governments during the Three Mile Isltad accident, Congress included in the NRC's 1980 authorisation legislation new provisions aimed to ensure that "offrite" emergency planning was taken into consideration as well. The reinvant part of the 1980 authorisation legislation provided as follows:

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'a to be (a) Funds authorized appropriated pursuant to this Act may be used by the Nuclear Regulatory ceanissiontaXe other to conduct proceedings, and actions, with respect to the issuance offor a utilisation license an operatingfacility only if the commission determines that==

(1) there exists a state or local l energency plan which==

provides for responding to accidents (A) at the facility soncerned, a d as it applies to the (3) complies with the facility concerned only,for such plans, or ceanission's guidelines (2) in the a.bsence of a plan of which pera-satisfies therethe requirements exists a State, local, er Vraph utility p(1),lan which providas reasonable assurance that public health and safety is endangered by operation of the not facility concerned.

The No.94-295, i 10t (a) (1) , 94 stat. 780 (1980).

Pub. L. astate, local SE disjunctive language in subsection (2) ==

indicates that this legislation did not utiittv niana --

issuance of a license exclusively upon the condition the Rather, the existence of a state er local emergency plan. by statute's energency planning requirements may be satisfied idelines either 1) a state or local plan complying with WRC gu provides ueitiev elan that local, er state, or 2) a

"-sasonable assurance that public health and safety is not endangered.a

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After the accident at Three Nile Island, but prior to the 1980 authorization legislation, the NRC began revising its own energency planning requirements. Its final energency

planning rule was promulgated in August 1980, just a few weexa ~

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 is issued unless a finding is sade by NRC that there reasonable assurance that adequate protective f.easures can and will be taken in the event of a radiological energency.a

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10 C.F.R. I 80.47(a)(1) (1980). paragraph (b) of the regulation, along with Appendix E, provided specific ,

1 l substantive standards for er.orgency response plans. Under subsection (c), however, a licensing applicant'h failure to meet paragraph (b)'s standards was not neessaarily fatal an applicant could still demonstrate to the commission that certain deficiencies were not significant for the plant in question, that interim compensating actions had already been taken or were imminent, or that there were other acompelling ,

reasons" to permit plant operation. The rule did not specifically discuss or refer te energency plans that were propered by a utility without input from state or local governments.

The 1880 rule reasined unchanged until the 1987 amandment here in issue. Two develsp' tents occurred in the 7

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meantine, however, that are worthy of note. Firote in two ,

authorisation acts subsequent to the 1980 autherisation aet discussed above, congress reaffirmed that a plant could be local, er licensed 'sy the NRC on the basis of a astate, utility plan which provides reasonshis assurance that public health and safety is not endangered by operation of the facility concerned." Pub. L. No.97-415, 96 stat. 2067, I5 No. 98=553, 98 Stat.

(1982-83 Authorisation Act)i Pub. L.

These are the only 2828, i 104 (1984-85 Authorisation Act).

! post-1980 authorisation acts. Second, in a 1988 adjudicatory ruling, ime Taland tiehti-a est (shoreham Nucisar Power Station, Unit 1), CL3-86=13, 14 NRC 22 (1988), the NRC explained how its 1980 rule would apply in evaluating the The question then adequacy of a utility amargency plan.

beisre the NRC van whether the Z4ng Igland Lighting Company's Plant was amargency plan for its shorehan Nuclear Power inadequate as a matter of law because of the refusal of su'! folk County and New YorX 8 tate to participate in the planning. Noting that it was legally obligated to consider whether a utility plan prepared without government cooperation such a plan could pass muster, the Cezzission stated that 133 133Z4, might be adequate under 10 c.F. A. I 5 0.47 (e) ,

notwithstanding its inability to comply with the specifie standards of paragraph (b), which are premised upon a high The loyal of utilityagevernment cooperation. & at 29.

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!' consission stated that the "root question" under paragraph (c) f

! was identical to the questien posed by the afundamental i licensing standard of I 80 47(a),a namely, whether athere is reasonable assurance that atequate protective neasures can and will be taken in the event of a radiological energency.a In 1

its decision, the commissian also put forth what has become ,

. known as the area 11ss doctrine":

[I)f sharehan were to go into operation and there were to be a serious accident requiring consideration of protective i

actions for the publis, the State and County ef ficials would be obligated to l

j assist, both as a satter of law and as a

' nettsr of dischar ing their public trust.

I Thus, in evaluat ng the LILCO plan we l kn11 eve that we can reasonably assume some ahest efforta state and County response in l

thu event of an assident. We aise believe l that their abest efforta would utilise the LILC0 plan as the best source for eastgency planning inferration and options. After all, when f aced with a serious accident, the State and County I

must recognise that the LILCO plan is clearly superior to no plan at all. I l

& , at 31 (citations esitted).

Against thfa backdrop, the NRC promulgated the regulation in dispute here, amending paragraph (c) of the isso l rule. AAA AM EA. The current rule roads in relevant part as l

i fellows:

In making its determination en the the NRC will

adequacy recognise of thea reality utility plan, that in an actual j

state and local government  !

l energency, officials w ill exercise their best efforts l

I to protect the health and safety of the j publio. The NRC will determine the i

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adequacy of that expected response # in combination with the util1ty's coe@ensating seasures, on a case-by-case basis, subject to the following guidanos.

In addressin" the circusatance where applicant's i$ahility to sosply with the requirements of paragraph (b) of this 4

section is wholly or substantially the .

result of non-participation of state ,

end/or local governments, it may be

< presumed that in the event of an actual .

radiological emergency state and local officials would generally follow the l

l utility plan. However, this presumption a good

, may f al.thbean's rebutted timelyby, forfer prof example, of an a dequate l

and feasible state and/or Iooel radiological emergency plan that would in fact be relied upon in a radiological

' energency.

10 C.F.R. ! 50 47 (e) (iii) (3) (1988). In short, the amendment reflects the 'raalism doctrine" the Oc announced in the Img Taland Llahtiner ca. adjudigation, modified by an empress provision that the doctrine's second presumption is .

rebuttable.

Petitioners sentend as a thresheid matter that the disputed rule is not entitled to the judicial deference nonsally owed agency action. Aas 5 U.S.C. I 104(3)(A) (1983)

(courts can set aside agency action only if aarbitrary, capricious, an abuse of discretion, or otherwise not in .

accordance with law"). They argus that, for example, offsite i energency planning -- as opposed to technical matters relating to plant construction and design -- is outside the nc's area  !

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of expertise. We do'not agree. The substantive area in which an agency is deemed to be expert is determined by statutor

here, under the relevant congressional enactments, saa anza, the NRC is specifically authorised and directed te determine  !

whether energency plans adequately protect the publie, gas euka Fewer ca. v. united sentan wuaimar noeulatarv eemmianian, 770 F.2d 3s8, 390 (4th Cir. 1985). We also reject petitioners 8 argument that the NRC is owed no deference because the issue in this osse is a apure question of statutory construction." The issue is AAA a pure question of  !

statutory construction. Petitioners do not ask us ' purely

• to l construe a statutel they ask us to hold that, given the i

statutes, the agency has acted unreasonably. Even if we were to assume, for the sake of arfusent, that the issue were

purely one of statutory construction, petitioners still have not directed us to any enactment in which Congress has clearly indicated a view of saargency planning that is at varianoe with the NRC rule er that foreeleses the NRC's adoption of the ,

I, approach here adopted. Without such an indication of contrary i congressional intent, we should normally defer to the agency's reasonable cor,etruction of the statute it administers.

chavran U.s.1. v. Natural maneureas mafanma eeuwell. Yne ,

447 U.S. 837, 842-48 (1ss4); gagkurg v. amaratary of vaalth jl I

and Muean servien't 740 F.2d 100 (1st cir. 19s4). As it is, ,

cur standard of review here is dictated by section 704(2)(A)

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of the Administrative Procedure Act, and we must upheld the agency's action se lent as it is "reasonable and defensible."

r Bure.au of 11eehol. Tebaces A firamma V. ZL34, 464 U.S. 59, 97

& n.7 (1983). 1 petitioners advance a host of arguasnts why the NRC ruis -- specifically, its incorporation of the second presumption sentained in the "reslism doctrine" -* is unreasonable. Petitioners' primary contention is that it is unreasonable for the NRC to presure that, in the event of an actual radiological emergency, states and localities that have previously refused to participate in e=argency planning vill follow an emergency plan adopted by the ut111ty.8 We cannet say that this presumption la unreasonable. That state and local governments have refused to participate in emergency planning, or have indicat6d a belief that such planning is inherently impossible in a particular plant location, does not l

indicate how these governments vould respond in en actual j energency. It is hardly unreasonable for the NRC to predict 4(-

2. None of the petitiehors seriously contests the first .

presumption of the ret 11sn doctrine, the presumption that state ,

and local governmente vill try to protect the public in an emergency. Petitioner Ucs argues that the rule contains an .

implicit third assumption that states and localities have the l resources necessary to comply with the utility plan inthird the event of an emergency. We d t, not consider this  !

presumption to be implicit in the realism doctrine, and to the extant that this part of UCSta argument is a challenge to afnteria criteria

• adopted by the NRC subsequent to the pt,omulgation of the, disputed rule, the issue is not properly before us. ,

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that state and local governments, notwithstanding their singivings 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 -

to seexist with, fellow the only existing amergency plan.

This prediction is supported by common sense, and also by the uncontested fact -- part of the administrative record of this rule -- that state and local governments prefer a planned j amergency reopense to an ad hos response. 133 83 Fed. j Reg. 42,082 (1987).

i Nor is the NRC rule objectionable because it is a

! i j apresumption." Agencies are permitted to adept and apply ,

presumptions if the provan facts and the inferred facts are j rationally connected. 3123 v. ametint Meanitai. na ,

As we indicated above, the interred

) 442 U.S. 773, 787 (1979).

i fact of state and local adherence to a utility plan is rationally related to the proven (in this case, hypothesiaod) fact of an actual radiological energency. Moreover, the presumption here is expressly made rabuttables It may be presumed that in the event of an cetual radiological energency state and local officials would generally follow the utility plan. However, this preousption may be rabutted by, for example, a good faith and timely proffer of an adequate and feasible state and/or lesal radio-logical energency plan that would in fact be relied upon in an amargency.

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l 10 c.F.R. I 50. 47 (e) (111) (3) . The proffer of an adequate ,

I state or local plan == an option that some states and ,

i j localities may have expressly rejected -- is only one possible j mothed of rebutting the presusption. Nothing in the rule's i

j language precludes other means of rebuttal.  ;

i i Petitionere also contend that the amended rule j f refloote an impermissible deviation from the NRC's regulatory l peaition in 1980. Assuming, without deelding, that the NRc '

has in fast changed its position with respect to the rete of i states a.nd localities in energency planning, we conclude that i l

! such a change was not irrational. The NRC sight reasonably l have believed that., in light of the proven nonparticipation of f

,l states in energency planning subsequent to 1980, the new rule  ;

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! was necessary to serve congress's policy that the NRC sensider  !

I plans prepared by utilities without governmental i participation. 133 AtahiasM. Tenaka A santa Fe RV. v. Wichita  :

Enard af Trada, 413 U.S. 800, 80s (1973) (agency say alter [

policy in light of changed circumstances in order to serve l eengressional is adequate on-the= record peliey). There justification for the NRc's adoption of the new rele. 533 ,

MA&EZ v. ZGC, 483 F.2d 993, 998 (D.C. Cir. 1983) (deference le owed to an avsacy's determination that circusetances have

- changed and to the agency's response therste).

Another of petitioners' contentions is that the NRc failed to comply with the notice and essaant precedures l l

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required under section 853 of th3 Administrative Procedure Act, 5 U.S.C. I 553 (1982). They centend the NRc's notice of proposed rulemaking failed to address the realism doctrine.

Petitioners ignore, inter alia, the folleving statement, which-appeared in information secompanying the noties:

the Consission holieves that have state and not local governments which cooperated in planning will carry out their traditional public health and safety roles and would therefore respond to an accident. It is reasonable to expect that this response would fellev a comprahansive utility plan.

52 Fed. Reg. 4963 (cel. 2), saa aims 16, at e980 (cel.1),

ette (col. 1). This notics was satistaetery, sta M&1gr,31 nameurena omfanan couneil v. 134, 424 F.2d 1858,1282=48 (1st cir. 1987); petitioners' argument is without serit.

Petitioners aise contend on a miscellany of grounds that the NRC rule violates the Atomic Energy Act. For exa=ple, they claim the new rule permits the NRC to consider a utility's economic costs in determining whether a plan provides "adequate protection" to the publie, a result arguably in conflict with the D.C. Circuit's decision in 1U113n of canearnad seiantiata v. Elg, 414 F.2d 108 (D.C. Cir. 1987).

But even if we were to thinX that that case controlled here, we de not believe the requistion necessarily opens the door to such economic considerations. Nothing en the rula's fece suggests this, and such a activation is specifically

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disclaimed by the NRC. 32 Fed. Reg. 42,083 (1347). Nor can we accept petitioners' claim that auch an inference is warranted by the rule's prevision that,, in evaluating a ,

utility plan, the NRC shall make due allowance for the

possibility that state and/or local nonparticipation vill make

the utility plan's compliance with enumerated safety standards petitioners "infeasible.a 10 c.3.R. I so.47(o) (iii) (A),

claim the word "infeasible a necessarily invites cost-benefit analysis. We reject this argument. A fair reading of this l provision of the rule in context suggesta that oespliance vould be "infeasihie" simply because some of the specific i

safety standards clearly contemplate utility-government cooperation.

! We have sensidered and rejected petitleners' ether argumente about the rule's statutory invalidity. These unpersuasive kocause they fail to arguments are either I

acknowledge the discretion the Act itself vests in the Nucisar Regulatory Ccanission, 333 Public service es, of New Masnahire i

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v. MEE, 542 F.2d 77, 42 (1st Cir.), eart. danlad, 439 U.S.

1044 (1978), or hasauce they attack an imagined unlawful .

l epplication of the rule. The latter arguments are L

inappropriate here, Where the rule is being challenged on its face. Our holding is, of course, limited to the question of

! whether the rule is involved on its facer petitioners reasin  ;

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- free to challenge ne NRcle application of Ge rule in an individual case.

The natitlans far review are denied, I

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