Citizens for Safe Power, Inc. v. Nuclear Regulatory Commission

¶6CHRISTENSEN, District Judge.

¶7Petitioners seek review of a final decision and order of the Atomic Safety and Licensing Appeal Board of the Atomic Energy Commission (AEC)1 (now the Nuclear Regulatory Commission, 42 U.S.C. § 5841(f)) affirming issuance of an operating license to Maine Yankee Atomic Power Company (Maine Yankee) for a constructed commercial power reactor near Wiscasset, Maine.

¶8Petitioners contend that failure of AEC to make findings required by the Atomic Energy Act of 1954 (AEA)2 and to compile an evidentiary record sufficient to support such findings, together with its failure to comply with the National Environmental Policy Act of 1969 (NEPA),3 would justify the issuance of an order by this court suspending the operating license. “In view of the asserted need for electrical power produced by the . . . facility”, however, petitioners ask only that AEC be ordered to reopen the proceedings for the purpose of receiving additional evidence allegedly necessary for proper consideration of AEA requirements, and for the preparation of an “adequate” Final Environmental Impact Statement, and that in the meantime the court order an amendment of the license to restrict operation to 75% of full power.

¶9In keeping with the two-step licensing procedure directed by the statute4 the *1294AEC on October 21, 1968, issued to intervenor a permit to construct the Maine Yankee Atomic Power Station (MYAPS), and on May 12, 1971, published notice of consideration of issuance of a license to operate the facility. Petitioners and the State of Maine were granted leave to intervene. Issues pertaining to questions of radiological health and safety arising under provisions of the AEA and environmental issues under the NEPA were scheduled for consideration in separate hearings. During the course of these hearings the parties entered into stipulations relating to the subject matters of the hearings.

¶10Following the hearing July 5 and 6 relating to the radiological and safety issues, Maine Yankee moved unopposed for an interim license to operate its facility for a period of 18 months at a level of 75% of full power, and such license was issued. An evidentiary hearing regarding NEPA issues was conducted on September 14 and 15, 1972, following which a license to operate the facility for a term of 40 years at full power (2440 megawatts thermal) was issued by AEC. Exceptions to this decision were filed with the Atomic Safety and Licensing Appeal Board and it on November 30, 1973, affirmed the initial decision with certain modifications not material here. Nor is it deemed significant on this appeal that the Board also noted that while the agency’s Environmental Impact Statement (EIS) complied with NEPA, the radiological stipulation entered into by the parties refined certain portions of it and that a corresponding modification should be deemed included in the statement.5

¶11From the more diffusive issues tendered in petitioners’ initial brief,6 has *1295emerged the decisive point: Whether the AEA and Commission regulations under it require the discreetly formalized weighing of residual risks and benefits by the Commission with specific reference to AEA requirements, where ultimate findings satisfying the latter requirements were separately made, the facility fully complies, and in operation will comply, with the unchallenged safety and health regulations promulgated pursuant to the Act and the risks and benefits were explicitly weighed by the Commission prior to the decision under attack in the NEPA in review of an adequate EIS.7 We answer this question in the negative and affirm, noting that the other tendered issues present problems of little substance in view of the record before us.

¶12Although we have determined that there can be no substantial question of the sufficiency of the proof to support the Commission’s decision, it will be helpful to refer briefly to the nature of the evidence before dealing with the problem of findings.

¶13In addition to oral testimony, and the stipulations hereinafter mentioned, there was before the Commission on the health and safety issues substantial documentary evidence. The latter included Maine Yankee’s license application and its summary, correspondence between Maine Yankee and the regulating staff, the Staff’s Safety Evaluation Report, a letter from the Advisory Committee on Reactor Safeguards addressed to the Chairman of the Commission discussing the safety of the facility, and Maine Yankee’s Final Safety Analysis Report, with amendments. The “radiological” stipulation entered into between the parties contained statements of numerous additional facts, conclusions and opinions dealing with health and safety which were agreed by the parties to be true for the purposes of the proceeding. The facts, but not the opinions and conclusions, contained in the documentary evidence were stipulated to be true and correct subject to the controlling effect of the stipulation. Among other agreed facts and conclusions of this stipulation, subject only to the reservation that it was not agreed “that operation of MYAPS can be conducted without endangering the health and safety of the public or will not be inimical to the health and safety of the public” were these:

“[T]hat MYAPS has been substantially completed, in conformity with the construction permit and the application, as amended, the provisions of the Atomic Energy Act of 1954, as amended, and the Rules and Regulations of the Commission that MYAPS will operate in conformity with the application, as amended, the provisions of the Atomic Energy Act of 1954, as amended, and the *1296Rules and Regulations of the Commission . . . that there is reasonable assurance that the activities sought to be authorized in this proceeding will be conducted in compliance with the regulations set forth in Title 10, Chapter 1 of the Code of Federal Regulations.”

¶14It was also agreed inter alia, that during normal operations Maine Yankee will discharge into the air gaseous releases, and into Montsweag Bay liquid effluents, containing low-level radioactive material, which will be a small fraction of the quantities presently permitted under CFR 208 and a small fraction of the radiation exposure resulting to individuals from natural background; that no adverse effects on humans or animals have ever, as yet, been demonstrated to occur as a result of radiation levels which are many times higher than those which will result from the radioactive discharges expected to be made from MYAPS during normal operation, although it has not been proven that this discharge of the radioactive materials is completely without any risk to the health and safety of the public or to the environment generally; that the Environmental Protection Agency estimates that exposure of the average American citizen to sources of radiation such as natural background nuclear power plants and other atomic energy facilities, x-rays, weapons testing, various consumer products and fallout was approximately 200 millirems per year in 1970; that two hundred millirems per year is many times the estimated exposure from MYAPS which an individual would receive from radiation expected to be discharged in normal operation if he were to spend an entire year at the site boundary; beyond that point, the exposure to any individual due to the plant would decrease rapidly as the distance from the plant increased; that there is no explicit experimental scientific evidence that exposure to radiation levels permitted under the regulations of the Atomic Energy Commission will have any adverse somatic effect whatsoever, nor has it been scientifically demonstrated that such exposure will not have adverse somatic effects; that if an individual were to spend a year at the site boundary of MYAPS, the dose he would receive approximates the radiation dosage that he would receive in one round trip in a jet airliner between New York and Los Angeles; that in considering the significance of the fact that there is no scientific evidence that radiation exposures within the limits of the AEC’s regulations are harmful, it should be noted that man-made radiation has been released into the environment for less than half a century and it may take a very long period of time for adverse effects to become apparent; that the AEC’s radiation protection standards reflect a judgment that activities to which these standards are applicable are sufficiently beneficial to warrant imposition of what the AEC regards as extremely small risks on the public; that based upon present knowledge, while the radioactive discharges from MYAPS during normal operation may involve some risk as a result of exposure to radiation, the risk involved is not substantial; that Maine *1297Yankee must conduct a continuing program of studies to ascertain the radiological effects, if any, of the operations of MYAPS in the vicinity of the plant and must take corrective action if required by the AEC; that the present design of MYAPS is expected to reduce the risks presumed to be incident at the upper limits of the exposures presently permitted by the Atomic Energy Commission by more than 90%, and that the discharges from MYAPS appear to be as low as practicably achievable taking into account the state of technology, and the economics of improvements in relation to benefits to the public health and safety and in relation to the utilization of atomic energy in the public interest.

¶15A second stipulation was entered into by the parties now before the court with respect to issues arising under NEPA. To the extent now relevant this stipulation provided for admission into evidence of the AEC’s EIS, stated that the opinions and conclusions expressed therein were those of qualified persons, and defined the only contested environmental issues as being whether the EIS complied with the requirements of Section 102(2)(c) of NEPA and adequately described appropriate alternatives as requested by Section 102(2)(D) of NEPA, and whether any additional conditions should be imposed in any license issued to Maine Yankee. It was also agreed that the prior stipulation with respect to radiological health and safety issues would be controlling in the event of any inconsistency between the two stipulations.

¶16The evidence was not insufficient because it did not go beyond present technology to further define or speculate concerning the indefinable. There is no suggestion that there were available facts of significance going beyond those reflected in the record. The Commission had before it adequate information to demonstrate not only that approval of the operating license would meet technical and public policy standards engrained in its basic regulations but to permit its consideration and determination whether special circumstances pertained to the particular facility which might render these standards inadequate to afford reasonable assurances concerning public health and safety. Absolute or perfect assurances are not required by AEA, and neither present technology nor public policy admit of such a standard. It was for the Commission to arrive at a rational, practical and principled conclusion upon the basis of reasonably available evidence.910

¶17We return to the crucial problem of findings. The petitioners initially contended here that since the AEA contemplates “that risks will be inherent in the operation of a nuclear power facility even though operation will be in full conformity with the Commission’s regulations . . . specific findings as to the acceptability of these risks [are required].” The findings of the Commission did not need to recite verbatim and by rote the facts stipulated by the parties, even though independent evidence supplemented them to permit the stipulations to be looked to in evaluating the ultimate findings made. And, considering the proceedings as a whole, there were express findings made by the Commission on each requirement and the related acceptability of the project.11*1298Hence it is understandable that petitioners’ attack upon the Commission’s findings has been narrowed to assert only that “the petitioners’ final position before this court is that the ‘reasonable assurance’ and ‘not inimical’ determinations were not made in the proper manner.”

¶18Commission regulations, interpreting and applying AEA, provide among other things, that an operating license may be issued by the Commission upon finding that there is reasonable assurance that the activities authorized by the operating license can be conducted without endangering the health and safety, of the public, and that the issuance of the license will not be inimical to the common defense and security or to the health and safety of the public.12 During oral argument petitioners contended that such findings had to be made “independent of the Commission’s health and safety regulations” 13 and, inferentially, independent of the consideration of NEPA issues.

¶19*1299The Atomic Energy Act was passed years before broader environmental concerns prompted enactment of the Environmental Protection Policy Act. Yet many of those same concerns permeated provisions of the first-mentioned legislation and the regulations promulgated in accordance with its mandate. To say that these must be regarded independently of the constantly increasing consciousness of environmental risks reflected in proceedings with reference to NEPA, would make for neither practicality nor sense. Nor can AEA requirements be viewed separate and apart from NEPA considerations.

¶20Especially in view of NEPA, it also is unreasonable to suppose that risks are automatically acceptable, and may be imposed upon the public by virtue of AEA, merely because operation of a facility will conform to the Commission’s basic health and safety standards. The weighing of risks against benefits in view of the circumstances of particular projects is required by NEPA in view of AEA. The two statutes and the regulations promulgated under each must be viewed in para materia. A basic flaw in petitioners’ contentions is that while they recognize the importation into AEA and its regulations of the ad hoc risk-benefit weighing requirements of NEPA beyond the Commission’s basic regulations, they would demand that the process be accomplished independently of NEPA despite the clear applicability of the latter.

¶21Apart from the requirements of NEPA or similar ones already implicit under AEA, it would be pointless, and a waste of agency resources, to require the AEC to reapply efforts that have already gone into its basic health and safety regulations, in individual licensing proceeding, in the absence of some evidence that a particular facility presents risks outside the parameters of the original rule making. And in evaluating the sufficiency of agency determinations in particular cases it would be stultifying formalism to disregard the whole record and test AEA compliance by only the evidence received at so-called “health and safety” hearings; or NEPA compliance only on the basis of so-called “environmental” hearings.

¶22The Licensing Board made the “reasonable assurance” and “not inimical” findings, as described by the Appeal Board on “ . . . the dual basis that the evidence demonstrated that the reactor would comply with applicable Commission regulations and that, in this instance, the Joint Intervenors [petitioners] had not shown that the regulations were inadequate to protect the public health and safety.” In affirming these findings the Appeal Board stated: “ . . . [W]e can and do hold that the demonstration of compliance with the regulations entitled the Board below to find adequate protection to the health and safety of the public or, as expressed in Section 50.57(a)(3)(i), reasonable assurances that the facility will be operated without endangering such health and safety. The stipulated risks could be dismissed in making that finding on the basis that there has been an implicit Commission judgment that these risks are sufficiently low as not to represent a meaningful health and safety threat.”

¶23Looking wholly to such language, petitioners interpret the Commission’s view as being that any facility meeting the requirements of the rules may be licensed because, a fortiori, what meets these requirements automatically satisfies the “reasonable assurance” and “not inimical” tests. We do not so consider it, but rather that in the absence of some indication or showing on a case-by-case basis to the contrary, and subject to the weighing of risks — benefits under NEPA, it may be found that facilities complying with the rule do so. Under these circumstances, compliance with the mass of health and safety regulations with which the reactor conforms has a significance of its own. As the Supreme Court noted, the Atomic Energy Act “clearly contemplates that the Commission shall by regulation set forth what the public safety requires as a prerequisite to the issuance of any license or *1300permit under the Act.” Power Reactor Development Co. v. Industrial Union, 367 U.S. 396, 404, 81 S.Ct. 1529, 1533, 6 L.Ed.2d 924 (1961). Yet we do not agree with respondents’ suggestion that petitioners’ attack is solely against Commission regulations and that any remedy is necessarily limited to rule-making or amending procedures. Given the intendments that properly can be entertained as a result of the rule-making, conclusions of the agency may be sustained without independent and complete reevaluations of the risks anew as this and each new case comes along. Having failed to resort to procedural avenues to test the radiological safety standards incorporated into the regulations, petitioners were foreclosed from attacking them here,14 although not from showing, if they could, that whatever residual risks there were within regulation parameters should yet be deemed unacceptable in view of the absence of justification for their being taken in view of special circumstances. In the absence of such showing, the public policy implanted in the regulations, findings making all required AEA determinations in primary reliance upon compliance with the regulations, but also meeting the stringent requirements of NEPA, were sufficient.

¶24Perhaps the Licensing Board has excessively divided for mere management purposes “radiological” and “environmental phases” of licensing proceedings into a semblance of substantive separation; but the full record discloses no serious dichotomy nor insufficiency. As the Appeal Board stated:

“[T]he NEPA review itself compels a weighing of the residual risks against the benefits. In this context, a dispute as to whether another statute (The Atomic Energy Act) also triggers that weighing process is purely academic. The real question turns not upon a choice of statutory labels but upon the requisite weighing of the residual risks at some point of the licensing process.”

¶25The Appeal Board, citing NEPA regulations, recognized that “a weighing of the residual risks against the benefits” of the reactor is appropriate under NEPA. The Appeal Board performed that very process, factoring the stipulated residual radiation risks into the environmental analysis and concluding that they would not tip the balance against operation of the plant. It concluded that the Final Environmental statement (the facts recited which were stipulated to be true as noted):

“ . . . adequately documents an established need for power in the area to be served by this facility. Given the dimensions of this need, it seemed manifest that the benefits that would inure from the operation of the facility outweighed the concern that, e. g., the extremely small increment to natural background radiation to be contributed by plant operation might at some future time be found to have greater environmental impact than now anticipated. [Footnote omitted.]”

¶26In sum, the Commission found with abundant support in the record, that there was need for power to be generated by the project and that, in view of the dimensions of that need, the benefits outweighed the possibility that the small increment to background radiation, clearly acceptable under existing conditions, might at some future time be found to have greater environmental impact than the presently available studies indicate will be the case. If such speculative possibilities, which might run also in the opposite direction, were effective against the judgment of the agency to require a remand under the circumstances of this case, this would seem in ultimate effect to mandate rejection of the project itself; there is no indication that either possibility could be rendered other than speculative during the foreseeable future. And if this objection were so acted upon, consistency would require that all similar projects would have to be disapproved until, if ever, the ultimate, *1301although likely insubstantial effects, could be nicely weighed.15

¶27We consider as without merit petitioners’ additional or supplemental contention that the Commission’s findings do not comport with the “principled” administrative decision making which this court has insisted upon.16 Petitioners argue that the Commission was required to deal with the risks explicitly by way of identification, assessment of significance, and explanation of why it was issuing the license in the face of such risks. Aside from the fact that the actual balancing and weighing of risk and benefits was dealt with principally in findings directed to the environmental issues this is what the Commission through its agencies did, and did reasonably well in satisfaction of procedural as well as substantive requirements of both Acts. Neither requires duplicative findings any more than it does duplicative hearings.17

¶28The specific complaint is that there was no discussion in the EIS or by the Licensing Board of the issuance of an operating license for less than the maximum of forty years permitted by the law or for less than full rated power as alternatives, to the full-power, full-term licensing approved by the Commission. To the extent our intervening decisions of Union of Concerned Scientists v. Atomic Energy Commission, 163 U.S.App.D.C. 64, 499 F.2d 1069 (1974), cf. Nader v. Nuclear Regulatory Commission, 168 U.S.App.D.C. 255, 513 F.2d 1045 (1975), has lent color to such arguments, the reasoning of the Appeal Board constituted a principled decision on the point which should prevail under the circumstances of the case.18

¶29*1302The petition for review is denied.

¶58BAZELON, Chief Judge

¶59(concurring):

¶60I am in general agreement with the result reached by the Court, and concur in much of its opinion. But I am anxious that we not endorse the notion that a generating station’s conformance to pre-existing AEC (now NRC) rules and regulations is a sufficient basis for findings of acceptability as to “health and safety” issues in the absence of evidence of special risk or harm.1 Were I not convinced that the instant findings were properly grounded in other aspects of the proceeding, I could not approve application of the rule. Similarly, I am troubled by the Court’s suggestion that less than full-term licensing need not be considered here because an incorporated license condition requires the licensee to take corrective steps if “certain significant and adverse effects are shown.”2 In the first instance, licenses may be routinely granted without independent examination of the risk to “health and safety” caused by releasing rule-permitted amounts of radiation, even where specific circumstances ought raise warning flags. Likewise, if challengers must *1303produce staggering quantums of evidence merely to raise the question of license suspension, ongoing activities will very rarely be re-examined. My specific concern is that public interest groups and others opposed to operation may not be able to finance a sufficient effort to uncover risks, harms or “significant and adverse effects.” As I recently said,

. to require of impecunious associations or private citizens a quantum of evidence beyond their financial means to marshal, as prerequisite to examining the rule or its controlling effect, is to blunt the tools with which bad or outdated rules are discarded or limited.

¶61American Public Power Association v. FPC, 173 U.S.App.D.C. -, 522 F.2d 142 (1975) (Bazelon, C. J., concurring).

¶62In the instant case, the Court correctly notes that prejudice does not result from the somewhat wooden application of licensing regulations, because there was a full ventilation of known risks and benefits in the environmental phase of the hearings. There is a distinction between a testing of the “health and safety” risks in releasing a rule-permitted amount of radiation, and a weighing and balancing of those risks and others which may exist in a particular facility against the benefits of operating such a plant. Nonetheless, I am satisfied that in conducting such a risk-benefit analysis, the agency did assess residual radiological effects, and found them not “to endanger” or be “inimical to” public health and safety.3 Thus, we are not faced with a failure to make the requisite findings, but with the argument that they were not made in the “proper” portion of the inquiry. The chief value of procedural strictness is that it maximizes critical examination of vital concerns; however, I fail to see how any lapse of formalism here weakened the validity of the findings rendered, or prejudiced petitioners in any way.

¶63This case raises for me several lurking problems of untested technology and protection of the public against risk. Here that concern is presented in a highly rarefied form: there is essentially no dispute over the amount of radiation to be released to the environment by the Maine Yankee Atomic Power Station. Nor is there pitched battle over the low risk factor presently assigned to the release of such amounts. Science believes that it can quantify and understand the danger posed to organisms and the environment by those undisputed levels. The risk at issue herein is the risk that such present scientific knowledge is simply wrong or blind in such degree that after the passage of time and further study, the danger to society will be seen as greater than expected by orders of magnitude. Said differently, the twin risks are that either science is ignorant of entire categories of harm, or that rule-permitted quantities of radiation do the type of damage they are thought to, but to a far greater extent, or in a cumulative fashion with other factors so as to render difference in degree a difference in kind. These risks are hardest to calculate because they surpass the problems posed by mere ignorance of a new technology. The scientists and decision-makers are asked to assess and make allowance for the probabilities that present scientific understanding is itself terribly wrong.

¶64Having posed such complex and conceptual questions, it would be foolhardy to proffer ironclad solutions. Petitioners assert that among the alternatives which NEPA bids the licensing agency consider are license periods shorter than the maximum statutory period of forty years.4 While the statute does not mandate forty year license periods it gives the Commission the power to so mandate.5*1304Without foreclosing the argument that in extreme or emergency circumstances (with attendant risks even higher than those now understood to obtain in the nuclear field) such an approach is required, I cannot disagree with the Court. Nor can I say that the balance struck by Congress in legislating agency authority to license for that period has been repealed sub silentio by NEPA.

¶65A far better course, perhaps, would be to utilize procedures for license suspension6 upon a showing of reason to believe that the risk of harm caused by operation of the plant exceeds those expected levels upon which the license was premised. Similarly, suspension would be an avenue available where changes in scientific perception would later regard as deleterious levels of nuclear effluent or radiation release now thought to be harmless. Lines of inquiry and challenge would thus be kept open. My specific concern about imposing an unreasonable standard for raising the question of looking beyond the rule is particularly salient in the area of license suspensions. It is more difficult by far to shut down an operating facility, which may involve cutbacks of service to present consumers, than to block or modify a proposed facility-

¶66If society is to rely upon the suspension mechanism for protection against the risk of gross errors in scientific understanding, it must not only insure that the threshold for inquiry is reasonable, but also assist the objectors to state their case. For example, the Federal Trade Commission Improvement Act of 1974,7 expressly grants to the FTC authority to reimburse intervenors’ expenses in the interest that rulemaking serve the broadest possible public interest. An alternative to such direct public funding might be a university consortium, in which professors and students offset the financial burdens of fact-gathering and agency appearances by conducting public seminars or publishing their research.