Massachusetts v. United States
Citation: 19 ELR 20168
No. Nos. 87-2032 et al., 856 F.2d 378/(1st Cir., 09/06/1988)
The court holds that the Nuclear Regulatory Commission's (NRC's) regulation allowing the agency, in evaluating a utility emergency plan, to presume that in an emergency state and local officials will attempt to protect the public and will generally follow the utility plan, is not arbitrary or capricious. The regulation provides standards by which the NRC evaluates a radiological emergency plan that is prepared by the utility alone because local governments have refused to participate in the planning. The court first holds that the NRC's realm be accorded judicial deference, since offsite emergency planning is within the NRC's realm of expertise and the issue is not a pure question of statutory construction. The court next holds that the two presumptions in the regulation, together known as the "realism doctrine," are not arbitrary or capricious. It is not unreasonable for the NRC to predict that state and local governments, despite their opposition to a particular plant location, would follow the only existing emergency plan in an actual emergency. Agencies are permitted to adopt and apply presumptions if the proven facts and the inferred facts are rationally related. Moreover, the presumption that the state and local authorities would follow the utility plan is rebuttable by the good faith and timely proffer of an adequate alternate plan. To the extent that the NRC may have changed its position with respect to the role of states and local governments in emergency planning, the change was not irrational. The NRC also adequately complied with the notice and comment procedures of § 553 of the Administrative Procedure Act by mentioning the realism doctrine in the proposed rulemaking. The court holds that the rule does not violate the Atomic Energy Act by allowing the NRC to consider a utility's costs in determining whether a plan provides adequate protection to the public.
Counsel for Petitioner
James M. Shannon, Attorney General; Stephen A. Jonas, Frank W. Ostrander, John Traficonte, Ass't Attorneys General
One Ashburn Pl., 20th Fl., Boston MA 02108
Counsel for Respondents
William C. Parler, General Counsel
Office of the General Counsel
U.S. Nuclear Regulatory Commission
Mail Stop 15B18-OWFH, Washington DC 20555
Anne S. Almy, Ass't Chief
Appellate Section, Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
Before CAMPBELL, Chief Judge,BREYER, Circuit Judge, and ACOSTA,* District Judge.