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Union of Concerned Scientists v. NRC

Citation: 19 ELR 21353
No. No. 88-1561, 880 F.2d 552/(D.C. Cir., 07/25/1989) Petition denied

The court holds that the Nuclear Regulatory Commission's (NRC's) revised backfit rule, which governs new or modified safety requirements on previously licensed nuclear power plants, is facially valid. The NRC has specifically responded to the weaknesses of the 1985 rule by clarifying the ambiguities identified by the court in a prior proceeding. The NRC's reasoning supports the revised rule and is entitled to a presumption of administrative regularity. The revised rule complies with the Atomic Energy Act and the court's earlier decision by providing that economic costs may not be considered when action is necessary to ensure adequate protection of public health and safety or when NRC defines the adequate protection standard. The mere possibility of future misapplication of the rule is insufficient to require facial rejection of the rule. The revised rule is not as a matter of law unlawfully biased against backfitting. Not every conceivable cost or benefit is intended to be identified by the rule, and the rule explicitly states that the applicable statutory factors are neither mandatory nor exhaustive. Internal staff procedural guidelines regarding the revised backfit rule are not reviewable, do not affect the public right to participate in a proceeding to impose a backfit, establish no substantive rights or obligations, and are not legally enforceable. The cost-benefit analysis performed on the backfit rule is not arbitrary and capricious, and the rule does not on its face exclude the benefits associated with a proposed backfit. Nor is the rule categorically based on a faulty methodology, known as "PRA," involving the use of estimated probabilities of certain events and their consequences to quantify the risks of a given activity. The rule does not mention PRA or mandate unqualified reliance on the technique. The use of cost-benefit analysis is not arbitrary and capricious because it involves the assignment of monetary values to intangible benefits. Rather, cost-benefit analysis, when used properly, is an accepted regulatory tool.

[Previous decisions in this litigation are published at 17 ELR 21233 and 18 ELR 20573.]

Counsel for Petitioner
Diane Curran
Harmon & Wilmot
Third Fl., 1029 Vermont Ave. NW, Washington DC 20005
(202) 783-9100

Counsel for Respondents
Steven F. Crockett
U.S. Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20006
(202) 492-7000

Peter R. Steenland Jr., Chief Attorney; Jacques B. Gelin, Sarah
P. Robinson
Appellate Section, Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Before: MIKVA, SILBERMAN, and D. H. GINSBURG, Circuit Judges.