San Luis Obispo Mothers for Peace v. United States Nuclear Regulatory Commission

Nos. 84-1410 et al. (789 F.2d 26) (D.C. Cir. April 25, 1986)

ELR Digest

On rehearing en banc, the court holds that the Nuclear Regulaory Commission (NRC) is not required to hold a hearing on the poential effects of an earthquake on emergency response to a simultaneous but independently caused radiological accident at the Diablo Canyon Nuclear Power Plant, and that a petitioner must make a prior and independent showing of agency wrongdoing before a court will review transcripts of a closed NRC meeting. Petitioners, representing individuals who live or work near the plant, have been active in NRC licensing proceedings since a fault was discovered within three miles of the site. NRC, which suspended the plant's low power test license in 1981 after finding various design errors, progressively reinstated the low power license in 1983 and 1984 based on its finding that the design deficiencies had been resolved. In August 1984, NRC approved the issuance of a full power license for the plant. Petitioners appealed both the low and full power orders to this court, which upheld NRC's licensing actions. Deukmejian v. Nuclear Regulatory Commission, 15 ELR 20822 (D.C. Cir. 1984). The panel held that NRC did not err by failing to consider the effects of earthquakes on emergency response at the plant, and denied petitioner's motion to supplement the administrative record with the transcripts of a closed NRC meeting. The full court later vacated a portion of the panel's decision and granted a rehearing.

The court first holds that NRC's decision to exclude the effects of an earthquake on emergency responses did not deprive petitioners of their right to a hearing under Atomic Energy Act (AEA) § 189(a). To show that NRC impermissibly refused a hearing, petitioners must show, under the court's holding in Union of Concerned Scientists v. United States Nuclear Regulatory Commission, 14 ELR 20639, that NRC rules or regulations required it to consider the effects of earthquakes in the licensing process. The court holds that NRC's regulations do not require consideration of earthquakes. NRC has consistently interpreted the only regulation relevant to this case, its emergency planning regulation enacted following the Three Mile Island accident, not to require specific consideration of earthquake effects. NRC's interpretation is also consistent with the regulatory language, which requires only that the NRC determine "that there is reasonable assurance that adequate protective measures" will be taken in emergency situations. This interpretation is not undermined by an NRC staff report referenced in the regulation. Statements in the report, prepared to assist state and local governments and plant operators in developing emergency response plans, that these response plans should account for "local offsite conditions" and "potential impediments . . . to evacuation routes" do not require consideration of an event as unlikely as an earthquake that occurs simultaneously to an independently caused radiological accident. Nor does a reference to earthquakes in the report's appendix require consideration of this possibility, since the example refers to an earthquake that causes a radiological accident, which was the subject of extensive hearings, not an earthquake that complicates emergency response. Moreover, the report is a staff document intended to provide guidance to parties preparing emergencyresponse plans and thus cannot supersede the regulation itself.

The court holds that NRC's interpretation does not conflict with prior applications of its regulations. Although two 1980 staff documents called for emergency plans to consider the potential complicating effects of an earthquake, these documents were written before NRC had interpreted its emergency planning regulation. NRC first interpreted this regulation in 1981 during the licensing process for the San Onofre plant when it decided not to require consideration of earthquakes at that plant and has followed this interpretation ever since. The court finds disingenuous petitioners' claims that NRC's position was contrary to its own staff's longstanding practice. The court also holds the emergency planning regulation, as interpreted by NRC, is not inconsistent with the AEA's stated purpose of protecting the health and safety of the public.

The court holds that NRC's refusal to require response plans to consider earthquakes was not arbitrary or capricious. The court initially rejects petitioners' claim that the danger of an earthquake occurring simultaneously to a radiological emergency is so great that it must be considered. The court next establishes that this case concerns only the chance that an earthquake will occur simultaneously to an independently caused radiological emergency. NRC considered the possibility that an earthquake might cause such an emergency and rationally determined that Diablo Canyon's seismic design was adequate. The court then holds that the NRC's determination that the probability of earthquakes of a sufficient size to disrupt emergency response is so low that specific consideration is not warranted is conclusively supported by the record. The probability that any size earthquake will occur within a week of an independent radiological emergency is one in 6.5 million. The probability decreases to one in 35.75 million when a larger earthquake that might more conceivably interfere with emergency response is considered.

The court next rejects petitioners' argument that NRC's decision not to consider earthquakes was arbitrary and capricious given the agency's interpretation of its regulations to require consideration of other natural phenomenon. Petitioners have not established that the NRC considered any highly infrequent natural phenomena in its review of the Diablo Canyon emergency plans. NRC's decision to consider the effects of a volcanic eruption at Mt. St. Helens on emergency planning at the nearby Trojan nuclear plant is distinguishable from the Diablo Canyon case, where there is no evidence that an earthquake has occurred in the recent past that would have posed any threat to emergency responses. NRC's decision to consider such frequently occurring natural phenomena as rain and fog, but not to consider the highly unlikely possibility of an earthquake, was not arbitrary and capricious. The court then rejects petitioners' argument that the NRC's observation that the emergency plan already in place is flexible enough to aid in dealing with earthquakes was irrational. NRC cited the flexibility of the emergency plan only to bolster its conclusion that consideration of earthquakes is not warranted. Further, NRC's observations support its decision not to consider earthquakes and are consistent with the emergency planning regulation.

Finally, the court rejects petitioners' request to supplement the record with transcripts of a closed NRC meeting. Petitioners have failed to make the required independent showing of bad faith or improper behavior by the agency.

One judge, while concurring in the court's decision to reject petitioners' request for review of the NRC transcripts, does not accept the court's ruling that a petitioner asking a court to review transcripts of closed agency meetings must always make a prior and independent showing of agency wrongdoing before the court will examine the transcripts. The judge believes that a petitioner must make an allegation, strongly supported by the record, affidavits, and specific references to the transcripts, that the agency has acted in bad faith or with an improper purpose. If the court decides to review the transcripts, it can devise in camera procedures to protect the sanctity of the administrative process.

A four-judge dissent would hold that the NRC's decision was arbitrary and capricious because it is inconsistent with the purposes of the emergency planning regulations. The dissent would hold that these regulations were based on the assumption that an accident can occur and were designed to elevate emergency planning to the level of siting and design in protecting the public. The NRC acted inconsistently with these regulations by excluding consideration of earthquakes solely on the ground that the plant's design makes such accidents highly unlikely and by factoring in the probability of a radiological accident when evaluating whether earthquakes occur frequently enough to merit consideration. The emergency planning regulations assume that an accident has already occurred. Thus, the relevent figure is simply the probability of an earthquake, not the probability of an earthquake multiplied by the probability of an accident.

The dissent finds further evidence of the arbitrariness of the NRC's interpretation in the agency's reasons for excluding consideration of earthquakes in emergency planning. NRC's first rationale that the probability of an earthquake causing an accident is too small to merit consideration was flawed because the agency erroneously excluded smaller earthquakes from consideration as accident initiators. NRC's second conclusion that the simultaneous occurrence of a radiological release and an unrelated earthquake does not merit consideration is also flawed because NRC failed to rationally define or apply its standard for determining which natural phenomena meets its "frequently occurring" standard. Finally, NRC erred in relying on the flexibility of the emergency plan. Its assumption that the disruption caused by earthquakes is similar to that caused by other natural phenomena was not supported by any evidence on the offsite consequences of an earthquake.

The full text of this opinion is available from ELR (74 pp. $9.50, ELR Order No. C-1355).

Counsel for Petitioners
Edwin F. Lowry, Dian M. Grueneich
Grueneich & Lowry
345 Franklin St., San Francisco CA 94102
(415) 861-6930

Counsel for Respondents
William H. Briggs Jr.
Nuclear Regulatory Commission
1717 H. St. NW, Washington DC 20006
(202) 492-7000

Richard K. Willard
Civil Division
Department of Justice, Washington DC 20530
(202) 633-3333

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]