Limerick Ecology Action, Inc. v. United States Nuclear Regulatory Commission

Nos. 85-3431 et al. (869 F.2d 719) (3d Cir. February 28, 1989)

Counsel for Petitioner
Charles W. Elliott
Brose & Poswistilo
1101 Building, Easton PA 18042
(215) 258-2374

Counsel for Respondents
G. Paul Bollwerk III, Michael B. Blume
Office of General Counsel
U.S. Nuclear Regulatory Commission, 1717 H St. NW, Washington DC 20006
(202) 492-7000

Peter R. Steenland Jr., Vicki L. Plant, Arthur E. Gowran, Jacques B. Gelin
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

[19 ELR 20907]

ELR Digest

The court holds that that the Nuclear Regulatory Commission's (NRC's) finding of adequate protection of public health and safety under the Atomic Energy Act (AEA) does not preclude the need for further consideration under the National Environmental Policy Act (NEPA). A local citizens' group and an inmate of a nearby prison challenge the NRC's decision to grant a full power license to the Philadelphia Electric Company to operate Unit 1 of the Limerick Nuclear Power Generating Station in Limerick, Pennsylvania. The court first holds that the NRC's finding of adequate protection under the AEA does not preclude NEPA review. The language of NEPA, which requires agencies to comply "to the fullest extent possible," indicates that Congress did not intend that NEPA review be precluded by the AEA. There is no language in the AEA to indicate that the AEA precludes NEPA review. The legislative history of the phrase "to the fullest extent possible" indicates that Congress intended that NEPA not be limited by other statutes by implication. Courts have repeatedly held that compliance with NEPA is required unless specifically excluded by statute or existing law makes compliance impossible.

Turning to the three specific NEPA contentions raised by the citizens' group, the court first holds that the NRC failed to adequately consider the possibility of severe accident mitigation design alternatives (SAMDAs). SAMDAs are possible plant design modifications that are intended to lessen the severity of an accident at a nuclear power plant. The NRC's Appeal Board upheld the Licensing Board's decision not to consider SAMDAs on the grounds that an NRC policy statement concluding that existing designs were safe enough to exclude consideration of alternatives controlled its decision, that NEPA does not require more than the safety provisions of the AEA, that ongoing studies were still considering designalternatives, and that the final environmental statement's (FES's) consideration of severe accidents was sufficient. The NRC refused review, thus affirming the Licensing Board's decision. The court holds that the NRC's final policy statement is just that, a policy statement. It thus does not have the force of a rulemaking and is not a proper method in which to exclude consideration of mitigation alternatives. The court observes that the conclusion in the policy statement, that alternate designs need not be considered, must be supported just as if the policy statement did not exist. The FES failed to adequately consider SAMDAs, and thus the NRC did not take the requisite hard look at SAMDAs. A failure to consider SAMDAs in the Limerick proceeding could affect the final decision, and thus the NRC abused its discretion is declining to consider them. Further, the underlying issue of SAMDAs may not be treated as a generic issue and thus summary treatment of SAMDAs was inappropriate. The court declines to find that the risks of severe accidents are remote and speculative. Neither the Appeal Board nor the NRC itself excluded consideration of design alternatives on the basis of a finding that such risks are remote and speculative, and the court is unwilling to intrude into the NRC's technical expertise to do so.

The court holds that the NRC did not act arbitrarily or capriciously in refusing to consider sabotage risk. The court holds that the NRC was not required to prepare a worst case analysis on sabatoge risk, since the NRC's NEPA regulations do not include the worst case requirement of the Council on Environmental Quality guidelines. The court holds that the NRC properly determined that the citizens' group's sabotage contention was unsupported. NRC reasonably concluded that current risk assessment techniques could not provide a meaningful basis upon which to measure sabotage risks. The court holds that the NRC did not act arbitrarily or capriciously in refusing to consider in its FES industrial or economic losses arising after the first year following an accident. The level of uncertainty involved in estimating economic consequences more than a year after a severe nuclear accident is very high. The court thus cannot conclude that there was no rational basis for the NRC's decision to terminate its review of economic effects after one year.

The court next turns to the AEA challenge brought by an inmate at a prison located eight miles from the Limerick reactor. The evacuation plan for the prison in the event of an accident at the reactor calls for a lock-down of inmates in their cells followed by an evacuation if necessary. The evacuation would require the participation of off-duty staff, who would be contacted on commercial telephone lines, and calls for the use of commercial buses to transport inmates away from the area. The court holds that the NRC did not abuse its discretion in refusing to consider the inmates' claims that the correction officers' union should have been required to approve the plan and that the plan failed to address the likelihood of panic among guards and inmates. The court holds, however, that the NRC should have considered whether training was required for civilian bus drivers. The court holds that the NRC has adopted an estimate of the time required for an evacuation of the prisoners, and this estimate of eight to ten hours is supported by the record. The court holds that the NRC reasonably concluded that there are adequate assurances that the system for notification of off-duty staff will function successfully.

One judge dissents from the court's holding that the NRC reasonably excluded consideration of the risk of sabotage in assessing the environmental impact of the plant. This judge observes that the NRC may not ignore a risk simply because it is unquantifiable. Further, the NRC has not presented any evidence that there is no method by which it can assess the risk of sabotage.

The full text of this opinion is available from ELR (45 pp. $ 7.00, ELR Order No. C-1360).