Hodder v. Nuclear Regulatory Commission

No. 76-1709 (D.C. Cir. December 26, 1978)

The court affirms two Nuclear Regulatory Commission (NRC) decisions authorizing the construction of a nuclear power plant at Hutchinson Island, Florida. Petitioners are mistaken in their contention that the island itself constitutes a "population center" within the meaning of NRC's regulations because its populace is dispersed rather than concentrated. The claim that NRC violated the National Environmental Policy Act (NEPA) by failing to consider the effects of a major nuclear accident is likewise erroneous. Previous cases have established that the Commission need not consider the environmental impacts of "Class 9" accidents because of the extreme improbability of their occurence. The court also rules that the consideration given possible alternative sites by NRC was adequate to fulfill NEPA's requirements.

Counsel for Petitioners
Martin H. Hodder
1131 NE 86th St., Miami FL 33138
(305) 751-8706

Counsel for Respondents
James L. Kelly, Acting General Counsel; Stephen F. Eilperin, Solicitor; Stephen S. Ostrach, Mark E. Chopko
Office of the General Counsel
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-1465

Peter R. Steenland, George R. Hyde, III
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-6762

Counsel for Intervenor Florida Power & Light Co.
Harold F. Reis
Lowenstein, Newman, Reis, Axelrad & Toll
1025 Connecticut Ave. NW, Washington DC 20036
(202) 862-8400

Norman Coll
Steel, Hector & Davis
Southeast First National Bank Bldg., Miami FL 33131
(305) 577-2800

[9 ELR 20058]

Per Curiam:

Judgment

These causes came on to be heard on petitions for review of orders of the Nuclear Regulatory Commission and were argued by counsel. On consideration of the foregoing, it is

ORDERED AND ADJUDGED by this court, that the orders of the Nuclear Regulatory Commission under review herein are hereby affirmed, for the reasons set forth in the attached memorandum.

Memorandum

Petitioners seek review of two decisions of the Nuclear Regulatory Commission authorizing intervenor Florida Power and Light Company to construct an 850 megawatt nuclear power reactor at Hutchinson Island, Florida. In No. 76-1709, petitioners challenge an NRC Atomic Safety and Licensing Appeal Board decision affirming a decision of the Atomic Safety and Licensing Board permitting limited construction work at the site over petitioners' objections that population density and distribution were not in accordance with the NRC's own regulations, and that the NRC's failure to examine the environmental effects of major nuclear accidents constituted a violation of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1976). In No. 78-1149, challenge is brought to an appeal board decision that the NRC's examination and consideration of alternative sites for the proposed project complied with NEPA.

Petitioners' claim on the regulations issue is that Hutchinson Island itself should be considered a "population center" within the meaning of 10 CFR part 100. We disagree. The notion of a population "center" implies some centralized grouping or concentration of residents, not the type of dispersed populace as is present on Hutchinson Island. See New England Coalition on Nuclear Pollution v. United States Nuclear Regulatory Commission, Nos. 77-1219, et al., slip op. at 7 [8 ELR 20707] (1st Cir., Aug. 22, 1978).

Petitioners' claim on the accidents issue has been foreclosed by previous decisions in this court. It is well settled that, because of the extreme improbability of their occurrence, the NRC need not consider the environmental effects of so-called "Class 9" accidents. Carolina Environmental Study Group v. United States, 510 F.2d 796, 798-800 [5 ELR 20181, 20182] (D.C. Cir. 1975). It is true that Carolina was decided prior to the publication in final draft of the Reactor Safety Study, WASH-1400 (1975), that found a probability of Class 9 accidents significantly greater than had been indicated by the previous study, WASH-740 (1957). Carolina, however, has been reaffirmed by decisions of this court subsequent to the publication of the 1975 study. Lloyd Harbor Study Group, Inc. v. NRC, No. 73-2266 (D.C. Cir., Nov. 29, 1978); Aeschliman v. NRC, 547 F.2d 622, 632 n. 21 [6 ELR 20599, 20604 n.21] (D.C. Cir. 1976), rev'd on other grounds sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 [8 ELR 20288] (1978). These decisions accord with the reasoned and consistent view of the NRC. Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831 (1973).

On remand from a previous decision of the appeal board, ALAB-355, 3 NRC 830 (June 20, 1976), the NRC's staff conducted an investigation of six actual alternative sites, including Hutchinson Island. The appeal board concluded that this analysis gave adequate consideration to possible alternative sites. Florida Light and Power Co. (St. Lucie Nuclear Power Project, Unit No. 2), 5 NRC 1038, 1050 (1977). We affirm this conclusion, finding it supported by substantial evidence in the record taken as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).