McGOWAN, Circuit Judge:
The Union of Concerned Scientists (UCS) seeks review of an order of the Atomic Energy Commission (AEC) affirming the Initial Decision of an Atomic Safety and Licensing Board (ASLB) to authorize the issuance of an operating license to intervenor Boston Edison Company (Edison) for its Pilgrim Nuclear Power Station (Pilgrim). UCS assigns ten separate errors, which we deal with sequentially after an introductory section stating so much of the history of this case as is necessary to an understanding of the issues raised. For the reasons hereinafter set forth, we affirm.
The Atomic Energy Act of 1954, as amended, provides that nuclear facilities must be the subject initially of a construction permit and thereafter of an operating license. 42 U.S.C. § 2235. Edison sought permission to build Pilgrim at Plymouth, Massachusetts in 1967, and its application was reviewed by the AEC staff and the Advisory Committee on Reactor Safeguards (ACRS).
In January, 1970, Edison initiated the process of obtaining an operating license by filing an application therefor, together with its Final Safety Analysis Report (FSAR).
In April, 1971, after more than a year of administrative processing, the AEC noticed its consideration of Edison's operating license application and the opportunity for affected persons to be heard. 36 F.R. 7696. The Commission received a number of requests for a hearing, including the joint petition of UCS and the Sierra Club, and accordingly scheduled a hearing before a designated ASLB at Plymouth, Massachusetts.
Pursuant to the regulation governing intervention, UCS filed its "detailed specifications" of matters it wished to have considered at the hearing, to which both Edison and the Staff filed answers.
Meanwhile, on November 26, 1971, the Commission announced a rule making proceeding to begin in January, 1972 on the question of amending or making permanent the ECCS Interim Acceptance Criteria (IAC), a policy statement adopted without a hearing the previous June 25th.
An additional hearing on environmental matters, necessitated by this court's decision in Calvert Cliffs Coordinating Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971), and the promulgation of new regulations intended to comply with that decision, 36 F.R. 18071
The most novel of UCS's many exceptions is its threshold disagreement with the Commission over the proper role of an ASLB. UCS has contended since the beginning of the hearing that the ASLB must, despite the absence of controversy, review de novo and independently evaluate the evidence to determine whether the issuance of an operating license is consistent with "the health and safety of the public."
As UCS acknowledges, the substance of its argument goes to, and is inconsistent with, the validity of this rule. There is no merit, therefore, to Edison's suggestion that the challenge to the rule is raised for the first time in this court. We think the rule a valid one, however, and turn to the framework within which it operates, and within which it must be evaluated, in order to show why.
The two-step procedure by which nuclear facilities are successively licensed for construction and for operation originated in the Atomic Energy Act of 1954.
The Joint Committee on Atomic Energy initiated a study of Commission procedures in 1956.
By 1960 it had become apparent to both the AEC and the Joint Committee that the agency's regulatory organization and procedures were in need of further refinement to meet problems associated with the combination of regulatory and promotional functions and the increasing workload arising from an accelerating number of license applications. Accordingly, each body conducted its own study and made recommendations,
The Committee staff had recommended a number of changes in the reactor licensing process, including the creation of an "internal board with final licensing authority (not subject to the Commission review)."
Congress acted in 1962 to relieve the burdens on the Commission by authorizing it
42 U.S.C. § 2241(a).
As conceived by Congress, the ASLB was to be "a flexible experiment in new administrative techniques," enabling the Commission to draw on talents from outside the government and to delegate any of "a broad range of regulatory functions" while reserving to itself final authority in all matters. An ASLB was intended to "follow procedures appropriate to the resolutions of complicated technical and scientific questions, keeping in mind the necessity for preserving a suitable record for review," but to emphasize informal procedures as much as possible. S.Rep.No. 1677, 87th Cong., 2d Sess. 2-7 (1962) (Joint Committee on Atomic Energy).
Consistent with this emphasis on reforming licensing procedures to reconcile considerations of practical administration with those of safety, the 1962 amendments dropped the mandatory two-hearing requirement that Congress had imposed in 1957. Section 189(a) of the Act, 42 U.S.C. § 2239(a), was amended to make a hearing mandatory only on the application for issuance of a construction permit.
As the Joint Committee explained:
The Joint Committee determined that elimination of the second hearing requirement would not compromise the public interest in safety for two reasons: there would still be a mandatory hearing "at the critical point in reactor licensing—the construction permit stage —where the suitability of the site is to be judged;" and, even if no intervenor causes a hearing to be held at the operating license stage, "the decision would still be on the public record and if an important safety question was involved, could be made by the Board." Id. at 7-8.
In implementation of the ASLB program authorized by Congress, the AEC promulgated new Rules of Practice to describe the functions and procedures of its Boards,
In delegating a limited reviewing function to the ASLB, we have no doubt that the Commission has acted in a manner within the contemplation of the Act as amended in 1962. We noted in Siegel v. AEC, 130 U.S.App.D.C. 307, 400 F.2d 778, 783 (1968), where the Commission's
Of first importance in this respect is the primary purpose of the 1962 amendments, namely, to unburden the Commission by authorizing it to delegate decisional authority and removing the necessity of holding unnecessary and duplicative hearings. The Staff's safety analysis, aided by the ACRS, is reviewed prior to issuance of the construction permit, which the Joint Committee identified as "the critical point in reactor licensing." No second hearing need be held at all "in the absence of bona fide intervention." Yet it is contended that the mere assertion of a need—even a mere desire—for a further hearing by any of the many persons whose interests may be affected necessitates a second "independent evaluation" of all the evidence on safety considerations rather than only the matters put in issue. If this were the meaning of the 1962 amendments, one wonders why Congress would have bothered at all to relax the two-hearing requirement.
UCS argues, however, that reliance on the Staff's analysis as to uncontested matters in effect vests final decisional authority in an adversary party, and that delegation to an ASLB of responsibility to make the definitive safety findings requires it to do so independently, receiving the Staff's uncontested evidence only for the weight it deserves.
Petitioner places great reliance on three cases for the proposition that an ASLB has an affirmative duty to evaluate the correctness of, rather than sufficiency of support for, uncontested findings, lest an impossible burden be put on any who would oppose the issuance of a license. In Office of Communication, United Church of Christ v. FCC, 138 U.S.App.D.C. 112, 425 F.2d 543 (1969), we reversed a licensing decision supported by a record in which the burden of persuasion on the public interest question was shifted from the applicant, where by statute it is placed, to the intervenor in opposition to renewal of the license. "The Commissioners and the
The other two cases, Greene County Planning Board v. FPC, 455 F.2d 412 (2d Cir. 1972), and Calvert Cliffs Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971), each involve agency responsibility under Section 102 of the National Environmental Policy Act (NEPA). 42 U.S.C. § 4332. In Greene County it was held that agency reliance on a license applicant's environmental impact statement was an abdication of the NEPA requirement that the agency do its own environmental analysis. Here, it is suggested that the applicant's FSAR is equally likely to be too self-serving to justify ASLB reliance in making its definitive safety findings. However that may be, UCS's apprehension is unfounded; the FSAR is the very document on which Staff and ACRS scrutiny focuses. Only when those bodies are satisfied that it is accurate, usually after many changes and additions, does it go before the ASLB, with the accompanying reports on it. It is by then as much a document presented by the Staff as by the applicant and the danger perceived in Greene County is not operative.
This court's decision in Calvert Cliffs appears only at first blush to be closer in point. The subject of review there was a regulation purportedly implementing NEPA but in fact inconsistent with it. The regulation prohibited an ASLB, in passing on a construction permit, from considering the environmental "balance among conflicting factors that is struck in the staff's recommendation," unless affirmatively challenged. Thus, the Commission's responsibilities under NEPA were, in the words of the regulation, to be "carried out in toto outside the hearing process." This singling out of environmental factors, where the ASLB automatically considers nonenvironmental matters, we held to be inconsistent with the NEPA requirement of agency consideration of the environment "to the fullest extent possible."
In this case, environmental factors were independently evaluated by the ASLB in the supplemental operating license hearing held in June, 1972. Accordingly, USC's grievance is the mirror image of that pressed in Calvert Cliffs, viz., that radiological and safety matters were singled out for laxer review than that given to environmental ones under the mandate of this court. NEPA and the Atomic Energy Act are two separate statutes, however, and while a lesser scrutiny of environmental issues is inherently inconsistent with consideration to the fullest extent possible, lesser scrutiny of nonenvironmental matters in an operating license proceeding need not logically be a similar infirmity under a
Pilgrim's construction permit was issued before enactment of NEPA in 1969. Its operating license hearing was scheduled after the effective date of NEPA and was to be conducted under the regulation later struck down in Calvert Cliffs. Acutely aware of the two-stage licensing procedure of the Atomic Energy Act and the fact that some construction permits issued pre-NEPA and others issued post-NEPA (but without adequate environmental consideration due to the faulty regulations) had not yet resulted in the issuance of operating licenses, this court ordered that fully adequate NEPA review be conducted before the operating licenses issued. 449 F.2d at 1128-1129 n. 43. The AEC thereupon promulgated new regulations to govern both all new license proceedings, and operating license proceedings in cases where there had been no environmental review at the construction stage or such review was inadequate.
The Supplemental Hearing on environmental matters in the case before us was called to comply with the requirement of Calvert Cliffs and the new regulations. UCS is simply wrong if it conceives that the environmental phase of operating license proceedings will continue to involve a standard of review different from that in safety matters once the backlog of reactors issued construction permits before Calvert Cliffs is exhausted. We expressly said in that opinion that full NEPA consideration "need not be duplicated, absent new information or new developments, at the operating stage." 449 F.2d at 1128. To the extent there are new matters, such as alterations in the plans as evaluated at the construction stage, full NEPA consideration will of course be demanded.
Finally, we take this opportunity to illustrate what we said in Siegel about the "virtually unique" arrangement under which the AEC is to operate "free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives," but subject to oversight by a Joint Committee of Congress "in constant touch with what was happening in this unfolding area of industrial applications of atomic energy." In 1967, that committee held extensive hearings on the AEC's program for licensing and regulating nuclear reactors. Representative Holifield, then vice-chairman, explained in opening the hearings:
The committee heard detailed accounts of the way in which an ASLB operates. It was fully informed about the nature of its inquiry as to sufficiency of information and adequacy of Staff review. Hearings on Licensing and Regulation of Nuclear Reactors, supra note 21.
No legislation was then pending on the licensing process, but Mr. Holifield emphasized that some would be forth-coming if the hearings revealed the need. We do not, from the absence of any legislation, conclude that everything the Committee learned it approved. But we do think it relevant that the administrative procedure here challenged has withstood careful scrutiny without eliciting expressions of dismay from the congressmen who questioned agency representatives and ASLB members. Petitioner is not for the first time exposing to sunlight, which Justice Brandeis so aptly called the best of disinfectants,
Petitioner next contends that, in granting a full-power operating license for Pilgrim without first resolving its challenges to the Interim Acceptance Criteria (IAC) for emergency core cooling systems, the Commission deprived UCS of due process, violated its own regulations, and abused its discretion.
The IAC had been published as an interim policy statement on June 29, 1971 in order to give immediate effect to standards developed on the basis of new information arising in the course of industry design changes in, and AEC semi-scale testing of, ECCS. 36 F.R. 12247. Both new and existing reactors were required to meet the four criteria as determined by use of an acceptable evaluation model, of which examples were provided.
After completion of the December hearing on radiological and safety matters, the AEC issued a Supplemental Notice concerning the impending rule making, 37 F.R. 288 (Jan. 8, 1972), which provided in part that the simultaneous conduct of a rule making would "not affect the orderly resolution, under the Commission's existing regulations, of the matter of emergency core cooling, in hearings for light water-cooled power reactors pending before [ASLBs]." After the environmental hearing was completed in June, 1972, therefore, the ASLB proceeded to recommend issuance of a full power license for Pilgrim. It is UCS's position that the agency should not have issued that license but either deferred action pending the outcome of rule making, or licensed operations only at a power level sufficiently below capacity to eliminate fully the asserted danger of the loss of coolant accident (LO CA) postulated by USC if the IAC were in fact deficient.
Before entertaining this contention, we are obliged to consider whether the completion of rule making, and revision of the criteria, moots the issue UCS
A. Due Process.
We find petitioner's due process theory unavailing. Due process does indeed require that, where a right to be heard exists, it must be accommodated "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965); Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Petitioner here was deprived of an opportunity to be heard on certain issues before issuance of Pilgrim's license. In being shunted over to the simultaneous rule making, where it was heard, it was not, in the circumstances of this case, deprived of a timely forum by constitutional standards. Administrative action taken prior to a full hearing has always been permissible when the state's interest in acting promptly to promote the general welfare, including economic well-being, outweighs the individual's interest in having an opportunity to be heard before the state acts, perhaps in error, in ways that may cause him significant injury.
The Supreme Court recently addressed the due process requirement in the closely related context of agency enforcement. In Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 624-625, 93 S.Ct. 2469, 2480, 37 L.Ed.2d 207 (1973), it is said:
In the instant case, where challenges to the agency's standards rather than agency enforcement of those standards are consolidated into a single administrative proceeding, the same considerations are operative. If the agency could not consolidate the challenges to its rules into rule making, and meanwhile proceed with adjudications, UCS and other intervenors in other cases would
1. Calvert Cliffs Memorandum.
Petitioner contends that this case comes within the well-settled rule that an agency's failure to follow its own regulations is fatal to the deviant action. See, e. g., Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). The rule assertedly violated here is the AEC's Calvert Cliffs doctrine that substantial questions as to the validity of a Commission safety standard should be certified to the Commission for resolution before an ASLB renders an initial decision. This, of course, was not done here because the Supplemental Notice of rule making called for completion of pending license proceedings under the IAC.
The Calvert Cliffs doctrine, announced by the AEC in 1969, may have been a unique experiment in administrative procedures.
Whether the experiment was noble or not,
2. NEPA Regulations.
The Commission's regulations implementing the National Environmental Policy Act require the Director of Regulation to prepare a final detailed environmental impact statement (FES) prior to the issuance of a license. The decision on issuance is thereby to be informed by the results of the FES cost-benefit analysis "weighing the environmental, economic, technical and other benefits against environmental costs and considering available alternatives." 10 C.F.R. Part 50, App. D, § A.8. In this case, the required analysis assumed that Pilgrim would operate at full power.
This is a not inconsiderable objection to the FES, and Edison's answer, that a lower power level of operation could only result in a lesser impact on the environment, is not adequately responsive to it. It would be adequate only if the aggregate "environmental, economic, technical and other benefits" of operating this particular nuclear reactor were known to decrease at a rate such that, for any given decrease in power rating, these benefits would always exceed associated environmental costs. This is not only unknown but unlikely. If, for example, a significant derating lowered the temperature of water pumped through the station from 69° F to 62° F—and we do not know that it would have this or a similar effect, but merely offer a hypothetical in aid of analysis—then the volume of marine life killed by exposure to temperatures in excess of 60° F would not change, leaving a decreased economic benefit against a constant environmental cost. In a closed system containing only power output and marine life, the balance could indeed be tipped by derating.
Clearly, the more appropriate time at which to reevaluate Pilgrim's cost-benefit ratio would be when the new criteria are actually applied to the reactor. Then, if derating of a given magnitude is indeed required, the change in benefits will be known, and the change, if any, in environmental costs will be fairly ascertainable. Petitioner has maintained that this second look will never be undertaken, but we think in this it errs.
If Pilgrim can comply with the new criteria, by definition, no derating will be required and there will be no need to reexamine costs and benefits after all. If Pilgrim cannot comply and derating is indicated, its license will be amended accordingly. Regardless of whether UCS or anyone else causes a hearing to be held at that stage,
C. Abuse of Discretion.
Even if the AEC had the power to refer the rule challenges to rule making and proceed with the issuance of Pilgrim's license under the IAC, UCS argues it was an abuse of discretion to do so. The basis for this argument is that the IAC were promulgated without a prior hearing, 5 U.S.C. § 553(b), to govern an extremely important safety system, and then shielded from pre-licensing challenge despite "a substantial body of information available to [the AEC] which indicated that the [IAC] did not provide an adequate basis for licensing."
That the IAC were issued without notice and hearing is of no significance whatever if they were validly within an exception to that requirement, and there is no suggestion to the contrary. They were accompanied by a statement of reasons clearly showing why any delay would be contrary to the public interest; comments were solicited "with the view to possible amendments" or holding an informal rule making hearing, cf. Independent Broker-Dealers' Trade Ass'n v. SEC, 142 U.S.App.D.C. 384, 442 F.2d 132, 144-45 (1971), and UCS submitted its views by letter, but did not seek judicial review. In providing for promulgation of rules of immediate effect under appropriate conditions, Congress obviously contemplated that they would be as effective as any other rules, and UCS can hardly impugn them on that ground.
As to the importance of ECCS in the event of a LOCA, we have no doubt.
UCS directs our attention to a December, 1971 letter from a "research group" at the AEC's Oak Ridge National Laboratory (ORNL) to the Director of Regulation allegedly expressing the view that the IAC's 2300° F limit on the calculated maximum cladding (fuel casing) temperature under LOCA conditions would be inadequate to prevent excessive embrittlement (which could lead to fragmentation
The other item identified as significant in this regard is a February, 1971 memorandum from the Director of the Division of Reactor Development and Technology to the General Manager of the AEC on a research proposal by the General Electric Corporation, a supplier of ECCSs to utility companies. The statement on which UCS focuses is that, "[a]lthough test information is available on the response of simulated fuel pin bundles to a range of emergency coolant flow conditions, no assurance is yet available that emergency coolant can be delivered at the rates intended and in time period prior to clad and subsequent fuel melting to decay heat generation." There are problems with assigning any significance, let alone an abuse of discretion, to the Commission's proceeding to license Pilgrim after the date of this memorandum. First, the memorandum predates the IAC, as well as Pilgrim licensure. In the statement accompanying the IAC, the Commission expressly recognized that it still lacked "analytical methods capable of detailed realistic prediction of all phenomena known or suspected to occur during a [LOCA], supported in every aspect by definitive experiments directly applicable to the accident." It continued:
In order to hold the AEC abused its discretion, therefore, it would be necessary to find that the lack of unanimity among researchers and the absence of direct, as opposed to extrapolated, empirical support for the adequacy of ECCSs meeting the IAC clearly required the withholding of full-power licenses. That would effectively deprive the Commission of any discretion. Since unanimity among scientists, let alone empirical certainty, is rarely to be expected, it would substitute not even our, but the Union of Concerned Scientists', judgment for that of the AEC.
Five particular rulings of the ASLB limiting the scope of its inquiry by excluding or restricting UCS's safety contentions are presented for review. The correctness of each ruling depends on whether the underlying contention challenged Pilgrim's ability to comply with AEC regulations, as petitioner claims, or questioned the validity of the regulations themselves, as the AEC maintains. The target of a particular challenge may be a question because of the peculiar nature of certain AEC regulations, incorporating as they do a variety of factual assumptions. Since the regulation putatively under challenge in these rulings is the IAC, we preface our particularized analysis with a short explanation of the IAC.
There are four interim general criteria applicable to all light-water power reactors, and one evaluation criterion for determining whether a specific reactor
IV. . . . A. Criteria for all light-water power reactors.
The evaluation models referred to in paragraph IV.B. involve numerous assumptions that the AEC deems adequately conservative. In addition, the AEC specified certain variations from the models generated by reactor vendors. Thus, the General Electric Evaluation Model applicable to Pilgrim is subject to six qualifications, a typical one of which is, "4. It should be assumed that channel wetting does not occur until 60 seconds following the wetting time calculated using the Yamanouchi analysis."
In promulgating criteria and evaluation model standards, the AEC has, in effect, made two statements—first, that a reactor whose ECCS meets the criteria will control a LOCA and is, therefore, safe for operation; and second, that it will in fact meet the criteria if its design features stand up under evaluation of a particular sort.
Consider these statements in a hypothetical regulation:
The general contention that the Pilgrim reactor is incapable of preventing excessive embrittlement may be based on any of three sorts of reasons:
A contention based on reasons of type 1 is indeed an objection to Pilgrim's ability to comply with the regulation. Since the regulation incorporates the factual statements contradicted in reasons of type 2 and 3, however, they constitute challenges to the validity of the regulation itself.
Under the AEC's Calvert Cliffs doctrine, the distinction illustrated above was determinative of whether an ASLB would hear a particular contention or certify it to the Commission. In the setting of this case, of course, the latter alternative was not certification but simply rejection, with the reminder that the rule challenge would be heard in the rule making forum. We turn now to the question of whether certain of UCS's contentions were properly eliminated from the ASLB hearing on the ground that they are challenges to the IAC.
A. Contentions No. 2(a) and 16. Contention No. 16 of the intervention petition was first conditionally accepted as a matter to be heard, depending upon whether it was to be pursued as a compliance or rule objection. As reiterated in petitioner's initial detailed specification (IDS) of issues and re-numbered 2(a), it states:
This contention is obviously quite general, since no reasons for the ECCS's inadequacy are alleged; hence the conditional ruling. Another contention in the IDS challenged the ECCS's adequacy in somewhat more specific terms. Contention No. 16 states:
UCS repeatedly stated that these contentions challenged Pilgrim's ability to comply with three of the IAC, and that UCS questioned the IAC themselves only in the alternative. The only proof UCS offered, however, concerned a study, conducted by one of its members, of a boiling water reactor test procedure "used in substantial support of the Applicant's position that the Pilgrim nuclear power station meets the Interim Acceptance Criteria." JA 560. The test procedure assigned as erroneous, however, was part of the General Electric Evaluation Model. As such, any attempt to demonstrate its invalidity was correctly held to be an attack on the IAC and not on Pilgrim's compliance therewith. Indeed, no evidence whatsoever specific to Pilgrim was offered in support of these contentions.
In the July, 1971, letter transmitting its report on the Pilgrim ECCS evaluation, Edison had represented that "[t]he Pilgrim ECCS performance has been evaluated in strict accordance with the model described in Appendix A, Part 2 of the AEC policy statement." Petitioner's objection seems to be that the model does not provide an adequate technical description of the methods it uses, that Edison's submission was accepted because the results were within an acceptable range, and that these results cannot be meaningfully analyzed without more methodological information.
Whatever deficiency the model may suffer from because of generality, the merits of the model are not an issue in this court. The only issue is whether the demand for greater specificity calls in question the model itself or Edison's compliance therewith. We have no basis on which to doubt the Commission's uncontradicted representation that application of the model requires the use of certain analytical techniques, but does not require any particular method of computation. Taking the model to allow a degree of computational flexibility, we cannot but agree that insistence on greater specificity constitutes a challenge to the model—and thus the IAC—rather than to Edison's compliance. The question is a close one because, on the unelaborated record before us, the distinction between analytical techniques and computational methods appears to be a fine one. It is the agency's task to resolve close questions in a reasoned manner, however, and we are far from able to say that the AEC's resolution of this one was unreasonable.
C. Contention No. 2(b). In the FSAR on Pilgrim, the maximum hypothetical accident analyzed is a controlled LOCA. In contention 2(b), petitioner urged that the "true maximum hypothetical accident that can be assumed for this reactor [is] a meltdown of the entire fuel core, with subsequent breaching of the containment due to penetration of the melted fuel and subsequent interaction with ground water, releasing radioactivity in quantities many orders of magnitude above the release set forth in the [FSAR]."
This contention was rejected as a challenge to the IAC for the simple reason that the accident UCS would postulate could only occur upon failure of the ECCS. If the criteria are met, the ECCS is presumed to be effective, in which case a LOCA would not escalate into a meltdown of the fuel core.
Petitioner points to the AEC's Reactor Site Criteria, 10 C.F.R. 100.11(a), in support of its view. That regulation provides that, in evaluating a proposed site in terms of potential accident damage from radiation, "an applicant should assume a fission product release" such
Again we think petitioner misapprehends the issue here open to review, namely, the ruling that its contention was a rule-challenge beyond the ASLB's authority to entertain on the merits. Petitioner is correct in noting that conformance with the IAC does not establish conformance with the Reactor Site Criteria. But conformance with the latter regulation is clearly found in the Staff Safety Evaluation, which states (JA 503):
It was open to petitioner to challenge the manner in which the Staff performed this site criteria analysis, but that would raise a question quite different from the maximum credible accident for purposes of analyzing ECCS performance. The AEC has chosen to employ a most conservative (drastic) assumption in determining site suitability because site selection is the most critical decision. Once a site has been approved, however, it is entitled to indulge more realistic assumptions, such as the assumption that an ECCS meeting the IAC will work effectively. That assumption may be wrong, but the forum for challenging it was correctly held not to be the licensing hearing but the rule making.
D. Contention No. 6. This contention challenged Edison's computation of the maximum containment pressure expected to obtain during a LOCA: Edison used "equilibrium assumptions concerning the thermodynamic behavior of the coolant, whereas non-equilibrium assumptions in the calculation—that indicate much higher containment pressure in the event of blowdown—should have been used."
Petitioner objects to elimination of this contention on procedural grounds. The ASLB "initially regarded the contention as a discrete issue concerning the assumptions underlying engineering design of a safety system," but Edison argued it was a challenge to the IAC on the ground that equilibrium assumptions were sanctioned by the evaluation model deemed acceptable therein. The ASLB therefore reserved the issue and allowed Edison to establish the factual basis for its position.
At the prehearing conference held a few days thereafter, counsel for Edison circulated what petitioner disparagingly refers to as "unsworn letter signed by him containing various factual allegations purporting to show that Edison has complied with the [IAC] in calculating the maximum containment pressure." The ASLB thereafter ruled that Contention No. 6 was a rule-challenge.
Petitioner objects to the ASLB's reliance on the unsworn letter in question, removing No. 6 from the hearing, with the result that "pre-trial" discovery, cross-examination and rebuttal was correlatively restricted. Even the most casual reading of the "letter," which Edison here characterizes as an amended response to Contention No. 6, defeats petitioner's argument. The letter does no more than identify that portion of the evaluation model described in NEDO-10329 on which Edison relied in using equilibrium assumptions. Since the model is incorporated by reference into the IAC, nothing would prevent the ASLB from noticing the cited section on its own. We are aware of no requirement, moreover, that counsel's statements at a prehearing conference be under oath, and petitioner cites to none. Petitioner's own counsel was present, but did not question the contents of the
E. Scope of cross-examination concerning Contention No. 9. This contention, dealing with the adequacy of means provided to keep the hydrogen that evolves during a LOCA at a sub-explosive level of concentration, was the sole contested issue before the ASLB. Petitioner did not offer evidence on the issue, intending to prove its case by cross-examination of Edison and Staff witnesses. When UCS set out to do so, a disagreement about the scope of No. 9 arose. The Staff, with whom Edison agreed, argued that the quanity of hydrogen in question must be the amount expected if the ECCS functions properly, since hypothesizing the greater amount would require the ASLB to assume that an ECCS meeting the IAC would not work. The Board agreed, as we think it was required to do, and limited the inquiry to the question of hydrogen control during a controlled LOCA. The logic of its position is manifest, even unaided by the deference normally due to agency evidentiary rulings.
Petitioner's final objection warranting detailed comment concerns the adequacy of the AEC's analysis of the environmental impact of Pilgrim's operation. The regulatory framework within which nuclear power stations operate injects a novel element into the projection of actual environmental costs reasonably to be anticipated. The problem that concerns us here is the AEC's selection, from a number of possibilities, of a standard for the accurate measure of liquid and gaseous radioactive effluents.
For the purposes of environmental analysis, the AEC projected the release of five curies (Ci)/year for liquid effluents, and 60,000 microcuries (.06 mCi)/second for gaseous effluents.
We think it obvious that Pilgrim's anticipated environmental effect from effluents depends upon its actual anticipated release rate, and not upon either its design objectives or maximally permissible rates. Further, the best basis from which to project actual effect is clearly any actual experience with similar reactors, adjusted to reflect material differences in Pilgrim's design and circumstances. To the extent that new equipment or procedures are involved, of course, this comparative exercise becomes increasingly less practicable and resort must be had to the Staff's evaluation of their efficacy.
The Staff's analysis of gaseous effluents, for which comparative data were available, reflects precisely this order of preference. First, the FES describes Pilgrim's initial gaseous treatment system in some detail, and then concludes, "On the basis of operating experience with power reactors of similar design, it is expected that the off-gas system described above will keep releases of gaseous radioactive wastes well within the limits specified in 10 CFR
The relevance of similar experience was limited to projecting initial gaseous release because an augmented gaseous treatment system was expected to be operational by January 1, 1974. Apparently because the Staff lacked experience with a system comparable to the augmented system, estimated releases for 1974 and beyond were based upon its evaluation of the new equipment.
Petitioner's objection that these analyses, insofar as they are not based on operating experience elsewhere, unrealistically assumed that control equipment would work at design objectives is not well-supported in the record. When the AEC reports, for example, that the liquid waste treatment system "appears to be capable of reducing discharges to Cape Cod Bay to less than 5 Ci/yr," its meaning seems to be that a 5 Ci release can in fact be expected, not that 5 Ci is the best that can be hoped for. While 5 Ci may in fact represent the full potential of the equipment, the AEC is not precluded from projecting realization of that potential in the absence of either an experimental or probabilistic basis for doubting its realization. Petitioner does not even suggest such a basis for departing from the 5 Ci estimate, and it would not be reasonable to require the AEC to pose implausible reasons for doing so only in order to show that they are implausible.
The objection based upon the discrepancy between the average estimates made in the FES and the maxima found in the technical specifications is weightier. As noted, supra note 48, 10 C.F.R. § 20.106 and Appendix B specify maximum allowable concentrations of radioactive materials. Another regulation provides that each operating license must include technical specifications requiring compliance with § 20.106, procedures for the control of effluents, use of a radiological waste system, and periodic reporting of the actual quantity of radio-nuclides released to unrestricted areas. 10 C.F.R. § 50.36a. On the basis of experience, the AEC expects compliance with these required technical specifications actually to "keep average annual releases of radioactive material in effluents at small percentages of the limits specified in § 20.106" and the operating license. Still, it does not expect release rates to be constant at every given moment. As the regulation explains:
It is clear, both from the face of this regulation and experience as portrayed in the record, that it would be grossly unrealistic to project release rates based on continuous operation at the maximum rate permissible at any moment, i. e.,
On the one hand, the Commission's stress on the need for expressing effluent release rates in terms of their average over a calendar quarter in order to take account of necessary variations over short periods suggests that some expected number of "operational occurrences"—including fluctuations up to the maxima—may have been factored into the derived estimated average. On the other hand, we are told that "[t]emporary (for an obviously unknown period of time) attainment of any . . . particular level [other than the average] is speculative and impractical to calculate, and hence need not be addressed." This suggests that the probability of periods of continuing excess releases was not factored into the estimated average quarterly release rates.
Considering the unpredictable nature of some of the factors the Commission considers in deciding whether and for how long to tolerate, rather than require correction of, excess releases—the need for power, public health and safety, the licensee's efforts at correction—it would actually be surprising if it had attempted to incorporate the probability of their occurrence into its estimate of environmental impact. Moreover, the ASLAB, in rejecting petitioner's contention that the FES should reflect the impact of the maximum excess releases that the AEC intends to tolerate, stated that
Petitioner is dissatisfied with this expression of intent to consider the impact of excess releases as they actually arise, rather than on a probabilistic basis at the operating license stage, because it does not, as they read it, comply with NEPA. Specifically, UCS complains that it does not require public disclosure and consideration of alternatives. We do not agree.
By disregarding the environmental impact of licensing Pilgrim insofar as that impact depends upon subsequent events and AEC decisions of a highly speculative nature, the Commission does not, nor could it, remove from NEPA's reach such decisions as would otherwise come within the ambit of that Act. What we said with respect to the equally conjectural possibility of a subsequent derating decision, Part III, supra, applies with equal force to a later decision to authorize a significant increase in Pilgrim's release of radioactive effluents. In addition, however, we think the AEC could discharge its obligation under NEPA by examining the environmental impact of increased release rates at any such time as the probability and magnitude thereof became sufficiently quantifiable to yield to meaningful analysis. That the facts were too speculative at the time of licensing, and consideration could lawfully await the time when particular facts arise to require discrete decision, does not preclude making a single probabilistic assessment of environmental impact at an appropriate time, any more than such an assessment would have been inappropriate
Petitioner's other objections involve the ASLB's admission of the FSAR into evidence, and the asserted failure of its Initial Decision to rule on each of petitioner's proposed findings and rulings, as required by the Administrative Procedure Act, 5 U.S.C. § 557(c), and 42 U.S.C. § 2231. The evidentiary point is founded upon 10 C.F.R. § 2.43(c), which provides, inter alia, that only "reliable" evidence be admitted. Because the professional qualifications of certain of the Edison and other non-agency employees who worked on preparation of the FSAR were not established in the record, UCS contends that no foundation for reliability was provided.
The argument is specious. By 10 C. F.R. § 50.34(b), the FSAR must be included in the license application. As then in force, 10 C.F.R. 2.743(g), 27 F. R. 377 (Jan. 13, 1962), provided that "[i]n any proceeding involving an application, there shall be offered in evidence the record of the application, including the application. . . ." Even in the absence of such a provision, we do not see how reliability can be established prior to at least conditional admission in a proceeding in which reliability is the ultimate issue.
The APA objection is no more helpful to petitioner. Reasoned findings, "which alone make effective judicial review possible," Baltimore & O. R. R. v. Aberdeen & Rockfish R. R., 393 U.S. 87, 92, 89 S.Ct. 280, 283, 21 L.Ed.2d 219 (1968), are not lacking here. We stop only to note that petitioner identifies not a single finding or conclusion the basis for which it finds unclear, but relies instead upon the ASLB's statement that all proposed findings and conclusions not incorporated in its decision were rejected for want of "reliable, probative and substantial" support, or as being unnecessary. Without pointing "to any material issue, or to any group of minor matters that may have cumulative significance" about which "the parties and the court should not be left to guess," Radio Station KFH Co. v. FCC, 101 U.S.App.D.C. 164, 247 F.2d 570, 572 (1957), petitioner cannot make out a violation of the APA.
It is patent from the foregoing that, despite the procedural nature of the issues raised, we have had to deal with subject matter ranging far beyond the normal ken of judges. This case is only one among many such these days, and, thus, suggests the extraordinary tasks that the seemingly endless statutory proliferation of judicial review of agency action is imposing on the federal courts. How meaningful judicial review on this scale can be over any sustained period of time, at least if not invariably invoked with an acute sense of responsibility and a willingness to recognize that many of these more esoteric battles must largely be won or lost at the agency level, is problematic. In this instance, at any rate, we cannot say that the agency fell below the legal standards that it was required to meet. The petition for review is, accordingly, denied.
It is so ordered.
See 42 U.S.C. § 2232(a). The regulation governing the issuance of an operating license, 10 C.F.R. § 50.57(a), provides that the Commission will first find that
The Atomic Energy Act was again amended in 1972 to add a new Section 192, 42 U. S.C. § 2242, authorizing the issuance of temporary operating licenses under specified circumstances to alleviate power shortages without awaiting the outcome of often protracted adversary hearings. See H.Rep.No. 1027, 92d Cong., 2d Sess. (1972). The report indicates not only awareness, but implicit approval, of the AEC's requirement that intervenors raise specific issues for resolution at the operating hearing. Id. at 5-6. That requirement is largely inconsistent with the notion of de novo review by the ASLB.
Petitioner misreads the "responsible opposing views" requirement, and then misapplies it. The requirement that opposing views be aired is designed to implement environmental full disclosure by requiring publication of the sometimes embarrassing comments that must, under NEPA, be solicited from relevant federal, state, and local agencies, 42 U.S.C. § 4332(C), as each of the cited cases illustrates. In this way, "the officials making the ultimate decision, whether within or outside the agency" are aided in making a responsible choice. Seaborg, supra, 463 F.2d at 787. That policy would also extend, we think, to responsible views presented by a member of the public, see Environmental Defense Fund, supra, 325 F.Supp. at 759, as in the environmental hearings held in this case. But it does not mean that the agency staff cannot speak with one voice before the decision-maker, any more than each outside agency would have to acknowledge differences of opinion within itself in commenting on the action under consideration. Each remains free to do so, of course, but an opportunity for a "minority report" from dissidents from each agency is neither required nor practical in an executive organization.
Moreover, we are unconvinced that the views here referred to by petitioner are in fact environmental views. Saying that the project won't work is not the same as saying that it will have greater environmental impact than the FES suggests, even if such failure would have environmental consequences. The basic objection is to the feasibility, not the environmental impact.