MESKILL, Circuit Judge:
One of the most emotional issues confronting our society today is the adequacy of safety measures at nuclear power facilities. Fueled by the Three Mile Island incident, the debate over nuclear safety persists as public interest groups charge that serious problems remain and operator-utilities seek to assure the public that all reasonable measures have been taken to protect surrounding populations in the event of a major nuclear accident. But it is the United States Nuclear Regulatory Commission (NRC or Commission) which must decide the difficult questions concerning nuclear power safety.
This appeal focuses on one important aspect of nuclear safety—off-site emergency preparedness. In its December 1982 decision and February 1983 order, the NRC concluded that although several deficiencies remain in off-site emergency preparedness at the Indian Point nuclear plant in Buchanan, New York,
County of Rockland's petition is dismissed because it has failed to exhaust available administrative remedies. With respect to intervenors NYPIRG/UCS, we find that the Commission properly applied its regulations and did not abuse its discretion in declining to take enforcement action at Indian Point.
BACKGROUND
A. Overview of Nuclear Plant Regulations
The Atomic Energy Act of 1954 (AEA), Pub.L. No. 83-703, § 1 et seq., 68 Stat. 919 (codified at 42 U.S.C. § 2011 et
We are concerned in this appeal with those Commission regulations that address off-site emergency preparedness. See generally 10 C.F.R. Part 50, § 50.54 (1982). Prior to the Three Mile Island accident (TMI), there were no comprehensive guidelines or rules in place to coordinate off-site emergency preparedness in the event of a major nuclear accident. TMI taught that ad hoc responses to nuclear emergencies were ineffective. A Presidential Commission was created to address this problem and foremost among its recommendations was that each state and county located within a given distance of a nuclear power plant devise and implement an emergency preparedness plan for dealing with nuclear crises.
In partial response to the recommendations of the Presidential Commission, the NRC ordered that emergency preparedness plans be developed by each state and local government located within a ten mile radius of any nuclear power facility. 45 Fed. Reg. 55,402 (1980). The ten mile distance, although not etched in stone, was viewed by the Commission to be an appropriate "safety net" to assure adequate emergency preparedness.
B. Commission Review Process: State of Emergency Preparedness
The adequacy of emergency preparedness at a given nuclear facility is evaluated jointly by the NRC and the Federal Emergency Management Agency (FEMA). FEMA's general mandate, as outlined in Executive Order No. 12148 (July 15, 1979), is "to coordinate the emergency planning functions of executive agencies." 45 Fed. Reg. 55,406 (1980). Under Presidential directive of December 7, 1979, FEMA has been assigned lead responsibility for off-site emergency preparedness with respect to each nuclear power facility located in the United States. Id.
To coordinate the administrative review process, NRC and FEMA executed a Memorandum of Understanding (MOU) outlining the various responsibilities of the two agencies. See 45 Fed.Reg. 58,847, 82,713 (1980). Under the MOU, FEMA's duties include (1) assisting state and county officials in the development of an emergency plan; (2) training those state and county officials assigned to the emergency preparedness "team"; (3) developing and issuing an "updated series of [Federal] interagency assignments which would delineate respective agency capabilities and responsibilities and define procedures for coordination and direction for emergency planning and response"; (4) reviewing the status of emergency preparedness at each nuclear facility in the United States; and (5) making findings and determinations as to whether state and local emergency plans are adequate and capable of implementation. See 47 Fed. Reg. 36,387 (1982).
NRC's responsibilities under the MOU include (1) assessment of licensee emergency plans; (2) verification that licensee emergency plans are adequately implemented; (3) review of FEMA findings and recommendations regarding the adequacy of state and county emergency plans; and (4) final decisionmaking authority to determine whether emergency preparedness is adequate or whether perceived problems are sufficiently serious to warrant enforcement action. See id.
The MOU and the enabling legislation found in the ERA make clear that the Commission is ultimately responsible for making the crucial decisions that arise with respect to emergency preparedness at nuclear facilities. The Commission's authority is broad—it may shut down a nuclear plant or take additional enforcement action if not satisfied with emergency preparedness.
The NRC's review is circumscribed by agency regulations. For facilities like Indian Point which are already operational, NRC regulations provide that emergency response plans for the operator-licensee and state and local governments shall be prepared and ready for implementation by April 1, 1981. 10 C.F.R. § 50.54(s)(2)(i) (1982). After that date, FEMA is charged with initial responsibility to review the state of emergency preparedness at the nuclear plant. NRC regulations then require the Commission to review the FEMA report and to determine whether emergency preparedness provides "reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 10 C.F.R. § 50.54(s)(2)(ii) (1982). If, after reviewing FEMA's recommendations and additional relevant factors, the Commission concludes that the evidence warrants a finding of "reasonable assurance," the agency review process is complete, subject of course to continuing oversight to assure that safety measures and emergency plans remain feasible and effective. If the Commission finds on the other hand that deficiencies in emergency preparedness are sufficiently serious to preclude a finding of "reasonable assurance," agency regulations allow a four month grace period, commonly referred to as a "120-day clock," to afford the operator-licensee and state and local governments an opportunity
At the end of the 120-day period, the Commission must again assess emergency preparedness to determine whether the deficiencies have been adequately corrected. If emergency preparedness remains deficient, the Commission has three options: (1) it may shut down the nuclear plant until serious deficiencies are remedied; (2) it may take other enforcement action such as ordering a show cause hearing or requiring the licensee to take specific affirmative steps to correct a problem; or (3) it may decline to take any enforcement action. Id.
NRC regulations provide that the Commission, when determining whether enforcement action should be taken, "shall take into account, among other factors, whether the licensee can demonstrate to the Commission's satisfaction that the deficiencies in the plan are not significant for the plant in question, or that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons for continued operation." Id.
C. Experience at Indian Point
In April 1981, FEMA completed its initial review of off-site
1. June 1982 FEMA Report
In June 1982 the NRC staff requested updated FEMA findings regarding the adequacy of emergency preparedness at Indian Point. FEMA responded on June 30, 1982 explaining that its present recommendations were based upon review of (1) updated and revised state and county plans; (2) the results of a March 1982 emergency preparedness exercise at Indian Point; and (3) comments made during two public meetings held in Westchester and Orange Counties. After outlining the grounds for its conclusions, FEMA reported deficiencies in five planning standards at Indian Point and identified thirty four sub-element deficiencies within the five standards.
2. December 1982 FEMA Report
After the second 120-day clock had expired, FEMA submitted on December 17, 1982 an updated status report to the Commission. Representatives of FEMA briefed the Commission on December 21, 1982, addressing each of the thirty four sub-element deficiencies identified in its prior June 1982 report and indicating that substantial progress had been made to correct those problems. FEMA officials also noted the exemplary cooperation between the various governmental and private entities responsible for emergency preparedness at Indian Point. Despite their optimism, FEMA representatives identified five remaining deficiencies, four of which related to the absence of an emergency plan for Rockland County, the final deficiency focusing on the inability of Westchester County to secure a contract with local bus drivers to provide emergency bus evacuation in the event of a nuclear accident. See Br. of Respondents, Attachment 6, at 9-10.
According to FEMA, the absence of a Rockland County plan raised serious problems.
A FEMA representative summarized the agency's views: "We feel that the majority, 29 of the 34 specific deficiencies that had been identified have been satisfactory [sic] resolved by submissions and updates of the plan. We feel that the other five have been partially resolved and are in the process of being worked [sic], and hopefully will be completely resolved in the near future." Br. of Respondents, Attachment 6, at 14. FEMA qualified its judgment, however, by noting that a more definitive assessment could be made after evaluation of the March 1983 exercise.
3. Commission Decision of December 23, 1982
After considering the available evidence and internal staff views, the Commission
Directing its attention to the Westchester bus problem, the Commission observed that substantial progress had been made in resolving the busing issue and that interim measures were adequate during negotiations with Westchester bus drivers. The Commission explained that any emergency evacuation could be accomplished in part through carpooling and that experience had shown that bus drivers do not shirk their responsibilities during emergencies. Moreover, the NRC staff had represented that if a fast-breaking nuclear accident were to occur, sheltering, not evacuation, would be the preferred initial safety procedure until the radioactive plume had passed. Hence, the four-to-five hour delay in mobilizing National Guard troops would be less dangerous; by the time the radioactive plume had passed, National Guard troops would be positioned to evacuate surrounding populations.
Shifting its focus to the Rockland County situation, the Commission conceded that the county's failure to develop and implement an emergency plan raised troubling questions concerning the overall status of emergency preparedness at Indian Point. The Commission did indicate, however, that it was impressed with the efforts of Rockland officials to devise a workable emergency plan for the county. Moreover, the State of New York had developed a generic emergency preparedness plan that had been supplemented by site-specific planning for Rockland County. The Commission observed that a "senior management team (comprised of six state agencies) has been identified, and training has been initiated [to implement the state's generic plan in Rockland County]." J.App. at 7. The Commission viewed the state's plan as an adequate interim compensating measure while Rockland County worked to complete its plan.
DISCUSSION
A. Procedural Claims
1. Exhaustion: Rockland County
The Commission, joined by utility intervenors PASNY and Con Ed, argue that Rockland's petition should be dismissed because the county has failed to exhaust available administrative remedies. We agree. This action reaches us on Rockland's petition for review of an administrative order in which the Commission declined to shut down or take alternative enforcement
Rockland clearly qualified as an entity "whose interest may be affected" by the Commission's review of emergency preparedness at Indian Point. As such, the county could have participated in the December 1982 Commission proceedings and would have been entitled to party status for purposes of appeal. Alternatively, Rockland could have filed a section 2.206 petition
The "party status" rule is premised on the exhaustion doctrine, a judicially created concept which serves a vital function in the context of administrative decisionmaking:
Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 817, 31 L.Ed.2d 17 (1972); see McKart v. United States, 395 U.S. 185, 194-95, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1968); see generally Gage v. United States Atomic Energy Commission, 479 F.2d 1214, 1217-21 (D.C.Cir.1973). Since Rockland has failed to offer any convincing reason or justification for its failure to exhaust available administrative remedies, its petition is dismissed. See Gage v. United States Atomic Energy Commission, 479 F.2d at 1216 ("We hold that petitioners have come to the wrong forum with an inappropriate claim in search of an unavailable remedy."); see also Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 238-39 (3d Cir.1980), cert. denied, 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824 (1981).
2. Exhaustion: NYPIRG/UCS
Intervenors NYPIRG/UCS filed an administrative petition pursuant to section 2.206. Because the petition was considered and denied by the Commission, it is properly before this forum. See Rockford League of Women Voters v. United States Nuclear Regulatory Commission, 679 F.2d 1218, 1221 (7th Cir.1982); Porter County Chapter of the Izaak Walton League of America, Inc. v. United States Nuclear Regulatory Commission, 606 F.2d 1363, 1368 (D.C.Cir.1979). However, that petition only challenged the August 1982 decision to begin a second 120-day clock—it was not directed to the December 1982 Commission order. Ordinarily, this flaw would be fatal insofar as our review of the unchallenged December order. However, the Commission's order of February 3, 1983 denying the NYPIRG/UCS petition makes it difficult to separate the merits of the August and December decisions. In fact, the Commission
3. Finality
The utility intervenors urge that the Commission's December 1982 enforcement ruling is not a final order and hence is not appealable at this time. The utilities cite language in the December 1982 decision which states that the judgment to forego enforcement action will be reexamined after the March 1983 emergency exercise at Indian Point. J.App. at 10.
The fact that the Commission may reexamine its decision at a later date does not detract from the final nature of the December decision. The Commission unequivocably held that no enforcement action would be taken at Indian Point at that time and serious legal consequences flow from that decision—the intervenor utilities are authorized to restart operations at Indian Point. See Port of Boston Marine Terminal Association v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970); Illinois Citizens Committee for Broadcasting v. F.C.C., 515 F.2d 397, 402 (D.C.Cir.1975). If a nuclear accident happened after the Commission declined to take enforcement action at Indian Point, the harm to surrounding populations could be immediate and the consequences catastrophic. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 81-82, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978); New York Shipping Association v. Federal Maritime Commission, 495 F.2d 1215, 1218-20 (2d Cir.1974), cert. denied, 419 U.S. 964, 95 S.Ct. 224, 42 L.Ed.2d 178 (1975). To hold that this decision is nonreviewable would mean that any Commission order short of a shutdown order entered after a review of an emergency plan would be unreviewable.
B. Substantive Claims
Intervenors NYPIRG/UCS mount a twofold attack on the Commission's December 1982 decision. They argue that the Commission failed to follow agency regulations when it declined to take enforcement action despite finding serious deficiencies in emergency preparedness at Indian Point. They also assert that the Commission acted arbitrarily and capriciously, and abused its discretion, by failing to shut down or to take other enforcement action at Indian Point.
1. Failure to Follow Agency Regulations
Intervenors NYPIRG/UCS argue in substance that NRC regulations require
NRC regulations provide that if the Commission determines that a finding of "reasonable assurance" cannot be made, then it must decide whether enforcement action should be taken. In reaching its decision, the Commission is guided by, among other factors, the relative significance of the deficiencies, whether adequate interim compensating measures have been or will be taken promptly and whether there are additional compelling reasons for continued operation. 10 C.F.R. § 50.54(s)(2)(ii) (1982). In this case, the Commission considered, among other factors, that substantial progress had been made to correct deficiencies at Indian Point, that the remaining problems would likely be corrected within a short period of time and that the likelihood of a severe nuclear accident in the intervening "correction period" was extremely remote. Weighing these factors, the Commission determined that no enforcement action should be taken at this stage in the emergency planning process at Indian Point. We find nothing in the language or legislative history of the AEA or ERA, nor in the regulations promulgated by the Commission, that would preclude it from relying on these factors when considering whether enforcement action is necessary. Congress has given the Commission considerable latitude to decide the difficult questions that arise with respect to nuclear safety. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 543, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). We will not unduly circumscribe that latitude by placing unwarranted restrictions on the agency review process.
2. Propriety of December 1982 Decision
The intervenors assert that the Commission acted arbitrarily, capriciously and abused its discretion by declining to take enforcement action to correct deficiencies in emergency preparedness at Indian Point. Again, we disagree.
When considering a petition for review of a final Commission order, we are guided by the arbitrary and capricious standard found in section 10(e) of the Administrative Procedure Act. 5 U.S.C. § 706(2)(A) (1976). The courts have cautioned that the section 10(e) standard of review is "narrow," Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971), and "highly deferential," Ethyl Corp. v. E.P.A., 541 F.2d 1, 34 (D.C.Cir.1976) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976). Although couched in different terms by the various federal courts, the fundamental duty of the appellate court on review remains well established:
Cross-Sound Ferry Services, Inc. v. United States, 573 F.2d 725, 730 (2d Cir.1978); see Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 441-42, 42 L.Ed.2d 447 (1974); Benmar Transport & Leasing Corp. v. I.C.C., 623 F.2d 740, 743 (2d Cir.1980). Our review is deferential because the Commission and its staff have special expertise and a wide range of experience in nuclear power plant operation and safety.
The December 1982 Commission decision and February 1983 order were not irrational. The seminal question raised in the Indian Point proceedings was whether emergency preparedness would be sufficient to provide reasonable assurance that those people within the ten mile EPZ surrounding Indian Point would be adequately protected in the event of a major nuclear accident. FEMA undertook an exhaustive
We, of course, express no view on the proceeding regarding the Indian Point plant now pending before the Commission as a result of the March 1983 exercise.
Petition for review is denied.
FootNotes
10 C.F.R. § 50.47(c)(2) (1982). Those states and counties within the 50 mile "ingestion pathway EPZ" were not required to prepare and implement an emergency evacuation plan, but rather were expected, in the event of a nuclear accident, to monitor vegetation and air quality for abnormal traces of radioactive material.
See J.App. at 19.
§ 2.206 Requests for action under this subpart.
10 C.F.R. § 2.206 (1982).
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