Before: ROBINSON, Chief Judge, WRIGHT, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA and STARR, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1986.CDC.129
SAN LUIS OBISPO MOTHERS FOR PEACE; SCENIC SHORELINE
PRESERVATION CONFERENCE, INC.; ECOLOGY ACTION CLUB;
SANDRA SILVERS; GORDON SILVER; ELIZABETH
COMPANY, Intervenor. GEORGE DEUKMEJIAN, GOVERNOR OF THE
COMPANY, Intervenor; SAN LUIS OBISPO MOTHERS FOR PEACE, ET
PACIFIC GAS AND ELECTRIC COMPANY, Intervenor; SAN LUIS
OBISPO MOTHERS FOR PEACE, ET AL., Petitioners v. UNITED
STATES NUCLEAR REGULATORY COMMISSION and UNITED STATES OF
AMERICA, Respondents PACIFIC GAS AND ELECTRIC COMPANY,
Nos. 84-1410, 81-2034, 81-2035, 83-1073, 84-1042
Petitions for Review of an Order of the Nuclear Regulatory Commission
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BORK
Opinion for the Court filed by Circuit Judge BORK.
Concurring opinion filed by Circuit Judge MIKVA, concurring in Parts I and II of Judge BORK's opinion and in the result reached by Part III.
Dissenting opinion filed by Circuit Judge WALD, in which Chief Judge ROBINSON and Circuit Judges WRIGHT and GINSBURG concur.
This case presents two questions. The first is whether the Nuclear Regulatory Commission ("NRC" or "Commission"), before issuing a license for the operation of the Diablo Canyon Nuclear Power Plant, is required to hold a hearing concerning the potential complicating effects of an earthquake on responses to a simultaneous but independently caused radiological accident at the plant. The risk of that happening is calculated as being one in several tens of millions. The second question is whether this court should examine transcripts, not a part of the record, of a closed meeting of the Commission.
In In San Luis Obispo Mothers for Peace v. NRC, 243 U.S. App. D.C. 68, 751 F.2d 1287 (D.C. Cir. 1984), a panel of this court affirmed a decision by the NRC to allow issuance of low power and full power licenses for the Diablo Canyon plant. In so doing, the panel majority considered and rejected petitioners' claim that the Commission improperly excluded from licensing hearings specific consideration of the potential complicating effects of an earthquake on planned emergency responses at the Diablo Canyon facility. The same majority refused to examine the proffered transcripts. See id. at 1323-29. Subsequently the full court vacated a portion of the original opinion and judgment and granted rehearing en banc to consider the questions more fully. See 760 F.2d 1320. We now affirm the Commission's decision. I.
Licensing proceedings for nuclear power plants are typically long and complex and the Diablo Canyon proceedings were no exception. In this section, we set forth only a skeletal history of those proceedings, taken largely from the panel opinion. See 751 F.2d at 1296-97. Additional facts relevant to the specific issues we consider are set fourth throughout the opinion.
The petitioners in this case consist of a number of individuals who, and groups whose members, live and work near the Diablo Canyon plant. They have been active in the Commission's proceedings related to the licensing of the plant.
The Atomic Energy Commission , the predecessor to the NRC, issued construction permits to the Pacific Gas and Electric Company for Units 1 and 2 of the pressurized water reactor plant at Diablo Canyon in 1968 and 1970. See Docket No. 50-323, 4 A.E.C. 447, 460 (1970), aff'd, ALAB-27, 4 A.E.C. 652, 664 (1971) (Unit 2); Docket No. 50-275, 4 A.E.C. 89, 98-99 (1968) (Unit 1). Construction began shortly thereafter, based on the assumption that the nearest significant earthquake fault was eighteen to twenty miles away. See ALAB-519, 9 N.R.C. 42, 45 (1979). Four years later, offshore exploration for petroleum revealed the presence of the Hosgri Fault within three miles of the Diablo Canyon site. See id. Petitioners, who had intervened in the administrative proceedings, requested that construction at the facility be stopped until the implications of the discovery could be assessed, but the AEC permitted construction at the plant to continue. See 4 A.E.C. 914 (1972). Following an extensive reexamination, the Commission's Appeal Board approved the plant's seismic design on June 16, 1981. ALAB-644, 13 N.R.C. 903 (1981).
On September 21, 1981, the Commission rejected claims that the emergency planning program at Diablo Canyon was deficient and issued a license to PG & E to load fuel and conduct low power testing at Unit 1. See CLI-81-22, 14 N.R.C. 598 (1981). Investigation by PG & E and the Commission's staff, however, soon uncovered various design errors, see CLI-81-30, 14 N.R.C. 950, 951 (1981), and on November 19, 1981, the Commission suspended PG & E fuel loading and low power test license. Id. at 950. To ensure that the plant would be adequately protected against seismic disturbances, the Commission ordered PG & E as a condition of reinstatement of the license, to institute an independent design verification program. See id. at 951, 955-58. In addition, several requirements concerning seismic and other design verification issues were imposed on PG&E as conditions of its eligibility for a full power license. See CLI-84-13, 20 N.R.C. 267 (1984).
Professionals expended more than 2,000,000 hours on the reanalysis and modification of the plant's design, which were completed in October 1983. CLI-84-5, 19 N.R.C. 953, 971 (1984) (views of Commissioner Bernthal). The NRC staff undertook an independent review of the results of the Independent Design Verification Program after which the Commission progressively reinstated elements of the suspended low power license in late 1983 and early 1984. See CLI-84-5, 19 N.R.C. 953 (1984); CLI-84-2, 19 N.R.C. 3 (1984); CLI-83-27, 18 N.R.C. 1146 (1983). Reinstatement of the license was consistent with the Appeal Board's findings that "the applicant's verification efforts provide adequate confidence that the Unit 1 safety-related structures, systems and components are designed to perform satisfactorily in service and that any significant design deficiencies in that facility resulting from the defects in the applicant's design quality assurance program have been remedied." ALAB-763, 19 N.R.C. 571, 619 (1984).
On August 10, 1984, the NRC approved issuance of a full power license for the Diablo Canyon plant. CLI-84-13, 20 N.R.C. 276 (1984). Petitioners appealed both the low power and full power orders to this court and, before the license had issued, the court granted petitioners' motion for a stay. On October 31, 1984, after oral argument, the court lifted the stay, thereby permitting issuance of the full power license and the commencement of operations at Diablo Canyon. On December 31, 1984, the court affirmed the Commission's decision to permit issuance of the low power and full power licenses. See San Luis Obispo Mothers for Peace v. NRC, 243 U.S. App. D.C. 68, 751 F.2d 1287 (D.C. Cir. 1984). The court found that the Commission made two legal errors (not related to the issues considered in this en banc proceeding), but that neither warranted judicial relief since one was harmless and the other had already been remedied by the Commission. See id. 1311-12.
Specifically with regard to emergency planning, the panel majority held that the Commission did not err by excluding consideration of the efforts of earthquakes on emergency responses at Diablo Canyon. In addition, the majority denied petitioners' motion to supplement the administrative record with the transcripts of a closed meeting of the NRC. See 751 F.2 at 1323-29. Judge Wald, dissenting in part, thought that the Commission's exclusion of consideration of earthquakes was arbitrary and capricious and that the court should make an in camera inspection of the transcripts in deciding whether to grant petitioners' motion to supplement the record. 751 F.2d at 1329-32. II.
Petitioners argue that the Commission's decision to exclude from the Diablo Canyon licensing proceedings consideration of the potential complicating effects of an earthquake on emergency responses "has deprived Petitioners of their right to an on-the-record hearing on a material safety issue . . . in violation of § 189(a) of the Atomic Energy Act as applied by this Court in Union Concerned Scientists v. [ NRC, 237 U.S. App. D.C. 1, 735 F.2d 1437 (1984), cert. denied, 469 U.S. 1132, 105 S. Ct. 815, 83 L. Ed. 2d 808 (1985)]." Supplemental Brief for Petitioners on Rehearing En Banc ("Pet. Supp. Br.") at 11 (citations omitted).
Section 189(a)(1) of the Atomic Energy Act provides that "[i]n any proceeding under this chapter, for the granting . . . of any license . . ., the Commission shall granting a hearing upon the request of any person whose interest may be affected by the proceeding." 42 U.S.C. 2239(a)(1) (1982). It follows from Union of Concerned Scientists, however, that the "interest" which entitles a person to a hearing is defined by the Commission's rules and regulations. In that case, we invalidated an NRC amendment to its rule on emergency preparedness. The amendment eliminated the requirement of a hearing on the results of emergency preparedness exercises as a prerequisite to authorization of a license. But those results remained a factor that the Commission was required to consider in its licensing decision. "Since the NRC, by its own regulations, has made correction of deficiencies identified in emergency exercises a requirement of its ultimate licensing decision, it would seen to follow that results of these exercises must be subject to the § 198(a) hearing requirement." 735 F.2d at 1442; accord id. at 1445.
Union of Concerned Scientists holds only that the Commission cannot exclude from a section 189(a) hearing issues that its rules of regulations require it to consider in its licensing decisions. As the opinion states: "Today, we in no way restrict the Commission's authority to [limit the purposes for which it considers emergency exercises relevant] as a substantive licensing standard." 735 F.2d at 1448 (footnote omitted). Thus, to establish, on the rationale of Union of Concerned Scientists, that the Commission in this case impermissibly refused a hearing, petitioners must show that NRC rules or regulations required the Commission to consider the potential complicating effects of earthquakes on emergency responses in deciding whether to license Diablo Canyon. Petitioners have made no such showing.
Petitioners assert that "the Commission's interpretation and application of its own regulations are entitled to no weight," Pet. Supp. Br. at 20, because "the Commission's conclusion is undermined both by the language and prior application of the NRC's regulations," Pet. Supp. Br. at 12, and also because "'the Commission's outright refusal to make explicit provision in emergency response plans for an earthquake in a nuclear plant within three miles of a major, active fault in California is by definition an arbitrary and capricious act,'" Pet. Reply Br. at 3 (quoting 751 F.2d at 1335 (Wald J., dissenting)): see also Pet. Supp. Br. at 15-21. We think these contentions do not survive analysis.
We consider first the question whether the Commission's regulation requires consideration of earthquakes and thereby triggers section 189(a)'s hearing requirement.
*fn1. The Commission's interpretation of the regulation. We note at the outset that courts are not at liberty to set aside an agency's interpretation of its own regulations unless that interpretation is plainly inconsistent with the language of the regulations. See United States v. Larionoff, 431 U.S. 864, 872-73, 53 L. Ed. 2d 48, 97 S. Ct. 2150 (1977); National Association of Regulatory Utility Commissioners v. FCC, 241 U.S. App. D.C. 175, 746 F.2d 1492, 1502 (D.C. Cir. 1984). the degree of deference due is great.1 We "need not find that the agency's construction is the only possible one, or even the one that the court would have adopted in the first instance." Belco Petroleum Corp. v. FERC, 191 U.S. App. D.C. 157, 589 F.2d 680, 685 (D.C. Cir. 1978). As stated by the Supreme Court:
Since this involves an interpretation of an administrative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt . . . . The ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.
Bowles v. Seminole Rock Co., 325 U.S. 410, 413-14, 89 L. Ed. 1700, 65 S. Ct. 1215 (1945).
The only NRC regulation relevant to this case is the regulation dealing with emergency planning. Promulgated in 1980 following the accident at Three Mile Island, that regulation provides in pertinent part that "no operating license for a nuclear power reactor will be issued unless a finding is made by NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 10 C.F.R. § 50.47(a)(1) (1984). Though that regulation represents a departure from the Commission's previous policy of requiring little or no emergency planning, the Commission has consistently interpreted that regulation not to require specific consideration of the potential complicating effects of earthquakes. See Pacific Gas & Eletric Co., (Diablo Canyon Nuclear Power Plant, units 1 & 2), CLI-84-12, 20 N.R.C. 249 (1984); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), CLI-81-33, 14 N.R.C. 1091 (1981).
Petitioners' claim that the Commission's interpretation contradicts the language of the emergency planning regulation is supported only by a quotation of the regulatory language. That language, however, does not contradict, but amply supports, the Commission.
The regulation does not address any particular emergency or natural hazard; rather, it sets forth a general standard that envisions judgment and implies discretion: the Commission is to satisfy itself that there is "reasonable assurance" of "adequate" protective measures. In this case, we think that the Commission's view -- that it need not consider the potential effects of earthquakes to determine "that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency" -- is not, by any stretch of the imagination, "plainly inconsistent" with the regulatory language. *fn2
Petitioner assert, however, that the Commission's interpretation is "undermined" by an NRC staff report referred to in the emergency planning regulation. Subsection (b) of the regulation sets forth sixteen specific standards which the onsite and offsite emergency response plans for nuclear power reactors must meet. A footnote to subsection (b) states: "These standards are addressed by specific criteria in NUREG-0654; FEMAREP-1 entitled 'Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in support of Nuclear Power Plants -- for Interim Use and Comment', January 1980." 10 C.F.R. § 50.47 (b) n.1 (1984). NUREG-0654 was a joint project of the NRC and FEMA staffs "to provide a common guidance and reference source for . . . State and local governments and nuclear facility operators in the development of radiological emergency response plans and preparedness in support of nuclear power plants." NUREG-0654 at 1.
We do not think NUREG-0654 undermines the Commission's interpretation of its emergency planning regulation. Petitioners state that NUREG-0654 contains "general references to 'natural hazards.'" Pet. Supp. Br. at 13. But we can find no reference, general or specific, to "natural hazards" in the body of the document. Petitioners quotes two statements from the report in support of their assertion. The first is that "each State and local organization should have procedures in place that provide for emergency actions to be taken which are consistent with the emergency actions recommended by the nuclear facility licensee, taking into account local off-site conditions that exist at the time of the emergency." NUREG-0654 at 42. The second statement is that "the organization's plans to implement protective measures for the plume exposure pathway shall include . . . identification of and means for dealing with potential impediments (e.g., seasonal impassability of roads) to use of evacuation routes, and contingency measures." NUREG-0654 at 61-63. Petitioners' argument is that these sentences constitute "references to 'natural hazards'" and that the Commission is therefore required to consider the effects of earthquakes on emergency planning. This argument is unsound.
It is not all clear that the phrases, "local offsite conditions" and "potential impediments . . . to evacuation routes," were intended to suggest specific consideration of all conceivable "natural hazards." Taken in context, these phrases constitute broad references. They might suggest some consideration of natural phenomena reasonably anticipated at the plant such as seasonal rains, fog, or "seasonal impassibility of roads." But petitioners' reading of these references to require specific consideration of such highly unlikely and infrequent events as an earthquake at the plant sweeps much too broadly. If we accept petitioners' argument, we can think of no potential natural or unnatural hazards, regardless of their improbability, that the Commission would not be required to consider. That is a prescription for licensing proceedings that never end and plants that never generate electricity. Petitioners themselves attempt to disavow that logical conclusion of their argument. For example, at oral argument petitioners conceded that the emergency planning regulations (and presumably NUREG-0654) do not require the Commission to consider the potential complicating effects of a meteorite striking the plant. Yet we do not see why NUREG-0654 would not require just such consideration given a holding that it requires consideration of potential simultaneous earthquakes and independently caused radiological accidents at the plant. As we will show, the latter is not significantly more likely than the former.
Moreover, our conclusion that NUREG-0654 does not counsel specific consideration of earthquakes is more in keeping with NUREG-0654's stated policy that "no single specific accident sequence should be isolated as the one for which to plan because each accident should have different consequences, both in nature and degree," NUREG-0654 at 6, than is petitioners' contrary assertion.
Petitioners also claim that a reference to earthquakes in NUREG-0654's appendix undercuts the Commission's interpretation of the applicable regulations. See Pet. Supp. Br. at 13. The appendix contains a list of "example initiating conditions" that could lead to a "site area emergency" that includes: "Severe natural phenomena being experienced or projected with plant not in cold shutdown." NUREG-0654 app. 1 at 1-13. It is to be noted that this example refers to an earthquake that causes a radiological emergency, not an earthquake that complicates emergency responses. The former risk, to which the example pertains, was the subject of extensive hearings and is not under review here. Under this example is listed: "Earthquake greater than SSE levels." Id. "The SSE is the most powerful earthquake ever expected to occur at the plant site." ALAB-644, 13 N.R.C. 903, 911 (1981). For Diablo Canyon, the SSE was calculated to be an earthquake of 7.5 magnitude. Id. at 910. Far from being "projected" for the Diablo Canyon, an earthquake greater than SSE levels, by definition, is never expected to occur at the plant site. Indeed, the Commission has noted that the probability that an earthquake at the SSE level will occur has "typically been estimated to be on the order of one in a thousand or one in ten thousand per year." CLI-84-4, 19 N.R.C. 937, 948 (1984). Evidence before the Licensing Board indicated that "there have not been recurrent earthquakes above 6.5 magnitude on the Hosgri in the past 17,000 years." LBP-79-26, 10 N.R.C. 453, 482 (1979). The fact is particularly significant because the Hosgri is 90 miles long, see id. at 472, and only a small portion of it is near the Diablo Canyon plant. As the panel majority stated in a portion of its opinion not vacated by our May 1, 1985 Order: "We must assume, therefore, that the likelihood that an earthquake will trigger a nuclear accident at the facility is so small as to be rated zero." 751 F.2d at 1304 (footnote omitted).
Moreover, even if we agreed with petitioners' claim that NUREG-0654, in its body or appendix, suggests consideration of earthquakes, the emergency planning regulations' reference to NUREG-0654 makes plain that it is a staff document intended simply to provide guidance to parties in complying with the standards set forth in the emergency planning regulations: "NRC staff has developed . . . a joint NRC/FEMA report, NUREG-0654 . . . to provide guidance in developing plans for coping with emergencies." 10 C.F.R. Part 50 app. E n.1 (1984). Under the regulations, the Commission is required to make its own finding that emergency plans "provide reasonable assurance" of "adequate protective measures" and meet the specified regulatory standards. See 10 C.F.R. 50.47(a)(1) & (b) (1984). These regulatory standards contain no references to "natural hazards," to say nothing of earthquakes. To accept petitioners' argument, therefore, we would have to hold that NUREG-0654, a staff document intended as guidance, supersedes the regulation itself. The only virtue of that approach is novelty. *fn3
2. The Commission's applications of the regulation. Petitioners' next argument is that the Commission's interpretation conflicts with "prior application of the NRC's regulations." If petitioners suggest an inconsistency with prior Commission applications, their assertion is false. The Commission has never applied its regulation in any way except the way it did here. Indeed petitioners' only support for their claim is apparently that the Commission's staff has called for emergency plans to consider the potential complicating effects of earthquakes. The position of an agency's staff, taken before the agency itself decided the point, does not invalidate the agency's subsequent application and interpretation of its own regulation.
The facts are as follows. In December, 1980, a member of the NRC's staff sent PG & E a letter requesting that it evaluate "the potential complicating factors which might be caused by earthquakes which either initiate or follow the initiation of accidents," Record, vol. 69, exh. 117 (Letter from Tedesco to Furbush (Dec. 16, 1980)). See Pet. Supp. Br. at 5, 13. A staff member wrote a memorandum on November 3, 1980 requesting that the Federal Emergency Management Agency review the adequacy of state and local capabilities for emergency response to a radiological accident occurring during an earthquake. See Pet. Supp. Br. at 5-6 (citing Record, vol. 69, attachment to exh. 117 (Memorandum from Grimes to McConnell (Nov. 3, 1980))). Petitioners ignore the fact that both of these documents were written before the Commission itself had interpreted its emergency planning regulation.
The regulation was promulgated in 1980 and the question whether it required consideration of earthquakes first came before the Commission in 1981, after it was raised by the Atomic Safety and Licensing Board in the context of licensing the San Onofre Nuclear Generating Station. The Commission decided "that its current regulations do not require consideration of the impacts on emergency planning of earthquakes which cause or occur during an accidental radiological release." San Onofre, CLI-81-33, 14 N.R.C. at 1091. *fn4 In so interpreting its regulation, the Commission stated:
A review of the rulemaking file associated with the Commission's emergency planning regulations reveals that . . . three commenters suggested that the NRC specifically require the occurrence of earthquakes or severe natural phenomena to be part of the basis for emergency response planning, but the comments were not accepted in the final rule. The current regulations are designed with the flexibility to accommodate a range of onsite accidents, including accidents that may be caused by severe earthquakes. This does not, however, mean that emergency plans should be tailored to accommodate specific accident sequences. . . .
San Onofre, CLI-81-33, 14 N.R.C. at 1092 (citations omitted). Thus, the 1980 staff documents on which petitioner rely in no way affect the legitimacy of the Commission's subsequent decision to require consideration of earthquakes on emergency planning at Diablo Canyon. The positions of an agency's staff do not preclude the agency from subsequently reaching its own conclusion.
The San Onofre rule has been followed since. The Appeal Board relied explicitly on San Onofre to reject a challenge to the Licensing Board's authorization of low power testing at Diablo Canyon on the ground that it should have required consideration of earthquakes in emergency planning. See ALAB-728, 17 N.R.C. 777, 792-93 (1983), aff'g LBP-81-21, 14 N.R.C. 107 (1981). The Commission itself then summarily declined review. See CLI-83-32, 18 N.R.C. 1309 (983).
Prompted in part by two staff memoranda, the Commission in 1984 decided to consider whether "the circumstances of [the Diablo Canyon] case . . . provide a basis for departure from its decision in" San Onofre. See Diablo Canyon, CLI-84-12, 20 N.R.C. at 249. Specifically, the Commission requested that petitioners, PG & E and the NRC staff submit comments addressing "whether NRC emergency planning regulations can and should be read to require some review of the complicating effects of earthquakes on emergency planning for Diablo Canyon." CLI-84-4, 19 N.R.C. 937 (1984). After receiving and considering these comments, the Commission reaffirmed its original interpretation "that the NRC's regulations 'to not require consideration of the impacts on emergency planning of earthquakes which cause or occur during an accident radiological release.'" Diablo Canyon, CLI-84-12, 20 N.R.C. at 250 (quoting San Onofre, CLI-81-33, 14 N.R.C. at 1091). *fn5 Thus, there can be no doubt that the NRC's position has not only been consistently applied by has been thoughtfully reconsidered in this very proceeding.
Petitioners cite the two staff memoranda just referred to for the proposition that "since 1980, the Commission's staff has frequently advocated the view that consideration of the effects of earthquakes on emergency planning 'may be warranted' for reactor sites in California because of their 'relatively high' seismic risk." Pet. Supp. Br. at 6 & n.15 (citing Memoranda of Jan. 13, 1984 and June 22, 1982, attachments 1 & 2 to CLI-84-4, 19 N.R.C. 937 (1984)). Petitioners support their assertion that the staff "frequently advocated" a view contrary to the Commission's with the following parenthetical: "('planning for earthquakes which might have emergency preparedness implications may be warranted in areas where the seismic risk to offsite structures is relatively high (e.g., California sites . . . )')." Pet. Supp. Br. at 6 n.15. This is a single occasion, not a frequent event. Worse, the claim that it constitutes "advocacy is completely misleading. Petitioners have taken the quoted language out of context.
The language in question comes from the January 13, 1984 memorandum. The memorandum first recounts the substance of the Commission's San Onofre decision and the Commission's statement that it would consider whether its regulations should be changed. The memorandum then states that the Commission's Secretary directed the staff to undertake such consideration and that ...