Union of Concerned Scientists v. NRC
Citation: 17 ELR 21233
No. Nos. 85-1757, 86-1219, 824 F.2d 108/(D.C. Cir., 08/04/1987)
The court holds that the Nuclear Regulatory Commission's (NRC's) "backfitting" rule violates the Atomic Energy Act (AEA) by improperly allowing the consideration of economic costs. The term "backfitting" refers to modifications of design, equipment, or operating procedures of previously licensed nuclear plants; the original rule was intended to take into account changes and improvements in nuclear safety technology and provided that the NRC could require a backfit when the modification would substantially increase protection to public health and safety. In 1985, the agency revised the backfitting rule to add a requirement that the benefits of the backfit justify its costs, with an exception that the cost justification requirement will not apply when the proposed backfit is for purposes of ensuring that the facility will pose "no undue risk" to the public health. The court first rules that the NRC may not consider the economic costs of safety measures in determining the standard of "adequate protection" mandated by AEA § 182(a). The language of § 182(a) makes no reference to economic costs; to the contrary, it simply states that the NRC is to ensure adequate protection of the public health and safety. Moreover, when Congress intends for agencies to consider economic considerations, it knows how to expressly indicate this in a statute. The overall goals and history of the AEA also support the court's conclusion, focusing as they doon the importance of closely regulating a new and dangerous industry. Finally, the Supreme Court has indicated, albeit in a case on a narrower point, that this court's interpretation of the adequate protection standard is proper, and the NRC's predecessor itself, the Atomic Energy Commission, held that the AEA prohibited the consideration of economic costs or other factors not related to health and safety in making adequate protection determinations. The court holds that its prohibition on economic considerations applies both when the NRC determines the content of the adequate protection standard and when the Commission enforces the standard in individual cases. The concept of adequate protection is not self-defining, and must be addressed when the Commission looks at whether a particular nuclear plant possesses the safety features necessary to achieve the standard. The court notes that the level of adequate protection is not necessarily a level of zero risk.
The court then rules that under § 161, which allows the NRC to order plants to provide extra protection over and above the adequate protection standard mandated by § 182(a), the agency may take economic costs into account. The phrasing in § 161, "to protect health or to minimize danger to life or property," cannot be read as a minimum standard, since that minimum standard is provided by § 182(a). The court holds that the authority granted by § 161 to require additional standards is entirely discretionary and thus the NRC may use economic analysis to decide whether exercising its authority under § 161 is reasonable.
Turning to the backfitting rule itself, the court holds that the NRC improperly considered economic costs. Although the rule could be interpreted to except all backfits necessary to ensure adequate protection from the rule's provisions, the NRC has indicated that its understanding of the rule is to allow the consideration of costs in the establishment of the adequate protection standard. Moreover, the rule is ambiguous and vague, fails to explain the scope of the exceptions, and does not clarify what action the agency will take should a backfit fall within one of the exceptions. The court holds that the backfitting procedures in the NRC Manual are also invalid, since the procedures are intertwined with the provisions of the final rule.
A concurring judge concludes that there was no dispute between the petitioners and the NRC concerning § 182(a), and that the court's extended discussion on this issue was thus unnecessary.
Counsel for Petitioners
Ellyn R. Weiss
Harmon & Wilmot
3rd Fl., 1029 Vermont Ave. NW, Washington DC 20005
Counsel for Respondent
Martin G. Malsch, Assoc. General Counsel for Licensing and Regulation
Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20006
Before: MIKVA, EDWARDS and WILLIAMS, Circuit Judges.