Citizens for Safe Power, Inc., and Audubon Naturalist Council v. Nuclear Regulatory Commission, Maine Yankee Atomic Power Company, Intervenor

BAZELON, Chief Judge

(concurring):

I am in general agreement with the result reached by the Court, and concur in much of its opinion. But I am anxious that we not endorse the notion that a generating station’s conformance to pre-existing AEC (now NRC) rules and regulations is a sufficient basis for findings of acceptability as to “health and safety” issues in the absence of evidence of special risk or harm. 1 Were I not convinced that the instant findings were properly grounded in other aspects of the proceeding, I could not approve application of the rule. Similarly, I am troubled by the Court’s suggestion that less than full-term licensing need not be considered here because an incorporated license condition requires the licensee to take corrective steps if “certain significant and adverse effects are shown.” 2 In the first instance, licenses may be routinely granted without independent examination of the risk to “health and safety” caused by releasing rule-permitted amounts of radiation, even where specific circumstances ought raise warning flags. Likewise, if challengers must *1303 produce staggering quantums of evidence merely to raise the question of license suspension, ongoing activities will very rarely be re-examined. My specific concern is that public interest groups and others opposed to operation may not be able to finance a sufficient effort to uncover risks, harms or “significant and adverse effects.” As I recently said,

. to require of impecunious associations or private citizens a quantum of evidence beyond their financial means to marshal, as prerequisite to examining the rule or its controlling effect, is to blunt the tools with which bad or outdated rules are discarded or limited.

American Public Power Association v. FPC, 173 U.S.App.D.C. -, 522 F.2d 142 (1975) (Bazelon, C. J., concurring).

In the instant case, the Court correctly notes that prejudice does not result from the somewhat wooden application of licensing regulations, because there was a full ventilation of known risks and benefits in the environmental phase of the hearings. There is a distinction between a testing of the “health and safety” risks in releasing a rule-permitted amount of radiation, and a weighing and balancing of those risks and others which may exist in a particular facility against the benefits of operating such a plant. Nonetheless, I am satisfied that in conducting such a risk-benefit analysis, the agency did assess residual radiological effects, and found them not “to endanger” or be “inimical to” public health and safety. 3 Thus, we are not faced with a failure to make the requisite findings, but with the argument that they were not made in the “proper” portion of the inquiry. The chief value of procedural strictness is that it maximizes critical examination of vital concerns; however, I fail to see how any lapse of formalism here weakened the validity of the findings rendered, or prejudiced petitioners in any way.

This case raises for me several lurking problems of untested technology and protection of the public against risk. Here that concern is presented in a highly rarefied form: there is essentially no dispute over the amount of radiation to be released to the environment by the Maine Yankee Atomic Power Station. Nor is there pitched battle over the low risk factor presently assigned to the release of such amounts. Science believes that it can quantify and understand the danger posed to organisms and the environment by those undisputed levels. The risk at issue herein is the risk that such present scientific knowledge is simply wrong or blind in such degree that after the passage of time and further study, the danger to society will be seen as greater than expected by orders of magnitude. Said differently, the twin risks are that either science is ignorant of entire categories of harm, or that rule-permitted quantities of radiation do the type of damage they are thought to, but to a far greater extent, or in a cumulative fashion with other factors so as to render difference in degree a difference in kind. These risks are hardest to calculate because they surpass the problems posed by mere ignorance of a new technology. The scientists and decision-makers are asked to assess and make allowance for the probabilities that present scientific understanding is itself terribly wrong.

Having posed such complex and conceptual questions, it would be foolhardy to proffer ironclad solutions. Petitioners assert that among the alternatives which NEPA bids the licensing agency consider are license periods shorter than the maximum statutory period of forty years. 4 While the statute does not mandate forty year license periods it gives the Commission the power to so mandate. 5 *1304 Without foreclosing the argument that in extreme or emergency circumstances (with attendant risks even higher than those now understood to obtain in the nuclear field) such an approach is required, I cannot disagree with the Court. Nor can I say that the balance struck by Congress in legislating agency authority to license for that period has been repealed sub silentio by NEPA.

A far better course, perhaps, would be to utilize procedures for license suspension 6 upon a showing of reason to believe that the risk of harm caused by operation of the plant exceeds those expected levels upon which the license was premised. Similarly, suspension would be an avenue available where changes in scientific perception would later regard as deleterious levels of nuclear effluent or radiation release now thought to be harmless. Lines of inquiry and challenge would thus be kept open. My specific concern about imposing an unreasonable standard for raising the question of looking beyond the rule is particularly salient in the area of license suspensions. It is more difficult by far to shut down an operating facility, which may involve cutbacks of service to present consumers, than to block or modify a proposed facility-

If society is to rely upon the suspension mechanism for protection against the risk of gross errors in scientific understanding, it must not only insure that the threshold for inquiry is reasonable, but also assist the objectors to state their case. For example, the Federal Trade Commission Improvement Act of 1974, 7 expressly grants to the FTC authority to reimburse intervenors’ expenses in the interest that rulemaking serve the broadest possible public interest. An alternative to such direct public funding might be a university consortium, in which professors and students offset the financial burdens of fact-gathering and agency appearances by conducting public seminars or publishing their research.

. 42 U.S.C. § 2232 sets forth the requirements for license applications under the Atomic Energy Act, and includes thereunder, “ . such [] information as the Commission may, by rule or regulation, deem necessary in order to enable it to find that the utilization or production of special nuclear material will be in accord with the common defense and security and will provide adequate protection to the health and safety of the public.”

The majority’s view of the relationship between the rules and regulations and the sufficiency of findings based upon such rules and regulations is evident, 173 U.S.App.D.C. p.-, 524 F.2d p. 1297: “The Commission had before it adequate information to demonstrate not only that approval of the operating license would meet technical and public policy standards engrained in its basic regulations but to permit its consideration and determination whether special circumstances pertained to the particular facility which might render these standards inadequate to afford reasonable assurances concerning public health and safety.” The Court says further, “ . . .it would be pointless, and a waste of agency resources, to require the AEC to reapply efforts that have already gone into its basic health and safety regulations, in individual licensing proceeding, in the absence of some evidence that a particular facility presents risks outside the parameters of the original rule making.” Id. 173 U.S.App.D.C. at -,524F.2dat 1299.

. The Court says: “ . . the reasoning of the Appeal Board constituted a principled decision on the point . . . ” and quotes the Board’s opinion. Id. 173 U.S.App.D.C. at-, 524 F.2d at 1301. The Board points out that there exist an infinite array of combinations of ‘alternatives’ requiring a percentage of full-power and a time period under forty years. It suggests that in light of this, “it is sufficient that the FES focus upon those alternatives which there is reason to believe might, if adopted provide a significant difference in environmental impact.” Id. 173 U.S.App.D.C. at-, 524 F.2d at 1301. The Board is favorably cited by the Court when it indicates, “. . . licenses issued by the Commission are always subject to revocation and modification in light of subsequently developed data. And, with respect to certain environmental effects which were reviewed in this proceeding, the initial decision imposed a condition requiring the applicant to carry out a comprehensive operational monitoring program and, if certain significant and adverse effects are shown, to take corrective action to alleviate the impact. In these circumstances, there was no warrant for the FES or the Board to consider, as an alternative, a license for less than 40 years.” Id.

. For the source and applicability of these tests, see 173 U.S.App.D.C. at-, 524 F.2d at 1298 n. 12.

. Brief for Petitioners, 60-62.

. 42 U.S.C. § 2133 (c) provides:

Each such license shall be issued for a specified period, as determined by the Commission, depending on the type of activity to *1304 be licensed, but not exceeding forty years, and may be renewed upon the expiration of such period.

. See 42 U.S.C. §§ 2236 , 2237.

. Pub.L. No. 93-637, Title II, § 202(a), 88 Stat. 2193 , codified as 15 U.S.C. § 57a(h), which reads in full:

Compensation for attorney fees, expert witness fees, etc., incurred by persons in rulemaking proceedings; aggregate amount payable in any fiscal year.

(h)(1) The Commission may, pursuant to rules prescribed by it, provide compensation for reasonable attorneys fees, expert witness fees, and other costs of participating in a rulemaking proceeding under this section to any person (A) who has, or represents, an interest (i) which would not otherwise be adequately represented in such proceeding, and (ii) representation of which is necessary for a fair determination of the rulemaking proceeding taken as a whole, and (B) who is unable effectively to participate in such proceeding because such person cannot afford to pay costs of making oral presentations, conducting cross-examination, and making rebuttal submissions in such proceeding.

(2) The aggregate amount of compensation paid under this subsection in any fiscal year to all persons who, in rulemaking proceedings in which they receive compensation, are persons who either (a) would be regulated by the proposed rule, or (B) represent persons who would be so regulated, may not exceed 25 percent of the aggregate amount paid as compensation under this subsection to all persons in such fiscal year.

(3) The aggregate amount of compensation paid to all persons in any fiscal year under this subsection may not exceed $1,000,000.