Appendix — Porter County Chapter of the Izaak Walton League of America, Inc. v. Nuclear Regulatory Commission
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APPENDIX AUG 27 1976
J meme. Rovax,se_cuERK
In Tue
Supreme Court of the Anited States
Ocroser Term, 1976
No. 7676-291
PORTER COUNTY CHAPTER OF THE IZAAK WALTON
LEAGUE OF AMERICA, INC., et al.; and THE PEOPLE
OF THE STATE OF ILLINOIS, Ex Rel. WILLIAM J.
SCOTT, Attorney General of the State of Illinois; and THE
CITY OF GARY, INDIANA,
Petitioners,
Vs.
THE NUCLEAR REGULATORY COMMISSION, THE
UNITED STATES OF AMERICA, et al,
Respondents.
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Seventh Circuit
Printed by Authority of the State of Illinois
SS ee
TABLE OF CONTENTS
Judgment of the Court of Appeals, April 15, 1976
Order Upon Denial of Petitions for Rehearing and Sug-
gestions for Rehearing En Banc, June 1, 1976 —.......... 14
Judgment of the Supreme Court of the United States,
November 11, 1975 —...........- Se ate TES EN 15
Judgment of the Court of Appeals, April 1, 1975 __..... 22
Order Upon Denial of Petitions for Rehearing, May 28,
TID: -scasscinicideniietbiiisinsiindslthsteasateinenmvemansnenniannenstansietmetennens 62
Order Upon Motion for Stay Pending Judicial Review,
I taal caalinas 63
Initial Decision of the Atomie Safety and Licensing
ae semmmacsnmensuanees 65
Decision of the Atomic Safety and Licensing Appeal
ee 6 Se 187
In Tue
Supreme Court of the United States
Ocroser Term, 1976
No. 76-
PORTER COUNTY CHAPTER OF THE IZAAK WALTON
LEAGUE OF AMERICA, INC., et al.; and THE PEOPLE
OF THE STATE OF ILLINOIS, Ex Rel. WILLIAM J.
SCOTT, Attorney General of the State of Illinois; and THE
CITY OF GARY, INDIANA,
Petitioners,
vs.
THE NUCLEAR REGULATORY COMMISSION, THE
UNITED STATES OF AMERICA, et al,
Respondents.
On Petition jor a Writ of Certiorari to the United
States Court of Appeals for the Seventh Circuit
=
Per Curiam Opinion
On Remand from the Supreme Court
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
April 13, 1976.
Before
Hon. Tuomas E. Fairncump, Chief Judge
Hon. Rosert A. Sprecner, Circuit Judge
Hon. Pump W. Tone, Circuit Judge
No. 74-1751
PORTER COUNTY CHAPTER OF THE IZAAK WALTON LEAGUE OF
AMERICA, INC.; CONCERNED CITIZENS AGAINST BAILLY NUCLEAR
SITE; BUSINESSMEN FOR THE PUBLIC INTEREST, INC.; JAMES E.
NEWMAN, MILDRED WARNER and GEORGE HANKS,
Petiti
THE PEOPLE OF THE STATE OF ILLINOIS ex rel. WILLIAM J.
SCOTT, Attorney General of the State of Illinois,
Petitioners-I ntervenors,
vs.
THE ATOMIC ENERGY COMMISSION and THE UNITED STATES OF
AMERICA,
Respondents,
and
NORTHERN INDIANA PUBLIC SERVICE COMPANY,
Petitioners-Intervenors.
Petition for Review of Final Orders
of the Atomic Energy Commission
This cause came on to be heard on the transcript of the
record from the Atomic Energy Commission, and was ar-
gued by counsel.
On consideration whereof, it is ordered and adjudged by
this Court that the decision of the Atomic Energy Commis-
sion entered in this cause on August 29, 1974, be, and the
same is hereby Enforced, in accordance with the opinion of
this Court filed this date.
aufjun
3n
Ginited States Court of Appeals
For the Seventh Circuit
No. 74-1751
Porter Cousxty Cuaprer Or Tae Izaak Warton Leacuve
Or America, Inc.; Concernep Citizens Acatnst BalLiy
Nectear Srre: Bustvessmexs For Tar Pvsuic I STeResT,
Ixc.; James E. Newman; Mirprep Warner axnp GEORGE
Hanks, :
Petitioners,
and
Tre Peorte Or Tre State Or Icio ex rel. WituiaM
J. Scorr, Attorney General of the State of Illinois,
Petitioners-Intervenors,
v.
Tre Atomic Exercy Com™isston axyp Tar Usrrep States
Or AMERICA,
Respondents,
and
Nortrers Ixpiaxa Pratic Service Compayy,
Petitioners-Intervenors,
Petition for Review of Final Orders of the
Atomic Fnergy Commission
Ox Remaxp From Tue Supreme Covert
Decrrep Apr 13, 1976
Before: Farrcump, Chief Judge, Sprecner and Tove,
Circuit Judges.
=
Per Curiam. This proceeding to review an Atomic En-
ergy Commission order granting a permit to construct a
nuclear power plant was remanded to us for further pro-
ceedings in Northern Indiana Public Service Co. v. Porter
County Chapter of the Izaak Walton League of America,
423 US. ......., 46 L. Ed. 2d 156 (1975). Our jurisdiction is
derived from 42 U.S.C. § 2239(b) and 28 U.S.C. § 2342(4).
We hold that the ageney’s order is valid and deny the
petition for review.
The history of these proceedings, which is recounted in
more detail in this court's earher decision, Porter County
Chapter of the Izaak Walton Leaque of America vy. Atomtc
Energy Commission, 515 F. 2d 513 (7th Cir. 1975), may
be summarized as follows: In 1970 Northern Indiana Pub-
lie Service Company (NIPSCO) filed with AEC an ap-
plication for a construction permit and operating license
for a nuclear facility to be constructed on the company’s
Bailly site, on the southern shore of Lake Michigan, in
Porter County, Indiana. The application was opposed by
various organizations and individuals, petitioners herein,
who were permitted to intervene. Hearings were held by
the Commission’s Atomie Safety and Licensing Board
(ASLB) in the fail of 1972 and throughout 1973. ASLB
initially authorized issuance of the construction permit on
April 5, 1974. RAT-74-4, 557. The decision was appealed
hy petitioners to the Commission’s Atomic Safety and
Licensing Appeal Board (ASLAB), which affirmed. RAI-
74-8, 244 (August 29, 1974). That decision subsequently
became the final decision of AEC. See 10 C.F.R. 44 2.770,
2.785(a). After the filing of the petition for review in this
court, the State of Illinois and the City of Gary, Indiana,
were permitted to intervene on the side of petitioners. By
a divided panel, this court set aside the order on the
ground that issuance of the permit was in violation of
an AEC regulation setting a minimum distance between
the site for a nuclear facility and the nearest boundary of
a densely populated center of over 25,000 residents. 515
M24 513 (1975). On writ of certiorari, the Supreme Court
reversed the judgment and remanded the case for con-
sideration of arguments in opposition to the permit not
decided in our previous opinion, 423 U.S. ........ , 46 L. Ed.
2d 156 (1975).
—_
I.
The argument we address first is that, despite Con-
gress’ grant of exclusive licensing authority to AEC,’ that
agency lacks jurisdiction to approve the site, because the
plant will encroach on adjacent federal lands administered
by the Department of Interior. These lands, consisting of
some 8300 acres known as the Indiana Dunes National
Lakeshore, abut the eastern boundary of the 107-acre tract
on which NIPSCO proposes to build the nuclear plant.
See 515 BF. 2d at 517-518. The Department’s environmental
concerns with the Bailly site were noted in our earlier
opinion. 515 F. 2d at 526-527. Relying on United States v.
Alford, 274 U.S. 264 (1927), Camfield v. United States, 167
U.S. 518 (1897), United States v. Cappaert, 508 F. 2d 315
(9th Cir. 1974), cert. granted, 95 S.Ct. 2654 (1975), and
analogous cases in which the United States has been held
to be entitled to equitable relief against uses of privately
owned land which detrimentally affect adjoining govern-
ment property, petitioners contend that AEC approval of
of the site is barred. The Department of Interior has not
advanced such a contention.
Most of the cases relied upon by petitioners are readily
distinguishable because they involve relief granted pur-
suant to specific statutory prohibitions which are not ap-
plicable here. But even assuming the Department of In-
terior, by exercising its statutory power of supervision
over the National Lakeshore, cf. United States v. Cap-
paert, supra, could obtain injunctive relief against threat-
ened irreparable injury to lands within its custody from
sources outside, we could not justify interruption of the
AEC licensing process when the Department has not
sought such relief. While AEC’s authority to issue licenses
and construction permits should be reconciled to the fullest
extent possible with the interest of the Department of In-
1The Atomic —, AE Act of -_ w amended and in force at the
time of the ‘agency 2 USC. §§2011-2282 authorized the
Commission tq. issue oy of A the construction and utilization of an
device which™ a a oe Ge a nuclear fuels. 42 U.S.C.
§§ 2133, 2235. With the exception of certain activities carried on at
the direction of the President or under AEC supervision, the Act made
it unlawful for anyone to use oe Ube § nuclear materials without
obtaining a license issued by AEC. 42 eae As noted in
this court’s — a 515 bg 5 at 516 has recently
been further with the Nuclear Regulatory
Commission. 42 U.S.C. §§
—5—
terior in protecting the National Lakeshore, nothing in
the authorizing legislation for either agency suggests that
the Department’s views on the advisability of an adjoir-
ing nuclear facility are to be controlling. AEC has con-
sidered the Department’s comments and has given atten-
tion to the environmental effects of the Bailly plant upon
the National Lakeshore, as the law requires. It has con-
eluded that with the restrictions and controls it will im-
pose as conditions to approval of the construction per-
mit, including two monitoring programs which will detect
changes in chemical and water level composition of the
dunes area, the environmental impact of construction and
operation of the nuclear plant will not be substantial’
enough to require disapproval of the site. This was a
determination the ageney had authority to make.
In a related argument intervenor State of Illinois con-
tends that extension of the exclusion area and low-popula-
tion zone, see 515 F. 2d at 520, surrounding the site into
the National Lakeshore “is incompatible with Interior’s
mandate to ‘preserve ... the Indiana dunes’... .” The
exclusion area, however, will not extend into the Lakeshore
area. As for the boundaries of the low-population zone,
they are simply one factor to be considered in evaluating
various sites, as noted by ASLAB in its final decision:
“[T jhe creation of a ‘low population zone’ does not
impose — and is not meant to impose — restrictions
on the use of land within the perimeters of the zone.
Concern that the Bailly low population zone might im-
pinge on the Interior Department’s management pre-
rogatives in the Indiana Dunes National Lakeshore
is thus a non sequitur.”” RAT-748, 261.
The jurisdictional arguments are therefore without merit.
Il.
In view of the Supreme Court’s decision, little is left
of petitioner’s related argument that the order is not in
2In addition to ecological factors, both ASLB (RAI-7 600-601
and ASLAB (RAI-74-8, 258-259, 261, ay jconsidered_ visual
the National Lakeshore, but
intrusion” a
outweighed by the necessity of ee -~q 4- reas
~~
compliance with AEC’s siting regulations, which provide,
see 515 F. 2d 519-520, for three population buffer zones
around the nuclear facility. 10 C.F.R. Part 100. Petition-
ers’ remaining contention relating to the siting regula-
tions is that the evidence is insufficient to support the find-
ing that “the distance from the reactor to the nearest
boundary of a densely populated center containing more
than ahont 25,000 residents,” 100 C.F.R. § 100.3(e), is two
miles. Once it has been determined, as the Supreme Court
did, that political. boundaries are not controlling, the
record and pertinent census data adequately support the
ageney’s finding.’
Intervenor State of Illinois argues in this connection
that AI°C’s issuance of the construction permit to NIPSCO
is inconsistent with the agency’s recent rejection of another
utility’s application for a permit at a site having a lower
siting population factor than Bailly, on Newbold Island,
New Jersey. So long as AEC’s regulations are complied
with, as they are here, population density is only one
factor in site evaluation. The record of the New Jersey
case is not before us, and an intelligent comparison could
not be made without the full records for both applications.
Cf. American Meat Institute v. Environmental Protection
Agency, 526 I. 2d 442, 466 (7th Cir. 1975).
IIT.
Petitioners also argue that, without regard to the dis-
tance between the proposed reactor and the boundary of
the nearest densely populated center with over 25,000 resi-
dents, AEC failed to give sufficient weight to the density
of population surrounding the Bailly site. Specifically,
* The agency has also given consideration to the persons who, although
not residents, may be near the site for other reasons. These include
employees of the nearby plant of Bethlehem Steel Corporation, which
was a party before the agency, and transient visitors to the National
Lakeshore area near the reactor site. AEC has determined that radiation
realistic possibility, which may be suffered by these employees and
visitors and the estimated 7.3 million who live within a 50-mile
radius of the site will be insignificant. points out that the possibility
ere accident is so remote that nuclear plants t the
country have been located on other sites ha low-population zones
include federal lands. It also notes that the t of ——-
==
petitioners seek to apply an AEC staff working paper,
dated April 17, 1973, and released April 9, 1974, shortly
after ASLB’s initial decision was issued, and the Nuclear
Regulatory Commission’s' Regulatory Guide 4.7 (revision
1), dated November 1975. Petitioners stress the following
passage, which was added in the final version of the Regu-
latory Guide:
“If the population density, including weighted tran-
sient population, projected at the time of initial opera-
tion of a nuclear power station exceds 500 persons per
square mile averaged over any radial distance up to
30 miles . . . special attention should be given to
the consideration of alternative sites with the lower
population densities.”
Petitioners calculate there to be 806 persons per square
mile within a 30-mile radius of the Bailly site.
The working paper and a draft version of the Regula-
tory Guide, which is similar to the final version now be-
fore us, were said in our prior opinion to be relevant in
determining “whether, on balance, the extraordinary re-
sult of halting or delaying the development of needed en-
ergy is warranted by” what the majority then perceived
to be a violation of the AEC’s own regulations. 515 F. 2d
at 528. The court did not, however, hold that AEC’s failure
to apply the working paper and Regulatory Guide criteria
was an independent ground for reaching that result.
Unlike regulations, both the working paper and the
Regulatory Guide are advisory rather than obligatory.°
The working paper by its terms applies to applications
docketed after January 1, 1974 (NIPSCO’s application
was filed in 1970).° The Regulatory Guide, having been
issued after the entry of the order under review, is like-
*See note 1, supra.
5The working paper, in the words of ASLAB, “neither represents
nor purports to present Atomic Commission policy respecting
nuclear power plant sites.” RAI-74-8, 255. Similarly, the
Guide’s title page notes that tory Guides are 3
for regulations, and compliance with them is not required.
® Because the working paper was inapplicable by
because it ultimately became available to petitioners, even if it
within the scope of petitioners’ discovery request,
—3—
wise of doubtful applicability. Cf. Douglas, J., concurring,
423 US. at ........ , 46 L. Ed. 2d at 157. Even if these docu-
ments were applicable, they would not require setting aside
the agency order. Both documents stress the importance
of considering less-densely populated sites and the use of
additional safety measures, where appropriate, if alterna-
tive siting is not available. We conclude below that proper
consideration was given to other sites, and the safety
measures taken here are not the subject of attack.
IV.
Finally, petitioners argue that AEC has failed in several
respects to comply with the requirements of the National
Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347.
Adopted in late 1969, NEPA requires, in section 102(2)(C),
42 U.S.C. § 4332(2)(C), a detailed statement of environmen-
tal impact to be included in all federal agency proposals
“significantly affecting the quality of the human environ-
ment.” AEC regulations were amended in 1971 to provide a
procedure for insuring compliance with NEPA. At the time
relevant to these proceedings, the regulations required all
applicants for nuclear plants to submit a detailed environ-
mental report for AEC staff anaylsis. 50 C.F.R. Part 50,
App. D, A(1) (1974).". NIPSCO filed its original report in
1971 and twice amended it in 1972. The staff then drafted
its own preliminary statement of environmental considera-
tions, which included an assessment of adverse enviroa-
mental effects, alternatives to the proposed action, antici-
pated costs in relation to net benefits, and various other
environmental matters. The preliminary statement was
then transmitted to interested parties,® for comment, after
which the staff completed a final environmental impact
750 CFR. Part 50, D was replaced by 530 CFR. Part 51 in
1974. See 39 F.R. 26279 (July 18, 1974).
proximity to the Bailly site, intervenor [Illinois
alleges that it was an “affected State” under 50 C.F.R. Part 50, App. D,
A(6), was therefore entitled to be sent a of the preliminary
~~ byte 4, ST K- or agencies, however
including governor, the Illinois Commission on Atomic Energy,
and the Environmental Protection Division of the Attorney General's
—- oo a <= ¢ Se pees ae o
request comments to made within days. request a
a7 6 Ge Ghee se on eee oe SS oe 8 ee =
showing prejudice from not ving recei a copy. Under these
circumstances, we are not inclined to remand for what was, at most, a
technical violation of the Commission's regulations. Cf. Environmental
i
:
-
a
8
§
g
—
statement in February, 1973. Id. at App. D, A(6). The
final statement was reviewed, as the regulations required,
by ASLB, ASLAB, and the Commission itself, whose find-
ings and conclusions which differed from those in the
staff’s final statement were deemed to modify the state-
ment. 7d. at App. D, A(11).
A.
Petitioner’s contention that adequate consideration was
not given to alternative sites cannot be sustained. At least
two alternative sites were rejected because of population
reasons. Tire third alternative, the Schahfer site, which is
on the Kankakee River, is the only one petitioners con-
tend should have been given more serious consideration.
Schahfer was found to be inferior to Bailly on both en-
vironmental’ an’ economic” grounds. And, while the lower
population density of Schahfer weighed in its favor, ASLB
concluded that this factor should not be controlling. That
conclusion was based upon ASLB’s consideration of nine
classes of possible accidents which AEC hypothesized con-
ceiva | could oceur at the plant, ranging in severity from
trivial (class 1) to very serious (class 9). In general terms
the more serious the accident, the less likely it is to
occur. ASLB determined that accidents of class 1 through
class ~ ,osed no significant risks to residents at either site,
and that “because of the improbability of a class 9 ac-
cident with its concomitant risks, no significant weight can
be given toe the low population density surrounding the
Schanier site in [the Board’s] cost-benefit analysis.” RAI-
;
|
f
3
and summarized by ASLAB (RAI-74-8, a, ., t,t -
quarter of the river’s microbiota due to exposure to heat of the
plant’s cooling system (destruction of such in Lake Michigan
would be insignificant by comparison); ial imecrease in the
effect ‘ushe i AAT, —~ f- ~ +” +- upon
on ;
-yty—,- 7-1 UD
‘©The chief economic disadvantage of Schahfer was found to be the
delay associated with moving there, estimated to be from two to four
years. RAI-74-4, 624. Petitioners urge that this factor should not have
considered, since it was the result of NIPSCO’s choice of the
Bailly site. This argument is not without force, but we conclude that
AEC did not abuse its discretion in to consider this factor.
having in mind the public interest in future shortages of
and the estimates as to when the additional power to be generated
=.=
74-4, 624. Petitioners contend that this rejection of Schah-
fer was unjustified in light of evidence that the possibility
of a class 9 accident cannot be predicted with accuracy.
A class 9 accident “involves concurrent rupture of the
three-foot thick concrete containment vessel and the
several inches of steel surrounding the reactor core, re-
sulting in the exposure of the radivactive core to the at-
mosphere,” with severe consequences. Carolina Environ-
ment Study Group v. United States, 510 F. 2d 796, 798-
799 (D.C. Cir. 1975). See also “The Struggle Over Nuclear
Power,” Time, 69-70 (March 8, 1976). Such an accident
is & remote possibility which some experts have viewed as
incapable of being stated in numbers and which others
have estimated as being “from a chance of one on 100,000
to one in a billion per year for each larger reactor.” AEC
report \ ASH-740, “Theoretical Possibilities & Conse-
quences of Major Accidents in Large Nuclear Power
Plants,” at viii (1957), cited in Carolina Environmental
Study Group, supra, 510 F. 2d at 799. See also Ecology
Action vy. United States Atomic Energy Commission, 492
F. 2d 998, 999 (2d Cir. 1974) (“one in 10 million during a
year’s operation”).
Variations on the argument that the Bailly site should
have been rejected on population density grounds are
presented by intervenor City of Gary. These contentions
were not made before the agency. Gary argues that fuller
consideration should have been given in the environmental
impact statement to the consequences of a class 9 accident,
and that the low probability of such an accident cannot
be considered by the licensing authority in determining its
environmental impact.
Sonilar arguments were rejected by the District of Co-
lum'sa Cireuit in Carolina Environmental Study Group,
supra, NO PF. 2d at 798-800. The AEC staff’s extensive
anaiysis of accident probabilities and effects, which was
uncontroveried, provides sufficient record support for
ASLB's conclusion. See Sierra Club v. Froehlke, 486 F. 2d
946, 9590 (7th Cir. 1973). The record indicates, to the ex-
tent it is possible to do so, the degree of remoteness
achieved, as stated in the final environmental statement,
by “(defense in depth (multiple physical barriers), qual-
a
=)
ity assurance for design, manufacture, and operation, con-
tinued surveillance and testing, and conservative de-
sign .. . .” The question comes down to whether the
possibility of such an accident is sufficiently real that re-
actors should be located only in unpopulated areas. Under
the law, this must be decided by the expert body empow-
ered by Congress to make such decisions.
B.
Petitioners next assert that issuance of the construction
rmit violated NEPA because AEC’s analysis of the need
or additional power provided by a nuclear facility failed
to consider scheduled additions to NIPSCO’s existing plant
and the amount of purchasable power available to it from
other companies. Neither argument has merit. The only
scheduled addition to which the record makes reference is
ion to purchase from the Indiana & Michigan Flec-
- yada am December 1, 1977 to June 1, 1980, and
tioners’ own statistics show to exist. In their motion to
remand for further consideration in light of newly dis-
covered evidence, petitioners also made reference to an
= =
A t 14, 1974 Wall Street Jouraal article indicating that
NIPSCO has contracted to buy additional power from a
nuclear plant “scheduled to begin operation in the early
1980’s ....” We think ASLAB correctly denied the motion
in light of the fact that no formal —— to construct
the plant had yet been filed, no safety reports had been
made, no hearings had been held, and there was thus no
indication that the project’s tentative schedule could be
wy! -_ indeed, no assurance that the plant would even
uilt.
C.
The last argument based on NEPA is that the AEC
staff’s cost-benefit analysis is deficient in several respects.
It is urged that the staff, inter alia, unduly minimized the
acid misting that will be caused by interaction of the vapor
pluine from the nuclear plant’s cooling tower with emis-
sions from the existing coal-fired plant; improperly used
only a visual damage criterion to determine erse eco-
logical impacts; and improperly based findings that the
Bailly site was environmentally superior on advantages
that were available at other sites as well. We cannot
agree that the staff's analysis was inadequate as al-
leged, for the final environmental statement explains at
some length the creation and effects of acid misting, the
chemical and biological impacts which operation of the
plant is likely to have, and, as already noted, the environ-
mental and economic advantages and disadvantages of the
alternative sites considered. But even assuming that these
deficiencies existed, we would not remand for further
evaluation, since petitioners’ argument ignores the indepen-
dent evaluation given these considerations by ASLB after
taking almost 10,000 pages of testimony following publica-
tion of the final environmental statement, and LAB’s
review of and concurrence in ASLB’s determination that
the environmental effects of the nuclear plant would be
negligible. See Ecology Action v. United States Atomic
Energy Commission, supra, 492 F. 2d at 1001-1002.
_ Since these and the remaining arguments raised by peti-
tioners and intervenors in their briefs are without merit,
the petition for review must be denied.
==
We conjecture that many people who are fearful of and
deeply opposed to installations of the type involved here
look to the courts for the protection of a final decision on
the safety and merit of the yr And it may be that
persons on the other side of the controversy will assert,
once a petition for review is denied, that a project which
has been considered by a court must be safe and must have
merit. Both of these lines of thought are mistaken. They
assume broader judicial power in the matter than the law
permits.
Our decision does not imply any opinion concerning the
merits of the ageney’s decision. The scope of our review,
defined in 5 U.S.C. § 706, is very narrow. If we find that
the agency has observed the procedure required by law,
complied in all respects with the governing statute and
its own regulations, and based its decisions on substantial
evidence, and determine that its findings and conclusions
are not arbitrary, capricious, or an abuse of discretion,
our duty and our authority have ended.
Petrrion For Review Dentep.
A true Copy:
Teste :
PTET TOEE EEELEEELe ee eee eee hee
Clerk of the United States Court of
Appeals for the Seventh Circuit
=).
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
(Caption Omitted in Printing)
June 1, 1976
The following petitions pertaining to rehearing were filed
in this matter:
1) The “Petitioners’ Petition For Rehearing And
Suggestion Of Appropriateness Of Rehearing In
Banc,” filed herein on April 27, 1976.
2) The “Petition-Intervenor, City Of Gary’s Petition
For Rehearing And Suggestion Of Appropriate-
ness Of Rehearing En Banc,” filed herein on May
7, 1976.
3) The “Petition For Rehearing By The People Of
The State Of Illinois,” filed herein on May 7, 1976.
4) The “Supplement To Petitioners’ Petition For Re-
hearing And Suggestion Of Appropriateness Of
Rehearing In Bane,” filed herein on May 7, 1976.
Upon consideration of the foregoing petitions, no judge in
active service having requested a vote thereon, nor any
judge having voted to grant the suggestion, and all mem-
bers of the panel having voted to deny a rehearing,
It Is Ordered that each of the aforesaid petitions for re-
hearing in the above-entitled cause be, and the same are
hereby, Denied.
Note: Judge Swygert disqualified himself from any con-
sideration of the suggestions for rehearing in banc
filed in this case.
—1§—
SUPREME COURT OF THE UNITED STATES
NORTHERN INDIANA PUBLIC SERVICE COM-
PANY v. PORTER COUNTY CHAPTER OF
THE IZAAK WALTON LEAGUE OF
AMERICA, INC., et at.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 75-4. Decided November 11, 1975
Per CuriaM.
An Atomic Energy Commission Atomic Safety and
Licensing Board approved the issuance of a construction
permit to Northern Indiana Public Service Company
(NIPSCO) for a commercial nuclear powered electrical
generating plant proposed to be built on the south shore
of Lake Michigan, in Porter County, Ind., RAI-74-4,
557 (1974). On appeal, an AEC Atomic Safety and
Licensing Appeal Board, RAI-74-8, 244 (1974) sustained
the approval. On petition for review by intervenors in
the administrative proceedings.’ a divided panel of the
Court of Appeals for the Seventh Circuit set aside the
approval on the ground that the Licensing Board and
the Appeal Buard failed to follow the Commission's own
regulations governing “population center distance” in the
nuclear plant siting. 515 F. 2d 513 (1975). The peti-
tion for certiorari is granted and the judgment of the
Court of Appeals is reversed
Title 10 CFR § 100.10 (b) of the Commission's regu-
lations provides that “the Commission will take . . . into
* Porter County Chapter of the Izaak Walton League of America,
Ine , Concerned Citizens Against Bailly Nuclear Site; Businessmen
for the Public Interest, Inc , James E Newman; Mildred Warner;
and George Hank~«
NIPSCO. the State of Ihnois, and the City of Garv, Ind., inter-
vened before the Court of Appeals.
= s=
consideration in determining the acceptability of
pousd nuclear plant) cite” the “papeletion’ ” . eontes
distance,” defined in 10 CFR § 100.3 (c) as “the distance
from the reactor to the nearest boundary of a densely
dents.” At the time of NIPSCO’s application and also
at the time of the Court of Appeals’ decision, 10 CFR
§ 100.11 (a)(3) further provided, in pertinent part, that
“[a]s an aid in evaluating a proposed site” for a nuclear
power plant a permit applicant should determine
the proposed unit a 14
“population center distance of at least one and one
third times the distance from the reactor to the
outer boundary of the low population zone. In
applying this guide, due consideration should be
given to the population distribution within the
population center” 27 Fed. Reg. 3509 (1962).
Two miles was the minimum allowable “population cen-
ter distance” determined administratively sermon ra
10 CFR § 100.11 (a)(3). Accepting this determination
the Court of Appeals held that issuance of the construc.
tion permit violated the Agency's own regulations be-
cause the corporate boundary of the city of Portage
Ind.—projected to have a population in excess of 25,000
by 1980—lay within 1.1 miles of NIPSCO’s proposed
site In reaching this conclusion the Court of Appeals
rejected the Agency's administrative interpretation of
its regulations as prescribing computation of “population
center distance” for 10 CFR § 100.11 (a)(3) purposes,
where the difference 1s critical to the siting decision, not
solely to @ political boundary but to the boundary of
that portion of the population center at which the dense
population starts,” RAI-74-4, 557, 565. Under that in-
terpretation of the regulations the “population center
distance” was an acceptable 4.5 miles ®
We do not anderstand the Court of Appeals’ discussion of the
The Court of Appeals erred in rejecting the Agency’s
interpretation of its own regulations. That interpreta-
tion is supported by the wording of the regulations and
is consistent with prior Agency decisions.’ The wording
does not equate a “dense population center” with a city
or other political entity, nor does it define a “boundary”
in terms of pre-existing lines drawn for nonsiting pur-
poses. Rather, the regulations require consideration of
“population distribution within the population center”
in applying the “population center distance” guide.
Political boundaries, in contrast, may be drawn for many
reasons mrelevant to safe reactor siting, and thus encom-
pass areas never likely to harbor a significant popula-
tion.’ But even if the meaning is not free from doubt,
the Agency’s reliance upon the actual boundaries of
population density in its interpretation sensibly con-
forms to the purpose and wording of the regulations.
In that circumstance. the Court of Appeals was “obli-
gated to regard as eontrolling [such] a reasonable, con-
sistently applied administrative interpretation . . . ‘
Ehlert v. United States, 402 U. S. 99, 105 (1971); Udall
y. Tallman, 380 U. S. 1, 16-17 (1965); Power Reactor
Development Co. v. Electrical Union, 367 U. 8. 396, 408
evidence regarding population distribution within Portage to imply
an alternative ground for the holding that the agency violated its
own regulations.
3 Consumers Power Co. 5 A. E. C. 214, 218 (1972) (although
political boundary of nearby city was within low population zone,
‘the reduced population distance was acceptable” since “populous
areas” of the city were farther removed from the reactor site than
one and one-third times the low population zone radius); Consoli-
dated Edison Co., 5 A. E. C. 43, 45 (1972); ef. Southern California
Edison Co. (San Onofre Station), RAI-74-12, 957, 960 n. 7 (1974).
‘The Court of Appeals’ opinion also notes that the boundaries of
1970 census enumeration districts, including an area within Portage’s
political limits, lay less than a mile from the proposed reactor site.
The locations of these boundaries, however, without more, has no
greater significance than the location of the corporate border.
=x S=
(1961); Bowles v. Seminole Rock & Sand Co., 325 U. 8.
410, 413-414 (1945).°
Reversed and remanded for consideration of other con-
tentions against the issuance of the construction permit
not decided by the Court of Appeals.
* Our decision does not rely upon a revision of 10 CFR § 100.11
(a)(3), 40 Fed. Reg. 26526 (1975) published after the decision of
the Court of Appeals by the Nuclear Regulatory Commission, which,
pursuant to the Energy Reorganization Act of 1974, § 201, 88 Stat.
1242, 42 U 8 C. A. § 5841, now discharges the licensing responsi-
bality formerly exercised by the Atomic Energy Commission.
—19~—
SUPREME COURT OF THE UNITED STATES
NORTHERN INDIANA PUBLIC SERVICE COM-
PANY v. PORTER COUNTY CHAPTER OF
THE IZAAK WALTON LEAGUE OF
AMERICA, INC., er AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 75-4. Decided November 11, 1975
Mr. Justice DovaG.as, concurring.
The Atomic Energy Commission, by general regula-
tions, limited the location of nuclear power plants so as
not to be nearer than a specified number of miles
from population centers. After issuing a construction
permit which the Court of Appeals held violated those
regulations, that Agency’s successor, the Nuclear Regula-
tory Commission, amended the regulations so as to per-
mit the deviation. 40 Fed. Reg. 26526 (1975). By its
decision today, the Court holds that the Court of
Appeals “erred in rejecting the Agency’s interpretation
of its own regulations.” Slip op., at 3. I read today’s
decision as in no way relying on the Agency’s post hoc
amendment of its regulations to save in this Court its
issuance of the construction permit. Slip op., at 4 n. 5.
I therefore concur in the Court's decision. The Nuclear
Regulatory Commission’s conduct in the course of this
litigation, however, compels further comment.
A certain danger lurks in the ability of an agency to
perfunctorily mold its regulations to conform to its
instant needs. In the present case, regulations per-
formed an important function of advising all interested
parties of the factors that had to be satisfied before a
license could be issued. If those conditions can be
changed willy-nilly by the Commission after the hear-
ing and adjudication has been made, the Commission
—20—
is cut loose from its moorings, and no opponent to the
licensing will be able to tender competent evidence bear-
ing on the critical issues. Not just the Commission, but
the entire federal bureaucracy is vested with a discre-
tionary power, against the abuse of which the public
needs protection. ‘“[A]dministrators must strive to do
as much as they reasonably can do to develop and make
known the needed confinements of discretionary power
through standards, principles and rules.” K. Davis,
Discretionary Justice 59 (1969). Confinement of dis-
cretionary power, however, cannot be obtained where
rules can be changed and applied retroactively to effect
a controversy.
For some years, the agency which was supposed to
promote nuclear energy was also charged with the re-
sponsibility of protecting the public against its abuse.
But a promoter is naturally shortsighted when it comes
to the adverse effects of his project on the community.
With the establishment of the Nuclear Regulatory Com-
mission, Congress undertook to rectify this weakness in
the control system by separating the promotion function
from the function of safeguarding the public.’ But the
*The division of promotional and regulatory functions was ac-
complished under the Energy Reorganization Act of 1974, Pub. L.
No. 93-438 (Oct. 11, 1974) (42 U.S. C. A. §§ 580-591 (Supp. Feb.
1975)). The legislation transferred the research and development
functions of the AEC to the new Energy Research and Development
Administration. 42 U.S.C A. § 5814 (c). The ABC's regulatory
functions became the responsibility of the Nuclear Regulatory Com-
mission. /d., $5841 (f). Also transferred to this new Commission
were the responsibilities of the Atomic Safety and Licensing Board
and the Atomic Safety and Licensing Appeal Board. /d., § 5841 (g).
The legislative history of the Act indicates that this division
of functions was “a response to growing criticism that there is
a basic conflict between the AEC’s regulation of the nuclear
power industry and its development and promotion of new tech-
nology for the industry.” 8. Rep. No. 93-980, 93d Cong., 2d Sess.
(1974) “The [Nuclear Regulatory Commission] will have solely
regulatory responsibilities, in keeping with a basic purpose of this
afiiun
power to change the rules after the contest has been
concluded would once more put the promotion of nuclear
energy ahead of the public’s safety.
Eminent scientists have been a in So iy so
owth of nuclear power plants in this Nation. e
sami who think nuclear power should be abandoned
has been growing.’ The future of nuclear power in this
country is not a policy matter for courts to decide, but
those who oppose the promotion of nuclear power should
have at least a chance to know what the issues are when
a case is set down for hearing and adjudication, and to
argue meaningfully about those issues. If the rules can
be changed by the Commission at any time—even after
the hearing is over—the protection afforded by the
opposition of scientific and environmental groups is
greatly weakened. Ad hoe rulemaking in those areas
touching the public safety is to be looked upon with
disfavor.
el
Act to separate the regulatory functions of the Atomic Energy
Commission from its developmental and promotional functions,
which are transferred to [the Energy Research and Development
nistration].” bid ;
aT) —s A. Tamplin, Poisoned Power: The Case Against
Nuclear Power Plants (1971); see Ford & Kendall, What Price
Nuclear Power?, 10 Tnal, Jan./Feb. 1974, at 11; Tamplin, Reacting
to Reactors, 10 Trial, Jan./Feb. 1974, at 15; Hearings before the
Subcommittee on Legislation of the Joint Committee on Atomic
Energy, 92d Cong, Ist Sess., pt. 1, at 294-302 (1971).
—22—
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Chicago, Illinois 60604
April 1, 1975
Opinion by Judge Sprecher
Judge Tone dissenting
BEerore
Hon. Tomas F. Farrcum, Chief Judge
Hon. Ronert A. Sprecuer, Circuit Judge
Hon. Pump W. Tone, Circuit Judge
No. 74-1751
Porter County Cuapter or tue Izaak Watton
Leacue or America, INc., ET Al.
Petitioners,
and
Tue Peopue or tHe State or ILLINOIS, ETC.,
Petitioners-Intervenors,
Vv.
Tue Atomic Exercy Commisstox axp USA,
Respondents,
aad
NORTHERN INDIANA Pranic SeErvIcE ComPayy,
Respondent-Intervenor.
Petition for Review of Final Orders of the
Atomic Energy Commission
This cause came on to be heard on the transcript of the
record from the Atomic Energy Commission and was
argued by counsel.
On consideration whereof, it is ordered and adjudged
by this Court that the decision of the Atomic Energy
Commission entered in this cause on August 29, 1974 is
unlawful and the same is hereby set aside, in accordance
with the opinion of this Court filed this date.
—23—
3n the
Bnited States Court of Appeals
For the Seventh Circuit
——_—_—————
No. 74-1751
“ ‘» COUNTY CHAPTER OF THE IZAAK WALTON
eee or AMERICA, INC., CONCERNED CITIZENS
AGAINST BAILLY NUCLEAR SITE; BUSINESSMEN FOR
THE PuBLIC INTEREST. INcC.; JAMES E. NEWMAN;
MILDRED WARNER and GEORGE HANKS,
and
: ; ; WILLIAM
THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. ILL
J. Scott, Attorney General of the State of Illinois,
Petitwoners-Intervenors,
v.
THE ATomic ENERGY ComMISssION and THE UNITED
STATES OF AMERICA,
Respondents,
and
NORTHERN INDIANA PUBLIC SERVICE COMPANY,
Respondent-Intervenor.
Petiven for Review of Final Order. of the
Atomic Energy Commission
; — APRIL 1, 1975
ARGUED DECEMBER ll, 1974 DECIDED
Before FAIRCHILD, Chief Judge, SPRECHER and TONE,
Circuit Judges.
anlitpen
SPRECHER, Circuit Judge. This appeal involves the
sensitive issue of whether the Atomic Energy Commis-
sion in approving the site of a commercial nuclear reac-
tor gave due consideration to the population density and
use characteristics of the site environs.
I
On August 24, 1970, Northern Indiana Public Service
Company (NIPSCO) submitted its application for a con-
struction permit and operating license for a 685
megawatt boiling water nuclear power plant to be built
on the applicant's Bailly site on the southern shore of
— Michigan, Westchester Township, Porter County,
ndiana.
Under the Atomic Energy Act of 1954 as amended, 42
U.S.C. §§ 2011-2282, each application for a commercial
license under section 2133, which must include a
Preliminary Safety Analysis Report (PSAR) pursuant to
10 C.F.R. § 50.34(a), is reviewed by the staff of the
Atomic Energy Commission (AEC) through the Division
of Reactor Licensing (DRL) pursuant to 10 C.F.R. §§
1.120 and 2.102(a), and by the 15-member Advisory
Committee on Reactor Safeguards (ACRS) pursuant to
42 U.S.C. §§ 2039 and 2232(b).
In this case after the filing of 16 amendments by
NIPSCO, ACRS filed its safety report on October 14,
1971, pursuant to 42 U.S.C. § 2232(b) and 10 C.F.R. §
2.102(c) and the AEC staff through DRL filed its Safety
Evaluation Report (SER) on February 15, 1972. A
general notice of hearing on the application for a con-
struction permit dated December 21, 1971, had been
soar by AEC on December 29, 1971 in 36 Fed.
feg. 25175 (1971).
An Atomic Safety and Licensing Board (ASLB) of
three members was constituted on January 12, 1972,
ursuant to 42 U.S.C. § 2241 and at a prehearing con-
erence held on May 9, 1972, at Valparaiso, Indiana, ad-
mitted as Joint Intervenors the following: Porter Coun-
ty Chapter of Izaak Walton League of America, Inc.;
Concernea Citizens Against the Bailly Nuclear Site;
—25—
Businessmen for the Public Interest, Inc.; and James EK.
Newman, Edward W. Osann, Jr., Mildred Warner and
George Hanks. Bethlehem Steel Corporation was also
admitted as a party intervenor.
Because of other commitments, members of the
original ASLB were unable to continue to serve and a
Notice of Reconstitution of Board was issued on June 20,
1972. The reestablished ASLB conducted the evidentiary
hearing.
In the meantime, NIPSCO had submitted an en-
vironmental report on January 7, 1971, which was
amended three times. In July 1972, AEC issued a draft
environmental statement and in February 1973, a Final
Environmental Statement (FES).
ASLB held evidentiary hearings for 65 days on Oc-
tober 10-13, 1972 at Gary, Indiana, and between April
30 and November 14, 1973, at Valparaiso, Indiana. Oral
eee ng on proposed findings were held on February
The Initial Decision of ASLB authorizing the issuance
of a construction permit was entered on April 5, 1974,
and reported in Regulatory Adjudication Issuances of
ah NIPSCO, LBP-74-19, RAI-74-4, 557 (April 5,
).
The Joint Intervenors appealed the Initial Decision,
which was affirmed by the Atomic Safety and Licensing
Appeal Board consisting of three members (ASLAB),
pursuant to 10 C.F.R. § 2.785(a), on August 29, 1974.
NIPSCO, ALAB-224, RAI-74-8, 244 (Aug. 29, 1974). Un-
less the AEC undertakes sua sponte a review of an
' In addition, prehearing conferences with all parties in
attendance were held on May 9, 1972, at Valparaiso, Indiana;
on September 6, 1972, at Hammond, Indiana; on November 1,
1972. at Schiller Park, Illinois; and on March 9, 1973, at
Washington, D.C.
_— =
ASLAB decision pursuant to 10 C.F.R. § 2.786, that
decision becomes the final decision of the AEC, 10
C.F.R. §§ 2.770 and 2.785(a).* Thereafter any final deci-
sion is subject to judicial review in the court of appeals,
42 U.S.C. § 2239(b) and 28 U.S.C. § 2342(4), where the
petitioner resides or has its principal office or in the
Court of Appeals for the District of Columbia Circuit, 28
U.S.C. § 23438.
On September 13, 1974, the Joint Intervenors peti-
tioned this court to review the August 29, 1974 order of
ASLAB authorizing the issuance to NIPSCO of the con-
struction permit and the September 5, 1974 order of
ASLAB denying Joint Intervenors’ motion for remand
for further proceedings to consider NIPSCO’s alleged
participation in the proposed building of another
nuclear plant in the early 1980's near Madison, Indiana.
NIPSCO, ALAB-227, RAI-74-9, 416 (Sept. 5, 1974).
By orders of this court of September 20, October 3,
and November 8, 1974, NIPSCO, the State of Illinois
and the City of Gary, Indiana, were admitted as in-
tervenors. On September 18, Joint Intervenors* moved in
this court for a stay pending appeal and on October 4,
the government moved for leave to reopen the ad-
ministrative proceedings for further hearing on
NIPSCO’'s proposal to construct a slurry wall at the site.
On October 16, 1974, we ordered (1) that the AEC
order of August 29 be stayed pending review of that
decision; (2) that AEC be permitted to reopen its ad-
ministrative proceedings for further hearings upon the
* The Energy Reorganization Act of 1974, Pub. L. No. 93-
438, 88 Stat. 1233 (Oct. 11, 1974), replaces AEC with an in-
dependent regulatory commission known as the Nuclear
Regulatory Commission (NRC). NRC is authorized to delegate
its licensing and regulation of nuclear reactors to its Office of
Nuclear Reaction Regulation under the supervision of a direc-
tor. Jd. § 203.
’ “Joint Invervenors” will hereafter continue to refer to the
original intervenors, not including Bethlehem Steel Corpora-
tion. The intervenors in this court will be referred to as
NIPSCO, Illinois and Gary.
= =
environmental impact of the building of a slurry wall;
(3) that any action by AEC permitting the construction
of a slurry wall be stayed pending further order of this
court after AEC has rendered a final decision concern-
ing the slurry wall; and (4) that an expedited briefing
schedule be followed.
On November 15, 1974, the Joint Intervenors moved
this court for clarification of the October 16 order to
determine whether that order required NIPSCO to fill
in the existing excavation on the site as well as to cease
any further site dewatering. On November 18, that mo-
tion was ordered taken with the case at the time of oral
argument on December 11, 1974.
The arguments on appeal made by Joint Intervenors,
Illinois and Gary are multi-faceted but all revolve ul-
timately upon whether AEC gave due consideration to
the population density and use characteristics of the site
environs.
I]
The proposed site for locating this commercial nuclear
reactor is unique in many respects. The site is a reverse
L-shaped 350-acre tract of land in Porter County, In-
diana, on the south shore of Lake Michigan. The shorter
base of the L runs from Lake Michigan to the south and
constitutes the 107-acre tract on which the nuclear plant
is sought to be located. The longer leg of the reverse L
runs at a right angle from the southern end of the base
from west to east and contains the remaining ap-
proximately 250 acres.
The reverse L-shaped nuclear site abuts the western
boundary and the southern boundary of the western por-
tion of the Indiana Dunes National Lakeshore, an ir-
regularly shaped area that stretches some eleven miles
along the south shore of Lake Michigan directly east of
the 107-acre portion of the reactor site.
In 1966 Congress authorized the Secretary of the In-
terior to establish the Indiana Dunes National Lake-
shore “{iJn order to preserve for the educational, in-
—22—
spirational, and recreational use of the public certain
portions of the Indiana Dunes and other acres of scenic,
scientific, and historic interest and recreational
value... .” 16 U.S.C. § 460u.
On September 20, 1972, the National Park Service
published a notice stating that “there has been acquired
within the boundaries of the Indiana Dunes National
Lakeshore an acreage which is efficiently administrable
for the purposes of said Act and, therefore the Lake
Shore is hereby established.” 37 Fed. Reg. 19389 (1972).
The National Lakeshore has thus far acquired 8300
acres or 85 percent of the land authorized by Congress
to be acquired. Interspread within but not a part of the
National Lakeshore acreage are the towns of Dune
Acres and Beverly Shores and the Indiana Dunes State
Park, which consists of an additional 2,200 acres and oc-
— approximately three of the eleven miles of beach
shore.
Most of the 8300 acres is open dune and wetland. The
ASLB found and concluded:
The location of the proposed facility on the shore
of Lake Michigan to the north and bounded on the
east by the Indiana Dunes National Lakeshore is
characterized by its proximity to an environment of
special qualities.
The Indiana Dunes region includes an exceptional
combination of sand dunes, marshes, swamps and
bogs, white sand beaches, and diversified flora and
fauna—a natural area difficult to equal anywhere
in the Nation. That portion of the Indiana Dunes
National Lakeshore adjacent to the Bailly site and
consisting of some 1200 acres is one of the best
remaining areas in the Indiana Dunes. Starting at
the edge of Lake Michigan and proceeding inland,
it contains a cross-section including a wide beach of
largely quartz sand, a low foredune covered by
sparse vegetation; higher dunes, some active and
sparsely covered and others having trees and other
vegetation, rising from 25 to almost 200 feet above
Lake level in a complex of blowouts, ridges, valleys,
—29—
and interdunal ponds. This cross-section exemplifies
terrestrial plant succession on dune sand as de-
scribed by Cowles over 70 years ago. The dynamic
nature of the Indiana Dunes has attracted scientists
as an ideal outdoor laboratory to study the prin-
ciples of ecological succession. .
On the south of the dune complex, and to the
north of the ancient shoreline of the Calumet stage
of Lake Michigan ... is a unique wetland area
known as Cowles Bog which contains an undrained
pond or depression filled with water and og
covered by a relatively thick mat of vegetation. The
fact that the Department of Interior’s National
Park Service has designated a sizeable portion of
these unique natural settings abutting the proposed
plant site as a Class IV Land namely “an outstand-
ing natural area of special significance for public
edification” . . . has weighed heavily in the Board's
consideration of the potential impact of the pro-
spray plant on its surroundings.
NIPSCO, LBP-74-19, supra at 586-87 (Finding 103).‘
On the 107-acre site where the plant is sought to be
located, NIPSCO operates two coal-fired electrical
generating stations and a gas turbine peaking plant.
The proposed nuclear facility would be built west of the
three existing plants. On the west and south sides of the
proposed site, Bethlehem Steel Corporation operates a
steel plant employing some 7,500 employees. To the west
of the Bethlehem plant is the proposed Port of Indiana.
In fact the area south and west of the site is a “vast in-
dustrial and urban complex [within which] are five ma-
jor cities—Gary, Hammond, East Chicago, Whiting [all
' Similarly, the ASLAB said:
The Lakeshore ... encompasses beaches, sand dunes,
marshes and bogs and is generally dedicated to public
recreational purposes. Some of its features, the dune
ridges and Cowles Bog National Landmark in particular,
are undoubtedly unique.
NIPSCO, ALAB-224, supra at 257.
in Indiana] and Chicago, [Illinois] and numerous
municipalities intermeshed . . . [within which] almost 7
million people live.” (Joint Intervenors’ Ex. 23).
The downtown Chicago loop area is about 30 miles
from the site. Downtown Gary is about 12 miles and the
eastern boundary of Gary is 5.25 miles from the pro-
posed reactor building.
‘The cumulative population density data in the record
shows actual and projected population at various dis-
tances from the Bailly site (October 1973 Stipulation;
Staff Ex. 12) as follows:
Distance from Bailly Population
1970 1985
0—5 miles 20,432 29,793
0—20 miles 600,000 700,000
0—30 miles 2,276,579 2,502,531
0—40 miles 5,000,000 6,000,000
Ill
In enacting the Atomic Energy Act of 1954, Congress
found that the regulation of the facilities used in connec-
tion with the production and utilization of atomic energy
was necessary, among other purposes, “to protect the
health and safety of the public.” 42 U.S.C. § 2012(e).
Another purpose was to provide “a program to en-
courage widespread participation in the development
and utilization of atomic energy for peaceful purposes to
the maximum extent consistent with the common
defense and security and with the health and safety of
the public.” 42 U.S.C. § 2013(d).
“INjo license [for a utilization or production facility]
may be issued to any person within the United States if,
in the opinion of the Commission, the issuance of a
license to such person would be inimical to the common
defense and security or to the health and safety of the
public.” 42 U.S.C. § 2133(d).
iin
Finally, in) connection with the applications for
livenses to operate facilities, the applicant shall furnish
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.” 42 USC. § 2232(a).
In evaluating the proposed site for a nuclear reactor
the AEC has promulgated regulations which provide
that it “will take .. . into consideration” three factors:
(1) Characteristics of reactor design and pro-
posed operation;
s+ &
(2) Population density and use characteristics of
the site environs, including the exclusion area, low
population zone and population center distance; and
(3) Physical characteristics of the site, including
seismology. meteorology, geology and hydrology.
10 C.F.R. § 100.10.
Population density and use characteristics are further
defined in 10 C.F.R. § 100.11. A license applicant is
directed to assume (a) a fission product release from the
core, (b) the expected demonstrable leak rate from the
containment and (c) the meteorological conditions perti-
nent to his site, in order to derive the three area or pop-
ulation buffer zones of (1) exclusion area, (2) low popula-
tion zone and (3) population center distance. The size or
area of the first two buffer zones is determined by
calculating that certain maximum radiation dosages, for
stated periods after an accident, to an individual located
on the outer boundaries of each zone not be exceeded.
The third zone is one and one-third times the distance
‘\
= =
from the reactor to the outer boundary of the second
zone.”
NIPSCO in its brief before us has emphasized the
complexity of determining the first two buffer zones
“because each of the principal elements . . . (fission
product release, containment leak rate, meteorological
conditions) depends upon the applicant's proposed reac-
tor plant design and site,” making “no single formula”
possible. (Br. at 10-11). The regulations, and the record
herein insofar as it pertains to NIPSCO’s attempt to
comply with them, confirm the complex nature of de-
termining the critical factor of “population density and
use characteristics of the site environs” in regard at
least to the first two buffer zones. Because of the com-
plexity of that determination, which necessarily sub-
sumes the expertise of the AEC in reaching definitive
» 10 C.F.R. § 100.11 provides in part:
(a) As an aid in evaluating a proposed site, an appli-
cant should assume a fission product release from the
core, the expected demonstrable leak rate from the con-
tainment and the meteorological conditions pertinent to
his site to derive an exclusion area, a low population zone
and population center distance. For the purpose of this
analysis, which shall set forth the basis for the numerical
values used, the applicant should determine the following:
(1) An exclusion area of such size that an individual
located at any point on its boundary for two hours im-
mediately following onset of the postulated fission product
release would not receive a total radiation dose to the
whole body in excess of 25 rem or a total radiation dose in
excess of 300 rem to the thyroid from iodine exposure.
(2) A low population zone of such size that an in-
dividual located at any point on its outer boundary who is
exposed to the radioactive cloud resulting from the
postulated fission product release (during the entire
period of its passage) would not receive a total radiation
dose to the whole body in excess of 25 rem or a total radia-
tion dose in excess of 300 rem to the thyroid from iodine
exposure.
(3) A population center distance of at least one and
one-third times the distance from the reactor to the outer
boundary of the low population zone. In applying this
ide due consideration should be given to the population
istribution within the population center.
= =
conclusions. we turn first to the problem of determining
the third buffer zone, the solution of which is relatively
simple and merely involves a mathematical computation
and the interpretation of non-technical language, an
area where no expertise beyond normal adjudication is
required. See 4 K. DAvis, ADMINISTRATIVE LAW
TREATISE § 30.09 (1958 ed. and 1970 Supp.).
10 C.F.R. § 100.11(a)(3) describes the third buffer zone
as:
A population center distance of at least one and
one-third times the distance from the reactor to the
outer boundary of the low population zone.
10 C.F.R. § 100.3(¢) adds:
“Population center distance” means the distance
from the reactor to the nearest boundary of a dense-
ly populated center containing more than about 25.-
QOO residents.
The ASLB approved NIPSCO’s and the AEC
Regulatory Staff's calculations of the radii of the three
population buffer zones as follows:
(1) Exclusion Area: 188 meters or .1168 mile.
> dutig LBP-74-19, supra at 561, 563 (Findings 14,
);
(2) Low Population Zone: 2413 meters or 1.5 miles.
Id. at 561, 563, 565 (Findings 14, 19, 24);
(3) Population Center Distance: 3219 meters or 2
miles. /d. at 565 (Finding 24).
As stated earlier, Findings (1) and (2) are based on
a dosage calculations but (3) is simply 1% times
(2).
In accordance with these findings, the application of
the 10 C.F.R. 100 regulations would require that no
“densely populated center containing more than about
25.000 #esidents” be located at or nearer than two miles
from the reactor.
The City of Portage, Indiana, had a population of 19,-
127 in 1970 but the ASLB found that “f{u]pon question-
fit
ing concerning the City of Portage, the Staff
acknowledged the expected population of Portage by
1980 would exceed 25,000.” NJPSCO, LBP-74-19, supra
at 565 (Finding 24). Without so finding, ASLB referred
to evidence that “the nearest boundary [of Portage] was
1.1 miles from the reactor site.” /d. The briefs of both
the government and NIPSCO accept the fact that the
political or municipal or corporate boundary of Portage
is approximately one mile from the reactor.®
Inasmuch as the site evaluation factors are
promulgated to insure the safety of the adjoining pop-
ulation,’ “[a]t the very least, consideration should. . . be
given to the best available estimates as to what will be
the population in the general vicinity of the reactor dur-
ing the early vears of actual operation.”* The evidence
* In discussing Joint Intervenor’s contentions, the govern-
ment states that “the political boundary of the City of Portage
. . . Was only one mile away,” (Br. at 35} and NIPSCO states
that “[Portage’s] nearest municipal boundary is within 1.1
miles of the site.” (Br. at 24).
* 10 C.F.R. § 100.10 provides that “the site location and the
engineered features included as safeguards against the haz-
ardous consequences of an accident, should one occur, shouid
insure a low risk of public exposure.”
* Southern California Edison Co.. ALAB-248, RAI-74-12,
957, 960 (Dec. 24, 1974), where the ASLAB also said in
~ ey to the San Onofre Nuclear Generating Station, Units 2
and 3:
Part 100 does not specify the precise time at which the
number of persons within a potential population center is
to be measured. But, the purpose of the Part 100 criteria
being to ascertain whether a particular site is suitable for
reactor operation, it would make little sense to look only at
the size of the population as of the time of the construction
permit proceeding (several years prior to reactor opera-
tion).
[T]here is a strong likelihood that, sometime during the
first few years of reactor operation (if not before), San
Clemente will have a population of “more than about 25,-
000.” Therefore, we see no reason why San Clemente
should not be treated as the closest population center, and
we accordingly do so.
Id. at 959-60. See also Long Island Lighting Co. (Shoreham
ge A Power Station), ALAB-156, RAI-73-10, 831, 848 (Oct.
; 3)
—s—
here is uncontroverted that the population of Portage
will grow to 25,000 between 1976 and 1977 and to about
29,000 in 1980, the early years of expected operation of
this reactor.
The ASLB and eventually the ASLAB accepted the
Regulatory Staffs argument that the political boundary
of Portage was to be ignored and instead some
amorphous, flexible and movable center or centroid of
population was to be considered. The fatal error in this
alleged logic is that AEC itself has defined “population
center distance” as the distance from the reactor “to the
nearest boundary of a densely populated center con-
taining more than about 25,000 residents.” 10 C.F.R. §
100.3(c) (emphasis added). NIPSCO’s own witness con-
ceded that “the centroid itself doesn’t have a boundary;
it is a point.”
Section 100.11(aX3) also adds:
In applying this guide, dc consideration should be
given to the population distribution within the pop-
ulation center.
But giving such due consideration to population dis-
tribution does not eliminate the need to establish a boun-
dary. Recently the ASLAB in another case found that
the city limits of San Clemente, with an estimated
future population likely to exceed 25,000, was within the
population center distance and te a recalculation
of radiation dosage distances. We agree with AEC’s
ASLAB in that case, that a densely populated center
may extend beyond the political or corporate limits of
the 25,000 population unit, but there is neither reason
* Southern California Edison Co. (San Onofre Station),
ALAB-248, RAI-74-12, 957, 957-61 (Dec. 24, 1974). In a foot-
note, the ASLAB added:
The “nearest boundary of a densely populated center”
will not necessarily coincide with city or other political
linftts, for densely populated areas may extend beyond such
limits. In this case, a portion of the dividing line between
{Orange and San Diego} counties does also represent the
extreme southeastern limits of San Clemente.
Id. at 960 n.7 (emphasis added).
—36—
nor sound safety policy to cut down the boundaries of
that unit and make some hopeless attempt to construct
imaginary boundaries.
The ASLB in this case recognized the fallacy of sub-
stituting centroids for boundaries" and found as follows:
To initially determine the heavily populated portion
of the population center, the Staff used official
Geological Survey (USGS) maps ... on which
densely populated areas are depicted in pink.
NIPSCO, LBP-74-19, supra at 565 (Finding 25).
The map relied upon for the “pink” sections (thus hav-
ing boundaries) is the United States Department of the
Interior geological survey of the Portage quadrangle.
The map is “revised from aerial photographs taken
1967” and “field checked 1968.” It must be kept in mind
that the principal portion of the hearings in this case
took place in 1973, at least five years later. The map
purports to show individual dwellings as dots but the
“pink,” or what the map refers to as “red tint,” simply
indicates areas where individual dwellings are not
shown. The map itself makes no representations or even
references to population. The map clearly indicates the
“corporate boundary of Portage” as being about one mile
from the reactor.
In the critical determination of the “Population Center
Distance,” it would be ludicrous to attempt to reduce the
political boundaries of the population center by such
HL
The Board said that it “was particularly concerned with
intervenors claim that the Applicant had erred in choosing
Gary as the nearest population center, that indeed Portage
would be the proper choice and that the nearest boundary was
1.1 miles from the reactor site.” NJP’SCO, LBP-74-19, supra
at 565 (Finding 24).
Member Walter H. Jordan of ine ASLB said during the
evidentiary hearings (Oct. 11, 1972 Tr. 613):
[Miy reading of Part 100 does not say distance to the
center; it says distance to the population center, but it
does not mean the center of the population center in mak-
ing that calculation. It is the environs of that population
center, I believe.
vague and indefinite references. Presumably, the car-
tographers could have tinted any part of the Portage
quadrangle pink inasmuch as_ they indicated no
— which they used in selecting the areas so
tinted.
Here the corporate boundary of Portage was about one
mile from the reactor and the evidence showed that the
boundary of census enumeration district 719 of Portage
as well as the boundary of the enumeration district
representing the entire City of Portage were both less
than a mile from the reactor. Since both the ASLB and
ASLAB found that the boundary of a densely populated
center containing more than about 25,000 residents must
be at least two miles away from the reactor, their con-
= that a construction permit be granted cannot
stand.
This conclusion does not take into consideration the
additional fact that the boundaries of each of the com-
munities of Dune Acres, Porter and Burns Harbor are
also less than two miles from the reactor and that their
total population, when included with that of Portage and
unincorporated county areas within two miles, of course,
exceeds 25,000.
Nor does this conclusion take into consideration the
fact, discussed in greater detail later, that the master
plan for the Indiana Dunes National Lakeshore con-
templates that “[a]ctive use of all of the facilities provid-
ed for in this plan, both in the State Park and in the
Lakeshore, will permit a maximum visitation of about
87,000 persons a day.” (Joint Intervenors’ Ex. 23).
Presumably, a large portion of such visitors would or
could come within tne two-mile limit of the third buffer
zone, but such a conclusion is not necessary because the
AEC siting regulations have been viola in this case
on the basis of Portage alone.
It is also important to consider that Bethlehem Steel
Corporation's 7,500 employees are located at about one
mile from the Bailly site.
IV
In view of the vast consequences of shutting off or
delaying a potential source of considerable energy in
these times of energy crisis, together with the effect of
such an occurrence upon the economic, financial and in-
dustrial well-being and development of northern In-
diana, obviously we cannot finally act without giving
very serious consideration to every possible factor which
may conceivably bear upon the problem.
The factors in favor of granting the permit are so per-
vasive and weighty that they are impossible to ignore.
Northern Indiana, as the entire country, has a need for
additional generating power, employment and economic
assistance. Witness after witness made so-called “limited
appearance statements,” appearing on their own behalf
or on behalf of a group or organization or utility or
union, requesting that a construction permit be issued in
order to provide additional energy, jobs or stimuli to the
economy. It is pertinent to note, however, that almost
every witness in one fashion or another conditioned his
request upon either his hope or confidence that AEC
would adequately protect the public safety and, in some
cases, also protect the environment.
In fact these circumstances militating in favor of the
permit are so overwhelming that perhaps the AEC ina
completely well-intentioned and good faith effort to ac-
complish ends which everyone seeks to accomplish has
tended to become somewhat lax in assuring that the
means employed thereby function in as safe a manner as
possible so that one day we do not come to regret the
proliferation of nuclear power.
Judge Oakes of the Second Circuit Court of Appeals
recently noted in a dissent his concern “that the AEC is
charged with the dual duty of passing on licenses on the
one hand but promoting the use of atomic power on the
other.” Morningside Renewal Council, Inc. v. AEC, 482
—39—
Kovd Bad. 240-4) (2d Cir. 1973), cert. denied, 417 U.S.
GQ) (LOTA).!
l’'resumably, this observation has been largely in-
validated by the Energy Reorganization Act of 1974
which purports to divide the promotional and research
aspects of atomic energy, to be administered by the
Energy Research and Development Administration (ER-
1A). from the licensing and regulatory functions, to be
administered by the Nuclear Regulatory Commission
(NRC). Nevertheless, the orders which we are presently
reviewing occurred under the old AEC procedure and
the merging of the diverse functions thereunder may ex-
plain to a certain extent some of the factors which we
next consider.
A
AEC appears to have given no direct consideration to
the clustering of nuclear power eng around the
southern end of Lake Michigan within relatively short
distances from the density of population of metropolitan
Chicago.
Although there appears to be no likelihood of a chain-
reaction effect which would lead an accident from one
plant to another, recent developments indicate that
plants built within a contemporary time period tend to
‘' “AEC is supposed to stimulate the use of atomic ener
and at the same time enforce the conditions of use imposed by
its own regulations. There is sound basis for the argument
that the two roles are incompatible.” C. ALLARDICE &
E. TRAPNELL, THE ATOMIC ENERGY COMMISSION 123 (1974).
See also Carolina Environmental Study Group v. AEC, slip
op. No. 73-1869 at 9 (D.C. Cir., Jan, 21, 1975), where the court
said: “The possibility of such a conflict of interests is obvious.”
For case and commentator documentation of “whether the
regulatory agency is unduly oriented toward the interests of
the industry it is designed to regulate, rather than the public
interest it is designed to protect, see Mr. Justice Douglas’ dis-
sent in Sierra Club v. Morton, 405 U.S. 727, 745-48 (1972).
develop structural deficiencies at or about the same
time.'*
There are presently eight nuclear power plants within
about 75 miles of downtown Chicago!’ and six more are
in the planning stage.'* The Bailly Generating Station,
Nuclear-1, as this plant has been designated, would be
the fifteenth plant clustered around metropolitan
Chicago.
The AEC siting regulations as they pertain to the pop-
ulation center distance, discussed supra in Part III,
provide in part:
Where very large cities are involved, a greater dis-
tance may be necessary because of total integrated
population dose consideration.
10 C.F.R. § 100.11(a)(3).
This distance referred to, in the circumstances of the
present case, is, of course, two miles, but the regulations
indicate AEC’s awareness that consideration must be
given to “very large cities” such as Chicago.
In what the ASLAB called “the draft of an internal
staff working paper pertaining to allowable levels of
‘* In September 1974, the Dresden 2 plant at Morris, Illinois,
developed a leak in a 4-inch bypass pipe in its emergency core
cooling system. Inspections revealed cracks or preliminary in-
dications of cracks in the same pipe in eight boiling water
reactors in the United States aad | nod Recently, the NRC
closed 28 plants for inspection when five small cracks were
discovered in 10-inch cooling pipes at Dresden 2, N.Y. Times
Feb. 6, 1975 at 24, col. 1. |
‘t About 30 miles away are Zion 1 and Zion 2 at Zion, Illinois
(completed in 1972); about 50 miles away are Dresden 1
(1960), Dresden 2 (1970) and Dresden % (1972) at Morris, I]-
linois, and Donald C. Cook 1 (1973) and Donald C. Cook 2
(1974) at Bridgman, Michigan; somewhat further is Palisades
(1971) at South Haven, Michigan. ALLERDICE & TRAPNELL
supra note 11, at 224-25. :
'' About 50 miles away will be Braidwood 1 (1980) and
Braidwood 2 (1981) at Braidwood, Illinois; somewhat further
will be LaSalle 1 (1977) and LaSalle 2 (1978) at Seneca, II-
linois, and Byron 1 (1979) and Byron 2 (1980) at Byron, II-
linois. ALLERDICE & TRAPNELL, supra note 11, at 224-25.
oe.
——
population density around nuclear plant sites” (NJPSCO,
ALAB-224, supra at 252), AEC's staff noted as of April
17, 1973:
A long-standing policy of the Atomic Energy
Commission'® has encouraged siting of nuclear
plants away from densely populated areas until ad-
ditional operating experience has been obtained.'*
When the AEC made the staff working paper public
on April 9, 1974, the AEC press release accompanying
the paper virtually repeated one year later that:
Under a policy established by the AEC in 1962, the
siting of nuclear power plants at some distance
from densely populated areas has not been en-
couraged until additional operating experience has
been obtained.
AEC Press Release, T-160 at 2 (April 9, 1974).
In Power Reactor Development Co. v. International
Union of Electrical Workers, 367 U.S. 396 (1961), the
Supreme Court reversed the court of appeals which had
set aside an AEC order issuing a construction permit,
saying:
The Court of Appeals put forward as an alter-
native basis for its decision the holding that under
the law the Commission may not authorize the con-
struction of a reactor near a large population center
135 miles from the center of Detroit and 30 miles
from the center of Toledo] without “compelling
reasons” for doing so,. . . 280 F.2d at 651-652, and
that no such reasons had been found by the AEC in
this case. .. . [T]he position is without merit. The
> The staff footnote at this point referred to Statement of
Consideration, Reactor Site Criteria, 10 C.F.R. Part 100, 27
Fed. Reg. 3509 (1962).
6 AEC REGULATORY STAFF WORKING PAPER, POPULATION
DISTRIBUTION AROUND NUCLEAR POWER PLANT SITES, Appen-
dix A (April 17, 1973, released April 9, 1974). The staff paper
also observed: “There has been no reason to take the ad-
ditional incremental risk, however small, of incurring doses to
a large metropolitan pe ey as a result of any accident in
the nuclear facility when other suitable sites, less densely pop-
ulated, remain available.” /d. at 1.
—_“
statute and regulations say nothing about “compell-
ing reasons.” Of course Congress (and the Commis-
sion, too, for that matter) had the problem of safety
uppermost in mind, and of course that problem is
most acute when a reactor, potentially dangerous, is
located near a large city. But the Commission found
reasonable assurance, for present purposes, that the
reactor could be safely operated at the present loca-
tion, and that is enough to satisfy the requirements
of law.
Id. at 414."
In the Power Reactor case, the majority had disposed
of “the fears of nuclear disaster” by pointing out that the
issuance of the construction permit was only the first
step, and that the applicant would be required to satisfy
safety-of-operations requirements prior to obtaining an
operating permit. In 1962, however, Congress amended
the Atomic Energy Act of 1954 to eliminate the two-
hearing requirement in effect at the time of the decision
of Power Reactor, The mandatory hearing is now re-
quired only prior to the issuance of the construction per-
mit. Union of Concerned Scientists « ALC, 499 F.2d
1069, 1074-80 (D.C. Cir. 1974). It is now unquestionably
true as Mr. Justice Douglas said in his dissent in Power
Reactor that “the time when the issue of ‘safety’ must be
resolved is before the Commission issues a construction
permit.” 367 U.S. at 419.
The Senate Report accompanying the Energy
Reorganization Act of 1974, included the following
observations:'"
Most commercial reactors now use a low-enriched
uranium fuel that is not suitable for manufacture of
eee
In a dissent concurred in by Mr. Justice Black, Mr. Justice
Douglas said:
The construction given the Act by the Commission (and to-
day approved) is, with all deference, a light-hearted ap-
— to the most aoe, the most deadly, the most
dangerous process that man has ever conceived.
367 Us. at 419.
* §. Rep. No. 93-980, 93d Cong., 2d Sess., U.S. Cop, CONG.
& ADMIN. NEWS 4868, 4869 n.1 (1974).
— =
bombs. They all produce plutonium as a by-product,
however, which after reprocessing is potentially ex-
plosive and suitable for bombs. ... At present,
there are about 1 million pounds of plutonium and
enriched uranium authorized in the licensed sector,
about half of it of weapons grade. Plutonium, in ad-
dition to its potential explosiveness, is one of the
most toxic substances known to man. One thirty-
millionth of an ounce, less than a pollen grain will
cause cancer if inhaled or swallowed.'’
Despite these factors, the AEC gave no direct con-
sideration to the effect of the existence of from eight to
fifteen nuclear plants clustered around the Chicago
metropolitan population.
B
Not only did the AEC disregard what at least some of
its expert staff deemed important population § con-
siderations, but it also disregarded its own past course
of conduct in approving nuclear power sites.
The 1973 Working Paper prepared by the AEC
Regulatory Staff (supra, note 16) analyzed all sites
which up to that time (April 1973) had been given con-
sideration for licensing, and listed each one together
with both its maximum Site Population Factor (SPF)
“ In 1974, according to NRC, the nuclear power industry ex-
«rienced more than 1.400 “abnormal” events, four of which
vad a “directly significant” bearing on nuclear safety and
radiation control. Chicago Sun-Times, Feb. 14, 1975 at 18, col.
1.
“ 1A] weighting of the incremental populations around a
reactor at the annular distances of 1, 2, 3, 4, 5, 10, 20, 30,
40 and 50 miles in comparison to a hypothetical site hav-
ing a uniform population distribution of 1,000 people per
square mile.
The weighting factors applied to the populations at the
various annular distances are inversely proportional to the
distance from the source. The inverse weighting is in con-
sonance with the increased atmospheric dilution with dis-
tance for an assumed release of radioactivity emanating
from a reactor. According to the weighting, a given pop-
ulation close to the site would be considered to present a
higher risk than the same population farther away. The
weighting used is the distance (d) raised to the -1.5 power.
STAFF WORKING PAPER, supra note 16 at B-9.
aufifipes
and the SPF at 50 miles. Sixty-eight proposed and ac-
tual sites are listed and Bailly, which is 30 miles from
downtown Chicago, has the sixth highest SPF at 50
miles. The five sites with a higher SPF at that distance
according to rank were: (1) Ravenswood, (2) Indian
Point. (3) Newbold Island, (4) Limerick and (5) Zion.
Ravenswood was withdrawn as a_ proposed site
because of population considerations.“! In October 1973,
the AEC informed the applicant utility that Newbold
Island was not suitable because of population density.
Because of the high population density at Limerick, the
AEC staff issued special safety evaluations. With regard
to high population density sites the staff stated:
Indian Point and Zion are the highest population
density sites which have received construction per-
mits.
STAFF WORKING PAPER, supra note 16 at B-5.
At the present time the staff uses an informal
guideline that sites with a population density
greater than that of an envelope of the Zion, New-
bold Island and Indian Point site populations are
not considered acceptable.
Id. at 1.
The Bailly site is closer to downtown Chicago than the
Zion site.
Furthermore, if the granting of a construction permit
to Bailly was allowed to stand, Bailly would achieve the
dubious distinction of being nestled within one of the top
few most dense population areas of all 68 sites proposed
‘! Another site, Burlington, which had a lower population
figure at 50 miles but greater overal! than Bailly, was also
withdrawn because of population considerations.
—5—
thus far in the United States for siting nuclear power
plants.<-
ts
In September 1974, the AEC issued its DRAFT
REGULATORY GUIDE 4.7, GENERAL SITE SUITABILITY
CRITERIA FOR NUCLEAR POWER STATIONS (Sept. 1974),*8
which included the following:
Sites adjacent to some lands devoted to public use
may be considered unsuitable. In particular, the use
of some sites . . . close to special areas administered
by Federal. State, or local agencies for scenic or
recreational use may cause unacceptable impacts
regardless of design parameters. Such cases are
most apt to arise in areas adjacent to natural-
resource oriented areas (e.g.. Yellowstone National
Park) as opposed to recreation-oriented areas (e.g.,
-- The 1973 Working Paper also states that when population
density is high
[T]he Regulatory Staff will request: (1) an analysis of
alternative sites including a showing that the proposed
high population density site offers significant advanta
from the standpoint of environmental, economic or other
factors; and (2) the inclusion of state-of-the-art
engineered safety features to assure that the overall risk
to the public has been minimized.
STAFF WORKING PAPER, supra note 16 at A-l.
In regard to the Bailly site “{the Regulatory Staff's] con-
clusion was that when only environmental matters were con-
sidered, the Bailly site was superior but not uy
so.” The ASLB “agrees with this conclusion.” NJPSCO, LBP-
74-19, supra at 624.
“* The Regulatory Guide states that it is “not [a] substitute
... for regulations and compliance with them is not re-
uired. Methods and solutions different from those set out in
the guides will be acceptable if they provide a basis for the
findings requisite to the issuance or continuance of a permit
or license by the Commission.” DRAFT REGULATORY GUIDE,
supra at 1.
— =
Lake Mead National Recreation Area).** Some
historical and archeological sites may also fall into
this category. The acceptability of sites near special
areas of public use should be determined by con-
sulting cognizant government agencies.
Id. at 14.
The agency which the AEC specifically indicates
“should be consulted” in regard to a National Lakeshore
is the National Park Service of the United States
Department of the Interior. Congress has delegated its
authority over the public lands of the Indiana Dunes
National Lakeshore to the Secretary of the Interior. 16
U.S.C. §§ 460u-460u-9.
In response to the draft environmental statement, the
Deputy Assistant Secretary of the Interior wrote on Oc-
tober 19, 1972:
We must conclude that the construction of the
proposed Bailly Generating Station Nuclear-1 on
the border of the Indiana Dunes National
Lakeshore does not serve the highest public in-
terest. Therefore, we recommend that the Atomic
Energy Commission withhold the issuance of a con-
struction license ... at this site... .
Nathaniel Reed, the Assistant Secretary of the In-
terior testified before the ASLB and after establishing a
host of impacts which the adjoining Bailly plant would
have on the National Lakeshore, the following occurred:
Chairman ...: So, therefore, you are—the
Department is completely against the Bailly site
irrevocably?
The Witness: Yes, I think that’s an accurate
statement.
24 The poet Carl Sandburg is reported to have said:
The Indiana Dunes are to the Midwest what Yosemite is
to California, Grand Canyon is to Arizona. They are a
signature of time and eternity. Once lost, their loss would
be irrevocable.
Chicago Sun-Times, Dec. 8, 1974 (Magazine), at 15.
— =
Draft Regulatory Guide 4.7 continues:
It should be recognized that some as yet un-
designated areas may be unsuitable for siting
because of public interest in future dedication to
public scenic, recreational, or cultural use. Relative-
ly rare land types such as sand dunes and wetlands
are prime candidates for such future designation.
DRAFT REGULATORY GUIDE, supra at 14.
The ASLAB in this case found:
The unique features of the Indiana Dunes and
wetlands have long been recognized by
conservation-minded individuals.
NIPSCO, ALAB-224, supra at 262.
To summarize, dunes and wetlands are prime can-
didates for future designation as public recreational
sites, and if adjacent, or near to a proposed nuclear site
it is rendered unsuitable. Yet long-recognized valuable
natural areas which have already been designated as
recreational sites and which abut hard against a pro-
posed nuclear site are deemed suitable. And although
consultation with cognizant government agencies is in-
tended to determine the acceptability of such sites, when
the Department of the Interior upon consultation is
“completely against the site irrevocably,” that site is
accepted.
The ASLAB summarized the Interior Department's
and other witnesses’ testimony and evidence of the chief
factors of direct harm to the Lakeshore environment:
(1) lowering the ground water table during construc-
tion would concomitantly lower the water level of bo
and ponds in the National Lakeshore, permanently
damaging the delicate ecological systems in those unique
wetlands; (2) operation of the facility’s cooling tower
will emit a water vapor plume that would (a) merge
with chemical emissions from _ nearby _ industrial
smokestacks to form an “acid mist” deleterious to
Lakeshore biota, (b) deposit salt residues that will
further injure the Lakeshore biota as well as pollute
Lake Michigan and (c) worsen weather conditions in
the area; (3) operations of the nuclear facility would
pollute Lake Michigan with undesirable (including
antfiiiun
radioactive) waste materials; (4) use of ash ponds now
on the Bailly property in conjunction with the new
facility would pollute the National Lakeshore into which
they assertedly drain; (5) intake of additional cooling
water for the nuclear facility would destroy substantial
quantities of fish in the Lake; and (6) the cooling tower
would constitute a “visual intrusion” looming unattrac-
tively over the natural horizons of the Lakeshore.
NIPSCO, ALAB-224, supra at 259.
In regard to the massive visual intrusion of the cooling
tower 400-450 feet tall and 440 feet in diameter at its
base, from the top of which “(dJuring operation, there
will always be a visible plume . . . ranging in length
from a few tower heights to several miles,” (NJPSCO,
LBP-74-4, supra at 599 (Finding 131) ), ASLB found:
We find that the proposed natural draft cooling
tower constitutes a man-made, visual intrusion
which is an adverse environmental impact on the
Bailly plant.
Id. at 600 (Finding 133).
This finding although “factored into” the total considera-
tion was ignored.
1)
We have considered the population density and en-
virons factors within the 30-75 mile zone around Bailly
(IV A and B, supra) and within the two-mile (third
buffer) zone around Bailly (III, supra) as well as the
abutting environment (IV C, supra). Next we consider
the two closest population zones (the first and second
buffer zones).
The first zone or “exclusion area” is the place where
the reactor is situated and a relatively small area im-
—49—
mediately surrounding the physical plant.*® In this case
the ASILB and ASLAB approved an exclusion area of
188 meters or .116% mile or approximately 1/10th of a
mile.
Before examining in detail two AEC documents which
we have briefly referred to earlier, the 1973 Working
Paper on population distribution and Draft Regulatory
Guide 4.7 on general site suitability criteria, it is
necessary to make a few observations.
The AEC had been striving, prior to its recent demise
in favor of NRC, to standardize its approach to the li-
censing of nuclear power plants.“ One of the more im-
10 CFR. § 100.3(a) provides the definition:
“Exclusion area” means that area surrounding the reac-
tor, in which the reactor licensee has the authority to
determine all activities including exclusior. or removal of
personnel and property from the area. This area may be
traversed by a highway. railroad, or waterway, provided
these are not so close to the facility as to interfere with
normal operations of the facility and provided appropriate
and effective arrangements are made to control traffic on
the highway, railroad, or waterway, in case of emergency,
to protect the public health and safety. Residence within
the exclusion area shall normally be prohibited. In any
event, residents shall be subject to ready removal in case
of necessity. Activities unrelated to operation of the reac-
tor may be permitted in an exclusion area under ap-
propriate limitations, provided that no significant hazards
to the public health and safety will result.
Commission Policy Statement on Standardization of
Nuclear ower Plants (April 28. 1972); Statement on Methods
for Achieving Stendardization of Nuclear Power Plants
(March 5, 1973).
it
—50—
portant benefits of increased standardization anticipated
by AEC was the enhancement of reactor safety.*’
Draft Regulatory Guide 4.7 is part of the standardiza-
tion process.” and the 1973 Working Paper,”* which the
ASLAB dismissed as “simply a_ tentative position
proposed by some members of the regulatory staff”
(NIPSCO, ALAB-224. supra at 254), was accompanied
by the AEC’s own press release which stated:
The AEC is continuing work to develop generally
applicable environmental siting guides for nuclear
power plants.
AEC Press Release, T-160 at 1 (April 9, 1974).
We use both the guide and the working paper, not as
superseding the Commission’s regulations, but merely as
an expression of at least some AEC expertise to be ex-
amined in areas where the regulations are not clear or
specific. We assume that if they offered no guidance, the
AEC would not have issued and released them.
In Part HI supra, we found that the Commission had
violated its own regulations. In Part IV, we are examin-
ing other aspects of the AEC’s action in granting the
Bailly permit to determine whether, on balance, the ex-
traordinary result of halting or delaying the develop-
ment of needed energy is warranted by the Com-
“ Trosten & Moore, Nuclear Power Plant Standardization
Promises and Pitfalls, 15 WM. & Mary L. Rev. 527, 531
(1974); Shapar & Malsch, Proposed Changes in the Nuclear
Power Plant Licensing Process: The Choice of Putting a Finger
in the Duke or Building a New Dike. 15 WM. & Mary L. REV.
539, 541 (1974).
The Guide notes at the outset: “Regulatory Guides are
issued to describe and make available to the public methods
acceptable to the AEC Regulatory staff of implementing
specific parts of the Commission’s regulations, to delineate
techniques used by the staff in evaluating specific problems or
wstulated accidents or to provide guidance to applicants.”
RAFT REGULATORY GUIDE, supra at 1.
The 1973 Working Paper is dated April 17, 1973, and was
released by the AEC for public distribution about one year
later, April 9, 1974, a few days after ASLB had rendered its
decision in this case.
anions
mission’s violation of its regulations. In this latter in-
quiry we seek, not eschew, whatever expertise the AEC
has tw offer, including the guide and the working paper.
The working paper proposes the following regulatory
position:
Applications for sites having a cumulative pop-
ulation projected from the date of application for a
construction permit. . . greater than 30,000 within
5 miles, 500,000 within 20 miles or 2,000,000 within
40 miles should:
(a) Present an analysis of alternative sites, in-
cluding a showing that the proposed site offers
significant advantages from the standpoint of en-
vironmental, economic or other factors.
(b) Provide state-of-the-art engineered safety
features to assure that the conservatively
calculated consequences of postuleted design
basis accidents are significantly below the dose
guidelines of 10 CFR Part 100.
(c) Have a minimum exclusion distance of at
least 0.4 mile and a low population zone of at
least two miles.
STAFF WORKING PAPER, supra note 16 at A-4.
It was stipulated that the projected population at Bail-
ly in 1985 would be as follows:
0—5 miles 29,793
0—20 miles 700,000
0—40 miles 6,000,000
In addition to consideration of alternate sites and add-
ed safety features, such a site calls for “a minimum ex-
clusion distance of at least 0.4 mile” or 4/10th of a mile
or four times greater than that proposed for Bailly.
Draft Regulatory Guide 4.7 provides that “(b on
past experience, the Regulatory staff has found that a
minimum exclusion distance of 0.4 mile ... usually
= assurance that engineered safety features can
designed to bring the calculated dose from a
postulated accident within the guidelines of 10 CFR
Part 100.” DRAFT REGULATORY GUIDE, supra at 17-18.
If the exclusion area or first buffer zone in the present
case were to be increased fourfold, it would extend
beyond the NIPSCO-owned property into areas where
NIPSCO could not “determine all activities”’’ and would
raise serious questions of interference with the authority
of the Secretary of the Interior over the National
Lakeshore.®*!
A similar problem exists in connection with the sec-
ond buffer area—the low population zone.** The low pop-
ulation zone here was established by the ASLB and
ASLAB at 1.5 miles. The working paper establishes “a
low population zone of at least 2 miles” (STAFF WORKING
PAPER, supra note 16 at A-4) and the guide states that
“the Regulatory staff has found that a distance of 3
miles to the outer boundary of the LPZ is usually ade-
quate.” DRAFT REGULATORY GUIDE, supra at 18.
Even at 1.5 miles, the LPZ extends over about 640
acres of Class IV land, namely “an outstanding natural
area of special significance for public edification.”
NIPSCO, LBP-74-19, supra at 586. But more
“See note 25 supra.
' The findings of ASLB indicated that the .1168 mile exclu-
sion area would fall short of the shoreline of Lake Michigan
(NIJPSCO, LBP-74-19, supra at 561) and presumably totally
within the NIPSCO-owned property. The Illinois Attorney
General tells us in his brief that “the balance of the 0.4 mile
requirement [the exclusion area] would extend into the
National Lakeshore a distance of some 1,312 feet.” (Br. at 9).
® 10 C.F.R. § 100.3(b) provides:
“Low population zone” means the area immediately sur-
rounding the exclusion area which contains residents, the
total number and density of which are such that there is a
reasonable probability that appropriate protective
measures could be taken in their be alt in the event of a
serious accident. These guides do not specify a permissible
poeeens density or total population within this zone
vecause the situation may vary _ case to case. Whether
a specific number of people can, for example, be
evacuated from a specific area, or instructed to take
shelter, on a timely basis will depend on many factors
such as location, number and size of highways, scope and
extent of advance planning, and actual distribution of
residents within the area.
=
significantly, it is anticipated that as many as 87,000
persons a day will visit the Dunes National Lakeshore
and State Park (Joint Intervenors’ Ex. 23). It must be
presumed that a large number of people will be on the
affected 640 acres at any particular time.
Although 10 C.F.R. § 100.3(b) speaks of the protection
of residents, the need to protect visitors or transients
regularly present is equally as great.“ The ASLAB
acknowledged that “[tlo be sure, were there any accident
at Bailly, it might be necessary to evacuate visitors from
the National Lakeshore as from other surrounding
areas.” (NJPSCO, ALAB-224, supra at 261 n.34), but
dismissed this “remote contingency” by saying that the
National Lakeshore superintendent could “work it out.”
Jd. It appears to us that this problem should be worked
out in advance by AEC and the utility seeking a license,
ue than by what it is anticipated a third party may
0.
Furthermore, the third party, in this case the Depart-
ment of Interior, has not reacted in a very reassuring
manner in regard to this problem. The Master Plan for
the Dunes National Lakeshore (Joint Intervenors’ Ex.
23) Says:
Because the population is expanding and outdoor
recreational opportunities are restricted in the
‘In Southern California Edison Co., the ASLAB said:
To be sure, Part 100 refers expressly only to the need to
protect “residents” within the low population zone. But we
are aware of no basis for concluding that the Commission
intended that term to be given a narrow, literal construc-
tion, which would exclude consideration of the safety of
large numbers of transients regularly present within the
low population zone. The need to protect such visitors is
just as great as the need to protect permanent residents; if
anything, greater steps will need to be taken to protect the
visitors, who are likely to be retire unfamiliar with the
surrounding area and who will not have homes in which
to take shelter. We thus decline to read the word
“residents” as expressing a Commission intention to
protect permanent residents but to ignore the safety of
visitors.
Southern California Edison Co., ALAB-248, supra at 962.
onlidpas
Calumet Region as well as in the National
Lakeshore, the potential number of visitors at peak
times cannot be adequately handled.
And this is in reference to a quiet Sunday afternoon.
What would occur if a large but unknown number of
campers and visitors, unfamiliar with the area and with
no nearby homes in which to take shelter, heard a public
address announcement ‘o evacuate the area due to a
nuclear accident? Their path would be blocked on the
north by Lake Michigan and on the west and south by
NIPSCO's and Bethlehem Steel Corporation's plants and
industrial complex. It strains credulity to expect that
this problem will work itself out and it is ridiculous to
in effect say that it should be left to fortune.
What we have considered in sections A through D
above is concerned with “population density and use
characteristics of the site environs.” 10 C.F.R. §
100. 100b).
V
We are compelled to conclude that since the AEC did
not comply with its own applicable regulations (Part ITI,
supra), which are binding on it,*! and since there are so
many persuasive reasons for requiring it to comply with
Yellin v. United States, 374 U.S. 109 (1963); Service vr.
Dulles, 354 U.S. 363 (1957); United States er rel, Accardi +.
Shaughnessy, 347 U.S. 260 (1954). See also Judge Irving R.
Kaufman, Judicial Review of Agency Action: A Judge's Un-
hurdening, 45 N.Y.U.L. Rev. 201 (1970).
—55—
those regulations in this case (Part IV, supra), the
AKC’s decision of August 29, 1974 is unlawful and is
hereby set aside.
In view of this result and in response to Joint In-
tervenors’ motion for clarification of our October 16 stay
order, which now becomes permanent, we hold that
NIPSCO is required to fill in the existing excavation on
the site as well as to cease any further site dewatering.
“ Judicial review of AEC action pursuant to 42 USC. §
223% b) is in accordance with section 10 of the Administrative
Procedure Act which provides in part:
The reviewing court shall—.. .
(2) hold unlawful and set aside agency action, findings,
and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
ses
(D) without observance of procedure required by
Me cee
5 U.S.C. § 706.
TONE. Circuit Judge, dissenting. Congress committed
to an expert administrative agency, not to the courts, the
responsibility both of protecting public safety and health
and of accommodating energy needs and environmental
interests in the licensing and regulation of commercial
nuclear power plants. At the time of the administrative
proceedings we are reviewing, that agency was the
Atomic Energy Commission.' We of course owe the ex-
pertise of an agency responsible for regulating the use of
nuclear power the same deference we owe the expertise
of other agencies, even though we have the normal
human distrust of such an awesome force as nuclear
reaction and fear that the consequences of a miscalcula-
tion may be catastrophic. Congress no doubt had the
same distrust and fear, but it nevertheless chose the
policy of providing for the development of nuclear power
as a source of energy and relied upon the agency's ex-
pert judgment to protect society's interests. Congress
limited the courts’ role to review of the agency's actions
in accordance with the Administrative Procedure Act. I
think that in this case the court has overstepped the
limits of that role and substituted its judgment for that
of the agency.
The court's decision turns primarily upon the meaning
of the words. “the nearest boundary of a densely pop-
ulated center containing more than about 25,000
residents,’ which appear in the Commission's
regulation dealing with reactor site criteria. (10 C.F.R. §
100.11(a3) (1974).) The court holds that these words
refer to the political boundary of a city and not, as the
agency construed them, “that portion of the population
center at which the dense population starts.” In reject-
ing the argument that the words refer to a political
| The Energy Reorganization Act of 1974 (88% Stat. 1233)
transferred “all the licensing and related regulatory functions
of the Atomic Energy Commission,” including the functions of
the Atomic Safety and Licensing Board Panel and the Atomic
Safety and Licensing Appeal Board, to the newly-created
Nuclear Regulatory Commission. (§§201(f) and (g) of the Act.)
Despite what is said in the introductory portion of Part IV of
the majority opinion, I take it there can be no dispute that the
standards of review are the same for the orders of the old and
the new commissions.
= =
boundary, the Atomic Safety and Licensing Board,
whose order was affirmed by ithe Appeals Bo
that the regulation also provides, ppeals Board, noted
“In applying this guide [that the ulation
distance be at least one and one third times the dis.
tance to the low pronation zone boundary], due
consideration should be given to population dis-
tribution within the population center,”
and concluded that,
“giving due consideration to the low population den-
sity of those areas closer than 4.5 wins te the Bailly
reactor, principally industrial areas of the City of
Portage, the provisions of Part 100 fof the
regulations] with respect to ulation cen is-
tance are satisfied.” an oie
The Atomic Energy Commission's interpretati i
own regulation is entitled to “that no te ree Se ‘s
customarily given to a practical administrative construc-
tion of a disputed provision.” Power Reactor Development
Co. _. Electrical Union, 367 U.S. 396, 408 (1961)
[Since the meaning of the langu is not free from
doubt, we are obligated to regard as controlling a
reasonable, consistently applied administrative inter-
pretation... .” Ehle ) v. United States, 402 U.S. 99, 105
(1971). The only suggestion in the court’s opinion in the
case at bar that the agency has not consistently inter-
preted the disputed regulation is the reference to
Southern California Edison Co. (San Onofre Station)
ALAB-248, RAI-74-12, 957 (Dec. 24, 1974). The Com:
mission's position in that case, however, that city boun-
daries are not controlling when densely populated areas
extend outside those boundaries, is entirely consistent
with its position here. In both cases the location of pop-
ulated areas rather than of political boundaries is
viewed as controlling.
I do not understand why that is not the m
interpretation of the regulation, as well bag he ng
which we owe respect as the agency’s expert interpreta-
tion. Since the purpose of the regulation is to separate
the reactor site from densely populated areas, we would
—te—
expect the draftsmen to be concerned with the location
of those areas rather than political lines. Nowhere in the
regulation is there any reference to a city, village, town,
or other political subdivision. Instead the terms used are
“population center” and “densely populated center” (10
C.F.R. §§ 100.3(¢), 100.1 1(a(3) (1974) ), evidencing an in-
tention to describe de facto concentrations of population
rather than political subdivisions. The term “boundary”
is used with reference to such a concentration or center.
as the agency correctly concluded.
The court's discussion of the evidence concerning pop-
ulation distribution, which is found near the end of Part
Il] of the opinion, appears to be intended to illustrate
the difficulty of finding the boundaries of a de facto pop-
ulation center, rather than an alternative holding that,
even if the boundary referred to is that of such a center.
the agency's finding as to the location of the boundary is
not supportable. Nevertheless, implicit in the court’s dis-
cussion is a rejection of the agency’s findings on this
point, which I think are supported by substantial
evidence, as required by section 10 of the Ad-
ministrative Procedure Act (5 U.S.C. § 706(2)E) ), un-
der which our review is conducted.* It is true that the
map used in the presentation of the evidence on popula-
tion center distances was five or six years old. But there
was ample additional evidence, which we would surely
find sufficient if we were reviewing the judgment of a
distriet court or an order of another agency, that the
land within the two-mile population center distance, and
Petitioners appear not to have preserved for judicial review
the sufficiency of the evidence on this point. They did not
challenge the sufficiency of this evidence in their 78-page
brief before the Appeal Board, though they later attempted to
do so in a supplemental brief, which the Board refused to
allow them to Fle. Cf. United States +. Tucker Truck Lines,
344 U.S. 33, 37 (1952).
—59—
indeed beyond, is not densely populated; that its present
and probable future development is principally in-
dustrial;* and that extensive residential development
would be unlikely anywhere within the two-mile zone
because of the industrial zoning, the industrial uses
already there, and the availability of land elsewhere
which is more desirable for residential use. It was for
the agency and not this court to weigh and appraise that
evidence.
4
It is noteworthy that the parties opposing the agency before
the court, while criticizing the map as too old and too vague,
do not contend that the record shows, or that there are in fact,
densely populated areas within the two-mile zone. The reason
for this is suggested by the 1970 Census, of which we may
take judicial notice. About 95 per cent of the land within the
rig ye Portage that is also within the two-mile radius appears
to be north of the Penn Central (formerly New York Central)
railroad track. As we read the 1970 Census, it shows that the
census taker found no residents in that area. The remaining 5
per cent of the land which is within both Portage and the two-
mile radius represents what appears to be less than 5 per cent
of the land area in the next census block to the south of the
railroad. A total of 81 residents were found in that entire cen-
sus block. See U.S. Bureau of the Census, Census of Housing:
1970 BLOCK STATISTICS Final Report HC(3)}68 Chicago
Ill.—Northwestern Indiana Urbanized Area (1972).
As to the argument that the pink areas on the map have no
probative value, we note testimony in the record that “the
definition of pink tinted areas here by the Geological Survey
is that population density which is too sense [obviously a mis-
rision for ‘dense’] to indicate the houses by themselves,”
ause if individual houses were indicated “there would be
no opportunity to indicate the other significant landmarks.”
This testimony is consistent with U.S. Dep't of Interior,
Geological Survey, Topographic Map Information and Sym-
buls (1972), which explains that “red tint” is used to represent
urban areas, in which only landmark buildings are shown.
The nearest periphery of the nearest pink area was ap-
proximately four and one-half miles away from the proposed
reactor site.
‘ The evidence shows that the bulk of the land within the
two-mile radius and not within the National Lakeshore is
zoned for industrial use and, to the extent it is developed, is
devoted primarily to industrial uses, and that all of the smal!
part of Portage within the two-mile radius is in the industrial
category, which explains why few, if any, persons live in that
area. See note 3, supra.
—6o—
Other grounds put forward in Part III of the court's
opinion seem to me to be unpersuasive. The outer border
of the census enumeration district, which no one con-
tends is the boundary referred to in the regulation and
which, within the two-mile radius, coincides with the
city limits of Portage, has no relevance to population
density; census enumeration districts often include large
tracts where no one at all lives, as is the case here.° The
regulation cannot reasonably be interpreted to mean
that other small residential communities near the
proposed site are to be deemed within the densely pop-
ulated center even though they are separated from it by
substantial distances.
The subjects discussed in Part IV of the opinion are
not set forth as grounds for the court’s decision, and |
shall not, therefore, lengthen this dissent by discussing
them in detail. It is enough to say that the location of
this plant in relation to others in the area is a matter
peculiarly within the province of the Commission; that
we are in no position to judge whether the agency's
rulings on other license applications on entirely different
records of which we have little knowledge are consistent
According to the 1970 Census there were no residents in
the area about two and one-half miles long and over one mile
wide running generally west from the proposed site along the
shore of the lake to Burns Waterway. That area, which in-
cludes all but about 5 per cent of the part of Portage that is
within the two-mile radius (see note 3, supra), is the part of
Census Enumeration District 719 (to which the majority
refers) nearest to the site.
Census enumeration districts are “smal! population areas
averaging about 250 housing units and are defined by the
Census Bureau” for use in “the collection and tabulation of
population and census data.” U.S. Bureau of the Census. 1970
Census Users’ Guide pt. I, 87-88 (1970). Criteria used in deter-
mining enumeration districts are “(1) the estimated popula-
tion size of the ED should constitute an adequate enumerator
workload; and (2) the enumeration district must fall within
the boundaries of certain areas for which the results are to be
tabulated, i.e., tracts, cities, minor civil divisions, ete.” Jd. at
8. These districts are “administrative areas” and represent “a
work assignment for a single enumerator.” They “may range
in size from a city block to several hundred square miles, but
usually encompass from 750 to 1,500 persons.” Jd. at 22.
—6]—
with its ruling here; that the agency carefully con-
sidered the environmental impact on the National
Lakeshore and its findings on that subject find ample
support in the evidence; that Congress did not give the
Assistant Secretary of the Interior a veto power over the
Commission's decision of issues entrusted to it by Con-
gress for decision; and that we cannot reverse the Com-
mission for applying its regulations instead of proposals
and views put forward by some of its staff but not
adopted by the Commission. In this part of the opinion,
as in Part III, the court has invaded the function of the
Commission.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
—62—
(Caption omitted in printing)
May 28, 1975
Order Upon Denial of Petitions for Rehearing
On consideration of the petitions for rehearing filed in
the above-entitled cause, a majority of the panel voted to
deny the petitions. However, in the government’s petition
for rehearing, the government questioned whether this
court ‘‘intends to enjoin NIPSCO from building a nuclear
plant at the Bailly site forever’? and argued that the
Nuclear Regulatory Commission should have an opportu-
nity to take ‘‘a fresh look at the question’’ and to deter-
mine whether the low population zone ‘‘could be cut down
enough, and whether that would require additional safety
features for the plant.’’
The opinion and judgment in this case merely set aside
the Atomic Energy Commission’s decision of August 29,
1974 affirming the issuance of a construction permit. We
find nothing in the Atomic Energy Act of 1954 or the
Energy Reorganization Act of 1974 which would prevent
NIPSCO from applying for another license or would pre-
vent NRC from considering such new application.
This court’s reference at the close of the opinion to
making the stay permanent and te filling in the existing
excavation pertains solely to action in reliance upon the
license set aside by the court’s judgment.
Ir Is Heresy Orperep that the petitions for rehearing
be, and the same are hereby, Dentep.
—63—
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
(Caption Omitted in Printing)
October 16, 1974
These matters comes before the Court on Petitioners’
“Motion For Stay Pending Judicial Review”, filed by coun-
sel for Petitioners herein on September 18, 1974; Petition-
ers’ “Brief In Support Of Motion For Stay Pending Judi-
ciai Review”, filed herein by counsel for Petitioners on Sep-
tember i9, 1974; Respondent-Intervenor Northern Indiana
Public Service Co.’s “Preliminary Response To Petitioners’
Motion For Stay Pending Full Judicial Review”, filed here-
in by counsel for Petitioner-Intervenor on September 25,
1974; Petitioner-Intervenor State of TIlinois’s “Motion For
Stay Pending Full Judicial Review”, filed herein by counsel
for Petitioner-Intervenor on September 25, 1974; the Re-
spondent-Government’s “Motion for Leave To Reopen Ad-
ministrative Proceedings For Further Hearings, And Sug-
gestion That Petitioners’ Motion For Stay May Be Pre-
mature”, filed herein by counsel for the Respondents on Oc-
tober 4, 1974; Petitioners’ “Response To Government’s Mo-
tion For Leave To Reopen Administrative Proceedings And
Supplement To Motion For Stay”, filed herein by Petition-
er’s counsel on October 7, 1974; Petitioner-Intervenor’s
“Emergency Response To Motion To Reopen Administra-
tive Proceedings For Further Hearings”, filed herein by
counsel for Petitioner-Intervenor on October 8, 1974; Re-
spondent-Intervencr’s “Brief In Opposition To Petition-
er’s Motion For Stay Pending Judicial Review”, filed here-
in by counsel for Respondent-Intervenor on October 9, 1974;
Respondents’ “Joint Memorandum In Opposition To Motion
For Stay”, filed herein on October 9, 1974 by counsel for
the Respondents; Respondent-Intervenor’s “Reply To Peti-
tioners’ Response To Motion For Leave To Reopen Admin-
istrative Proceedings And Supplement To Motion For
Stay”, filed herein by counsel for Respondent-Intervenor on
October 10, 1974; and Respondent-Government’s “Opposi-
nn
—64— — =
tion To Revised Motions For Stay And Other Relief”, filed UNITED STATES OF AMERICA
herein by counsel for Respondent on October 11, 1974. In ATOMIC ENERGY COMMISSION
consideration whereof, Berore THE Atomic Sarety anp Licensina Boarp
It Is Ordered that the decision of the Atomic Energy JEROME GARFINKEL, Chairman
Commission of August 29, 1974, permitting Northern Indi-
ana Public Service Company to engage in site dewatering
at the Bailly site in Northern Indiana by the pumping out
Watter H. Jorpan, Member
Harry Foreman, Member
of ground water is hereby Stayed pending review of that In the Matter of:
decision by this Court. NorTHeRN Inprana Pvusuic Service Company
It Is Further Ordered that the Atomic Energy Commis- (Bailly Generating Station, Nuclear-1)
sion be permitted to reopen its Administrative Proceedings Docket No. 50-367
for further hearings concerning the environmental impact ;
of the building of a slurry wall by the Northern Indiana Construction Permit April 5, 1974
Publie Services Company at the Bailly site.
It Is Further Ordered that any action by the Atomic
Energy Commission permitting Northern Indiana Public
Appearances
William H. Eichhorn, Esq.
Service Company to construct a slurry wall at the Bailly Schroer, Eichhorn & Morrow
site is also hereby Stayed pending further order of this 5243 Hohman Avenue
Court after the Atomic Energy Commission has rendered Hammond, Indiana 46320
a final decision in the proceedings, permitted to be reop-
ened by this Order, concerning the environmental impact Maurice Axelrad, Esq.
of the slurry wall. Newman, Reis & Axelrad
It Is Further Ordered that oral argument in this cause 1025 Connecticut Avenue, N.W.
be set for December 11, 1974; that the Petitioners and Peti- Washington, D.C. 20036
tioner-Intervenor serve their briefs upon the court and op-
posing counsel on or before November 6, 1974; that the Re- on behalf of
spondents and Respondent-Intervenor serve their briefs Northern Indiana Public Service Company
upon this Court and opposing counsel on or before Novem- : :
ber 27, 1974; and that the Petitioners and Petitioner-Inter- Edward W. Osann, Jr., Esq.
venor serve their reply briefs, if any, upon this Court and One North LaSalle Street
opposing counsel on or before December 3, 1974. Chicago, Illinois 60602
on behalf of the
Joint Intervenors
William D. Paton, Esgq.,
Stuart A. Treby, Esq., on behalf of the
Regulatory Staff of the
Atomic Energy Commission
—66—
Initial Decision
I. Backcrounpb
A. Procedure
In this proceeding Northern Indiana Public Service
Company (Applicant) ' is seeking a permit to construct a
boiling water nuclear power reactor designed to operate
initially at 1931 megawatts thermal, with a gross electri-
cal output of 685 megawatts electrical (Appl. Ex.’ 1A:
Safety Evaluation Report, following Tr. 741, p. 1; Notice
of Hearing of the Atomic Energy Commission (Commis-
sion), 36 F.R. 25175). The proposed facility will be lo-
eated on Applicant’s site on the southern shore of Lake
Michigan, Westchester Township, Porter County, Indiana
(Appl. Ex.’ 1A; S.E.R., following Tr. 741, p. 1).
2. The Notice of Hearing on the application for a
construction permit was issued by the Commission on (pub-
lished on December 29, 1971, 36 F.R. 25175). Parties
wishing to intervene were required to file petitions not
later than thirty (30) days from the date of publication
of the Notice of Hearing in the Federal Register. In
accordance with this mandate a number of petitions to
intervene were filed. Ultimately, Porter County Chapter
of Izaak Walton League of America, Inc., Concerned Citi-
zens Against the Bailly Nuclear Site; Businessmen for
‘ Also referred to as NIPSCO.
? Appl. =Applicant.
Other abbreviations used in this decision:
Ex.=Exhibit p.=page
Tr.=Transcript pp.—=pages
S.E.R.=Regulatory Staff's Safety Evaluation Report
F.E.S.=Final Environmental Statement of the Regulatory Staff
PSAR=Preliminary Safety Analysis Report
E.R.=Environmental Report of the Applicant
J.1= Joint Intervenors Reg.=Regulatory
* Application for Construction Permit.
—1—
the Public Interest, Inc., James E. Newman, Edward W.
Osann, Jr., Mildred Warner, and George Hanks, in their
individual capacity, and Bethlehem Steel Corporation,
were admitted as parties. The Porter County Chapter of
the Izaak Walton League of America, Inc., Concerned
Citizens Against the Bailly Nuclear Site, Businessmen for
the Public Interest, Inc., and James E. Newman, Edward
W. Osann, Jr., Mildred Warner, and George Hanks were
admitted as Joint Intervenors, with their participation
being conditioned to specific contentions and their repre-
sentation through a single counsel (Edward W. Osann,
Jr.). The Joint Intervenors filed a substantial number
of contentions, of which approximately forty-five were
admitted by the Atomic Safety and Licensing Board
(Board).‘ These contentions are either directly or infer-
entially considered by the Board in its findings herein.
3. Bethlehem Steel Corporation was admitted as a
party intervenor in this proceeding limited to the issue
of emergency evacuation plans (Order Permitting Inter-
vention, May 15, 1972). This intervenor did not actively
participate in the evidentiary hearing stage of the pro-
ceeding.
4. The Board denied a motion filed by the Joint Inter-
venors to add Elmer Dee Anderson, II, as a Joint Inter-
venor (Tr. 4944-4966).
5. The Notice of Hearing also advised the public that
limited appearances would be permitted at the time of
hearing. A substantial number of individuals made oral
appearances, and a number filed written statements (see
October 10 and 11, 1972 Transcripts).
6. An Atomic Safety and Licensing Board was estab-
lished on January 12, 1972, in accordance with the Atomic
*See: Order Permitting Intervention, May 15, 1972; Environ-
mental Prehearing Conference Order of the Atomic Safety and
Licensing Board, November 15, 1972; and Prehearing Conference
Order, March 21, 1973
—68—
Energy Act, as amended, and the Commission’s regula-
tions. Because of other commitments, certain members of
the Board were unable to continue to serve subsequent
to the first prehearing conference. Consequently, a ‘‘No-
tice of Reconstitution of Board’’ was issued on June 20,
1972, establishing the instant Board which presided over
the entire evidentiary hearing in this proceeding.
7. The evidentiary hearing in this proceeding com-
menced on October 10, 1972, and this initial session lasted
four days. At this initial session, counsel for the Joint
Intervenors announced that his clients would not partici-
pate in this session because they felt the rules of the
Commission and the procedural rulings of the Board de-
nied them a full and fair hearing on nuclear safety (Tr.
485). The Board urged that, since matters involving in-
formation disclosed by the Regulatory Staff under Joint
Intervenors’ Freedom of Information Act request could
be raised subsequently, Joint Intervenors should partici-
pate in the hearings as scheduled (Tr. 491-495). The
Joint Intervenors nevertheless left the hearing and did
not further participate in the October 1972 evidentiary
hearing (Tr. 510). Although the Board had authority
under the Commission’s Rules of Practice to declare the
Joint Intervenors in default and dismiss their petition
of Intervention,’ notwithstanding their action, the Board
declined to take such extreme measures and concluded the
ends of justice would be better served by permitting their
subsequent participation in this proceeding. However, it
was determined the ‘‘walkout’’ should not go unpenalized.
The Board decreed that the Joint Intervenors would be
barred from cross-examining at a subsequent date any
witness called by either the Applicant or the Regulatory
Staff during the October 10-13 session with respect to
Joint Intervenors’ contentions 16, 17, 19 and 21.
°10 CFR § 2.707.
—69—
The evidentiary hearings were reconvened on April 30,
1973, and were concluded on November 14, 1973, after 65
days of testimony. Proposed Findings were filed by the
Applicant, Regulatory Staff, and Joint Intervenors. Oral
Argument on proposed findings were held on February
19, 1974.
B. Issues To Be Decided In This Proceeding
8. In its Notice of Hearing, the Commission directed
that the Board make specific findings concerning Appli-
eant’s compliance with the provisions of 10 CFR 4 50.35
(a), in considering whether a construction permit should
be granted for the Bailly Generating Station, Nuclear-1.
In addition, the Board is also required to make findings
with respect to the following health and safety matters:
a. whether the Applicant is financially qualified
to design and construct the proposed facility;
b. whether the Applicant is technically qualified
to design and construct the proposed facility; and
c. whether the issuance of a permit for construc-
tion of the facility will be inimical to the common de-
fense and security or to the health and safety of the
public.
9. In addition to considering health and safety issues,
the Notice required that the Board make determinations
pertaining to compliance with Appendix D of 10 CFR
Part 50, but more specifically the Board was directed to:
a. determine whether the requirements of Section
102(2)(C) and (D) of the National Environmental
Policy Act have been complied with;
b. independently consider the final balance among
conflicting factors to determine the appropriate ac-
tion to be taken; and
—70—
ce. determine whether the construction permit
should be granted, denied or appropriately conditioned
to protect environmental values.
10. Also, the issues raised by the contentions will be
discussed within the framework of the Commission’s in
structions to the Board.
C. Status Of Proposed Findings Of The Parties
11. All proposed findings submitted by the parties
which are not incorporated directly or inferentially in
this Initial Decision are herewith rejected as being insup-
portable in law or fact, or as being unnecessary to the
rendering of this Initial Decision.
IT. Finpincs on tue Heartn axnp Sarety Matters
A. General Description Of Site And Plant
12. Site—The site of the Bailly Generating Station
is an L-shaped 350-acre tract of land in Porter County,
Indiana on the shore of Lake Michigan. Because much of
the tract is a long access corridor (leg of the L), the ex-
clusion area encloses about 107 acres. Two coal-fired pow-
er plants and one gas turbine peaking plant are located
within the exclusion area. The site is bounded on the north
by Lake Michigan, on the east by the village of Dune
Acres and the Indiana Dunes National Lakeshore and on
the south and west by Bethlehem Steel Corporation Burns
Harbor Plant (S.E.R., following Tr. 741, pp. 1-3; Vol. 1
PSAR 2.2-1).°
13. The resident population is very small, out to two
miles from the plant due to the heavy industrialization
of the area. The area south and west of the site is mainly
agricultural at distances greater than five miles (S.E.R.,
p. 3; PSAR, Vol. 1, pp. 2.2-1, -2).
* Appl. Ex. 1B.
-_ =
14. For assessment of the site in accordance with the
Commission’s site Criteria in 10 CFR Part 100, the Ap-
plicant and Staff used a minimum exclusion distance of
188 meters to the west of the reactor building and a low
population zone radius of 1.5 miles (2400 meters). The
exclusion area boundary defined by the Applicant does
not extend to the shoreline of Lake Michigan. The low
population zone encompasses a portion of the Indiana
National Lakeshore and Bethlehem Steel Company’s Burns
Harbor Plant (S.E.R., p. 4; PSAR, Vol. 1, p. 2-2-35).
There are no schools, hospitals or institutions within the
low population zone.
15. Plant Description—The nuclear steam supply sys-
tem is a General Electric Company (GE) boiling water
reactor (BWR) which generates steam for direct use in
the steam turbine-generator (S.E.R., p. 16; PSAR, Vol. 1,
pp. 1.5-1, -2).
16. The reactor is located in the containment structure.
The containment systems include the primary containment
using the pressure suppression concept and the secondary
confinement which includes the reactor building, its re-
circulating (atmospheric ventilation) system, and the stand-
_ by gas treatment system (SGTS). The drywell is a steel-
lined, prestressed concrete vessel in the shape of a frus-
trum of a cone. The vapor suppression chamber is a steel-
lined, prestressed concrete right circular cylinder located
directly beneath the drywell. The drywell and wetwell are
separated by a reinforced concrete floor penetrated by
60 vent pipes. A low-leakage reactor building surrounds
the primary containment to serve as a secondary con-
tainment (S.E.R., p. 50; PSAR, Sees. 3, 4 and 5.2).’
17. Except for its nuclear steam supply system, the
Station will operate on the same principle as fossil-fueled
power plants, that is, by converting thermal energy to
’ Appl. Ex. 1B, 1C.
—72—
electrical energy via a Rankine steam evcle. The steam gen-
erated in the reactor passes directly to the turbine-gene-
rator. Steam leaves the reactor vessel at approximately
1020 psia and enters the turbine at about 965 psia. The
turbine-generator is a tandem compound unit having a
4-flow exhaust end. Spent steam, after passing through
the turbine, is condensed to water and, after deminerali-
zation, the water is recycled to the reactor core. The Sta-
tion utilizes a hyperbolic natural-draft cooling tower for
dissipating the heat rejected from the Station’s steam
cycle. All the heat from the turbine exhaust condensers
is dissipated to the atmosphere through this cooling tower
(F.E.S., p. I11-4).* The makeup for cooling tower evapora-
tion, drift, and blowdown is obtained from Lake Michigan
through the service water pumping system. The service
water system for the Station has three intake pumps to
be located in a new pump house that will be constructed.
The water for these pumps is withdrawn from the exist-
ing intake crib for Units 7 and 8 by tapping into the two
42-inch diameter lines. The intake well for Units 7 and 8
is located in the lake about 1500 feet from Shoreline north
of the crib house (F.E.S., p. III-6).
B. Radiological Issues Concerning Siting
18. During the course of the hearing, a number of
issues were raised concerning the location of Bailly. From
the standpoint of radiological considerations, Intervenors
challenged: the adequacy of the exclusion distance, on
the grounds that the Bailly facility was novel in design
and the accuracy of selection of the population center
distance (Contentions 45, 46 and 47); the ability to take
protective action for persons in that portion of the Nation-
al Lakeshore which was encompassed by a portion of the
LPZ (Contention 19); the adequacy of geological data on
which seismic designs were based (Contention 56); and
* Reg. Staff’s Ex. 5.
;
:
:
3
>
°
y.
¥
|
- =
the adequacy of design in accounting for tornadic forces
(Contention 57). Other radiological contentions concerning
the design of specific systems also involve certain physical
characteristics of the site, including hydrological charac-
teristics considered in connection with the contention re-
lating to contamination of water supplies (Contention 55).
19. The principal thrust of these contentions related
primarily to Joint Intervenors’ assertions that the Bailly
reactor is ‘‘novel and unproven.’’ If so, they contend that
the site criteria in Part 100 should be applied on the basis
of TID 14844 guidelines without giving any consideration
to the effect of engineered safeguards systems in assessing
site suitability. In the absence of consideration of the
effect of engineered safeguards systems, the Joint Interve-
nors assert that Part 100 would require either that Bailly
N-1 Station have an exclusion distance of 4,650 feet, a
low population zone radius of 16.8 miles, and a popula-
tion center distance of thirty (30) miles or, conversely,
that the power level of a facility to be located at the
Bailly site be restricted to 33 MWt.
20. In assessing whether the site complied with the
criteria set forth in Part 100, the Applicant and the Regu-
latory Staff utilized the methods described in Safety Guide
3 which takes into consideration the effect of various
engineered safety features in reducing releases in the event
of accidents assumed for purposes of Part 100 computa-
tions. Both the Regulatory Staff and the Applicant con-
cluded that the calculated doses at the boundary of the
188 meter exclusion area and the 1.5 mile LPZ would
comply with the criteria of Part 100, although the Staff’s
estimates were more conservative than those of the Ap-
plicant (S.E.R., Sections 2.1 and 10.1-10.7; PSAR, Vol.
1, Sec. 14).’
* Appl. Ex. 1E.
alin
21. After a careful analysis of the record in this pro-
ceeding, we cannot accept the assessments made by the
Joint Intervenors that the proposed Bailly Generating
Station is novel and unproven. The Bailly design is fune-
tionally the same as other BWR facilities, both larger ani
smaller than Bailly which are in operation and under con-
struction (Butler, following Tr. 5278; Tr. 5280-82; Davis,
following Tr. 1807; S.E.R., pp. 17-21). Moreover, the basic
design characteristics for BWR’s have been demonstrated
and proved out over many years of operation of a number
of progressively larger facilities, since the development
work at the Vallecitos Boiling Water Reactors as the pro-
totype for the first commercial BWR power facilitiy at
Dresden Unit 1 (Davis, following Tr. 1807), and have been
successfully proven in the operation of much larger BWR
units such as Quad Cities, Millstone, Oyster Creek, Dres-
den and Monticello (Butler, following Tr. 5278). Differ-
ences between Bailly and these other facilities relate prin-
cipally to difference in physical details such as size and
configuration and in the use of improved engineered safe-
ty systems in the Bailly design (Tr. 5279-5286). The de-
sign variables have been conservatively estimated to assure
that the design will provide adequate safety protection
(Tr. 5294-5299, 5309-5329).
We do not find significant Joint Intervenors’ reliance
on the stipulated fact that the emergency core cooling
system (ECCS) of the proposed Bailly facility has never
been experimentally tested under full scale LOCA condi-
tions. All that is necessary is that the Bailly ECCS meet
the Commission’s Interim Acceptance Criteria. Consumers
Power Company (Midland Units 1 and 2), ALAB-123,
RAI-73-5 331, at 341-2 (May 18, 1973). The evidentiary
record reveals that the Bailly ECCS fully complies with
the Interim Acceptance Criteria (S.E.R., p. 79 et seq.;
Butler and Minners, following Tr. 5278, pp. 1-5; Tr. 5306-
5308, 5321-5327).
=~ =
The record fully supports a finding that the proposed
Bailly reactor design is not unproven as a prototype, nor
is it novel in design and, accordingly, appropriate credit
must be given to its engineered safeguards in determining
compliance with 10 CFR Part 100.
22. During the proceeding, the Joint Intervenors have
asserted that the construction permit cannot issue unless
the complete designs for the various systems and compo-
nents have been prepared and submitted. The Appeal
Board decision in the Consumers Power Company pro-
ceeding, ALAB-123, RAI-73-5 331 at p. 355 (May 18, 1973),
deals with this issue and rules otherwise. See Power Re-
actor Development Co. v. International Union of Electri-
cal Radio and Machine Workers, AFL-CIO, et al., 367
U.S. 396, 6L ed 2d 924(1961), where the Supreme Court
held that Section 50.35 of the Commission’s Regulations
permits the Commission to defer a definite safety finding
until operation is actually licensed, and clearly suggests
that the final design can be left to that stage of the licens-
ing process (at pp. 400-408).
23. Intervenors offered into evidence ‘‘the ACRS
generic letter’’ of December 19, i972 (J.1. Ex. 27-A through
27-G) as ‘‘listing outstanding and unresolved concerns on
the part of the ACRS’’ with respect to the matters de-
scribed in the letter as unresolved. Intervenors asserted
that such items should be resolved before issuance of a
construction permit for Bailly. The Commission’s response,
dated February 5, 1973 to the ACRS, manifested the
Commission’s intent of continuing research in order to
solve those items described as unresolved on a generic
basis and to assure that such items were, in the meantime,
resolved on a case by case basis (Tr. 7745). The Regula-
tory Staff’s witness Dr. Butler, who was called with
respect to this contention as Intervenors’ witness, testified
that applicable items on the ACRS unresolved list have
been specifically considered in the review of the Bailly
= =
reactor by the Regulatory Staff and the ACRS. All such
items have been satisfactorily resolved with respect to
the Bailly reactor (Tr. 7741).
ACRS communications relating to generic matters have
been carefully considered by the Appeal Board in a num-
ber of proceedings. These cases conclude that specific
items which are the subject of ACRS scrutiny on a generic
basis may be satisfactorily dealt with in a particular pro-
ceeding. In Long Island Lighting Company (Shoreham Nu-
clear Power Station), ALAB-156 RAI-73-10 844 at 935,
the Appeal Board stated:
‘*. . . The lack of resolution of certain items on a
generic basis .. . does not mean that the item has not
been satisfactorily dealt with in connection with a par-
ticular reactor.’’ *°
The record is undisputed that the Applicant and the
Regulatory Staff have satisfied the questions raised by
the ACRS in its December 18, 1972 letter.
2+. Intervenors contended, and presented considera-
ble testimony in support thereof, that the Applicant and
Staff had relied on out-of-date maps in determining popu-
lation center distances. The Board was particularly con-
cerned with intervenors claim that the Applicant had erred
in choosing Gary as the nearest population center, that
indeed Portage would be the proper choice and that the
nearest boundary was 1.1 miles from the reactor site (H.
Read following Tr. 7391). Board questions directed to the
Applicant and Staff revealed that the Applicant in the
PSAR and the Staff in its S.E.R. considered the popula-
tion center distance for purposes of determining compli-
ance with 10 CFR 100 to be the distance to the city of
Gary which was stated to be 5.5 miles from the site (Tr.
6375).
*° See also Wisconsin Electric Power Company (Point Beach 2),
ALAB-137, RAI-73-7 at 507-8.
—77—
Upon questioning concerning the City of Portage, the
Staff acknowledged the expected population of Portage by
1980 would exceed 25,000, but for reasons given in the next
paragraph, the Staff stated the correct population center
distance of Portage was 4.5 miles (Tr. 6375). This dis-
tance was acceptable since the population center distance
exceeded two miles, which is the minimum distance to the
boundary of a population center required by 10 CFR Part
100.11(a)(3), for an LPZ of 1.5 miles.
25. The Regulatory Staff indicated that the distance
it considered was the distance to the nearest heavily popu-
lated portion of the population center, not the distance to
the political boundary which was used by Intervenors. To
initially determine the heavily populated portion of the
population center, the Staff used official U. S. Geological
Survey (USGS) maps (Reg. Staff’s Ex. 7) on which
densely populated areas are depicted in pink. These maps
show individual dwellings (Tr. 6376). Applicant’s evidence
based on population centroids of census enumeration dis-
tricts substantiates the position that the pink areas on the
USGS maps generally define the boundaries of dense pop-
ulation within the City of Portage (Brown, following Tr.
10451; Appl. Ex. 31). The evidence also demonstrates that
dense population growth is unlikely within two miles of
the site (Tr. 6387-89; Appl. Ex. 32; Tr. 10685-99; Snyder,
following Tr. 10482).
25. Although there is some argument as to whether the
political boundary should be used in determining the pop-
ulation center distance rather than the distance to that
portion of the population center at which the dense popu-
lation starts, the Board notes that 10 CFR Part 100.11(a)
(3) specifically provides that ‘‘In applying this guide [that
the population center distance be at least one and one
third times the distance to the LPZ boundary], due con-
sideration should be given to population distribution with-
in the population center.’’ The Board concludes that giving
=- =
due consideration to the low population density of those
areas closer than 4.5 miles to the Bailly reactor, princi-
pally industrial areas of the City of Portage, the provi-
sions of Part 100 with respect to population center distance
are satisfied.
26. The Board concludes that the Bailly facility is not
‘‘novel in design and or unproven as a prototype,’’ tha!
there is adequate evidence of compliance with the Interim
Acceptance Criteria and an adequate description of the
principal criteria and design bases of the various safety
systems and components. The Board also finds that the
Bailly site was properly evaluated using appropriate safe-
ty guides and satisfies the requirements of 10 CFR Part
100.
C. Additional Technical Design Information
To Be Supplied
97. The evidence indicates that further technical or
design information will be required from the Applicant
prior to operation of the Bailly nuclear unit. Information
and data that will be required to be provided in the final
safety analysis report, and which can be left for such later
consideration, include:
a. pipe whip restraints or high energy fluid lines
(Branch, p. R-58-1, following Tr. 2416; Tr. 1482-84,
1490-1492, 1500-02, 2418-19; S.E.R., pp. 38-39; Burch,
following Tr. 2416; Appl. Ex. 1C)
b. anticipated transients without seram (Appl.
Ex. 1L; Tr. 2014, 10215; Reg. Staff’s Ex. 11, pp. 7,
74; S.E.R., pp. 134-135);
e. post-LOCA hydrogen control (Appl. Ex. 1C,
pp. 5.2-16.4, 5.2.3.9-4 (behind the red tab); Wattelet
and Davis, following Tr. 557, pp. 2-5 and 2-6, S.E.R.,
pp. 85-86; Tr. 770, 771-772) ;
—79—
; d. fuel densification (Appl. Ex. 27, pp. 4-5; Tr.
2536-37 ; Safety Evaluation Supplement No. 2, follow-
ing Tr. 9826) ;
e. REVAB system (Rockwell, following Tr. 10636,
p. 8; Tr. 1634-35, 1676-77, 1688-97, 10680-84; Appl. Ex.
IF, p. B.6-4; S.E.R., pp. 37-38, 95, 133);
f. main steam line isolation valve sealing system
Benaroya, following Tr. 1568, p. 2; Tr. 1600-06, 2435,
7772-74: S.E.R., pp. 42-42);
g. rod sequence control system (S.E.R., pp. 116-
120; Tr. 2536-39) ;
h. recireulation and flow control valves (S.E.R.,
Sections 14.4 and 14.6); and
i. ECCS (S.E.R., Section 6.1).
D. Research And Development Required
28. The record does not disclose any evidence suggest-
ing that a research and development program, in the lab-
oratory sense, is required to resolve safety issues in this
proceeding. As previously discussed in paragraph 27,
above, technical design data will be required to be sup-
plied at the time of the application for an operating li-
* cense.
E. Applicant's Financial Qualifications To
Design And Construct The Proposed Facility
. 29. Northern Indiana Public Service Company, an In-
diana corporation, is a public utility company engaged in
supplying electrical energy and natural gas to the public
in the State of Indiana (Petersen, Tr. following p. 546, pp.
1-2). The company operates in 30 counties in the northern
part of Indiana, serving an area of about 12,000 square
miles, with an estimated population of 2,080,000.
—sgo—
In the five-year period ended December 31, 1971, the
company experienced a growth in the annual gross electric
reveues of approximately 29%, and an increase of 28%
in the kilowatt hour sales during the same five-year period.
Electric revenues for the year 1971 totaled $132,135,833
(Petersen, pp. 1-2 and 1-3). Moody's Investor Service and
Standard and Poor’s have both assigned a AA rating to
the NIPSCO’s first mortgage, and Standard and Poor’s
have rated the Applicant’s preferred stock AA (Petersen,
Tr. following 546, pp. 1-7 and 1-8).
The weight of the evidence strongly supports a finding
that the Applicant is financially qualified to design and
construct the proposed Bailly facility. The Joint Inter-
venors failed to offer any substantial, probative evidence
to the contrary.
F. Applicant’s Technical Qualifications
30. The Applicant has had considerable experience in
the design construction and operation of numerous fossil-
fired power plants. Its principa. contractors, General Elec-
tric Company and Sargent and Lundy, have extensive ex-
perience in the design and construction of nuclear power
facilities (S.E.R., following Tr. 741, p. 126). The Applicant
has taken steps to assure that individuals with relevant
prior experience are assigned by such contractors to the
Bailly nuclear project (Lyle, following Tr. 582). The pro-
posed organization of NIPSCO’s staff is modeled on the
organization of project groups which have successfully
managed the design and construction of nuclear power
plants (Coe, following Tr. 584). The Regulatory Staff has
concluded that the Applicant is technically qualified to
design and construct the Bailly facility (S.E.R., pp. 126,
138).
31. The Joint Intervenors allege in Contention 21 that
the Applicant has had no experience in the nuclear field
and therefore the Commission cannot properly issue a
construction permit because NIPSCO is without the pre-
requisite experience. The Joint Intervenors did not direct
the Board to any legal precedent in support of their con-
tention.
Our independent search reveals a number of cases sug-
gesting that prior nuclear experience is not required. Al-
though these decisions do not have the finality of either a
Commission or Appeal Board decision, nevertheless, we
find them persuasive. In the Matter of Northern States
Power Company, Docket No. 50-130, Intermediate Deei-
sion, 1 AEC Rep. 314 at 323 (April 21, 1960); In the Mat-
ter of Niagara Mohawk Power Corporation. Docket No. 50-
220, Initial Decision, 3 AEC Rep. 5 at 14.
The approach suggested by the Joint Intervenors would
bar substantially all public utilities from utilizing nuclear
power, since this field is relatively new with few organiza-
tions knowledgeable in the intracies 6f nuclear power. We
perceive no reason why experienced electrical utility oper-
ators should not be permitted to take advantage of such
expertise in developing another source for production of
electrical energy, provided that the Applicant develops a
schedule of training for its own employees to enable the
Applicant to properly operate a nuclear plant.
32. Accordingly, we reject the Joint Intervenors’ Con-
tention 21. We find that NIPSCO is technically qualified
to design, construct and operate a nuclear power plant.
G. Common Defense And Security
33. We conclude that permiting NIPSCO to construet
the proposed Bailly nuclear facility will not be inimical
to the common defense and security of the nation.
All of Applicant’s directors and principal officers are
citizens and residents of the United States (Petersen, fol-
lowing Tr. 546, pp. 1-2; Appl. Ex. 1A, p. 2). All activities
of the Bailly facility will be conducted within the jurisdic-
tion of the United States. No diversion of special nuclear
material for military purposes is involved (S.E.R., p. 135).
Applicant is not owned, controlled, or dominated by an
alien, a foreign corporation, or a foreign government.
H. Health And Safety Of The Public
Since Joint Intervenors’ health and safety contentions
are extensive and pervade the entire ambit of issues deal-
ing with the health and safety of the public, we believe
that our resolution of these contentions will be determin-
ative of whether or not construction of the plant will be
detrimental to the well-being of the public. Therefore, we
will now serutinize the matters raised by these contentions
as we deem appropriate.
1. Emergency Plans
34. The Applicant has presented in Section 13.10 of
the PSAR, as amended by Amendment 16 (Appl. Ex. 1E)
a description of the emergency plans for use in the event
of an accident involving the release of radioactive mate-
rial to the environment. Joint Intervenors allege in Con-
tention 19 that the emergency plan has not been sufficiently
developed. Bethlehem also expressed concern regarding
the Applicant’s emergency plan insofar as it affected the
Burns Harbor Plant of Bethlehem Steel. While Bethlehem
was admitted as a party with regard to this concern (Order
Permitting Intervention dated May 15, 1972), Bethlehem
indicated on the record that it would prefer to work out
the details of an emergency plan with NIPSCO separately
from this proceeding if possible (Tr. 692). Nonetheless,
the Safety Evaluation Report carefully assesses the emer-
geney planning considerations for the Bethlehem facility.
35. Plans for the evacuation of the Bethlehem employees
from the LPZ have been developed which would reduce
the number of employees within the LPZ from a daylight
maximum of 3,000 to 1,500 within two hours. Within the
—
—s3—
next six hours, the work force would be reduced to an
estimated 259. Twelve hours after the evacuation notice
has been given, there will be approximately 168 Bethlehem
employees within the LPZ, who comprise the emergency
work force. Detailed procedures for the protection of these
employees will be available when the FSAR is submitted
(Dunn, following Tr. 640, p. 4-8; Appl. Ex. 1E, § 13.10.10).
The dose calculation for these emplovees are well within
the levels set forth in the Commission’s guidelines for
siting of facilities in 10 CFR Part 100 (S.E.R., Supp-1, p.
4).
In addition, the exclusion area has been restricted to
an area totally within the boundaries of the Applicant’s
property at the site and is, therefore, under the control of
the Applicant (Appl. Ex. 1B, p. 2.2-25). The LPZ contains
no schools or hospitals (Appl. Ex. 1B, p. 2.2-35). Arrange-
ments have been made with Federal and State govern-
mental agencies having emergency responsibilities (Dunn,
following Tr. 640, p. 4-2). Local hospitals have been con-
tacted and have expressed their intent to cooperate in the
development of offsite medical treatment of injured per-
sonnel (Dunn, following Tr. 640, p. 4-2; Tr. 652-53, 863-
64). As to the National Lakeshore, the Assistant Secretary
of the Interior gave his assurance that the Department
would cooperate in the development of an appropriate
evacuation plan if Bailly were licensed (Tr. 7586).
We are not persuaded by the indication that the Assist-
ant Seeretary of the Interior would find it objectionable if
the Department was required to establish a methodology
for evacuation beyond the scope of its normal duties of the
National Park Service (Tr. 7562). The issue is whether or
not Interior would cooperate. The Joint Intervenors have
not introduced any conflicting testimony which specifically
rules out such cooperation.
Moreover, the evidence fully supports the proposition
that a satisfactory emergency plan can be developed for
=
the National Lakeshore ( Maletskos, following Tr. 642, pp.
»-6; Tr. 669-71).
In view of the foregoing, we sce no merit in Contention
19. Applicant’s emergency plan satisfies the requirements
of Appendix FE to 10 CFR Part 50.
2 Seismic Characteristics
36. Intervenors contend that Bailly N-1 fails to comply
with Criterion 2 of the General Design Criteria in that
the seismie design of the facility is insufficient to withstand
the impact of an earthquake such as occurred in 1971 in the
San Fernando Valley, and that the geological data relied
upon to establish seismic design are inadequate.
Intervenors called two qualified geologists to present
testimony (see McKee, followi:.g Tr. 8265, and MeCammon,
following Tr. 8258). They did not claim that an earthquake
as severe as the San Fernando Valley quake of 1971 was
a reasonable possibility in the Bailly region. The thrust
of their testimony was rather that at this time it is inap-
propriate because of the paucity of firm information to
set limits for a design basis earthquake at Bailly site. Al-
though this amounts to a revision of the contention, the
Board felt the issue was of such importance that we
should hear any evidence that might support such a con-
clusion.
37. The Bailly site is located on the edge of the Michi-
gan basin near the Kankakee Arch. The geology of this
Region is characterized by a sequence of about 4,000 feet
of gently dipping Paleozoic age sedimentary rocks (270
to 600 million years old) overlying the Precambrian age
basement complex (more than 600 million vears old), which
is composed of igneous and methamorphie rocks. Obser-
vation of these Pleistocene deposits, which characterize
eastern Illinois, western Michigan, and northern Indiana,
has produced no evidence of active faults. Those faults
—&85—
indentified in northeastern Illinois and northern Indiana
are classified as late Paleozoic to early Cretaceous (270 to
700 million years ago). There has been no evidence of
movement within the past for well over 35,000 years
(Leeds, Allen, Perry and Chauvin, following Tr. 2063; Tr.
2117-22, 6610, 6631-36, 6647-54).
38. The acceleration to be provided for in a design
basis earthquake is, in large measure, determined by the
distance to an active fault. Consequently, the Applicant’s
and Regulatory Staff’s testimony to the effect that there
were no active faults near Bailly was of erucial impor-
tance. (Leeds et al., follows Tr. 2063: Tr. 2114-16, 2124-
32, 2154-60, 2063, 6630-32). Joint Intervenors’ witness Me-
Kee (testimony following Tr. 8265) had studied the geol-
ogy of the region extensively. She identified faults in the
Chicago Area; however, she did not demonstrate that the
faults were active. Indeed, the faults she identified were
taken into consideration in defining the design basis earth-
quake (Leeds, following Tr. 9768).
Witness McKee further testified that even if all faults
were inactive at present, they might be triggered by injee-
tion of waste into underground strata. She cited man-made
earthquakes in the Denver Region that resulted from deep-
well disposal operations. This was countered by Appli-
eant’s witness (Winar, following Tr. 9775, pp. 1-4) who
pointed out that the geologic conditions in the Denver Re-
gion are entirely different from that in Northern Indiana.
Further, the quakes were very small compared to the de-
sign basis earthquake. There have been no similar pheno-
mena in the Chicago Region.
39. The evidence discloses that the calculated ground
motion at the site would be well below that which is pro-
posed for the design basis earthquake (Tr. 9777-78, 9814-
15). All Class 1 structures at Bailly are being designed to
meet an earthquake of intensity VII on the Modified Mer-
ealli Seale of 1931. We share the view of Applicant’s wit-
—36—
ness Leeds that thix design criteria represents appropriate
conservatism (Leeds, «f ol. following Tr. 2063, pp. R-56-7
and -8). The acecleration selected by the Applicant is more
than twice the level of what could reasonably be postulated
in accordance with AE criteria and represents a conserv-
ative estimate based on pertinent carthquake experience
(Tr. 2096, 2101-2, 6646-48). The safe shutdown earthquak«
assumes 20° of ¢ for the horizontal component and
13.34% of g for the vertical component. The comparable
figures for the operating basis earthquake are 10% an
6.67% (Tr. 2136-38).
40. Our consideration and the testimony in this pro-
ceeding with respect to seismology and geology reflect the
proposed Appendix A to 10 CFR Part 100 which had been
available for guidance since its publication by the Com-
mission on November 25, 1971 (36 F.R. 22601). On Novem-
ber 13, 1973, the Commission adopted Appendix A, in
final form. to become effective December 13, 1973 (38 F.R.
31279).
41. In its adoption of the final Appendix A, the Com-
mission described all of the significant differences between
the proposed and the adopted versions (38 PLR. 31279-81).
Manv of the revisions simply reflect refinements in ver-
hiage and editorial improvements (¢.¢.. the term ‘*active
fault’? has been renamed ‘‘capable fault,’’ but the defini-
tion and application of the terms are essentially identical
in both versions of Appendix A), while others pertain to
matters not pertinent to
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