Petition — Hodder v. United States Nuclear Regulatory Commission

APR SO ja70

UP iras a &

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No

€8-1652

MARTIN HAROLD HODDER, ROWENA E. ROBERTS,

KEVIN DONOVAN, LORRETTA DONOVAN,

E. GARDNER PRIME, VALERIE PRIME,

NATHANIEL ERIC HODDER,

Petitioners,

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION

and UNITED STATES OF AMERICA,

Repondeits,

and

FLORIDA POWER & LIGHT COMPANY,

Intervenor.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

MARTIN H. HODDER

1131 N.E. 86th Street

Miami, Florida 33138

(305) 751-8706

TERENCE J. ANDERSON

University of Miami

School of Law

Coral Gables, Florida 33134

(305) 284-2253 or 2971

Attorneys for Petitioners

PTS ASAE ae CIS RRS Se RA LE a A IE

THE CASILLAS PRESS, INC.-1717 K Street. N W.—Washington, 0. C.-223-1220

i

i CLERK

(i)

TABLE OF CONTENTS

Page

a Re re 2

SED SE SE eae eae 2

QUESTIONS PRESENTED F OR REVIEW ea bk ee <i ieee Rare 2

ee CGN Sh rigs bas SA cwiwee ee eco ad 3

Oo das sonics en ev sescssccowses 4

ER I ee 4

B. Nature of the Problem and Regulatory Background ......... 4

C. Proceedings Before the Commission..................... 9

D. Proceedings Before the Court of Appeals ................ 11

ES OS 12

REASONS FOR GRANTING REVIEW ................224- 13

EE fe OU, Ck wera k Oh eee nde s see nccecees's 20

Appendix A— Order Denying Rehearing En Banc ........... la

Appendix B— Judgment and Memorandum of the

United States Court of Appeals for the

District of Columbia Circuit ................. 2a

Appendix C— Order of the United States Court of

Appeals for the District of Columbia Circuit

Denying Motion for Simmary Reversal ........ Sa

Appendix D— Stautory Appendix:

National Environmental Policy Act of 1969...... 7a

Administrative Procedure Act .............. 9a

(ii)

TABLE OF AUTHORITIES

Cases: Page

Calvert Cliff's Coordinating Committee v. AEC,

UP Fee as CAE PEPER a 5 nsw iain bas phen Voengees 1S

Carolina Environmental Study Group v. United States,

ee PR PTE Ss oo ta eR ewes Karin ebaannes 18,19

Environmental Defense Fund v. Froehlke,

igh ee TO Re nae wr ear rare a 16

Long Island Lighting Co. (Shoreham Nuclear Power Station)

FRR Ra UG EO ETT OD hak ea Fes S berber ecuses 6, 12

NLRB v. Wyman-Gordon Co.,

as NTE ko ca ca Shek ah ROARS eles Ale wuldeawawcs 1S

Offshore Power Systems (Manufacturing License for

Floating Nuclear Power Plants) NRC Docket

No. STB 50-437 (OPS), 8 NRC 194 (1978) .............4.. 19, 20

Porter County Izaak Walton League of America, Inc. v. AEC,

OO I 6S ak ee eb e's ake wo RS CA eke kas 18

SEC v. Chenery Corp.,

iets Shika 5 oe thes wee RM eS ee A 1S

SEC v. Chenery Corp.,

ee AOE ss Hele d's Ya da NGA OED A ARS She Oe Os 1S

Silva v. Lynn,

ee Be A Se rere enor rar a 16

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc.,

2A ree Pare ee ery were re ee 1S, 16, 17, 20

(iii)

Statutes and Regulations: Page

Administrative Procedure Act:

Lf eg FS Reo rian nas 3, 4, 13, 16, 17

PA Sh oiihas 65:08 CAND ead wk ews 1S eS 14

Ps MR ad cK gs 06 0 Kl ao EA ne Dee aoe ol OI 14

Pas ERS <9 66 do dues O4S eR wh cM abs ate bab enue 18

Pe ol gs | | cre ge SS eer, Aree Ae 14

Pee RE i ee OS A ok ad Sek Cae eee ae Se ka 2

PER eT 5 aca ewe ELON SAS CLOeCL OS EmWaeee se 2

ee EE Ne erases chan OE eo kle Od bcd as ce ee Os 10

Es ia sk CSS DANS goes kak Oa ca CORE hes 10

National Environmental Policy Act of 1969, Public Law

No. 91-190, 42 U.S.C. § 4321, et seg.......... 2, 4, 6, 12, 13, 15, 16

ge ee ere ee re re re ret “

Miscellaneous:

“A Nuclear Nightmare,” Time, April 9, 1979 ..............44. 16

A.E.C. “Protection Against Accidents in Nuclear Power

Reactors: Interim General Statement of Policy,”

31 Fed Rep. 39064 (August 21, 1974) . won cic ccc cece 8

A.E.C. Technical Information Doc. 14844 (1962) ............... 7

“Crisis in the World of Nuclear Power,” Life, May, 1979......... 16

D.F. Ford, A History of Federal Nuclear Safety Assessments:

From Wash.-740 Through The Reactor Safety Study

(Union of Concerned Scientists, 1977) ......... 0.0. eee eee eee 6

S.H. Hanauer, “‘Notes on MIT Study Proposal”

PPPS Sy ee Nee Te SE EERE. Ue Te 7

N.R.C. “Statement of Risk Assessment and Reactor Safety

Report (Wash.-1400) in Light of the Risk Assessment

Review Group Report” January 18, 1979) .............-0005. 8

(iv)

Page

“Nuclear Accident,” Newsweek, April 9, 1979 ..........000 ee 16

Proposed Annex to Appendix D of 10 C.F.R., Part SO,

36 Fed. Rep. 22851 (Dee. 8: FSFEP: 6 os. iio See heckaeen nee >

“Reactor Safety Study: An Assessment of Accident Risks

in U.S. Commercial Nuclear Power Plants,”

Wash - 140DCIGTD 2 oo enact eh ceieee ee einen es 7

“Risk Assessment Review Group Report to the Nuclear

Regulatory Commission” (NUREG/CR-0400)

Septensber, 99700. .. 006s neces eens heaieeeine 7 amae ied 8

The Miami Herald, Sec. A (April 24, 1979) . 0... cee 8

“The Safety of Nuclear Power Reactors (Light Water

Cooled) and Related Facilities,” Wash.-1250(1973)............ 7

‘Theoretical Possibilities and Consequences of Major

Accidents in Large Nuclear Power Plants,”

Wash.-748 (1957)... 09 6 hadne sans saue eure elles 6-7

39 Fed. Reg. 26279 Gaby 06, POM) «0.04 0 Renee 5

USNRC Regulatory Guide 4.2, Rev. 2

(NURBG-GOP9, duly 1970) 02.0 oct cecwuwetclvareyt Seaueae 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No

MARTIN HAROLD HODDER, ROWENA E. ROBERTS,

KEVIN DONOVAN, LORRETTA DONOVAN,

FE. GARDNER PRIME, VALERIE PRIME,

NATHANIEL ERIC HODDER,

Petitioners,

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION

and UNITED STATES OF AMERICA,

Repondents,

and

FLORIDA POWER & LIGHT COMPANY,

Intervenor.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners respectfully request that this Court issue a

writ of certiorari to review the judgment and opinion of the

United States Court of Appeals for the District of Columbia

Circuit affirming decisions of the Nuclear Regulatory Com-

mission granting a license to construct a nuclear power

plant on Hutchinson Island to the Florida Power and Light

Company.

2

OPINIONS BELOW

The judgment and memorandum opinion of the United

States Court of Appeals for the District of Columbia Circuit

in Hodder v. Nuclear Regulatory Commission, Nos. 76-

1709 and 78-1149, together with an earlier order of that

court granting petitioners interim relief are set forth in the

Appendix to the Petition. The opinion is not officially

reported.

The following opinions and orders of the Nuclear

Regulatory Commission’s Atomic Safety and Licensing Ap-

peal Board (‘‘Appeal Board’’) and Atomic Safety and

Licensing Board (‘Licensing Board’ ) in Florida Power and

Light Company (St. Lucie No. 2) are set out in a Separate

Appendix: Pre-Hearing Conference Order #3, LPB-74-SS, 8

AEC 117 (1974); Partial Initial Decision—Environmental

and Site Suitability, LPB-75-S, 1 NRC 101 (1975);

Supplement to Board's Partial Initial Decision, LPB-75-2S,

1 NRC 463 (1975); Decision, ALAB-335, 3 NRC 830 (1976);

Initial Decision, LPB-77-27, 5 NRC 1038 (1977); Mem-

orandum and Order, ALAB-415, 5 NRC 1435 (1977); and-

Decision, ALAB-435, 6 NRC 541 (1977).

JURISDICTION

The judgment of the Court of Appeals was entered on

December 26, 1978. The Court denied petitioners’ request

for rehearing or rehearing en banc by an order entered on

January 30, 1979. The jurisdiction of this Court in invoked

under 28 U.S.C. § 1254 and 28 U.S.C. § 2350.

QUESTIONS PRESENTED FOR REVIEW

1. Can the National Environmental Policy Act of

1969' be construed to permit the Nuclear

Regulatory Commission to refuse to consider the

‘National Environmental Policy Act of 1969, Public Law No. 91-190,

42 U.S.C. §§ 4321 et seq. (App. 7a).

3

environmental risks posed by possible major

nuclear accidents in licensing proceedings before

it has determined through agency action that the

generic probability of such accidents is suf-

ficiently remote to excuse individual con-

sideration of the risks?

2. Can the Administrative Procedure Act? be con-

strued to authorize the Nuclear Regulatory Com-

mission to apply an “interim policy” expressed in

a rule proposed for comment in 1971 but never

since adopted as the sole basis for conditioning an

intervenor’s right to be heard with respect to the

environmental risks posed by major nuclear ac-

cidents in proceedings to determine whether a

populous island is a suitable site for a nuclear

power facility?

3. Did the Court of Appeals err in deciding that an

agency’s “‘interim policy’’ expressed in a proposed

rule which had never been adopted had become a

“well established rule’’ and the “‘reasoned and

consistent view” of the agency solely by virtue of

the agency’s rcpeated application of the policy in

licensing proceedings in which the agency had

consistently refused to consider the basis or

rationale for the proposed rule?

STATUTES INVOLVED

The case involves the statutes listed below, the relevant

portions of wich are set forth in the Appendix to this

petition. (App. pp. 7a, et seq.).

1. The Administrative Procedure Act, 5 U.S.C.

§§ 551, 553, 701, 702, and 706.

2. The National Environmental Policy Act of 1969,

42 U.S.C. § 4331, et seq.

?Administrative Procedure Act, 5 U.S.C. §§ SSI et seq. (App. 9a).

4

STATEMENT OF THE CASE

A. Introduction

The incident at Three Mile Island was what the Nuclear

Regulatory Commission (““NRC”’ or “‘Commission’’) calls a

class 9 nuclear accident. For the past seven years, the Com-

mission has refused to consider class 9 accidents in deter-

mining the environmental impact of licensing the con-

struction or operation of nuclear facilities. This petition

asks the Court to grant review to consider a very narrow but

critically important question — whether the Commission’s

refusal to give any consideration to the environmental im-

pact of class 9 accidents ean be reconciled with the

requirements of the National Environmental Policy Act of

1969 and the Administrative Procedure Act.

B. Nature of the Problem and Regulatory Background

The National Environmental Policy Act of 1969

(“NEPA”) requires that the Commission give ‘‘appropriate

consideration” to the environmental impact of its major ac-

tions. Licensing the construction and operation of a nuclear

facility constitutes such an action. The Administrative

Procedure Act (“‘APA’’) provides the procedural framework

within which the consideration must be given and the Com-

mission’s decisions may be reviewed. The Commission’s

standards and procedures for considering environmental

issues in licensing proceedings are codified in its rules.’

These rules do not, however, deal with the consideration to

be given possible major nuclear accidents.

As the Commission has recognized, determining the

weight to be given possible major nuclear accidents under

NEPA requires a determination of two issues — what is the

probability that such an accident will occur and, if it does,

what are the probable and potential consequences. Each of

these determinations raises both generic issues common to

all licensing decisions and specific issues particular to the

decision for any individual site. For example, given the

3See, 10 CFR, Parts 50, 51, and 100.

5

existing state of the technological art, the probability that a

particular kind of accident will occur may be determinable

as generic decision. This determination may, however,

require modification based upon construction or operating

problems peculiar to a particular site. So too, the con-

sequences: the probable radiation emission likely to occur

as a result of a particular type of accident may be deter-

minable as a generic matter, but the distribution of that

radiation and its effect upon the environment can only be

determined in relation to population, meteorological, and

ecological characteristics of the particular site.

Against this background the Atomic Energy Commission

(““AEC” or “‘Commission”’) proposed in 1971 to consider

the issues posed by major nuclear aceidents through the

exercise of its rulemaking power. On December 1, 1971,

the AEC published a Notice of Proposed Rule Making to

amend its regulations by providing for ‘“‘Consideration of

Accidents in Implementation of the National En-

vironmental Policy Act of 1969.’* The Commission

proposed to divide nuclear accidents into nine classes. For

classes 1 through 8, the Commission proposed criteria

which applicants should use and which the Commission

would apply in considering the environmental impact of

possible accidents in those classes. The accidents in classes

1 through 8 included all accidents the Commission had

foreseen and provided for in its design and engineering

standards. Class 9 was to include all accidents which ex-

ceeded the design standards and operating procedures

required by the Commission.°®

Under the proposed rule, applicants were not required to

discuss and the Commission would not consider Class 9 ac-

“Proposed Annex A to Appendix D of 10 CFR, Part SO, 36 Fed. Reg.

22851 (Dec. 1, 1971) (Separate App.). On July 15, 1974, the Commission

revoked Appendix D but preserved the proposed Annex A as a

proposed rule amending 10 CFR, Part 51. 39 Fed. Reg. 26279 (July 18,

1974); see also, USNRC Regulatory Guide 4.2, Rev. 2 at p. 7(NUREG-

0099, July 1976).

‘Id.

6

cidents in environmental reviews. The rationale proposed

for his decision was:

‘The occurrences in Class 9 involve sequences of

postulated successive failures more. severe than

those postulated for the design basis for protective

systems and engineered safety features. Their

consequences could be severe. However, the

probability of their occurrence is so small that

their environmental risk is extremely low... .

For these reascens it is not necessary to discuss

such events in applicants environmental re-

ports.’”®

The AEC did not and the NRC has not adopted the

proposed rule; it remains open today. For the past seven

years, however, both agencies have applied the unadopted

rule in licensing proceedings as in ‘interim policy’’ and

have refused to consider the environmental impact of

possible class 9 accidents unless and until an intervenor can

carry the burden of rebutting the proposed rule and show

that there is a ‘‘reasonable possibility that a class 9 accident

will occur.’’’ It is the agency’s rote application in licensing

proceedings of this unadopted interim policy as the basis

for refusing itself to bear its NEPA burden to consider the

environmental risk and as the basis for imposing a

“threshold test’’ procedural rule upon intervenor’s right to

be heard onthe issue that gives rise to the questions presen-

ted by this petition.

These questions take on special importance in light of the

Commission’s subsequent actions with respect to the

problem. The AEC did not in 1971 offer or claim that it had

any basis upon which the probability of class 9 accidents

°*Id. Emphasis supplied.

’Florida Power and Light Co. (St. Lucie No. 2), Prehearing Conference

Order #3, LPB-74-SS, 8 AEC 117 (1974) (Separate App.). See also, Long

Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, 6

AEC 831 (1973).

5)

might rationally be determined.* Since 1974 the NRC has

had a draft report of a study it commissioned,’ one of the

purposes of which was to develop the methodology and

determine the probability of occurrence and the probable

consequences of various types of class 9 accidents. The

study calculated the probability of one type of class 9 ac-

cident occurring based upon an assumed 100 reactors in

operation in 1980 at one in two hundred per year,

although it then went on to argue that the probability of

anyone being seriously injured was highly remote.'® In

*See generally, D.F. Ford, A History of Federal Nuclear Safety

Assessments: From Wash.-740 Through The Reactor Safety Study-

(Union of Concerned Scientists, 1977) [Ford]. The AEC apparently

relied initially on a 1957 study, “Theoretical Possibilities & Con-

sequences of Major Accidents in Large Nuclear Power Plants,” Wash.-

740 (1957). By 1962, the Commission had recognized that it did not

have the ‘technology to assign quantitative numbers to all significant

factors relative to safety or to predict with surety probabilities of

malfunctioning engineering features of plant design.” A.E.C.

Technical Information Doc. 14844 (1962). See also, ‘‘The Safety of

Nuclear Power Reactors (Light Water Cooled) and Related Facilities,”’

Wash.-1250, p. 8-4 (1973).

In 1972, S.H. Hanauer, technical advisor to the AEC director, was

asked to comment upon a proposed MIT study to resolve the proolem.

His notes reflect his judgment of the Commission’s then position. ‘'S.

What are we going to do for a year in licensing facilities while this study

is perking along? $64 for the answer — wave arms and talk loud.” S.H.

Hanauer, ‘‘Notes on MIT Study Proposal’’ quoted in Ford, supra, at

pp. 49-S0.

*“Reactor Safety Study: An Assessment of Accident in U.S. Com-

mercial Nuclear Power Plants,”” Wash.-1400 (1975) [the Rasmussen

Study]. The study was issued in draft form in August, 1974, and in final

form October, 1975. The study consists of 14 volumes including a 12

page Executive Summary.

‘Rasmussen Study, Executive Summary, § 2.11, p. 8. The risk

assessment portion of the study, treated the consequences of a major

accident, placed the odds of 1000 members of the public being killed in

a reactor accident at something like one in a billion, which coincides

with the probability that a meteor would strike a U.S. population center

and cause 1000 fatalities. Vd., Executive Summary 2.15, p. 9). The

Commission repudiated this part of the study on January 18, 1979. See

note 12, infra.

8

response to questions raised challenging the methodology

employed to reach an optimistic assesment of the risk, the

AEC issued an Interim Statement of General Policy stating

that the draft study’s analysis of the probable consequences

of a major accident would not be used in licensing

proceedings.'' Recently, the NRC repudiated the risk

assessment portion of the study."?

The events at Three Mile Island dramatically

corroborated the Commission’s belated concern. Indeed,

the ground for concern is such that the Commission is now

reported to be considering closure of all nuclear facilities

constructed by the manufacturer of the plant at Three Mile

Island.'* But NEPA was intended to compel consideration

"A.E.C. “Protection Against Accidents in Nuclear Power Reactors:

Interim General Statement of Policy,’ 31 Fed. Reg. 39064 (August 21,

1974).

"'N.R.C. “Statement of Risk Assessment and Reactor Safety Report

(Wash.-1400) in Light of the Risk Assessment Review Group Report”

(January 18, 1979). The Commission ordered that the Statement be in-

cluded with all copies of the Rasmussen Study distributed. The

repudiation was based upon the “Risk Assessment Review Group

Report to the Nuclear Regulatory Commission’’ (NUREG/CR-0400)

(September, 1978) [the “Lewis Report’’]. The Lewis Report recognized

the value of the Rasmussen Report methodologically, but criticized the

Executive Summary, the procedure followed in producing the final

study, and the calculations in the body of the study. The Lewis Report

described some of the inadequacies of the present reactor siting

criteria:

There has been consideration of use of the Reactor Safety

Study itself, its refinements, and conclusions based on these

in revising the basis of part of the regulatory process. One

example considered in this connection is the analysis

required by 10 CFR 100 (Reactor Site Criteria), whose

philosophical basis is partly a view that reactor core melt-

down should be no more probable than 10°° per reactor

year, because any meltdown could be catastrophic. The con-

clusions of the Reactor Safety Study disagree with both the

probability of such an event and its effects, and so a revision

of the site criteria themselves is suggested. No specific steps

in this direction have yet been taken.

Lewis Report, at p. 44. Emphasis supplied.

‘The Miami Herald, Sec. A, p. 1, (Tuesday, April 24, 1979).

9

of these risks before the site was selected and the plant con-

structed.

C. Proceedings Before the Commission

On May 14, 1973, Florida Power and Light Company

(‘‘FPL”’) filed an application for a license to construct a

nuclear power plant at St. Lucie on Hutchinson Island,

Florida, just eight miles south of the city of Fort Pierce on a

22 mile long barrier island along the east coast. The En-

vironmental Report FPL submitted with its application did

not include any analysis of the environmental impact of

class 9 accidents at the proposed facility and the AEC’s

Final Environmental Statement reported that the en-

vironmental costs of class 9 accidents were ‘‘not con-

sidered.’’'*

In their statement of contentions, petitioners contended

that the Commission must consider the environmental con-

sequences of class 9 accidents in the hearings on FPL’s ap-

plication. In its final prehearing order, the Licensing Board

ruled that because intervenors had made ‘‘no showing of a

reasonable possibility of class 9 accident [sic] at St.

Lucie . . . an issue relating to class 9 is denied.’’'* The

Licensing Board thus ruled before the hearing began that

petitioners would not be permitted to introduce or question

evidence with respect to class 9 accidents. As a result, the

Licensing Board did not permit any evidence or testimony

which was relevant only to that issue. The Atomic Licensing

and Safety Appeal Board (‘‘Appeal Board’’) affirmed this

decision.'®

The principal contentions the Licensing Board did con-

sider in its environmental siting review focused on a close

question: whether the environmental costs entailed in con-

structing the nuclear facility on Hutchinson Island (which

'*Final Environmental Statement, St. Lucie Plant, Unit 2, Florida

Power and Light Company, Docket No. 50-389, May, 1974, Table 7.1,

p. 7-2. Both merely repeated the rationale set forth in the proposed rule

as the basis for non-consideration.

'*Prehearing Conference Order #3, supra (Separate App.)

'*Decision, ALAB-335S, supra (Separate App.).

10

was within a tourist area that had experienced and was an-

ticipating substantial population growth; which was near

the ocean shore where it would be vulnerable to foreseeable

major hurricane activity and where any substantial

radiation emissions might effect the marine as well as the

land based eco-systems; and which was to be a site where

evacuation in the event of an accident would be constricted

by the fact that the island had only limited access to the

mainland) outweighed the benefits of that site in com-

parison with available alternative inland sites located in low

population areas.'’ Underlying the Licensing Board’s

decision to grant the license was FPL’s agreement to in-

crease the safety features for the proposed facility to reduce

the risk of radiation resulting from class 1 through class 8

accidents to a projected level which under Commission

rules would permit reduction of the required ‘“‘low

population zone’”’ from a five to a one mile radius from the

facility."* The Licensing Board’s findings and decision

illustrate the type of site specific factors that might tip a

cost benefit analysis if the environmental impact of class 9

accidents were considered to have any weight.

On June 29, 1976, the Appeal Board affirmed the Licen-

sing Board’s partial initial decision granting a Limited

Work Authorization for the St. Lucie facility. After further

remand hearings, on October 7, 1977, the Appeal Board af-

firmed the Licensing Board’s decision to grant FPL a con-

struction permit. Both decisions became final orders of the

Commission.

Petitioners sought review in the United States Court of

Appeals for the District of Columbia. The Court of Appeals

had jurisdiction under 28 U.S.C. §2342 and 42 U.S.C.

§ 2239.

'’Prehearing Conference Order #3, supra.

'® Partial Initial Decision, supra, (1 NRC at 136-39) (Separate App.)

1]

D. Proceedings Before the Court of Appeals

In petitioners’ appeal from the initial decision to grant the

Limited Work Authorization, the Court of Appeals stayed

the permit pending completion of the alternate site review

ordered by the Appeal Board and ordered that appeal be

held in abeyance pending completion of those proceedings.

(App. p. Sa) The Court subsequently consolidated that ap-

peal with petitioners’ appeal from the Commission’s final

decision to license construction.

On December 26, 1978, the Court of Appeals affirmed

the decisions of the Commission, rejecting petitioners’

claim that the Commission erred as a matter of law in

failing to consider or permit consideration of class 9 ac-

cidents. In a brief unsigned memorandum opinion, the

Court ruled:

Petitioners’ claim on the accidents issue has

been foreclosed by previous decisions in this

court. It is well settled that, because of the ex-

treme improbability of their occurrence, the NRC

need not consider the environmental effects of so-

called ‘Class 9” accidents. Carolina En-

vironmental Study Group v. United States, 510

F.2d 796, 798-800 (D.C. Cir. 1975). It is true that

Carolina was decided prior to the publication in

final draft of the Reactor Safety Study,

WASH-1400 (1975), that found a probability of

Class 9 accidents significantly greater than had

been indicated by the previous study, WASH-740

(1957). Carolina, however, has been reaffirmed by

decisions of this court subsequent to the

publication of the 1975 study. Lloyd Harbor

Study Group, Inc. v. NRC, No. 73-2266 (D.C.Cir.,

Nov. 29, 1978); Aeschliman v. NRC, 547 F.2d 622,

632 n.21 (D.C. Cir. 1976), rev'd on other grounds

sub nom. Vermont Yankee Nuclear Power Corp.

v. N.R.D.C. 435 U.S. 519 (1978). These decisions

12

accord with the reasoned and consistent view of

the NRC. Long Island Lighting Co. (Shoreham

Nuclear Power Station), ALAB-156, 6 AEC 831

(1973).

(App. 4a; emphasis added. _).

In Shoreham, however, the Commission did not consider

any evidence concerning class 9. It was relying upon the fin-

ding of improbability suggested as a rationale in its-

proposed rule and applying the proposed rule as “‘interim

policy.”’ It remains clear that the Commission has not yet

made, or articulated a basis for, a considered decision with

respect to the probability such accidents might occur.

Petitioners’ submit that seven years is too long to permit the

continued application of an unadopted rule to exclude con-

sideration in adjudicatory proceedings.

E. Effect of Agency Action.

NEPA mandates that agencies consider the envi-

ronmental impact of proposed actions as part of the

decision making process. The AEC could have considered

and the NRC could consider the environmental con-

sequences of major nuclear accidents in informal rule

making proceedings. If, after considering the record

developed in those proceedings, the agency reached a

reasoned decision that the possibility of their occurrence

was so remote that the environmental risk was extremely

low, either agency could have promulgated a rule which

would have made it unnecessary to consider their en-

vironmental impact in licensing proceedings. .

In the alternative, the AEC could have considered and

the NRC could consider the probability in individual ad-

judicatory licensing proceedings and decide on the record

developed there what, if any, additional consideration of

the environmental risk attributable to major nuclear ac-

cidents was appropriate. Over time, the precedents

13

established by these decisions might lay a foundation for a

policy to be applied in subsequent adjudications.

By following either of these procedures, the agency would

have been fulfilling the Congressional mandate to consider

environmental risks and would have been exercising its

discretion and making its decisions in accordance with

procedures mandated in the APA. Either type of agency ac-

tion would have been susceptible and subject to judicial

review.

The agency here has made a decision in fact without for-

mally considering the environmental impact of major

nuclear accidents and without adhering to either

procedure. The proposed rule does not represent an agency

action and cannot be reviewed until a final rule is

promulgated. But, since the rule was proposed, the agency

has used it in each licensing adjudication as the basis not to

consider major nuclear accidents as part of its en-

vironmental review.'? Thus has the agency avoided its

responsibility to consider and make a decision.

REASONS FOR GRANTING REVIEW

The Commission has effectively made a decision. It has

decided that the probability that a major nuclear accident

will occur is so remote that the environmental risk from

such an accident does not warrant consideration in

proceedings to determine whether and where nuclear

facilities should be built. The Commission may be correct

'°The agency has, of course, siated in each adjudicatory proceeding

that, if intervenors can show “a reasonable possibility” of a Class 9 ac-

cident at a particular site, it will then consider the environmental risk.

A “threshold rule’’ which shifts the NEPA burden from the agency to

the intervenor would be appropriate if, but only if, the agency itself had

properly considered and decided on an adequate record that the

generic probability of such an accident was too remote to warrant fur-

ther consideration. Congress placed the initial burden upon the agency,

not those who appear before it.

14

and may have substantial evidence to justify such a

decision. The Commission may be wrong or it may have no

basis upon which such a decision could be made. But

whatever the decision, it is apparent that the question is of

critical importance to a proper balance between our power

needs and our environmental concerns.

Petitioners concede that the decision in the first instance

must be made by the Commission. Petitioners urge that a

decision of that kind and magnitude cannot be made in a

manner which bars public input in the decision-making

process, which avoid public disclosure of its basis, and

which precludes judicial review of the final decision. By

using a policy expressed in an unadopted (and hence

unreviewable) rule as the basis for foreclosing consideration

of the issue in licensing proceedings, this is precisely what

the agency has done.”° By using the repeated application of

this policy in licensing proceedings as the basis for deciding

that rule was well established, the Court has sanctioned

this decision-making process and in effect insulated it from

review.

The application of the unadopted policy in these

proceedings and the Court of Appeals decision sanctioning

that procedure are inconsistent with the procedural and

with the substantive guidelines established by this Court’s

Although it has not formally promulgated a rule embodying its

decision not to consider class 9 accidents, the Commission has in every

meaningful respect acted as though what it chooses to characterize as a

“policy to provide interim guidance’’ was a formal decision. In any

meanful sense the Agency has adopted a “‘rule’’ as that term is defined

in the APA, 5 U.S.C. § 551(4)("". . . an agency statement of general or

particular applicability and future effect designed to implement, in-

terpret, or prescribe law or policy . . . ."’) without conforming to the

formalities required by 5S U.S.C. § 553. As such the rule is invalid.

In any event, the Commission's action in repeatedly refusing to con-

sider class 9 accidents after it has repudiated the very basis upon which

its initial policy was based suggests the agency's licensing decision here

should be found to be “arbitrary, capricious, an abuse of discretion, or

not otherwise in accordance with Law.’ 5 U.S.C. § 706(2MA).

15

prior decisions. The Commission’s refusal to consider the

environmental impact of major nuclear accidents in these

proceedings is hard to reconcile with this Court’s decisions

interpreting NEPA, especially in view of the fact the Com-

mission has refused to consider their probability in its pend-

ing rulemaking proceedings. See, Vermont Yankee Nuclear

Power Corp. v. Natural Resources Defense Council, Inc.,

435 U.S. 519 (1978); Calvert Cliffs Coordinating Com-

mittee v. AEC, 449 F.2d 1109 (D.C. Cir. 1971).

The Commission’s failure to make the determination upor

which it justifies its present refusal through some form of

reviewable agency proceedings is hard to reconcile with this

Court’s decisions construing the APA. Compare,

Shoreham, supra, with S.E.C. v. Chenery Corp., 318 U.S.

80 (1943) (establishment of policy in adjudicatory

proceedings without full consideration); contrast, S.E.C. v.

Chenery Corp., 332 U.S. 194 (1947) (establishment of policy

after full adjudicatory consideration). See also, N.L.R.B. v.

Wyman-Gordon Co., 394 U.S. 759 (1969) (application of

policy established by adjudication to subsequent proceed-

ings), esp. dissent (Harlan, J.) 394 U.S. at 780-784 (limits of

precedent as establishing policy).

But it seems clear, in any event, that this petition presents

two serious questions of federal law of great importance

which this Court should resolve:

Whether NEPA imposes an obligation upon

the Commission to make a determination of the

probability that various kinds of major nuclear

accidents will occur before it can discount the en-

vironmental risk to the point where the con-

sequences are entitled to no weight in the en-

vironmental review process; and

whether the Commission may rely upon an

unadopted policy and precedents applying it as

establishing a rule which shifts the burden of

justifying such consideration from the Com-

mission to intervenors who appear before it.

16

Few issues could he of greater public concern than the

question of risk to the human environment posed by our ex-

panding reliance upon nuclear power. Recent events have

justly shaken the public’s confidence in the procedure by

which the Commission has discharged its responsibilities.”

At a minimum, the Commission’s treatment of these con-

cerns can hardly be said to be consistent with the ‘‘full

disclosure’’ purpose underlying NEPA. See, Silva v. Lynn,

482 F.2d 1282, 1284-85 (ist Cir. 1973); Environmental

Defense Fund v. Froehlke, 473 F.2d 346, 348 (8th Cir.

1972). The Court should take this opportunity to clarify the

procedures the Commission must follow in making deter-

minations of such critical importance.

Quite simply, petitioners find it hard to reconcile the

Court of Appeals decision with the teachings of this Court

so recently set forth in Vermont Yankee, supra. Vermont

Yankee presented the question what procedures was the ©

Commission required to employ in considering the en-

vironmental impact of nuclear fuel reprocessing and waste

disposal. This Court accepted the Court of Appeals ruling

that the Commission could give the consideration required

by NEPA either in generic rulemaking proceedings or in in-

dividual licensing proceedings, but overruled that court’s

decision, holding that the court should not have imposed

upon the commission’s decision-making process

procedures in excess of those required by the APA. In-

Vermont Yankee the issue was whether the courts could

require more; here the issue is whether the courts can per-

mit less.

In Vermont Yankee, the Court recognized that the Com-

mission had appropriately determined that NEPA required

that it consider the environmental impact of “‘spent fuel.”

The Court’s concern was whether the Court of Appeals

*!The risks have been well described and the public concern reflected

in the popular press. See, ““A Nuclear Nightmare,” Time, April 9, 1979,

pp. 8-20; ‘Crisis in the World of Nuclear Power,”’ Life, May, 1979, pp.

22-30; “‘Nuclear Accident,” Newsweek, April 9, 1979, pp. 24-39.

17

had improperly substituted its judgment for that of the

Commission by imposing procedures in addition to those

required by the APA and in determining that the con-

sideration given by the Commission was inadequate.

This petition presents a case in which the Commission

has refused to consider a class of major nuclear accidents

in either rulemaking or licensing proceedings. The en-

vironmental relevance of such accidents to the licensing of

nuclear power plants is far more direct and is closer in both

space and time than the environmental effects likely to

result from the handling of spent fuel over the coming cen-

turies. In Vermont Yankee, the Commission had con-

sidered and determined through agency action that existing

technology was adequate for present containment and that

future technology was likely to be adequate for long term

containment. Here, the Commission is still developing the

methodology to determine the probability that such a major

accident will occur and, if it does, its impact upon the en-

vironment. It has not yet acted upon the question through

any agency process, whether by way of rulemaking or licen-

sing proceedings.

In Vermont Yankee, a unanimous court reiterated that:

The Administrative Procedure Act . . . was not

only “‘a new, basic and comprehensive regulation

of procedures in many agencies,” . . . but alsoa

legislative enactment which settled ‘‘long-

continued debates and hard-fought contentions,

and enacts a formula upon which opposing social

forces have come to rest.”’

(435 U.S. at 523, citations omitted).

Petitioners respectfully suggest that this Court should now

consider whether the balance struck by Congress must not

be honored in both ways. If the courts cannot require more

process than is due under the Act, in fairness they should

not permit the agency to give less.””

2In the companion case decided with Vermont Yankee (Consumers

Power Co. v. Aeschliman), the Court also considered whether the Com-

18

The fact that the Commission has not adopted a rule and

articulated ‘‘a concise general statement of [its] basis and

purpose” as required by the APA, 5 U.S.C. § 553(c), reflects

and has caused a great deal of confusion. The confusion

wrought by the agency is demonstrated not only by their

failure to adopt any rule on catastrophic accidents for 22

years and the continuing failure to use any of their

technical scientific studies as a basis for licensing decisions,

but also by the difficulties various courts of appeal have

had in attempting to divine the agency’s bases for its failure

to consider class 9 accidents. The courts of appeal for

various circuits have relied upon diverse extrinsic evidence

ranging from the outmoded WASH-740 (1957) study to

Time magazine articles in their judicial reviews upholding

the Commission policy on class 9. See e.g., Carolina En-

vironmental Study Group v. United States, 510 F.2d 796

(D.C. Cir. 1975); Porter County Izaak Walton League of

America, Inc. v. AEC, 553 F.2d 1011 (7th Cir. 1976).

mission could require intervenors to satisfy a threshold burden before it

was obligated to consider a previously unrecognized but possibly

material alternative in assessing the environmental impact of siting a

nuclear plant. There the issue was whether the Commission erred in

declining to consider energy conservation as an alternative to a

proposed nuclear facility in 1972. In view of the fact that the

Council on Environmental Quality had not suggested this to be relevant

until 1973 and had not adopted a rule until 1974, the Court found the

Commission reasonably required intervenors to make a threshold

showing of materiality and the agency’s refusal to consider was not

significant. In sharp contrast here, the danger posed by major nuclear

accidents has been a central concern since the dawn of the nuclear age.

NEPA simply mandated that the Commission consider the en-

vironmental impact as well as regulating safety in licensing nuclear

facilities. It would be hard to conceive an issue more clearly within the

Commission’s NEPA mandate than consideration of the environmental

risk associated with possible accidents at nuclear facilities. Although

petitioners concede that the Commission might impose a threshold test

if it had properly determined that the probability of a Class 9 accident

was extremely remote, they submit that nothing in Vermont Yankee

can be read as authorizing the Commission to transfer the burden of

making that initial determination to an intervenor.

19

Finally, contrary to the finding of the Court of Appeals,

the Commission has not been “‘consistent”’ in its handling

of the class 9 issue and its current position is unclear.

Evidence of conflicting attitudes on the part of the Com-

mission itself may be seen by contrasting the arguments

counsel for the Commission used in arguing against con-

sideration of class 9 to the Court of Appeals in the instant

case, with those advanced almost contemporaneously

before the Appeal Board in Offshore Power Systems,

(Manufacturing License for Floating Nuclear Power Plants)

NRC Docket No. STN 50-437, 8 NRC 194 (1978). Com-

mission lawyers urged the Appeal Board in OPS that ‘‘the

old proposed annex does not forbid discussion of Class 9

accident consequences in all cases, and that Class 9 ac-

cident consequences may be discussed even for some land

based plants without running afoul of the annex’’ at the

same time, they were suggesting to the Court of Appeals in

this case that the refusal to consider class 9 accidents was in

‘accord with the reasoned and consistent view of the NRC”

established by Carolina and Shoreham.

Even before the Court of Appeals ruled that this was the

Commission’s ‘‘reasoned and consistent view’’, ‘he Appeal

Board had articulated a new view. On August 21, 1978 the

Appeal Board ruled:

“It is one thing to hold the staff to clearly ar-

ticulated, reiterated policy guidance that the

Commission has chosen to let stand. It is quite

another to extend that policy to situations not

considered at its adoption. And doing so is par-

ticularly inappropriate where that ‘‘guidance’”’ is a

proposed Atomic Energy Commission regulation

— proffered but not adopted in 1971 — and

allowed to languish ever since. We therefore can-

not share our dissenting colleague’s faith in the

annex’s vitality for seasons and circumstances

20

never contemplated.’” ALAB 489, 8 NRC at 220

(1978Y?

Petitioners agree.

CONCLUSION

It is perhaps appropriate to reiterate that petitioners do not

seek to overturn the carefully crafted structure for federal

regulation of the nuclear industry or to limit the agency’s

discretion. They do, however, seek to focus attention on an

abuse of agency discretion which has foreclosed the public,

the parties here, and Commission’s own Licensing Board

and Appeal Board from considering leading scientific data

presently available on the probabilities of class 9 accidents.

Petitioners submit the issues raised by this petition

present important questions of federal law this Court

should address and resolve.** Recent events lend urgency

and great practical significance to these issues. The con-

sideration to be given to possible major accidents in select-

ing sites for nuclear power plants and the requirements

under which that consideration is to be given are urgent

It is gratifying to petitioners that, after five years in litigaton, the

Appeal Board view now coincides with their own.

“The Court of Appeals disposition of this appeal by a memorandum

opinion seems inappropriate because it deprives this Court of a full ex-

planation of that court’s decision. In may be that the court miscon-

strued the scope of the Vermont Yankee decision. In any event, in view

of the procedure followed by the court below and in view of the fact

that the Commission presently has under consideration a decision

repudiating the unadopted policy, Offshore Power Systems, supra,

petitioners suggest that the Court grant the petition and consider

vacating the judgment below and remanding the proceedings to the

Court of Appeals for further consideration.

21

matters of national concern. For these reasons, the petition

for writ of certiorari should be granted.

Respectfully submitted,

MARTIN H. HODDER

1131 N.E. 86th Street

Miami, Florida 33138

(305) 751-8706

TERENCE J. ANDERSON

University of Miami School

of Law

Coral Gables, Florida 33134

(30S) 284-2253 or 2971

Attorneys for Petitioners.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1709 September Term, 1978

Martin Harold Hodder, et al.,

Petitioners

Ve

U.S. Nuclear Regulatory Commission

and United States of America,

Respondents

Florida Power & Light Company,

Intervenor

And Consolidated Case No. 78-1149

BEFORE: Wright, Chief Judge; Bazelon, McGowan,

Tamm, Leventhal, Robinson, MacKinnon, Robb, and

Wilkey, Circuit Judges

ORDER

The suggestion for rehearing en banc filed by petitioners’

Hodder, et al., having been transmitted to the full Court

and no judge having requested a vote with respect thereto,

and certain letters, dated January 22, 1979, submitted by

petitioners and by respondeuts, likewise having been cir-

culated to the full Court, it is

ORDER, by the Court, that petitioners’ aforesaid

suggestion for rehearing en banc is denied.

Pey Curiam

United States Court of Appeals

for the District of Columbia Circuit FOR THE COURT:

FILED JAN 30 1979 /s/ George A. Fisher

GEORGE A. FISHER GEORGE A. FISHER

Clerk Clerk

2a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1709 September Term, 1978

Martin Harold Hodder, et al., Petitioners

V.

U.S. Nuclear Regulatory Commission

and United States of America, Respondents

Florida Power & Light Company, Intervenor

78-1149

Martin Harold Hodder, et al., Petitioners

v.

U.S. Nuclear Regulatory Commission

and United States of America, Respondents

Florida Power and Light Co., Intervenor

PETITIONS FOR REVIEW OF ORDERS OF

THE NUCLEAR REGULATORY COMMISSION

Before: MCGOWAN and WILKEY, Circuit Judges, and

FLANNERY,* United States District Judge for the District

of Columbia

JUDGMENT

These causes came on to be heard on petitions for review

of orders of the Nuclear Regulatory Commission and were

argued by counsel. On consideration of the foregoing, it is

ORDERED AND ADJUDGED by this Court, that the

orders of the Nuclear Regulatory Commission under review

*Sitting by designation pursuant to 28 U.S.C. § 292(a).

3a

herein are hereby affirmed, for the reasons set forth in the

attached memorandum.

Per Curiam

For the Court

/s/ George A. Fisher

George A. Fisher

Clerk

MEMORANDUM

Petitioners seek review of two decisions of the Nuclear

Regulatory Commission authorizing intervenor Florida

Power and Light Company to construct an 850 megawatt

nuclear power reactor at Hutchinson Island, Florida. In

No. 76-1709, petitioners challenge an NRC Atomic Safety

and Licensing Appeal Board decision affirming a decision

of the Atomic Safety and Licensing Board permitting

limited construction work at the site over petitioners’ ob-

jections that population density and distribution were not

in accordance with the NRC’s own regulations, and that the

NRC’s failure to examine the environmental effects of

major nuclear accidents constituted a violation of the

National Environmental Policy Act of 1969, 42 U.S.C.

§ 4321, et seq. (1976). In No. 78-1149, challenge is brought

to an Appeal Board decision that the NRC’s examination

and consideration of alternative sites for the proposed

project complied with NEPA.

Petitioners’ claim on the regulation issue is that Hut-

chinson Island itself should be considered a ‘‘population

center” within the meaning of 10 C.F.R. part 100. We

disagree. The notion of a population ‘‘center’’ implies some

centralized grouping or concentration of residents, not the

type of dispersed populace as is present on Hutchinson

Island. See New England Coalition on Nuclear Pollution v.

United States Nuclear Regulatory Commission, Nos. 77-

1219, et al., slip op. at 7 (Ist Cir. August 22, 1978).

4a

Petitioners’ claim on the accidents issue has been

foreclosed by previous decision in this court. It is well set-

tled that, because of the extreme improbability of their oc-

currence, the NRC need not consider the environmental ef-

fects of so-called ‘‘Class 9” accidents. Carolina En-

vironmental Study Group v. United States, 510 F.2d 796,

798-800 (D.C. Cir. 1975). It is true that Carolina was

decided prior to the publication in final draft.of the Reactor

Safety Study, WASH-1400 (1975), that found a probability

of Class 9 accidents significantly greater than had been in-

dicated by the previous study, WASH-740 (1957). Carolina,

however, has been reaffirmed by decisions of this court sub-

sequent to the publication of the 1975 study. Lloyd Harbor

Study Group, Inc. v. NRC, No. 73-2266 (D.C. Cir., Nov. 29,

1978); Aeschliman v. NRC, 547 F.2d 622, 632 n.21 (D.C.

Cir. 1976), rev'd on other grounds sub nom. Vermont

Yankee Nuclear Power Corp., v. NRDC, 435 U.S. 519

(1978). These decisions accord with the reasoned and con-

sistent view of the NRC. Long Island Lighting Co.

(Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831

(1973).

On remand from a previous decision of the Appeal

Board, ALAB-355, 3 NRC 830 (June 20, 1976), the NRC’s

staff conducted an investigation of six actual alternative

sites, including Hutchinson Island. The Appeal Board con-

cluded that this analysis gave adequate consideration to

possible alternative sites. Florida Light and Power Co. (St.

Lucie Nuclear Power Project, Unit No. 2), 5 NRC 1038,

1050 (1977). We affirm this conclusion, finding it supported

by substantial evidence in the record taken as a whole. See

Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).

Sa

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1709 September Term, 1976

Martin Harold Hodder, et al.,

Petitioners

V.

U.S. Nuclear Regulatory Commission

and United States of America,

Respondents

Florida Power & Light Company

Intervenor

Before: Wright and McGowan, Circuit Judges

ORDER

On consideration of petitioners’ motion for summary

reversal and injunctive or other relief, and of the op-

positions thereto, it is

ORDERED by the Court that the aforesaid motion for

summary reversal is denied, and, it is

FURTHER ORDERED by the Court that any Limited

Work Authorizations authorized pursuant to the Partial

Initial Decision which is the subject of review in this case, is

stayed in light of the Atomic Safety and Licensing Appeal

Board’s decision that alternative sites were not adequately

considered by the Atomic Safety and Licensing Board.*

This order is without prejudice to further proceedings

*We agree with the concerns expressed in Mr. Salzman’s dissent and

find it anomalous that construction can be taking place at one site

while the Atomic Satety and Licensing Board has been directed by the

Appeals Board to hold further proceedings concerning alternative sites.

6a

before this court concerning the continuance of this stay

once the remanded proceedings are concluded, and, it is

FURTHER ORDERED by the Court that the appeal in

this case be held in abeyance pending the completion of the

proceedings before the Atomic Safety and Licensing Board

concerning alternative sites.

Per Curiam

United States Court of Appeals

for the District of Columbia Circuit

FILED OCT 21 1976

GEORGE A. FISHER

Clerk

7a

APPENDIX D

NATIONAL ENVIRONMENTAL POLICY ACT

OF 1969

Public Law 91-190, Approved January 1, 1970

Purpose

Sec. 2. The purposes of this Act are: To declare a national policy which

will encourage productive and enjovable harmoay between man and his

environment; to promote efforts which will prevent or eliminate damage

to the environment and biosphere and stimulate the health and welfare

of man; to enrich the understanding of the ecological systems and

natural resources important to the Nation: and to establish a Council

on Environmental Quality.

Title 1

Declaration of National

Environmental Peliey

See: 101. (a) The Congress, recognizing the profound impact of man’s

activity on the interrelations of all components of the nutural environ-

ment, particularly the profound influences of population growth, high-

density urbanization, industrial expansion, resouce exploitation, and

new and expanding technological advances and recognizing further the

critical importance of restoring and maintaining environmental quality

to overall welfare and developmeat of man, declares that is is the contin-

uing policy of the Federal Government, in cooperation with State and

local governments, and other concerned public and private organiza-

tions, to use all practicable means and meusures, including financial and

technical assistance, in a manner calculated to foster and promote the

general welfare, to create and maintain conditions under which man and

nattire Cun evist in productive harmony, and fulfill the social, economic,

und other requirements of present and future generations of Americans.

(o) In order to carry out the policy set forth in this Act, itis the contin-

ume responsibility. of the Federal Government to use all practicable

means, Consistent with other essential considerations of national policy,

to improve and coordinate Federal plans. functions, programs, and re-

sources to the end that the Nation may

(1) fulhll the responsibilities of each generation as trustee of the

environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, aad esthet-

ically and culturally pleasing surroundiags:

(3) attain the widest range of beneficial uses of the environment

without degradation. risk to health or safety, or other undesirable and

unintended consequences:

(4) preserve rnportant historic, cultural, and natural aspects of our

national hertiave. und maintain, wherever possible, an environment

which supports diversity and variety of individual choice:

(3) achteve a balance betecen population and resource use which

will permit high standards of living end a wide sharing of life's amen-

ities; and

8a

(6) enhance the quality of renewable resources and approuch the

maniniunattunable cecycling of depletabdle resources.

(2) The Congress recognizes that cach person should enjoy a healthful

environment and that each person has a responsibility to contribute to

the preservation and enhancement of the environment.

See. 102) Phe Congress authorizes and directs that, to the fullest extent

possible: (1) the policies, reguladons, and public laws of the Untied States

Shall he interpreted and administered in accordance with the policies set

forth in this Act, and (2) all agencies of the Federal Government shall

(A) utilize a systematic, interdiseiphaary approach which will tasure

the integrated use of the natural and social sciences and the environ-

mental design arts in planning and in decistonmating which may have

unimpacton man’s environment,

(By) udentity and develop methods and procedures, tn consultation

this Act. which will insure that piesently unquantificd caviroament

umenties and values may be viven appropriate consideration in deei-

sionmaking along with economic and technical considerations:

(C) include in every ‘recommendation or report on proposals for

lertstation and other major Federal actions significantly alfecting the

guabts of the human cavironment, a detuled statement by the re-

sponsible otlicial on

(i) the environmental impact of the proposed action,

(ii) any adverse environmental etfects which cannot be avoided

should the proposal be implemented,

(ut) aliernatives to the proposed action,

(iv) the relationship between local short-term uses of man’s en-

vironment and the maintenance and enhancement of long-term

productivity, and

(v) any irreversible and irretrievable commiiments of resources

which would be involved in the proposed tction should it be iniple-

mented.

Prior to makiny any detailed statement. the responsible Federal official

Shail consult with aid obtain the comments of any Federal agency hich

has jurtsaiction by law or special capertise with respect lo ony environ-

meatal Lapact tavolved. Copies of such statement aad tie comments and

Views of the appropriate Federal, State, and leeal vecncies, which are

authorized to develop and enforce environmental standards. shall be

made availibic tu the President, the Council on Environ mental Quality

and to the public as provided by section $32 of title 8. United States

Code. aad shall accompany the proposal through the existing agency re

VIS PLOCEL ses:

(D) study, develop, and describe appropriaic alternatives to roeom-

mended courses of action in any proposal winch involves unresolved coa-

flicts concerning alternative uses of availble resources:

(E) recountize the worldwide and leng-raove character of environ.

mental nrobleims and, where censistent with the foretan pobeow of the

Unticd States. fend appropriate support te iamtiatives, cesobitions, and

provrams destvaed to maximize interm@ational cooperated mo antici

pating and preventing a decline in the quality of maaXind’s world en-

Sironment,

9a

(Fy make available to States, counties. municipalities. institutions,

and individuals, advice and information o-cful in restoriag. moratuning,

and enhancing the quality of the eaviroias: ont:

(Go) diiteate and utilize ecutogical taitermation ia the phinning and

Voy Sooepment of resource-ortented projects: 2nd

(EE) assist the Couacil on Bovironmeatul Quality established by tithe HH

ofthis Not.

Sec. 193. All avencies of the Pederal Government shall rosicw Uicir

present statutory authority, administrative regulations, and current poli-

cies and procedures for the purpose of determining whether there are any

deficteacies of meonsistencies therein which prohibit: tull comptiance

with the purposes and provisions ‘of this Act and shall propose to the

President not later than July 1, 1971. such measures as may be aceessury

to bring their authority and policies into conformity with the intent,

purposes. and procedures set fourth in this Act.

Sec. 104 Nothing in Section 102 or 103 shall in any way affect the

specific statutory oblivations of anv Federal veency (1) to comply with

criteria or standards of cavironmental quality. (2) to Courdiaute of con-

sult with ony other Federal or State agenes. or (3) to act. or refrain from

acting CeAtinecnat upon the recommen Aitions of cortifteation of is vther

}ederal or State agency

Sec. 195. The poltcres and voals set forth in this Act are supplemen-

turv to those set forth in existing authorizations of Federal avencies.

re

* * *

FEDERAL ADMINISTRATIVE PROCEDURE ACT

60 Stat. 237 (1946), as amended by 80 Stat. 378

(1966), 81 Stat. 54 (1967), 88 Stat. 1561 (1974)

TITLE 5 — UNITED STATES CODE

Chapter 5 — Administrative Procedure

Subchapter Il — Administrative Procedure

Sec.

551. Definitions.

553. Rule making.

10a

§551. Definitions

For the purpose of this subchapter —

(1) “‘agency’’ means each authority of the Government of

the United States, whether or not it is within or subject to

review by another agency, but does not include —

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions of

the United States;

(D) the government of the District of Columbia; or ex-

cept as to the requirements of section 552 of this title —

(E) agencies composed of representatives of the parties

or of representatives of organizations of the parties to the

disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of

war or in occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743,

and 1744 of title 12; chapter 2 of title 41; or sections

1622, 1884, 1891-1902, and former section 1641(b) (2), of

title S50, appendix;

(2) ‘“‘person’’ includes an individual, partnership, cor-

poration, association, or public or private organization

other than an agency;

(3) “party” includes a person or agency named or ad-

mitted as a party, or property seeking and entitled as of

right to be admitted as a party, in an agency proceeding;

and a person or agency admitted by an agency as a party for

limited purposes;

(4) “rule” means the whole or a part of an agency

statement of general or particular applicability and future

effect designed to implement, interpret, or prescribe law or

policy or describing the organization, procedure, or prac-

tice requirements of an agency and includes the approval or

prescription for the future of rates, wages, corporate or

financial structures or reorganization thereof, prices,

facilities, appliances, services or allowances therefor or of

lla

valuations, costs, or accounting, or practices bearing on any

of the foregoing;

(S) ‘‘rule making’’ means agency process for for-

mulating, amending, or repealing a rule;

(6) “‘order’’ means the whole or a part of a final

disposition, whether affirmative, negative, injunctive, or

declaratory in form, of an agency in a matter other than

rule making but including licensing;

(7) ‘‘adjudication’’ means agency process for the for-

mulation of an order;

(8) ‘‘license’’ includes the whole or a part of an agency

permit, certificate, approval, registration, charter, mem-

bership, statutory exemption or other form of permission;

(9) “‘licensing” includes agency process respecting the

grant, renewal, denial, revocation, suspension, annulment,

withdrawal, limitation, amendment, modification, or con-

ditioning of a license;

(10) ‘‘sanction”’ includes the whole or a part of an agency

(A) prohibition, requirement, limitation, or other con-

dition affecting the freedom of a person;

(B) withhholding of relief;

(C) imposition of penalty or fine;

(D) destruction, taking, seizure, or withholding of

property;

(E) assessment of damages, reimbursement,

restitution, compensation, costs, charges, or fees;

(F) requirement, revocation, or suspension of a license;

or

(G) taking other compulsory or restrictive action;

(11) ‘‘relief’’ includes the whole or a part of an agency —

(A) grant of money, assistance, license, authority;

exemption, exception, privilege, or remedy;

(B) recognition of a claim, right, immunity, privilege,

exemption, or exception; or

(C) taking of other action on the 1 soaenoay or

petition of, and beneficial to, a person;

12a

(12) ‘‘agency proceeding’ means an agency process as

defined by paragraphs (5), (7), and (9) of this section; and

(13) ‘‘agency action”’ includes the whole or a part of an

agency rule, order, license, sanction, relief, or the

equivalent or denial thereof, or failure to act.

* * *

§553. Rule making }

(a) This section applies, accordingly to the provisions

thereof, except to the exteuit that there is involved —

(1) a military or foreign affairs function of the United

States; or

(2) a matter relating to agency man agement or personnel

or to public property, loans, grants, benefits, or contracts.

(b) General notice of proposed rule making shall be

published in the Federal Register, unless persons subject

thereto are named and either personally served or otherwise

have actual notice thereof in accordance with law. The

notice shall include —

(1) a statement of the time, place, and nature of public

rule making proceedings;

(2) reference to the legal authority under which the rule is

proposed; and

(3) either the terms or substance of the proposed rule or a

description of the subjects and issues involved.

Except when notice or hearing is required by statute, this

subsection does not apply —

(A) to interpretative rules, general statements of

policy, or rules of agency organization, procedure, or

practice; or

(B) when the agency for good cause finds (and in-

corporates the finding and a brief statement of reasons

therefor in the rules issued) that notice and public

procedure thereon are impracticable, unnecessary, or

contrary to the public interest.

(c) After notice required by this section, the agency shall

give interested persons an opportunity to participate in the

l3a

rule making through submission of written data, views, or

arguments with or without opportunity for oral presen-

tation. After consideration of the relevant matter presen-

ted, the agency shall incorporat? in the rules adopted a con-

cise general statement of their basis and purpose. When

rules are required by statute to be made on the record after

opportunity for an agency hearing, sections 556 and 557 of

this title apply instead of this subsection.

(d) The required publication or service of a substantive

rule shall be made not less than 30 days before its effective

date, except —

(1) a substantive rule which grants or recognizes an

exemption or relieves a restriction;

(2) interpretative rules and statenents of policy; or

(3) as otherwise provided by the agency for good cause

found and published with the rule.

(e) Each agency shall give an interested person the right

to petition for the issuance, amendment, or repeal of a rule.

* * *

Chapter 7 — Judicial Review

Sec.

701. Application; definitions.

702. Right of review.

* * *

704. Actions reviewable.

* * *

706. Scope of review.

§701. Application; definitions

(a) This chapter applies, according to the provisions

thereof, except to the extent that —

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by

law.

(b) For the purpose of this chapter —

(1) ‘‘agency’’ means each authority of the Government

14a

of the United States, whether or not it is within or subject to

review by another agency, but does not include —

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions of

the United States;

(D) the government of the District of Columbia;

(E) agencies composed of representatives of the parties

or of representatives of organizations of the parties to the

disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of

war or in occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743,

and 1744 of title 12; chapter 2 of title 41; or sections

1622, 1884, 1891-1902, and former section 1641(b)(2), of

title 50, appendix; and

(2) ‘person’, “‘rule’’, ‘‘order’’, “‘license”’, ‘‘sanction’’,

“relief’, and “‘agency action’’ have the meanings given

them by section 551 of this title.

§702. Right of review

A person suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action within

the meaning of a relevant statute, is entitled to judicial

review thereof.

2 *

§704. Actions reviewable

Agency action made reviewable by statute and final agen-

cy action for which their is no other adequate remedy in a

court are subject to judicial review. A preliminary,

procedural, or intermediate agency action or ruling not

directly reviewable is subject to review on the review of the

final agency action. Except as otherwise expressly required

by statute, agency action otherwise final is final for the pur-

poses of this section whether or not there has been presen-

ted or determined an application for a declaratory order,

15a

for any form of reconsideration, or, unless the agency other-

wise requires by rule and provides that the action mean-

while is inoperative, for an appeal to superior agency

authority.

$706. Scope of review

To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions of

law, interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an

agency action. The reviewing court shall —

(1) compel agency action unlawfully withheld or

unreasonable delayed; and

(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;

(B) contrary to constitutional right, power, privilege,

or immunity;

(C) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case sub-

ject to section 556 and 557 of this title or otherwise

reviewed on the record of an agency hearing provided by

statute; or

(F) unwarranted by the facts to the extent that the

facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a party,

and due account shall be taken of the rule of prejudicial

error.