Opposition — Hodder v. United States Nuclear Regulatory Commission

“" Supreme Court, U.% ~

FILED

MAY 25 1979

.

MICHAEL RODAK, JR., CLERK

IN ‘THE

Supreme Court of the United States

OcroBeR TrERrM, 1978

No. 78-1652

Martin Harotp Hopper, Rowena E. Roperrs,

KeVIN DoNovAN, LorrerraA DONOVAN,

K. GARDNER PRIME, VALERIE PRIME,

NATHANIEL Eric Hopper,

Petitioners,

Vv.

Unrrep Staves NuCLEAR REGULATORY COMMISSION

and UNITED STATES OF AMERICA,

Respondents,

and

Frorma Power & Light ComMPaANy,

Intervenor-Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR FLORIDA

POWER & LIGHT COMPANY

IN OPPOSITION

Hlarotp EF. Reis

Of Counsel: 1025 Connecticut Ave., N.W.

. : £ shing ¢ IC POOBE

Sreet, Hector & Davis Washington, D(

Southeast First National NorMan A, Coun

Bank Building Southeast First National

Miami, FL 33131 Bank Building

: Miami, FL 33131

LOWENSTEIN, NEWMAN, Reis,

AXELRAD & TOLL Attorneys for Intervenor-

1025 Copnecticut Ave., N.W. Respondent

Washington, DC 20036

BIR EES EI Ses Pe ARR Se ae ete aOR a Oa

Preee oF Byron S. ADAMS PRINTING, INC., WASttINCTON, D.C.

TABLE OF CONTENTS

Page

Tape OF AVUMOMTIE 66 cue Ske saeaeecsiaseeeres i

Gureriod PRONE... .vcdeo 5 Kev insiesrsdees POPE 1

OE NAMNG 6 ax ines Vie Sp. cg enh ae Dan OT eNaE EER EDO 2

pi) ere? Prer erry err reer rt eer r 8

CONCKAIIIUNE isk bcnds vad ve Canean rhea 13

TABLE OF AUTHORITIES

CASES:

Adickes v. S. H. Kress and Company, 398 U.S. 144

CAOTR? «ox Dac concpaiet aetna kamera e lee eran 12

Aeschliman v. Nuclear Regulatory Commission, 547

F 20 622 {D.. ©. TG aa hc ba veatoerieness 9

Carolina Environmental Study Group v. United States,

BO: F.2d 700 CE AT, Bre sc coke ns Semans 9, 10

Columbia Broadcasting System, Inc. v. United States,

S26 UE. Ge TAGE 6 ov cs ipeiekceoveeasaeceaens 12

Environmental Defense I'und vy. Corps of Engineers,

348 F. Supp. 916 (N. D. Miss. 1972), aff'd, 492

Pi2e 1120 (OG SA BOO vee eke eee 6

Hodder v. Nuclear Regulatory Commission, Nos. 76-

_ 1709 and 78-1149 (D. C. Cir. December 26,1978) .. 8

Lloyd Harbor Study Group v. Atomic Energy Commis-

sion (D. C. Cir. No. 73-2266, November 11,1976) . 9

National Labor Relations Board v. Wyman-Gordon

Company, 394 U.S. 759 (1969) ............eeeee 12

Natural Resources Defense Council, Inc. v. Morton,

456 F.20 Gar (2. ©. Cae Brad, bck hides cacceson 6

Pacific Gas & Electric Company v. Federal Power Com-

mission, 506 F.2d 33 (D. C. Cir. 1974) .......... 12

Porter County Chapter of the Izaak Walton League

v. Atomic Energy Commission, 533 F.2d 1011 (7th

Cir.), cert. denied, 429 U.S. 945 (1976) .......... 9

Securities and Exchange Commission v. Chenery Corp.,

SS Us SO REDO D obi ck conver keckousebeekirs 12

Vermont Yankee Nuclear Power Corp. v. Natural Re-

sources Defense Council, 435 U.S. 519 (1978). .10, 11, 12

ii Table of Authorities Continued

Page

Atomic Enercy ComMMISSION AND NUCLEAR REGULATORY

Commission Apsubicatory DEcISsIONS:

Commonwealth Edison Co. (Zion Station, Units 1 and

2), ALAB-226, 8 AEC GGL (1074) on esc ccaccccs 5

Consumer Power Co. (Midland Plant, Units 1 and 2),

ALAB-123, 6 AEC 331 (19738), aff’d with respect to

the Class 9 issue sub nom. Aeschliman vy. Nuclear

Regulatory Commission, 547 F.2d 622 (D. C. Cir.

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

Yankee Nuclear Power Corporation v. Natural Re-

sources Defense Council, 485 U.S. 519 (1978) .... 4,5

Duke Power Co. (Catawba Nuclear Station, Units 1

and 2), ALAB-355, 4 NRC 397 (1976) ......... 5

Duke Power Co., (William B. MeGuire Nuclear Sta-

tion, Units 1 and 2), ALAB-128, 6 AIC 399 (1973),

aff'd sub nom. Carolina Environmental Study

Group v. United States, 510 F.2d 796 (D. C. Cir.

TOTS) aac sv ui'n.neys pan ess aedues ba eeeeasawes 5

Florida Power & Light Co. (St. Lucie Nuclear Power

Plant, Unit No. 2), ALAB-335, 3 NRC 830 (1976). 8

Long Island Lighting Co. (Shoreham Nuclear Power

Station), ALAB-156, 6 AEC 831 (1973), aff'd by

unpublished order sub nom. Lloyd Harbor Study

Group v. Atomic Energy Commission (D. C. Cir.

No. 73-2266, November 11, 1976), vacated on other

(I ok. Ree 5, 6, 7,9

Offshore Power Systems (Floating Nuclear Power

Plants), ALAB-489, 8 NRC 194 (August 21, 1978) 13

Offshore Power Systems (Floating Nuclear Power

Plants), ALAB-500, 8 NRC 323 (September 29,

BUCED soe icaes cn snn enue ker ia eveseseee bases 13

Wisconsin Electric Power Co. et al. (Point Beach Nu-

clear Plant, Unit 2), ALAB-137, 6 AEC 491 (1973) 5

Table of Authorities Continued ili

Page

STATUTES:

Administrative Procedure Act, 5 U.S.C. §553(b)(A) .. 11

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

Pe OE No vb da eee RbeeeNeses sxbanes 2, 3, 6, 9, 13

Title II of the Energy Reorganization Act of 1974, 42

aes EE UU Fie chek bye adda Oe Oe wee 2

REGULATIONS AND NOTICES:

10 CFR Part 50, Appendix D ........ oeeeeseedennee 3,5

Be RA Ne bo hash 00 'b 3 6a aan 4 a FRVORED RES 3

Dp SED RRL, csi Pek dev eseTnersded Exuanees 10

OP i ee SED bio ner cverkes sek peues saGeaes 10

36 Fed. Reg. 22,851-54 (December 1, 1971) .......... 3

39 Fed. Reg. 26,279 (July 18, 1974) ...........0000- 3

43 Fed. Reg. 55,978, 55,996, 56,004 (November 29,

|) eee ae err een ee ete ern eee te Seon 10

44 Fed. Reg. 19,262 (April 2, 1979) ......ccccsccvees 11

MISCELLANEOUS:

Exec. Order No. 12,130, 44 Fed. Reg. 22,027 (April 13,

BETO os oh kes cd REWER CERE SEARS CRUNK eee eI Cas 11

United States Atomic Energy Commission, WASH-

1250, THe Sarety or Nucutear Power Reactors

(Light Water CooLtep) anp Retatep FacI.ities,

COURS TVRs Wh ee oo-< Vinince sso weeencget se eee eis 2

United States Department of Justice, ArrorNry Gen-

ERAL’S MANUAL ON THE ADMINISTRATIVE PROCEDURE

GE ARETE aso Riace ees CRS hae eeekes wae Les 11

United States House of Representatives, News Release

(SEG GO UPeOy cs setvncakisecreeeaveces +uevnee 11

IN THE

Supreme Court of the United States

OcTroBER 'TEKM, 1978

No. 78-1652

Martin Harotp Hopper, Rowena E. Roserts,

Kevin Donovan, LorrRETTA DONOVAN,

EK. GARDNER PRIME, VALERIE PRIME,

NATHANIEL Eric Hopper,

Petitioners,

v.

United States NUCLEAR REGULATORY COMMISSION

and UNITED STATES OF AMERICA,

Respondents,

and

Firorma Power & Licht CoMPANY,

' Intervenor-Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR FLORIDA

POWER & LIGHT COMPANY

IN OPPOSITION

QUESTION PRESENTED

The Nuclear Regulatory Commission considered the

probability of certain types of accidents to be remote

and did not require the environmental consequences

2

of such accidents to be considered in a nuclear power

plant construction permit proceeding in the absence

of a showing of sufficient probability to warrant con-

sideration. Intervenors opposing the grant of a con-

struction permit made no effort to make such a show-

ing. The question presented is whether the Commis-

sion was, nevertheless, required by the National En-

vironmental Policy Act to undertake an analysis of

the environmental consequences of such an accident.

STATEMENT

One of the concepts used by the Nuclear Regulatory

Commission (‘‘Commission”’ or ‘‘NRC’’)? in its efforts

to assure the safety of nuclear power reactors is the

‘‘design basis’’ accident. The Commission requires that

any reactor for which a construction permit is sought

must be designed and tested against its ability to con-

tain severe hypothetical accidents involving postulated

failures of various protective systems simultaneously

with the occurrence of the postulated accidents the sys-

tems are intended to control. The sequences selected for

this purpose are called ‘design basis aecidents.’’ * The

Commission used this concept in 1971 to help resolve a

question posed by the enactment of NEPA:* What

'**Commission’’ is used to refer to either the Atomic Energy

Commission or the Nuclear Regulatory Commission as the context

requires. The AEC’s responsibilities for regulating nuclear energy

were conferred upon the NRC on January 19, 1975, by virtue of

Title Il of the Energy Reorganization Act of 1974, 42 U.S.C.

§ 5841 et. seq.

* United States Atomie Energy Commission, WASH-1250, Tue

Sarety oF NucLeEAR Power Reactors (LIGHT WATER COOLED) AND

ReLaTep Faci.ities, p. 2-5 (July, 1973).

* National Environmental Policy Act, 42 U.S.C. § 4321 et. seq.

3

types of accidents should be considered to evaluate the

environmental risks or costs associated with the licens-

ing of reactors?

The phrase ‘'Class 9 aecident” stems from the Com-

mission’s response to this question. In 1971 it proposed

an Annex—an addition to the Commission’s regula-

tions implementing NEPA.‘ The Annex designated

classes of accidents according to the likelihood of the

occurrence of each class and the consequences of the

accident. The ‘‘environmental consequences’’ of each

class of accident, other than Class 1 and Class 9, were

required to be discussed in the Environmental Report

filed by each applicant for a construction permit or

operating license.° Class 1 accidents were excluded “‘be-

cause of their trivial consequences.’’ * Class 9 accidents

were excluded for the following reasons:

The occurrences in Class 9 involve sequences of

postulated suceessive failures more severe than

those postulated for the design basis for protective

systems and engineered safety features. Their con-

sequences could be severe. However, the probability

of their occurrence is so small that their environ-

mental risk is extremely low. Defense in depth

*36 Fed. Reg. 22,851-54 (December 1, 1971) [hereinafter, An-

nex]. At that time the Commission’s NEPA regulations were

contained in Appendix D to 10 CFR Part 50. In 1974 the Com-

mission transferred its NEPA regulations to 10 CFR Part 51;

but left the Annex unchanged. 39 Fed. Reg. 26,279 (July 18,

1974). The Annex is also reproduced in the ‘‘Separate Appendix’’

to the instant Petition for a Writ of Certiorari [hereinafter, Sep-

arate Appendix], pp. 146b-62b.

° The provisions of the Annex were also applicable to the Draft

and Final Environmental Statement prepared by the Commission

pursuant to NEPA. Separate Appendix, p. 148b n.1.

* Separate Appendix, p. 149b.

+

(multiple physical barriers), quality assurance for

design, manufacture, and operation, continued sur-

veillance and testing, and conservative design are

all applied to provide and maintain the required

high degree of assurance that potential accidents

in this class are, and will remain, sufficiently re-

mote in probability that the environmental risk is

extremely low.’

This classification was not, however, exclusive and did

not preclude the use of other accident assumptions

demonstrated to be more appropriate. The Annex ex-

pressly stated that applicants:

...may substitute other accident class breakdowns

and alternative values of radioactive material re-

leases and analytical assumptions, if such substitu-

tion is justified in the Environmental Report."

The Annex was issued and continues as a proposed

regulation, the Commission having stated that it ‘‘ex-

pects that the provisions of the proposed amendments

will be useful as interim guidance until such time as

the Commission takes further action on them.’’*

The Commission’s licensing boards have consistently

utilized the guidance contained in the Annex, and the

decisions of these boards have uniformly been upheld

on judicial review. Consumers Power Co, (Midland

Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 345-48

(1973), aff’d with repsect to the Class 9 issue sub nom.

Aeschliman v. Nuclear Regulatory Commission, 547

F.2d 622, 632 n. 21 (D.C. Cir. 1976), rev’d on other

* Separate Appendix, pp. 149b-50b.

* Separate Appendix, p. 150b.

* Separate Appendix, p. 146b.

4)

grounds sub nom. Vermont Yankee Nuclear Power

Corporation v. Natural Resources Defense Council, 435

U.S. 519 (1978); Duke Power Co. (William B. Me-

Guire Nuclear Station, Units 1 and 2), ALAB-128, 6

AEC 399 (1973), aff’d sub nom. Carolina Environ-

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

(D.C, Cir. 1975) ; Wisconsin Electric Power Co., et al.

(Point Beach Nueciear Plant, Unit 2), ALAB-137, 6

AEC 491, 502 (1973); Long Island Lighting Co.

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

AEC 831, 833-36 (1973), aff'd by unpublished order

sub nom. Lloyd Harbor Study Group v. Atomic Energy

Commission (D.C. Circuit No. 73-2266, November 11,

1976), vacated on other grounds sub nom. Long Island

Lighting Company v. Lloyd Harbor Study Group, 435

U.S. 964 (1978) ; Commonwealth Edison Co. (Zion Sta-

tion, Units 1 and 2), ALAB-226, 8 AEC 381, 407

(1974); Duke Power Co. (Catawba Nuclear Station,

Units 1 and 2), ALAB-355, 4 NRC 397, 415-16 (1976).

In the Shoreham proceeding the Commission’s Ap-

peal Board explicitly stated that neither the Annex

nor any other Commission issuance precluded a con-

sideration of the environmental consequences of par-

ticular accidents. The Appeal Board said:

2. In our Midland and Point Beach 2 decisions

(ALAB-123 and ALAB-137, respectively, supra),

we discussed the manner in which the proposed

Annex to 10 CFR Part 50, Appendix D, was to be

applied in a particular proceeding. First, we

pointed out that while the regulation had not been

issued in final form, the Commission had author-

ized its use as an interim guideline. Secondly, we

emphasized that the guideline did not close the

door to consideration of Class 9 accidents. Rather,

while contemplating treatment of those accidents

6

in the manner prescribed therein (7.e., as having

such a low probability that the environmental risk

is insignificant), it did not preclude a party from

demonstrating that other assumptions were more

appropriate.”

The Appeal Board, relying upon the ‘‘rule of reason”

which governs the proper scope of inquiry required

under NEPA, held that the consequences of unlikely

events need not be explored." It concluded:

That deseription fits the Class 9 aecident. In the

absence of a showing that, with respect to the re-

actor in question, there is a reasonable possibility

of the occurrence of a particular type of accident

generically regarded as being in Class 9, NEPA

does not require a discussion of that type of acci-

dent. It does not require an impact statement or a

licensing board to exhaust all theoretical possibili-

ties, whether or not they have been identified by a

party."

The Licensing Board deliberately followed the Shore-

ham precedent in the instant proceeding. On June

5, 1974, while prehearing procedures were being con-

ducted, the opposing Intervenors (Petitioners here)

transmitted to the Licensing Board a ‘‘proposed re-

fined statement of matters in controversy,” contending,

among other things, that Florida Power & Light Com-

pany (FPL), the applicant for the construction permit,

had failed ‘‘to consider Class 9 accidents as part of

6 AEC at 835 (footnote omitted).

“The Appeal Board cited Natural Resources Defense Council v.

Morton, 458 F.2d 827 (D.C. Cir. 1972) and Environmental De-

fense Fund vy. Corps of Engineers, 348 F. Supp. 916 (N. D. Miss.

1972), aff'd, 492 F.2d 1123 (5th Cir. 1974).

26 AEC at 836.

7

their design basis.’? On June 18, 1974, FPL filed its

comments on the refined statement. It objected to the

contention on the grounds that, among others, the Com-

mission’s regulations did not require plants to be

designed to withstand the consequences of a Class 9 ae-

cident, and that no attempt had been made to meet the

Shoreham test of a ‘‘reasonable possibility of the oe-

currence of a particular type of accident generically

regarded as being in Class 9... .’’ (R. 6836, 6843) *

Thereafter, on June 25, 1974, the Commission Staff

and the Intervenors in the agency proceeding filed a

‘Stipulation and Joint Motion’’ containing a joint

statement of the issues those parties thought properly

to be in controversy. The document also deseribed is-

sues the Intervenors wished considered, but which the

Staff thought should not be litigated. These latter

issues included Class 9 aecidents, but no specifie type

of Class 9 accident was described. The document there-

fore expressed the Staff’s view that the issue should

not be litigated because there had been ‘‘no showing of

reasonable possibility’? of a Class 9 accident at St.

Lucie 2, as required by the Shoreham decision. (R.

6948) Florida Power & Light Company concurred in

that view." In spite of these repeated reminders of the

need to refer to a specific type of accident, Intervenors

never attempted to make such a showing. Instead, they

replied that:

... having read the Shoreham decision [they] re-

spectfully take exception to that holding in that

"<"R, —’’ refers to the administrative record underlying the

Commission decision which is the subject of the instant petition.

***Response of Applicant to Stipulation and Joint Motion,’’

dated June 28, 1974, p. 15. (R. 6966)

“

8

the argument supporting the decision does not

logically uphold the result.”

Consequently, in its ‘‘ Prehearing Conference Order

# 3,’’ dated July 12, 1974, the Licensing Board ruled

as follows:

As to statement on Contention 1.7 (page 12, Joint

Motion) Board agrees that there has been no show-

ing of a reasonable possibility of class 9 accident

at St. Lucie and therefore an issue relating to a

class 9 accident is denied."

The petitioners here excepted to this ruling (R.

19335), but the Commission’s Appeal Board upheld it,

Florida Power & Light Company (St. Lucie Nuclear

Power Plant, Unit No. 2), ALAB-335, 3 NRC 830, 841

n. 24 (1976), as did the Court of Appeals below.

Hodder v. Nuclear Regulatory Commission, Nos. 76-

1709, 78-1149 (D.C. Cir. December 26, 1978)."

ARGUMENT

The foregoing establishes that, for clearly stated rea-

sons," the Commission adopted as ‘‘interim guidance”

the view that Class 9 accidents were ‘‘sufficiently low in

probability’? that their consequences need not ordi-

' “Tntervenors Response to Applicant’s Response to Stipulation

and Joint Motion,’’ dated July 5, 1974, p. 7. (R. 6985)

® Separate Appendix, pp. 8b-9b.

‘7 Separate Appendix, p. S8b.

'S See, Petition, p. 4a.

1° Chiefly, these reasons are ‘‘[d]efense in depth (multiple phy-

sical barriers), quality assurance for design, manufacture, and

operation, continued surveillance and testing, and conservative

design. . . .’’ Separate Appendix, p. 150b.

9

narily be addressed in applicants’ environmental re-

ports or in the ageney’s environmental statements.

However, the Annex clearly permits, and has been in-

terpreted by the Commission’s Appeal Board as per-

mitting, consideration of any particular type of Class

9 accident in the NEPA context if a showing is made

that there is a reasonable probability of one occurring

with respect to a particular proposed reactor. This ap-

proach was followed in the instant proceeding. No

showing relative to Class 9 accidents was ever prof-

fered by the petitioners here. Instead, the petitioners

restricted themselves to the legal argument that, ‘‘hav-

ing read the Shoreham decision [they] respectfully

take exception to that holding.’’* Because the peti-

tioners never attempted to make the required showing,

there is no record before this Court on which to make

a determination as to any alleged error in this particu-

lar licensing proceeding.

There is no conflict of circuits here presented. To

the contrary, each time the courts have ruled on this

issue they have upheld the Commission. Carolina En-

vironmental Study Group v. United States, supra;

Lloyd Harbor Study Group v. AEC, supra; Aeschliman

v. NRC, supra; Porter County Chapter of the Izaak

Walton League v. AEC, 533 F.2d 1011, 1017 (7th Cir.),

cert, denied, 429 U.S. 945 (1976).

Nor is there any important question of Federal law

presented. The agency’s practice of not considering the

environmental consequences of Class 9 accidents ex-

2° For this reason the Petition distorts the situation when it states

(p. 9): ‘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.’’

10

cept when the suggestion is made that some such acci-

dent is not in faet remote, is but a special application

of the ‘‘rule of reason.’? This view was expressed by

the Court in Carolina Environmental Study Group

when it stated that consideration is not required of

events deemed to be of low probability on the basis of

“educated predictions rather than certainties.”’ 510

F.2d at 799. This Court, too, has said that ‘‘every al-

ternative device and thought conceivable by the mind

of man” need not be considered. Vermont Yankee Nu-

clear Power Corp. Vv. NRDC, 435 U.S. 519, 551 (1978).

That view is also incorporated in the recently issued

regulations of the Council on Environmental Quality

which require discussion in environmental impact state-

ments only of effects which are ‘‘reasonably foresee-

able.’ 40 CFR §§ 1502.16(b), 1508.8(b), 48 Fed. Reg.

55,978, 55,996, 56,004 (November 29, 1978).

This is not, as petitioners assert (Petition, p. 17),

‘fa ease in which the Commission has refused to con-

sider a class of major nuclear accidents in either rule-

making or licensing proceedings.’’ It 1s a ease ni Which

the ageney in fact considered the consequences of acei-

dents it thought credible and, in addition, was willing

to consider others upon a showing of a reasonable pos-

sibility that they could occur, In this respeet the Com-

mission’s approach was fully consistent with Vermont

Yankee. Class 9 encompasses the unlimited universe of

all unconsidered accident sequences (other than Class

1). Therefore, like ‘‘energy conservation,’’ Class 9 has

a “deeeptively simple ring’? but actually ‘‘suggests a

virtually limitless range of possible actions and devel-

opments .. .’’ 435 U.S. at 552. In such circumstances,

it is wholly within the agency’s discretion to require

intervenors to make at least some minimal showing

1]

‘sufficient to require reasonable minds to inquire fur-

ther.’’ Id. at 554. Indeed, no less is required of them if

intervenors are “to structure their participation so

that it is meaningful, so that it alerts the agency to

intervenors’ position and contentions.’ Jd. at 553. Peti-

tioners here were never denied the opportunity to make

such a showing. To the contrary, they simply refused to

do so.”

The petition argues (p. 14 n. 20) that the Commission

has, in the form of ‘interim guidance,”’ adopted a rule

without following the procedures for rulemaking re-

quired by the Administrative Procedure Act. In fact,

this guidance did not create a rule of law by the Com-

mission and is expressly exempted from the procedural

requirements governing legislative rulemaking under

the Administrative Procedure Act. 5 U.S.C. § 553(b)

(A). See also, United States Department of Justice,

ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE

"! The Petition makes repeated reference (pp. 4, 8, 16) to reeent

events involving the Three Mile Island plant. The complexities of

that incident are currently being examined in detail by Executive,

Congressional and ageney groups. See, e.g., Exee. Order No. 12130,

44 Fed. Reg. 22,027 (April 13, 1979) (announcing the formation

of the President’s Commission on the Accident at Three Mile

Island) ; Committee on Interior and Insular Affairs, U.S. House

of Representatives, News Release (May 4, 1979) (creating a task

foree of Committee members to investigate the accident at Three

Mile Island) ; 44 Fed. Reg. 19,262 (April 2, 1979) (notice of first

meeting of the Advisory Committee on Reactor Safeguards

(ACRS) Subeommittee on the Three Mile Island Nuclear Station,

Unit 2). If appropriate, the Commission, the Executive or Con-

gress will direct action. In any event, this judicial proceeding is

not the vehicle for a response to that incident.

12

Procepure Act, p. 30 n. 3 (1947).” The Petition also

argues (p. 17) that ‘‘the Commission has refused to

consider a class of major accidents in either rulemak-

ing or licensing proceedings.’’ (emphasis added) How-

ever, the history of the manner in which the agency

dealt with the problem makes it clear that the agency

did in fact address the problem in individual adjudi-

cations.

The authority of an agency to proceed through ad-

judication rather than rulemaking is beyond dispute.

NLRB vy. Wyman-Gordon Company, 394 U.S. 759, 766

(1969); SEC vy. Chenery Corporation, 332 U.S. 194,

203 (1947). The procedure utilized by the NRC here, in

which a Commission statement of policy was used as

guidance by subsequent NRC adjudicatory panels but

was not ‘‘finally determinative of the issues or rights to

which it [was] addressed,”’ is fully in accordance with

the law. Pacific Gas & Electric Company v. Federal

Power Commission, 164 U.S. App. D.C. 371, 506 F.2d

33, 38-39 (D.C. Cir. 1974), citing, Columbia Broadcast-

ing System, Inc. v. United States, 316 U.S. 407, 416-17

(1942). It has always been open to the parties here to

raise the issue of Class 9 accidents, subject only to a

reasonable showing of the type approved by this Court

in Vermont Yankee. That this opportunity is a real

one is underscored by the Appeal Board’s decision in

22 —In any ease, a review of the petitioners’ briefs filed in the

Court of Appeals below will disclose that this argument is raised

here for the first time and is therefore not properly before this

Court. E.g., Adickes v. 8S. H. Kress and Company, 398 U.S, 144,

147 n. 2 (1970).

a

13

Offshore Power Systems (Floating Nuclear Power

Plants), ALAB-489, 8 NRC 194 (August 21, 1978),

holding that the discussion of the environmental eon-

sequences of a core-melt type Class 9 aecident is ap-

propriate in connection with floating (barge mounted)

nuclear power plants.’ Consequently, no violation of

the Administrative Procedure Act is presented here.

CONCLUSION

The decision by the Court below, upholding the man-

ner in which the Commission addressed the Class 9

issue in the instant proceeding, is clearly correct. There

is no record before this Court which could make review

appropriate. The decision sought to be reviewed is in

accord with the other relevant courts of appeal deci-

sions. There is no conflict of decisions on the issue with

this Court. There has been no violation of NEPA or

** However, nothing in that decision indicates an abandonment

of the procedures followed with respect to land-based reactors, The

opinion stresses that the Annex was prepared with land-based

reactors in mind, rather than those afloat. 8 NRC at 219-20. There-

fore, the Petition is in error when it states (p. 20 n. 23) that the

Appeal Board now adopts petitioners’ position on Class 9 accidents.

It should be noted that after issuing the opinion, the Appeal

Board certified it for consideration by the Commission, Offshore

Power Systems (Floating Nuclear Power Plants), ALAB-500, 8

NRC 323 (September 29, 1978). As of this date, the Commission

has accepted the ease for review (8 NRC — (December 8, 1978) )

but has not issued a decision.

14

of the Administrative Procedure Act, and the decision

below does not involve any significant interpretation

of either statute.

The petition for certiorari should be denied.

Respectfully submitted,

Haroup FF’, Reis

1025 Connecticut Ave., N.W.

Washington, DC 20036

Norman A. Couu

Southeast First National

Bank Building

Miami, FL 33131

Attorneys for Intervenor-

Respondent

Of Counsel:

STEEL, lector & Davis

Southeast First National

Bank Building

Miami, FL 33131

Lowenstein, NewMay, Reis,

AxevLrap & Tou

1025 Connecticut Ave., N.W.

Washington, DC 20036