# Opposition — Hodder v. United States Nuclear Regulatory Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0151%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 829 ## Text “" 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0151%3A3. Public record. Not legal advice.