Reply Brief — San Luis Obispo Mothers for Peace v. United States Nuclear Regulatory Commission

6) P -fCIVED

No. 86-90 OCT 14 tx00

et THE C

In the Supreme C@pirt' couRT U.S

OF THE

United States

OcTOBER TERM, 1986

SAN Luis OBisPO MOTHERS FOR PEACE;

SCENIC SHORELINE PRESERVATION CONFERENCE;

ECOLOGY ACTION CLUB; SANDRA SILVER;

GORDON SILVER; ELIZABETH APFELBERG;

AND JOHN J. FORSTER,

Petitioners,

VS.

UNITED STATES NUCLEAR REGULATORY COMMISSION;

AND THE UNITED STATES OF AMERICA,

Respondents.

On Writ of Certiorari

to The United States Court Of Appeals

for The District Of Columbia Circuit

PETITIONERS’ REPLY BRIEF

JoeL R. REYNOLDs*

JOHN R. PHILLIPS

Center for Law in the Public

Interest

10951 W. Pico Boulevard

Los Angeles, CA 90064

(213) 470-3000

Of Counsel

Eric R. HAVIAN

FeviciA A. MARCUS

ETHAN P. SCHULMAN

October 13, 1986

*Counsel of Record for Petitioners

BOWNE OF SAN FRANCISCO INC + IGO NINTH ST + SF CA 94103 + (415) 664-2300

Oe

TABLE OF CONTENTS

nc Pn ade a a ha cok Gao aoa e ke ae

The Integrity of the Commission’s ‘Emergency Planning

Regulations Is a Matter of Exceptional Public Importance

The Decision Below Conflicts with the Standards Estab-

lished by this Court for Judicial Review of Administrative

Agency Decisions ..... APE Ts en Nee SOL ar

aie rine ts Cy Be ee os awake ba ee

il

TABLE OF AUTHORITIES

Court Cases

Page

GUARD vy. Nuclear Regulatory Commission, 753 F.2d 1144

CER. SR. TOD sécnte wc ves eae conser eee 2

Motor Vehicle Manufacturers Ass'n v. State Farm Mutual,

O63 UE. 2 CRS? cic cise eee 7

Northern Indiana Public Service Co. v. Porter County Chap-

ter of Izzak Walton League of America, 423 U.S. 12

COGTSE i vcctove dives avedadgy less ey keteeeeenes 2

San Luis Obispo Mothers for Peace v. Nuclear Regulatory

Commission, 789 F.2d 26 (D.C. Cir. 1986) ........ passim

Union of Concerned Scientists v. Nuclear Regulatory Com-

pension, T11 F.26 370 (DAL. Cir. 1908) on cocci cece s: 2

Union of Concerned Scientists v. Nuclear Regulatory Com-

mission, 735 F.2d 1437 (D.C. Cir. 1984), cert. denied sub

nom. Arkansas Power and Light Co. v. Union of Con-

cerned Scientists, __. U.S. ___, 105 S.Ct. 815 (1985)... 2,3

United States v. Larionoff, 431 U.S. 864 (1977) ......... 2

Regulatory Cases

Consolidated Edison Co. (Indian Point), 21 N.R.C. 1043

COED ideo 6 us dicho 0d 050 bck e hee ee 7

Pacific Gas and Electric Company (Diablo Canyon Nuclear

Power Plant, Units 1 and 2), CLI-84-12 (1984) ...... 6

Regulations

Lee eS Pee er rer Orey Teer rte 3

Miscellaneous

“Emergency Planning: Final Regulations,” Preamble, 45

Fed. Reg. 55,402 (August 19, 1980) ................. 2

Notice of Proposed Rulemaking, “Emergency Planning,”

Preamble, 44 Fed. Reg. 75,167 (1979) ............... 3

No. 86-90

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1986

SAN Luis OBISPO MOTHERS FOR PEACE;

SCENIC SHORELINE PRESERVATION CONFERENCE;

ECOLOGY ACTION CLUB; SANDRA SILVER;

GORDON SILVER; ELIZABETH APFELBERG;

AND JOHN J. FORSTER,

Petitioners,

VS.

UNITED STATES NUCLEAR REGULATORY COMMISSION;

AND THE UNITED STATES OF AMERICA,

Respondents.

On Writ of Certiorari

to The United States Court Of Appeals

for The District Of Columbia Circuit

PETITIONERS’ REPLY BRIEF

THE INTEGRITY OF THE COMMISSION’S EMERGENCY

PLANNING REGULATIONS IS A MATTER OF EXCEP-

TIONAL PUBLIC IMPORTANCE

The Briefs in Opposition filed by the Nuclear Regulatory

Commission (“NRC Br.”) and Pacific Gas and Electric Com-

pany (“PGandE Br.”) attempt to denigrate the significance of the

sharply divided en banc decision below by characterizing it as

narrowly applicable to Diablo Canyon only. NRC Br. 9; PGandE

Br. 2 & n.1, 9 n.14. The importance of the issue presented,

2

however, goes well beyond the adequacy of the emergency plans

for a single nuclear power plant, to the integrity and effectiveness

of the Commission’s enforcement of its mandate under the

Atomic Energy Act to protect the public heaith and safety. The

Commission itself has recognized that emergency preparedness is

“an essential aspect in the protection of the public health and

safety.” “Emergency Planning: Final Regulations,” Preamble, 45

Fed. Reg. 55,402, 55,504 (August 19, 1980) (emphasis added).

As the four-member dissent concluded below, the en banc major-

ity’s decision affirming the Commission’s refusal to consider

earthquakes in the context of emergency planning at Diablo

Canyon “invites the continuing erosion of the emergency planning

standards” and “effectively nullifies emergency planning as an

effort to predict what actions would be needed should an accident

occur.” 789 F.2d at 50, 46 (A-51, 43).'

This Court has held that the Commission’s interpretation of its

regulations may be accepted only if it “sensibly conforms to the

purpose and wording of the regulations.” Northern Indiana Public

Service Co. v. Porter County Chapter of the Izaak Walton League

of America, 423 U.S. 12, 14-15 (1975) (per curiam).’ The

'PGandE mistakenly suggests that the only public health and safety

issue raised by the decision below is the ability of the Diablo Canyon

plant to withstand earthquake vibrations. PGandE Br. 6-7. In fact, the

health and safety concerns presented by the Commission's decision do

not involve the adequacy of the plant’s seismic design, but rather the

ability of the Diablo Canyon emergency plans to protect the public in

the event of an accident of any nature.

> It is for this reason that the NRC’s argument that the court below

properly deferred to the Commission’s interpretation of its own regula-

tions (NRC Br. 11) is incorrect. When an agency’s interpretation of its

regulations conflicts with their purpose, its interpretation is entitled to no

weight. United States v. Larionoff, 431 U.S. 864, 873 (1977); Union of

Concerned Scientists v. Nuclear Regulatory Commission, 711 F.2d 370,

381 (D.C. Cir. 1983). Significantly, the Commission’s interpretations of

its emergency planning regulations have been rejected in two prior cases.

See GUARD vy. Nuclear Regulatory Commission, 753 F.2d 1144 (D.C.

Cir. 1985) (rejecting Commission’s interpretation of emergency plan-

ning regulation as irrational); Union of Concerned Scientists v. Nuclear

3

emergency planning regulation involved in this case, 10 C.F.R.

§ 50.47, was promulgated in the aftermath of the Three Mile

Island accident, which compelled the Commission to recognize

that a serious nuclear accident is possible. As a result, the

Commission determined to consider “emergency planning as

equivalent to, rather then secondary to, siting and design in public

protection.” Notice of Proposed Rulemaking, “Emergency Plan-

ning,” Preamble, 44 Fed. Reg. 75,167, 75,169 (1979) (emphasis

added). Hence, the margin of safety provided by design safe-

guards may not be relied upon when evaluating the adequacy of a

nuclear power plant’s emergency plans. “If the operation of these

plants always lived up to their designers’ hopes, no emergency

planning would ever be necessary.” 789 F.2d at 49 (A-49) (Wald,

J., dissenting) (emphasis added).

Nevertheless, the en banc majority affirmed the Commission’s

decision primarily by relying upon the purportedly low probability

of a nuclear accident. The majority argued that because design

safeguards make any nuclear accident a remote possibility, the

likelihood (1) that an accident will be initiated by an earthquake,

and (2) that an accident will occur simultaneously with an

earthquake, is too remote to justify consideration in emergency

planning. Jd. at 37-42 (A-25-35). However, as the dissent below

correctly observed, consideration of the probability of an accident

is at odds with the basic purpose of the emergency planning

regulations; “emergency planning starts from the assumption that

an accident has already occurred.” Jd. at 49 (A-50). Neither

PGandE nor the en banc majority ever respond to this argument.

The NRC mistakenly asserts that petitioners would have the

Commission consider “every conceivable emergency situation,”

no matter how unlikely, claiming that acceptance of this position

would transform emergency planning hearings into “an open-

Regulatory Commission, 735 F.2d 1437 (D.C. Cir. 1984), cert. denied

sub nom. Arkansas Power and Light Co. v. Union of Concerned

Scientists, ___ U.S. ___, 105 S.Ct. 815 (1985) (vacating Commis-

sion’s emergency planning rule).

4

ended exercise in creative speculation.”” NRC Br. 13.> However,

petitioners merely seek consideration of the single issue that has

always been the central focus of concern at Diablo Can-

yon—seismic safety.* The Commission cannot, consistent with its

own regulations, single out a particular accident scenario, and

deny a party the right to contest the adequacy of an emergency

plan exclusively on grounds that the plant’s design renders it

unlikely that such an accident would occur. Taken to its logical

conclusion, the Commission’s reasoning would result in no emer-

gency planning at all.°

>The NRC’s argument addresses only the Commission’s refusal to

consider the possibility of an earthquake-initiated accident. The major-

ity opinion, however, also relied heavily on the low probability of an

accident in constructing its elaborate mathematical calculation of the

likelihood of a simultaneous but independently caused accident and

earthquake. 789 F.2d at 38-40 (A-26-31). Neither the NRC not

PGandE acknowledges that in so doing, the court below again ignored

the fundamental principle of emergency planning: “the assumption that

an accident—unthinkable as it may be—will occur.” Jd. at 49 (A-49)

(Wald, J., dissenting) (emphasis original).

* The NRC itself observes that more than 2,000,000 hours were spent

reanalyzing and modifying the plant’s design to withstand earthquake

forces. NRC Br. 5.

*The NRC’s additional argument—that the Commission’s siting,

design and construction regulations specifically require evaluation of

seismic considerations, while its emergency planning regulations do not

(NRC Br. 11-12)—simply begs the question. The issue here is not

whether the requirements are different, but whether the Commission

may rely exclusively on the margin of safety provided by siting, design

and construction, in choosing to limit the scope of emergency planning

hearings.

5

II.

THE DECISION BELOW CONFLICTS WITH THE STAN-

DARDS ESTABLISHED BY THIS COURT FOR JUDI-

CIAL REVIEW OF ADMINISTRATIVE AGENCY

DECISIONS

Respondents’ principal argument in support of the decision

below is that the Commission, relying on its technical expertise,

drew a line between frequently occurring and infrequently occur-

ring natural phenomena, and properly excluded the latter from

consideration in emergency planning. NRC Br. 9-10; PGandE Br.

8, 9 n.15. However, respondents—like the majority below—fail to

point to any evidence in the record that rationally supports the

Commission’s decision regarding where that line should be drawn.

In apparent recognition of the fundamental flaw in the Commis-

sion’s determination, the en banc majority constructs elaborate

probability calculations not relied upon by the Commission, and

affirms the decision on that basis. But imposition of such a post

hoc rationale violates the most basic principles of judicial review.°

The Court of Appeals majority accepts in toto the Commis-

sion’s unadorned conclusion—lacking any support in the re-

cord—that earthquakes occur too infrequently to require specific

consideration in emergency planning. As the dissent correctly

pointed out, however, the majority was unable to explain how the

Commission could rationally have found that earthquakes were

too infrequent to warrant consideration, despite its evaluation in

this case of the effects of similarly infrequent phenomena, such as

a once-in-a-hundred-years flood. 789 F.2d at 55-57 (A-62-65).

Respondents argue that earthquakes are far less likely to occur

than fog or heavy rain, but never mention the Commission’s

° Respondents’ suggestion that the issue presented here is whether the

Commission was required to hold additional hearings solely to address

the effects of earthquakes on emergency response is misleading. NRC

Br. 13; PGandE Br. 1, 2. The issue is not whether the Commission is

required to consider the effects of earthquakes, but whether the Com-

mission had some rational basis for its decision to single out earth-

quakes, precluding their consideration in ongoing hearings on emergency

response.

6

consideration of less frequently occurring phenomena. NRC Br. 8

& n.6; PGandE Br. 8.

In the alternative, the en banc majority held that the Commis-

sion’s decision may be affirmed because of the remote likelihood

of a simultaneously occurring earthquake and radiological acci-

dent, and in support of that holding offered extensive probability

calculations. Despite the fact that such calculations were never

performed by the Commission, respondents argue that they were

based on the rationale explicity relied upon by the Commission.

NRC Br. 14-15; PGandE Br. 10. PGandE goes further and

suggests that a remand would be meaningless because it would

simply require the Commission to “perform multiplication” based

on evidence already in the record. PGandE Br. 11. But contrary to

respondents’ claim, the Commission never even suggested that

the probability was remote that Diablo Canyon would experience

“a simultaneous occurrence of an earthquake and an indepen-

dently caused radiological release.” Jd. at 10. The text of the

Commission’s only discussion of this point reads as follows:

There remains only the possibility of a contemporaneous

occurrence of both a radiological release... and an earth-

quake.... With one exception, the focus [in emergency

planning] has always been on frequently occurring natural

phenomena. The Commission believes... that earthquakes

of sufficient size to disrupt emergency response at Diablo

Canyon would be so infrequent that their specific considera-

tion is not warranted.

Pacific Gas and Electric Company (Diablo Canyon Nuclear

Power Plant, Units 1 and 2), CLI-84-12 (1984) (B-4-5) (foot-

note omitted). Thus, the Commission’s rationale rested exclu-

sively on the purported infrequency of earthquakes; the

multiplication of that frequency by the likelihood of an accident

was no more than a post hoc rationalization, developed by the

Court of Appeals majority to remedy the Commission’s failure to

justify its bald assertion that earthquakes are less frequent than

7

other similarly infrequent phenomena considered at Diablo Can-

yon and other nuclear plants.’

Finally, respondents attempt to justify the Commission’s argu-

ment—accepted by the majority below—that the specific consid-

eration given to other natural phenomena “implicitly”

demonstrates that the Diablo Canyon emergency plans are suffi-

ciently “flexible” to respond to the purportedly similar effects of

an earthquake. NRC Br. 6, 13 n.9; PGandE Br. 10-11. But the

Commission itself has rejected precisely this claim, observing that

the capability of the surrounding population to respond to an

accident initiated by a severe external event, such as an

earthquake or hurricane, would differ significantly from the

capability to respond to other accidents.

Consolidated Edison Co. (Indian Point), 21 N.R.C. 1043, 1058

(1985). Moreover, as the Court of Appeals dissent correctly

observed, “‘[t]he Commission cannot assume... . flexibility with-

out any record evidence and parade it as an excuse for not

allowing relevant evidence about the disruptive effects of earth-

quakes into the record.” 789 F.2d at 59 (A-71) (citation omit-

ted). Thus, the majority’s “inherent flexibility” argument, like its

post hoc probability calculations, cannot remedy the Commis-

sion’s failure to offer ‘ta rational connection between the facts

found and the choice made.’”

’The NRC also seeks to salvage the Commission’s failure to provide

a rational basis for its decision by claiming that the determination

involved technical analysis “at the frontiers of science and within the

Commission’s area of special expertise.” NRC Br. 14. But in the

absence of any record evidence regarding frequency of occurrence, the

question whether earthquakes occur more or less frequently than other

natural phenomena is hardly a “technical” matter. Indeed, when it suits

its purpose, the NRC contends that this is nothing more than a

determination of “what common sense shows.” NRC Br. 9, quoting San

Luis Obispo Mothers for Peace, 789 F.2d at 44 (A-38).

* Motor Vehicle Manufacturers Ass'n v. State Farm Mutual, 463 U.S.

29, 52 (1983).

CONCLUSION

For the foregoing reasons, petitioners respectfully submit that

the petition for a writ of certiorari to the District of Columbia

Circuit should be granted.

Respectfully submitted,

Joe. R. REYNOLDS*

JOHN R. PHILLIPS

Center for Law in the Public

Interest

10951 W. Pico Boulevard

Los Angeles, CA 90064

(213) 470-3000

Counsel for Petitioners

Of Counsel

Eric R. HAVIAN

FELICIA A. MARCUS

ETHAN P. SCHULMAN

*Counsel of Record