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County of Rockland v. United States

decided: May 27, 1983.

COUNTY OF ROCKLAND, PETITIONER,
v.
U.S. NUCLEAR REGULATORY COMMISSION AND THE UNITED STATES OF AMERICA, RESPONDENTS, POWER AUTHORITY OF THE STATE OF NEW YORK AND CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., INTERVENORS-RESPONDENTS, NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC. AND UNION OF CONCERNED SCIENTISTS, INTERVENORS-PETITIONERS



Petition for review of a Nuclear Regulatory Commission order. The Commission found that although deficiencies remain in emergency preparedness at the Indian Point nuclear power plant, several factors counseled against taking enforcement action at this time.

Feinberg, Chief Judge, Lumbard and Meskill, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge:

One of the most emotional issues confronting our society today is the adequacy of safety measures at nuclear power facilities. Fueled by the Three Mile Island incident, the debate over nuclear safety persists as public interest groups charge that serious problems remain and operator-utilities seek to assure the public that all reasonable measures have been taken to protect surrounding populations in the event of a major nuclear accident. But it is the United States Nuclear Regulatory Commission (NRC or Commission) which must decide the difficult questions concerning nuclear power safety.

This appeal focuses on one important aspect of nuclear safety -- off-site emergency preparedness. In its December 1982 decision and February 1983 order, the NRC concluded that although several deficiencies remain in off-site emergency preparedness at the Indian Point nuclear plant in Buchanan, New York,*fn1 several important factors counseled against enforcement action to shut down or otherwise restrict operations at Indian Point. See J. App. at 2-10, 29. Petitioner County of Rockland and intervenors New York Public Interest Research Group, Inc. and Union of Concerned Scientists (intervenors collectively NYPIRG/UCS) urge this Court to overturn the Commission's decision and its order, claiming that serious deficiencies in emergency preparedness remain at Indian Point and that the NRC committed a profound error of judgment by failing to take enforcement action.

County of Rockland's petition is dismissed because it has failed to exhaust available administrative remedies. With respect to intervenors NYPIRG/UCS, we find that the Commission properly applied its regulations and did not abuse its discretion in declining to take enforcement action at Indian Point.

BACKGROUND

A. Overview of Nuclear Plant Regulations

The Atomic Energy Act of 1954 (AEA), Pub. L. No. 83-703, § 1 et., seq., 68 Stat. 919 (codified at 42 U.S.C. § 2011 et seq. (1976)), as amended by the Energy Reorganization Act of 1974 (ERA),*fn2 Pub. L. No. 93-438, § 1 et seq., 88 Stat. 1233 (codified at 42 U.S.C. § 5801 et seq. (1976)), establishes a comprehensive regulatory framework for the ongoing review of nuclear power plants located in the United States. The NRC is charged under the AEA and ERA with primary responsibility to ensure, through its licensing and regulatory functions, that the generation and transmission of nuclear power does not unreasonably threaten the public welfare. Consistent with its administrative mandate, the NRC is empowered to promulgate rules and regulations governing the construction and operation of nuclear power plants. 42 U.S.C. § 2201(p) (1976); see Public Service Company of New Hampshire v. United States Nuclear Regulatory Commission, 582 F.2d 77, 82 (1st Cir.), cert. denied, 439 U.S. 1046, 58 L. Ed. 2d 705, 99 S. Ct. 721 (1978).

We are concerned in this appeal with those Commission regulations that address off-site emergency preparedness. See generally 10 C.F.R. Part 50, § 50.54 (1982). Prior to the Three Mile Island accident (TMI), there were no comprehensive guidelines or rules in place to coordinate off-site emergency preparedness in the event of a major nuclear accident. TMI taught that ad hoc responses to nuclear emergencies were ineffective. A Presidential Commission was created to address this problem and foremost among its recommendations was that each state and county located within a given distance of a nuclear power plant devise and implement an emergency preparedness plan for dealing with nuclear crises.

In partial response to the recommendations of the Presidential Commission, the NRC ordered that emergency preparedness plans be developed by each state and local government located within a ten mile radius of any nuclear power facility. 45 Fed. Reg. 55,402 (1980). The ten mile distance, although not etched in stone, was viewed by the Commission to be an appropriate "safety net" to assure adequate emergency preparedness.*fn3 States and counties within the "emergency planning zone" (EPZ) were expected to include in their plans procedures to ensure rapid dissemination of information to the public and to accomplish safe, efficient evacuation of endangered populations in the event of a major nuclear accident. In the case of Indian Point, the State of New York and four surrounding counties -- Westchester, Rockland, Orange and Putnam -- were affected by this regulation which mandated that emergency plans be prepared and ready for implementation by April 1, 1981. We consider at length the various responses of the state and counties and analyze the status of off-site emergency preparedness at Indian Point after completing our examination of the administrative review process.

B. Commission Review Process: State of Emergency Preparedness

The adequacy of emergency preparedness at a given nuclear facility is evaluated jointly by the NRC and the Federal Emergency Management Agency (FEMA). FEMA's general mandate, as outlined in Executive Order No. 12148 (July 15, 1979), is "to coordinate the emergency planning functions of executive agencies." 45 Fed. Reg. 55,406 (1980). Under Presidential directive of December 7, 1979, FEMA has been assigned lead responsibility for off-site emergency preparedness with respect to each nuclear power facility located in the United States. Id.

To coordinate the administrative review process, NRC and FEMA executed a Memorandum of Understanding (MOU) outlining the various responsibilities of the two agencies. See 45 Fed. Reg. 58,847, 82,713 (1980). Under the MOU, FEMA's duties include (1) assisting state and county officials in the development of an emergency plan; (2) training those state and county officials assigned to the emergency preparedness "team "; (3) developing and issuing an "updated series of [Federal] interagency assignments which would delineate respective agency capabilities and responsibilities and define procedures for coordination and direction for emergency planning and response "; (4) reviewing the status of emergency preparedness at each nuclear facility in the United States; and (5) making findings and determinations as to whether state and local emergency plans are adequate and capable of implementation. See 47 Fed. Reg. 36,387 (1982).

NRC's responsibilities under the MOU include (1) assessment of licensee emergency plans; (2) verification that licensee emergency plans are adequately implemented; (3) review of FEMA findings and recommendations regarding the adequacy of state and county emergency plans; and (4) final decisionmaking authority to determine whether emergency preparedness is adequate or whether perceived problems are sufficiently serious to warrant enforcement action. See id.

The MOU and the enabling legislation found in the ERA make clear that the Commission is ultimately responsible for making the crucial decisions that arise with respect to emergency preparedness at nuclear facilities. The Commission's authority is broad -- it may shut down a nuclear plant or take additional enforcement action if not satisfied with emergency preparedness.

The NRC's review is circumscribed by agency regulations. For facilities like Indian Point which are already operational, NRC regulations provide that emergency response plans for the operator-licensee and state and local governments shall be prepared and ready for implementation by April 1, 1981. 10 C.F.R. § 50.54(s)(2)(i) (1982). After that date, FEMA is charged with initial responsibility to review the state of emergency preparedness at the nuclear plant. NRC regulations then require the Commission to review the FEMA report and to determine whether emergency preparedness provides "reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 10 C.F.R. § 50.54(s)(2)(ii) (1982). If, after reviewing FEMA's recommendations and additional relevant factors, the Commission concludes that the evidence warrants a finding of "reasonable assurance," the agency review process is complete, subject of course to continuing oversight to assure that safety measures and emergency plans remain feasible and effective. If the Commission finds on the other hand that deficiencies in emergency preparedness are sufficiently ...


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