Morningside Renewal Council, Inc. v. United States Atomic Energy Commission

482 F.2d 234, 5 ERC 1705

Opinions

HAYS, Circuit Judge:

I. Introduction

This action seeks review of an order of the Atomic Energy Commission authorizing the Commission’s Director of Regulation to issue a license to the Trustees of Columbia University to operate a Triga Mark II nuclear reactor located at 120th Street and Amsterdam Avenue in New York City. The reactor in question, which has already been built, will be used for the training of nuclear engineering students and for research and it can also be used to produce isotopes for medical research. It was constructed in a building on the Columbia campus following a 1963 Commission proceeding authorizing its construction. The petitioners herein did not participate in that proceeding and no appeal was taken from the Commission’s decision.

The order at issue in this appeal consists of a decision of the Atomic Safety and Licensing Appeal Board dated May 18, 1972, 2 CCH Atomic Energy Law Rep. ff 11,595, and an order of the same Board, dated July 28, 1972, denying a petition for reconsideration. The decision and order reversed a prior Initial Decision of the Atomic Safety and Licensing Board which denied authorization to operate the reactor. The parties to the proceeding before the Commission were two proponents of the operating license, Columbia, the applicant for the license, and the Regulatory Staff of the Commission, and three opponents of the license, the two petitioners herein, Morningside Renewal Council, Inc. and Riverside Democrats, Inc., and an individual intervenor who is not involved in this appeal. The members of the Appeal Board whose decision is being challenged are Dr. John H. Buck, a nuclear physicist, Dr. Lawrence R. Quarles, the Dean of the School of Engineering and Applied Science of the University of Virginia, and Algie A. Wells, an attorney.

This action presents us with several issues for review: First, whether the record before the Appeal Board, acting for the Commission, contains sufficient evidence to support its major findings that (1) the operation of the reactor will not be inimical to public health and safety, and (2) the issuance of the license does not constitute a “major federal action significantly affecting the quality of the human environment” requiring a detailed environmental statement to be issued under section 102(c) of the National Environmental Policy Act of 1969. Second, whether the Appeal Board erred in failing to implement certain rulings of the Licensing Board before it passed upon the application for authorization, whether the Appeal Board was justified in conducting additional evidentiary hearings in this proceeding and whether those hearings should have been held in New York City rather than in Washington, D.C. Finding substantial evidence in the record to support the Appeal Board’s conclusions and noting no error in its procedural determinations, we reject the contentions of the petitioners, deny their petition for review and uphold the decision and order of the Appeal Board.

II. The Factual Background

In 1963, Columbia sought and received a permit to construct the research reactor involved in this proceeding. The University acted pursuant to the provisions of the Atomic Energy Act, 42 U.S.C. § 2011 et seq., which provides for a two-stage procedure for the licensing of nuclear reactors. Under the Act, applications for construction permits shall be granted “if the application is otherwise acceptable to the Commission,” whereas licenses to operate the reactors shall be issued by the Commission

“[ujpon finding that the facility authorized has been constructed and will operate in conformity with the application as amended and in conformity with the provisions of this chapter and of the rules and regulations of the Commission, and in the absence of any good cause being shown to the Commission why the granting of a license would not be in accordance with the provisions of this chapter . . .

42 U.S.C. § 2235.

In dealing with licenses for reactors to be used for research and development and for medical therapy,

“[t]he Commission is directed to impose only such minimum amount of regulation of the licensee as the Commission finds will permit the Commission to fulfill its obligations under this chapter to promote the common defense and security and to protect the health and safety of the public and will permit the conduct of widespread and diverse research and development.”

42 U.S.C. § 2134(c).

The permit to build the Triga reactor was issued to Columbia after a full safety review by the Commission’s Regulatory Staff and after a Federal Register notice had been published announcing the opportunity for a public hearing on the issue. No one sought such a hearing and no appeal was taken from the Commission’s decision. The reactor was then constructed in a building on the Columbia campus.

In February of 1967, Columbia University applied for a license to operate the research reactor. One year later, the Commission’s Regulatory Staff issued a Safety Evaluation which concluded that the reactor unit could be operated safely. The Commission thereupon announced its intention to issue the operating license and published a Federal Register notice inviting petitions to intervene from those whose interests might be affected by the issuance of the license. Applications were received from petitioners and one other person.

After the passage of more than one year (a period which included a delay requested by Columbia) the Commission issued a further Federal Register notice providing for a hearing before the Licensing Board and admitting petitioners as parties to the proceedings. The hearing was designed with particular emphasis on the issue of whether there was reasonable assurance that the reactor could be operated without endangering the public health and safety.

At the hearings, conducted in New York City in November, 1969 and July, 1970, testimony was presented by over twenty witnesses and resulted in more than 1,500 pages of transcript. On April 6, 1971, the Licensing Board issued its Initial Decision denying Columbia an operating license. Although the Board specifically found that in normal use the reactor could be operated safely without endangering the health and safety of the public and that the issuance of the license would not be inimical to the common defense and security, it concluded that it could not authorize the issuance of the license because of the absence of “applicable substantive criteria of the Commission and of convincing objective standards of the Regulatory Staff” dealing with the type of hypothetical accidents which are postulated for the purpose of determining the safety of particular reactors. In addition to this lack of standards, the Licensing Board noted that there were certain discrepancies in the experimental data submitted to it to be used for assessing the effects of the hypothetical accidents. The Board concluded that it had to “decline answering the question of whether the health and safety of the public would be endangered upon the occurrence of a postulated accident” because it considered it “inappropriate to enforce an answer derived from the narrow confines of a single proceeding and its own personal views about the degree to which the health and safety of the public ought to be protected against accident consequences.” Suggesting the need for further experimentation as well as objective “accident” criteria relating to the danger to public health and safety, the Licensing Board denied the authorization to issue the operating license.

All of the parties involved filed exceptions to the Board’s Initial Decision. The proceedings then went before the Atomic Safety and Licensing Appeal Board to which the Commission has delegated all of its adjudicatory authority. In June of 1971, following a review of the record, the Appeal Board determined that clarification of the record was necessary in certain areas before it could properly decide the issue. Therefore, it ordered that an opportunity for oral argument be afforded and that additional hearings be held before the Appeal Board directed particularly to three areas: the explanation of the discrepancies in some of the experimental data used to predict the release of radioactive fission products under postulated accident conditions; the criteria to be used to evaluate the predicted effects of the postulated accidents; and an additional explanation from Columbia of its security plans and procedures for preventing unauthorized access to the reactor area.

In May of 1972, after two days of hearings at which twelve technical experts testified, the Appeal Board issued its decision authorizing the issuance of the operating license. Its findings included the following: That when considered in light of the additional experimental data and clarifying information submitted to the Board, the release fission data were “reasonably consistent”; that the accidents hypothesized by the petitioners herein were not credible (thus affirming the Licensing Board’s rejection of those hypotheses); that for the purposes of analysis it would adopt the Regulatory Staff’s hypothetical accident situation which was more severe than any accident which had occurred during all previous experience with this type of reactor; that regulations as to postulated accidents for research reactors, which the Licensing Board had thought necessary, were not essential because even under the postulated conditions, any release of radioactive fission products would not exceed the guidelines for allowable releases of radioactivity for normal operations; and that therefore there was no danger to the public health and safety from the operation of the reactor. The Appeal Board did, however, impose additional security requirements upon Columbia as a condition of its obtaining the license.

On the basis of the entire record, the Appeal Board concluded that “issuance of the operating license will not be inimical to the health and safety of the public.” After analyzing the potential environmental effect of the reactor, the Board determined that its operation “will not have a significant impact on the environment and, for that reason an environmental statement under the National Environmental Policy Act is not required.” On July 28, 1972, the Board denied the petitioners’ request for reconsideration of its decision.

III. The Substantive Claims

We deny the petition to review and we uphold the decision and order of the Commission’s Appeal Board. We have examined the Appeal Board record and decision as well as the Licensing Board’s Initial Decision and we find no grounds upon which to base reversal of the final order at issue herein. It is clear from the extensive and thorough record that the Appeal Board carefully considered all aspects of the issues involved in the granting of an operating license for this particular reactor. Since the challenged findings are supported by substantial evidence in the record, it is not within the competence of this court to overrule the Board’s determination. See Scenic Hudson Preservation Conference v. Federal Power Comm’n, 453 F.2d 463, 468 (2d Cir. 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1972).

The Board’s decision that an environmental impact statement pursuant to the National Environmental Policy Act of 1969 was not necessary was based upon its threshold finding that the licensing involved in this case was not a “major federal action significantly affecting the quality of the human environment.” This finding too was supported by substantial evidence in the record and the Board’s decision was clearly not arbitrary and capricious. On this issue, the agency has the authority to make its own threshold determination. See Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972); Hanly v. Mitchell, 460 F.2d 640, 644 (2d Cir.), cert. denied sub nom. Hanly v. Kleindienst, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972). Moreover, in this instance, there was a reviewable environmental record made with the participation of the public so that the finding that no NEPA state ment was necessary was made by the Board with full knowledge of all of the environmental questions raised by the petitioners. Here the underlying issue was “safety” and the inquiry into that area was detailed and entirely adequate.

IV. The Procedural Claims

Petitioners contend that rule-making rather than adjudicatory proceedings should have been conducted in this case. However, that decision is one for the agency to make for that is where the expertise which is necessary to make such a determination lies. See SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); N.L.R.B. v. A.P.W. Products Co., 316 F.2d 899, 905-906 (2d Cir. 1963). Absence of general regulations and objective criteria regarding postulated accident situations, which the Licensing Board thought necessary before granting authorization to issue the license, presents no bar to the issuance of the license in this case since the Board’s decision is amply supported by a full record. Just as an agency may reverse its hearing examiner, the Appeal Board, acting as the Commission itself in this case, may reverse the Licensing Board, especially on questions of policy and discretion.

The Appeal Board’s actions were well within its powers when it conducted limited evidentiary hearings and ordered them held in Washington, D. C. As the Board said:

“Holding of a proceeding of this type is clearly within the Appeal Board’s jurisdiction. The Administrative Procedure Act, which is specifically made applicable to proceedings of this type by Section 181 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2231, contemplates that when an initial decision is subject to review within an agency, the reviewing body may ‘restrict its decisions to questions of law, or to the question of whether the findings are supported by substantial evidence or the weight of evidence . [or] it may make entirely new findings either upon the record or upon new evidence which it takes.’ The authority vested in the Appeal Board includes the entire authority and review functions which would otherwise be exercised by the Commission in a given case. It follows that the Appeal Board has the Commission’s authority, as contemplated under the Administrative Procedure Act, to take evidence incident to its appellate review .” (Footnote omitted.)

10 C.F.R. § 2.703(b) states that the time and place of hearing will be fixed “with due regard for the convenience of the parties or their representatives, the nature of the proceeding, and the public interest.” This is obviously a guideline to the agency’s discretionary authority. The Appeal Board did not abuse its discretion in determining that Washington, D.C., was the appropriate place to hold the additional hearings, especially in light of the fact that petitioner’s only witness was from Pittsburgh, Pennsylvania and several of the witnesses representing the Commission’s Regulatory Staff were from the Washington, D.C., area. Other witnesses were from Pennsylvania and California while only two were from New York.

Petition denied.