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Porter County Chapter of Izaak Walton League of America Inc. v. United States

decided: April 1, 1975.

PORTER COUNTY CHAPTER OF THE IZAAK WALTON LEAGUE OF AMERICA, INC., ET AL., PETITIONERS, AND THE PEOPLE OF THE STATE OF ILLINOIS, EX REL. WILLIAM J. SCOTT, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, PETITIONERS-INTERVENORS,
v.
THE ATOMIC ENERGY COMMISSION AND THE UNITED STATES OF AMERICA, RESPONDENTS, AND NORTHERN INDIANA PUBLIC SERVICE COMPANY, RESPONDENT-INTERVENOR



Before Fairchild, Chief Judge, and Sprecher and Tone, Circuit Judges.

Author: Sprecher

This appeal involves the sensitive issue of whether the Atomic Energy Commission in approving the site of a commercial nuclear reactor gave due consideration to the population density and use characteristics of the site environs.

I

On August 24, 1970, Northern Indiana Public Service Company (NIPSCO) submitted its application for a construction permit and operating license for a 685 megawatt boiling water nuclear power plant to be built on the applicant's Bailly site on the southern shore of Lake Michigan, Westchester Township, Porter County, Indiana.

Under the Atomic Energy Act of 1954 as amended, 42 U.S.C. §§ 2011-2282, each application for a commercial license under section 2133, which must include a Preliminary Safety Analysis Report (PSAR) pursuant to 10 C.F.R. § 50.34(a), is reviewed by the staff of the Atomic Energy Commission (AEC) through the Division of Reactor Licensing (DRL) pursuant to 10 C.F.R. §§ 1.120 and 2.102(a), and by the 15-member Advisory Committee on Reactor Safeguards (ACRS) pursuant to 42 U.S.C. §§ 2039 and 2232(b).

In this case after the filing of 16 amendments by NIPSCO, ACRS filed its safety report on October 14, 1971, pursuant to 42 U.S.C. § 2232(b) and 10 C.F.R. § 2.102(c) and the AEC staff through DRL filed its Safety Evaluation Report (SER) on February 15, 1972. A general notice of hearing on the application for a construction permit dated December 21, 1971, had been published by AEC on December 29, 1971 in 36 Fed.Reg. 25175 (1971).

An Atomic Safety and Licensing Board (ASLB) of three members was constituted on January 12, 1972, pursuant to 42 U.S.C. § 2241 and at a prehearing conference held on May 9, 1972, at Valparaiso, Indiana, admitted as Joint Intervenors the following: Porter County Chapter of Izaak Walton League of America, Inc.; Concerned Citizens Against the Bailly Nuclear Site; Businessmen for the Public Interest, Inc.; and James E. Newman, Edward W. Osann, Jr., Mildred Warner and George Hanks. Bethlehem Steel Corporation was also admitted as a party intervenor.

Because of other commitments, members of the original ASLB were unable to continue to serve and a Notice of Reconstitution of Board was issued on June 20, 1972. The reestablished ASLB conducted the evidentiary hearing.

In the meantime, NIPSCO had submitted an environmental report on January 7, 1971, which was amended three times. In July 1972, AEC issued a draft environmental statement and in February 1973, a Final Environmental Statement (FES).

ASLB held evidentiary hearings for 65 days on October 10-13, 1972 at Gary, Indiana, and between April 30 and November 14, 1973, at Valparaiso, Indiana. Oral arguments on proposed findings were held on February 19, 1974.*fn1

The Initial Decision of ASLB authorizing the issuance of a construction permit was entered on April 5, 1974, and reported in Regulatory Adjudication Issuances of AEC. NIPSCO, LBP-74-19, RAI-74-4, 557 (April 5, 1974).

The Joint Intervenors appealed the Initial Decision, which was affirmed by the Atomic Safety and Licensing Appeal Board consisting of three members (ASLAB), pursuant to 10 C.F.R. § 2.785(a), on August 29, 1974. NIPSCO, ALAB-224, RAI-74-8, 244 (Aug. 29, 1974). Unless the AEC undertakes sua sponte a review of an ASLAB decision pursuant to 10 C.F.R. § 2.786, that decision becomes the final decision of the AEC, 10 C.F.R. §§ 2.770 and 2.785(a).*fn2 Thereafter any final decision is subject to judicial review in the court of appeals, 42 U.S.C. § 2239(b) and 28 U.S.C. § 2342(4), where the petitioner resides or has its principal office or in the Court of Appeals for the District of Columbia Circuit, 28 U.S.C. § 2343.

On September 13, 1974, the Joint Intervenors petitioned this court to review the August 29, 1974 order of ASLAB authorizing the issuance to NIPSCO of the construction permit and the September 5, 1974 order of ASLAB denying Joint Intervenors' motion for remand for further proceedings to consider NIPSCO's alleged participation in the proposed building of another nuclear plant in the early 1980's near Madison, Indiana. NIPSCO, ALAB-227, RAI-74-9, 416 (Sept. 5, 1974).

By orders of this court of September 20, October 3, and November 8, 1974, NIPSCO, the State of Illinois and the City of Gary, Indiana, were admitted as intervenors. On September 18, Joint Intervenors*fn3 moved in this court for a stay pending appeal and on October 4, the government moved for leave to reopen the administrative proceedings for further hearing on NIPSCO's proposal to construct a slurry wall at the site.

On October 16, 1974, we ordered (1) that the AEC order of August 29 be stayed pending review of that decision; (2) that AEC be permitted to reopen its administrative proceedings for further hearings upon the environmental impact of the building of a slurry wall; (3) that any action by AEC permitting the construction of a slurry wall be stayed pending further order of this court after AEC has rendered a final decision concerning the slurry wall; and (4) that an expedited briefing schedule be followed.

On November 15, 1974, the Joint Intervenors moved this court for clarification of the October 16 order to determine whether that order required NIPSCO to fill in the existing excavation on the site as well as to cease any further site dewatering. On November 18, that motion was ordered taken with the case at the time of oral argument on December 11, 1974.

The arguments on appeal made by Joint Intervenors, Illinois and Gary are multi-faceted but all revolve ultimately upon whether AEC gave due consideration to the population density and use characteristics of the site environs.

II

The proposed site for locating this commercial nuclear reactor is unique in many respects. The site is a reverse L-shaped 350-acre tract of land in Porter County, Indiana, on the south shore of Lake Michigan. The shorter base of the L runs from Lake Michigan to the south and constitutes the 107-acre tract on which the nuclear plant is sought to be located. The longer leg of the reverse L runs at a right angle from the southern end of the base from west to east and contains the remaining approximately 250 acres.

The reverse L-shaped nuclear site abuts the western boundary and the southern boundary of the western portion of the Indiana Dunes National Lakeshore, an irregularly shaped area that stretches some eleven miles along the south shore of Lake Michigan directly east of the 107-acre portion of the reactor site.

In 1966 Congress authorized the Secretary of the Interior to establish the Indiana Dunes National Lakeshore "(i)n order to preserve for the educational, inspirational, and recreational use of the public certain portions of the Indiana Dunes and other acres of scenic, scientific, and historic interest and recreational value. . . ." 16 U.S.C. § 460u.

On September 20, 1972, the National Park Service published a notice stating that "there has been acquired within the boundaries of the Indiana Dunes National Lakeshore an acreage which is efficiently administrable for the purposes of said Act and, therefore the Lake Shore is hereby established." 37 Fed.Reg. 19389 (1972). The National Lakeshore has thus far acquired 8300 acres or 85 percent of the land authorized by Congress to be acquired. Interspread within but not a part of the National Lakeshore acreage are the towns of Dune Acres and Beverly Shores and the Indiana Dunes State Park, which consists of an additional 2,200 acres and occupies approximately three of the eleven miles of beach shore.

Most of the 8300 acres is open dune and wetland. The ASLB found and concluded:

The location of the proposed facility on the shore of Lake Michigan to the north and bounded on the east by the Indiana Dunes National Lakeshore is characterized by its proximity to an environment of special qualities.

The Indiana Dunes region includes an exceptional combination of sand dunes, marshes, swamps and bogs, white sand beaches, and diversified flora and fauna a natural area difficult to equal anywhere in the Nation. That portion of the Indiana Dunes National Lakeshore adjacent to the Bailly site and consisting of some 1200 acres is one of the best remaining areas in the Indiana Dunes. Starting at the edge of Lake Michigan and proceeding inland, it contains a cross-section including a wide beach of largely quartz sand, a low foredune covered by sparse vegetation; higher dunes, some active and sparsely covered and others having trees and other vegetation, rising from 25 to almost 200 feet above Lake level in a complex of blowouts, ridges, valleys, and interdunal ponds. This cross-section exemplifies terrestrial plant succession on dune sand as described by Cowles over 70 years ago. The dynamic nature of the Indiana Dunes has attracted scientists as an ideal outdoor laboratory to study the principles of ecological succession. . . .

On the south of the dune complex, and to the north of the ancient shoreline of the Calumet stage of Lake Michigan . . . is a unique wetland area known as Cowles Bog which contains an undrained pond or depression filled with water and largely covered by a relatively thick mat of vegetation. The fact that the Department of Interior's National Park Service has designated a sizeable portion of these unique natural settings abutting the proposed plant site as a Class IV Land namely "an outstanding natural area of special significance for public edification" . . . has weighed heavily on the Board's consideration of the potential impact of the proposed plant on its surroundings.

NIPSCO, LBP-74-19, supra at 586-87 (Finding 103).*fn4

On the 107-acre site where the plant is sought to be located, NIPSCO operates two coal-fired electrical generating stations and a gas turbine peaking plant. The proposed nuclear facility would be built west of the three existing plants. On the west and south sides of the proposed site, Bethlehem Steel Corporation operates a steel plant employing some 7,500 employees. To the west of the Bethlehem plant is the proposed Port of Indiana.

In fact the area south and west of the site is a "vast industrial and urban complex (within which) are five major cities Gary, Hammond, East Chicago, Whiting (all in Indiana) and Chicago, (Illinois) and numerous municipalities intermeshed . . . (within which) almost 7 million people live." (Joint Intervenors' Ex. 23).

The downtown Chicago loop area is about 30 miles from the site. Downtown Gary is about 12 miles and the eastern boundary of Gary is 5.25 miles from the proposed reactor building.

The cumulative population density data in the record shows actual and projected population at various distances from the Bailly site (October 1973 Stipulation; Staff Ex. 12) as follows:

Distance from

Population

Bailly 1970 1985

0 -- 5 miles 20,432 29,793

0 -- 20 miles 600,000 700,000

0 -- 30 miles 2,276,579 2,502,531

0 -- 40 miles 5,000,000 6,000,000

III

In enacting the Atomic Energy Act of 1954, Congress found that the regulation of the facilities used in connection with the production and utilization of atomic energy was necessary, among other purposes, "to protect the health and safety of the public." 42 U.S.C. § 2012(e). Another purpose was to provide "a program to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with the common defense and security and with the health and safety of the public." 42 U.S.C. § 2013(d).

"(N)o license (for a utilization or production facility) may be issued to any person within the United States if, in the opinion of the Commission, the issuance of a license to such person would be inimical to the common defense and security or to the health and safety of the public." 42 U.S.C. § 2133(d).

Finally, in connection with the applications for licenses to operate facilities, the applicant shall furnish such information "as the Commission may, by rule or regulation, deem necessary in order to enable it to find that the utilization or production of special nuclear material will be in accord with the common defense and security and will provide adequate protection to the health and safety of the public." 42 U.S.C. § 2232(a).

In evaluating the proposed site for a nuclear reactor the AEC has promulgated regulations which provide that it "will take . . . into consideration" three factors:

(1) Characteristics of reactor design and proposed operation;

(2) Population density and use characteristics of the site environs, including the exclusion area, low population zone and population center distance; and

(3) Physical characteristics of the site, including seismology, meteorology, geology and hydrology.

10 C.F.R. § 100.10.

Population density and use characteristics are further defined in 10 C.F.R. § 100.11. A license applicant is directed to assume (a) a fission product release from the core, (b) the expected demonstrable leak rate from the containment and (c) the meteorological conditions pertinent to his site, in order to derive the three area or population buffer zones of (1) exclusion area, (2) low population zone and (3) population center distance. The size or area of the first two buffer zones is determined by calculating that certain maximum radiation dosages, for stated periods after an accident, to an individual located on the outer boundaries of each zone not be exceeded. The third zone is one and one-third times the distance from the reactor to the outer boundary of the second zone.*fn5

NIPSCO in its brief before us has emphasized the complexity of determining the first two buffer zones "because each of the principal elements . . . (fission product release, containment leak rate, meteorological conditions) depends upon the applicant's proposed reactor plant design and site," making "no single formula" possible. (Br. at 10-11). The regulations, and the record herein insofar as it pertains to NIPSCO's attempt to comply with them, confirm the complex nature of determining the critical factor of "population density and use characteristics of the site environs" in regard at least to the first two buffer zones. Because of the complexity of that determination, which necessarily subsumes the expertise of the AEC in reaching definitive conclusions, we turn first to the problem of determining the third buffer zone, the solution of which is relatively simple and merely involves a mathematical computation and the interpretation of non-technical language, an area where no expertise beyond normal adjudication is required. See 4 K. Davis, Administrative Law Treatise § 30.09 (1958 ed. and 1970 Supp.).

10 C.F.R. § 100.11(a)(3) describes the third buffer zone as:

A population center distance of at least one and one-third times the distance from the reactor to the outer boundary of the low population zone.

10 C.F.R. § 100.3(c) adds:

"Population center distance" means the distance from the reactor to the nearest boundary of a densely populated center containing more than about 25,000 residents.

The ASLB approved NIPSCO's and the AEC Regulatory Staff's calculations of the radii of the three ...


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