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02/12/85 Guard, v. United States Nuclear

February 12, 1985




Tamm, Ginsburg, and Scalia, Circuit Judges.


Petition for Review of an Order of the Nuclear Regulatory Commission. 1985.CDC.29


Opinion for the Court filed by Circuit Judge GINSBURG.


As a condition for the issuance of a nuclear power reactor operating license, the Nuclear Regulatory Commission (NRC or Commission) must find "that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 10 C.F.R. § 50.47 (a)(1) ( 1984). To determine whether the needed "assurance" exists, the Commission reviews the license applicant's onsite and offsite emergency response plans for complains with enumerated standards. Id. § 50.47(b). One of the standards specifies that the response plans include "arrangments . . . for medical services for contaminated injured individuals." Id. § 50.47(b)(12). The instant petition for review concerns a Commission generic interpretation of this "arrangements . . . for medical services" standard.

In the course of operating license hearings for San Onofre Nuclear Generatidng Station Units 2 and 3, the NRC certified two definitional questions regarding section 50.47(b)(12) as that standard bears on the general public. *fn1 The Commission answered both questions not in relation to the SONGS record, but in a manner designed to give generic guidance. Souther California Edision Co., 17 N.R.C. 528, 530 (1983) [hereafter NRC Decision]. The NRC declared first that emergency response efforts should include consideration not only of "(1) those who become injured and are also contaminated," but also of "(2) those who may be exposed to dangerous levels of radiation." Id. *fn2 However, the Commission thereafter stated that, with respect to the second category of individuals -- those who may be exposed to dangerous levels of radiation but are not otherwise injured -- emergency plans suffice if they provide simply a list of pre-existing local and regional medical facilities capable of treating radiation exposure. Id. *fn3

The petition for review questions whether it is rational to qualify, as a form of "arrangements . . . made for medical services" for persons "exposed to dangerous levels of radiation," mere identification of whatever facilities happen to exist. We hold that the Commission did not reasonably interpret the section 50.47(b)(12) phrase "arrangements . . . made for medical services" when it declared, generically, that a simple list of treatment facilities already in place constitutes such arrangements.

In so ruling, we impose no tight restraint on the NRC's regulatory authority. The Commission, on remand, may concentrate on the SONGS record; it may revisit the question, not now before us for review, of the scope of the section 50.47(b)(12) phrase "contaminated injured individuals"; it may describe genuine "arrangements" for medical services for dangerously exposed members of the general public; or it may pursue any other rational course. It may not, however, interpret the section 50.47(b)(12) phrase "arrangements . . . made for medical services" as meaning something other than what those words, in the context of a nuclear power plant emergency planning standard, may rationally convey. I. BACKGROUND

On May 14, 1982, the Atomic Saftey and Licensing Board (Licensing Board) authorized full-power operating licenses for SONGS Units 2 and 3, subjects to the condition that within six months the applicants, in conformity with the Licensing Board's reading of section 50.47(b)(12), develop appropriate offsite medical arrangements. Southern California Edision Co., 15 N.R.C. 1163, 1187 (1982) [hereafter 1982 Licensing Board Decision]. Applicant Southern California Edision Company, an intervenor here, and the NRC staff had argued before the Licensing Board that section 50.47(b)(12) did not require medical plans for the general public; as they read the provision, it confined required plan coverage to people on, or in the immediate vicinity of, the nuclear plant site (mainly plant personnel and emergency workers from the neighboring community). In keeping with this interpretation, the applicants presented no specific offsite medical plans; instead, they maintained that offsite medical arrangements could be made ad hoc after a nuclear plan accident.

The Licensing Board characterized the applicant/staff reading of section 50.47(b)(12) as "narrow" and not in tune with the prescription's language or the historical context of the emergency planning regulations. Id. at 1187-90. In addition to determining that the standard required medical arrangements covering the general public, the Licensing Board clearly stated that it read section 50.47(b)(12) to encompass offsite persons who, even if not otherwise injured, suffer exposure to dangerous levels of radiation. Id. at 1197-200 & n.30. Under the Licensing Board interpretation, the applicants had not made the necessary offsite medical presentation, and would be required to do so as a condition of their licenses.

GUARD (Groups United Against Radiation Danger), and intervenor before the Licensing Board, and petitioner here, requested the Atomic Safety and Licensing Appeal Board (Appeal Board) to stay the Licensing Board's authorization of operating licenses pending appeal of the Licensing Board's decision. The Appeal Board denied the stay. In dictum, the Appeal Board registered its disagreement with the Licensing Board's interpretation of section 50.47(b)(12). The Appeal Board did not advert to any onsite/offsite distinction; it regarded as critical the provision's reference to "contaminated injured individuals" as the targeted group. The Appeal Board interpreted that phrase to mean only persons who are both contaminated and physically injured in some other manner as well. *fn4 Based on its understanding that section 50.47(b)(12) does not reach members of the public who suffer only radiation exposure, the Appeal Board agreed with the NRC staff that arrangements for radiation victims could be made ad hoc after an accident. Southern California Edison Co., 16 N.R.C. 127, 136-38 (1982).

The NRC declined to review the Appeal Board's denial of the stay. Noting the disagreement between the Appeal Board and the Licensing Board on the meaning of section 50.47(b) (12), however, the Commission directed certification to it of the following two questions:

(1) Does the phrase "contaminated injured individuals" as used in 10 CFR 50.47(b)(12) require applicants for nuclear power plants to provide arrangements for medical services only for members of the public who have suffered traumatic ...

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