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NADER v. RAY

July 13, 1973

Ralph NADER et al., Plaintiffs,
v.
Dixy Lee RAY et al., Defendants, Carolina Power & Light Company et al., Intervenors-Defendants, and General Electric Company, Intervenor-Defendant


John H. Pratt, District Judge.


The opinion of the court was delivered by: PRATT

JOHN H. PRATT, District Judge.

 Findings of Fact

 A. Background and Plaintiffs' Complaint

 1. On May 31, 1973 plaintiffs filed a verified complaint alleging that the defendant United States Atomic Energy Commission ("AEC" or "Commission") was in violation of § 186(a) of the Atomic Energy Act of 1954 (42 U.S.C. § 2236(a)) and also in violation of its own regulations (10 C.F.R. § 50.100). The complaint asserts that under the facts alleged therein, the AEC is under a non-discretionary legal duty to revoke the operating licenses of 20 named nuclear power reactors. [Complaint 13, 14, 36] On June 15, 1973 plaintiffs filed a motion for a preliminary injunction restraining the AEC from permitting the continued operation of the 20 named plants.

 2. The issue raised by plaintiffs concerns the "emergency core cooling system" ("ECCS") of each of the named reactors. The ECCS is an engineered safety system whose function is to prevent the "core" of the reactor *fn1" from attaining excessively high temperatures and experiencing excessive loss of integrity in the event of a particular kind of hypothesized reactor accident, called a "loss-of-coolant accident." *fn2"

 3. Commission regulations require every light-water-cooled nuclear power reactor to contain an ECCS which must "provide abundant emergency cooling." 10 C.F.R. Part 50, Appendix A, Criterion 35. Each of the 20 reactors named in the complaint is a light-water-cooled nuclear power reactor, and each has an ECCS.

 4. In order for the ECCS of such a reactor to be found acceptable by the Commission, it must be shown by complex computer calculations that the ECCS complies with certain criteria imposed by the Commission and embodied in Commission regulations. Those criteria, which are generally referred to as the "Interim Acceptance Criteria" ("IAC") were contained in an Interim Policy Statement published by the Commission on June 29, 1971. 36 Fed.Reg. 12,247-48 (June 29, 1971). The calculational methods by which compliance with the IAC must be shown are specifically prescribed in detail by the Commission, in the form of complex mathematical "evaluation models." 36 Fed.Reg. 12,249-50 (June 29, 1971); 36 Fed.Reg. 24,082-83 (Dec. 18, 1971).

 5. Plaintiffs' complaint alleges (a) that the AEC's scientific advisors in ECCS matters are in "virtually unanimous" agreement that compliance by a reactor's ECCS with the IAC is not sufficient to ensure the effectiveness of the ECCS; (b) that the Commission nevertheless has licensed and continued to permit the operation of the nuclear plants named in the complaint on the basis of compliance with the IAC; (c) that the continued operation of these nuclear plans represents agency action beyond the Commission's statutory authority; and (d) that consequently the Commission is under a non-discretionary legal duty to revoke the licenses of those plants. [Complaint, 30, 32-36.]

 B. Motions to Intervene

 6. Nineteen electric utility companies filed timely motions to intervene as defendants as of right under Fed.R.Civ.P. 24(a), with supporting affidavits. The 19 utilities own the 20 nuclear power plants named in the complaint, and operate those plants under facility operating licenses granted by the AEC. If plaintiffs prevail, these operating licenses would be suspended or revoked and the 20 plants would be shut down. 42 U.S.C. § 2131.

 7. The General Electric Company ("GE") filed a timely motion to intervene as a defendant as of right under Fed.R.Civ.P. 24(a), with supporting affidavits. The affidavits, which are uncontroverted, show that GE is a designer and manufacturer of "boiling water" nuclear power reactors, which have been sold and are being sold to electric utility companies. Some of the 20 reactors named in the complaint were designed and manufactured by GE. If the IAC were to be declared invalid by this Court, or if this Court were to find that compliance with the IAC is not, as a matter of law, a sufficient finding to permit the granting of an operating license, the licensability of GE reactors designed to comply with the IAC could be open to question, and GE's ability to compete with other nuclear reactor manufacturers and with vendors of fossil-fueled generating plants could be impaired. If the Court sets aside the present IAC, GE might be subjected to contractual claims for any necessary modifications to reactors it has sold or contracted to sell and for which AEC operating licenses have not yet been issued. Changes in the IAC might also delay contractual payments to GE by delaying the time in which GE could meet its contractual obligations. In addition, GE is a participant in the AEC's ECCS Rule-making proceeding (discussed below). [Affidavit of Robert Lowenstein, passim.]

 8. In the June 29, 1971 Federal Register notice promulgating the IAC and three approved ECCS evaluation models, the Commission invited comments and suggestions from interested members of the public for a 60-day comment period. The notice stated that

 
"[the] Commission will consider all such comments and suggestions with the view to possible amendments and will issue a report." 36 Fed.Reg. 12,250.

 Plaintiffs did not submit any comments or suggestions to the Commission.

 9. In the December 18, 1971 Federal Register notice prescribing two additional evaluation models, the Commission invited comments and suggestions from interested members of the public for a 30-day period. 36 Fed.Reg. 24,083. Plaintiffs did not submit any comments or suggestions to the Commission.

 10. The record before the Court contains no evidence that plaintiffs moved the Commission for reconsideration of, or otherwise challenged, the adoption of the IAC or the evaluation models.

 11. The record before the Court contains no evidence that plaintiffs sought judicial review of the Commission's promulgation of the IAC or the evaluation ...


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