The Supreme Court yesterday agreed to review a ruling that threatens the growth and possibly the long-term survival of nuclear power plants.
The ruling held unconstitutional a $560 million limit on damages for deaths, injuries and property losses that all victims together could collect in a nuclear accident.
The limit is in the Prime-ANDERSON Act of 1957. Congress passed it because equipment suppliers and electric utilities were unable or unwilling to make substantial investments in nuclear power unless their liability were limited.
The law had a 10-year deadline. Congress extended it in 1966 and again in 1975 without raising the $560 million limit to allow for inflation, for increases in reactor size and for estimates that the harm caused by a nuclear accident could be twice as great as was assumed 20 years ago.
Under the 1975 extension, private insurance bought by the plant owners would pay up to $140 million. Assessments of up to $5 million each on the owners of the 65 plants now operating would pay up to $325 million more. The government would be liable for the balance of up to $95 million.
Federal Judge James B. McMillan, in an April 15 ruling, said that a so-called core-melt accident "can reasonably be expected to produce hundreds or thousands of fatalities, numerous illnesses, genetic effects of unpredictable degree and nature for succeeding generations, tbyraid ailments and cancers in numerous people, damage to other life and widespread damage to property."
"Areas as large as several thousand square miles might be contaminated and require evacuation," McMillan said in his opinion issued in Charlotte, N.C. "It would not require death or serious injuries to many people to exceed the $560 million . . . limitations."
He went on to say:
"Without the protection of the Price-Anderson Act, regardless of the desires of the nuclear power industry, power companies would probably not be able to obtain the necessary financing, supplies and architectural skills to build nuclear power plants and to maintain them once construction is complete."
But McMillan said, the law violates the constitutional guarantee of due process "because it allows the destruction of the property or the lives of those affected by nuclear catasrophe without reasonable certainty that the victims will be justly compensated."
And, he said, Price-Anderson violates the constitutional guarantee of equal protection of the laws "because it provides for what Congress deemed to be a benefit for the whole society (the encouragement of the generation of nuclear power), but places the cost of that benefit on an arbitrarily chosen segment of society those injured by nuclear catastrophe."
McMillan also said that Price-Anderson "tends to encourage irresponsibility in matters of safety and environmental protection rather than to encourage responsibility on the part of builders and owners."
He termed the $560 million limit "unnecessary to serve any legitimate public purpose," adding that there is no quid pro quo because reactor operators "give up nothing of consequence" in exchange for the liability limit.
"Environmentalists hailed his ruling. The nuclear industry - including trade associations representing consumer-owned power companies and rural electric cooperatives - denounced it.
The Atomic Industrial Forum, Inc., composed of about 600 companies, organizations and individuals, said that removing the liability limitation could have "devasting" consequences, particularly detering construction of nuclear plants to ease the energy shortage.
The government, joining the Duke Power Co. in appealing McMillan's ruling, told the Supreme Court that the judge "has confronted the operators of nuclear power plants and those who supply equipment for use in such plants with the threat of enormous unindemnified liability, a threat that might act as a substantial deterrent to private participation in the development of nuclear energy."
Solicitor General Wade H. McCree filed the government brief for the Nuclear Regulatory Commission, which licensed Duke Power to build two huge nuclear power stations near Charlotte.
The Carolina Environmental Study Group, Inc., the Catawba Central Labor Union and 37 persons who live a half mile to 20 miles from the stations sued the NRC and Duke Power separately in 1973, asking that construction of the plants be blocked because the limit on liability was unconstitutional.
McCree, the environmental group and its allies, and eight friend-of-the-court briefs all had urged the Supreme Court to hear the constitutional issues rather than decide the cases summarily. The court set aside an hour for argument and probably will hear it next spring.
Before ruling, McMillan toured the McGuire Nuclear Station, a $1 billion facility nearing completion about 17 miles northwest of Charlotte. The other facility, the Catawba Nuclear Station, is being built on Lake Wylie, S.C., about 15 miles southwest of Charlotte.
McMillan's tour impressed him with the "obvious competence and discipline and engineering know-how and determination" of the utility to tame the "Promethean" power of McGuire (1.25 million net kilowatts in each of two reactors).
But he was concerned with the possibility of failure of an emergency reactor cooling system.
A major system failure could allow a core to melt, rupture the reactor housing, and release into the atmosphere radioactivity from a reactor containing about 1,000 times as much radioactive material "as the bomb which devastated Hiroshima," the judge said. Charlotte's population is nearly 300,000; about 1.5 million people live within a 50-mile radius of each plant.
McMillan found "as a fact that the probability of a major nuclear accident producing damages exceeding the $560 million limit . . . is not fanciful but real." That, he said, "is not the kind of risk which responsible government or business places upon bystanders."