1992.10.29

1985(Gyo-Tsu)133

Minshu Vol. 46, No. 7

Judgment concerning how to examine and make a determination on a dispute in an action to seek revocation of an administrative disposition to grant permission for the installation of reactors

Case to seek revocation of the administrative disposition to grant permission for the installation of reactors at the Ikata Nuclear Power Plant

Judgment of the First Petty Bench, dismissed

Takamatsu High Court, Judgment of December 14, 1984

1. When the court examines and makes a determination on a dispute in an action filed to seek revocation of an administrative disposition to grant permission for the installation of reactors, in which the point in dispute is the appropriateness of the defendant administrative agency's assessment on the safety of the reactor facilities, the court should focus on whether or not there are unreasonable aspects in the assessment that the defendant administrative agency has made on the basis of the expert technical investigation, deliberation and assessment by the Atomic Energy Commission or the Reactor Safety Examination Committee; if, in light of the current science and technology standards, it is found that there are unreasonable aspects in the specific examination criteria employed in that investigation and deliberation, or there are errors or omissions that cannot be overlooked in the investigation, deliberation or assessment process through which the Atomic Energy Commission or the Reactor Safety Examination Committee assessed the relevant reactor facilities to be in conformity with said specific examination criteria, and the defendant administrative agency is deemed to have relied on these factors when making its assessment, the defendant administrative agency's assessment should be held to encompass unreasonable aspects, and therefore the administrative disposition to grant permission for the installation of reactors that has been issued based on that assessment should be considered to be illegal. 2. In an action filed to seek revocation of an administrative disposition to grant permission for the installation of reactors, in which the point in dispute is the appropriateness of the defendant administrative agency's assessment on the safety of the reactor facilities, the plaintiff should primarily bear the burden of allegation and proof regarding the existence of unreasonable aspects in the defendant administrative agency's assessment; however, the defendant administrative agency should first allege and prove, based on the substantial evidence and materials, that there are no unreasonable aspects in the specific examination criteria employed in the investigation and deliberation by the Atomic Energy Commission or the Reactor Safety Examination Committee or the investigation, deliberation and assessment process, etc. which the defendant administrative agency relied on, and if the defendant administrative agency fails to submit sufficient allegation and proof on this issue, it is presumed on a factual basis that the defendant administrative agency's assessment includes unreasonable aspects. 3. The safety examination to be conducted in the stage of granting permission for the installation of reactors should be considered to only cover the matters concerning the safety of the basic design of the relevant reactor facilities.

(Concerning 1 to 3) Articles 23 and 24 of the Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material and Reactors (prior to the amendment by Act No. 80 of 1977); (Concerning 1 and 2) Article 30 of the Administrative Case Litigation Act; (Concerning 2) Article 185 of the Code of Civil Procedure Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material and Reactors (prior to the amendment by Act No. 80 of 1977) Article 23 (1) Any person who intends to install a reactor shall obtain the permission of the Prime Minister pursuant to the provision of the Cabinet Order. (2) Any person who intends to obtain the permission set forth in the preceding paragraph shall submit an application form containing the following matters to the Prime Minister: (i) the name and address of the applicant and, in the case of a juridical person, the name of its representative, (ii) the purpose for which the reactors are to be used, (iii) the type, thermal output and number of reactors, (iv) the name and address of the factory or place of activity where the reactors are to be installed (in the case that the reactors are to be installed on a vessel, the name and address of the factory or place of activity of the shipbuilder who is to build the vessel and the address of the vessel when performing construction for installing the reactors), (v) the location, structure and equipment of the reactors and auxiliary facilities (hereinafter referred to as "reactor facilities"), (vi) the construction plan for reactor facilities, (vii) the type and amount scheduled for annual use of nuclear fuel material to be used as fuel for the reactors, and (viii) the method for disposing of spent fuel. Article 24 (1) In the case that an application for the permission set forth in Article 23 (1) is made, the Prime Minister shall not grant the permission in said paragraph unless he/she finds that the application conforms with each of the following items: (i) that the reactors will not be utilized for non-peaceful purposes, (ii) that granting the permission will not hinder the planned development and utilization of atomic energy, (iii) that the applicant (including the shipbuilder who constructs the vessel in the case that reactors are to be installed on a vessel) has sufficient technical capability and financial basis necessary for establishment of reactors, and has sufficient technical capability for operating the reactors competently, and (iv) that the location, structure and equipment of the reactor facilities are such that they will not hinder the prevention of disasters resulting from nuclear fuel material (including spent fuel; the same shall apply hereinafter), material contaminated by nuclear fuel material (including fission products; the same shall apply hereinafter) or the reactors. (2) In granting the permission referred to in Article 23, paragraph (1), the Prime Minister must hear, in advance, the opinion of the Atomic Energy Commission with respect to the application of the criteria provided in the items of the preceding paragraph, and respect such opinion. Administrative Case Litigation Act Article 30 The court may revoke an original administrative disposition made by an administrative agency at its discretion only in cases where the disposition has been made beyond the bounds of the agency's discretionary power or through an abuse of such power. Code of Civil Procedure Article 185 When making a judgment, the court, in light of the entire import of the oral argument and the result of the examination of evidence, and based on its free determination, shall decide whether or not the allegations on facts are true.

The final appeal is dismissed. The appellants of final appeal shall bear the cost of the final appeal.

Concerning the Introduction, Chapters I and II, and Chapter V, Section I of the reasons for final appeal argued by the appeal counsel The findings and determination made and the measures taken by the court of prior instance with regard to the points argued by the appeal counsel can be accepted as justifiable in light of the case records and the evidence cited in the judgment in prior instance, and the process followed by the court of prior instance does not involve such illegality as argued by them. The appeal counsel argue as follows. Article 31 of the Constitution should be interpreted as requiring that a law to provide for procedures for regulating the installation of a nuclear power plant by an electricity company, etc. should set out [1] participation in the installation regulation procedures by residents living near the planned site of reactors, [2] disclosure of all of the application for installation, attached documents, and examination materials, and [3] establishment of clear and quantitative criteria for the installation of reactors (safety criteria). The provisions concerning the installation regulation procedures in the Atomic Energy Basic Act (prior to the amendment by Act No. 86 of 1978; hereinafter referred to as the "Basic Act") and the Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material and Reactors (prior to the amendment by Act No. 80 of 1977; hereinafter referred to as the "Regulation Act") fail to set out these three points and thus they violate Article 31 of the Constitution. Furthermore, the administrative disposition to grant permission for the installation of reactors disputed in this case was issued without providing the appellants of final appeal with the opportunity to receive notice of the installation plan and be heard, and thus it also violates said Article. Even in the case where an administrative proceeding should be considered to be eligible for protection under Article 31 of the Constitution, it is in nature different from a criminal proceeding. In addition, there are various types of administrative proceedings depending on administrative purposes. Therefore, it is appropriate to construe that administrative proceedings do not always need to be accompanied by certain procedures such as providing the party subject to an administrative disposition with the opportunity to receive prior notice, and to explain and defend themselves. The examination as to whether or not an application for permission for installation of reactors meets the criteria prescribed in the items of Article 24, paragraph (1) of the Regulation Act requires a considerably high level of expert technical assessments relating to the conformity to the plan on development and use of reactors and the safety of reactor facilities. Accordingly, paragraph (2) of said Article provides that when granting such permission, it is necessary to hear the opinion of the Atomic Energy Commission, which consists of persons with knowledge and experience in the relevant specialized fields, and respect such opinion. In view of this, although the Basic Act and the Regulation Act do not provide for procedures to allow residents living near the planned site of reactors to participate in the reactor installation permission procedures, or the disclosure of applications for installation and other documents, it cannot be said, only because of this fact, that these two Acts are contrary to the legislative purpose of Article 31 of the Constitution. Nor can it be said that it is contrary to the legislative purpose of said Article that the appellants, who are residents living near the planned site, were not given the opportunity to receive notice and be heard during the process of issuing the administrative disposition to grant permission for the installation of reactors disputed in this case. This is clear from the purport of the judicial precedent, 1986 (Gyo-Tsu) No. 11, judgment of the Grand Bench of the Supreme Court of July 1, 1992 (Minshu Vol. 46, No. 5, at 437). As the criteria for granting permission for the installation of reactors, Article 24, paragraph (1), item (iv) of the Regulation Act provides that the location, structure and equipment of the reactor facilities are required to be such that they will not hinder the prevention of disasters resulting from nuclear fuel material (including spent fuel), material contaminated by nuclear fuel material (including fission products) or the reactors. This provision is considered to be based on the following view: the examination on the safety of reactor facilities, as detailed below, needs to be conducted based on a wide-ranging, considerably high level of scientific, expert technical knowledge, and what is more, in light of the constant advancement and progress of science and technology, it is not only difficult to set out safety criteria for reactor facilities in specific details by law, but it is also inappropriate to do so from the perspective of the need to respond to the latest science and technology standards instantly. This view is sufficiently acceptable. Moreover, in relation to the process of granting permission for installation, a careful procedure is set out in the relevant provisions, that is, to hear the opinion based on scientific, expert technical knowledge of the Atomic Energy Commission, which consists of persons with knowledge and experience in the relevant specialized fields, and respect such opinion, in order to ensure proper examination as to the safety of the location, structure and equipment of the reactor facilities specified in an application for permission. Also taking this into consideration, the criticism that the relevant provisions are unreasonable or unclear should be held to be unjustified. Consequently, although the appeal counsel argue violation of Article 31 of the Constitution on the premise that said provisions are unreasonable and unclear, their arguments lack a premise, and therefore cannot be accepted. The appeal counsel also argue that the administrative disposition to grant permission for the installation of reactors disputed in this case was issued on the basis of the safety examination conducted according to the safety criteria for reactor facilities that were not established by law or anything delegated by law, and hence it violates Article 41 and Article 73, item (i) of the Constitution as well as Articles 12 and 13 of the National Government Organization Act. However, the safety examination of the reactor facilities in question was conducted based on the provisions of Article 24, paragraph (1), item (iv) of the Regulation Act, which can be held to be sufficiently reasonable. Thus, the appeal counsel's arguments made on the premise that the safety examination was not conducted based on any provisions of law should be held to lack a premise, and therefore cannot be accepted. The other arguments of the appeal counsel alleging violation of the Constitution are nothing more than assertions made on the premise of facts that the court of prior instance did not find. The judicial precedents cited by the appeal counsel are irrelevant in this case because they all addressed different types of cases. None of their arguments are acceptable. Concerning Chapter III A person who intends to install reactors is required to obtain permission from the Prime Minister (Article 23, paragraph (1) of the Regulation Act). The Prime Minister must not grant permission unless he/she finds that an application for permission for installation of reactors conforms to the items of Article 24, paragraph (1) of said Act (paragraph (1) of said Article). When granting permission, the Prime Minister must hear in advance the opinion of the Atomic Energy Commission, which has jurisdiction over matters such as regulations for nuclear fuel material and reactors, with respect to the application of the criteria provided in said items, and respect such opinion (paragraph (2) of said Article; as a result of the amendment by Act No. 86 of 1978, the authority to grant permission for the installation of commercial power reactors has been transferred to the appellee of final appeal, and pursuant to Article 3 of the Supplementary Provisions of said Act, permission for the installation of such reactors that had been granted by the Prime Minister under the provisions of the Regulation Act prior to the amendment is deemed to have been granted by the appellee). Within the Atomic Energy Commission, the Reactor Safety Examination Committee has been established as an organization consisting of persons with relevant knowledge and experience and personnel of the related administrative agencies, and is to investigate and deliberate on matters concerning the safety of reactors (Articles 14-2 and 14-3 of the Act for Establishment of the Japan Atomic Energy Commission (prior to the amendment by Act No. 86 of 1978)). Article 24, paragraph (1) of the Regulation Act provides that examination should be conducted as to whether the person who intends to install reactors has sufficient technical capabilities necessary for installing reactors and for operating the reactors competently (item (iii) of said paragraph), and whether the location, structure and equipment of the reactor facilities specified in the application for permission are such that they will not hinder the prevention of disasters resulting from nuclear fuel material (including spent fuel), material contaminated by nuclear fuel material (including fission products) or the reactors (item (iv) of said paragraph). The reason why these matters have been set out as criteria for granting permission for the installation of reactors is understood as follows. Reactors are equipment fueled by nuclear fuel material that releases high energy in the process of nuclear fission, and when in operation, they internally produce a great amount of radioactive material that is harmful to humans. Therefore, if a person who intends to install reactors lacks the prescribed technical capabilities for installing and operating reactors or if the safety of the reactor facilities is not assured, this could cause serious disasters such as by harming the lives and health of the workers at the reactor facilities and the residents living near the facilities, or contaminating the surrounding environment with radiation. In light of such risk, and with a view to ensuring that such a disaster will not take place by any chance, said criteria are intended to ensure that sufficient examination will be conducted from scientific and technical perspectives during the process of granting permission for the installation of reactors, with regard to the technical capabilities of the person who intends to install reactors and the safety of the location, structure and equipment of the reactor facilities specified in the application for permission. The examination on the safety of reactor facilities including the technical capabilities as mentioned above is to study, from a multifaceted and comprehensive perspective, matters such as the engineering safety of the reactor facilities themselves, the radiation effect on the workers, neighboring residents and surrounding environment when the reactors are in normal operation, and the effect on the neighboring areas in the event of an accident, in connection with natural conditions of the planned site of reactors (e.g. the land features, nature of the soil, and weather), social conditions (e.g. population distribution), and the abovementioned technological capabilities of the person who is to install reactors. This examination also covers matters concerning future forecasts. Thus, it is obvious that said examination requires comprehensive assessment based on the latest scientific, expert technical knowledge of a considerably high level not only in the field of nuclear engineering but also across a wide range of fields. Article 24, paragraph (2) of the Regulation Act provides that in granting permission for the installation of reactors, the Prime Minister must hear in advance the opinion of the Atomic Energy Commission with respect to the application of the criteria provided in paragraph (1), item (iii) of said Article (limited to the part concerning technical capabilities) and in item (iv) of said paragraph, and respect such opinion. It is appropriate to construe that the purpose of this provision is to, in consideration of such characteristics of the examination on the safety of reactor facilities as explained above, leave the issue of conformity to the criteria provided in these items to the reasonable assessment to be made by the Prime Minister while respecting the opinion based on scientific, expert technical knowledge of the Atomic Energy Commission, which consists of persons with knowledge and experience in the relevant specialized fields. Taking these points into consideration, when the court examines and makes a determination on an dispute in an action filed to seek revocation of an administrative disposition to grant permission for the installation of reactors, in which the point in dispute is appropriateness of the defendant administrative agency's assessment on the safety of the reactor facilities, the court should focus on whether or not there are unreasonable aspects in the assessment that the defendant administrative agency has made on the basis of the expert technical investigation, deliberation and assessment by the Atomic Energy Commission or the Reactor Safety Examination Committee. If, in light of the current science and technology standards, it is found that there are unreasonable aspects in the specific examination criteria employed in that investigation and deliberation, or there are errors or omissions that cannot be overlooked in the investigation, deliberation or assessment process through which the Atomic Energy Commission or the Reactor Safety Examination Committee assessed the relevant reactor facilities to be in conformity to said specific examination criteria, and the defendant administrative agency is deemed to have relied on these factors when making its assessment, the defendant administrative agency's assessment should be held to include unreasonable aspects, and therefore the administrative disposition to grant permission for the installation of reactors that has been issued based on that assessment should be considered to be illegal. In such an action to seek revocation of an administrative disposition to grant permission for the installation of reactors, in light of such nature of this administrative disposition as mentioned above, the plaintiff should primarily bear the burden of allegation and proof regarding the existence of unreasonable aspects in the defendant administrative agency's assessment. However, considering that all of the materials concerning the safety examination of the relevant reactor facilities are in the hands of the defendant administrative agency, the defendant administrative agency should first allege and prove, based on the substantial evidence and materials, that there are no unreasonable aspects in the specific examination criteria or the investigation, deliberation and assessment process, etc. which the defendant administrative agency relied on. If the defendant administrative agency fails to submit sufficient allegation and proof on this issue, it is presumed on a factual basis that the defendant administrative agency's assessment includes unreasonable aspects. From the same viewpoint as above, the court of prior instance determined the appropriateness of the administrative disposition to grant permission for the installation of reactors disputed in this case. Such determination is justifiable, and the judgment in prior instance does not involve such illegality as argued by the appeal counsel. The appeal counsel also argue violation of the Constitution. However, their arguments are in effect nothing more than assertions of unappealable violation of laws and regulations, and as mentioned above, the judgment in prior instance does not involve such violation of laws and regulations. None of the appeal counsel's arguments can be accepted. Concerning Chapter IV The Regulation Act divides the subjects of its regulation into the following categories, i.e. refining activities (Chapter II), fabrication and enrichment activities (Chapter III), installation, operation, etc. of reactors (Chapter IV), reprocessing activities (Chapter V), use, etc. of nuclear fuel material, etc. (Chapter VI), and use of international controlled material (Chapter VI-2), and it requires that designation, permission, approval, etc. be obtained from the Prime Minister for each category. Therefore, the regulations concerning the installation, operation, etc. of reactors prescribed in Chapter IV are applicable exclusively to the matters prescribed in said chapter such as permission for the installation of reactors, and it is obvious that these regulations do not cover such matters that are contemplated to be regulated under the provisions of other chapters. Furthermore, looking at the contents of the regulations concerning the installation, operation, etc. of reactors in Chapter IV of the Regulation Act, this chapter provides for matters such as permission for installation of reactors or permission for changes to matters relating to reactors (Articles 23 to 26-2), and also provides for approval of the design and construction method (Article 27), pre-operational inspection (Article 28), approval of operational safety programs (Article 37), periodic inspection (Article 29), and notification of dismantling of reactors (Article 38), and these regulations are to be enforced by stages (Article 73 of the Regulation Act provides that Articles 27 to 29 do not apply to power reactor facilities such as the reactors disputed in this case, because these facilities are subject to the requirements to obtain approval for their construction plans and undergo pre-operational and periodic inspections as provided in Articles 41, 43 and 47 of the Electricity Business Act (prior to the amendment by Act No. 83 of 1983)). Consequently, in the stage of granting permission for the installation of reactors, only the basic design of the relevant reactors is subject to the regulations, and the specific details of the design of the reactors and the construction method, which are to be regulated in the subsequent stage of approving the design and construction method (Article 27), are not covered by the regulations relevant to the former stage. In light of the structure of regulations under the Regulation Act as reviewed above, it is appropriate to construe that the safety examination to be conducted in the stage of granting permission for the installation of reactors does not cover all the matters concerning the safety of the reactor facilities, but only covers matters concerning the safety of their basic design. Permission for the installation of reactors is an important administrative disposition that is to be issued in the beginning of the series of regulations for the installation and operation of reactors, and the safety of the basic design of the reactors that is confirmed in the stage of granting permission for the installation of reactors is taken as a precondition for the subsequent regulatory stages. Hence, even where the scope of subjects of the safety examination to be conducted in the stage of granting permission for installation of reactors is defined as above, this does not at all reduce the significance or importance of said safety examination. From the same viewpoint as this, the court of prior instance determined that the matters concerning the method of final disposal of solid waste, the methods of reprocessing and transport of spent fuel, and the effect of the heat of hot waste water are not included in the scope of subjects of the safety examination to be conducted in the stage of granting permission for installation of reactors. Such determination can be affirmed as justifiable, and the judgment in prior instance does not involve such illegality as argued by the appeal counsel. None of their arguments can be accepted. Concerning Chapter V, Section II Given the facts legally determined by the court of prior instance, the court determined that the procedures for investigating and deliberating on the safety of reactor facilities, which were followed by the Reactor Safety Examination Committee and the special committee set up under the Atomic Energy Commission, do not involve any defects that are found to be contrary to the purpose of Article 24, paragraph (2) of the Regulation Act, which requires the Prime Minister to hear and respect the opinion of the Atomic Energy Commission when granting permission for the installation of reactors, and that these procedures were not illegal. Such determination can be affirmed as justifiable, and the judgment in prior instance does not involve such illegality as argued by the appeal counsel. None of their arguments can be accepted. Concerning Chapter V, Section III Given the facts legally determined by the court of prior instance, the court determined that the accident at the Three Mile Island Unit 2 reactor and its cause, argued by the appeal counsel, do not affect the reasonableness of the safety examination conducted with regard to the reactor facilities disputed in this case. Such determination can be affirmed as justifiable, and the judgment in prior instance does not involve such illegality as argued by the appeal counsel. None of their arguments can be accepted. Concerning Chapter V, Section IV The facts found by the court of prior instance with regard to the points argued by the appeal counsel are acceptable in light of the evidence cited in the judgment in prior instance. According to these facts as well as the other facts it legally determined, the court of prior instance determined that unreasonable aspects cannot be found in the investigation, deliberation or assessment conducted or made by the Atomic Energy Commission or the Reactor Safety Examination Committee with regard to the safety of the reactor facilities disputed in this case, and that the administrative disposition to grant permission for the installation of the reactor facilities based on these is legal. Such determination can be affirmed as justifiable, and the judgment in prior instance does not involve such illegality as argued by the appeal counsel. The appeal counsel also argue violation of the Constitution, but their arguments are in effect assertions of unappealable violation of laws and regulations. None of their arguments can be accepted. Therefore, according to Article 7 of the Administrative Case Litigation Act, and Articles 401, 95, 89 and 93 of the Code of Civil Procedure, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice ONO Motoo Justice OHORI Seiichi Justice HASHIMOTO Shirohei Justice MIMURA Osamu Justice MIYOSHI Toru