Massachusetts v. U.S., 07-1482.

Citation522 F.3d 115
Decision Date08 April 2008
Docket NumberNo. 07-1482.,No. 07-1483.,07-1482.,07-1483.
PartiesCommonwealth of MASSACHUSETTS, Petitioner, v. UNITED STATES; United States Nuclear Regulatory Commission, Respondents, Entergy Nuclear Operations, Inc.; Entergy Nuclear Vermont Yankee LLC; Entergy Nuclear Generation Company, Intervenors.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Matthew Brock, Assistant Attorney General, with whom Martha Coakley, Attorney General, Diane Curran, and Harmon, Curran, Spielberg & Eisenberg, L.L.P., were on brief, for petitioner.

Steven C. Hamrick, Attorney, with whom Karen D. Cyr, General Counsel, John F. Cordes, Jr., Solicitor, E. Leo Slaggie, Deputy Solicitor, U.S. Nuclear Regulatory Commission, Ronald J. Tenpas, Acting Assistant Attorney General, and Lane M. McFadden, Attorney, U.S. Department of Justice, were on brief, for respondents.

David R. Lewis with whom Paul A. Gaukler and Pillsbury Winthrop Shaw Pittman LLP, were on brief, for interveners.

Before TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

The Commonwealth of Massachusetts wishes to ensure that the United States Nuclear Regulatory Commission ("NRC" or the "Commission") will take account of the Commonwealth's safety concerns about treatment of spent fuel rods before the NRC decides whether to renew the operating licenses of two nuclear energy plants: the Pilgrim plant in Plymouth, Massachusetts, and the Vermont Yankee plant in Vernon, Vermont, which is within ten miles of the Massachusetts border. The licenses were originally issued in 1972 and will expire in 2012; the re-licensing proceedings have been initiated and are ongoing.

The Commonwealth says that old assumptions about safe storage of spent fuel rods — on which the NRC has relied since at least the early 1970s — no longer hold. The Commonwealth claims that more recent studies and changed circumstances indicate an increased risk that the plants' method of storing spent fuel rods will lead to an environmental catastrophe. It also raises its concern that the plants' method of storing spent fuel leaves the plants vulnerable to terrorist attack.

Both sides agree that the safety issues raised are deserving of careful consideration. Both sides also agree that the Commonwealth is by law permitted to raise its various concerns by some path and to obtain judicial review of any NRC decision that adversely affects its interests in this matter. The question presented here is whether the Commonwealth has, from the regulatory maze, chosen the correct path for doing so. The Commonwealth insists it has chosen the appropriate path, indeed, the only one available to it. In short, the Commonwealth argues that it must be allowed to participate directly in the relicensing proceedings as a party in order to get its safety-based contentions heard. In the alternative, the Commonwealth argues that the NRC must ensure that it resolves a separate rulemaking petition, initiated by the Commonwealth and based on the same concerns about spent fuel storage, before the Commission issues any renewal licenses so that the results of the rulemaking will apply to the Pilgrim and Vermont Yankee re-licensing proceedings.

The NRC says the Commonwealth has chosen the wrong path, indeed, one precluded by its regulations. The agency also says that another option is available, is the proper path to be followed, and will adequately protect the state's interests. According to the NRC, the Commonwealth must abandon its attempt to attain formal "party" status in the licensing proceedings and instead seek to participate in those proceedings as an "interested governmental entity." The Commonwealth may, in that capacity, petition the agency to delay issuance of the renewal licenses until the Commonwealth's request for a rulemaking is resolved. Indeed, the NRC has committed itself in this case to an interpretation of its regulations in such a way as to provide this alternative path, complete with opportunities for eventual judicial review, to the Commonwealth.

We hold as a matter of law that the Commonwealth has chosen the wrong path in seeking to raise the safety issues as a party in the licensing proceedings and deny its petition. We also bind the NRC to its litigation position, described in more detail below. This leaves the Commonwealth free to follow the NRC's preferred path if it so chooses. To the extent the Commonwealth seeks an order from this court interfering with the NRC's ongoing re-licensing proceedings by imposing decision-making timetables on the agency, we issue a very brief stay but otherwise decline to issue such relief.

I. Regulatory Background

A description of the regulatory scheme governing the process for renewing licenses to operate nuclear power plants, is helpful to understand this case. The Atomic Energy Act ("AEA") contains the statutory basis for issuing and renewing such licenses. See 42 U.S.C. §§ 2133, 2134(b). The AEA empowers the NRC to make licensing decisions. Id. §§ 2133, 2134(b). The AEA provides for initial operating licenses valid for up to forty years and specifies that licenses "may be renewed." Id. § 2133(c).1 The AEA says nothing more about requirements for re-licensing, instead delegating to the NRC authority to determine applicable rules and regulations. Id. §§ 2133, 2134(b).

The NRC has codified two distinct sets of regulations containing requirements for license renewal applications. The first set of regulations focuses on technical issues such as equipment aging. See, e.g., 10 C.F.R. § 54.4 (defining scope of renewal requirements in 10 C.F.R. Part 54). Those provisions are not at issue here.

The NRC promulgated the other set of regulations, codified at 10 C.F.R. Part 51, primarily to fulfill the agency's obligations under the National Environmental Policy Act ("NEPA"). See 10 C.F.R. § 51.10 (explaining purpose of Part 51 regulations). NEPA requires federal agencies to document the environmental impacts and possible alternatives to proposed "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). In doing so, NEPA fulfills dual purposes. First, it "places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action." Bait. Gas & Elec. Co. v. Nat'l Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (quoting Vt. Yankee Nuclear Power Corp. v. Nat'l Res. Def. Council, Inc., 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)) (internal quotation marks omitted). "Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Id. (citing Weinberger v. Catholic Action of Haw. Peace Educ. Project, 454 U.S. 139, 143, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981)).

Issuance or renewal of a license to operate a nuclear power plant is a "major Federal action" triggering NEPA's requirement that the agency produce an Environmental Impact Statement ("EIS") for such proceedings. 10 C.F.R. § 51.20.

Producing an EIS containing adequate discussion of all the environmental issues relevant to licensing the operation of a nuclear power plant poses a significant task for the NRC. In an effort to streamline the license renewal process, the NRC in 1996 conducted a study to determine which NEPA-related issues could be addressed generically (that is, applying to all plants) and which need to be determined on a plant-by-plant basis. The agency characterizes the first group of issues as Category 1, and the second as Category 2, issues. See generally Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Comm'n, NUREG-1437, 1 Generic Environmental Impact Statement for License Renewal of Nuclear Plants (1996).

Category 1 issues are common to all nuclear power plants, or to a sub-class of plants. As such, the NRC does not analyze generic Category 1 issues afresh with each individual plant operating license application. Instead, the agency conducted an extensive survey and generated findings, contained within a Generic Environmental Impact Statement ("GEIS"), that answer Category 1 issues as to all nuclear power plants. See id. at 1-3 to 1-6. The GEIS findings, have since been codified through a rulemaking. See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed.Reg. 28,467 (June 5, 1996) [hereinafter Final Rule]; see also 10 C.F.R. pt. 51, subpt. A, app. B (listing "NEPA issues for license renewal of nuclear power plants" and assigning them to either Category 1 or 2). Category 2 issues, by contrast, are those non-generic issues that require site-specific analysis for each individual licensing proceeding. 10 C.F.R. pt. 51, subpt. A, app. B, n. 2.

These categories affect how the NRC handles the NEPA-mandated EIS requirements. The process of creating the EIS for an operating licensing (or re-licensing) proceeding begins with the applicant, although producing the EIS is ultimately the NRC's responsibility. Under the regulations, each applicant must submit to the agency an environmental report that includes plant-specific analysis of all Category 2 issues. Id. § 51.53(c)(3)(ii). The regulations generally relieve applicants of having to discuss Category 1 issues, instead allowing applicants to rest on the GEIS findings. Id. § 51.53(e)(3)(i).

The regulation does require an applicant's report to include "any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware." Id. § 51.53(c)(3)(iv). The NRC concedes that this applies even to "new and significant information" concerning Category 1 issues.

NRC staff then draw upon the applicant's environmental report to produce a draft supplemental EIS ("SEIS") for the license renewal. See id. § 51.95(c). This plant-specific SEIS addresses Category 2 issues and complements the GEIS, which...

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