Blue Ridge Envtl. Def. League v. Nuclear Regulatory Comm'n
| Decision Date | 14 May 2013 |
| Docket Number | No. 12-1106,C/w 12-1151,12-1106 |
| Parties | BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, ET AL., PETITIONERS v. NUCLEAR REGULATORY COMMISSION AND THE UNITED STATES OF AMERICA, RESPONDENTS WESTINGHOUSE ELECTRIC COMPANY LLC, INTERVENORS |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review of Orders of the
United States Nuclear Regulatory Commission
Diane Curran argued the cause for petitioners. With her on the briefs were Mindy Goldstein and John Runkle.
Robert M. Rader, Senior Attorney, U.S. Nuclear Regulatory Commission, argued the cause for respondents. With him on the brief were J. David Gunter II, Trial Attorney, U.S. Department of Justice, John F. Cordes, Jr., Solicitor,U.S. Nuclear Regulatory Commission, and Jeremy M. Suttenberg, Attorney.
Randall L. Speck, David L. Cousineau, M. Stanford Blanton, Millicent W. Ronnlund, and Kathryn M. Sutton were on the brief for intervenors Westinghouse Electric Company LLC, et al., in support of respondents.
Before: BROWN, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges.
EDWARDS, Senior Circuit Judge: This case arises from actions taken by the Nuclear Regulatory Commission ("NRC" or "Commission") approving (1) an application by Southern Nuclear Operating Company ("Southern") for combined licenses to construct and operate new Units 3 and 4 of the Vogtle Nuclear Power Plant and (2) an application by Westinghouse Electric Company ("Westinghouse") for an amendment to its already-approved AP1000 reactor design on which the Vogtle application relied. In approving the applications, NRC applied the regulatory scheme incorporated in 10 C.F.R. Part 52 covering the licensing of commercial nuclear power reactors. See Nuclear Info. Res. Serv. v. NRC, 969 F.2d 1169, 1170 (D.C. Cir. 1992) (en banc) ().
In 2009, after a contested evidentiary hearing in which Petitioners participated, NRC granted Southern an early site permit for Vogtle Units 3 and 4. In 2008, Southern applied for combined licenses. A second contested proceeding was held in which Petitioners participated. The application for the early site permit was supported by an Environmental Impact Statement ("EIS"); the application for combined licenses was supported by the initial EIS and an updated EIS. After the close of the combined-license hearing record, Petitioners sought to reopen the hearing to litigate contentions relating to the nuclear accident at the Fukushima Dai-ichi complex inJapan on March 11, 2011. In the wake of the Fukushima accident, NRC commissioned a Task Force to reevaluate nuclear safety regulations in the United States. Petitioners unsuccessfully sought to forestall the licensing of the Vogtle reactors and the approval of the modified AP1000 design until NRC had fully considered and implemented the Task Force recommendations.
After the Task Force recommendations were issued and approved by NRC, Petitioners pursued various actions to compel the agency to supplement its EIS and to delay any action on the combined license and AP1000 design rulemaking proceedings until after the agency had implemented the Task Force recommendations. Petitioners contended, inter alia, that Vogtle's EIS violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, because it did not address allegedly new and significant environmental implications of the Task Force's recommendations after Fukushima. NRC ruled that Petitioners' challenges were premature, that the agency's existing procedural mechanisms were sufficient to ensure licensees' compliance with not-yet-enacted regulatory safeguards, and that the licensing and rulemaking proceedings could continue without delay. NRC further held that Petitioners had failed to satisfy the contention-specificity requirements of 10 C.F.R. § 2.309(f)(1), which state that the proponents of contentions must indicate with specificity the claims they wish to litigate. See Union of Concerned Scientists v. NRC, 920 F.2d 50, 51-52 (D.C. Cir. 1990). NRC also held that Petitioners had failed to identify any environmentally significant information from the Task Force recommendations suggesting a deficiency in the Vogtle EIS. NRC thus declined to reopen the combined-license hearing record under 10 C.F.R. § 2.326.
In late 2011, NRC issued its rule approving the AP1000 amended design, and in 2012 it authorized issuance of the combined licenses. Petitioners then filed the petitions for review giving rise to this action. Petitioners raise three principal contentions for consideration by the court. First, Petitioners claim that NRC abused its discretion in refusing to reopen the hearing record in the Vogtle licensing proceeding. Second, Petitioners assert that NRC unreasonably denied them a right to participate in a mandatory hearing at which NRC technical staff confirmed that the Fukushima accident had not presented new and significant information that would require a supplemental EIS for Vogtle. Finally, Petitioners argue that NRC abused its discretion in approving the AP1000 reactor design without first supplementing the AP1000 Environmental Assessment ("EA") that contained important information regarding "Severe Accident Mitigation Design Alternatives" applicable to Vogtle. Because we find no merit in any of these contentions, we deny the petitions for review.
Under 10 C.F.R. Part 52, Subpart B, a party may request a "standard design certification" for the approval of a nuclear power plant design. See 10 C.F.R. § 52.41. Once a design is certified through this generic process, a future applicant may rely on the already-approved design. See id. § 52.43(a). Design certification by NRC requires notice-and-comment rulemaking and culminates in publication in the Federal Register as a "design certification rule." See id. § 52.54.
When a proposed design certification rule is published, NRC's associated EA is published for comment at the sametime. See id. § 51.31(b)(1). Because a reactor design is certified without reference to any specific plans for its construction, NRC has determined by rule that every proposed design certification or amendment requires only an EA, not a more comprehensive EIS. See id. §§ 51.31(b)(1)(i), 51.32(b)(1)-(2).
The EA for a design certification addresses only one topic: the costs and benefits of any Severe Accident Mitigation Design Alternatives that were considered and not incorporated into the final design. See id. § 51.30(d). When a proposal is made to modify an approved design certification rule, the amendment may rely on the EA generated for the original design certification rule and need only consider (1) whether the proposed design change renders any previously rejected design alternatives cost-beneficial and (2) whether the design change results in the identification of any new design alternatives that necessitate a previously unperformed cost-benefit analysis. See id. § 51.30(d). In other words, modifications to the original EA are necessary only if the proposed design change amendment alters the cost-benefit calculus concerning any Severe Accident Mitigation Design Alternatives.
The Atomic Energy Act authorizes NRC to issue a combined operating license for both the construction and operation of new reactors after a public hearing. See 42 U.S.C. § 2235(b). Any such license must be accompanied by a full EIS, 10 C.F.R. §§ 51.75, 51.92(b), (d), (e), and may rely on and incorporate by reference an approved standard design certification, id. § 51.75(c)(2).
NRC must afford interested parties an opportunity to participate in a contested hearing subject to additional procedural requirements. See 42 U.S.C. § 2239(a). However,in order to initiate such a contested hearing, NRC regulations require that interested parties submit contentions that are supported by "sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact." 10 C.F.R. § 2.309(f)(1)(vi). In addition, interested parties "must set forth with particularity the contentions sought to be raised" and must:
Id. § 2.309(f)(1)(ii), (v), (vii). When interested parties are allowed to intervene, "[t]he scope of the Intervenors' participation in adjudications is limited to their admitted contentions, i.e., they are barred from participating in the uncontested portion of the hearing." Exelon Generation Co., LLC, 62 N.R.C. 5, 49 (2005).
NRC also holds a separate "mandatory" hearing before issuing a combined license. See 42 U.S.C. §§ 2235(b), 2239(a); see also Exelon Generation, 62 N.R.C. at 49-50. The mandatory hearing does not address contentions raised by the parties, and participation is limited to the applicant and NRC staff. See Exelon Generation, 62 N.R.C. at 49-50. Themandatory NRC hearing determines the adequacy of the NRC staff's review of the application.
Separate regulations govern when NRC must reopen a closed hearing. See 10 C.F.R. § 2.326(a). In their briefs to this court, the parties focused on NRC's application of its contention-admissibility standards, not on whether the agency erred in declining to reopen the combined-license hearing record. Because we find that NRC properly denied Petitioners' contentions, and because the standards for reopening a closed...
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