Kelley v. Selin, Nos. 93-1646

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtMILBURN
Citation42 F.3d 1501
PartiesNuclear Reg. Rep. P 20,568, 25 Envtl. L. Rep. 20,499, 1995 Fed.App. 13P Frank J. KELLEY, Attorney General of the State of Michigan; Herbert P. Read; Norman W. Perman; Susan Kimmelman; the Lake Michigan Federation; and Don't Waste Michigan, Petitioners- Appellants, v. Ivan SELIN; James R. Curtiss; E. Gail De Planque; Forrest J. Remick; Kenneth C. Rogers; United States Nuclear Regulatory Commission; and United States of America, Respondents-Appellees, Consumers Power Company, Intervenor-Respondent.
Docket Number93-3613 and 93-3749,Nos. 93-1646,93-1710
Decision Date11 January 1995

Page 1501

42 F.3d 1501
Nuclear Reg. Rep. P 20,568, 25 Envtl. L. Rep. 20,499,
1995 Fed.App. 13P
Frank J. KELLEY, Attorney General of the State of Michigan;
Herbert P. Read; Norman W. Perman; Susan
Kimmelman; the Lake Michigan
Federation; and Don't Waste
Michigan,
Petitioners-
Appellants,
v.
Ivan SELIN; James R. Curtiss; E. Gail De Planque; Forrest
J. Remick; Kenneth C. Rogers; United States
Nuclear Regulatory Commission; and
United States of America,
Respondents-Appellees,
Consumers Power Company, Intervenor-Respondent.
Nos. 93-1646, 93-1710, 93-3613 and 93-3749.
United States Court of Appeals,
Sixth Circuit.
Argued Oct. 11, 1994.
Decided Jan. 11, 1995.

Page 1503

Robert L. Graham (briefed), Jenner & Block, Chicago, IL, Frank J. Kelley (argued), Office of Atty. Gen., Appellate Div., John C. Scherbarth, Asst. Atty. Gen. (briefed), Natural Resources Div., Lansing, MI, for Frank J. Kelley.

Joel T. Pelz, Robert L. Graham, Jenner & Block, Chicago, IL, for Herbert P. Read, Norman W. Perman, Susan Kimmelman, Lake Michigan Federation.

J. Carol Williams, Albert M. Ferlo, Jr. (briefed), U.S. Dept. of Justice, Land & Natural Resources Div., Washington, DC, for Ivan Selin, James R. Curtiss, E. Gail De Planque, Forrest J. Remick, Kenneth Rogers.

Peter G. Crane (argued & briefed), U.S. Nuclear Regulatory Com'n, Washington, DC, for U.S. Nuclear Regulatory Com'n.

Michael A. Bauser (briefed), Newman & Holtzinger, Washington, DC, for all amici curiae.

Michael A. Carvin (argued), Shaw, Pittman, Potts & Trowbridge, Washington, DC, for Consumers Power Co.

Robert L. Graham (briefed), Jenner & Block, Chicago, IL, Frank J. Kelley (argued), Office of Atty. Gen., Appellate Div., Kelly G. Keenan, Asst. Atty. Gen., Michigan Dept. of Atty. Gen., Environmental Protection Div., John C. Scherbarth, Asst. Atty. Gen. (briefed), Natural Resources Div., Lansing, MI, for Frank J. Kelley in No. 93-3749.

Eric Glitzenstein (briefed), Meyer & Glitzenstein, Washington, DC, for Don't Waste Michigan.

J. Carol Williams, Albert M. Ferlo, Jr. (briefed), U.S. Dept. of Justice, Land & Natural Resources Div., Janet Reno, U.S. Atty. Gen., Washington, DC, for U.S.

Before: MILBURN, BOGGS, and NORRIS, Circuit Judges.

MILBURN, Circuit Judge.

This appeal involves four separate actions, consolidated for appeal. The actions docketed as Nos. 93-3613 and 93-3749 seek review of a Nuclear Regulatory Commission ("NRC") order approving use of a VSC-24 concrete cask for storage of spent nuclear fuels. The action docketed as No. 93-1646 is before this court from a transfer directed by the district court after it found that this court has proper subject matter jurisdiction. The remaining action, No. 93-1710, appeals the district court's holding that it lacked subject matter jurisdiction to review the NRC order and grant relief for the alleged violations of the National Environmental Policy Act, 42 U.S.C. Sec. 4321.

On appeal, the issues are (1) whether petitioners have standing to challenge the NRC's final rule permitting storage of spent nuclear fuels in the VSC-24 cask; (2) whether the NRC's addition of the VSC-24 storage cask to the list of approved systems at 10 C.F.R. Sec. 72 (Subpart K), constituted a generic rulemaking or whether the NRC was required to conduct an "on-the-record" adjudicatory

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hearing pursuant to Sec. 189(a) of the Atomic Energy Act ("AEA"), 42 U.S.C. Sec. 2239, and the Administrative Procedure Act, 5 U.S.C. Sec. 553; (3) whether respondents made significant site-specific decisions regarding Palisades without granting a hearing on these decisions; and (4) whether the NRC complied with the National Environmental Policy Act ("NEPA"), 42 U.S.C. Sec. 4321 et seq., or whether it acted arbitrarily, capriciously or in abuse of its discretion in promulgating the final rule permitting use of the VSC-24 cask in reliance upon earlier environmental analyses assessing the impact of the rule change on nuclear reactor sites. For the reasons that follow, we affirm.

I.

A.

In 1982, Congress passed the Nuclear Waste Policy Act, which mandated that the Department of Energy ("DOE") construct a federal repository for the permanent storage of spent nuclear fuels. Nuclear Waste Policy Act of 1982, as amended in 1987, 42 U.S.C. Secs. 10101, et seq. Under the Act, the DOE was required to take title to spent fuels as early as 1998. Congress indicated, however, that producers of such waste are responsible for its storage, preferably at reactor sites, until the repository is completed. 42 U.S.C. Sec. 10151(a)(1). Completion is now expected no earlier than 2015.

At the same time, Congress directed the Secretary of Energy to establish a demonstration program for dry storage of spent fuels at existing nuclear plants. 42 U.S.C. Sec. 10198(a) ("Sec. 218(a)"). The program was intended to establish technologies that the NRC "may by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for specific additional site-specific approvals by the Commission." 42 U.S.C. Sec. 10198(a). Thus, the demonstration program was expressly intended to provide the Commission a basis to approve various dry storage technologies for use at civilian reactors without site-specific hearings. In the Act, Congress provided that the agency was to establish procedures for the licensing of any technology approved under Sec. 218(a). 42 U.S.C. Sec. 10153. One of the technologies explicitly mentioned in Sec. 218 was storage casks for spent nuclear fuel. The impetus behind Congress' action was the belief that existing on-site storage facilities at most reactors, which consist of pools for underwater storage, would be insufficient to meet storage needs prior to the opening of the federal repository. Moreover, the risk of transporting radioactive wastes to off-site facilities also raised some concerns. By 1987, the DOE had entered into three cooperative agreements with utilities to demonstrate a form of dry cask storage.

In 1990, the NRC promulgated 10 C.F.R. Sec. 72 (Subpart K), which grants a general license to store nuclear fuel in approved casks at reactor sites, provided certain conditions are met. Thus, the NRC succeeded in eliminating the need for site-specific approvals. Under the new rule, utilities desiring to increase their on-site storage capability have the option of storing spent nuclear fuels in a cask approved by the NRC pursuant to the general license or applying for a site-specific license. The new rule listed four types of approved storage casks.

The NRC's 1990 rulemaking was accompanied by an Environmental Assessment ("EA") that concluded that the new technology would have no significant impact on the human environment. This finding was based in part on the fact that each site at which the casks would be used had already been the subject of an environmental impact statement in connection with the licensing of the plant. 55 Fed.Reg. 29,190. Because the EA found that the proposed rule would not produce any significant effect on the environment, preparation of an environmental impact statement was not required.

Subpart L of the rule sets forth the procedure for adding new storage systems to the list of approved designs. Manufacturers seeking approval must submit to the agency a safety analysis report showing that the design is suitable for storage for at least 20 years. The manufacturer must conduct, or permit the NRC to conduct, whatever tests are deemed necessary and must conduct design, testing, fabrication and maintenance of

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the casks under a quality assurance program suitable to the NRC.

Palisades is a nuclear power reactor located on the eastern shore of Lake Michigan in Van Buren County, Michigan. It was licensed by the Atomic Energy Commission in September 1972. The reactor is owned and operated by Consumers Power Company ("Consumers"). As a by-product of its operations, Palisades creates spent fuel, which remains dangerous long after it is removed from the reactor. Until 1989, Consumers utilized a fuel pool facility for storage of its wastes at the Palisades plant. Such storage is permitted under the Palisades license. Around 1989, with its fuel pool filling to capacity, Consumers opted to try dry storage of spent fuel in the VSC-24 dry cask manufactured by Pacific Sierra. The ventilated storage cask is comprised of a concrete cask and a steel, seal-welded basket. The spent fuel is placed in the basket, and the basket is drained, decontaminated, filled with helium and welded shut. It is then loaded in the concrete cask, which is equipped with a metal liner. When fully loaded, each cask weighs 130 tons. After the cask is loaded, the entire container is transported to a concrete pad. At Palisades, the pad is located behind and above the nuclear generating facility and within approximately 150 yards of the shore of Lake Michigan. The nuclear generating facility, however, is located between Lake Michigan and the pad. Plaintiffs state that the site chosen is characterized by geologists as a high-risk erosion area. Although Consumers' selection of the VSC-24 cask was in compliance with Michigan law, 1 its design had not, at that time, been tested at a nuclear reactor. The cask was selected, however, because it was expected to be a cheaper and more spacious method of storage than other systems.

On March 12, 1990, Palisades applied to the NRC for licensing authority to construct and maintain a dry spent fuel storage installation at its plant, using the VSC-24 casks. At the time of the application, the NRC had not issued the general license under 10 C.F.R. Sec. 72 (Subpart K), and site-specific licensing was the only method of approval possible for civilian reactors. However, in July 1990, the NRC approved the general license, and Consumers withdrew its application for the specific license.

The NRC's initial response to Palisades was to advise it that the application did not comply...

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55 practice notes
  • Domestic licensing and related regulatory functions; environmental protection regulations: License transfers approval; streamlined hearing process,
    • United States
    • Federal Register September 11, 1998
    • September 11, 1998
    ...Chevron step II analysis] when the governing statute requires only that a ``hearing'' be held. (emphasis in original). In Kelley v. Selin, 42 F.3d 1501, 1511 (6th Cir. 1995), the court followed a similar line of reasoning in concluding that the procedures adopted by the Commission to approv......
  • Nuclear Regulatory Commission,
    • United States
    • Federal Register April 16, 2001
    • April 16, 2001
    ...1966, 87th Cong., 2d Sess., at 6 (1962), quoted in Kerr McGee Corp., CLI-82-2, 15 NRC 232, 251 (1982). More recently, in Kelley v. Selin, 42 F.3d 1501, 1511-12 (6th Cir.), cert. denied, 115 S.Ct. 2611 (1995), the court emphasized the NRC's latitude to determine the nature of the ``hearing''......
  • Part II
    • United States
    • Federal Register January 14, 2004
    • January 14, 2004
    ...See H.R. Rep. No. 87-1966, at 6 (1962), quoted in Kerr McGee Corp., CLI-82-2, 15 NRC 232, 251 (1982). More recently, in Kelley v. Selin, 42 F.3d 1501, 1511-12 (6th Cir.), cert. denied, 515 U.S. 1159 (1995), the court emphasized the NRC's latitude to determine the nature of the ``hearing'' m......
  • Practice and procedure: Adjudicatory process changes,
    • United States
    • Federal Register January 14, 2004
    • January 14, 2004
    ...See H.R. Rep. No. 87-1966, at 6 (1962), quoted in Kerr McGee Corp., CLI-82-2, 15 NRC 232, 251 (1982). More recently, in Kelley v. Selin, 42 F.3d 1501, 1511-12 (6th Cir.), cert. denied, 515 U.S. 1159 (1995), the court emphasized the NRC's latitude to determine the nature of the ``hearing'' m......
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48 cases
  • Citizens Awareness Network, Inc. v. U.S., No. 04-1145.
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    • U.S. Court of Appeals — First Circuit
    • December 10, 2004
    ...have avoided the question of whether section 2239 requires reactor licensing hearings to be on the record. See, e.g., Kelley v. Selin, 42 F.3d 1501, 1510-14 (6th Cir.1995) (discussing, but not resolving, the issue while approving the use of informal hearings for materials storage issues); N......
  • Buck Mountain Cmty. Org. v. Tennessee Valley Auth., Case No. 2:08-cv-0040.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • May 18, 2009
    ...under the circumstances, when viewed in the light of the mandatory requirements and the standard set by [NEPA]." Kelley v. Selin, 42 F.3d 1501, 1519 (6th Cir.1995) (quotation and citation The question of whether TVA violated NEPA is governed by the Administrative Procedures Act ("APA"). SOC......
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    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • February 2, 2015
    ...was not arbitrary, capricious, or an abuse of discretion." Tennessee Environmental Council, 2014 WL 3810740, *4 (citing Kelley v. Selin, 42 F.3d 1501, 1518 (6th Cir. 1995); Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 412 (1976); Marsh, 490 U.S. at 376)). See also Sierra Club v. Van Antw......
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    ...federal courts to ensure that the agency's finding of no significant impact was not "arbitrary and capricious"); Kelley v. Selin, 42 F.3d 1501, 1518 (6th Cir. 1995). In deciding whether the agency acted arbitrarily, "[w]e will not `substitute our judgment of the environmental impact for the......
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