Massachusetts v. U.S. Nuclear Regulatory Comm'n

• Decision Date: 25 February 2013
• Docket Number: Nos. 12–1404,12–1772.,s. 12–1404
• Citation: 708 F.3d 63
• Parties: Commonwealth of MASSACHUSETTS, Petitioner, v. U.S. NUCLEAR REGULATORY COMMISSION; the United States of America, Respondents, Entergy Nuclear Operations, Inc.; Entergy Nuclear Generation Company, Intervenors.
• Court: U.S. Court of Appeals — First Circuit

708 F.3d 63

Commonwealth of MASSACHUSETTS, Petitioner,

v.U.S. NUCLEAR REGULATORY COMMISSION; the United States of America, Respondents,Entergy Nuclear Operations, Inc.; Entergy Nuclear Generation Company, Intervenors.

Nos. 12–1404, 12–1772.

United States Court of Appeals,First Circuit.

Feb. 25, 2013.

Matthew Brock, Assistant Attorney General, Office of the Attorney General, Environmental Protection Division, with whom Martha Coakley, Attorney General, was on brief, for petitioner.

James E. Adler, Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, with whom Ignacia S. Moreno, Assistant Attorney General, J. David Gutner II, Attorney, Appellate Section, Environmental and Natural Resources Division, U.S. Department of Justice, Marian L. Zobler, Acting General Counsel, John F. Cordes, Jr., Solicitor, and Lauren Woodall, Attorney, Office of General Counsel, U.S. Nuclear Regulatory Commission, were on brief, for respondents.

Kevin P. Martin, with whom Elise N. Zoli, Goodwin Procter LLP, David R. Lewis, Paul A. Gaukler, Timothy J.V. Walsh, and Pillsbury Winthrop Shaw Pittman LLP, were on brief, for intervenors Entergy Nuclear Operations, Inc. and Entergy Nuclear Generation Company.

Before LYNCH, Chief Judge, TORRUELLA, Circuit Judge, and DiCLERICO, ^* District Judge.

LYNCH, Chief Judge.

The Commonwealth of Massachusetts petitions for review from the Nuclear Regulatory Commission's (“NRC” or “Commission”) March 8, 2012 order denying the Commonwealth's petition for review of the Atomic Safety and Licensing Board's (“ASLB”) denial of Massachusetts's motion to admit a new contention, and other related requests (12–1404). The NRC rejected the Commonwealth's claims that the environmental findings in the environmental impact statement (“EIS”), prepared under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., were inadequate in light of the damage to the Fukushima Daiichi (“Fukushima”) nuclear power plant in Japan in March of 2011.¹ The Commonwealth also petitions for review from the NRC's May 25, 2012 vote to renew the license of the Pilgrim Nuclear Power Station in Plymouth, Massachusetts, and the May 29, 2012 renewed license (12–1772).

The Commonwealth's substantive challenges to the NRC's decisions are not based in any alleged failure on the part of the NRC to ensure basic health and safety under the Atomic Energy Act (“AEA”), 42 U.S.C. § 2011, et seq. Rather, the Commonwealth argues that the Commission's failure to file supplemental analysis on the environmental impacts of relicensing in light of purported new and significant information learned from Fukushima violated its obligations under NEPA and NRC regulations.

The claims made by Massachusetts to the NRC roughly fall into three categories. The first two categories go to whether, in light of Fukushima, the EIS was adequate in its environmental assessments of: (1) spent fuel pool fires; and (2) core damage ² events. The third category questions whether the decision to proceed with relicensing was contrary to law. The Commonwealth also asserts that the NRC failed to sufficiently consider its own Task Force's report that contained purportedly new and significant information, or explain why it did not require supplementation of the EIS, and Massachusetts claims that it was denied a hearing in violation of the AEA.

Under the applicable standards of judicial review, we deny the petition for review.

I.

The regulatory scheme governing this license renewal falls under two statutes, the AEA and NEPA. NEPA and the right to a hearing under the AEA are at issue here. The AEA ³ requires the NRC to provide “adequate protection” for the health and safety of the public, 42 U.S.C. § 2232(a), which the NRC seeks to ensure on an ongoing basis through an “evolving set of requirements and commitments for a specific plant that are modified as necessary over the life of a plant to ensure continuation of an adequate level of safety.” 60 Fed.Reg. 22,461, 22,473 (May 8, 1995).⁴ Those safety provisions under the AEA are not at issue here. The AEA also states that the NRC shall grant a hearing to a person affected by a relicensing, 42 U.S.C. § 2239(a), but as we discuss later, the NRC determined that the Commonwealth did not meet the procedural requirements, and that decision was not arbitrary and capricious.

NEPA, by contrast, requires federal agencies to prepare an EIS for major federal actions that would significantly affect the quality of the human environment, including a discussion of “the environmental impact of the proposed action,” “any adverse environmental effects which cannot be avoided should the proposed action be implemented,” and “alternatives to the proposed action.” 42 U.S.C. § 4332(C)(i)-(iii). Relicensing requires the preparation of an EIS. 10 C.F.R. §§ 51.20(b)(2) (requiring EIS for renewal), 51.95(c) (discussing what EIS must address).

NEPA's EIS requirement serves two purposes. First, “it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.” Balt. Gas & Elec. Co. v. Natural 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. Natural 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 provides assurance that the agency will inform the public that it has 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)). Put differently, NEPA seeks to guarantee process, not specific outcomes. Town of Winthrop v. FAA, 535 F.3d 1, 4 (1st Cir.2008). In short, NEPA requires the agency to take a “hard look” at the environmental consequences of a major federal action. Balt. Gas & Elec. Co., 462 U.S. at 97, 103 S.Ct. 2246.

It is significant to this petition that the NRC assesses environmental impacts through two different procedures. One, for site-specific impacts, is done in the course of the individual plant relicensing. The other, for impacts that are generic to all plants of a particular type, is done through rulemaking rather than individual licensing proceedings. The Commonwealth confuses the two, and attempts to raise in the petition seeking review of the relicensing issues which both belong in generic rulemaking, see Massachusetts v. United States, 522 F.3d 115, 127 (1st Cir.2008) (environmental impacts of spent fuel pools dealt with through rulemaking), and are in fact being addressed in that rulemaking.

As to relicensing, the NRC requires an applicant to submit an environmental report with its relicensing application. 10 C.F.R. § 51.53(c)(1). That was done here in 2006. The report for a license renewal must analyze the environmental impacts of the proposed action and include a severe accident mitigation alternatives (“SAMA”) analysis. Id. § 51.53(c)(3)(ii)(L). The SAMA analysis, in the most basic sense, is a cost-benefit analysis that addresses whether the expense of implementing a mitigation measure not mandated by the NRC is outweighed by the expected reduction in environmental cost it would provide in a core damage event.⁵See Duke Energy Corp., 56 N.R.C. 1, 7–8 (2002) (“Whether a SAMA may be worthwhile to implement is based upon a cost-benefit analysis—a weighing of the cost to implement the SAMA with the reduction in risks to public health, occupational health, offsite and onsite property.”).

As to the second mechanism for environmental impacts that are not plant-specific, but instead apply to all like plants, the Supreme Court has held that the NRC is permitted to make generic determinations to meet its NEPA obligations. Balt. Gas & Elec. Co., 462 U.S. at 101, 103 S.Ct. 2246 (stating generic method is “clearly an appropriate method of conducting the hard look required by NEPA”). The NRC has labeled these issues as “Category 1” issues and has adopted generic EISs for them. See10 C.F.R. pt. 51, subpt. A, app. B (listing NEPA issues for license renewal and assigning them Category 1 or 2 classification); 61 Fed.Reg. 28,467 (June 5, 1996) (explaining generic EIS). Those environmental impacts need not be included in an environmental report nor need they be considered on a site-specific basis in the EIS. See10 C.F.R. §§ 51.53(c)(3)(i) (environmental report), 51.71(d)(EIS). These generic determinations need not be addressed in individual proceedings. As we held in an earlier case, the generic rulemaking includes the subject of environmental impacts of spent fuel pools. Massachusetts, 522 F.3d at 127.

Going back to these relicensing proceedings, in certain instances where an EIS has been prepared, and the relicensing has not yet occurred, the emergence of new information will require federal agencies to supplement an EIS. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 372–73, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Even so, to ensure that the agency decisionmaking process is not delayed unnecessarily, supplementation of the EIS is not required every time new information arises. Id. at 373, 109 S.Ct. 1851. Rather, a supplemental EIS only need be prepared if there are “significant new circumstances or information.” Town of Winthrop, 535 F.3d at 7 (quoting 40 C.F.R. § 1502.9(c)(1)) (emphasis omitted); see also10 C.F.R. § 51.92(a)(2) (requiring final EIS be supplemented with “new and significant” information). That means new information must “paint[ ] a dramatically different picture of impacts compared to the description of impacts in the EIS.” Town of Winthrop, 535 F.3d at 12;see also Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir.1984) (supplementation required where new information “provides a seriously different picture of the environmental landscape”).

To obtain a hearing on this claim of new information, requestors must meet certain requirements. In this case,...