Nuclear v. U.S. Nuclear Regulatory Comm'n
Decision Date | 04 January 2013 |
Docket Number | No. 12–1561.,12–1561. |
Citation | 704 F.3d 12 |
Court | U.S. Court of Appeals — First Circuit |
Parties | BEYOND NUCLEAR, Paul Gunter, Director of Reactor Oversight Project; New Hampshire Sierra Club, Kurt Ehrenberg, Field Organizer; Seacoast Anti–Pollution League, Doug Bogen, Executive Director, Petitioners, v. U.S. NUCLEAR REGULATORY COMMISSION, Respondent, NextEra Energy Seabrook, LLC; Taunton Municipal Lighting Plant; MA Municipal Wholesale Electric Company; Hudson Light & Power Department, Interested Parties, Intervenors. |
OPINION TEXT STARTS HERE
Terry J. Lodge, for petitioners.
Jeremy M. Suttenberg, Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, with whom Ignacia S. Moreno, Assistant Attorney General, J. David Gunter II, Attorney, Appellate Section, Environmental and Natural Resource Division, U.S. Department of Justice, Marian L. Zobler, Acting General Counsel, and John F. Cordes, Jr., Solicitor, were on brief, for respondent.
David R. Lewis, with whom Robert B. Ross, Pillsbury Winthrop Shaw Pittman LLP, Mitchell S. Ross, and Steven C. Hamrick were on brief, for intervenor NextEra Energy Seabrook, LLC.
Nicholas J. Scobbo, Jr., and Ferriter Scobbo & Rodophele, PC, on brief, for intervenors MA Municipal Wholesale Electric Company, Taunton Municipal Lighting Plant, and Hudson Light & Power Department.
Before LYNCH, Chief Judge, BOUDIN,* Circuit Judge, and WOODLOCK,** District Judge.
NextEra Energy Seabrook, LLC, operates the Seabrook, New Hampshire, Unit 1 nuclear power plant, which provides a significant portion of the baseload electric power used in New England. NextEra applied on May 25, 2010, to renew the Seabrook operating license, which will otherwise expire on March 15, 2030. See42 U.S.C. § 2133 ( ). Renewal is allowed up to twenty years in advance. See10 C.F.R. § 54.31(b). With its application, NextEra submitted an environmental report, as required by 10 C.F.R. § 51.53(c). That report discussed the feasibility of alternative sources of electric energy.
As part of that licensing process, the Nuclear Regulatory Commission (“NRC”), on March 8, 2012, issued a decision denying the admission of a contention by Beyond Nuclear, the New Hampshire Sierra Club, and the Seacoast Anti–Pollution League (collectively “BN”), which questioned and sought a hearing on the conclusion in the environmental report by NextEra that offshore wind electric generation was not a reasonable alternative to the extended licensing of Seabrook. In doing so, the NRC reversed the Atomic Safety and Licensing Board's (“ASLB”) admission of that contention. The NRC's denial of admission of a contention here means that it ruled petitioners were not entitled to have a hearing on the merits about their contention that generation of electricity from offshore wind was a reasonable alternative source of baseload energy to the relicensing of Seabrook.
On petition for review, BN advances two primary challenges to the NRC's decision. First, it argues that in formulating its contention-admissibility standard the NRC misapplied case law interpreting the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. Second, it argues that when the NRC applied its contention-admissibility standard to the facts, its conclusion that the contention was inadmissible was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law. Neither argument is persuasive, and for the reasons set forth below, we deny BN's petition for review.
We give a brief description of the regulatory scheme governing the process for renewal of nuclear power plant operating licenses. The NRC must comply with obligations under two separate statutes, the Atomic Energy Act (“AEA”), 42 U.S.C. § 2011 et seq., and NEPA. Accordingly, it has two distinct sets of regulations containing requirements for license applicants. Massachusetts v. United States, 522 F.3d 115, 119 (1st Cir.2008). The AEA addresses protection of public health and safety and provides the statutory basis for renewing licenses, designating the NRC to make the decision and to issue applicable rules and regulations. 42 U.S.C. §§ 2133, 2134(b); see Massachusetts, 522 F.3d at 119. Initial licenses are valid for up to forty years and may be renewed. Id. § 2133(c). Under NRC regulations, a licensee may apply for a license renewal up to twenty years before expiration and the renewed license may be issued for a fixed time of no more than twenty years in excess of the current operating license. 10 C.F.R. § 54.31.
To fulfill the agency's obligations under NEPA, the NRC has promulgated a different set of regulations, codified at 10 C.F.R. Part 51. See10 C.F.R. § 51.10. NEPA requires agencies to study and document the environmental impacts and alternatives to proposed “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). 1 The 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 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)). The NRC requires applicants for relicensing, here, NextEra, to submit an environmental report to assist it. 10 C.F.R. § 51.53(c)(1). The NRC must take a “hard look” at the environmental impacts of major actions. Massachusetts, 522 F.3d at 127.
The environmental report must include consideration of alternative sources of energy generation to the relicensing, 10 C.F.R. § 51.45(b)(3), and must discuss their environmental impacts, id.§ 51.53(c)(2).2 At issue here is only one limited portion of the environmental report filed with the application on May 25, 2010, by NextEra.
The AEA also imposes a requirement that the NRC “shall grant a hearing upon the request of any person whose interest may be affected by the proceeding,” such as a license renewal. 42 U.S.C. § 2239(a)(1)(A). Although NEPA does not provide for hearings on environmental matters, Union of Concerned Scientists v. NRC, 920 F.2d 50, 56 (D.C.Cir.1990), NRC regulations provide for hearings, including as to NEPA issues. To obtain a hearing, a petitioner must make a written request under 10 C.F.R. § 2.309(a), which must state the contention to be raised, id. § 2.309(f). On issues arising under NEPA, contentions must be based on the applicant's environmental report. Id. § 2.309(f)(2). To be admissible a contention must:
(i) Provide a specific statement of the issue of law or fact to be raised or controverted ...;
(ii) Provide a brief explanation of the basis for the contention;
(iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding;
(iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding;
(v) Provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue ... together with references to specific sources and documents on which the requestor/petitioner intends to rely ...;
(vi) Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact....
Id. § 2.309(f)(1). In other words, the NRC denies hearings when the party's criticism of a portion of the applicant's environmental report does not meet the requirements of the regulations as to the admission of a contention. The NRC found that BN's attack on the wind power analysis portion of NextEra's environmental report failed to meet the standards for being an admissible contention and so denied a hearing on this point.
We next address the relevant facts. Seabrook is New England's largest nuclear reactor, having a capacity of 1245 megawatts, and provides 8.2% of the actual generation of the Independent System Operator New England (“ISO–NE”), which the environmental report explains “is a regional network that coordinates the movement of wholesale electricity in all or parts of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.”
NextEra's environmental report, among other things, addressed four alternative sources of energy to renewing Seabrook's license that it deemed viable, reasonable alternatives: natural gas-fired generation; coal-fired generation; a new nuclear plant; and power purchases.
The report also discussed wind power, of which NextEra is the leading generator in North America, but concluded it was not a reasonable alternative as a source of baseload electricity during the relevant period of time. It is on that point that petitioners sought a full hearing before the Commission.
The environmental report stated that “[f]or the purposes of this environmental report, alternative generating technologies were evaluated to identify candidate technologies that would be capable of replacing Seabrook Station's nominal net base-load capacity of 1,245 MWe,” and that it “accounted for the fact that Seabrook Station is a base-load generator and that any feasible alternative to Seabrook Station would also need to be able to generate base-load power.” Thus, any reasonable alternative would need to generate baseload power.3
NextEra's report relied on the NRC's GEIS for the proposition that wind power is not suitable for baseload generation because of its intermittent nature. That intermittent nature meant that there...
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