Commonwealth of Massachusetts v. U.S. NRC

Apr 8: In the U.S. Court of Appeals, First Circuit, Case Nos. 07-1482, 07-1483. In the case the Commonwealth of Massachusetts wants to make sure that the U.S. Nuclear Regulatory Commission (NRC) will consider 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, MA; and the Vermont Yankee plant in Vernon, VT, 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.

Massachusetts indicates 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. They claim 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. Massachusetts 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 Massachusetts 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 argued in this case is whether Massachusetts has, "from the regulatory maze, chosen the correct path for doing so." Massachusetts insists it has chosen the appropriate path, indeed, the only one available to it -- i.e. participating directly in the re-licensing proceedings as a party.

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 First Circuit rules that Massachusetts "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. . . 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."

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