Tuesday, February 21, 2012

Blue Ridge Environmental Defense League v. NRC

Feb 17: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1112, consolidated with 10-1058. On Petitions for Review of Orders of the Nuclear Regulatory Commission. In December 1974, Tennessee Valley Authority (TVA) received construction permits from the Atomic Energy Commission, the predecessor to the Nuclear Regulatory Commission (the NRC or the Commission), for the Bellefonte Nuclear Plant, Units 1 and 2 (the units). TVA pursued construction under a series of permit extensions through the late 1980s, when, based on its projections of diminished energy demand, it decided to place the units in "deferred status" and establish a maintenance program under the NRC's Policy Statement on Deferred Plants (the Policy Statement). Under the Policy Statement, during a deferral period, a permit holder is required to undertake maintenance and preservation activities but may halt actual construction. In 2005, TVA placed the units in "terminated" status under the Policy Statement. One year later, TVA voluntarily requested that the NRC withdraw the permits. The NRC granted this request.
    In 2008, TVA asked the NRC to reinstate its withdrawn construction permits. Although neither withdrawal nor reinstatement are specifically addressed in the Atomic Energy Act (the AEA or the Act), the NRC granted TVA's reinstatement request in an order issued on March 9, 2009 and published in the Federal Register on March 13, 2009.
On March 30, 2009, the Blue Ridge Environmental Defense League (BREDL or Petitioner) filed a petition with the Appeals Court, purporting to challenge the NRC's decision to reinstate the construction permits. However, the Appeals Court notes that, ". . .in its Statement of Issues To Be Raised, in its Reply Brief, and during oral argument, BREDL insisted that it was not challenging the NRC order that was published in the Federal Register on March 13, 2009. Rather, BREDL asserted that its March 30, 2009 petition for review challenges only a compilation of 'Response Sheets' filed by individual Commissioners in December 2008 and January 2009."
    The Appeals Court said that BREDL contends that the compilation of Commissioners' views resulted in a final order on January 27, 2009. However, the Appeals Court said, "We disagree. After the Commissioners' 'Response Sheets' were assembled, the matter was referred to the NRC staff for evaluation. However, it was not until February 18, 2009 that the NRC authorized the staff to issue an order on behalf of the agency reinstating the construction permits. That order was published in the Federal Register on March 13, 2009. Therefore, BREDL's petition for review challenging an alleged action of the NRC taken on January 27, 2009 does not seek review of a final NRC order."
    The Appeals Court rules, "Under the Hobbs Act, this court has jurisdiction to review only 'final orders' of the NRC. 28 U.S.C. § 2342(4) (2006). The March 30, 2009 and March 8, 2010 petitions filed by BREDL with this court do not seek review of final NRC orders. Therefore, we lack jurisdiction and must dismiss."
    Access the complete opinion (click here). [#Energy/Nuclear, #CADC]
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