Tuesday, February 26, 2013

Commonwealth of Massachusetts v. US Nuclear Regulatory Commission

Feb 25: In the U.S. Court of Appeals, First Circuit, Case Nos. 12-1404, 12-1772. Petitions for review of orders of the Nuclear Regulatory Commission (NRC). The Appeals Court indicates that, "Under the applicable standards of judicial review, we deny the petition for review."
   The Appeals Court explains that the Commonwealth of Massachusetts petitions for review from the NRC 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. 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), were inadequate in light of the damage to the Fukushima Daiichi (Fukushima) nuclear power plant in Japan in March of 2011. 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.
    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). 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 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.
    In its conclusion, citing the case of Town of Winthrop, 535 F.3d 1, the Appeals Court said it, ". . .found that it was reasonable for an agency to decline to study, in a supplemental EIS, a pollutant for which there was not yet a standard method of measurement or analysis. . . It is similarly reasonable not to delay relicensing until even more information becomes available because the process could otherwise become unending, as new information is always developing. Cf. Marsh, 490 U.S. at 373 (explaining that requiring an updated EIS every time new information arises is not practical because agencies would always be 'awaiting updated information only to find the new information outdated by the time a decision is made'). NEPA imposed no obligation on the NRC to withhold the granting of a renewed license here because of the possibility that currently unavailable information might become available in the future."
    Access the complete opinion (click here). [#Energy/Nuclear, #Haz/Nuclear, #CA1]
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