Blue Ridge Env. Defense League v. NRC

May 14: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-1106. On Petition for Review of Orders of the United States Nuclear Regulatory Commission (NRC). The case arises from actions taken by the NRC (or Commission) approving (1) an application by Southern Nuclear Operating Company (Southern) for combined licenses to construct and operate new Units 3 and 4 of the Vogtle Nuclear Power Plant; and (2) an application by Westinghouse Electric Company (Westinghouse) for an amendment to its already-approved AP1000 reactor design on which the Vogtle application relied. In approving the applications, NRC applied the regulatory scheme incorporated in 10 C.F.R. Part 52 covering the licensing of commercial nuclear power reactors. See Nuclear Info. Res. Serv. v. NRC, 969 F.2d 1169, 1170 (D.C. Cir. 1992) (en banc) (upholding two-part regulatory scheme in 10 C.F.R. Part 52). Among other assertions, the petitioners argued that the EIS violated NEPA because it did not address allegedly new and significant environmental implications of the Task Force's recommendations after Japanese Fukushima nuclear accident. The Appeals Court did not find merit in this or any of the contentions and denied the petitions for review.

 

    Explaining further, the Appeals Court indicates that in 2009, after a contested evidentiary hearing in which Petitioners participated, NRC granted Southern an early site permit for Vogtle Units 3 and 4. In 2008, Southern applied for combined licenses. A second contested proceeding was held in which Petitioners participated. The application for the early site permit was supported by an Environmental Impact Statement (EIS); the application for combined licenses was supported by the initial EIS and an updated EIS. After the close of the combined-license hearing record, Petitioners sought to reopen the hearing to litigate contentions relating to the nuclear accident at the Fukushima Dai-ichi complex in Japan on March 11, 2011. In the wake of the Fukushima accident, NRC commissioned a Task Force to reevaluate nuclear safety regulations in the United States. Petitioners unsuccessfully sought to forestall the licensing of the Vogtle reactors and the approval of the modified AP1000 design until NRC had fully considered and implemented the Task Force recommendations.

    After the Task Force recommendations were issued and approved by NRC, Petitioners pursued various actions to compel the agency to supplement its EIS and to delay any action on the combined license and AP1000 design rulemaking proceedings until after the agency had implemented the Task Force recommendations. Petitioners contended, inter alia, that Vogtle's EIS violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, because it did not address allegedly new and significant environmental implications of the Task Force's recommendations after Fukushima. NRC ruled that Petitioners' challenges were premature, that the agency's existing procedural mechanisms were sufficient to ensure licensees' compliance with not-yet-enacted regulatory safeguards, and that the licensing and rulemaking proceedings could continue without delay. NRC further held that Petitioners had failed to satisfy the contention-specificity requirements of 10 C.F.R. § 2.309(f)(1), which state that the proponents of contentions must indicate with specificity the claims they wish to litigate. See Union of Concerned Scientists v. NRC, 920 F.2d 50, 51-52 (D.C. Cir. 1990). NRC also held that Petitioners had failed to identify any environmentally significant information from the Task Force recommendations suggesting a deficiency in the Vogtle EIS. NRC thus declined to reopen the combined-license hearing record under 10 C.F.R. § 2.326.

    In late 2011, NRC issued its rule approving the AP1000 amended design, and in 2012 it authorized issuance of the combined licenses. Petitioners then filed the petitions for review giving rise to this action. Petitioners raise three principal contentions for consideration by the court. First, Petitioners claim that NRC abused its discretion in refusing to reopen the hearing record in the Vogtle licensing proceeding. Second, Petitioners assert that NRC unreasonably denied them a right to participate in a mandatory hearing at which NRC technical staff confirmed that the Fukushima accident had not presented new and significant information that would require a supplemental EIS for Vogtle. Finally, Petitioners argue that NRC abused its discretion in approving the AP1000 reactor design without first supplementing the AP1000 Environmental Assessment (EA) that contained important information regarding "Severe Accident Mitigation Design Alternatives" applicable to Vogtle.

    The Appeals Court concluded, "Petitioners have failed to demonstrate that NRC acted less than reasonably in declining to order a supplemental EA for the AP1000 design certification amendment. We therefore defer to the Commission's conclusion that such a supplement was unnecessary. . . the petition for review is denied." [#Energy/Nuclear, #CADC]

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