United States Court of Appeals, District of Columbia Circuit
September 17, 2015.
Petition for Review of An Order of the United States Nuclear
M. Crystal argued the cause for petitioner. With him on the
briefs were Eric R. Glitzenstein and Geoffrey H. Fettus.
E. Adler, Senior Attorney, U.S. Nuclear Regulatory
Commission, argued the cause for respondents. With him on the
brief were John C. Cruden, Assistant Attorney General, U.S.
Department of Justice, John E. Arbab, Attorney, and Andrew P.
Averbach, Solicitor, U.S. Nuclear Regulatory Commission.
Fagg argued the cause and filed the brief for intervenor
Exelon Generation Company, LLC.
ROGERS, BROWN and KAVANAUGH, Circuit Judges.
Resources Defense Council (NRDC) challenges the Nuclear
Regulatory Commission's (NRC's) denial of NRDC's
request for a hearing and subsequent application for a
waiver, asserting this process was inconsistent with the
procedural rigor mandated by the National Environmental
Policy Act (NEPA). The denial thwarted NRDC's attempt to
intervene in the license renewal proceeding for Exelon's
Limerick nuclear power station in Pennsylvania. NRDC sought
to present " new and significant" information
regarding severe accident mitigation alternatives (SAMAs)
relevant to Limerick. We find the Commission reasonably
concluded NRDC's request to intervene was a challenge to
a general rule--10 C.F.R. § 51.53(c)(3)(ii)(L) (Rule
(L))--improperly raised in an individual adjudication; and,
contrary to NRDC's view, while NEPA requires agencies to
take a hard look before approving a major federal action, it
does not mandate adoption of a particular process for doing
so. Having failed to show its contentions were unique to
Limerick, NRDC also was not entitled to a waiver. We conclude
the Commission's actions were not arbitrary and
capricious and deny the petition.
Atomic Energy Act (AEA) empowers the Commission to issue and
renew nuclear power plant licenses. See 42 U.S.C.
§ 2133. The Act limits initial licenses to a forty-year
term but otherwise grants the Commission wide authority to
regulate the license issuance and renewal process. See
id. at § 2133(c). In 10 C.F.R. Part 54, the
Commission laid out the general framework for renewal. The
Commission also promulgated 10 C.F.R. Part 51 to deal with
its obligations under NEPA. NEPA requires preparation of an
Environmental Impact Statement (EIS) before undertaking any
" major Federal action significantly affecting the
quality of the human environment." 42 U.S.C. §
4332(2)(C); see also New York v. NRC, 681
F.3d 471, 476, 401 U.S.App.D.C. 140 (D.C. Cir. 2012). This
requirement ensures each agency " consider[s] every
significant aspect of the environmental impact of a proposed
action" and " inform[s] the public that it has
indeed considered environmental concerns in its
decisionmaking process." Balt. Gas & Elec. Co. v.
NRDC, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437
(1983). The issuance or renewal of a nuclear power plant
license qualifies as a " major federal action"
triggering the Commission's obligations under NEPA.
See New York, 681 F.3d at 476.
AEA also provides that " the Commission shall grant a
hearing upon the request of any person whose interest may be
affected by the proceeding." 42 U.S.C. §
2239(a)(1)(A). In 10 C.F.R. § 2.309, the Commission laid
out the specific procedures an intervening party must follow.
The interested party must file a written request listing the
specific contentions the party seeks to litigate. See
id. at § 2.309(a), (f)(1). If a party's
contentions do not meet the Commission's specificity or
relevancy requirements, the agency may deny the hearing
request. See id. Finally, the AEA subjects all final
Commission orders to judicial review. 42 U.S.C. §
2239(b). " Any party aggrieved" by a final order of
the Commission may " file a petition to review the order
in the court of appeals." 28 U.S.C. § 2344. This
court has " routinely interpreted [the phrase 'any
party aggrieved'] to allow petitions by parties who were
intervenors before the Commission." State of Alaska
v. FERC, 980 F.2d 761, 763, 298 U.S.App.D.C. 384 (D.C.
Cir. 1992). To challenge the Commission's grant of a
license renewal, then, a party must have successfully
intervened in the proceeding by submitting adequate
contentions under 10 C.F.R. § 2.309.
here sought to intervene in the relicensing of Exelon's
Limerick power station. To understand how this relicensing
process works, a brief history of the power plant at issue is
helpful. The Limerick Generating Station is a dual-unit
nuclear power plant with two boiling water reactors located
in Limerick Township, Pennsylvania, approximately 35 miles
outside of Philadelphia. The Commission first licensed
Limerick in 1984 after conducting ninety-five days of
hearings and " generating a 20,000-page
transcript." Limerick Ecology Action, Inc. v.
NRC, 869 F.2d 719, 728 (3d Cir. 1989). Various
environmental petitioners challenged NRC's grant of a
full power license to Limerick, alleging the Commission
failed to adequately consider several environmentally
relevant factors in violation of NEPA. Specifically,
petitioners contended the Commission improperly declined to
consider severe accident mitigation design alternatives
(SAMDAs) on the basis of the Agency's
policy statement that read: " [NRC will] exclude
consideration of design alternatives as a matter of
Commission policy while research into design alternatives
[is] ongoing." Id. at 734. SAMDAs are defined
as " possible plant design modifications that are
intended not to prevent an accident, but to lessen the
severity of the impact of an accident should one occur."
Id. at 731.
Third Circuit held NRC's policy statement--unlike a
notice-and-comment rulemaking--was not entitled to deference.
See id. at 729-31. Moreover, the court
rejected NRC's Final Environmental Impact Statement
(FEIS) for Limerick as inadequate under NEPA because it did
not include " the requisite careful consideration of the
environmental consequences [of SAMDAs]." Id. at
723. But the court did not foreclose the possibility that
SAMDAs could be dealt with " generically" through a
subsequent rulemaking. See id. (" Although NEPA
requires the Commission to undertake 'careful
consideration' of environmental consequences, . . . it
may issue a rulemaking to address and evaluate environmental
impacts that are 'generic,' i.e. not
plant-specific." (citation omitted)).
by Limerick Ecology, NRC staff conducted a
site-specific severe accident mitigation analysis at Limerick
and issued a supplemental environmental impact statement
(SEIS) summarizing its findings. See U.S. Nuclear
Regulatory Comm'n, Office of Nuclear Reactor Regulation,
Final Environmental Statement Related to the Operation of
Limerick Generating Station, Units 1 and 2, NUREG-0974
Supplement (Aug. 1989). NRC staff concluded " the risks
and environmental impacts of severe accidents at Limerick are
acceptably low" and that " no new information"
called into question the FEIS's original severe accident
findings. Id. at vi.
The 1996 Rulemaking
Commission subsequently accepted the Third Circuit's
invitation to streamline its evaluation of environmental
issues during license renewal by resolving many issues
generically. See Environmental Review for
Renewal of Nuclear Power Plant Operating Licenses, 61
Fed.Reg. 28,467 (June 5, 1996). The Commission identified 92
issues material to environmental review of nuclear power
plants; of these, it assessed that 68 issues could be
adequately addressed generically, whereas 24 " were
found to require additional assessment for at least some
plants at the time of the license renewal review."
Id. at 28,468; see also 10 C.F.R. pt. 51
appx. B. The former were classified as " Category
1" issues and the latter as " Category 2."
See 10 C.F.R. pt. 51 appx. B. The rulemaking also
addressed two related concerns: that interested parties would
be denied the opportunity to participate in the license
renewal process with respect to " generically"
resolved issues and that a generic EIS could not satisfy
NEPA's " hard look" requirement because it
would necessarily rely on findings from 20 years prior.
See 61 Fed.Reg. at 28,470. NRC responded to these
concerns by (i) committing to prepare a supplemental
site-specific EIS (rather than simply an environmental
assessment) for each renewal which would consider comments
introducing " new and significant" information
regardless of whether the comments were directed to Category
1 or 2 issues; (ii) leaving cost-benefit conclusions and
conclusions " relative to the overall environmental
impacts including cumulative impacts" entirely to the
site-specific supplemental EIS; and (iii) formally reviewing
the rule and the generic EIS (GEIS) every 10 years to
determine " what, if anything, in the rule requires
revision." Id. at 28,470-71.
Commission formally classified SAMAs as a Category 2 issue,
although it included an exception for plants that had
previously performed a SAMA analysis. See 10 C.F.R.
pt. 51 appx. B. (" [A]lternatives to mitigate severe
accidents must be considered for all plants that have not
considered such alternatives." ). The Commission
explained its categorization of SAMAs at length. The GEIS
analyzes SAMAs for " each site" using "
site-specific estimates for parameters such as population
distribution and meteorological conditions." 61 Fed.Reg.
at 28,480. The information incorporated into the GEIS is
therefore based on an evaluation of each particular plant.
See id. (" [T]he analyses performed for the
GEIS represent adequate, plant-specific estimates of
the impacts from severe accidents that would generally
over-predict, rather than under-predict, environmental
consequences." (emphasis added)). But NRC concluded that
SAMAs could not yet be categorized as a " Category
1" issue because not all plants had conducted a SAMA
analysis at the initial licensing stage:
The Commission has determined that a site-specific
consideration of alternatives to mitigate severe accidents
will be required at the time of license renewal unless a
previous consideration of such alternatives regarding plant
operation has been included in a final environmental impact
statement or a related supplement. . . . Although the
Commission has considered containment improvements for all
plants . . . [and] has additional ongoing regulatory programs
whereby licensees search for individual plant vulnerabilities
to severe accidents and consider cost-beneficial
improvements, these programs have not yet been completed.
Therefore, a conclusion that severe accident mitigation has
been generically considered for license renewal is premature.
Id. at 28,480-81. In its rulemaking, NRC also
specifically enumerated the plants, including Limerick, which
had already completed an adequate SAMA analysis at licensing
and so were not required to conduct further analysis at
relicensing. See id. at 28,481 (" NRC
staff considerations of [SAMAs] have already been completed
and included in an EIS or supplemental EIS for Limerick,
Comanche Peak, and Watts Bar. Therefore, [SAMAs] need not be
reconsidered for these plants for license renewal." ).
Commission codified its treatment of SAMAs at 10 C.F.R.
§ 51.53(c)(3)(ii)(L) (Rule (L)), which states: " If
the staff has not previously considered severe accident
mitigation alternatives for the applicant's plant in an
environmental impact statement or related supplement or in an
environmental assessment, a consideration of alternatives to
mitigate severe accidents must be provided." Rule (L)
thus constitutes a generic determination, via rulemaking,
that one SAMA per plant is sufficient to " uncover most
cost-beneficial measures to mitigate both the risk and the
effects of severe accidents, thus satisfying [the
Commission's] obligations under NEPA." In the
Matter of Exelon Generation Co., LLC (Limerick
Generating Station, Units 1 and 2), 78 N.R.C. 199, 2013 WL
5872241, at *5 (2013). For plants like Limerick where a SAMA
analysis was performed when the plant was initially licensed,
reliance on that earlier site-specific analysis is
sufficient: The Commission relies on both the site-specific
SEIS and the GEIS to conduct its severe ...