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Natural Resources Defense Council v. U.S. Nuclear Regulatory Commission & United States of America

United States Court of Appeals, District of Columbia Circuit

April 26, 2016

NATURAL RESOURCES DEFENSE COUNCIL, PETITIONER
v.
U.S. NUCLEAR REGULATORY COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS, EXELON GENERATION COMPANY, LLC, INTERVENOR

         Argued September 17, 2015.

          On Petition for Review of An Order of the United States Nuclear Regulatory Commission.

         Howard M. Crystal argued the cause for petitioner. With him on the briefs were Eric R. Glitzenstein and Geoffrey H. Fettus.

         James 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.

         Brad Fagg argued the cause and filed the brief for intervenor Exelon Generation Company, LLC.

         Before: ROGERS, BROWN and KAVANAUGH, Circuit Judges.

          OPINION

         Brown, Circuit Judge:

         National 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.

         I.

          The 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.

          The 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.

         II.

         NRDC 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)[1] 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.

         The 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.[2] 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)).

         Prompted 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.

         A. The 1996 Rulemaking

          The 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.

         The 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." ).

         The 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 ...


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