NATURAL RESOURCES DEFENSE COUNCIL, Pеtitioner v. U.S. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents. Exelon Generation Company, LLC, Intervenor.
No. 14-1225.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 17, 2015. Decided April 26, 2016.
823 F.3d 641
Before: ROGERS, BROWN and KAVANAUGH, Circuit Judges.
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
Brad Fagg argued the cause and filed the brief for intervenor Exelon Generation Company, LLC.
Opinion for the Court filed by Circuit Judge BROWN.
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 proсedural 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—
The Atomic Energy Act (AEA) empowers the Commission to issue and renew nuclear power plant licenses. See
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.”
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 licеnsed 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 Agen-
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 Limeriсk 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
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
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
B. The Relicensing Process
The categorization of SAMAs directly impacts a licеnsee‘s obligations during relicensing. Under
After an applicant has submitted its ER, the NRC staff produces a draft supplemental EIS for license renewal.
For parties seeking to challenge the staff‘s findings, the process varies by issue category. Because Category 2 issues are site-specific, they can be challenged directly during the reliсensing proceeding. The Commission has established a different mechanism for challenging generic Category 1 findings during individual license renewal proceedings. If a party submits comments on a Category 1 issue during the public comment period, the NRC staff has three potential avenues for response. If it deems the existing generic analysis adequate, it can provide an explanation of that view (including, if applicable, consideration of the significance of the new information). See 61 Fed. Reg. at 28,470. However, if a commenter provides new information that calls into question the validity of a generic Category 1 finding, “the NRC staff will seek Commission approval to either suspend the application of the rule on a generic basis ... or delay granting the renewal application” until the GEIS is updated and the rulе amended. Id. If the commenter provides site-specific information indicating the rule is incorrect with respect to that particular plant, the NRC staff will petition the Commission to “waive the application of the rule with respect to that analysis in that specific renewal proceeding.” Id.
III.
This litigation spans mаny years and many volumes. In June 2011, Exelon Generation Company, LLC (Exelon) filed an application to renew its initial 40-year operating licenses for Limerick Generating Station, Units 1 and 2, for an additional 20 years. Because of Rule (L)‘s carve-out for plants that previously conducted a SAMA analysis, Exelon‘s ER supporting its license renewal application did not contain a new SAMA analysis but merely noted such an analysis had been completed for the initial operating licenses. See Exelon Generation Co., Environmental Report—Operating License Renewal Stage, Limerick Generation Station, Units 1 and 2, at 4-49 (June 2011). Although Exelon relied on Rule (L) to conclude no updated site-specific analysis was legally required, it still included a detailed consideration of whether “new and significant” information had identified “a significant environmental issue not covered in the GEIS” or an issue excluded from the GEIS that could lead to “an impact finding different from that codified in the regulation.” Id. at 5-2. Exelon concluded that it had discovered no such new or significant information. See
After NRC staff published a Notice of Opportunity for Hearing on Exelon‘s relicensing application, see 76 Fed. Reg. 52,992 (Aug. 24, 2011), NRDC submitted a petition to intervene and a hearing request. Perhaps anticipating that its SAMA-related contentions would be precluded by Rule (L), NRDC framed its arguments in terms of NEPA, alleging that NEPA requires an EIS to contain “high quality” information and “accurate scientific analysis,” meaning an agency cannot possibly comply with NEPA if it relies on “outdated, inaccurate, or incomplete” environmental analyses. See Natural Resource Defense Council Petition to Intervene and Notice of Intention to Particiрate, Nos. 50-352-LR, 50-353-LR, at 48 (Nov. 22, 2011). In its petition, NRDC specifically contended that Exelon‘s ER “erroneously conclude[d] that new information related to its SAMDA analysis [was] not significant.”
Both NRC staff and Exelon appealed the Board‘s admission of NRDC‘s contention as an impermissible challenge to Rule (L) in the context of an individual adjudication. Exelon acknowledged its obligation to evaluate “new and significant” information related to SAMAs but argued no party could challenge the adequacy of its evaluation as it relates to the prior Limerick SAMA analysis, аbsent a waiver. See Exelon‘s Brief in Support of the Appeal of LBP-12-08, Nos. 50-352-LR, 50-353-LR, at 7 (Apr. 16, 2012). The Commission agreed and reversed the Board‘s ruling, conclud-
However, because the Commission conceded it had not yet faced this precise factual scenario, it found NRDC could potentially challenge the adequacy of Exelon‘s ER by seeking a waiver of Rule (L). See
On remand, the Board сoncluded Rule (L) could not be waived but referred the decision back to the Commission for further review given the complex interplay between Rule (L) and
When we engage in rulemaking, we are “carving out” issues from adjudication for generic resolution. Therefore, to challenge the generic application of a rule, a petitioner seeking waiver must show that there is something extraordinary about the subject matter of the proceeding such that the rule should not apply.
Exelon Generation Co., LLC, 2013 WL 5872241, at *3. To qualify for waiver, four factors must be met. See In the Matter of Dominion Nuclear Connecticut, Inc. (Millstone), 62 N.R.C. 551, 559-60, 2005 WL 4131574 (2005). The Commission found NRDC failed to meet its burden since it could not demonstrate that its challenge rested on “issues that [were] legitimately unique to the proceeding” rather than issues of “broader concern[] about the rule‘s general viability or appropriateness.” Exelon Generation Co., at *4. Because NRDC was not relying on information that set “Limerick apart from other plants undergoing license renewal whose previous SAMA analyses purportedly also would be in need of updating,” the Commission denied the waiver.
IV.
The Administrative Procedure Act governs our review of an agency‘s rule or licensing decision. See
Moreover, to the extent NRC‘s technical judgment is before the court, we “must generally be at [our] most deferential.” Balt. Gas & Elec. Co., 462 U.S. at 103. In the NEPA context “determining what constitutes significant new information” is “a factual question requiring technical expertise,” and so the agency‘s determination is “owe[d] considerable deference.” Town of Winthrop v. FAA, 535 F.3d 1, 8 (1st Cir.2008). Still, we must ensure NRC “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
Finally, we evaluate the Commission‘s intеrpretation of the AEA‘s hearing requirement under the familiar two-step Chevron analysis. This court is “obliged to defer to the operating procedures employed by an agency when the governing statute requires only that a ‘hearing’ be held,” as does the AEA. Union of Concerned Scientists v. NRC, 920 F.2d 50, 54 (D.C.Cir.1990). And the Commission‘s interpretation of its own regulations is given “controlling weight” unless that interpretation is “plainly erroneous or inconsistent with the regulation.” City of Idaho Falls v. FERC, 629 F.3d 222, 228 (D.C.Cir.2011).
V.
Before delving into the law, it is helpful to lay out in plain terms what is at stake in this case from both parties’ perspectives. For NRDC, the existence of Rule (L) ostensibly creates a “regulatory blackhole” that prevents the organization from intervening in the relicensing adjudication to challenge the adequacy of Limerick‘s 1989 SAMA analysis in light of advancements in technology. Because NRDC is barred from intervening, the organizаtion is not entitled to an evidentiary hearing on its claims. See
NRDC alleges both alternative routes to a challenge—seeking a waiver or submitting a petition for rulemaking—are merely illusory. As the Commission conceded at oral argument, it has rarely, if ever, granted a petition for waiver. And rulemaking is a lengthy process, often taking years. A party that has submitted a rulemaking petition can seek to suspend the relicensing process while its petition is considered. However, it is unclear under Commission regulations whether NRDC would qualify to request suspension: a petitioner may request suspension of “any licensing proceeding to which the petitioner is a participant.”
At first glance, NRDC‘s predicament is worrisome given the decades that elapse between licensing and relicensing and the advances in mitigation technology that inevitably occur in the interim. Concern is
After closer inspection, however, we are persuaded that the issue is less problematic than it first appears. SAMAs represent only a minor portion of the Commission‘s overall regulatory regime—separate and apart from its safety requirements. A SAMA is simply “a cost-benefit analysis that addresses whether the expense of implementing a mitigation measure not mandated by the NRC is outweighed by the expected reduction in environmental cost it would provide in a core damage event.” Massachusetts v. NRC, 708 F.3d 63, 68 (1st Cir.2013). Potential benefits include “averted costs such as public exposure, offsite property damage, occupational exposure costs, cleanup and decontamination costs, and replacement power costs.” Id. at 68 n.5. Put simply, SAMAs are not meant to prevent an accident but rather to mitigate the severity should one occur. The Commission relies on a myriad of other safety mechanisms to prevent accidents. For example, plants are required to maintain “up-to-date” emergency plans that are evaluated on a site-specific basis during license renewal. See 61 Fed. Reg. at 28,480. The Commission also uses ongoing programs to evaluate mitigation alternatives including the Containment Performance Improvement program, the Individual Plant Examination program, and the Individual Plant Examination for External Events programs. See
The Commission—and the plants themselves—are thus constantly evaluating new mitigation alternatives through channels other than the relicensing process. Exelon has in fact implemented several additional mitigation measures at Limerick since its 1989 SAMA analysis. See Limerick 2014 Supplemental EIS, supra, at 5-4 to 5-9. The Commission has also evaluated the safety of all plants in light of events at Fukushima; immediately after the earthquake, the Commission convened a task force to consider its ramifications. The Task Force issued its preliminary findings only four months after the accident. See U.S. Nuclear Regulatory Comm‘n, Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident
But the relicensing process also includes means for NRC to consider “new and significant” information related to Category 1 issues—even if it does not guarantee a hearing. As discussed previously, if a party raises relevant “new and significant” information regarding a generic finding, NRC staff have the option to suspend the rule and relicensing until the GEIS is updated or to waive application of the rule to that particular plant. See 61 Fed. Reg. at 28,470. And in this case, NRC staff actually considered and explained its treatment of NRDC‘s “new and significant” information. See Limerick 2014 Supplemental EIS, supra, at 5-25 to 5-26.
From the Commission‘s perspective, then, it is both effective and efficient to resolve certain issues through generic findings. The relicensing process is already lengthy, as NRC staff must evaluate all relevant information, respond to public comment, and hold evidentiary hearings on challenges to site-specific issues. If any party could also challenge every generically resolved issue, the number of hearings would increase dramatically—even though those hearings would be unlikely to identify measures not already considered by the Commission. The agency has therefore wisely chosen to focus its limited resources in other more availing areas, while still building in several safety valves to ensure that truly significant new information is not overlooked.
Having explained the regulatory framework and defined the issues at stake—we now turn to the legal questions.
A.
This case‘s complicated procedural background obscures the relatively straightforward legal issue at play. The key question is whether NRDC is seeking a hearing on an issue generically resolved through rulemaking via an individual adjudication. Commission regulations preclude such collateral attacks, absent a waiver. See
From the outset, NRDC‘s contentions have focused on the inadequacy of Limerick‘s 1989 SAMA in light of changes over the past three decades. Rule (L) forecloses this approach. NRDC is arguably correct in arguing that Rule (L)‘s language, on its face, does not preclude the Commission from requiring plants that have already undergone a SAMA analysis to conduct an additional analysis. But
NRDC attempts to wriggle out from under this regulatory bar by asserting that its right tо a hearing on “new and significant” information derives from the AEA and NEPA‘s hearing requirements. But neither statute does the work NRDC asks of it. The organization points, at times, to the AEA‘s mandate that, “the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding.”
Similarly, with respect to NEPA, that statute “does not, by its own terms or its intent, alter the Commission‘s hearing procedures.... The Supreme Court has been clear that ‘the only procedural requirements imposed by NEPA are those stated in the plain language of the Act.’ NEPA does not mandate particular hearing procedures and does not require hearings.” Beyond Nuclear v. NRC, 704 F.3d 12, 18-19 (1st Cir.2013) (quoting Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 548, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). And though NEPA “does impose a requirement that the NRC consider any new and significant information regarding environmental impacts before renewing a nuclear power plant‘s operating license,” it “does not require agencies to adopt any particular internal decisionmaking structure.” Massachusetts, 522 F.3d at 127 (quoting Baltimore Gas & Electric Co., 462 U.S. at 100). Because neither the AEA nor NEPA guarantees an absolute right to a hearing and neither dictates how the Commission should determine who receives a hearing, NRDC‘s reliance is misplaced. If every party challenging a generically resolved issue on the basis of “new and significant information” were guaranteed a hearing, the Commission would have no ability to streamline its relicensing process via generic rulemaking. And “the Supreme Court has found agency reliance on prior [generic] determinations to be perfectly acceptable, even when the statute before it plainly calls for individualized hearings and findings.” Nuclear Info. Res. Serv., 969 F.2d at 1175 (listing Supreme Court cases).5
For all practical purposes, this case cannot be distinguished. Here, an NRC regulation excludes plants like Limerick from conducting a subsequent SAMA analysis; NRDC argues that this general regulation does not account for new circumstances. Such an argument similarly amounts to a collateral attack on the agency‘s regulation—an attack which should properly have been brought through a rulemaking petition or via the waiver process.
The Supreme Court in Baltimore Gas & Electric Co. considered a similar issue: there, NRC had chosen to generically evaluate the impact of fuel cycles and to inform licensing boards of its evaluation through a published table. This process was challenged as improperly forgoing any plant-specific analysis. But the Court upheld NRC‘s determination: “The generic method chosen by the agency is clearly an appropriate method of conducting the hard look required by NEPA.” 462 U.S. at 101. The Court noted that generic resolution furthers “[a]dministrative efficiency,” and cautioned “[i]t is not our task to determine what decision we, as Commissioners, would have reached. Our only task is to determine whether the Commission has considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Id. at 105. Here, NRC considered whether additional site-specific SAMAs would be efficacious, concluding that they would not. This decision was rational, supported by facts, and similarly sufficient to satisfy the Commission‘s “hard look” obligation under NEPA with respect to plants like Limerick.
Finally, in Massachusetts v. United States, the First Circuit confronted a challenge to NRC‘s global findings regarding the storage of spent fuel on site at a nuclear plant. The Commonwealth con-
NRDC brushes aside these cases as distinguishable because the issues there fell squarely under a “Category 1” classification. But, at bottom, NRDC is challenging Rule (L) itself as the organization has raised only issues precluded by this regulation. Whether the SAMA analysis is considered as a proper “Category 1” issue for plants like Limerick or rather as a “functional equivalent,” the principle remains the same: NRDC cannot challеnge an agency‘s rulemaking via collateral attack, absent a waiver. Moreover, NRDC has not been denied full access to litigate these issues; no party has an unequivocal right to a hearing on any terms before the Commission, and NRDC has been free all along to seek a waiver (as it did) or to pursue its contentions through rulemaking. The Commission has spoken to NRDC‘s precise contentions through a notice-and-comment generic rule concerning a matter squarely within the agency‘s expertise. We therefore uphold the Commission‘s interpretation and invocation of Rule (L).
B.
Having concluded the Commission‘s interpretation of Rule (L) is reasonable and NRDC can only proceed if it receives a waiver, we now consider whether NRDC‘s petition for waiver was properly denied. The Commission‘s determination is entitled to deference as long as it was not arbitrary and capricious. See, e.g., Baltimore Gas & Electric Co., 462 U.S. at 98. Under
Here, the Commission‘s decision rested on the third factor of “uniqueness.” In Millstone, the Commission found that considerations such as proximity of the plant to an adjoining state and changes in demographics and roadways around the plant were “hardly unique” as these were “important but common problem[s] addressed by the NRC‘s ongoing regulatory program.” Id. at 562. Other circuits have
In this case, NRDC raised claims of newer, more efficacious technology developed since 1989 for boiling water reactors like Limerick. It also pointed to demоgraphic changes around the plant (such as increased population and changed economic circumstances). But—as in Millstone—these concerns are applicable to many, if not all, other plants that would be seeking relicensing after a twenty-year period. The Commission therefore denied the petition for lack of “unique” application. That reasonable determination is entitled to deference from this court.
As a final note, NRDC‘s aims are ultimately best served by pursuing a rulemaking to challenge Rule (L), as the Commission has urged. Although rulemaking is far from the fastest route, it has transparency, extensive public input, and broad application to recommend it. As it stands, however, we conclude the Commission‘s interpretation and application of Rule (L) in the Limerick relicensing proceeding was reasonable and cannot be challenged through NRDC‘s collateral attack.
VI. Conclusion
For the foregoing reasons, the petition is
Denied.