Commonwealth of Massachusetts v. US Nuclear Regulatory Commissi , 708 F.3d 63 ( 2013 )

United States Court of Appeals
For the First Circuit
Nos. 12-1404, 12-1772
COMMONWEALTH OF MASSACHUSETTS,
Petitioner,
v.
U.S. NUCLEAR REGULATORY COMMISSION; THE UNITED STATES OF AMERICA,
Respondents,
ENTERGY NUCLEAR OPERATIONS, INC.;
ENTERGY NUCLEAR GENERATION COMPANY,
Intervenors.
PETITIONS FOR REVIEW OF ORDERS OF THE
U.S. NUCLEAR REGULATORY COMMISSION
Before
Lynch, Chief Judge,
Torruella, Circuit Judge,
and DiClerico,* District Judge.
Matthew Brock, Assistant Attorney General, Office of the
Attorney General, Environmental Protection Division, with whom
Martha Coakley, Attorney General, was on brief, for petitioner.
James E. Adler, Attorney, Office of the General Counsel, U.S.
Nuclear Regulatory Commission, with whom Ignacia S. Moreno,
Assistant Attorney General, J. David Gutner II, Attorney, Appellate
Section, Environmental and Natural Resources Division, U.S.
Department of Justice, Marian L. Zobler, Acting General Counsel,
*
of the District of New Hampshire, sitting by designation.
John F. Cordes, Jr., Solicitor, and Lauren Woodall, Attorney,
Office of General Counsel, U.S. Nuclear Regulatory Commission, were
on brief, for respondents.
Kevin P. Martin, with whom Elise N. Zoli, Goodwin Procter LLP,
David R. Lewis, Paul A. Gaukler, Timothy J. V. Walsh, and Pillsbury
Winthrop Shaw Pittman LLP, were on brief, for intervenors Entergy
Nuclear Operations, Inc. and Entergy Nuclear Generation Company.
February 25, 2013
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LYNCH, Chief Judge. The Commonwealth of Massachusetts
petitions for review from the Nuclear Regulatory Commission's
("NRC" or "Commission") 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 (12-1404). 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"), 42 U.S.C.
§ 4321 et seq., were inadequate in light of the damage to the
Fukushima Daiichi ("Fukushima") nuclear power plant in Japan in
March of 2011.1 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 (12-1772).
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"), 42 U.S.C. § 2011, et seq. Rather, the Commonwealth argues
1
Entergy Nuclear Operations, Inc., and Entergy Nuclear
Generation Company (collectively, "Entergy"), the operators of
Pilgrim Nuclear Power Station, filed an application with the NRC on
January 25, 2006, to renew the plant's operating license, which was
set to expire on June 8, 2012, for an additional twenty years. 71
Fed. Reg. 15,222 (Mar. 27, 2006). Pilgrim has been operating since
1972. After the NRC issued its final EIS for Pilgrim in July of
2007, but before the renewed license was issued, the Great East
Japanese Earthquake occurred on March 11, 2011.
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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 damage2
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.
Under the applicable standards of judicial review, we
deny the petition for review.
I.
The regulatory scheme governing this license renewal
falls under two statutes, the AEA and NEPA. NEPA and the right to
2
The term "core damage" refers to damage to the portion of
the nuclear reactor containing the nuclear fuel the plant uses to
create heat for electricity generation.
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a hearing under the AEA are at issue here. The AEA3 requires the
NRC to provide "adequate protection" for the health and safety of
the public, 42 U.S.C. § 2232(a), which the NRC seeks to ensure on
an ongoing basis through an "evolving set of requirements and
commitments for a specific plant that are modified as necessary
over the life of a plant to ensure continuation of an adequate
level of safety." 60 Fed. Reg. 22,461, 22,473 (May 8, 1995).4
Those safety provisions under the AEA are not at issue here. The
AEA also states that the NRC shall grant a hearing to a person
affected by a relicensing, 42 U.S.C. § 2239(a), but as we discuss
later, the NRC determined that the Commonwealth did not meet the
procedural requirements, and that decision was not arbitrary and
capricious.
3
The AEA is the NRC's organic statute, authorizing the NRC to
issue licenses to operate nuclear power plants for a period not to
exceed 40 years. 42 U.S.C. § 2133(c). The AEA also permits the
renewal of operating licenses, id., and delegates to the NRC the
authority to determine appropriate rules and regulations,
Massachusetts v. United States, 522 F.3d 115, 119 (1st Cir. 2008);
see also Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968) (AEA is
"a regulatory scheme which is virtually unique in the degree to
which broad responsibility is reposed in the administering agency,
free of close prescription in its charter as to how it shall
proceed in achieving the statutory objectives"); 10 C.F.R.
§ 54.31(b) (permitting renewal up to 20 years before expiration for
no more than 20 additional years beyond the current license's
expiration date).
4
At the license renewal stage, the NRC has decided to focus
its safety review on managing the aging of important plant
structures, components, and systems. See Massachusetts, 522 F.3d
at 119; 10 C.F.R. §§ 54.21, 54.29(a).
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NEPA, by contrast, requires federal agencies to prepare
an EIS for major federal actions that would significantly affect
the quality of the human environment, including a discussion of
"the environmental impact of the proposed action," "any adverse
environmental effects which cannot be avoided should the proposed
action be implemented," and "alternatives to the proposed action."
42 U.S.C. § 4332(C)(i)-(iii). Relicensing requires the preparation
of an EIS. 10 C.F.R. §§ 51.20(b)(2) (requiring EIS for renewal),
51.95(c) (discussing what EIS must address).
NEPA's EIS requirement serves two purposes. First, "it
places upon an agency the obligation to consider every significant
aspect of the environmental impact of a proposed action." Balt.
Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97
(1983) (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, Inc., 435 U.S. 519, 553 (1978)) (internal quotation marks
omitted). Second, it provides assurance that the agency will
inform the public that it has considered environmental concerns in
its decisionmaking process. Id. (citing Weinberger v. Catholic
Action of Haw./Peace Educ. Project, 454 U.S. 139, 143 (1981)). Put
differently, NEPA seeks to guarantee process, not specific
outcomes. Town of Winthrop v. FAA, 535 F.3d 1, 4 (1st Cir. 2008).
In short, NEPA requires the agency to take a "hard look" at the
environmental consequences of a major federal action. Balt. Gas &
Elec. Co., 462 U.S. at 97.
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It is significant to this petition that the NRC assesses
environmental impacts through two different procedures. One, for
site-specific impacts, is done in the course of the individual
plant relicensing. The other, for impacts that are generic to all
plants of a particular type, is done through rulemaking rather than
individual licensing proceedings. The Commonwealth confuses the
two, and attempts to raise in the petition seeking review of the
relicensing issues which both belong in generic rulemaking, see
Massachusetts v. United States, 522 F.3d 115, 127 (1st Cir. 2008)
(environmental impacts of spent fuel pools dealt with through
rulemaking), and are in fact being addressed in that rulemaking.
As to relicensing, the NRC requires an applicant to
submit an environmental report with its relicensing application.
10 C.F.R. § 51.53(c)(1). That was done here in 2006. The report
for a license renewal must analyze the environmental impacts of the
proposed action and include a severe accident mitigation
alternatives ("SAMA") analysis. Id. § 51.53(c)(3)(ii)(L). The
SAMA analysis, in the most basic sense, is 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.5 See Duke Energy Corp., 56 N.R.C. 1, 7-8 (2002) ("Whether
5
Included as benefits are averted costs such as public
exposure, offsite property damage, occupational exposure costs,
cleanup and decontamination costs, and replacement power costs.
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a SAMA may be worthwhile to implement is based upon a cost-benefit
analysis -- a weighing of the cost to implement the SAMA with the
reduction in risks to public health, occupational health, offsite
and onsite property.").
As to the second mechanism for environmental impacts that
are not plant-specific, but instead apply to all like plants, the
Supreme Court has held that the NRC is permitted to make generic
determinations to meet its NEPA obligations. Balt. Gas & Elec.
Co., 462 U.S. at 101 (stating generic method is "clearly an
appropriate method of conducting the hard look required by NEPA").
The NRC has labeled these issues as "Category 1" issues and has
adopted generic EISs for them. See 10 C.F.R. pt. 51, subpt. A,
app. B (listing NEPA issues for license renewal and assigning them
Category 1 or 2 classification); 61 Fed. Reg. 28,467 (June 5, 1996)
(explaining generic EIS). Those environmental impacts need not be
included in an environmental report nor need they be considered on
a site-specific basis in the EIS. See 10 C.F.R. §§ 51.53(c)(3)(i)
(environmental report), 51.71(d) (EIS). These generic
determinations need not be addressed in individual proceedings. As
we held in an earlier case, the generic rulemaking includes the
subject of environmental impacts of spent fuel pools.
Massachusetts, 522 F.3d at 127.
Going back to these relicensing proceedings, in certain
instances where an EIS has been prepared, and the relicensing has
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not yet occurred, the emergence of new information will require
federal agencies to supplement an EIS. Marsh v. Or. Natural Res.
Council, 490 U.S. 360, 372-73 (1989). Even so, to ensure that the
agency decisionmaking process is not delayed unnecessarily,
supplementation of the EIS is not required every time new
information arises. Id. at 373. Rather, a supplemental EIS only
need be prepared if there are "significant new circumstances or
information." Town of Winthrop, 535 F.3d at 7 (quoting 40 C.F.R.
§ 1502.9(c)(1)) (emphasis omitted); see also 10 C.F.R.
§ 51.92(a)(2) (requiring final EIS be supplemented with "new and
significant" information). That means new information must
"paint[] a dramatically different picture of impacts compared to
the description of impacts in the EIS." Town of Winthrop, 535 F.3d
at 12; see also Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th
Cir. 1984) (supplementation required where new information
"provides a seriously different picture of the environmental
landscape").
To obtain a hearing on this claim of new information,
requestors must meet certain requirements. In this case, two NRC
regulations are relevant. First, where the record has been closed,
a party must meet the record reopening standards to have its new
information considered in an adjudication. See 10 C.F.R.
§ 2.326(a)(1)-(3). The NRC's regulations impose three
requirements:
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(1) The motion must be timely. However, an
exceptionally grave issue may be considered in
the discretion of the presiding officer even
if untimely presented;
(2) The motion must address a significant
safety or environmental issue; and
(3) The motion must demonstrate that a
materially different result would be or would
have been likely had the newly proffered
evidence been considered initially.
Id.Second, the requestor seeking a formal hearing must also
meet the Commission's general contention admissibility standards.
The request for a hearing must:
(i) Provide a specific statement of the issue
of law or fact to be raised or controverted
. . . ;
(ii) Provide a brief explanation of the basis
for the contention;
(iii) Demonstrate that the issue raised in the
contention is within the scope of the
proceeding;
(iv) Demonstrate that the issue raised in the
contention is material to the findings the NRC
must make to support the action that is
involved in the proceeding;
(v) Provide a concise statement of the alleged
facts or expert opinions which support the
requestor's/petitioner's position on the issue
and on which the petition intends to rely at
hearing, together with references to the
specific sources and documents on which the
requestor/petitioner intends to rely to
support its position on the issue;
(vi) In a proceeding other than one under 10
C.F.R. 52.103, provide sufficient information
to show that a genuine dispute exists with the
applicant/licensee on a material issue of law
or fact. . . .
Id. § 2.309(f)(1)(i)-(vi).
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II.
A. Proceedings Prior to Fukushima
As said, Entergy's relicensing application included an
environmental report containing a SAMA analysis. The analysis
included scenarios dealing with complete loss of offsite power,
various sorts of operator failures during core damage events, the
possibility of hydrogen build up in a core damage event leading to
an explosion, and the use of filtered vents.
The environmental report did not address the
environmental impacts of spent fuel pool accidents6 because the NRC
had adopted a generic EIS on that issue. Office of Nuclear
Regulatory Research, U.S. Nuclear Regulatory Comm'n, NUREG-1437, 1
Generic Environmental Impact Statement for License Renewal of
Nuclear Plants: Main Report (May 1996).7 This court rejected
Massachusetts's earlier challenge that this spent fuel pool issue
6
Spent fuel rods are a radioactive waste product of nuclear
power plants and are often stored in racks in water-filled storage
pools located at the plant. See Massachusetts, 522 F.3d at 122.
When Pilgrim was originally licensed in 1972, there was a national
policy of eventually disposing of the spent fuel through
reprocessing, but that policy was abandoned in the mid-1970s. Id.Without reprocessing, and without a national repository, spent fuel
has accumulated at onsite storage facilities. Id.7
The regulation in place stated that "[t]he expected increase
in the volume of spent fuel from an additional 20 years of
operation can be safely accommodated on site with small
environmental effects through dry or pool storage at all plants if
a permanent repository or monitored retrievable storage is not
available." Massachusetts, 522 F.3d at 121 n.4 (alteration in
original) (quoting 10 C.F.R. pt. 51, subpt. A, app. B).
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had to be heard in the relicensing rather than in rulemaking and
preserved for the Commonwealth its ability to present its arguments
in rulemaking after it had made the wrong choice as to which
vehicle was proper. Massachusetts, 522 F.3d at 127-33.8 The staff
issued a final EIS in July of 2007. Office of Nuclear Reactor
Regulation, U.S. Nuclear Regulatory Comm'n, NUREG-1437, Generic
Environmental Impact Statement for License Renewal of Nuclear
Plants, Supplement 29 Regarding Pilgrim Nuclear Power Station (July
2007). Upon completing consideration of a contention filed by
Pilgrim Watch in the relicensing, the ASLB9 closed the record in
June of 2008. See Entergy Nuclear Generation Co., 68 N.R.C. 590,
595-97 & n.26 (2008). In March of 2010, the NRC partially reversed
an earlier ASLB decision and remanded one limited issue, regarding
a meteorological model used in the SAMA analysis, to the ASLB for
8
The NRC later denied that rulemaking petition because the
studies presented by Massachusetts did not constitute new and
significant information and the NRC's findings related to the
storage of spent nuclear fuel in pools remained valid. 73 Fed.
Reg. 46,204, 46,212 (Aug. 8, 2008). The Second Circuit upheld the
NRC's denial of the Commonwealth's petition for rulemaking. New
York v. NRC, 589 F.3d 551, 553-55 (2d Cir. 2009) (per curiam).
9
The NRC "appoints [ASLBs] to conduct public hearings and to
make intermediate or final decisions in administrative proceedings"
relating to licensing decisions. Johnston v. NRC, 766 F.2d 1182,
1183 (7th Cir. 1985). A Board consists of three members, one of
whom is qualified in the conduct of administrative proceedings and
two of whom have technical or other qualifications the NRC deems
appropriate. 42 U.S.C. § 2241(a). ASLBs now preside over most
licensing hearings. Citizens Awareness Network, Inc. v. United
States, 391 F.3d 338, 357 n.6 (1st Cir. 2004) (Lipez, J.,
concurring).
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further hearing. Entergy Nuclear Generation Co., 71 N.R.C. 287(2010).
B. Fukushima and the NRC Response
On March 11, 2011, before the ASLB had issued a decision
on the remanded issue, an earthquake and tsunami occurred off the
coast of Japan. The tsunami hit the Fukushima nuclear power plant
causing a blackout at five of the six units and resulting in core
damage at three of the units. Notably, however, virtually no
damage occurred to any of the spent fuel pools on site and there
were no spent fuel pool fires.
The NRC took action within days to respond to the grave
events at Fukushima, establishing a Task Force by a March 23, 2011
memorandum, and requiring the Task Force "to conduct a methodical
and systematic review of [the NRC's] processes and regulations to
determine whether the agency should make additional improvements to
[its] regulatory system and to make recommendations to the
Commission for its policy direction." The NRC also directed its
staff to complete a review and implement lessons learned by 2016.
On July 12, 2011, the Task Force issued its report,
making twelve overarching recommendations, including on emergency
preparedness and mitigation measures. The Task Force also made
clear that a sequence of events like that at Fukushima is unlikely
to occur in the United States and that "continued operation and
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continued licensing activities do not pose an imminent risk to
public health and safety."
On March 12, 2012, the NRC issued three orders
implementing certain Task Force recommendations. First, the NRC
ordered license holders to "develop, implement and maintain
guidance and strategies to restore or maintain core cooling,
containment, and [spent fuel pool] cooling capabilities in the
event of a beyond-design-basis external event." Second, the NRC
ordered all boiling water reactors with Mark I and Mark II
containments (including Pilgrim) to install hardened vents to
ensure proper venting of the structure. Third, the NRC required
"provisions for reliable spent fuel pool indications," because
during the Fukushima event "[t]he lack of information on the
condition of the spent fuel pools contributed to a poor
understanding of possible radiation releases and adversely impacted
effective prioritization of emergency response actions by decision
makers." Each applies to Pilgrim.
C. Massachusetts's Post-Fukushima Motion to the NRC to Admit
Contention
On June 2, 2011, slightly less than three months after
Fukushima, Massachusetts moved to admit a contention and to reopen
the Pilgrim record, arguing that Fukushima revealed new and
significant information that the environmental impact analysis and
SAMA analysis needed to address. The Commonwealth contended that
Fukushima showed: (1) the likelihood of spent fuel pool accidents
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was higher than estimated in the existing EIS;10 and (2) the
frequency of core-melt accidents was also higher than estimated in
the existing EIS, and relatedly, in light of new information on a
variety of matters concerning core damage events,11 certain
mitigation measures that the SAMA analysis ignored or rejected
might be cost-effective.12
Massachusetts also included a petition for waiver,
seeking to litigate the spent fuel pool accident issues in the
individual adjudication, 10 C.F.R. § 2.335(b), as opposed to
challenging it through rulemaking. In the alternative, if a waiver
was denied, Massachusetts requested that the NRC rescind the spent
fuel pool determinations through rulemaking, and that the
relicensing proceedings be suspended until that rulemaking request
was resolved.
10
Massachusetts's expert stated in his report that the loss
of water in an event could lead to a pool fire and that the
Fukushima incident "provide[d] direct experience of events that
could be precursors of pool fires."
11
These included operators' ability to mitigate an accident,
the effects of secrecy about mitigation measures, the risk of
hydrogen explosions during core damage events, and the use of
filtered venting.
12
Earlier in the relicensing proceeding, the agency had
considered some similar issues raised in a contention by a
different group, including the accuracy of the probabilistic risk
assessment's ("PRA") estimation of core damage frequency in the
SAMA analysis and the use of filtered vents, which were rejected by
the agency in an October 16, 2006 order.
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The contention was accompanied by an expert report by Dr.
Gordon Thompson, a senior research scientist at Clark University.
Massachusetts moved, on August 11, 2011, to supplement its filing
with the released Task Force Report, which Massachusetts stated
"provide[d] further support for its contention." Massachusetts
filed a supplemental declaration from Dr. Thompson, which discussed
the reasons he felt the report supported his views in support of
the contention.
On November 28, 2011, the ASLB denied Massachusetts's
motion for a hearing, as well as the waiver motion, and the request
for a stay. The ASLB determined that: (1) the spent fuel concerns
were not unique to Pilgrim and so denied the waiver petition; and
(2) each portion of the contention concerning core damage events
failed to meet the agency's record reopening standards and/or its
general admissibility standards.13
The NRC affirmed14 the ASLB's decision on March 8, 2012.
On the spent fuel pool issues, the NRC denied the waiver petition,
referred the rulemaking petition to its staff, and denied the
request to suspend the proceedings pending resolution of that
13
One member of the Board concurred, agreeing that the
contention should be denied, but concluding that the contention was
premature, and Fukushima-related contentions should be allowed when
"relevant information becomes ripe for consideration."
14
The Chairman concurred in the majority's decision to deny
the waiver petition and suspension request, but dissented in the
majority's decision to apply the usual record reopening standards.
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petition. The NRC rejected the contention on all other issues. It
noted that Massachusetts had not provided sufficient information to
make a significant difference in the environmental review. The NRC
considered the core damage frequency claim and each of the related
claims that new information on core damage events might affect the
SAMA analysis, finding for many reasons that each aspect of the
contention either failed to meet the agency's reopening standards
or its admissibility standards. In particular, the NRC explained
that the failure to sufficiently link the Fukushima events to the
Pilgrim environmental analysis was the basic problem with the
contention.
On May 25, 2012, the majority of the NRC approved the
renewal of Pilgrim's operating license. The Chairman was the sole
dissenter, preferring to wait on making the licensing decision
until all issues before the agency were resolved. The other
Commissioners made no direct response, but two noted that if the
renewed license were set aside on judicial review, the previous
license would be reinstated pursuant to 10 C.F.R. § 54.31(c).
Massachusetts petitioned this court for review.
Massachusetts's primary arguments are that the NRC violated NEPA
and acted arbitrarily and capriciously by failing to take a hard
look at the lessons from Fukushima and by failing to require
supplementation of the EIS as to both the spent fuel pool and core
damage concerns before granting a renewed license. It also argues
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that, under NEPA, the NRC should have heard its rulemaking petition
and completed all the post-Fukushima review before granting the
license.
The record shows that the NRC gave a hard look to the
information Massachusetts presented to it, and it engaged in
reasoned decisionmaking in explaining why it refused to reopen the
record and why it denied the contention. The NRC did not need to
wait to grant the relicensing based on conjecture that additional
information might arise in the future. Indeed, the NRC gave
assurances that if such information did arise, and resulted in new
requirements, those requirements would, under its normal
procedures, be applied to Pilgrim.
III.
Because there is no apparent conflict between the NRC's
record reopening and general admissibility standards and NEPA's
standard for requiring supplementation of an EIS, we proceed to
determine if the NRC permissibly applied its procedural rules. We
start with the NRC's denial of the waiver of rulemaking petition on
the spent fuel pool issue. We then move on to the NRC's rejection
of the other portions of the contention. In doing so, we address
both the record reopening standards and the general admissibility
standards. We do so because the NRC relied on different provisions
in those distinct requirements in rejecting the various parts of
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the Commonwealth's contention.15 On some substantive issues the NRC
relied on both standards, and on other issues, rested on just a
provision in the reopening or the admissibility standards.
Therefore, we address both standards in order to fully deal with
the Commonwealth's challenge and the NRC's rejection of the entire
contention. For ease of organization, we address each substantive
issue separately, including the reopening and/or the admissibility
standards that are the basis for the rejection. Finally, we
consider the NRC's decision to proceed with licensing.
A. Standard of Review
Our review of NEPA claims is governed by the
Administrative Procedure Act, 5 U.S.C. § 501, et seq. ("APA"). See
Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1284 (1st Cir.
1996). The APA "authorizes this court to displace the [NRC's]
decisions only to the extent that they are 'arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.'"
Massachusetts, 522 F.3d at 126 (quoting 5 U.S.C. § 706(2)(A)).
Errors of law are reviewed de novo. Dubois, 102 F.3d at 1284.
An agency's decision is not arbitrary and capricious if
that decision was based on consideration of the relevant factors,
and if the agency did not commit a clear error of judgment. Town
15
For example, and as will be discussed more below, the NRC
rejected Massachusetts's "secrecy" argument regarding accident
mitigation measures only on the basis that it was outside the scope
of the proceedings, failing to meet one of the general
admissibility standards. 10 C.F.R. § 2.309(f)(1)(iii).
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of Winthrop, 535 F.3d at 8. A decision fails "if the agency relied
on improper factors, failed to consider pertinent aspects of the
problem, offered a rationale contradicting the evidence before it,
or reached a conclusion so implausible that it cannot be attributed
to a difference of opinion or the application of agency expertise."
Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st
Cir. 1997). "This general posture of deference toward agency
decision-making is particularly marked with regards to NRC
actions," including relicensing, because of the amount of
discretion the AEA grants to the Commission. Massachusetts, 522
F.3d at 126.
Moreover, in "determining what constitutes significant
new information," a reviewing court "owes considerable deference"
to the agency's determination because "that is a factual question
requiring technical expertise." Town of Winthrop, 535 F.3d at 8.
Thus, "[c]onsiderable deference is owed to the [agency's]
determination of whether [a completed EIS] remains accurate,
adequate, and current." Id.We also give substantial deference to an agency when it
adopts reasonable interpretations of its own regulations. Auer v.
Robbins, 519 U.S. 452, 461 (1997). "We must accept the agency's
position unless it is plainly erroneous or inconsistent with the
regulation." Massachusetts, 522 F.3d at 127 (quoting Auer, 519
U.S. at 461) (internal quotation marks omitted).
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Still, our role is to ensure that the agency took a "hard
look" at the purportedly new information and determine whether its
decisions were arbitrary or capricious. Dubois, 102 F.3d at 1284.16
B. Denial of the Spent Fuel Pool Waiver Petition
One of Massachusetts's main claims before the NRC
concerned the risk of spent fuel pool accidents. That is a
Category 1 issue, addressed globally for all nuclear power plants,
10 C.F.R. pt. 51, subpt. A, app. B, through rulemaking, and that is
where the NRC is dealing with this issue. Further, NRC regulations
generally prohibit the challenging of such generic determinations
in individual adjudicatory proceedings, see 10 C.F.R. § 2.335(a),
but under certain specified conditions,17 the NRC will waive that
16
At times, Massachusetts's brief appears to make a weak
argument that the NRC's procedural rules (particularly its record
reopening standards) are incompatible with NEPA. However, in its
reply brief, Massachusetts disavows that and asserts it is only
arguing that the NRC "cannot unreasonably interpret or misapply its
contention admissibility standards."
17
One exception to the prohibition on a challenge in an
individual proceeding is for a party to seek a waiver under 10
C.F.R. § 2.335(b), which provides that "[t]he sole ground for
petition of waiver or exception is that special circumstances with
respect to the subject matter of the particular proceeding are such
that the application of the rule or regulation (or provision of it)
would not serve the purposes for which [it] was adopted." The NRC
has interpreted the regulation to require a waiver petitioner to
meet four factors: (1) the rule's strict application would not
serve the purpose for which it was adopted; (2) there are special
circumstances that were not considered, explicitly or implicitly,
in the rulemaking proceeding; (3) those circumstances are "unique"
to the facility and not common to a large class of facilities; and
(4) a waiver is necessary to reach a significant safety problem.
Dominion Nuclear Conn., Inc., 62 N.R.C. 551, 559-60 (2005). The
NRC's decision that Massachusetts did not meet the standards was
-21-
rule and hear issues in a particular relicensing proceeding.
Although some may doubt whether Massachusetts has explicitly,
rather than implicitly, challenged the NRC's ruling on the waiver
petition, we nonetheless address it briefly.
In denying Massachusetts's waiver petition, the NRC
permissibly reasoned that Massachusetts did not show that the spent
fuel pool issues in its contention were unique to Pilgrim. Rather,
they applied to all nuclear power plants and would be more
appropriately handled through rulemaking. We add that onsite
storage of spent fuel is one of the issues being considered in the
Commission's post-Fukushima review of lessons learned, as the
Commission itself has noted.
We also reject the argument that NEPA was violated by the
NRC decision to go ahead with relicensing. In addition to denying
the waiver request and sending the spent fuel pool issue to
rulemaking, the NRC also considered whether to delay relicensing,
in light of the information Massachusetts presented. It stated,
referring at least in part to the spent fuel pool issue, that "we
do not have sufficient information at this time to make a
significant difference in the Pilgrim environmental review."
Massachusetts has conceded that "affirmative evidence of a pool
fire has not emerged" from the Fukushima accident. The record also
reasonable.
-22-
supports the NRC's conclusion that there was no apparent
significant damage to the spent fuel at Fukushima.
C. The NRC's Denial of the Commonwealth's Position on Core
Damage Issues
1. The "Direct Experience" Core Damage Frequency Model
The second major portion of Massachusetts's contention is
that the existing SAMA analysis in the EIS underestimated core
damage frequency by an order of magnitude as shown by the Fukushima
event and thus needed to be supplemented. The NRC rejected this
portion of the contention based on its record reopening standards.
It reasoned that under its record reopening standards: (1) the
claim was untimely because it could have been raised from the
outset, 10 C.F.R. § 2.326(a)(1); and (2) the claim did not
demonstrate the existence of a significant environmental issue, id.§ 2.326(a)(2). These decisions, based on the reopening standards,
were reasoned and we have no basis to set them aside.18
18
The NRC acted reasonably in deciding to apply its record
reopening standards, a decision Massachusetts does not challenge.
The ASLB closed the record in June of 2008. See Entergy Nuclear
Generation Co., 68 N.R.C. at 595-96 & n.26. Although the NRC
remanded a portion of another party's contention in 2010, different
from the one at issue here, the record remained closed as to all
other issues. Agencies are permitted to impose requirements or
thresholds for parties seeking to reopen a closed record. See,
e.g., Vt. Yankee, 435 U.S. at 554-55. Further, the NRC's reopening
standards have been upheld by other courts. See N.J. Envtl. Fed'n
v. NRC, 645 F.3d 220, 233 (3d Cir. 2011) ("We have upheld the
motion to reopen standard and deferred to the NRC's application of
its rules, so long as it is reasonable."); Oystershell Alliance v.
NRC, 800 F.2d 1201, 1207 (D.C. Cir. 1986) ("In examining
petitioners' plea to reopen the record, we rely on the same court-
sanctioned test applied by the Commission . . . .").
-23-
It is quite clear there was nothing new about the
purportedly new methodology used to determine the frequency of core
damage events. The methodological issue could have been raised
from the beginning of the relicensing proceeding by Massachusetts,
but was not. 10 C.F.R. § 2.326(a)(1). Massachusetts belatedly
asserts that by taking five historical core damage events (Three
Mile Island, Chernobyl, and three units at Fukushima) and dividing
that number by the number of operating years of all nuclear power
plants worldwide, the frequency of core damage events is
approximately ten times higher than the estimate in the SAMA
analysis. The same methodological argument could have been made
before Fukushima occurred. As the ASLB and the NRC agreed,
applying the purported "direct experience" methodology at the time
the initial opportunity for a hearing was announced, pre-Fukushima,
would have produced a frequency approximately five times greater
than that contained in the SAMA analysis. Although Fukushima
increased the order of magnitude of the frequency of core damage
events if assessed under another underlying methodology -- the
"direct experience" methodology -- the fact that the Fukushima
disaster occurred is beside the point here as it did not change the
fact that the underlying methodological challenge was not new.
Even if it were new, the NRC reasonably concluded this
methodology contention, timely or not, did not raise a significant
environmental issue. 10 C.F.R. § 2.326(a)(2). Indeed, it
-24-
reasonably concluded it was already using a better methodology.
The NRC uses a site-specific and plant-specific PRA methodology,
which answers three questions: (1) what can go wrong; (2) how
likely is it; and (3) what are the consequences.19
The NRC had adequate evidence20 that the "Pilgrim-specific
PRA is expected to yield a much more accurate estimate of risk
(including [core damage frequency]) than a historical rate
calculation using an extremely limited set of data points that
aggregates all different plant designs, operational practices, and
site conditions around the world." Further, Massachusetts also did
not explain how Dr. Thompson's methodology, based on a limited data
set, would be used to develop a new spectrum of core damage
frequencies.
"[A]gencies are entitled to select their own methodology
as long as that methodology is reasonable," and we give deference
19
This requires an evaluation of the combinations of plant
failures that can lead to core damage, and for each core damage
sequence identified, an evaluation of core damage progression and
possible containment failure. R. at 1216. Importantly, the PRA
methodology is both site-specific and plant-specific, and takes
into account hazards, the design of the plant, and plant-specific
operational practices that affect how the plant responds to
potential challenges. R. at 1903. The overall probability that
core damage will occur at the plant is calculated by aggregating
the individual probabilities of various accident scenarios. R. at
1094.
20
By contrast, Dr. Thompson's report admitted his methodology
relied on "a data set that is comparatively sparse and therefore
does not provide a statistical basis for a high-confidence estimate
of [core damage frequency]." He stated that the data set and
method provided at most a "reality check" to the PRA estimates.
-25-
to that decision here. Town of Winthrop, 535 F.3d at 13 (quoting
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 289
(4th Cir. 1999)) (internal quotation mark omitted).
2. The NRC's Denial of the SAMA Specific Issues
Massachusetts's contention also raised more specific
information that it said should be considered or reevaluated in a
SAMA analysis, arguing that the information concerned the cost-
effectiveness of mitigation alternatives. The NRC rejected each
one, offering a reasoned basis under the reopening and/or the
admissibility standards for each, which we do not disturb.
First, Massachusetts asserted that operators at the
nuclear power plant at Fukushima were unable to perform mitigation
actions, which could affect the probability of a radioactive
release and should be considered in a SAMA analysis. Most of this
portion of the contention and expert report focused intently upon
spent fuel storage pools, which, as noted, the Commission had
referred to the rulemaking process.21
To the extent the claim dealt with other operator
mitigation issues, the NRC again required Massachusetts to meet its
record reopening standard. The NRC found that the reopening
standard was not met because Massachusetts had not demonstrated
21
To the extent the claim deals with environmental impacts
from spent fuel pools, it failed to meet the admissibility
standards because it is outside the scope of the proceedings, 10
C.F.R. § 2.309(f)(1)(iii), for the reasons we described earlier.
-26-
sufficiently that a materially different result (in the SAMA
analysis) would have been likely had the information been
considered initially. See 10 C.F.R. § 2.326(a)(3). That
determination is supported by the fact that operator actions not
involving spent fuel pools were considered in Entergy's license
renewal application, a fact which Massachusetts did not even
address in its contention. Further, Massachusetts did not indicate
how those already stated analyses would be affected by the proposed
new information. The NRC was not arbitrary in concluding that the
Commonwealth's mere pointing to a piece of information and
speculating that the results of the SAMA analysis may be different
was not sufficient to meet the requirement of 10 C.F.R.
§ 2.326(a)(3).
Second, Massachusetts argues "the NRC's excessive secrecy
regarding accident mitigation measures and the phenomena associated
with spent-fuel-pool fires degrades the licensee's capability to
mitigate an accident." Dr. Thompson's report explains that secrecy
could result in managers and operators not having a thorough
understanding of the measures they are to implement. The NRC
permissibly decided this portion of the contention failed to
satisfy the general admissibility standards because it fell outside
the scope of the proceeding, id. § 2.309(f)(1)(iii), stating that
the "concerns appear to be directed more generally at policy issues
governing access and categorization of non-public information."
-27-
Third, relying on its earlier assertion that Fukushima
presents new and significant information about the likelihood of
spent fuel pool accidents, Massachusetts's expert asserted that a
new SAMA analysis should consider low-density, open-frame storage
racks. The NRC properly determined this claim failed to satisfy
the general admissibility standards because it fell outside the
scope of the proceeding, id. § 2.309(f)(1)(iii), in light of its
denial of the waiver petition and the referral of the rulemaking
petition to its staff.
Fourth, Massachusetts argues new information about
hydrogen explosions during reactor accidents could alter the SAMA
analysis. Dr. Thompson's report contends that "the potential for
such explosions has not been adequately considered in the Pilgrim
license extension proceeding," and that "containment venting and
other hydrogen control systems at the Pilgrim plant should be
upgraded, and should use passive mechanisms as much as possible."
The NRC rejected this claim on two grounds: (1) under the
record reopening standard, Massachusetts had not shown a likelihood
of a materially different result had the hydrogen control
information been considered initially, id. § 2.326(a)(3); and (2)
whether or not the record was reopened, under the general
admissibility standards, Massachusetts did not raise a genuine
dispute with the existing SAMA analysis, id. § 2.309(f)(1)(vi).
For present purposes, we deal only with the second, more merits-
-28-
based ground for rejection, and find it permissible. In fact,
neither Massachusetts's contention nor Dr. Thompson's reports
addressed the consideration of hydrogen explosions present in the
existing SAMA analysis. The analysis examined "the potential loss
of containment integrity," including as a result of "hydrogen
deflagration or detonation." Massachusetts did not even attempt to
explain how the extant analysis was inadequate or how the new
information would alter it, and failed to raise a genuine dispute.
Finally, Massachusetts raised a claim relating to
filtered venting of reactor containment. Specifically,
Massachusetts stated "it appears likely that filtered venting . . .
could substantially reduce the atmospheric release of radioactive
material from an accident at the Pilgrim [nuclear power plant]."
Its expert therefore recommended that filtered vents should be
considered in a new SAMA analysis.
The claim that the EIS was inadequate for these reasons
was rejected on two grounds: (1) Massachusetts failed to
demonstrate the likelihood of a materially different result under
the reopening standards, 10 C.F.R. § 2.326(a)(3); and (2) in any
event, to the extent that Massachusetts would require filtered
vents, the general admissibility standards were not met because it
was outside the scope of the proceeding, id. § 2.309(f)(1)(iii).
The first ground (record reopening) is supported by the fact that
Massachusetts did not discuss the costs and benefits of adding
-29-
filters, which is fatal to its claim because a SAMA analysis is a
cost-benefit analysis. Further, the SAMA analysis did in fact
consider filtered vents, finding that the cost was three times
greater than the projected benefit. Massachusetts's contention and
supporting materials did not acknowledge or challenge that
analysis. The NRC also permissibly rejected the claim, through its
admissibility standards, as outside the scope of the proceeding,
because the claim was not that the consideration was inadequate,
but that filtered vents were mandated. That is clearly beyond the
scope. See Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 350 (1989) (stating NEPA "does not mandate particular
results").
In sum, the NRC's decision to reject the contention as to
each issue raised was not arbitrary or capricious and constituted
reasoned decisionmaking. See Allentown Mack Sales & Serv., Inc. v.
NLRB, 522 U.S. 359, 374 (1998) (agency adjudications must be
reasoned decisionmaking).
Although whether the NRC complied with NEPA's "hard look"
requirement is a separate and independent question, the process and
reasoning provided by the NRC, discussed above, demonstrates that
the "hard look" requirement was plainly met: information proffered
by Massachusetts was considered before the ASLB and NRC, the agency
obtained opinions from the NRC staff, and from experts outside the
agency, including those of Massachusetts and Entergy. The NRC also
-30-
offered a reasoned explanation. This meets the requirement of
taking a "hard look" at such information. See, e.g., Hughes River,
165 F.3d at 288 (listing obtaining opinions from agency's own
experts, outside experts, giving scientific scrutiny, and offering
responses to legitimate concerns as evidence of a sufficiently
"hard look" (citing Marsh, 490 U.S. at 378-85)).
Massachusetts fleetingly argues that its rights to a
hearing under the AEA were somehow violated. Not so. The hearing
right provided in the AEA "does not confer the automatic right of
intervention upon anyone." Union of Concerned Scientists v. NRC,
920 F.2d 50, 55 (D.C. Cir. 1990) (quoting BPI v. Atomic Energy
Comm'n, 502 F.2d 424, 428 (D.C. Cir. 1974)) (internal quotation
marks omitted). The NRC may certainly impose procedural
requirements for obtaining a hearing where the statute provides no
additional guidance, and because the decision that those standards
were not met was not arbitrary and capricious, as just discussed,
the AEA claim fails. See Am. Trucking Ass'ns, Inc. v. United
States, 627 F.2d 1313, 1321 (D.C. Cir. 1980) (stating that agencies
have wide discretion in establishing and applying rules for
hearings).
IV.
Rather than argue explicitly about the findings of the
NRC, as to whether the portions of the contention met the reopening
and/or the admissibility standards, in rejecting the Commonwealth's
-31-
contention, Massachusetts devotes a substantial portion of its
brief to arguing that the NRC acted arbitrarily and capriciously,
alleging that: (1) the NRC failed to explain why the Task Force
Report did not support Massachusetts's claims; and (2) the NRC's
explanations for denying the contention were somehow inconsistent
with the fact that the Task Force made recommendations, some of
which the NRC adopted, based on the events at Fukushima. We reject
both arguments. There is a disconnect in the Commonwealth's
argument that the NRC ignored its own Task Force's work product,
which it cited and which it is now implementing and reviewing.
As a factual matter, the argument is simply wrong. The
NRC dealt with the Task Force Report as part of its analysis in
rejecting the Commonwealth's contention. First, the NRC
acknowledged that Massachusetts claimed that the ASLB had ignored
the Task Force Report in its decision. Second, the NRC
incorporated the Report into its analysis of each issue where
relevant,22 and found the NRC's reopening and/or admissibility
requirements were still not met.23
22
In reaching its determination that "[a]t bottom,
Massachusetts has not shown that its contention should be litigated
in this proceeding because it has failed to demonstrate a
sufficiently supported link between the Fukushima Dai-ichi events
and the Pilgrim environmental analysis," the NRC cited to Dr.
Thompson's supplemental declaration on the Task Force Report at
least seven times.
23
To the extent Massachusetts's complaint is not the merits
of the rejection, but that the NRC did not explicitly explain why
it issued certain orders based on the Task Force Report while not
-32-
The NRC also stated that its review of the Fukushima
event is ongoing and that all plants will be required to comply
with NRC directions resulting from that review. At the time of its
decision, however, the NRC said the Commonwealth had not presented
sufficient information from the Fukushima incident to make a
significant difference in Pilgrim's environmental review.
The Task Force Report did not make environmental-impact
estimates, assess the implementation costs of its recommendations,
or engage in any PRA, as even Massachusetts's own expert admitted.
It used direct mechanisms under the AEA to address safety and did
not reveal the type of information used in a NEPA analysis.
"The basic thrust of the agency's responsibilities under
NEPA is to predict the environmental effects of a proposed action,"
Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1033 (D.C. Cir.
2008) (emphasis added), and NEPA does not require substantive
outcomes. The Task Force Report is not in conflict with the NRC's
decision not to supplement the EIS in the Pilgrim relicensing.24
updating the environmental analysis, Massachusetts never raised the
issue before the NRC and cannot raise it newly here. Further,
there is no representation from the Commonwealth as to why this
would lead to any different conclusions.
24
Three Commission orders were issued in response to the Task
Force recommendations. Two orders, one on mitigation strategies
for beyond-design-basis external events and one on hardened vents,
were issued as "adequate protection" requirements under the AEA and
were issued without plant-specific PRAs or cost-benefit analyses,
which are normally part of a SAMA analysis. See Entergy Nuclear
Generation Co., CLI-12-15, slip op. at 4-5 & n.11 (June 7, 2012);
see also 10 C.F.R. § 50.109(a)(4)(ii) (no backfit analysis required
-33-
At heart, Massachusetts's argument is simply a variant of
the argument that the NRC should not have reached the licensing
question, but should have deferred until more information could be
collected or obtained to create a more complete picture. The
argument fails.
V.
We are still left with the question of whether the NRC
lawfully acted within its discretion when it denied Massachusetts's
request to suspend license renewal proceedings pending resolution
of the Commonwealth's petition for rulemaking. As to the spent
fuel pool issue, the rulemaking petition asks the NRC to rescind
its regulations that this is a Category 1 issue that need not be
addressed on a site-specific basis in an EIS. 10 C.F.R.
§ 51.71(d). The NRC referred the rulemaking petition to the
Commission's staff, but denied the accompanying suspension request.
The NRC contends that Massachusetts failed to preserve
its challenge to the denial of the suspension request. The
Commonwealth may well have failed to preserve the issue, but we
choose to rely on the alternate merits ground.
for action necessary to ensure adequate protection). The third
order, requiring reliable spent fuel pool instrumentation, was
exempted from a cost-benefit analysis. Nothing in the orders calls
into question the accuracy of the EIS.
-34-
A. The NRC's Application of its Suspension of Relicensing
Test
The NRC did not act arbitrarily or capriciously in its
application of its suspension standard. In Private Fuel Storage,
LLC, 54 N.R.C. 376 (2001), the NRC said that, in deciding whether
to suspend licensing proceedings, it will consider whether moving
forward would (1) "jeopardize the public health and safety," (2)
"prove an obstacle to fair and efficient decisionmaking," or (3)
"prevent appropriate implementation of any pertinent rule or policy
changes that might emerge from [the Commission's] important ongoing
evaluation of []related policies." Id. at 380. Here, the NRC
reasonably weighed each of the Private Fuel Storage factors and
concluded that, on balance, suspension of the Pilgrim plant
proceedings was not warranted. Massachusetts does not challenge
the NRC's determination that the Private Fuel Storage factors favor
the denial of the Commonwealth's suspension request.
The NRC concluded that moving forward with the Pilgrim
license renewal proceedings would not jeopardize the public health
or safety, and the Commonwealth has presented no basis to say this
was not a reasonable conclusion. To be clear, this issue is not
about whether Pilgrim would continue to operate in the interim
under NRC rules. It would. See 10 C.F.R. § 2.109(b).
Further, the AEA explicitly authorizes the NRC to modify
or revoke a license after it is granted if "conditions revealed
by . . . any report, record, or inspection or other
-35-
means . . . would warrant the Commission to refuse to grant a
license on an original application." 42 U.S.C. § 2236(a).25 This
provision "reflects a deliberate policy choice on the part of
Congress . . . to render licenses for nuclear facilities subject
to postlicensing review under evolving licensing standards." Ft.
Pierce Utils. Auth. v. United States, 606 F.2d 986, 996 (D.C. Cir.
1979).
The NRC has represented that it fully intends to
undertake post-licensing review of environmental and safety
conditions at the Pilgrim plant where such review becomes
warranted. The relicensing of Pilgrim does not mean the plant will
not receive the benefit of the lessons learned from Fukushima. The
NRC has stated that "[a]ll affected nuclear plants ultimately will
be required to comply with NRC direction resulting from lessons
learned from the Fukushima accident, regardless of the timing of
issuance of the affected licenses."
Moreover, if it should occur that the NRC adopts more
stringent licensing standards going forward and does not apply
those standards to Pilgrim, then the Commonwealth can request that
the NRC initiate proceedings to determine whether the Pilgrim plant
license would have been granted under the new criteria. See 10
25
See also 42 U.S.C. § 2237 (statutory authority to modify
licenses); 10 C.F.R. §§ 2.202, 2.206 (implementing regulations).
-36-
C.F.R. § 2.206(a).26 And, if that request is denied, Massachusetts
can petition to the court of appeals, see Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 741 (1985), where there is judicial review
to ensure that the Commission has not "default[ed] on its
fundamental responsibility to protect the public safety."
Massachusetts v. NRC, 878 F.2d 1516, 1522 (1st Cir. 1989); see also
Mass. Pub. Interest Research Grp. v. NRC, 852 F.2d 9, 19 (1st Cir.
1988).
B. NEPA Did Not Require Suspension of License Renewal
Massachusetts, nonetheless, makes the novel claim that
under NEPA, the Commission must, as a matter of law, complete its
review of the lessons learned from Fukushima before it renews the
Pilgrim plant license, but does not cite any pertinent authority.
We have already determined that the NRC met its obligation under
NEPA to take a "hard look" at the environmental consequences of the
Pilgrim plant license renewal; the Commission is, of course, free
26
When a person requests that the NRC initiate proceedings to
modify or revoke a license, the director of the relevant NRC office
must determine "[w]ithin a reasonable time" whether the request
will be honored and, if not, must state the reasons for his or her
decision in writing. 10 C.F.R. § 2.206(b). In other words, the
NRC's own regulations state that any challenge to the Pilgrim plant
license based on information gleaned from the rulemaking process
will be considered promptly by the Commission's staff, and the
Commission has provided a procedural mechanism "to allow interested
parties to prevent agency reliance on previous determinations when
new information or other pertinent concerns demand special
consideration." Nuclear Info. Res. Serv. v. NRC, 969 F.2d 1169,
1178 (D.C. Cir. 1992) (en banc).
-37-
to take a harder look at the spent fuel pool issue and other
generic issues through the rulemaking process.
Massachusetts's premise, that the NRC must wait for even
more information to become available before the license can be
renewed, finds no support. Massachusetts relies particularly on
its reading of two Supreme Court decisions: Baltimore Gas &
Electric Co., 462 U.S. 87, and Robertson, 490 U.S. 332. Both are
inapposite.
Baltimore Gas & Electric says nothing about the need to
delay licensing when currently unavailable information might come
to light in the future. Rather, it upheld an NRC rule directing
licensing boards to assume for purposes of NEPA that permanent
storage of certain nuclear waste at plant sites would have no
significant environmental impact and that the risk of leakage need
not be considered in individual licensing proceedings. 462 U.S. at
89-90, 93-95.
Massachusetts cites Robertson for the proposition that an
agency must consider potential environmental impacts before taking
a major federal action to "ensure[] that important effects will not
be overlooked or underestimated only to be discovered after
resources have been committed or the die otherwise cast." 490 U.S.
at 349. But that general language about the purpose of NEPA and
the need to consider environmental impacts imposes no requirement
on the NRC to hold off on taking action where information is either
-38-
unavailable or insufficient to change an existing environmental
analysis.27
To the contrary, in Town of Winthrop, 535 F.3d 1, we
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. Id. at 13. 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.
VI.
The petitions for review are denied.
27
To the extent Massachusetts seeks to impose a substantive
requirement that the NRC must require certain mitigation measures
under NEPA, that is foreclosed by the fact that NEPA is not outcome
driven. Robertson, 490 U.S. at 353 ("[I]t would be inconsistent
with NEPA's reliance on procedural mechanisms -- as opposed to
substantive, result-based standards -- to demand the presence of a
fully developed plan that will mitigate environmental harm before
an agency can act.").
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