ML15119A303

Filed Copy Federal Respondents Brief - NRDC V NRC - DC Cir 14-1225

ML15119A303
Person / Time
Site:	Limerick
Issue date:	04/22/2015
From:	Arbab J, Andrew Averbach, Cruden J, Margaret Doane Exelon Generation Co, Natural Resources Defense Council, NRC/OGC, US Dept of Justice, Environment & Natural Resources Div
To:	US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit
Creedon
References
14-1225, 1548745
Download: ML15119A303 (115)

Text

ORAL ARGUMENT NOT YET SCHEDULED No. 14-1225 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NATURAL RESOURCES DEFENSE COUNCIL, INC.,

Petitioner,

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION and THE UNITED STATES OF AMERICA, Respondents, and EXELON GENERATION COMPANY, LLC, Intervenor.

On Petition for Review of an Order by the United States Nuclear Regulatory Commission BRIEF OF FEDERAL RESPONDENTS JOHN C. CRUDEN Assistant Attorney General JOHN E. ARBAB Attorney Appellate Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7415 Washington, D.C. 20044 (202) 514-4046 John.Arbab@usdoj.gov April 22, 2015 MARGARET M. DOANE General Counsel ANDREW P. AVERBACH Solicitor JAMES E. ADLER Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852-2738 (301) 415-1656 James.Adler@nrc.gov USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 1 of 115

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES In accordance with Circuit Rule 28(a)(1), respondents United States Nuclear Regulatory Commission and the United States of America (respondents) submit this Certificate as to parties, rulings, and related cases.

(A) Parties, Intervenors, and Amici The petitioner is Natural Resources Defense Council, Inc. (NRDC).

The respondents are the United States Nuclear Regulatory Commission (NRC) and the United States of America. Intervenor on behalf of respondents is Exelon Generation Company, LLC. There are no amici.

(B) Rulings Under Review NRDCs petition for review references the following NRC orders:

1. Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377 (2012);

2. Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-07, 78 NRC 199 (2013);

3. Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-14-15 (Oct. 7, 2014); and USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 2 of 115

ii

4. NRCs orders issuing renewed facility operating license numbers NPF-39 and NPF-85 to Exelon Generation Co., LLC for Limerick Generating Station Units 1 and 2.

(C) Related Cases This Courts case no. 13-1311 (NRDC v. NRC) presented the same merits issues as the instant case. The Court dismissed case no. 13-1311 as moot on November 13, 2014, after NRDC filed its petition for review in the instant case.

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iii TABLE OF CONTENTS JURISDICTIONAL STATEMENT.......................................................................... 1 STATEMENT OF THE ISSUES............................................................................... 2 STATEMENT OF THE CASE.................................................................................. 3 I.

Nature of the Case........................................................................................... 3 II. NRCs consideration of severe accident mitigation alternatives in the initial licensing of the Limerick plants............................................................ 4 III. NRC amends its regulations in 1996 to codify its analysis of environmental impacts for license renewal, including treatment of severe accident mitigation alternatives..................................................................................... 7 IV. NRDCs contentions relating to consideration of severe accident mitigation alternatives in the Limerick license renewal proceeding............................. 13 V. Commission review of NRDCs Contention 1-E and subsequent agency proceedings on that contention......................................................... 16 A.

The Commission finds that admission of Contention 1-E is barred by regulation but remands to allow NRDC to petition for a rule waiver............................................................................................... 16 B.

NRCs consideration of NRDCs waiver petition........................ 19

SUMMARY

OF THE ARGUMENT...................................................................... 23 ARGUMENT........................................................................................................... 26 I.

Standard of Review....................................................................................... 26 II. The Commissions decision in CLI-12-19 that litigating NRDC Contention 1-E would require a rule waiver was reasonable given the text and intended effect of 10 C.F.R. § 51.53(c)(3)(ii)(L) and basic tenets of administrative law.......................................................................... 29 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 4 of 115

iv A.

The Commission reasonably determined that NRDCs proposed severe accident mitigation alternatives contention was barred by regulation................................................................................. 30 B.

NRDC does not challenge the Commissions rationale for denying Contention 1-E as barred by regulation but claims an absolute right to a hearing anyway.......................................................... 34

1. Controlling case law confirms that NRCs reliance on a prior rulemaking determination in an individual adjudication does not violate the Atomic Energy Acts hearing provision...................................................................... 34

2. NRDCs remaining arguments against the Commissions CLI-12-19 decision that litigating NRDCs contention would require a rule waiver also lack merit.................................. 46 III. The Commissions denial of NRDCs waiver request in CLI-13-07 was reasonable.............................................................................................. 52 A.

NRC has established standards governing rule-waiver petitions................................................................................................... 52 B.

NRC reasonably construed the waiver factors in denying NRDCs waiver petition.......................................................................... 55 IV. NRCS DENIAL OF NRDCS HEARING REQUEST DOES NOT INDICATE THAT NRCS APPLICATION OF ITS REGULATORY SCHEME TO NRDCS REQUEST WAS UNLAWFUL........................... 61 CONCLUSION..................................................................................................... 63 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 5 of 115

v TABLE OF AUTHORITIES JUDICIAL DECISIONS Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990)............................................ 28, 29 Alaska v. FERC, 980 F.2d 761 (D.C. Cir. 1992).................................................. 1, 2 Ames Const. Inc.. v. FMSHRC, 676 F.3d 1109 (D.C. Cir. 2012)........................... 28 Auer v. Robbins, 519 U.S. 452 (1997).................................................................... 27 Baltimore Gas & Elec. Co. v. NRDC, Inc., 462 U.S. 87 (1983)....................... 28, 39 Beyond Nuclear v. NRC, 704 F.3d 12 (1st Cir. 2013)....................................... 15, 38

• Blue Ridge Envtl. Defense League v. NRC, 716 F.3d 183 (D.C. Cir. 2013)........................................................ 22, 26, 27, 28, 45 Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984)......................................... 27, 28 City of Arlington, Tex. v. FCC, 133 S.Ct. 1863 (2013)........................................... 29 City of Benton v. NRC, 136 F.3d 824 (D.C. Cir. 1998)............................................ 1 Collins v. Natl Transp. Safety Bd., 351 F.3d 1246 (D.C. Cir. 2003)..................... 28 Deukmejian v. NRC, 751 F.2d 1287 (D.C. Cir. 1984)............................................ 28 Duke Power Co. v. NRC, 770 F.2d 386 (4th Cir. 1985)......................................... 27 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)................................... 27 Heckler v. Campbell, 461 U.S. 458 (1983)............................................................. 35

• Authorities upon which we chiefly rely are marked with asterisks.

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vi Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989)............ 5, 58, 59 Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989).......................... 14, 20

• Massachusetts v. NRC, 708 F.3d 63 (1st Cir. 2013)............................................ 26, 27, 28, 35, 43, 44, 45, 54

• Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008)................................... 18, 19, 35, 40, 41, 42, 45, 46, 50 Mobil Oil Expl. & Prod. Se. Inc. v. United Distrib. Cos.,

498 U.S. 211 (1991)........................................................................................... 35, 36 NetCoalition v. SEC, 715 F.3d 342 (D.C. Cir. 2013)....................................... 28, 29 New Jersey Dept of Envtl. Prot. v. NRC, 561 F.3d 132 (3d Cir. 2009).................. 7 New Jersey Envtl. Fed'n v. NRC, 645 F.3d 220 (3d Cir. 2011).............. 3, 26, 27, 28 New York v. NRC, 589 F.3d 551 (2d Cir. 2009)......................................... 28, 50, 51 New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012)................................................... 39 Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251 (D.C. Cir. 2004)...................... 28

• Nuclear Information Resource Service v. NRC, 969 F.2d 1169 (D.C. Cir. 1992)............................................................ 35, 36, 52, 53 Power Reactor Dev. Co. v. Intl Union of Elec., Radio & Mach. Workers, AFL-CIO, 367 U.S. 396 (1961).............................................................................. 27 County of Rockland v. NRC, 709 F.2d 766 (2d Cir. 1983).............................. 26, 27 Tribune Co. v. FCC, 133 F.3d 61 (D.C. Cir. 1998)38 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 7 of 115

vii United States v. Eurodif S.A., 555 U.S. 305, 316 (2009)........................................ 27 Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984)...................................................... 34, 35, 36, 37, 38

• Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990)................................................................ 28, 38, 39, 44 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 8 of 115

viii STATUTES Administrative Procedure Act 5 U.S.C. § 706(2)(A)............................................................................................... 26 Hobbs Act 28 U.S.C. § 2342(4)................................................................................................... 1 28 U.S.C. § 2344........................................................................................................ 1 Atomic Energy Act 42 U.S.C. § 2239(a).................................................................................... 27, 38, 44 National Environmental Policy Act 42 U.S.C. § 4321....................................................................................................... 3 ADMINISTRATIVE AUTHORITIES Regulations 10 C.F.R. § 2.309(a).................................................................................................. 3 10 C.F.R. § 2.309(f)............................................................................................. 3, 39 10 C.F.R. § 2.309(f)(1)........................................................................................... 45 10 C.F.R. § 2.309(f)(2)........................................................................................... 15

• 10 C.F.R. § 2.335................................ 17, 18, 24, 32, 37, 38, 45, 46, 47, 52, 53, 57 10 C.F.R. § 2.335(a)................................................................................................ 17 10 C.F.R. § 2.335(b)......................................................................................... 53, 57 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 9 of 115

ix

• 10 C.F.R. § 2.802............................................................................................ 19, 33 10 C.F.R. § 2.802(d)............................................................................................... 33

• 10 C.F.R. § 51.53(c)(3)(ii)(L)................. 2, 5, 10, 11, 13, 16, 17, 18, 19, 23, 24, 26 30, 31, 32, 36, 38, 46, 48, 49, 50, 55, 59, 60 10 C.F.R. § 51.53(c)(3)(iv)......................................................................... 14, 16, 30 10 C.F.R. § 51.53(c)(3)............................................................................................. 8 10 C.F.R. § 51.95(c).................................................................................................. 8 10 C.F.R. § 51.95(c)(3)............................................................................................ 21 10 C.F.R. Part 51..................................................................................................... 46 10 C.F.R. Part 51, Appendix B to Subpart A............................................................ 7 10 C.F.R. Part 51, Appendix B to Subpart A (Table B-1)....................... 8, 9, 10, 11 10 C.F.R. § 54.17(c)................................................................................................ 55 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 10 of 115

x NRC ADJUDICATORY DECISIONS Commission Decisions Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

CLI-12-19, 76 NRC 386 (2012)....................................... 1, 2, 11, 13, 17, 18, 28, 30,

....................................................................................... 32, 33, 34, 42, 46, 52, 62, 63 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

CLI-13-07, 78 NRC 210 (2013)....................................... 1, 3, 11, 19, 20, 21, 28, 32,

................................................................................. 38, 42, 52, 53, 54, 55, 56, 57, 58 Louisiana Energy Serv., L.P. (Claiborne Enrichment Center),

CLI-98-3, 47 NRC 77 (1988).................................................................................. 15 Atomic Safety and Licensing Board Decisions Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

LBP-12-8, 75 NRC 539 (2012)............................................................... 3, 14, 15, 16 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

LBP-13-1, 77 NRC 57 (2013)................................................................................. 19 Exelon Generation Company, LLC (Limerick Generating Station, Units 1 & 2),

LBP-14-15 (2014)................................................................................................ 1, 15 FEDERAL REGISTER NOTICES Denial of Petitions for Rulemaking, 73 Fed. Reg. 46204 (Aug. 8, 2008)............... 50 Exelon Generation Co, LLC Limerick Generating Station, Units 1 and 2, License Renewal and Record of Decision; Issuance, 79 Fed. Reg. 63,650 (Oct. 24, 2014).................................................... 4, 23 Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996)...............4, 6, 7, 9, 10, 11, 12, 21, 22,

...30, 42, 43, 48 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 11 of 115

xi Final Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 78 Fed. Reg. 37,282 (June 20, 2013)............................ 48 Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing, 76 Fed. Reg. 52,992 (Aug. 24, 2011)................................................. 14 MISCELLANEOUS NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report (May 1996).................................... 7, 8, 10, 30, 37, 60 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 12 of 115

xii GLOSSARY EIS Environmental Impact Statement JA Joint Appendix NEPA National Environmental Policy Act NRC Nuclear Regulatory Commission NRDC Natural Resources Defense Council USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 13 of 115

JURISDICTIONAL STATEMENT Petitioner Natural Resources Defense Council (NRDC) seeks review of Nuclear Regulatory Commission (NRC) orders associated with NRCs issuance of renewed operating licenses for the Limerick nuclear power plant. This Court has jurisdiction under the Hobbs Act to review a challenge to an NRC final order associated with the renewal of a reactor license, so long as the challenge is filed by a party aggrieved within 60 days after the final orders entry.1 Because NRC denied NRDCs request to intervene in the adjudicatory proceeding for this license renewal action, the final order applicable to NRDC is the October 7, 2014, order (LBP-14-15) that denied NRDCs final pending intervention request.2 NRDCs petition was filed within 60 days after NRC entered LBP-14-15. Therefore, this Court has jurisdiction under the Hobbs Act over the petition for review.

NRDCs petition for review also specifically challenges two interlocutory orders (the Commissions CLI-12-19 and CLI-13-07 orders) associated with NRDCs intervention request. In a challenge to a final order under the Hobbs Act, associated interlocutory orders may be reviewed as well.3 Therefore, this Courts 1 28 U.S.C. §§ 2342(4), 2344; 42 U.S.C. § 2239(a).

2 Alaska v. FERC, 980 F.2d 761, 763 (D.C. Cir. 1992).

3 See City of Benton v. NRC, 136 F.3d 824, 826 (D.C. Cir. 1998); Alaska v. FERC, 980 F.2d 761, 765 (D.C. Cir. 1992).

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2 jurisdiction to review final orders includes the authority to review the interlocutory orders cited in NRDCs petition for review.4 Respondents do not dispute NRDCs claim of standing.

STATEMENT OF THE ISSUES

1.

Whether, in CLI-12-19, NRC reasonably and lawfully construed its regulation at 10 C.F.R. § 51.53(c)(3)(ii)(L) to bar NRDCs proposed contention concerning severe accident mitigation alternatives where such an analysis had already been performed for Limerick when the plant was initially licensed, the regulation requires such an analysis at license renewal only if no mitigation alternatives analysis was performed for the plant when it was previously licensed, and NRCs explanations of the regulations effect upon issuing it specifically identified Limerick as a plant for which mitigation alternatives would not need to be reassessed for license renewal.

2.

Whether, in CLI-13-07, NRC reasonably and lawfully denied NRDCs request for a waiver of § 51.53(c)(3)(ii)(L) based on a finding that NRDC 4 NRDCs review petition also lists, among the orders to be reviewed, NRCs October 24, 2014, notice of its October 20, 2014, issuance of Limericks renewed licenses. Because NRDCs attempts to intervene were unsuccessful, NRDC was not a party, for Hobbs Act purposes, to the final Limerick renewal orders. See Alaska, 980 F.2d at 763. Accordingly, NRDCs petition for review does not provide the Court with jurisdiction to review the merits of the October 20, 2014, orders issuing the Limerick renewed licenses. In any event, NRDCs brief does not appear to contemplate a merits review of the October 20 orders themselves.

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3 had not presented issues sufficiently unique to Limerick to merit deviation from the well-settled administrative law principle that generic determinations embodied in agency regulations should be reassessed through rulemaking, not through collateral attacks brought in individual adjudications.

STATEMENT OF THE CASE I.

Nature of the Case On June 22, 2011, Exelon Generation Company, LLC (Exelon) filed an application with NRC to renew the initial 40-year operating licenses for Limerick Generating Station, Units 1 and 2 (Limerick) for an additional 20 years from their current expiration dates of October 26, 2024, and June 22, 2029, respectively.5 NRDC sought to intervene in the NRC proceedings to litigate various contentions.6 In its contentions, NRDC asserted, among other things, that the environmental analysis associated with the application failed to comply with the National Environmental Policy Act (NEPA).7 NRC denied NRDCs 5 See Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

LBP-12-8, 75 NRC 539, 544 (2012) (JA101-02).

6 Contentions, in NRC adjudicatory practice, are claims seeking relief of some form. Any interested person may participate in an NRC adjudicatory proceeding upon a showing of standing and submission of at least one contention that meets admissibility requirements. See 10 C.F.R. § 2.309(a), (f); New Jersey Envtl. Fedn

v. NRC, 645 F.3d 220, 228-29 (3d Cir. 2011).

7 42 U.S.C. § 4321 et seq.

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4 intervention request. NRC subsequently issued renewed licenses for Limerick on October 20, 2014.8 In this Petition for Review, NRDC challenges NRCs denial of NRDCs intervention request with respect to one of NRDCs environmental contentions.9 II.

NRCs consideration of severe accident mitigation alternatives in the initial licensing of the Limerick plants.

At issue in this case is how NRC considers severe accident mitigation alternatives for purposes of its NEPA review in certain license renewal proceedings.

A severe accident mitigation alternatives analysis is a cost-benefit analysis that addresses whether the expense of implementing a mitigation measure not mandated by NRC is outweighed by the expected reduction in environmental cost it would provide in a core damage event.10 As discussed below, NRC has adopted a rule (10 8 See Exelon Generation Company, LLC; Limerick Generating Station, Units 1 and 2, License Renewal and Record of Decision; Issuance, 79 Fed. Reg. 63,650 (Oct.

24, 2014) (JA403).

9 NRDC previously filed another petition for review in this Court regarding this same matter. After NRDC filed its petition in the instant case, the Court dismissed NRDCs first petition as moot. See November 13, 2014, per curiam order dismissing Case No. 13-1311.

10 Massachusetts v. NRC, 708 F.3d 63, 68 (1st Cir. 2013); see also Generic EIS, Supplement 49, Final Report at 5-3 (Limerick 2014 Supplemental EIS) (JA677);

Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,481 (June 5, 1996) (1996 Rulemaking)

(JA603). In some of the cited materials, severe accident mitigation alternatives are referred to as SAMAs or, alternately, when referencing a certain subset of these

(... continued)

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5 C.F.R. § 51.53(c)(3)(ii)(L)) governing the consideration of severe accident mitigation alternatives in connection with license renewal applications. The rule provides that additional mitigation alternatives analysis is not required at license renewal for plants for which such an analysis had been performed in connection with prior licensing actions, thus resolving that question generically rather than relying on site-by-site analysis and litigation.

In 1989, in reviewing NRCs grant of an initial operating license for Limerick Unit 1, the United States Court of Appeals for the Third Circuit ruled that NRCs generic Policy Statement on severe accidents did not satisfy NRCs duty under NEPA to give severe accident mitigation alternatives a hard look.

Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 741 (3d Cir. 1989). NRC subsequently issued a Final Environmental Impact Statement (EIS) for Limerick Units 1 and 2 that examined mitigation alternatives from two general sources: (1) those alternatives previously evaluated as part of NRCs Containment Improvement Program to determine potential failure modes and related plant improvements as well as the cost-effectiveness of those improvements; and (2) alternatives related to plant design, SAMDAs (severe accident mitigation design alternatives).

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6 potential improvements identified through licensee risk analyses for individual plant vulnerabilities to severe accidents.11 The same underlying risk assessments have since been performed for all operating plants in the United States, and many have completed mitigation alternatives analyses in connection with NEPA reviews, either at the initial licensing or license renewal phase. These assessments included individual plant examinations to identify plant vulnerabilities to internally initiated events and

... externally initiated events and consider potential improvements to reduce the frequency or consequences of severe accidents on a plant-specific basis.12 For Limerick and certain other plants, NRC performed the severe accident mitigation analysis contemplated by Limerick Ecology when the plants were licensed initially. These analyses determined that no physical modifications to the plants would be cost-beneficial. As the Commission subsequently explained:

[A]n NRC staff consideration of [severe accident mitigation design alternatives] was specifically included in the Final Environmental Impact Statement for the Limerick 1 and 2 and Comanche Peak 1 and 2 operating license reviews, and in the Watts Bar Supplemental Final Environmental Statement for an operating license. The alternatives evaluated in these analyses included the items previously evaluated as part of the [Containment Improvement] Program, as well as improvements identified through other risk studies and analyses. No 11 See 1996 Rulemaking, 61 Fed. Reg. at 28,480-81 (JA602-03).

12 Id. at 28,480 (JA602).

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7 physical plant modifications were found to be cost-beneficial in any of these severe accident mitigation considerations. Only plant procedural changes were identified as being cost-beneficial.13 III.

NRC amends its regulations in 1996 to codify its analysis of environ-mental impacts for license renewal, including treatment of severe accident mitigation alternatives.

In 1996, NRC amended its NEPA-implementing regulations governing operating license renewal.14 Under the new approach, some environmental impacts of license renewal were placed in Category 1, meaning that all aspects of the impact had been analyzed generically, while other impacts were found not to meet all the criteria necessary for full generic treatment, resulting in their assignment to Category 2.15 This categorical treatment was codified at 10 C.F.R. Part 51, Appendix B to Subpart A, which adopts NRCs Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437 (May 1996)

(Generic EIS).16 The adoption of this framework directly affects the manner in which information concerning the environmental impacts of license renewal is obtained 13 Id. at 28,481 (emphasis added) (JA603).

14 Id. at 28,467 (JA589).

15 Of the 92 impact issues in the rule, 68 issues could be adequately addressed in full generically, thus not requiring any plant-specific review. Id. at 28,468 (JA590).

16 See generally Massachusetts v. NRC, 708 F.3d 63, 67-68 (1st Cir. 2013); New Jersey Dept of Envtl. Prot. v. NRC, 561 F.3d 132, 134-35 (3d Cir. 2009).

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8 and considered. By regulation, each applicant for license renewal must submit an Environmental Report to assist NRC Staff in preparing a plant-specific supplemental EIS for license renewal. In essence, this plant-specific supplemental EIS, combined with the Generic EIS adopted by the 1996 Rulemaking, forms the full EIS for a particular plants license renewal proceeding. Because the Generic EIS already addresses Category 1 issues in their entirety, license renewal applicants need not analyze Category 1 issues in their Environmental Reports.

Instead, NRC Staff may incorporate generic Category 1 findings into the supplemental EIS for each plant seeking license renewal.17 Assignment to Category 2, though requiring at least some additional analysis of the impact in site-specific supplemental EISs, does not necessarily require that all issues associated with that impact must be so assessed. Rather, it means only that one or more of the criteria of Category 1 cannot be met, and [that] therefore additional plant-specific review is required.18 This can mean different things for different impacts.

With respect to severe accident impacts, NRC determined in the 1996 Rulemaking that the software programs it used to evaluate severe accident risk had 17 See 10 C.F.R. §§ 51.53(c)(3), 51.95(c).

18 10 C.F.R. Part 51, App. B, Subpart A, Table B-1 n.2 (Table B-1) (defining Categories 1 and 2) (JA618).

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9 produced predictions of risk that are adequate to illustrate the general magnitude and types of risks that may occur from reactor accidents.19 Based on this analysis, NRC generically determined, in the rule, that [t]he probability-weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small for all plants, with the term small indicating impacts that are, essentially, not significant.20 Despite the small impact determination, NRC did not categorize severe accidents as a Category 1 impact. Because NRC concluded that it could not conduct a sufficient generic mitigation alternatives analysis for severe accidents that would cover all plants, severe accidents earned a Category 2 designation.21 The net result of this mix of generic and site-specific analysis is that, generally speaking, NRC analyzes mitigation alternatives for severe accidents in 19 1996 Rulemaking, 61 Fed. Reg. at 28,480 (JA602).

20 See Table B-1 (Postulated Accidents/Severe Accidents) (JA616). The term small describes impacts for which the environmental effects are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource. For the purposes of assessing radiological impacts, the Commission has concluded that those impacts that do not exceed permissible levels in the Commission's regulations are considered small. Id. n.3.

21 1996 Rulemaking, 61 Fed. Reg. at 28,481 (JA603); see also Table B-1 n.2 (JA618) (listing NRCs criteria for placement in Category 1, which include requirement that mitigation measures for the impact have already been sufficiently analyzed).

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10 site-specific license renewal supplemental EISs, while relying on the Generic EIS for the remaining aspects of the severe accident NEPA analysis. The rules adopted in 1996 did, however, include an explicit caveat to the requirement to conduct site-specific assessments of severe accident mitigation alternatives. Specifically, the requirement applies only to those plants that have not considered such alternatives.22 Accordingly, a new regulation adopted as part of the 1996 Rulemaking10 C.F.R. § 51.53(c)(3)(ii)(L)specified, in defining the required contents of renewal applicant environmental reports, that:

If the staff has not previously considered severe accident mitigation alternatives for the applicants 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.23 The 1996 Rulemaking also added to NRCs NEPA regulations a table (Table B-1) summarizing NRCs Generic EIS conclusions for each impact considered in the generic analysis (whether ultimately placed in Category 1 or Category 2). Consistent with § 51.53(c)(3)(ii)(L), Table B-1 specified that 22 61 Fed. Reg. at 28,481, 28,494 (JA603, JA616).

23 10 C.F.R. § 51.53(c)(3)(ii)(L) (emphasis added).

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11 alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives.24 Thus, for plants like Limerick, for which a site-specific analysis of severe accident mitigation alternatives has already been conducted, section 51.53(c)(3)(ii)(L) constitutes a generic determination, made via rulemaking after notice and comment, that reliance on the already completed site-specific analysis is sufficient to address this particular aspect of the overall license renewal NEPA review.25 Taking a renewed look at the issue is not required.

The Commission explained in the 1996 Rulemaking why it drew the line at one analysis of severe accident mitigation alternatives per plant. Considering the relevant factors, the Commission expected that a single analysis would uncover most cost-beneficial measures to mitigate both the risk and the effects of severe accidents.26 This conclusion was based not merely on the expected results of the NEPA mitigation alternatives analyses themselves, but also on various other efforts 24 Table B-1 (Postulated Accidents/Severe Accidents) (emphasis added) (JA616).

25 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2) CLI-12-19, 76 NRC at 386 (2012) (JA224).

26 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2) CLI-13-07, 78 NRC 199, 210 (2012) (citing 1996 Rulemaking, 61 Fed. Reg. at 28,481 (JA603)) (JA386).

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12 being undertaken outside the NEPA context to address severe accident risks.27 As the Commission explained, these analyses essentially constitute[d] a broad search for severe accident mitigation alternatives and were already leading to a number of plant procedural or programmatic improvements and some plant modifications that will further reduce the risk of severe accidents.28 In other words, a plants actual adoption of particular mitigation measures prior to seeking license renewal means that such measures would no longer be mitigation alternatives (i.e., they would now simply be aspects of the proposed license renewal action, just like any other existing aspect of the plant and its operations). And the reductions in severe accident risk resulting from adopting mitigation measures would tend to diminish the benefits to be derived from any mitigation measures that remain unadopted. The Commission thus forecasted that a second analysis of mitigation alternatives would provide too little value to the environmental analysis, over and above what the first analysis was expected to provide, to be necessary.

Consequently, for a plant such as Limerick for which a mitigation alternatives analysis was previously conducted, NRC regulations allow continued 27 61 Fed. Reg. at 28481 (JA603) 28 Id.

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13 reliance on the previous analysis. With respect to such plants, the one barrier to treatment of severe accidents as a Category 1 impactthe need for further analysis of severe accident mitigation measuresis effectively removed. It was for this reason that, in the proceedings below, the Commission described

§ 51.53(c)(3)(ii)(L) as representing the functional equivalent of a Category 1 designation for severe accident impacts at plants such as Limerick.29 The only difference between this functional equivalent designation and a typical one is that the prior EIS analysis being relied upon in the functional equivalent scenario is a prior site-specific analysis, not a prior generic analysis. But in both instances, what directs that further site-specific analysis is not necessary are NRCs NEPA-implementing regulations.

IV.

NRDCs contentions relating to consideration of severe accident mitigation alternatives in the Limerick license renewal proceeding.

Given the carve-out from the general rule for plants that previously conducted such an analysis, Exelons Environmental Report supporting its Limerick license renewal application did not contain a new analysis of mitigation alternatives under NEPA and instead noted that such an analysis had been completed for the initial operating licenses. To support this approach in its Environmental Report, Exelon cited § 51.53(c)(3)(ii)(L), as well as the 1996 29 CLI-12-19, 76 NRC at 386 (JA225).

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14 Rulemakings specific mention of Limerick as a plant that, per that rule, could rely at license renewal on its prior analysis of mitigation alternatives.30 However, to comply with its obligation to consider new and significant information regarding the environmental impacts of license renewal of which the applicant is aware,31 Exelons Environmental Report also included a detailed consideration of whether Exelon had discovered new information that would change the generic conclusion codified by the NRC that [Limerick] need not reassess severe accident mitigation alternatives for license renewal.32 Based on its assessment, Exelon determined that it had discovered no such information.33 Following Exelons submission of its license renewal application, and in response to a notice of opportunity to request a hearing,34 NRDC filed a Petition to Intervene in the Limerick license renewal proceeding.35 NRDC proposed four 30 Environmental Report at 4-49 (JA628).

31 10 C.F.R. § 51.53(c)(3)(iv); see also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 373-74 (1989).

32 Environmental Report at 5-4 to 5-9 (JA632-37).

33 Id. at 5-9 (JA637).

34 See Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing, 76 Fed. Reg. 52,992 (Aug. 24, 2011) (JA664).

35 NRDC Petition to Intervene (Nov. 22, 2011) (JA22).

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15 NEPA-related contentions for resolution via hearing.36 Three contentions challenged the Exelon Environmental Reports treatment of severe accident mitigation alternatives, and one challenged its consideration of the no-action alternative to the proposed action.37 NRC Staff and Exelon opposed these contentions as not meeting NRCs requirements for contention admissibility.38 The presiding Atomic Safety and Licensing Board (Board) granted NRDCs request for a hearing and petition to intervene.39 On various grounds, the Board denied admission of two of NRDCs mitigation alternatives contentions (Contentions 2-E and 3-E) and its no-action alternative contention.40 However, the Board admitted portions of NRDCs Contention 1-E, in which it contended that 36 See Limerick, LBP-12-8, 75 NRC 539, 545 (2012) (JA103-04). Environmental contentions are submitted based on an applicants Environmental Report. 10 C.F.R. § 2.309(f)(2); see Beyond Nuclear v. NRC, 704 F.3d 12, 15 (1st Cir. 2013).

Those contentions migrate to the EIS prepared by the NRC. See Louisiana Energy Serv., L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 84 (1988) (contentions based on Environmental Report deemed challenges to the EIS). Later in the proceeding, NRDC moved to file an additional contention. The Board denied NRDCs motion in LBP-14-15, which terminated NRDCs effort to intervene. See LBP-14-15 (JA397-402).

37 LBP-12-8, 75 NRC at 545 (JA103-04).

38 Id. at 546 (JA104).

39 Id. at 544 (JA102).

40 Id. at 562-70 (JA127-39).

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16 Exelon had ignored new and significant information relating to its analysis of mitigation alternatives:

Applicants Environmental Report (§ 5.3) erroneously concludes that new information related to its severe accident mitigation design alternatives (SAMDA) analysis is not significant, in violation of 10 C.F.R.

§ 51.53(c)(3)(iv), and thus the [Environmental Report] fails to present a legally sufficient analysis in that:

1. Exelon has omitted from its [Environmental Report] a required analysis of new and significant information regarding potential new severe accident mitigation alternatives previously considered for other [Boiling Water Reactor] Mark II Containment reactors.

2. Exelons reliance on data from [Three Mile Island] in its analysis of the significance of new information regarding economic cost risk constitutes an inadequate analysis of new and significant information.41 V.

Commission review of NRDCs Contention 1-E and subsequent agency proceedings on that contention.

A.

The Commission finds that admission of Contention 1-E is barred by regulation but remands to allow NRDC to petition for a rule waiver.

NRC Staff and Exelon appealed the Boards admission of Contention 1-E to the Commission, asserting that the contention impermissibly challenged the exemption in 10 C.F.R. § 51.53(c)(3)(ii)(L) for plants like Limerick from the requirement to consider mitigation alternatives at licensing renewal. In its 2012 decision, CLI-12-19, the Commission agreed, concluding the rule did not require 41 Id. at 561-62, 570-71 (JA127, 140).

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17 Exelon to include in its license renewal Environmental Report consideration of site-specific mitigation alternatives because NRC had previously considered them before issuing the Limerick operating licenses for an initial 40-year term.42 The Commission held that the issue has been resolved by rule.43 Among other things, the Commission observed that Limerick is specifically named in the Statement of Considerations [of the 1996 rulemaking that established

§ 51.53(c)(3)(ii)(L)] as a plant for which [severe accident mitigation alternatives]

need not be reconsidered... for license renewal.44 Noting the resolution of this particular question by rule, the Commission reasoned that the admitted contention, reduced to its simplest terms, amount[ed] to a challenge to 10 C.F.R.

§ 51.53(c)(3)(ii)(L).45 In general, NRC regulations may not be challenged in NRC adjudicatory hearings.46 The Commission recognized in CLI-12-19, however, that, despite generally precluding adjudicatory challenges to issues decided in rulemaking, 10 C.F.R. § 2.335 does permit a party to petition for waiver of a Commission 42 CLI-12-19, 76 NRC at 386 (JA224-25).

43 Id.

44 Id. at 386 & n.53 (JA225).

45 Id. at 386 (JA224).

46 10 C.F.R. § 2.335(a); see also CLI-12-19, 76 NRC at 380 (JA215).

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18 regulation. Thus, the Commission explained that a proper procedural avenue for NRDC to raise its concerns is to seek a waiver of the relevant provision in section 51.53(c)(3)(ii)(L).47 The Commission also explained that this approach was consistent with its own prior precedent in other license renewal adjudications.48 Accordingly, the Commission found that, in the absence of a waiver, the Board erred in admitting NRDCs Contention 1-E for hearing, and the Commission reversed the Boards decision granting NRDCs intervention petition.49 Because NRDC had proceeded up to that point as if waiving

§ 51.53(c)(3)(ii)(L) were unnecessary, the Commission remanded to the Board to afford NRDC an opportunity to file a petition under 10 C.F.R. § 2.335 to demonstrate that its contention satisfied the applicable waiver criteria.50 The Commission decision also pointed NRDC to the lead NRC case regarding the Commissions four-factor test for analyzing rule-waiver petitions.51 47 CLI-12-19, 76 NRC at 380 (JA215-16).

48 See id. at 383-386 (JA221-24) (discussing a Commission decision associated with the Vermont Yankee and Pilgrim nuclear plant license renewal adjudications, which, as discussed infra at pp. 40-42, was subsequently upheld on judicial review in Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008)).

49 Id. at 388-89 (JA229).

50 Id. at 389 (JA229).

51 Id. at 387 n.55 (JA226).

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19 In addition to providing NRDC with the opportunity to seek a waiver of

§ 51.53(c)(3)(ii)(L), the Commission provided NRDC with a different means of requesting Commission reconsideration of the generic determination that only one severe accident mitigation alternatives analysis is required per plant:

Alternatively, the Commission stated, NRDC may seek rulemaking to rescind the exception in section 51.53(c)(3)(ii)(L), in accordance with NRCs rulemaking petition regulation at 10 C.F.R. § 2.802.52 B.

NRCs consideration of NRDCs waiver petition.

In response to the Commissions decision, NRDC did not file a rulemaking petition, but it did petition to waive the rule. The Board rejected this petition, concluding that § 51.53(c)(3)(ii)(L) could not be waived and referring its ruling to the Commission.53 In its 2013 decision, CLI-13-07, the Commission affirmed the Boards denial of NRDCs waiver petition on different grounds, ruling that the rule was conceivably waivable but that NRDC had not met NRCs waiver standard.54 52 Id. at 387 (JA226). The Commission further noted that NRDC could also participate outside of the adjudication by submitting comments on the Staffs draft Supplemental EIS. Id.

53 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-13-1, 77 NRC 57 (2013) (JA300).

54 CLI-13-07, 78 NRC at 206 (JA380).

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20 In particular, the Commission found NRDCs waiver petition insufficient because NRDC did not demonstrate that its claims were unique to Limerick.

Rather, the Commission concluded, NRDCs waiver petition amount[ed] to a general claim that could apply to any license renewal applicant for whom [severe accident mitigation alternatives] already were considered.55 The waiver sought by NRDC would swallow the rule, the Commission reasoned, because NRDC offer[ed] little to show how the information it provide[d] set[] Limerick apart from other plants undergoing license renewal.56 Specifically, the Commission explained that NRDCs particular assertionsincluding assertions that new potential mitigation alternatives had emerged since 1989, that a newer analytical methodology had become available since 1989, and that using newer economic cost data could yield different cost-benefit resultsdid not appear to show that Limerick was a unique case requiring special treatment.57 Despite reaching this conclusion, the Commission also acknowledged the obligation under NEPA to take a hard look at potentially new and significant 55 Id. at 214 (JA391).

56 Id. at 215 (JA393).

57 Id. at 215-16 (JA393-94). Having found that NRDCs petition failed to satisfy the uniqueness requirement, the Commission did not need to, and did not, assess whether NRDCs waiver petition satisfied the other three necessary prongs of the Commissions waiver standard. Id. at 214 n.79 (JA391); see also infra p. 53 (listing the four requirements).

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21 information regarding already-completed environmental-impact analyses.58 Accordingly, the Commission directed its staff to review the significance of any new [severe accident mitigation alternative]-related information in its environmental review of Exelons license renewal application, including the information presented in NRDCs waiver petition, and to discuss its review in the final supplemental EIS.59 The Commission did not, however, direct the staff to reach any particular conclusion regarding the significance (or lack thereof) of NRDCs information.60 In issuing these instructions, the Commission referenced the page in the Federal Register notice for the 1996 Rulemaking that explained how NRC would handle challenges to generic NEPA determinations received via public comments on site-specific supplemental EISs.61 As that rulemaking explained, the appropriate path forward, in the event NRC Staff agrees with the commenter that the new information is significant enough to require an updated NEPA analysis, would depend on whether the information is also relevant to other plants (i.e.,

generic information) or instead is relevant only with respect to the particular 58 See Marsh, 490 U.S. 360 (1989); 10 C.F.R. § 51.95(c)(3).

59 CLI-13-07, 78 NRC at 217 (JA396).

60 See id. at 216-17 (JA395-96).

61 Id. at 216 n.96 (JA395) (referencing 61 Fed. Reg. at 28,470 (JA592)).

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22 plant.62 In the former situation, the staff would pursue a rulemaking, accompanied by any necessary steps to coordinate with individual renewal proceedings (i.e., delaying decisions in pending proceedings pending the rulemakings completion, or suspending the existing rule across the board to allow for site-by-site analysis in supplemental EISs), while in the latter the staff could address the plant-specific information in a site-specific supplemental EIS exclusively.63 NRC published a final supplemental EIS for Limerick in August 2014.64 As explained in detail in that document, NRCs staff reviewed the information NRDC submitted in conjunction with its waiver request and assessed whether [the] new information provided a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.65 In finding the answer to this question to be no, the staff relied upon, among other things: the various additional severe accident mitigation measures implemented at Limerick in the years since 1989 that reduce the risks that would 62 61 Fed. Reg. at 28,470 (JA592).

63 Id.

64 Limerick 2014 Supplemental EIS (JA667).

65 Id. at 5-25 (JA699); see also Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183, 196 (D.C. Cir. 2013).

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23 potentially be mitigated by additional measures;66 NRCs post-1989 experience conducting over 75 severe accident mitigation alternatives analyses for other plants license renewal proceedings;67 and more recent analyses of severe accident risks at Limerick that found severe accident risk to be an order of magnitude lower than the risk value assigned to Limerick in 1989.68 In sum, the staff concluded in the Limerick 2014 Supplemental EIS that if the 1989 analysis were updated with new information, the likelihood of finding cost-effective plant improvements that substantially reduce risk [would be] small.69 NRC issued renewed licenses for Limerick on October 20, 2014.70

SUMMARY

OF THE ARGUMENT The Court should affirm the Commission decisions at issue in this case as a reasonable exercise of NRC discretion in deciding the admissibility of proposed contentions in its adjudicatory hearings. NRC reasonably interpreted the rule at 10 C.F.R. § 51.53(c)(3)(ii)(L) as having the effect the Commission said it would have 66 Limerick 2014 Supplemental EIS at 5-4 to 5-9 (JA678-83).

67 Id. at 5-20 to 5-22 (JA694-96).

68 Id. at 5-5, 5-11 (JA679, 685).

69 Id. at 5-25 (JA699). NRDC has not challenged the Limerick 2014 Supplemental EIS here.

70 See Limerick Generating Station, Units 1 and 2, License Renewal and Record of Decision; Issuance, 79 Fed. Reg. 63,650 (Oct. 24, 2014) (JA403).

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24 when it issued the rule: that severe accident mitigation alternatives need not be reconsidered in the NEPA analysis for Limerick (and other similarly situated plants) at license renewal. Therefore, the Commission was also reasonable in concluding that NRDCs contention, which asserted that severe accident mitigation alternatives did need to be reconsidered for Limerick at license renewal, constituted an attack on § 51.53(c)(3)(ii)(L).

As this Court has recognized, it is hornbook administrative law that collateral attacks on agency regulations are impermissible in agency adjudications.

Accordingly, NRC regulations at 10 C.F.R. § 2.335 permit such challenges in adjudications only where the challenger demonstrates that special circumstances truly unique to the particular adjudication warrant waiving the rules applicability to that adjudication. Further, long-established precedent of this Court and the Supreme Court makes clear that a statutory hearing requirement, including that contained in the Atomic Energy Act, does not preclude an agency from relying on generic determinations embodied in regulations when deciding individual adjudications. Thus, NRC need not, and generally should not, field adjudicatory challenges on issues that NRCs regulations have, ostensibly, already settled.

Rather, the standard way to challenge such generic determinations, and to obtain eventual judicial review on the merits if desired, is to file a petition for rulemaking.

In this case, NRDC simply chose not to file one.

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25 To the extent NRDCs brief suggests that NRC must set these basic administrative law principles aside in order to comply with NEPA, case law from this Court and others confirms that NRDCs view is incorrect. As courts have made clear, NRC may permissibly rely on its hearing procedures and standards including the requirement that an intervenor obtain a rule waiver before challenging an NRC regulation in an individual adjudicationwhen considering contentions alleging that new and significant information requires NRC to revisit an already-completed NEPA analysis.

Nor is there merit to NRDCs suggestions that NRCs approach precludes the agency from considering new and significant environmental-impact information, as required by NEPA. NRDC may have been unsuccessful in its attempt to obtain a site-specific adjudicatory hearing, but, as noted above, it has remained free all along to file a rulemaking petition, which could have relied on the same information NRDC presented to support its contention and rule-waiver petition. Further, the less formal avenue of filing comments on the site-specific Limerick 2014 Supplemental EIS, a process that allows any new information that proves significant to be routed to, and addressed in, the appropriate forum (whether it be a generic rulemaking or the site-specific EIS), was also available. Indeed, the Commission, on its own initiative, channeled NRDCs alleged new and significant information into that very process, to ensure no new and significant information USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 38 of 115

26 would be missed prior to a final Limerick renewal decision. In the end, the Limerick 2014 Supplemental EIS concluded that NRDCs information was not significant, but the information was considered in NRCs NEPA process.

NRC also acted reasonably and lawfully in deciding to deny NRDCs waiver petition. The waiver criterion on which the Commission based its decision (the uniqueness to Limerick of NRDCs concerns about § 51.53(c)(3)(ii)(L)) is a court-endorsed criterion, and the Commission provided a sound explanation for why NRDCs waiver petition failed to meet it. Quite reasonably, the Commission did not view NRDCs informationnamely, developments since Limericks 1989 analysis that seem inevitable given the decades-long time span inherent in the challenged rules operationas demonstrating special circumstances that set Limerick apart from other plants.

ARGUMENT I.

Standard of Review This Court's review is pursuant to the Administrative Procedure Act, under which agency orders may not be set aside unless found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.71 This is a 71 5 U.S.C. § 706(2)(A); Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183, 195 (D.C. Cir. 2013); Massachusetts v. NRC, 708 F.3d 63, 73 (1st Cir. 2013); New

(... continued)

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27 narrow standard of review, and, given agency expertise, a reviewing court may not substitute its judgment for that of the agency.72 Rather, the Court owes deference to NRCs decision on how best to comply with NEPA unless it finds a clear error of judgment.73 Congress has entrusted NRC with discretion to administer hearings, and the agencys reading of its own statute should be upheld if reasonable.74 An agencys interpretation of its regulations warrants substantial deference unless plainly erroneous or inconsistent with the regulation.75 Similarly, respecting issues related to the Atomic Energy Acts hearing provision in section 189 a., 42 U.S.C. § 2239(a), NRCs interpretation is entitled to Jersey Envtl. Fedn, 645 F.3d at 228, 233; County of Rockland v. NRC, 709 F.2d 766, 776 (2d Cir. 1983).

72 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009); Duke Power Co.

v. NRC, 770 F.2d 386, 389-90 (4th Cir. 1985).

73 Blue Ridge, 716 F.3d at 195.

74 United States v. Eurodif S.A., 555 U.S. 305, 316 (2009); Chevron U.S.A. Inc. v.

NRDC, 467 U.S. 837, 842-43 (1984); Power Reactor Dev. Co. v. Intl Union of Elec., Radio & Mach. Workers, AFL-CIO, 367 U.S. 396, 408 (1961).

75 Auer v. Robbins, 519 U.S. 452, 461 (1997); Blue Ridge, 716 F.3d at 195 (given controlling weight); Massachusetts v. NRC, 708 F.3d at 73.

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28 judicial deference unless it is precluded by the statutory text or is otherwise unreasonable.76 Formal agency decisions such as CLI-12-19 and CLI-13-07, issued in adjudications after full briefing, are entitled to substantial deference.77 Indeed, heightened deference is owed here, given NRCs expertise both in [nuclear]

safety and in deciding the most efficient way to administer its licensing...

procedures.78 When reviewing NRC technical judgment, a reviewing court must generally be at its most deferential.79 In NRC cases, courts are particularly reluctant to second-guess agency choices involving scientific disputes that are in the agencys province of expertise.80 Contrary to NRDCs assertions (NRDC Br. at 25-26), neither Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990), nor NetCoalition v. SEC, 715 F.3d 342 (D.C.

76 See Ames Constr. Co. v. FMSHRC, 676 F.3d 1109, 1112 (D.C. Cir. 2012) (citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. at 843).

77 See Blue Ridge, 716 F.3d at 195; Deukmejian v. NRC, 751 F.2d 1287, 1294 (D.C. Cir. 1984).

78 Collins v. Natl Transp. Safety Bd., 351 F.3d 1246, 1253 (D.C. Cir. 2003); Union of Concerned Scientists v. NRC, 920 F.2d 50, 54-55 (D.C. Cir. 1990).

79 Baltimore Gas & Elec. Co. v. NRDC, Inc., 462 U.S. 87, 103 (1983); Blue Ridge, 716 F.3d at 195; Massachusetts v. NRC, 708 F.3d at 73 (judicial deference is particularly marked for NRC actions); see also Nuclear Energy Inst., Inc. v.

EPA, 373 F.3d 1251, 1276 (D.C. Cir. 2004).

80 New Jersey Envtl. Fedn, 645 F.3d at 230 (quoting New York v. NRC, 589 F.3d 551, 555 (2d Cir. 2009)).

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29 Cir. 2013), supports the proposition that deference is not warranted here. In Adams Fruit, the Supreme Court held that Chevron deference was not warranted with respect to an issue that implicated federal court jurisdiction where the courts, and not an agency, were responsible for administering the private right of action at issue.81 In NetCoalition, this Court held that deference was not warranted with respect to an agencys interpretation of a provision expressly governing what types of agency action were reviewable under the Administrative Procedure Act.82 Neither case supports the proposition advanced by NRDC that an agencys determination of whether a party is entitled to a hearing under its own regulations is not entitled to judicial deference.83 II.

The Commissions decision in CLI-12-19 that litigating NRDC Contention 1-E would require a rule waiver was reasonable given the text and intended effect of 10 C.F.R. § 51.53(c)(3)(ii)(L) and basic tenets of administrative law.

81 494 U.S. at 649-50; see also City of Arlington v. FCC, 133 S.Ct. 1863, 1871 n.3 (2013) (Adams Fruit stands for the modest proposition that the Judiciary, not any executive agency, determines the scopeincluding the available remediesof judicial power vested by statutes establishing private rights of action).

82 NetCoalition v. SEC., 715 F.3d at 348-49 (D.C. Cir. 2013).

83 Further, as discussed below, the pertinent regulations serve merely to point those in NRDCs position towards NRCs rulemaking petition process instead of NRCs adjudicatory hearing process. Because judicial review is available for parties aggrieved by NRC rulemaking petition decisions too, see pp. 50-51, infra, NRDC is incorrect in asserting (NRDC Br. at 26) that NRCs regulations strip away judicial review rights.

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30 A.

The Commission reasonably determined that NRDCs proposed severe accident mitigation alternatives contention was barred by regulation.

The Commission reasonably concluded, in CLI-12-19, that admission of NRDCs proposed severe accident mitigation Contention 1-E for hearing could not occur absent a waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L). While, generally speaking, a party may challenge an applicants Environment Report by alleging that particular new and significant information was ignored or insufficiently discussed,84 the Commission explained, when issuing section 51.53(c)(3)(ii)(L),

that severe accident mitigation measures for plants such as Limerick need not be reconsidered for license renewal.85 Indeed, the 1996 Rulemakings preamble specifically mentions Limerick as an example.86 Section 51.53(c)(3)(ii)(L) clearly was intended to have this effect. By its plain text, it draws a line between what the Commission requires in terms of severe accident mitigation alternatives analysis in its license-renewal NEPA reviews and what it does not. The provision is part of a list introduced by § 51.53(c)(3)(ii), the 84 See 10 C.F.R. § 51.53(c)(3)(iv).

85 61 Fed. Reg. at 28,481 (JA603). Echoing this point, the Generic EIS, which this same rulemaking adopted, stated, with respect to Limerick and other similar situated plants, that severe accident mitigation need not be reassessed for these plants for license renewal. Generic EIS at 5-114 (JA582).

86 61 Fed. Reg. at 28,481 (JA603).

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31 stated purpose of which is to specify the required analyses of Category 2 impacts that renewal applicants must include in their environmental reports. And in defining when analysis of severe accident mitigation alternatives is required,

§ 51.53(c)(3)(ii)(L) explicitly makes the requirement applicable only [i]f the

[NRC] staff has not previously considered severe accident mitigation alternatives for the applicants plant in an environmental impact statement or related supplement or in an environmental assessment. Thus, for plants for which a previous NRC NEPA analysis of severe accident mitigation alternatives is available, NRC regulations specify that considering the issue again at license renewal is, literally speaking, not a required analysis.

Accordingly, if the Commission, without waiving 51.53(c)(3)(ii)(L), were to require a renewed look at severe accident mitigation alternatives for such plants at license renewal, that requirement would directly contradict the plain text of its regulations. At a minimum, the Commissions interpretation of its own regulationi.e., that the rule affirmatively categorizes a second review of severe accident mitigation alternatives something not required at license renewalfits comfortably within the regulations text, matches the Commissions explanations of the rules intended effect, and is neither plainly erroneous nor inconsistent with the regulation.

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32 Having addressed the regulations meaning, the Commission determined that NRDCs mitigation alternatives contention, reduced to its simplest terms, amount[ed] to a challenge to section 51.53(c)(3)(ii)(L).87 As the Commission explained, NRDC asserted that severe accident mitigation alternatives for Limerick require an updated look at license renewal, to account for such factors as additional mitigation measures not analyzed in 1989 as well as newer economic cost data.88 Because NRDC asserted that the Commission should require something that the Commissions own rules stated would not be required, the Commission was clearly reasonable in treating NRDCs contention as an attack on NRC regulations.

NRCs hearing regulations expressly provide that such contentions are not permitted in NRC adjudications absent a successful petition to waive the regulation being attacked.89 Therefore, the Commission reasonably determined that NRDCs contention should not have been admitted for hearing absent a waiver of

§ 51.53(c)(3)(ii)(L).

This is not to say, as NRDCs brief suggests,90 that the Commissions application of its rules in this instance somehow prohibited NRDC from obtaining 87 CLI-12-19, 76 NRC at 386 (JA224).

88 Id. at 383 (JA219-20); see also CLI-13-07, 78 NRC at 215 (JA393-94).

89 CLI-12-19, 76 NRC at 380 (JA215) (discussing 10 C.F.R. § 2.335).

90 NRDC Br. at 30.

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33 formal NRC review of its concerns.91 The Commission ruled that, in addition to the option of petitioning for a rule waiver, NRDC could, either alternatively or in parallel, have requested by rulemaking petition that the Commission change its conclusion concerning the efficacy of a second mitigation alternatives analysis.

These options provided NRDC the opportunity to rely on precisely the information it claimed to be new and significant to support its position that the Commissions generic determination was either incorrect as a general matter or not properly applied to Limerick. And NRC regulations specifically contemplate not only that interested persons can file a petition for a rulemaking seeking to change an existing regulation,92 but also that participants in an ongoing licensing proceeding may seek to suspend the proceeding while such a petition is considered.93 In short, the Commission has spoken, through a notice-and-comment generic rule concerning a matter squarely within the agencys technical expertise, to precisely the issue that NRDC proposed to litigate. As a result, the Commission reasonably discerned that (absent waiver of that rule) NRDCs contention was a 91 Further, as discussed below (pp. 50-51, infra), NRCs application of its rules did not foreclose the opportunity for judicial review.

92 See 10 C.F.R. § 2.802.

93 Id. § 2.802(d); see also pp. 21-22, supra (describing NRCs process for considering comments on generic NEPA determinations received during site-specific EIS comment period).

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34 backdoor challenge to the agencys rulemaking judgment.94 The Commission therefore reasonably determined that NRDCs contention flew squarely in the face of the generic conclusion NRC had previously reachedthat a second mitigation alternatives analysis is unnecessary where one such analysis has previously been completed for the plant.

B.

NRDC does not challenge the Commissions rationale for denying Contention 1-E as barred by regulation but claims an absolute right to a hearing anyway.

1.

Controlling case law confirms that NRCs reliance on a prior rulemaking determination in an individual adjudication does not violate the Atomic Energy Acts hearing provision.

NRDC largely ignores the Commissions reasoning in denying admission of Contention 1-E. Instead, NRDCs challenge to the Commissions ruling focuses on the materiality of a mitigation alternatives analysis to license renewal. In doing so, NRDC tries to bring itself within the reach of Union of Concerned Scientists v.

NRC, 735 F.2d 1437 (D.C. Cir. 1984) (Union of Concerned Scientists I), wherein this Court overturned an NRC regulation that prohibited hearings on an issue 94 CLI-12-19, 76 NRC at 386 (JA224).

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35 material to reactor licensing but, unlike here, had not resolved that material issue generically.95 NRDC notes that the Commission does not dispute that new and significant information concerning [severe accident mitigation alternatives] is material to the relicensing of Limerick.96 Indeed, NRC does not dispute the materiality of mitigation alternatives analyses (or new and significant information about them) to licensing decisions. But NRDCs arguments lack merit because this Courts Union of Concerned Scientists I decision applies only to the particular type of regulation at issue in that caseone that prohibits hearings on a material issue without resolving that issue generically. Where a regulation does resolve a material issue generically, precedents of this Court, other circuits, and the Supreme Court make clear that the Atomic Energy Acts hearing requirement does not require NRC to reopen the issue for case-by-case litigation in individual licensing adjudications.97 This Court explained the Supreme Courts longstanding 95 See Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1439-41 (D.C. Cir.

1984).

96 NRDC Br. at 25; see also id. at 27-28, 31.

97 See, e.g., Mobil Oil Expl. & Prod. Se. Inc. v. United Distrib. Cos., 498 U.S. 211, 228-29 (1991); Heckler v. Campbell, 461 U.S. 458, 467 (1983); Nuclear Info. Res.

Serv. v. NRC, 969 F.2d 1169, 1175-76 (D.C. Cir. 1992) (en banc); Massachusetts

v. NRC, 708 F.3d 63, 74 (1st Cir. 2013); Massachusetts v. United States, 522 F.3d 115, 127 (1st Cir. 2008).

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36 conclusion on this issue in an en banc ruling in Nuclear Information Resource Service v. NRC, quoting the Supreme Courts own language:

Time and again, [t]he Court has recognized that even where an agencys enabling statute expressly requires it to hold a hearing, the agency may rely on its rulemaking authority to determine issues that do not require case-by-case consideration.... [A] contrary holding would require the agency continually to relitigate issues that may be established fairly and efficiently in a single rulemaking proceeding.98 Interpreting Union of Concerned Scientists I as recognizing an unassailable right to an evidentiary hearing on issues previously resolved by rulemaking is plainly untenable given longstanding Supreme Court precedent.

Unlike the regulation rejected in Union of Concerned Scientists I, the regulation at issue here does resolve the material issue generically. By adopting 10 C.F.R. § 51.53(c)(3)(ii)(L), the Commission has generically specified what does, and what does not, need to be done to address severe accident mitigation alternatives in NRCs license renewal NEPA analyses. Where an analysis of severe accident mitigation alternatives has already been completed for a plant in 98 Nuclear Info. Res. Serv., 969 F.2d at 1176 (quoting Mobil Oil Expl. & Prod. Se.

Inc. v. United Distrib. Cos., 498 U.S. 211, 228 (1991)). NRDCs one mention of Nuclear Information Resource Service simply ignores this portion of the decision.

See NRDC Br. at 49 n.21 and accompanying text. Moreover, given this Courts observation in Nuclear Information Resource Service that the Supreme Court has applied this general principle consistently across a range of factual scenarios, NRDCs effort to distinguish the precise facts of the instant case from the precise facts of Nuclear Information Resource Service is unpersuasive.

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37 connection with a prior NRC licensing action, the regulation instructs that reanalysis of the issue at license renewal is unnecessary.99 The regulations basic function, therefore, is to give direction to license renewal applicants and NRCs own staff reviewers. The regulation, like most NRC regulations, says nothing about hearings. NRCs reliance on a regulation like this one in individual adjudications, in lieu of subjecting the question it resolved to case-by-case reassessment, does not violate the Atomic Energy Acts hearing requirement, and Union of Concerned Scientists I does not hold otherwise.

To be sure, NRCs regulation at 10 C.F.R. § 2.335 does speak to adjudicatory hearings, by prohibiting hearings (unless a rule waiver is obtained) on issues generically resolved by NRC regulations.100 However, the bar of § 2.335 against collateral attacks on agency regulations in individual adjudications merely implements a practice that, as discussed above, the Supreme Court and this Court have plainly held is permissible. Indeed, as this Court has pointed out, it is 99 In its arguments, NRDC incorrectly oversimplifies NRCs approach to severe accident mitigation alternatives when stating that mitigation alternatives were not considered generically in the Generic EIS and were not resolved in the Generic EIS. See NRDC Br. at 48-49. The precise question at issue in the instant case whether a second analysis of severe accident mitigation alternatives should be required when one has already been completed previously for the plant in questionwas expressly considered and resolved in the Generic EIS, as well as in the associated rulemaking. See pp. 9-13, supra.

100 See 10 C.F.R. § 2.335.

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38 hornbook administrative law that an agency need notindeed should not entertain a challenge to a regulation, adopted pursuant to notice and comment, in an adjudication or licensing proceeding.101 Therefore, Union of Concerned Scientists I cannot be read to prevent § 2.335 from operating in conjunction with

§ 51.53(c)(3)(ii)(L) as it has in this case.

The Commissions conclusion that its rules do not guarantee a hearing102 is consistent with statutory requirements. As this Court explained in Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990) (Union of Concerned Scientists II), Atomic Energy Act section 189 a. (42 U.S.C. § 2239(a)) does not confer the automatic right of intervention upon anyone.103 The Court added that the [Atomic Energy] Act itself nowhere describes the content of a hearing or prescribes the manner in which this hearing is to be run.104 Nor can such a prescription be derived from NEPA. As the First Circuit recognized in Beyond Nuclear v. NRC, NEPA does not alter the procedures agencies may employ in conducting public hearings.105 101 Tribune Co. v. FCC, 133 F.3d 61, 68 (D.C. Cir. 1998).

102 CLI-13-07, 78 NRC at 211 (JA387).

103 920 F.2d at 55.

104 Id. at 53.

105 704 F.3d at 16.

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39 Indeed, even NRDC acknowledges that it must satisfy NRCs threshold hearing requirements in order to obtain a hearing, as NRDC claims only that it is entitled to a hearing on admissible SAMA contentions.106 NRCs contention admissibility rules include, for example, pleading specificity requirements,107 a predecessor version of which was upheld by this Court in Union of Concerned Scientists II.108 And, not surprisingly, application of these rules can result in NRC denying hearing requests pertaining to issues material to licensing.109 Courts have also consistently upheld, and NRDC does not challenge, the general principle that NRC may utilize rulemaking to make generic determinations regarding particular environmental-impact issues in support of the agencys overall effort to comply with NEPA.110 Therefore, where NRC finds, for a particular environmental-impact question, that there is sufficient basis to resolve the question generically by rulemaking rather than in site-by-site adjudications, NEPA does not prohibit NRC from doing so.

106 NRDC Br. at 31 (emphasis added).

107 See 10 C.F.R. § 2.309(f).

108 920 F.2d at 50.

109 See generally id.

110 See, e.g., New York v. NRC, 681 F.3d 471, 480 (D.C. Cir. 2012) (citing Baltimore Gas & Elec. Co. v. NRC, 462 U.S. 87, 100 (1983)); NRDC Br. at 8.

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40 Recognition of valid regulatory limitations on the right to a hearing before the NRC provided the basis for the decision of the First Circuit in 2008 in Massachusetts v. United States, which involved a materially identical argument raised by a prospective intervenor in an NRC license renewal proceeding. In that case, the First Circuit addressed NRCs denial of a contention, filed by the Commonwealth of Massachusetts, in which Massachusetts claimed that new and significant information arising subsequent to 1996 required revision of NRCs 1996 Rulemaking determination that reactor spent fuel pool environmental impacts during the renewed license period would be small.111 As here, NRC had denied Massachusettss hearing request on the ground that the request challenged an NRC regulation.112 The First Circuit upheld NRCs rejection of Massachusettss request. The court held that NRC acted reasonably when it invoked a well-established agency rule to reject the Commonwealths requests to participate as a party in individual re-licensing proceedings to raise concerns about a generic NRC NEPA determination and required that the Commonwealth present its concerns in a 111 Massachusetts, 522 F.3d 115.

112 See id. at 123-25.

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41 rulemaking petition.113 In reaching this holding, the court explained: The NRCs procedural rules are clear: generic Category 1 issues cannot be litigated in individual licensing adjudications without a waiver.114 While NRDC attempts to distinguish Massachusetts by tying this waiver requirement to something unique about Category 1 determinationssuch that it would not apply where the issue has not formally earned a Category 1 label from NRC115the key question is not whether the issue falls into Category 1 or Category 2, but, rather, whether the issue has been resolved generically through rulemaking. If there is a regulation in place that already resolves a question and would be applicable to the adjudicatory proceeding, there is no point in holding a hearing on the question; the regulation already answers it. And as discussed in section II.A, supra, § 51.53(c)(3)(ii)(L) already answers the questions presented by NRDCs contention 1-E.

Importantly, in Massachusetts, the First Circuit also pointed out that NRC procedures anticipate a situation, such as that alleged here by the Commonwealth, in which a generic finding adopted by agency rule may have become obsolete. In such a situation, the regulations provide channels through which the agencys 113 Id. at 129-30.

114 Id. at 127.

115 NRDC Br. at 47-49.

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42 expert staff may receive new and significant information.116 The court then identified the applicants environmental report, public comments on a draft NRC supplemental EIS, and the rulemaking petition process as available methods to bring such information to NRCs attention regarding NEPA generic determinations.117 And, of course, the latter two options are precisely the ones that the Commission made available to NRDC notwithstanding the dismissal of its contention.

NRDC argues that the Commissions decision in CLI-13-07 to refer NRDCs waiver petition to the Staff as additional comments on the Limerick draft supplemental EIS for the Staffs consideration and response confirms that

§ 51.53(c)(3)(ii)(L) does not apply to NRDCs contention.118 However, as the Commission noted in CLI-12-19, NRC has contemplated since making the generic license renewal determinations in 1996 that it would accept public comments in the site-specific EIS comment process even if those comments addressed generic NEPA determinations codified in NRC rules.119 Moreover, if such a comment does prompt NRC staff to believe that a generic finding needs revision, the 116 522 F.3d at 127.

117 Id.

118 NRDC Br. at 35.

119 See CLI-12-19, 76 NRC at 387 n.57 (JA226-27) (quoting 61 Fed. Reg. at 28,470 (JA592)).

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43 resulting process would be for the staff to channel the matter to the rulemaking process for formal reevaluation of the generic finding.120 Allowing public comments on site-specific EISs to address generic topics covered by regulations is simply a convenient means of promoting a healthy flow of potentially NEPA-relevant information to the agency. Nothing in the Commission orders relatively brief discussion of this referral to the staff indicated a Commission intent to override its nearly two-decade-old policy for how to approach new and significant information applicable to generic NEPA findings.

The 2008 Massachusetts decision is not the only case upholding NRC actions similar to the NRC action at issue here. Two other recent cases also rejected challenges by intervenors in NRC adjudications whose attempts to obtain hearings on NEPA contentions based on new and significant information were denied for failing to satisfy NRCs threshold pleading requirements.

Massachusetts v. NRC, 708 F.3d 63 (1st Cir. 2013), was a license renewal case in which the intervenor in the renewal adjudication tried to raise a new and significant information contention that the existing [severe accident mitigation alternatives] analysis in the EIS underestimated core damage frequency by an order 120 See 61 Fed. Reg. at 28,470 (JA592).

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44 of magnitude.121 In support of this contention, the intervenor sought waiver of the portion of an NRC NEPA regulation that treats the environmental impacts of spent fuel pools as a Category 1 (i.e., generic) issue.

As to the proposed mitigation alternatives contention in Massachusetts, the First Circuit ruled that [t]o obtain a hearing on [a] claim of new and significant information, requesters must meet certain requirements.122 The Court reviewed NRCs denial of the contention and upheld NRCs application of its rules for contention admissibility and reopening the record.123 It flatly rejected petitioners argument that its hearing rights to present the new and significant information were somehow violated.124 It pointed out this Courts holding in Union of Concerned Scientists II that section 189 a. of the Atomic Energy Act does not confer the automatic right of intervention upon anyone, adding: The NRC may certainly impose procedural requirements for obtaining a hearing where the statute provides no additional guidance.125 121 708 F.3d at 75.

122 Id. at 69.

123 Id. at 75-78.

124 Id. at 78.

125 Id. (quoting Union of Concerned Scientists II, 920 F.2d at 55).

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45 More recently, this Court upheld NRCs decision not to admit for hearing new and significant information contentions in Blue Ridge Environmental Defense League v. NRC, 716 F.3d 183, 195 (D.C. Cir. 2013). Specifically, this Court ruled that NRC acted reasonably in determining that petitioners failed to satisfy the contention-specificity requirement of 10 C.F.R. § 2.309(f)(1).126 The Massachusetts and Blue Ridge cases illustrate that the mere proffer of allegedly new and significant information in a NEPA contention does not guarantee a hearing. Akin to the agencys judicially approved contention-admissibility and record-reopening rules, the prohibition against challenging a rule in an adjudicatory proceeding at 10 C.F.R. § 2.335 is likewise a procedural limitation upon obtaining a hearing. The reasonableness of such a rule is obvious.

The agency invests considerable technical and administrative resources in adopting substantive regulations like 10 C.F.R. § 51.53(c)(3)(ii)(L) and thus does not undertake rulemaking ventures lightly. It furthers both fairness and efficiency to require that these generic rules be enforced across the board and that, in the 126 716 F.3d at 186, 196-97.

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46 absence of a special-circumstances waiver, claims that are, at bottom, challenges to a generic rule be channeled through the rulemaking process.127

2.

NRDCs remaining arguments against the Commissions CLI-12-19 decision that litigating NRDCs contention would require a rule waiver also lack merit.

NRDC argues that admission of Contention 1-E is supported by the Commissions commitment during the 1996 Rulemaking to consider new and significant information in licensing cases as well as the same requirement under NEPA and NRCs implementing regulations at 10 C.F.R. Part 51.128 But this NRC commitment did not somehow override NRCs regulation at 10 C.F.R. § 2.335, the effect of which is to direct formal challenges to NRC regulations to the rulemaking petition process rather than the adjudicatory hearing process.

Here, NRC has determined in a notice-and-comment rulemaking that an initial severe accident mitigation alternatives analysis is not likely to be improved upon sufficiently by a subsequent reanalysis so as to be necessary for NEPA compliance. This does not conflict with the general NEPA obligation, reflected in NRCs NEPA regulations (including those referred to in NRDCs brief at p.37), to supplement already-completed NEPA analyses with any new and significant 127 See also Massachusetts, 522 F.3d at 125 (quoting Commissions rationale for favoring rulemaking over plant-by-plant litigation for addressing the adequacy of generic NEPA findings).

128 NRDC Br. at 35-38.

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47 information; rather, it is a determination by the agency that any new information in this particular area of impact analysis is not, given the range of factors the Commission considered in the notice-and-comment rulemaking, likely to prove significant. If NRDC views this NRC rulemaking determination as incorrect based on new information, it has been free, and remains free, to file a petition for rulemaking seeking revision of the rule. Because NRDC instead sought to challenge the rule in the site-specific Limerick proceeding, the Commission properly determined that NRC regulations at 10 C.F.R. § 2.335 require a rule waiver.

NRDC also quotes from the 1996 license renewal rulemaking to claim that the Commission believed additional severe accident mitigation analysis would be appropriate ten years later.129 NRDC argues that the Commission certainly contemplated that new and significant information would be considered for Limericks license renewal, given the hiatus between initial licensing and license renewal of greater than ten years. This claim, however, is based upon an implausible reading of the rulemaking. The Commission was clearly explaining, when referring to the 10-year timeframe, how soon it anticipated reconsidering the 129 NRDC Br. at 36.

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48 various generic conclusions reached in that 1996 rulemaking. The Commission stated:

After consideration of the changes from the proposed rule to the final rule and further review of the environmental issues, the NRC has concluded that it is adequate to formally review the rule and the GEIS on a schedule that allows revisions, if required, every 10 years. The NRC believes that 10 years is a suitable period considering the extent of the review and the limited environmental impacts observed thus far, and given that the changes in the environment around nuclear power plants are gradual and predictable with respect to characteristics important to environmental impact analyses.130 With respect to the generic NEPA determination underlying 10 C.F.R.

§ 51.53(c)(3)(ii)(L), the contemplated review meant reassessing whether that conclusion remained true: that one mitigation alternatives analysis should be required while a second should not. When conducting its first periodic reassessment of the 1996 rule (completed in 2013), NRC did just that, concluding that no changes to § 51.53(c)(3)(ii)(L) were necessary.131 Naturally, in deciding 130 61 Fed. Reg. at 28,470-71 (emphasis added) (JA592-93).

131 See Final Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 78 Fed. Reg. 37,282, 37,289-90 (June 20, 2013).

Contrary to NRDCs assertion that this generic EIS update did not mention SAMAs and is irrelevant here (NRDC Br. at 8 n.1), Appendix E of that generic EIS revision contains a section E.4 entitled Severe Accident Mitigation Alternatives (SAMAs). See Generic EIS for License Renewal of Nuclear PlantsFinal Report (NUREG-1437, Rev. 1), Vol. 3Appendices at E E-45, available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/r1/. That section discusses severe accident mitigation alternatives in light of post-1996 developments. Among other things, it

(... continued)

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49 generically that a second plant-specific assessment of mitigation alternatives analyses remains unnecessary, the NRC did not deem it necessary to require one for Limerick (or other similarly situated plants).

Finally, NRDC argues that the only interpretation of § 51.53(c)(3)(ii)(L) that would not violate NEPA and the Atomic Energy Act is that the regulation does not actually speak to the question pertinent to NRDCs contentioni.e., whether new information regarding severe accident mitigation alternatives at plants like Limerick is significant enough to require a second analysis to supplement or replace the previous analysis.132 But this argument is inconsistent with the text of

§ 51.53(c)(3)(ii)(L), which specifically excludes a second mitigation alternatives analysis from the list of required analyses at license renewal.133 In any event, even if the text permitted NRDCs interpretation, there is no reason to afford the regulation a saving construction. As discussed at length above, NRCs interpretation of § 51.53(c)(3)(ii)(L) does not conflict with the Atomic Energy Act hearing requirement. Further, as also discussed above, NRCs interpretation of concludes that such developments provide[] a strong basis for the Commissions decision to not require applicants to perform an additional [severe accident mitigation alternatives analysis] in a license renewal application if the NRC had previously evaluated one for that plant. Id. at E-45.

132 See NRDC Br. at 34-38.

133 See pp. 30-31, supra.

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50 the rule does not prevent NRC from receiving and considering new and significant information pertinent to the generic NEPA determination reflected in

§ 51.53(c)(3)(ii)(L). Therefore, NRCs interpretation does not conflict with NEPA. Accordingly, neither the Atomic Energy Act nor NEPA prevents this Court from affording the usual deference to NRCs interpretation of its own regulations.134 NRDCs related claim135 that NRCs interpretation robs NRDC of judicial review rights also lacks merit. Again, NRDC could have filed a rulemaking petition seeking revision of the pertinent NRC rule. If NRCs resolution of the petition did not satisfy NRDC, NRDC could then have obtained judicial review of NRCs decision on the merits in the court of appeals. This is precisely what Massachusetts did in connection with its new and significant information claims that were at issue in the 2008 Massachusetts v. United States case discussed above.

NRC accepted Massachusettss rulemaking petition, provided the public an opportunity to comment, and published a decision in the Federal Register.136 NRCs decision denied the petition on the merits, but Massachusetts obtained judicial review (also on the merits) of this denial decision in the United States 134 See pp. 26-28, supra.

135 NRDC Br. at 38.

136 See Denial of Petitions for Rulemaking, 73 Fed. Reg. 46204 (Aug. 8, 2008).

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51 Court of Appeals for the Second Circuit.137 NRDC could have followed this same path, which would have guaranteed a right to judicial review on the merits if NRCs resolution of the petition did not result in the outcome NRDC wanted. Yet NRDC chose not to file a rulemaking petition, instead relying exclusively on a path disfavored under administrative law: challenging an agency regulation in an individual adjudication.

The very existence of the instant lawsuit also further confirms that NRDC has not been denied rights to judicial review. NRDC is here, in court, with an opportunity to demonstrate that NRCs disposition of its adjudicatory contentions was arbitrary and capricious, an abuse of discretion, or otherwise unlawful under the Administrative Procedure Act. If NRDC were to prevail, NRC would need to proceed consistent with the Courts direction.

In sum, none of NRDCs arguments demonstrates that the Commission acted improperly when determining that NRDCs request for an adjudicatory hearing could not proceed absent a successful waiver petition.

137 See New York v. NRC, 589 F.3d 551 (2d Cir. 2009) (upholding NRC denial of Massachusetts and California rulemaking petitions).

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52 III.

The Commissions denial of NRDCs waiver request in CLI-13-07 was reasonable.

A.

NRC has established standards governing rule-waiver petitions.

In CLI-12-19, the Commission offered NRDC an opportunity to petition for a waiver.138 NRDC took up the Commissions offer. To support its waiver request, NRDC alleged that Exelons Environmental Report: (1) did not consider mitigation alternatives considered for other Mark II boiling water reactors (the Limerick reactor design); (2) used economic cost information from the 1977 Three Mile Island accident rather than information specific to Limerick; and (3) had not used more recently developed techniques for determining whether mitigation alternatives are cost-beneficial (see supra at 20).

The Commission reviewed NRDCs waiver request against the criteria of 10 C.F.R. § 2.335. The Commission explained that that provision provides a limited exception to [its] general prohibition against challenges to NRC rules or regulations in adjudicatory proceedings.139 A waiver is available only upon a showing that special circumstances with respect to the subject matter of the 138 CLI-12-19, 76 NRC at 387-89 (JA226-29).

139 CLI-13-07, 78 NRC at 206 (JA380).

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53 particular proceeding are such that the application of the rule... would not serve the purposes for which... [it] was adopted.140 Waiver of generally applicable regulations in individual adjudications is designed to be the exception, rather than the rule. After all, a basic purpose of issuing regulations is to resolve certain matters generically.141 Accordingly, the Commission considers the following four factors in assessing waiver petitions under 10 C.F.R. § 2.335 and requires waiver petitioners to meet [a]ll four of them:

(i) the rules strict application would not serve the purposes for which it was adopted; (ii) special circumstances exist that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (iii) those circumstances are unique to the facility rather than common to a large class of facilities; and (iv) waiver of the regulation is necessary to reach a significant safety problem.142 While the first two factors track the text of 10 C.F.R. § 2.335, the third factor reflects NRCs view that only where a waiver request rests on issues that 140 Id. at 206-07 (quoting 10 C.F.R. § 2.335(b); brackets in original) (JA381).

141 See Nuclear Info. Res. Serv, 969 F.2d at 1176.

142 CLI-13-07, 78 NRC at 207-08 (JA382).

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54 are legitimately unique to the proceeding and do not imply broader concerns about the rules general viability or appropriateness would it make sense to resolve the matter through site-specific adjudication.143 The fourth factorshowing a significant problem otherwise unaddressedemphasizes NRCs belief that rulemakings typically years in the works should not be set aside lightly.144 The determinative factor in this caseuniquenesswas recently approved as an appropriate and permissible component of NRCs rule-waiver analysis by the First Circuit in the 2013 Massachusetts v. NRC case discussed abovea case that also addressed a request to waive a generic NEPA determination applicable to reactor license renewal.145 In that case, the First Circuit upheld the Commissions denial of Massachusettss rule-waiver petition, stating: In denying Massachusettss 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.146 143 Id. at 208 (JA383).

144 Id. The Commission explained in CLI-13-07 that although the original formulation of this fourth factor spoke in terms of safety problems, the factor could be satisfied by a significant environmental issue as well. Id. at 209 (JA384).

145 Massachusetts, 708 F.3d 63.

146 Id. at 74.

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55 B.

NRC reasonably construed the waiver factors in denying NRDCs waiver petition.

The Commission reasonably found the third factor of the four-prong waiver standard dispositive of NRDCs waiver claim. NRDC claimed that, absent the information addressed in the contentions barred by section 51.53(c)(3)(ii)(L), the Limerick analysis of mitigation alternatives would be outdated.147 The Commission, assessing as a general matter whether § 51.53(c)(3)(ii)(L) could potentially be waived, expressly left open the possibility that new and significant information could justify a waiver of section 51.53(c)(3)(ii)(L) if the information were truly unique to the plant at issue. But, as the Commission determined, NRDCs particular claims did not appear legitimately unique to Limerick.148 The Commission observed that, for most if not all reactor licensees, twenty years or more might pass between initial plant licensing and a license renewal application. This 20-year interval is inherent in [NRCs] regulatory scheme, because a reactor operating license term is 40 years and a license renewal request may not be submitted more than 20 years before expiration of the license.149 147 See CLI-13-07, 78 NRC at 213-16 (JA390-94).

148 Id. at 214 (JA391).

149 Id. at 214 & n.81 (citing, inter alia, 10 C.F.R. § 54.17(c)) (JA391-92).

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56 Addressing the specifics of NRDCs concerns, the Commission found that NRDCs proposed additional mitigation alternatives for Limerick could be used for any boiling water reactor, not just those [like Limerick] with Mark II containments.150 Similarly, if the mere emergence of a newer methodology for performing mitigation alternatives analyses during the decades-long timeframe inherent in the rule were sufficient to support the rules waiver, the Commission stated that it could not envision Limerick being the only plant affected.151 And finally, the Commission found that the mere fact that the economic environment around Limerick may have changed to some extent over two decades did not reveal something unique about Limerick.152 In light of these considerations, the Commission determined that practically any plant seeking a renewed license with an already-completed mitigation alternatives analysis from a previous licensing proceeding in-hand would be open to criticisms comparable to those NRDC raised.153 Put simply, NRDCs 150 Id. at 215 (JA393).

151 Id.

152 Id. (JA393-94).

153 Id. at 214 (JA391).

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57 information did not show that Limerick presented special circumstances, which is what NRCs waiver regulation requires.154 In its challenge to this conclusion, NRDC first argues not that NRDC demonstrated the uniqueness of its concerns to Limerick, but rather that the Commission did not truly find a lack of uniqueness.155 Yet, NRCs waiver regulation places the burden on the waiver petitioner to make an affirmative showing that the waiver standards are met.156 Hence, it was wholly appropriate for the Commission, when resolving the uniqueness question, to note that NRDC offers little to show how the information it provides sets Limerick apart from other plants undergoing license renewal whose previous [severe accident mitigation alternatives] analyses purportedly also would be in need of updating.157 NRDCs task before this Court is to demonstrate that the information it presented to NRC demonstrated so clearly that its concerns were unique to Limerick that the Commissions conclusion to the contrary was arbitrary and capricious. NRDCs arguments in its brief do not even attempt this.

154 10 C.F.R. § 2.335(b) (emphasis added).

155 See NRDC Br. at 43-45.

156 See 10 C.F.R. § 2.335.

157 CLI-13-07, 78 NRC at 215 (JA393).

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58 Rather, in pointing out the Commissions use of words like could and might,158 NRDC simply identifies that the Commission did not take the rather bold step of predicting that comparable challenges would, in fact, be brought in future license renewal proceedings for other plantsa fact the Commission could not possibly know for certain.159 Nonetheless, the Commission did, in its considered judgment, view NRDCs concerns as highly likely to be transferrable to other plants in the future, recognizing them collectively as a far-reaching challenge and concluding that granting a rule waiver based on NRDCs proffered new information alone would create an exception that would necessarily swallow the rule.160 The Commission is entitled to deference with respect to determinations such as this one, and particularly so given that it falls within the Commissions area of expertise.161 Finally, NRDC errs in arguing (NRDC Br. at 45-46) that Limerick Ecology compels this Court to hold that the Commission decided the uniqueness question incorrectly. Contrary to NRDCs assertion, the Commissions lack-of-uniqueness 158 NRDC Br. at 43-45.

159 Limerick happens to be the first plant applying for license renewal for which a severe accident mitigation alternatives analysis had already been completed in connection with a previous licensing action. Thus, the Commission was undertaking an inherently predictive exercise.

160 CLI-13-07, 78 NRC at 214-15 (JA391-93).

161 See p. 28, supra.

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59 finding did not fly in the face of Limerick Ecology. Limerick Ecology merely considered the validity of an NRC policy statement excluding mitigation alternatives from consideration in individual licensing cases, and the court applying no deference to NRCs decision, because it was made via policy statement, rather than rulemakingdetermined that the variability among plants that it identified precluded a wholesale conclusion that severe accident mitigation alternatives did not have to be considered on a site-specific basis upon initial licensing.162 The courts decision did not speak to the entirely separate question that the pertinent aspect of § 51.53(c)(3)(ii)(L) addresseswhether a second site-specific mitigation alternatives analysis would reveal new environmental-impact information significant enough to require evaluation under NEPA. Moreover, unlike the situation in Limerick Ecology, where the Commission proceeded by policy statement, the Commission answered the particular question at issue here in the course of a rulemaking that conclusively determined this issue and that is entitled to deference.163 Accordingly, Limerick Ecology did not foreclose the approach NRC has taken with respect to second mitigation alternatives analyses.

162 Limerick Ecology, 869 F.2d at 739.

163 Id. (To summarize, the policy statement was not a rulemaking and therefore did not absolve the NRC of the required consideration of the environmental effects.).

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60 Further, contrary to NRDCs suggestion that NRCs treatment of second mitigation alternatives analyses per § 51.53(c)(3)(ii)(L) represents an unexplained departure from principles outlined in Limerick Ecology,164 the Commission did, in fact, explain why it was taking this approach to severe accident mitigation alternatives. Indeed, the 1996 Generic EIS, immediately after its statement that NRDC quotes in its brief,165 expressly summarized the reasoning behind NRCs regulations requiring only one mitigation alternatives analysis per plant.166 Limerick Ecology, of course, took no position on a Commission rationale expressed seven years after the case was decided.

In the end, to the extent that NRDC has information that bears on the wisdom of NRCs determination, it should petition for a rulemaking. But NRDC cannot claim a legal entitlement to a special circumstances waiver of a Commission rule based on considerations that the Commission reasonably found did not show Limerick to be a special case.

164 See NRDC Br. at 9-10.

165 See Id. at 9 (quoting from Generic EIS, Section 5).

166 See Generic EIS at 5-113 to 5-114 (JA581-82); see also pp. 11-13, supra.

USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 73 of 115

61 IV.

NRCS DENIAL OF NRDCS HEARING REQUEST DOES NOT INDICATE THAT NRCS APPLICATION OF ITS REGULATORY SCHEME TO NRDCS REQUEST WAS UNLAWFUL In Section III of its argument, NRDC contends that NRCs application of its regulatory scheme to the NRDC hearing request violates NEPA, the Administrative Procedure Act, and the Atomic Energy Act.167 NRDC also claims, in a footnote, that NRCs denial of NRDCs hearing request implicates NRDCs constitutional right to due process, though it states that it is not necessary for the Court to consider NRDCs constitutional rights.168 As discussed in previous sections of our Argument, these assertions lack merit, as NRCs approach to NRDCs hearing request comports with well-settled tenets of administrative law.

This Court and others have repeatedly recognized the appropriateness of resolving generic issues through rulemaking, even in the face of an asserted statutory right to a hearing. Moreover, Federal Respondents are not arguing that this Court lacks jurisdiction to review NRCs application of its regulations to NRDC in this matter.

NRDCs apparent attempt, on page 50 of its brief, to establish that this Court does have authority to conduct such a review thus stands as a rebuttal to an argument that Federal Respondents are not making. Beyond that, Federal Respondents do 167 NRDC Br. at 47-50.

168 Id. at 50 n.22.

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62 not view section III of NRDCs Argument as containing arguments meaningfully distinguishable from those included in earlier sections of NRDCs brief.

With that said, we reiterate that NRCs regulatory scheme afforded NRDC a full and fair opportunity to present its purportedly new and significant information to NRC for its consideration. Though NRDC did not avail itself of the rulemaking-petition optionthe standard way to formally challenge an NRC regulationthe Commission pointed NRDC to this option,169 and nothing prevented NRDC from pursuing it. Further, instead of denying NRDCs hearing request outright in CLI-12-19 for failure to petition for a waiver, the Commission granted NRDC an opportunity to pursue the option if it wished.170 This permitted NRDC to demonstrate that a site-specific hearing on its contention was warranted even despite the Commissions prior generic resolution of the matter by rule. And when the Commission reasonably found that NRDC had failed to satisfy the necessary standards to obtain a rule waiver, the Commission did not simply terminate the matter there. Rather, the Commission directed NRCs staff to consider NRDCs purportedly new and significant information anyway, to assess whether any of it demonstrated a need for further analysisincluding whether the 169 CLI-12-19, 76 NRC at 387 (JA226).

170 Id. at 388 (JA227).

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63 rule at issue warranted reconsiderationin order to comply with NEPA.171 Thus, contrary to NRDCs assertions, the Commission has considered, and provided NRDC with multiple opportunities to challenge the Commissions conclusions about, the allegedly new and significant information on which NRDCs petition for review is based.

CONCLUSION For the foregoing reasons, the petition for review should be denied.

171 NRDC also separately filed comments recommending an updated look at severe accident mitigation alternatives for Limerick in 2011 during the scoping process for the Limerick license renewal EIS. See CLI-12-19, 76 NRC at 387 n.57 (JA227).

USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 76 of 115

64 Respectfully submitted, JOHN C. CRUDEN Assistant Attorney General

/s/ John E. Arbab JOHN E. ARBAB Attorney Appellate Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7415 Washington, D.C. 20044 (202) 514-4046 John.Arbab@usdoj.gov MARGARET M. DOANE General Counsel

/s/ Andrew P. Averbach___

ANDREW P. AVERBACH Solicitor

/s/ James E. Adler JAMES E. ADLER Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852-2738 (301) 415-1656 James.Adler@nrc.gov Dated: April 22, 2015 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 77 of 115

CERTIFICATION OF COMPLIANCE Pursuant to the Federal Rules of Appellate Procedure and the Local Rules of this Court, the undersigned counsel certifies:

The foregoing Brief of Federal Respondents complies with Fed. R. App. P.

32(a)(7)(B) because this Brief contains 13,195 words, excluding parts exempted by Fed. R. App. P. 32(a)(7)(B)(iii), according to the Microsoft Word 2010 software program with which the Brief was prepared. The foregoing Brief complies with Fed. R. App. P. 32(a)(5) and Fed. R. App. P. 32(a)(6) because it was prepared in proportionally spaced typeface in 14 point Times Roman font using Microsoft Word 2010.

______/s/James E. Adler_____

James E. Adler Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 (301) 415-1656 James.Adler@nrc.gov Dated: April 22, 2015 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 78 of 115

CERTIFICATE OF SERVICE I hereby certify that on April 22, 2015, the undersigned counsel for Respondent U.S. Nuclear Regulatory Commission filed the attached Brief of Federal Respondents with the U.S. Court of Appeals for the District of Columbia Circuit by filing the same with the Courts CM/ECF filing system. That method is calculated to serve:

Howard M. Crystal, Esq.

Meyer Glitzenstein & Crystal Email: howardcrystal@meyerglitz.com Geoffrey H. Fettus, Esq.

Natural Resources Defense Council, Inc.

Email: gfettus@nrdc.org Brad Fagg, Esq.

Morgan, Lewis & Bockius LLP Email: bfagg@morganlewis.com John E. Arbab, Esq.

U.S. Department of Justice Environment & Natural Resources Division Email: john.arbab@usdoj.gov

______/s/James E. Adler______

JAMES E. ADLER Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 (301) 415-1656 James.Adler@nrc.gov USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 79 of 115

ADDENDUM Statutes Cited:

5 U.S.C. § 706.ADD-1 28 U.S.C. § 2342.ADD-2 28 U.S.C. § 2344.ADD-4 42 U.S.C. § 2239.ADD-5 Regulations Cited:

10 C.F.R. § 2.309.ADD-8 10 C.F.R. § 2.335.ADD-15 10 C.F.R. § 2.802.ADD-17 10 C.F.R. § 51.53.ADD-20 10 C.F.R. § 51.94.ADD-24 10 C.F.R. § 51.95.ADD-25 10 C.F.R. Part 51, Subpart A, Appendix B..ADD-28 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 80 of 115

Effective:[See Text Amendments]

United States Code Annotated Currentness Title 5. Government Organization and Employees (Refs & Annos)

Part I. The Agencies Generally Chapter 7. Judicial Review (Refs & Annos)

§ 706. Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--

(1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

CREDIT(S)

(Pub.L.89-554, Sept. 6, 1966, 80 Stat. 393.)

Current through P.L. 113-296 (excluding P.L. 113-235, 113-287, and 113-291) approved 12-19-2014 Westlaw. (C) 2015 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

END OF DOCUMENT 5 U.S.C.A. § 706 Page 1

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ADD-1 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 81 of 115

Effective: October 6, 2006 United States Code Annotated Currentness Title 28. Judiciary and Judicial Procedure (Refs & Annos)

Part VI. Particular Proceedings Chapter 158. Orders of Federal Agencies; Review (Refs & Annos)

§ 2342. Jurisdiction of court of appeals The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive juris-diction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of--

(1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47; (2) all final orders of the Secretary of Agriculture made under chapters 9 and 20A of title 7, except orders is-sued under sections 210(e), 217a, and 499g(a) of title 7; (3) all rules, regulations, or final orders of--

(A) the Secretary of Transportation issued pursuant to section 50501, 50502, 56101-56104, or 57109 of title 46 or pursuant to part B or C of subtitle IV, subchapter III of chapter 311, chapter 313, or chapter 315 of title 49; and (B) the Federal Maritime Commission issued pursuant to section 305, 41304, 41308, or 41309 or chapter 421 or 441 of title 46; (4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42; (5) all rules, regulations, or final orders of the Surface Transportation Board made reviewable by section 2321 of this title; (6) all final orders under section 812 of the Fair Housing Act; and (7) all final agency actions described in section 20114(c) of title 49.

Jurisdiction is invoked by filing a petition as provided by section 2344 of this title.

CREDIT(S)

(Added Pub.L.89-554, § 4(e), Sept. 6, 1966, 80 Stat. 622; amended Pub.L.93-584, § 4, Jan. 2, 1975, 88 Stat.

1917; Pub.L.95-454, Title II, § 206, Oct. 13, 1978, 92 Stat. 1144; Pub.L.96-454, § 8(b)(2), Oct. 15, 1980, 94 Stat. 2021; Pub.L.97-164, Title I, § 137, Apr. 2, 1982, 96 Stat. 41; Pub.L.98-554, Title II, § 227(a)(4), Oct. 30, 1984, 98 Stat. 2852; Pub.L.99-336, § 5(a), June 19, 1986, 100 Stat. 638; Pub.L. 100-430, § 11(a), Sept. 13, 28 U.S.C.A. § 2342 Page 1

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1988, 102 Stat. 1635; Pub.L. 102-365, § 5(c)(2), Sept. 3, 1992, 106 Stat. 975; Pub.L. 103-272, § 5(h), July 5, 1994, 108 Stat. 1375; Pub.L. 104-88, Title III, § 305(d)(5) to (8), Dec. 29, 1995, 109 Stat. 945; Pub.L. 104-287,

§ 6(f)(2), Oct. 11, 1996, 110 Stat. 3399; Pub.L. 109-59, Title IV, § 4125(a), Aug. 10, 2005, 119 Stat. 1738; Pub.L. 109-304, § 17(f)(3), Oct. 6, 2006, 120 Stat. 1708.)

1996 Acts. Section 6(f) of Pub.L. 104-287 provided in part that amendments made by such section 6(f) to this section, sections 744 and 797l of Title 45, Railroads, and section 30166 of Title 49, Transportation, were effect-ive Dec. 29, 1995.

Current through P.L. 113-296 (excluding P.L. 113-235, 113-287, and 113-291) approved 12-19-2014 Westlaw. (C) 2015 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

END OF DOCUMENT 28 U.S.C.A. § 2342 Page 2

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ADD-3 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 83 of 115

Effective:[See Text Amendments]

United States Code Annotated Currentness Title 28. Judiciary and Judicial Procedure (Refs & Annos)

Part VI. Particular Proceedings Chapter 158. Orders of Federal Agencies; Review (Refs & Annos)

§ 2344. Review of orders; time; notice; contents of petition; service On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by ser-vice or publication in accordance with its rules. Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. The action shall be against the United States. The petition shall contain a concise statement of--

(1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed.

The petitioner shall attach to the petition, as exhibits, copies of the order, report, or decision of the agency. The clerk shall serve a true copy of the petition on the agency and on the Attorney General by registered mail, with request for a return receipt.

CREDIT(S)

(Added Pub.L.89-554, § 4(e), Sept. 6, 1966, 80 Stat. 622.)

Current through P.L. 113-296 (excluding P.L. 113-235, 113-287, and 113-291) approved 12-19-2014 Westlaw. (C) 2015 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

END OF DOCUMENT 28 U.S.C.A. § 2344 Page 1

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ADD-4 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 84 of 115

Effective: April 26, 1996 United States Code Annotated Currentness Title 42. The Public Health and Welfare Chapter 23. Development and Control of Atomic Energy (Refs & Annos)

Division a. Atomic Energy Subchapter XV. Judicial Review and Administrative Procedure (Refs & Annos)

§ 2239. Hearings and judicial review (a)(1)(A) In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any li-cense or construction permit, or application to transfer control, and in any proceeding for the issuance or modi-fication of rules and regulations dealing with the activities of licensees, and in any proceeding for the payment of compensation, an award or royalties under sections [FN1] 2183, 2187, 2236(c) or 2238 of this title, the Com-mission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. The Commission shall hold a hearing after thirty days' notice and publication once in the Federal Register, on each application under section 2133 or 2134(b) of this title for a construction permit for a facility, and on any application under section 2134(c) of this title for a construction permit for a testing facility. In cases where such a construction permit has been issued following the holding of such a hearing, the Commission may, in the absence of a request therefor by any person whose in-terest may be affected, issue an operating license or an amendment to a construction permit or an amendment to an operating license without a hearing, but upon thirty days' notice and publication once in the Federal Register of its intent to do so. The Commission may dispense with such thirty days' notice and publication with respect to any application for an amendment to a construction permit or an amendment to an operating license upon a de-termination by the Commission that the amendment involves no significant hazards consideration.

(B)(i) Not less than 180 days before the date scheduled for initial loading of fuel into a plant by a licensee that has been issued a combined construction permit and operating license under section 2235(b) of this title, the Commission shall publish in the Federal Register notice of intended operation. That notice shall provide that any person whose interest may be affected by operation of the plant, may within 60 days request the Commission to hold a hearing on whether the facility as constructed complies, or on completion will comply, with the accept-ance criteria of the license.

(ii) A request for hearing under clause (i) shall show, prima facie, that one or more of the acceptance criteria in the combined license have not been, or will not be met, and the specific operational consequences of noncon-formance that would be contrary to providing reasonable assurance of adequate protection of the public health and safety.

(iii) After receiving a request for a hearing under clause (i), the Commission expeditiously shall either deny or grant the request. If the request is granted, the Commission shall determine, after considering petitioners' prima 42 U.S.C.A. § 2239 Page 1

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ADD-5 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 85 of 115

facie showing and any answers thereto, whether during a period of interim operation, there will be reasonable assurance of adequate protection of the public health and safety. If the Commission determines that there is such reasonable assurance, it shall allow operation during an interim period under the combined license.

(iv) The Commission, in its discretion, shall determine appropriate hearing procedures, whether informal or formal adjudicatory, for any hearing under clause (i), and shall state its reasons therefor.

(v) The Commission shall, to the maximum possible extent, render a decision on issues raised by the hearing re-quest within 180 days of the publication of the notice provided by clause (i) or the anticipated date for initial loading of fuel into the reactor, whichever is later. Commencement of operation under a combined license is not subject to subparagraph (A).

(2)(A) The Commission may issue and make immediately effective any amendment to an operating license or any amendment to a combined construction and operating license, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Com-mission of a request for a hearing from any person. Such amendment may be issued and made immediately ef-fective in advance of the holding and completion of any required hearing. In determining under this section whether such amendment involves no significant hazards consideration, the Commission shall consult with the State in which the facility involved is located. In all other respects such amendment shall meet the requirements of this chapter.

(B) The Commission shall periodically (but not less frequently than once every thirty days) publish notice of any amendments issued, or proposed to be issued, as provided in subparagraph (A). Each such notice shall include all amendments issued, or proposed to be issued, since the date of publication of the last such periodic notice.

Such notice shall, with respect to each amendment or proposed amendment (i) identify the facility involved; and (ii) provide a brief description of such amendment. Nothing in this subsection shall be construed to delay the ef-fective date of any amendment.

(C) The Commission shall, during the ninety-day period following the effective date of this paragraph, promul-gate regulations establishing (i) standards for determining whether any amendment to an operating license or any amendment to a combined construction and operating license involves no significant hazards consideration; (ii) criteria for providing or, in emergency situations, dispensing with prior notice and reasonable opportunity for public comment on any such determination, which criteria shall take into account the exigency of the need for the amendment involved; and (iii) procedures for consultation on any such determination with the State in which the facility involved is located.

(b) The following Commission actions shall be subject to judicial review in the manner prescribed in chapter 158 of Title 28 and chapter 7 of Title 5:

(1) Any final order entered in any proceeding of the kind specified in subsection (a) of this section.

42 U.S.C.A. § 2239 Page 2

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ADD-6 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 86 of 115

(2) Any final order allowing or prohibiting a facility to begin operating under a combined construction and op-erating license.

(3) Any final order establishing by regulation standards to govern the Department of Energy's gaseous diffu-sion uranium enrichment plants, including any such facilities leased to a corporation established under the USEC Privatization Act [42 U.S.C.A. § 2297h et seq.].

(4) Any final determination under section 2297f(c) of this title relating to whether the gaseous diffusion plants, including any such facilities leased to a corporation established under the USEC Privatization Act [42 U.S.C.A. § 2297h et seq.], are in compliance with the Commission's standards governing the gaseous diffusion plants and all applicable laws.

CREDIT(S)

(Aug. 1, 1946, c. 724, Title I, § 189, as added Aug. 30, 1954, c. 1073, § 1, 68 Stat. 955; amended Sept. 2, 1957, Pub.L.85-256, § 7, 71 Stat. 579; Aug. 29, 1962, Pub.L.87-615, § 2, 76 Stat. 409; Jan. 4, 1983, Pub.L.97-415, § 12(a), 96 Stat. 2073; renumbered Title I and amended Oct. 24, 1992, Pub.L. 102-486, Title IX, § 902(a)(8), Title XXVIII, §§ 2802, 2804, 2805, 106 Stat. 2944, 3120, 3121; Apr. 26, 1996, Pub.L. 104-134, Title III, § 3116(c),

110 Stat. 1321-349.)

[FN1] So in original. Probably should be section.

Current through P.L. 113-296 (excluding P.L. 113-235, 113-287, and 113-291) approved 12-19-2014 Westlaw. (C) 2015 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

END OF DOCUMENT 42 U.S.C.A. § 2239 Page 3

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ADD-7 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 87 of 115

Effective: September 4, 2012 Code of Federal Regulations Currentness Title 10. Energy Chapter I. Nuclear Regulatory Commission (Refs & Annos)

Part 2. Agency Rules of Practice and Pro-cedure (Refs & Annos)

Subpart C. Rules of General Applicabil-ity: Hearing Requests, Petitions to Inter-vene, Availability of Documents, Selection of Specific Hearing Procedures, Presiding Officer Powers, and General Hearing Man-agement for NRC Adjudicatory Hearings (Refs & Annos)

§ 2.309 Hearing requests, petitions to intervene, requirements for stand-ing, and contentions.

(a) General requirements. Any person whose in-terest may be affected by a proceeding and who de-sires to participate as a party must file a written re-quest for hearing and a specification of the conten-tions which the person seeks to have litigated in the hearing. In a proceeding under 10 CFR 52.103, the Commission, acting as the presiding officer, will grant the request if it determines that the requestor has standing under the provisions of paragraph (d) of this section and has proposed at least one ad-missible contention that meets the requirements of paragraph (f) of this section. For all other proceed-ings, except as provided in paragraph (e) of this section, the Commission, presiding officer, or the Atomic Safety and Licensing Board designated to rule on the request for hearing and/or petition for leave to intervene, will grant the request/petition if it determines that the requestor/petitioner has stand-ing under the provisions of paragraph (d) of this section and has proposed at least one admissible contention that meets the requirements of paragraph (f) of this section. In ruling on the request for hear-ing/petition to intervene submitted by petitioners seeking to intervene in the proceeding on the HLW repository, the Commission, the presiding officer, or the Atomic Safety and Licensing Board shall also consider any failure of the petitioner to parti-cipate as a potential party in the pre-license applic-ation phase under subpart J of this part in addition to the factors in paragraph (d) of this section. If a request for hearing or petition to intervene is filed in response to any notice of hearing or opportunity for hearing, the applicant/licensee shall be deemed to be a party.

(b) Timing. Unless specified elsewhere in this chapter or otherwise provided by the Commission, the request or petition and the list of contentions must be filed as follows:

(1) In proceedings for the direct or indirect transfer of control of an NRC license when the transfer requires prior approval of the NRC un-der the Commission's regulations, governing statute, or pursuant to a license condition, twenty (20) days from the date of publication of the notice in the Federal Register.

(2) In proceedings for the initial authorization to construct a high-level radioactive waste geo-logic repository, and the initial licensee to re-ceive and process high level radioactive waste at a geological repository operations area, thirty (30) days from the date of publication of the notice in the Federal Register.

(3) In proceedings for which a Federal Register notice of agency action is published (other than a proceeding covered by paragraphs (b)(1) or (b)(2) of this section), not later than:

(i) The time specified in any notice of hearing 10 C.F.R. § 2.309 Page 1

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ADD-8 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 88 of 115

or notice of proposed action or as provided by the presiding officer or the Atomic Safety and Licensing Board designated to rule on the re-quest and/or petition, which may not be less than sixty (60) days from the date of publica-tion of the notice in the Federal Register; or (ii) If no period is specified, sixty (60) days from the date of publication of the notice.

(iii) [Reserved by 73 FR 44620]

(4) In proceedings for which a Federal Register notice of agency action is not published, not later than the latest of:

(i) Sixty (60) days after publication of notice on the NRC Web site at ht-tp://www.nrc.gov/public-involve/major-actions

.html, or (ii) Sixty (60) days after the requestor receives actual notice of a pending application, but not more than sixty (60) days after agency action on the application.

(c) Filings after the deadline; submission of hearing request, intervention petition, or motion for leave to file new or amended contentions (1) Determination by presiding officer. Hearing requests, intervention petitions, and motions for leave to file new or amended contentions filed after the deadline in paragraph (b) of this section will not be entertained absent a determ-ination by the presiding officer that a parti-cipant has demonstrated good cause by show-ing that:

(i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the sub-sequent information.

(2) Applicability of §§ 2.307 and 2.323.

(i) Section 2.307 applies to requests to change a filing deadline (requested before or after that deadline has passed) based on reasons not re-lated to the substance of the filing.

(ii) Section 2.323 does not apply to hearing re-quests, intervention petitions, or motions for leave to file new or amended contentions filed after the deadline in paragraph (b) of this sec-tion.

(3) New petitioner. A hearing request or inter-vention petition filed after the deadline in para-graph (b) of this section must include a spe-cification of contentions if the petitioner seeks admission as a party, and must also demon-strate that the petitioner meets the applicable standing and contention admissibility require-ments in paragraphs (d) and (f) of this section.

(4) Party or participant. A new or amended contention filed by a party or participant to the proceeding must also meet the applicable con-tention admissibility requirements in paragraph (f) of this section. If the party or participant has already satisfied the requirements for standing under paragraph (d) of this section in the same proceeding in which the new or amended con-tentions are filed, it does not need to do so again.

10 C.F.R. § 2.309 Page 2

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(d) Standing.

(1) General requirements. A request for hearing or petition for leave to intervene must state:

(i) The name, address and telephone number of the requestor or petitioner; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii)

The nature and extent of the re-questor's/petitioner's property, financial or oth-er interest in the proceeding; and (iv) The possible effect of any decision or order that may be issued in the proceeding on the re-questor's/petitioner's interest.

(2) Rulings. In ruling on a request for hearing or petition for leave to intervene, the Commis-sion, the presiding officer, or the Atomic Safety and Licensing Board designated to rule on such requests must determine, among other things, whether the petitioner has an interest af-fected by the proceeding considering the factors enumerated in paragraph (d)(1) of this section.

(3) Standing in enforcement proceedings. In enforcement proceedings, the licensee or other person against whom the action is taken shall have standing.

(e) Discretionary Intervention. The presiding of-ficer may consider a request for discretionary inter-vention when at least one requestor/petitioner has established standing and at least one admissible contention has been admitted so that a hearing will be held. A requestor/petitioner may request that his or her petition be granted as a matter of discretion in the event that the petitioner is determined to lack standing to intervene as a matter of right under paragraph (d)(1) of this section. Accordingly, in ad-dition to addressing the factors in paragraph (d)(1) of this section, a petitioner who wishes to seek in-tervention as a matter of discretion in the event it is determined that standing as a matter of right is not demonstrated shall address the following factors in his/her initial petition, which the Commission, the presiding officer or the Atomic Safety and Licens-ing Board will consider and balance:

(1) Factors weighing in favor of allowing inter-vention (i)

The extent to which the re-questor's/petitioner's participation may reason-ably be expected to assist in developing a sound record; (ii)

The nature and extent of the re-questor's/petitioner's property, financial or oth-er interests in the proceeding; and (iii) The possible effect of any decision or or-der that may be issued in the proceeding on the requestor's/petitioner's interest; (2) Factors weighing against allowing interven-tion (i) The availability of other means whereby the requestor's/petitioner's interest will be protec-ted; (ii)

The extent to which the re-questor's/petitioner's interest will be represen-ted by existing parties; and (iii)

The extent to which the re-10 C.F.R. § 2.309 Page 3

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questor's/petitioner's participation will inappro-priately broaden the issues or delay the pro-ceeding.

(f) Contentions.

(1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted, provided further, that the issue of law or fact to be raised in a request for hearing under 10 CFR 52.103(b) must be directed at demonstrating that one or more of the acceptance criteria in the combined license have not been, or will not be met, and that the specific operational con-sequences of nonconformance would be con-trary to providing reasonable assurance of ad-equate protection of the public health and safety; (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 proceed-ing; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is in-volved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the re-questor's/petitioner's position on the issue and on which the petitioner intends to rely at hear-ing, 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 CFR 52.103, provide sufficient information to show that a genuine dispute exists with the ap-plicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant mat-ter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief; and (vii) In a proceeding under 10 CFR 52.103(b),

the information must be sufficient, and include supporting information showing, prima facie, that one or more of the acceptance criteria in the combined license have not been, or will not be met, and that the specific operational con-sequences of nonconformance would be con-trary to providing reasonable assurance of ad-equate protection of the public health and safety. This information must include the spe-cific portion of the report required by 10 CFR 52.99(c) which the requestor believes is inac-curate, incorrect, and/or incomplete (i.e., fails to contain the necessary information required by § 52.99(c)). If the requestor identifies a spe-cific portion of the § 52.99(c) report as incom-plete and the requestor contends that the in-complete portion prevents the requestor from making the necessary prima facie showing, then the requestor must explain why this defi-ciency prevents the requestor from making the prima facie showing.

(2) Contentions must be based on documents or 10 C.F.R. § 2.309 Page 4

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other information available at the time the peti-tion is to be filed, such as the application, sup-porting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the Na-tional Environmental Policy Act, participants shall file contentions based on the applicant's environmental report. Participants may file new or amended environmental contentions after the deadline in paragraph (b) of this section (e.g.,

based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) if the contention complies with the requirements in paragraph (c) of this section.

(3) If two or more requestors/petitioners seek to co-sponsor a contention, the requestors/peti-tioners shall jointly designate a representative who shall have the authority to act for the re-questors/petitioners with respect to that conten-tion. If a requestor/petitioner seeks to adopt the contention of another sponsoring requestor/pe-titioner, the requestor/petitioner who seeks to adopt the contention must either agree that the sponsoring requestor/petitioner shall act as the representative with respect to that contention, or jointly designate with the sponsoring re-questor/petitioner a representative who shall have the authority to act for the requestors/pe-titioners with respect to that contention.

(g) Selection of hearing procedures. A request for hearing and/or petition for leave to intervene may, except in a proceeding under 10 CFR 52.103, also address the selection of hearing procedures, taking into account the provisions of § 2.310. If a request/

petition relies upon § 2.310(d), the request/petition must demonstrate, by reference to the contention and the bases provided and the specific procedures in subpart G of this part, that resolution of the con-tention necessitates resolution of material issues of fact which may be best determined through the use of the identified procedures.

(h) Requirements applicable to States, local govern-mental bodies, and Federally-recognized Indian Tribes seeking party status.

(1) If a State, local governmental body (county, municipality or other subdivision), or Feder-ally-recognized Indian Tribe seeks to particip-ate as a party in a proceeding, it must submit a request for hearing or a petition to intervene containing at least one admissible contention, and must designate a single representative for the hearing. If a request for hearing or petition to intervene is granted, the Commission, the presiding officer or the Atomic Safety and Li-censing Board ruling on the request will admit as a party to the proceeding a single designated representative of the State, a single designated representative for each local governmental body (county, municipality or other subdivi-sion), and a single designated representative for each Federally-recognized Indian Tribe. Where a State's constitution provides that both the Governor and another State official or State governmental body may represent the interests of the State in a proceeding, the Governor and the other State official/government body will be considered separate participants.

(2) If the proceeding pertains to a production or utilization facility (as defined in § 50.2 of this chapter) located within the boundaries of the State, local governmental body, or Federally-recognized Indian Tribe seeking to participate as a party, no further demonstration of standing is required. If the production or utilization fa-cility is not located within the boundaries of the State, local governmental body, or Feder-ally-recognized Indian Tribe seeking to parti-cipate as a party, the State, local governmental body, or Federally-recognized Indian Tribe also must demonstrate standing.

10 C.F.R. § 2.309 Page 5

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(3) In any proceeding on an application for a construction authorization for a high-level ra-dioactive waste repository at a geologic repos-itory operations area under parts 60 or 63 of this chapter, or an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area under parts 60 or 63 of this chapter, the Com-mission shall permit intervention by the State and local governmental body (county, municip-ality or other subdivision) in which such an area is located and by any affected Federally-recognized Indian Tribe as defined in parts 60 or 63 of this chapter if the requirements of paragraph (f) of this section are satisfied with respect to at least one contention. All other pe-titions for intervention in any such proceeding must be reviewed under the provisions of para-graphs (a) through (f) of this section.

(i) Answers to hearing requests, intervention peti-tions, and motions for leave to file new or amended contentions filed after the deadline. Unless other-wise specified by the Commission, the presiding of-ficer, or the Atomic Safety and Licensing Board designated to rule on the request, petition, or mo-tion (1) The applicant/licensee, the NRC staff, and other parties to a proceeding may file an an-swer to a hearing request, intervention petition, or motion for leave to file amended or new contentions filed after the deadline in

§ 2.309(b) within 25 days after service of the re-quest, petition, or motion. Answers should ad-dress, at a minimum, the factors set forth in paragraphs (a) through (h) of this section inso-far as these sections apply to the filing that is the subject of the answer.

(2) Except in a proceeding under § 52.103 of this chapter, the participant who filed the hear-ing request, intervention petition, or motion for leave to file new or amended contentions after the deadline may file a reply to any answer.

The reply must be filed within 7 days after ser-vice of that answer.

(3) No other written answers or replies will be entertained.

(j) Decision on request/petition.

(1) In all proceedings other than a proceeding under § 52.103 of this chapter, the presiding of-ficer shall issue a decision on each request for hearing or petition to intervene within 45 days of the conclusion of the initial pre-hearing con-ference or, if no pre-hearing conference is con-ducted, within 45 days after the filing of an-swers and replies under paragraph (i) of this section. With respect to a request to admit amended or new contentions, the presiding of-ficer shall issue a decision on each such request within 45 days of the conclusion of any pre-hearing conference that may be conducted re-garding the proposed amended or new conten-tions or, if no pre-hearing conference is con-ducted, within 45 days after the filing of an-swers and replies, if any. In the event the presiding officer cannot issue a decision within 45 days, the presiding officer shall issue a no-tice advising the Commission and the parties, and the notice shall include the expected date of when the decision will issue.

(2) The Commission, acting as the presiding officer, shall expeditiously grant or deny the request for hearing in a proceeding under § 52.103 of this chapter. The Commission's de-cision may not be the subject of any appeal un-der § 2.311.

[72 FR 49474, Aug. 28, 2007; 73 FR 44620, July 31, 2008; 77 FR 46591, Aug. 3, 2012]

10 C.F.R. § 2.309 Page 6

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SOURCE: 27 FR 377, Jan. 13, 1962; 50 FR 41670, Oct. 15, 1985; 51 FR 7764, March 6, 1986; 51 FR 30839, Aug. 29, 1986; 52 FR 36218, Sept. 28, 1987; 52 FR 49369, Dec. 31, 1987; 53 FR 10365, March 31, 1988; 53 FR 31679, Aug. 19, 1988; 53 FR 40022, Oct. 13, 1988; 54 FR 8276, Feb. 28, 1989; 54 FR 27869, July 3, 1989; 56 FR 40684, Aug. 15, 1991; 57 FR 5797, Feb. 18, 1992; 57 FR 18390, April 30, 1992; 58 FR 44611, Aug. 24, 1993; 58 FR 50635, Sept. 28, 1993; 60 FR 20886, April 28, 1995; 60 FR 22491, May 8, 1995; 61 FR 43407, Aug. 22, 1996; 61 FR 53555, Oct. 11, 1996; 62 FR 6668, Feb. 12, 1997; 63 FR 66730, Dec. 3, 1998; 67 FR 57089, Sept. 6, 2002; 67 FR 72091, Dec. 4, 2002; 68 FR 58798, Oct. 10, 2003; 69 FR 2233, Jan. 14, 2004; 69 FR 2236, Jan. 14, 2004; 70 FR 61886, Oct. 27, 2005; 72 FR 49148, Aug. 28, 2007; 73 FR 63566, Oct. 24, 2008; 77 FR 39387, July 3, 2012; 77 FR 39903, July 6, 2012; 77 FR 46587, Aug. 3, 2012; 79 FR 75739, Dec. 19, 2014, unless otherwise noted.

AUTHORITY: Atomic Energy Act secs.161, 181, 191 (42 U.S.C. 2201, 2231, 2241); Energy Reor-ganization Act sec. 201 (42 U.S.C. 5841); 5 U.S.C.

552; Government Paperwork Elimination Act sec.

1704 (44 U.S.C. 3504 note).; Section 2.101 also is-sued under Atomic Energy Act secs. 53, 62, 63, 81, 103, 104 (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); Nuclear Waste Policy Act sec. 114(f)

(42 U.S.C.

10143(f));

National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Energy Reor-ganization Act sec. 301 (42 U.S.C. 5871).; Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under Atomic Energy Act secs. 102, 103, 104, 105, 183i, 189 (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239

). Sections 2.200-2.206 also issued under Atomic Energy Act secs. 161, 186, 234 (42 U.S.C. 2201(b),

(i), (o), 2236, 2282); sec. 206 (42 U.S.C. 5846).

Section 2.205(j) also issued under Pub.L. 101-410, as amended by section 3100(s), Pub.L. 104-134 (28 U.S.C. 2461 note). Subpart C also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Sec-tion 2.301 also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712 also issued under 5 U.S.C. 557.

Section 2.340 also issued under Nuclear Waste Policy Act secs. 135, 141, Pub.L.97-425, 96 Stat.

2232, 2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued under 5 U.S.C. 552. Sections 2.600-2.606 also issued under sec. 102 (42 U.S.C.

4332). Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553; Atomic Energy Act sec. 29 (42 U.S.C.

2039). Subpart K also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239); Nuclear Waste Policy Act sec. 134 (42 U.S.C. 10154). Subpart L also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Subpart M also issued under Atomic Energy Act sec. 184, 189 (42 U.S.C. 2234, 2239).

Subpart N also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239)..

10 C. F. R. § 2.309, 10 CFR § 2.309 Current through April 9, 2015; 80 FR 19036

© 2015 Thomson Reuters.

END OF DOCUMENT 10 C.F.R. § 2.309 Page 7

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ADD-14 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 94 of 115

Effective: September 4, 2012 Code of Federal Regulations Currentness Title 10. Energy Chapter I. Nuclear Regulatory Commission (Refs & Annos)

Part 2. Agency Rules of Practice and Pro-cedure (Refs & Annos)

Subpart C. Rules of General Applicabil-ity: Hearing Requests, Petitions to Inter-vene, Availability of Documents, Selection of Specific Hearing Procedures, Presiding Officer Powers, and General Hearing Man-agement for NRC Adjudicatory Hearings (Refs & Annos)

§ 2.335 Consideration of Commis-sion rules and regulations in adjudic-atory proceedings.

(a) Except as provided in paragraphs (b), (c), and (d) of this section, no rule or regulation of the Com-mission, or any provision thereof, concerning the li-censing of production and utilization facilities, source

material, special nuclear

material, or byproduct material, is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding subject to this part.

(b) A participant to an adjudicatory proceeding sub-ject to this part may petition that the application of a specified Commission rule or regulation or any provision thereof, of the type described in para-graph (a) of this section, be waived or an exception be made for the particular proceeding. The 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 a provision of it) would not serve the purposes for which the rule or regulation was adopted. The petition must be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation (or provision of it) would not serve the purposes for which the rule or regulation was adopted. The affidavit must state with particu-larity the special circumstances alleged to justify the waiver or exception requested. Any other parti-cipant may file a response by counter-affidavit or otherwise.

(c) If, on the basis of the petition, affidavit, and any response permitted under paragraph (b) of this sec-tion, the presiding officer determines that the peti-tioning participant has not made a prima facie showing that the application of the specific Com-mission rule or regulation (or provision thereof) to a particular aspect or aspects of the subject matter of the proceeding would not serve the purposes for which the rule or regulation was adopted and that application of the rule or regulation should be waived or an exception granted, no evidence may be received on that matter and no discovery, cross examination, or argument directed to the matter will be permitted, and the presiding officer may not further consider the matter.

(d) If, on the basis of the petition, affidavit and any response provided for in paragraph (b) of this sec-tion, the presiding officer determines that the prima facie showing required by paragraph (b) of this sec-tion has been made, the presiding officer shall, be-fore ruling on the petition, certify the matter dir-ectly to the Commission (the matter will be certi-fied to the Commission notwithstanding other pro-visions on certification in this part) for a determina-tion in the matter of whether the application of the Commission rule or regulation or provision thereof to a particular aspect or aspects of the subject mat-ter of the proceeding, in the context of this section, should be waived or an exception made. The Com-mission may, among other things, on the basis of the petition, affidavits, and any response, determine 10 C.F.R. § 2.335 Page 1

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ADD-15 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 95 of 115

whether the application of the specified rule or reg-ulation (or provision thereof) should be waived or an exception be made. The Commission may direct further proceedings as it considers appropriate to aid its determination.

(e) Whether or not the procedure in paragraph (b) of this section is available, a participant to an initial or renewal licensing proceeding may file a petition for rulemaking under § 2.802.

[77 FR 46593, Aug. 3, 2012]

SOURCE: 27 FR 377, Jan. 13, 1962; 50 FR 41670, Oct. 15, 1985; 51 FR 7764, March 6, 1986; 51 FR 30839, Aug. 29, 1986; 52 FR 36218, Sept. 28, 1987; 52 FR 49369, Dec. 31, 1987; 53 FR 10365, March 31, 1988; 53 FR 31679, Aug. 19, 1988; 53 FR 40022, Oct. 13, 1988; 54 FR 8276, Feb. 28, 1989; 54 FR 27869, July 3, 1989; 56 FR 40684, Aug. 15, 1991; 57 FR 5797, Feb. 18, 1992; 57 FR 18390, April 30, 1992; 58 FR 44611, Aug. 24, 1993; 58 FR 50635, Sept. 28, 1993; 60 FR 20886, April 28, 1995; 60 FR 22491, May 8, 1995; 61 FR 43407, Aug. 22, 1996; 61 FR 53555, Oct. 11, 1996; 62 FR 6668, Feb. 12, 1997; 63 FR 66730, Dec. 3, 1998; 67 FR 57089, Sept. 6, 2002; 67 FR 72091, Dec. 4, 2002; 68 FR 58798, Oct. 10, 2003; 69 FR 2233, Jan. 14, 2004; 69 FR 2236, Jan. 14, 2004; 70 FR 61886, Oct. 27, 2005; 72 FR 49148, Aug. 28, 2007; 73 FR 63566, Oct. 24, 2008; 77 FR 39387, July 3, 2012; 77 FR 39903, July 6, 2012; 77 FR 46587, Aug. 3, 2012; 79 FR 75739, Dec. 19, 2014, unless otherwise noted.

AUTHORITY: Atomic Energy Act secs.161, 181, 191 (42 U.S.C. 2201, 2231, 2241); Energy Reor-ganization Act sec. 201 (42 U.S.C. 5841); 5 U.S.C.

552; Government Paperwork Elimination Act sec.

1704 (44 U.S.C. 3504 note).; Section 2.101 also is-sued under Atomic Energy Act secs. 53, 62, 63, 81, 103, 104 (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); Nuclear Waste Policy Act sec. 114(f)

(42 U.S.C.

10143(f));

National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Energy Reor-ganization Act sec. 301 (42 U.S.C. 5871).; Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under Atomic Energy Act secs. 102, 103, 104, 105, 183i, 189 (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239

). Sections 2.200-2.206 also issued under Atomic Energy Act secs. 161, 186, 234 (42 U.S.C. 2201(b),

(i), (o), 2236, 2282); sec. 206 (42 U.S.C. 5846).

Section 2.205(j) also issued under Pub.L. 101-410, as amended by section 3100(s), Pub.L. 104-134 (28 U.S.C. 2461 note). Subpart C also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Sec-tion 2.301 also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712 also issued under 5 U.S.C. 557.

Section 2.340 also issued under Nuclear Waste Policy Act secs. 135, 141, Pub.L.97-425, 96 Stat.

2232, 2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued under 5 U.S.C. 552. Sections 2.600-2.606 also issued under sec. 102 (42 U.S.C.

4332). Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553; Atomic Energy Act sec. 29 (42 U.S.C.

2039). Subpart K also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239); Nuclear Waste Policy Act sec. 134 (42 U.S.C. 10154). Subpart L also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Subpart M also issued under Atomic Energy Act sec. 184, 189 (42 U.S.C. 2234, 2239).

Subpart N also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239)..

10 C. F. R. § 2.335, 10 CFR § 2.335 Current through April 9, 2015; 80 FR 19036

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END OF DOCUMENT 10 C.F.R. § 2.335 Page 2

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ADD-16 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 96 of 115

Effective: September 4, 2012 Code of Federal Regulations Currentness Title 10. Energy Chapter I. Nuclear Regulatory Commission (Refs & Annos)

Part 2. Agency Rules of Practice and Pro-cedure (Refs & Annos)

Subpart H. Rule Making

§ 2.802 Petition for rulemaking.

(a) Any interested person may petition the Commis-sion to issue, amend or rescind any regulation. The petition should be addressed to the Secretary, At-tention: Rulemakings and Adjudications Staff, and sent either by mail addressed to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by facsimile; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic sub-mission, for example, via Electronic Information Exchange, e-mail, or CD-ROM. Electronic submis-sions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on mak-ing electronic submissions can be obtained by visit-ing the NRC's Web site at ht-tp://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpub-lic information.

(b) A prospective petitioner may consult with the NRC before filing a petition for rulemaking by writing to the Chief, Rulemaking, Directives, and Editing Branch, U.S. Nuclear Regulatory Commis-sion, Washington, DC 20555-0001. A prospective petitioner also may telephone the Rulemaking, Dir-ectives, and Editing Branch on (301) 415-7163, or toll free on (800) 368-5642, or send e-mail to NR-CREP@nrc.gov.

(1) In any consultation prior to the filing of a petition for rulemaking, the assistance that may be provided by the NRC staff is limited to (i) Describing the procedure and process for filing and responding to a petition for rulemak-ing; (ii) Clarifying an existing NRC regulation and the basis for the regulation; and (iii) Assisting the prospective petitioner to cla-rify a potential petition so that the Commission is able to understand the nature of the issues of concern to the petitioner.

(2) In any consultation prior to the filing of a petition for rulemaking, in providing the assist-ance permitted in paragraph (b)(1) of this sec-tion, the NRC staff will not draft or develop text or alternative approaches to address mat-ters in the prospective petition for rulemaking.

(c) Each petition filed under this section shall:

(1) Set forth a general solution to the problem or the substance or text of any proposed regula-tion or amendment, or specify the regulation which is to be revoked or amended; (2) State clearly and concisely the petitioner's grounds for and interest in the action requested; 10 C.F.R. § 2.802 Page 1

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ADD-17 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 97 of 115

(3) Include a statement in support of the peti-tion which shall set forth the specific issues in-volved, the petitioner's views or arguments with respect to those issues, relevant technical, scientific or other data involved which is reas-onably available to the petitioner, and such oth-er pertinent information as the petitioner deems necessary to support the action sought. In sup-port of its petition, petitioner should note any specific cases of which petitioner is aware where the current rule is unduly burdensome, deficient, or needs to be strengthened.

(d) The petitioner may request the Commission to suspend all or any part of any licensing proceeding to which the petitioner is a participant pending dis-position of the petition for rulemaking.

(e) If it is determined that the petition includes the information required by paragraph (c) of this sec-tion and is complete, the Director, Division of Ad-ministrative Services, Office of Administration, or designee, will assign a docket number to the peti-tion, will cause the petition to be formally dock-eted, and will make a copy of the docketed petition available at the NRC Web site, http://www.nrc.gov.

Public comment may be requested by publication of a notice of the docketing of the petition in the Fed-eral Register, or, in appropriate cases, may be in-vited for the first time upon publication in the Fed-eral Register of a proposed rule developed in re-sponse to the petition. Publication will be limited by the requirements of Section 181 of the Atomic Energy Act of 1954, as amended, and may be lim-ited by order of the Commission.

(f) If it is determined by the Executive Director for Operations that the petition does not include the in-formation required by paragraph (c) of this section and is incomplete, the petitioner will be notified of that determination and the respects in which the pe-tition is deficient and will be accorded an opportun-ity to submit additional data. Ordinarily this de-termination will be made within 30 days from the date of receipt of the petition by the Office of the Secretary of the Commission. If the petitioner does not submit additional data to correct the deficiency within 90 days from the date of notification to the petitioner that the petition is incomplete, the peti-tion may be returned to the petitioner without preju-dice to the right of the petitioner to file a new peti-tion.

(g) The Director, Division of Administrative Ser-vices, Office of Administration, will prepare on a semiannual basis a summary of petitions for rule-making before the Commission, including the status of each petition. A copy of the report will be avail-able for public inspection and copying at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public Document Room.

[44 FR 61322, Oct. 25, 1979, as amended at 46 FR 35487, July 9, 1981; 52 FR 31609, Aug. 21, 1987; 53 FR 43419, Oct. 27, 1988; 53 FR 52993, Dec. 30, 1988; 54 FR 1288, Jan. 12, 1989; 54 FR 53315, Dec. 28, 1989; 56 FR 10360, March 12, 1991; 59 FR 44895, Aug. 31, 1994; 59 FR 60552, Nov. 25, 1994; 62 FR 27495, May 20, 1997; 63 FR 15742, April 1, 1998; 64 FR 48949, Sept. 9, 1999; 67 FR 57089, Sept. 6, 2002; 67 FR 72091, Dec. 4, 2002; 68 FR 58799, Oct. 10, 2003; 73 FR 5717, Jan. 31, 2008; 74 FR 62679, Dec. 1, 2009; 77 FR 46598, Aug. 3, 2012]

SOURCE: 27 FR 377, Jan. 13, 1962; 50 FR 41670, Oct. 15, 1985; 51 FR 7764, March 6, 1986; 51 FR 30839, Aug. 29, 1986; 52 FR 36218, Sept. 28, 1987; 52 FR 49369, Dec. 31, 1987; 53 FR 10365, March 31, 1988; 53 FR 31679, Aug. 19, 1988; 53 FR 40022, Oct. 13, 1988; 54 FR 8276, Feb. 28, 1989; 54 FR 27869, July 3, 1989; 56 FR 40684, Aug. 15, 1991; 57 FR 5797, Feb. 18, 1992; 57 FR 18390, April 30, 1992; 58 FR 44611, Aug. 24, 1993; 58 FR 50635, Sept. 28, 1993; 60 FR 20886, April 28, 1995; 60 FR 22491, May 8, 1995; 61 FR 10 C.F.R. § 2.802 Page 2

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ADD-18 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 98 of 115

43407, Aug. 22, 1996; 61 FR 53555, Oct. 11, 1996; 62 FR 6668, Feb. 12, 1997; 63 FR 66730, Dec. 3, 1998; 67 FR 57089, Sept. 6, 2002; 67 FR 72091, Dec. 4, 2002; 68 FR 58798, Oct. 10, 2003; 69 FR 2233, Jan. 14, 2004; 70 FR 61886, Oct. 27, 2005; 72 FR 49148, Aug. 28, 2007; 73 FR 63566, Oct. 24, 2008; 77 FR 39387, July 3, 2012; 77 FR 39903, Ju-ly 6, 2012; 77 FR 46587, Aug. 3, 2012; 79 FR 75739, Dec. 19, 2014, unless otherwise noted.

AUTHORITY: Atomic Energy Act secs.161, 181, 191 (42 U.S.C. 2201, 2231, 2241); Energy Reor-ganization Act sec. 201 (42 U.S.C. 5841); 5 U.S.C.

552; Government Paperwork Elimination Act sec.

1704 (44 U.S.C. 3504 note).; Section 2.101 also is-sued under Atomic Energy Act secs. 53, 62, 63, 81, 103, 104 (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); Nuclear Waste Policy Act sec. 114(f)

(42 U.S.C.

10143(f));

National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Energy Reor-ganization Act sec. 301 (42 U.S.C. 5871).; Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under Atomic Energy Act secs. 102, 103, 104, 105, 183i, 189 (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239

). Sections 2.200-2.206 also issued under Atomic Energy Act secs. 161, 186, 234 (42 U.S.C. 2201(b),

(i), (o), 2236, 2282); sec. 206 (42 U.S.C. 5846).

Section 2.205(j) also issued under Pub.L. 101-410, as amended by section 3100(s), Pub.L. 104-134 (28 U.S.C. 2461 note). Subpart C also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Sec-tion 2.301 also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712 also issued under 5 U.S.C. 557.

Section 2.340 also issued under Nuclear Waste Policy Act secs. 135, 141, Pub.L.97-425, 96 Stat.

2232, 2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued under 5 U.S.C. 552. Sections 2.600-2.606 also issued under sec. 102 (42 U.S.C.

4332). Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553; Atomic Energy Act sec. 29 (42 U.S.C.

2039). Subpart K also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239); Nuclear Waste Policy Act sec. 134 (42 U.S.C. 10154). Subpart L also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Subpart M also issued under Atomic Energy Act sec. 184, 189 (42 U.S.C. 2234, 2239).

Subpart N also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239)..

10 C. F. R. § 2.802, 10 CFR § 2.802 Current through April 9, 2015; 80 FR 19036

© 2015 Thomson Reuters.

END OF DOCUMENT 10 C.F.R. § 2.802 Page 3

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ADD-19 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 99 of 115

Effective: December 10, 2014 Code of Federal Regulations Currentness Title 10. Energy Chapter I. Nuclear Regulatory Commission (Refs & Annos)

Part 51. Environmental Protection Regula-tions for Domestic Licensing and Related Regulatory Functions (Refs & Annos)

Subpart A. National Environmental Policy ActRegulations Implementing Section 102(2)

Environmental Reports and Informa-tionRequirements Applicable to Ap-plicants and Petitioners for Rulemaking Environmental Re-portsProduction and Utilization Fa-cilities

§ 51.53 Postconstruction envir-onmental reports.

(a) General. Any environmental report prepared un-der the provisions of this section may incorporate by reference any information contained in a prior environmental report or supplement thereto that relates to the production or utilization facility or site, or any information contained in a final envir-onmental document previously prepared by the NRC staff that relates to the production or utiliza-tion facility or site. Documents that may be refer-enced include, but are not limited to, the final en-vironmental impact statement; supplements to the final environmental impact statement, including supplements prepared at the license renewal stage; NRC staff-prepared final generic environmental im-pact statements; and environmental assessments and records of decisions prepared in connection with the construction permit, operating license, early site permit, combined license and any license amendment for that facility.

(b) Operating license stage. Each applicant for a li-cense to operate a production or utilization facility covered by § 51.20 shall submit with its application a separate document entitled Supplement to Ap-plicant's Environmental ReportOperating License Stage, which will update Applicant's Environ-mental ReportConstruction Permit Stage. Unless otherwise required by the Commission, the applic-ant for an operating license for a nuclear power re-actor shall submit this report only in connection with the first licensing action authorizing full-power operation. In this report, the applicant shall discuss the same matters described in §§ 51.45, 51.51, and 51.52, but only to the extent that they differ from those discussed or reflect new informa-tion in addition to that discussed in the final envir-onmental impact statement prepared by the Com-mission in connection with the construction permit.

No discussion of need for power, or of alternative energy sources, or of alternative sites for the facil-ity, is required in this report. As stated in § 51.23, no discussion of the environmental impacts of the continued storage of spent fuel is required in this report.

(c) Operating license renewal stage.

(1) Each applicant for renewal of a license to operate a nuclear power plant under part 54 of this chapter shall submit with its application a separate document entitled Applicant's Envir-onmental ReportOperating License Renewal Stage.

(2) The report must contain a description of the proposed action, including the applicant's plans to modify the facility or its administrative con-trol procedures as described in accordance with

§ 54.21 of this chapter. This report must de-scribe in detail the affected environment around the plant, the modifications directly af-fecting the environment or any plant effluents, 10 C.F.R. § 51.53 Page 1

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ADD-20 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 100 of 115

and any planned refurbishment activities. In addition, the applicant shall discuss in this re-port the environmental impacts of alternatives and any other matters described in § 51.45. The report is not required to include discussion of need for power or the economic costs and eco-nomic benefits of the proposed action or of al-ternatives to the proposed action except insofar as such costs and benefits are either essential for a determination regarding the inclusion of an alternative in the range of alternatives con-sidered or relevant to mitigation. The environ-mental report need not discuss other issues not related to the environmental effects of the pro-posed action and the alternatives. As stated in § 51.23, no discussion of the environmental im-pacts of the continued storage of spent fuel is required in this report.

(3) For those applicants seeking an initial re-newed license and holding an operating license, construction permit, or combined license as of June 30, 1995, the environmental report shall include the information required in paragraph (c)(2) of this section subject to the following conditions and considerations:

(i) The environmental report for the operating license renewal stage is not required to contain analyses of the environmental impacts of the li-cense renewal issues identified as Category 1 issues in appendix B to subpart A of this part.

(ii) The environmental report must contain ana-lyses of the environmental impacts of the pro-posed action, including the impacts of refur-bishment activities, if any, associated with li-cense renewal and the impacts of operation during the renewal term, for those issues identi-fied as Category 2 issues in appendix B to sub-part A of this part. The required analyses are as follows:

(A) If the applicant's plant utilizes cooling towers or cooling ponds and withdraws makeup water from a river, an assessment of the impact of the proposed action on water availability and competing water de-mands, the flow of the river, and related impacts on stream (aquatic) and riparian (terrestrial) ecological communities must be provided.

The applicant shall also provide an assessment of the impacts of the withdrawal of water from the river on alluvial aquifers during low flow.

(B) If the applicant's plant utilizes once-through cooling or cooling pond heat dis-sipation

systems, the applicant shall provide a copy of current Clean Water Act 316(b) determinations and, if necessary, a 316(a) variance in accordance with 40 CFR part 125, or equivalent State permits and supporting documentation. If the ap-plicant cannot provide these documents, it shall assess the impact of the proposed ac-tion on fish and shellfish resources result-ing from thermal changes and impinge-ment and entrainment.

(C) If the applicant's plant pumps more than 100 gallons (total onsite) of ground-water per minute, an assessment of the im-pact of the proposed action on groundwater must be provided.

(D) If the applicant's plant is located at an inland site and utilizes cooling ponds, an assessment of the impact of the proposed action on groundwater quality must be provided.

(E) All license renewal applicants shall as-sess the impact of refurbishment, contin-ued operations, and other license-renew-al-related construction activities on import-10 C.F.R. § 51.53 Page 2

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ADD-21 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 101 of 115

ant plant and animal habitats. Additionally, the applicant shall assess the impact of the proposed action on threatened or en-dangered species in accordance with Fed-eral laws protecting wildlife, including but not limited to, the Endangered Species Act, and essential fish habitat in accordance with the Magnuson-Stevens Fishery Con-servation and Management Act.

(F) [Reserved by 78 FR 37316]

(G) If the applicant's plant uses a cooling pond, lake, or canal or discharges into a river, an assessment of the impact of the proposed action on public health from ther-mophilic organisms in the affected water must be provided.

(H) If the applicant's transmission lines that were constructed for the specific pur-pose of connecting the plant to the trans-mission system do not meet the recom-mendations of the National Electric Safety Code for preventing electric shock from in-duced currents, an assessment of the im-pact of the proposed action on the potential shock hazard from the transmission lines must be provided.

(I), (J) [Reserved by 78 FR 37316]

(K) All applicants shall identify any poten-tially affected historic or archaeological properties and assess whether any of these properties will be affected by future plant operations and any planned refurbishment activities in accordance with the National Historic Preservation Act.

(L) If the staff has not previously con-sidered severe accident mitigation alternat-ives for the applicant's plant in an environ-mental impact statement or related supple-ment or in an environmental assessment, a consideration of alternatives to mitigate severe accidents must be provided.

(M) [Reserved]

(N) Applicants shall provide information on the general demographic composition of minority and low-income populations and communities (by race and ethnicity) resid-ing in the immediate vicinity of the plant that could be affected by the renewal of the plant's operating license, including any planned refurbishment activities, and on-going and future plant operations.

(O) Applicants shall provide information about other past, present, and reasonably foreseeable future actions occurring in the vicinity of the nuclear plant that may result in a cumulative effect.

(P) An applicant shall assess the impact of any documented inadvertent releases of ra-dionuclides into groundwater. The applic-ant shall include in its assessment a de-scription of any groundwater protection program used for the surveillance of piping and components containing radioactive li-quids for which a pathway to groundwater may exist. The assessment must also in-clude a description of any past inadvertent releases and the projected impact to the en-vironment (e.g., aquifers, rivers, lakes, ponds, ocean) during the license renewal term.

(iii) The report must contain a consideration of alternatives for reducing adverse impacts, as required by § 51.45(c), for all Category 2 li-10 C.F.R. § 51.53 Page 3

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ADD-22 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 102 of 115

cense renewal issues in appendix B to subpart A of this part. No such consideration is re-quired for Category 1 issues in appendix B to subpart A of this part.

(iv) The environmental report must contain any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware.

(d) Postoperating license stage. Each applicant for a license amendment authorizing decommissioning activities for a production or utilization facility either for unrestricted use or based on continuing use restrictions applicable to the site; and each ap-plicant for a license amendment approving a license termination plan or decommissioning plan under § 50.82 of this chapter either for unrestricted use or based on continuing use restrictions applicable to the site; and each applicant for a license or license amendment to store spent fuel at a nuclear power reactor after expiration of the operating license for the nuclear power reactor shall submit with its ap-plication a

separate

document, entitled Supplement to Applicant's Environmental Re-portPost Operating License Stage, which will update Applicant's Environmental Re-portOperating License Stage, as appropriate, to reflect any new information or significant environ-mental change associated with the applicant's pro-posed decommissioning activities or with the ap-plicant's proposed activities with respect to the planned storage of spent fuel. As stated in § 51.23, no discussion of the environmental impacts of the continued storage of spent fuel is required in this report. The Supplement to Applicant's Environ-mental ReportPost Operating License Stage may incorporate by reference any information contained in Applicant's Environmental Re-portConstruction Permit Stage.

[49 FR 34694, Aug. 31, 1984; 53 FR 24052, June 27, 1988; 61 FR 28487, June 5, 1996; 61 FR 37351, July 18, 1996; 61 FR 39304, July 29, 1996; 61 FR 66542, Dec. 18, 1996; 64 FR 48506, Sept. 3, 1999; 68 FR 58810, Oct. 10, 2003; 72 FR 49513, Aug. 28, 2007; 78 FR 37316, June 20, 2013; 79 FR 56260, Sept. 19, 2014; 79 FR 66604, Nov. 10, 2014]

SOURCE: 39 FR 26279, July 18, 1974; 49 FR 9381

, March 12, 1984; 53 FR 31681, Aug. 19, 1988; 54 FR 27869, July 3, 1989; 57 FR 18391, April 30, 1992; 59 FR 48959, Sept. 23, 1994; 60 FR 22491, May 8, 1995; 65 FR 54950, Sept. 12, 2000; 67 FR 57099, Sept. 6, 2002; 67 FR 72091, Dec. 4, 2002; 68 FR 58810, Oct. 10, 2003; 77 FR 39907, July 6, 2012; 78 FR 37316, June 20, 2013; 78 FR 46256, July 31, 2013; 79 FR 75740, Dec. 19, 2014, unless otherwise noted.

AUTHORITY: Atomic Energy Act sec. 161, 1701 (

42 U.S.C. 2201, 2297f); Energy Reorganization Act secs. 201, 202, 211 (42 U.S.C. 5841, 5842, 5851);

Government Paperwork Elimination Act sec. 1704 (

44 U.S.C. 3504 note). Subpart A also issued under National Environmental Policy Act secs. 102, 104, 105 (42 U.S.C. 4332, 4334, 4335); Pub.L.95-604, Title II, 92 Stat. 3033-3041; Atomic Energy Act sec. 193 (42 U.S.C. 2243). Sections 51.20, 51.30, 51.60, 51.80, and 51.97 also issued under Nuclear Waste Policy Act secs. 135, 141, 148 (42 U.S.C.

10155, 10161, 10168). Section 51.22 also issued under Atomic Energy Act sec. 274 (42 U.S.C. 2021

) and under Nuclear Waste Policy Act sec. 121 (42 U.S.C. 10141). Sections 51.43, 51.67, and 51.109 also issued under Nuclear Waste Policy Act sec.

114(f) (42 U.S.C. 10134(f)).

10 C. F. R. § 51.53, 10 CFR § 51.53 Current through April 9, 2015; 80 FR 19036

© 2015 Thomson Reuters.

END OF DOCUMENT 10 C.F.R. § 51.53 Page 4

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ADD-23 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 103 of 115

Effective:[See Text Amendments]

Code of Federal Regulations Currentness Title 10. Energy Chapter I. Nuclear Regulatory Commission (Refs & Annos)

Part 51. Environmental Protection Regula-tions for Domestic Licensing and Related Regulatory Functions (Refs & Annos)

Subpart A. National Environmental Policy ActRegulations Implementing Section 102(2)

Environmental Impact Statements Final Environmental Impact State-mentsGeneral Requirements

§ 51.94 Requirement to con-sider final environmental impact statement.

The final environmental impact statement, together with any comments and any supplement, will ac-company the application or petition for rulemaking through, and be considered in, the Commission's decisionmaking process. The final environmental impact statement, together with any comments and any supplement, will be made a part of the record of the appropriate adjudicatory or rulemaking pro-ceeding.

SOURCE: 39 FR 26279, July 18, 1974; 49 FR 9381

, March 12, 1984; 53 FR 31681, Aug. 19, 1988; 54 FR 27869, July 3, 1989; 57 FR 18391, April 30, 1992; 59 FR 48959, Sept. 23, 1994; 60 FR 22491, May 8, 1995; 65 FR 54950, Sept. 12, 2000; 67 FR 57099, Sept. 6, 2002; 67 FR 72091, Dec. 4, 2002; 68 FR 58810, Oct. 10, 2003; 77 FR 39907, July 6, 2012; 78 FR 37316, June 20, 2013; 78 FR 46256, July 31, 2013; 79 FR 75740, Dec. 19, 2014, unless otherwise noted.

AUTHORITY: Atomic Energy Act sec. 161, 1701 (

42 U.S.C. 2201, 2297f); Energy Reorganization Act secs. 201, 202, 211 (42 U.S.C. 5841, 5842, 5851);

Government Paperwork Elimination Act sec. 1704 (

44 U.S.C. 3504 note). Subpart A also issued under National Environmental Policy Act secs. 102, 104, 105 (42 U.S.C. 4332, 4334, 4335); Pub.L.95-604, Title II, 92 Stat. 3033-3041; Atomic Energy Act sec. 193 (42 U.S.C. 2243). Sections 51.20, 51.30, 51.60, 51.80, and 51.97 also issued under Nuclear Waste Policy Act secs. 135, 141, 148 (42 U.S.C.

10155, 10161, 10168). Section 51.22 also issued under Atomic Energy Act sec. 274 (42 U.S.C. 2021

) and under Nuclear Waste Policy Act sec. 121 (42 U.S.C. 10141). Sections 51.43, 51.67, and 51.109 also issued under Nuclear Waste Policy Act sec.

114(f) (42 U.S.C. 10134(f)).

10 C. F. R. § 51.94, 10 CFR § 51.94 Current through April 9, 2015; 80 FR 19036

© 2015 Thomson Reuters.

END OF DOCUMENT 10 C.F.R. § 51.94 Page 1

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ADD-24 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 104 of 115

Effective: October 20, 2014 Code of Federal Regulations Currentness Title 10. Energy Chapter I. Nuclear Regulatory Commission (Refs & Annos)

Part 51. Environmental Protection Regula-tions for Domestic Licensing and Related Regulatory Functions (Refs & Annos)

Subpart A. National Environmental Policy ActRegulations Implementing Section 102(2)

Environmental Impact Statements Final Environmental Impact State-mentsProduction and Utilization Fa-cilities

§ 51.95 Postconstruction envir-onmental impact statements.

(a) General. Any supplement to a final environ-mental impact statement or any environmental as-sessment prepared under the provisions of this sec-tion may incorporate by reference any information contained in a final environmental document previ-ously prepared by the NRC staff that relates to the same production or utilization facility. Documents that may be referenced include, but are not limited to, the final environmental impact statement; sup-plements to the final environmental impact state-ment, including supplements prepared at the operat-ing license stage; NRC staff-prepared final generic environmental impact statements; environmental assessments and records of decisions prepared in connection with the construction permit, the operat-ing license, the early site permit, or the combined license and any license amendment for that facility.

A supplement to a final environmental impact state-ment will include a request for comments as provided in § 51.73.

(b) Initial operating license stage. In connection with the issuance of an operating license for a pro-duction or utilization facility, the NRC staff will prepare a supplement to the final environmental im-pact statement on the construction permit for that facility, which will update the prior environmental review. The supplement will only cover matters that differ from the final environmental impact statement or that reflect significant new information concerning matters discussed in the final environ-mental impact statement. Unless otherwise determ-ined by the Commission, a supplement on the oper-ation of a nuclear power plant will not include a discussion of need for power, or of alternative en-ergy sources, or of alternative sites, and will only be prepared in connection with the first licensing action authorizing full-power operation. As stated in § 51.23, the generic impact determinations re-garding the continued storage of spent fuel in NUREG-2157 shall be deemed incorporated into the environmental impact statement.

(c) Operating license renewal stage. In connection with the renewal of an operating license or com-bined license for a nuclear power plant under 10 CFR parts 52 or 54 of this chapter, the Commission shall prepare an environmental impact statement, which is a

supplement to the Commission's NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013), which is available in the NRC's Public Document Room, 11555 Rockville Pike, Rockville, Maryland 20852.

(1) The supplemental environmental impact statement for the operating license renewal stage shall address those issues as required by § 51.71. In addition, the NRC staff must comply with 40 CFR 1506.6(b)(3) in conducting the additional scoping process as required by § 51.71(a).

(2) The supplemental environmental impact 10 C.F.R. § 51.95 Page 1

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ADD-25 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 105 of 115

statement for license renewal is not required to include discussion of need for power or the economic costs and economic benefits of the proposed action or of alternatives to the pro-posed action except insofar as such benefits and costs are either essential for a determina-tion regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation. In addition, the supplemental en-vironmental impact statement prepared at the license renewal stage need not discuss other is-sues not related to the environmental effects of the proposed action and the alternatives. The analysis of alternatives in the supplemental en-vironmental impact statement should be limited to the environmental impacts of such alternat-ives and should otherwise be prepared in ac-cordance with § 51.71 and appendix A to sub-part A of this part. As stated in § 51.23, the generic impact determinations regarding the continued storage of spent fuel in NUREG-2157 shall be deemed incorporated into the supplemental environmental impact statement.

(3) The supplemental environmental impact statement shall be issued as a final impact statement in accordance with §§ 51.91 and 51.93 after considering any significant new in-formation relevant to the proposed action con-tained in the supplement or incorporated by reference.

(4) The supplemental environmental impact statement must contain the NRC staff's recom-mendation regarding the environmental accept-ability of the license renewal action. In order to make recommendations and reach a final de-cision on the proposed action, the NRC staff, adjudicatory officers, and Commission shall in-tegrate the conclusions in the generic environ-mental impact statement for issues designated as Category 1 with information developed for those Category 2 issues applicable to the plant under § 51.53(c)(3)(ii) and any new and signi-ficant information. Given this information, the NRC staff, adjudicatory officers, and Commis-sion shall determine whether or not the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers would be unreasonable.

(d) Postoperating license stage. In connection with the amendment of an operating or combined license authorizing decommissioning activities at a produc-tion or utilization facility covered by § 51.20, either for unrestricted use or based on continuing use re-strictions applicable to the site, or with the issu-ance, amendment or renewal of a license to store spent fuel at a nuclear power reactor after expira-tion of the operating or combined license for the nuclear power reactor, the NRC staff will prepare a supplemental environmental impact statement for the post operating or post combined license stage or an environmental assessment, as appropriate, which will update the prior environmental documentation prepared by the NRC for compliance with NEPA under the provisions of this part. The supplement or assessment may incorporate by reference any in-formation contained in the final environmental im-pact statementfor the operating or combined li-cense stage, as appropriate, or in the records of de-cision prepared in connection with the early site permit, construction permit, operating license, or combined license for that facility. The supplement will include a request for comments as provided in

§ 51.73. As stated in § 51.23, the generic impact determinations regarding the continued storage of spent fuel in NUREG-2157 shall be deemed incor-porated into the supplemental environmental impact statement or shall be considered in the environ-mental assessment, if the impacts of continued stor-age of spent fuel are applicable to the proposed ac-tion.

[49 FR 34695, Aug. 31, 1984; 53 FR 24052, June 27, 1988; 61 FR 28489, June 5, 1996; 61 FR 37351, 10 C.F.R. § 51.95 Page 2

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ADD-26 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 106 of 115

July 18, 1996; 61 FR 39304, July 29, 1996; 61 FR 39555, July 30, 1996; 61 FR 66545, Dec. 18, 1996; 72 FR 49516, Aug. 28, 2007; 78 FR 37317, June 20, 2013; 79 FR 56262, Sept. 19, 2014]

SOURCE: 39 FR 26279, July 18, 1974; 49 FR 9381

, March 12, 1984; 53 FR 31681, Aug. 19, 1988; 54 FR 27869, July 3, 1989; 57 FR 18391, April 30, 1992; 59 FR 48959, Sept. 23, 1994; 60 FR 22491, May 8, 1995; 65 FR 54950, Sept. 12, 2000; 67 FR 57099, Sept. 6, 2002; 67 FR 72091, Dec. 4, 2002; 68 FR 58810, Oct. 10, 2003; 77 FR 39907, July 6, 2012; 78 FR 37316, June 20, 2013; 78 FR 46256, July 31, 2013; 79 FR 75740, Dec. 19, 2014, unless otherwise noted.

AUTHORITY: Atomic Energy Act sec. 161, 1701 (

42 U.S.C. 2201, 2297f); Energy Reorganization Act secs. 201, 202, 211 (42 U.S.C. 5841, 5842, 5851);

Government Paperwork Elimination Act sec. 1704 (

44 U.S.C. 3504 note). Subpart A also issued under National Environmental Policy Act secs. 102, 104, 105 (42 U.S.C. 4332, 4334, 4335); Pub.L.95-604, Title II, 92 Stat. 3033-3041; Atomic Energy Act sec. 193 (42 U.S.C. 2243). Sections 51.20, 51.30, 51.60, 51.80, and 51.97 also issued under Nuclear Waste Policy Act secs. 135, 141, 148 (42 U.S.C.

10155, 10161, 10168). Section 51.22 also issued under Atomic Energy Act sec. 274 (42 U.S.C. 2021

) and under Nuclear Waste Policy Act sec. 121 (42 U.S.C. 10141). Sections 51.43, 51.67, and 51.109 also issued under Nuclear Waste Policy Act sec.

114(f) (42 U.S.C. 10134(f)).

10 C. F. R. § 51.95, 10 CFR § 51.95 Current through April 9, 2015; 80 FR 19036

© 2015 Thomson Reuters.

END OF DOCUMENT 10 C.F.R. § 51.95 Page 3

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ADD-27 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 107 of 115

61 Nuclear Regulatory Commission Pt. 51, Subpt. A, App. B when the statements adequacy is the sub-ject of a judicial action which is not final, the agency shall so specify.

[49 FR 9381, Mar. 12, 1984, as amended at 61 FR 28490, June 5, 1996; 61 FR 66546, Dec. 18, 1996]

APPENDIX B TO SUBPART A OF PART 51 ENVIRONMENTAL EFFECT OF RENEW-ING THE OPERATING LICENSE OF A NUCLEAR POWER PLANT The Commission has assessed the environ-mental impacts associated with granting a renewed operating license for a nuclear power plant to a licensee who holds either an operating license or construction permit as of June 30, 1995. Table B-1 summarizes the Commissions findings on the scope and mag-nitude of environmental impacts of renewing the operating license for a nuclear power plant as required by section 102(2) of the Na-tional Environmental Policy Act of 1969, as amended. Table B-1, subject to an evaluation of those issues identified in Category 2 as re-quiring further analysis and possible signifi-cant new information, represents the anal-ysis of the environmental impacts associated with renewal of any operating license and is to be used in accordance with § 51.95(c). On a 10-year cycle, the Commission intends to re-view the material in this appendix and up-date it if necessary. A scoping notice must be published in the FEDERAL REGISTER indi-cating the results of the NRCs review and inviting public comments and proposals for other areas that should be updated.

TABLE B-1

SUMMARY

OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1 Issue Category 2 Finding 3 Land Use Onsite land use.................................

Offsite land use.................................

Offsite land use in transmission line right-of-ways (ROWs) 4.

1 1

1 SMALL. Changes in onsite land use from continued operations and refur-bishment associated with license renewal would be a small fraction of the nuclear power plant site and would involve only land that is con-trolled by the licensee.

SMALL. Offsite land use would not be affected by continued operations and refurbishment associated with license renewal.

SMALL. Use of transmission line ROWs from continued operations and refurbishment associated with license renewal would continue with no change in land use restrictions.

Visual Resources Aesthetic impacts..............................

1 SMALL. No important changes to the visual appearance of plant struc-tures or transmission lines are expected from continued operations and refurbishment associated with license renewal.

Air Quality Air quality impacts (all plants)...........

Air quality effects of transmission lines 4.

1 1

SMALL. Air quality impacts from continued operations and refurbishment associated with license renewal are expected to be small at all plants.

Emissions resulting from refurbishment activities at locations in or near air quality nonattainment or maintenance areas would be short-lived and would cease after these refurbishment activities are completed. Op-erating experience has shown that the scale of refurbishment activities has not resulted in exceedance of the de minimis thresholds for criteria pollutants, and best management practices including fugitive dust con-trols and the imposition of permit conditions in State and local air emis-sions permits would ensure conformance with applicable State or Tribal Implementation Plans.

Emissions from emergency diesel generators and fire pumps and routine operations of boilers used for space heating would not be a concern, even for plants located in or adjacent to nonattainment areas. Impacts from cooling tower particulate emissions even under the worst-case sit-uations have been small.

SMALL. Production of ozone and oxides of nitrogen is insignificant and does not contribute measurably to ambient levels of these gases.

Noise Noise impacts....................................

1 SMALL. Noise levels would remain below regulatory guidelines for offsite receptors during continued operations and refurbishment associated with license renewal.

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62 Pt. 51, Subpt. A, App. B 10 CFR Ch. I (1-1-14 Edition)

TABLE B-1

SUMMARY

OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1Continued Issue Category 2 Finding 3 Geologic Environment Geology and soils..............................

1 SMALL. The effect of geologic and soil conditions on plant operations and the impact of continued operations and refurbishment activities on geol-ogy and soils would be small for all nuclear power plants and would not change appreciably during the license renewal term.

Surface Water Resources Surface water use and quality (non-cooling system impacts).

Altered current patterns at intake and discharge structures.

Altered salinity gradients...................

Altered thermal stratification of lakes Scouring caused by discharged cool-ing water.

Discharge of metals in cooling sys-tem effluent.

Discharge of biocides, sanitary wastes, and minor chemical spills.

Surface water use conflicts (plants with once-through cooling sys-tems).

Surface water use conflicts (plants with cooling ponds or cooling tow-ers using makeup water from a river).

Effects of dredging on surface water quality.

Temperature effects on sediment transport capacity.

1 1

1 1

1 1

1 1

2 1

1 SMALL. Impacts are expected to be small if best management practices are employed to control soil erosion and spills. Surface water use asso-ciated with continued operations and refurbishment associated with li-cense renewal would not increase significantly or would be reduced if refurbishment occurs during a plant outage.

SMALL. Altered current patterns would be limited to the area in the vicin-ity of the intake and discharge structures. These impacts have been small at operating nuclear power plants.

SMALL. Effects on salinity gradients would be limited to the area in the vi-cinity of the intake and discharge structures. These impacts have been small at operating nuclear power plants.

SMALL. Effects on thermal stratification would be limited to the area in the vicinity of the intake and discharge structures. These impacts have been small at operating nuclear power plants.

SMALL. Scouring effects would be limited to the area in the vicinity of the intake and discharge structures. These impacts have been small at op-erating nuclear power plants.

SMALL. Discharges of metals have not been found to be a problem at op-erating nuclear power plants with cooling-tower-based heat dissipation systems and have been satisfactorily mitigated at other plants. Dis-charges are monitored and controlled as part of the National Pollutant Discharge Elimination System (NPDES) permit process.

SMALL. The effects of these discharges are regulated by Federal and State environmental agencies. Discharges are monitored and controlled as part of the NPDES permit process. These impacts have been small at operating nuclear power plants.

SMALL. These conflicts have not been found to be a problem at operating nuclear power plants with once-through heat dissipation systems.

SMALL or MODERATE. Impacts could be of small or moderate signifi-cance, depending on makeup water requirements, water availability, and competing water demands.

SMALL. Dredging to remove accumulated sediments in the vicinity of in-take and discharge structures and to maintain barge shipping has not been found to be a problem for surface water quality. Dredging is per-formed under permit from the U.S. Army Corps of Engineers, and pos-sibly, from other State or local agencies.

SMALL. These effects have not been found to be a problem at operating nuclear power plants and are not expected to be a problem.

Groundwater Resources Groundwater contamination and use (non-cooling system impacts).

1 Groundwater use conflicts (plants that withdraw less than 100 gal-lons per minute [gpm]).

Groundwater use conflicts (plants that withdraw more than 100 gal-lons per minute [gpm]).

SMALL. Extensive dewatering is not anticipated from continued operations and refurbishment associated with license renewal. Industrial practices involving the use of solvents, hydrocarbons, heavy metals, or other chemicals, and/or the use of wastewater ponds or lagoons have the po-tential to contaminate site groundwater, soil, and subsoil. Contamination is subject to State or Environmental Protection Agency regulated clean-up and monitoring programs. The application of best management prac-tices for handling any materials produced or used during these activities would reduce impacts.

1 SMALL. Plants that withdraw less than 100 gpm are not expected to cause any groundwater use conflicts.

2 SMALL, MODERATE, or LARGE. Plants that withdraw more than 100 gpm could cause groundwater use conflicts with nearby groundwater users.

ADD-29 USCA Case #14-1225 Document #1548745 Filed: 04/22/2015 Page 109 of 115

63 Nuclear Regulatory Commission Pt. 51, Subpt. A, App. B TABLE B-1

SUMMARY

OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1Continued Issue Category 2 Finding 3 Groundwater use conflicts (plants with closed-cycle cooling systems that withdraw makeup water from a river).

Groundwater quality degradation re-sulting from water withdrawals.

Groundwater quality degradation (plants with cooling ponds in salt marshes).

Groundwater quality degradation (plants with cooling ponds at in-land sites).

Radionuclides released to ground-water.

2 1

1 2

2 SMALL, MODERATE, or LARGE. Water use conflicts could result from water withdrawals from rivers during low-flow conditions, which may af-fect aquifer recharge. The significance of impacts would depend on makeup water requirements, water availability, and competing water de-mands.

SMALL. Groundwater withdrawals at operating nuclear power plants would not contribute significantly to groundwater quality degradation.

SMALL. Sites with closed-cycle cooling ponds could degrade groundwater quality. However, groundwater in salt marshes is naturally brackish and thus, not potable. Consequently, the human use of such groundwater is limited to industrial purposes.

SMALL, MODERATE, or LARGE. Inland sites with closed-cycle cooling ponds could degrade groundwater quality. The significance of the im-pact would depend on cooling pond water quality, site hydrogeologic conditions (including the interaction of surface water and groundwater),

and the location, depth, and pump rate of water wells.

SMALL or MODERATE. Leaks of radioactive liquids from plant compo-nents and pipes have occurred at numerous plants. Groundwater pro-tection programs have been established at all operating nuclear power plants to minimize the potential impact from any inadvertent releases.

The magnitude of impacts would depend on site-specific characteristics.

Terrestrial Resources Effects on terrestrial resources (non-cooling system impacts).

Exposure of terrestrial organisms to radionuclides.

Cooling system impacts on terrestrial resources (plants with once-through cooling systems or cooling ponds).

Cooling tower impacts on vegetation (plants with cooling towers).

Bird collisions with plant structures and transmission lines 4.

Water use conflicts with terrestrial re-sources (plants with cooling ponds or cooling towers using makeup water from a river).

Transmission line right-of-way (ROW) management impacts on terrestrial resources 4.

Electromagnetic fields on flora and fauna (plants, agricultural crops, honeybees, wildlife, livestock) 4.

2 1

1 1

1 2

1 1

SMALL, MODERATE, or LARGE. Impacts resulting from continued oper-ations and refurbishment associated with license renewal may affect terrestrial communities. Application of best management practices would reduce the potential for impacts. The magnitude of impacts would depend on the nature of the activity, the status of the resources that could be affected, and the effectiveness of mitigation.

SMALL. Doses to terrestrial organisms from continued operations and re-furbishment associated with license renewal are expected to be well below exposure guidelines developed to protect these organisms.

SMALL. No adverse effects to terrestrial plants or animals have been re-ported as a result of increased water temperatures, fogging, humidity, or reduced habitat quality. Due to the low concentrations of contami-nants in cooling system effluents, uptake and accumulation of contami-nants in the tissues of wildlife exposed to the contaminated water or aquatic food sources are not expected to be significant issues.

SMALL. Impacts from salt drift, icing, fogging, or increased humidity asso-ciated with cooling tower operation have the potential to affect adjacent vegetation, but these impacts have been small at operating nuclear power plants and are not expected to change over the license renewal term.

SMALL. Bird collisions with cooling towers and other plant structures and transmission lines occur at rates that are unlikely to affect local or mi-gratory populations and the rates are not expected to change.

SMALL or MODERATE. Impacts on terrestrial resources in riparian com-munities affected by water use conflicts could be of moderate signifi-cance.

SMALL. Continued ROW management during the license renewal term is expected to keep terrestrial communities in their current condition. Ap-plication of best management practices would reduce the potential for impacts.

SMALL. No significant impacts of electromagnetic fields on terrestrial flora and fauna have been identified. Such effects are not expected to be a problem during the license renewal term.

Aquatic Resources Impingement and entrainment of aquatic organisms (plants with once-through cooling systems or cooling ponds).

2 Impingement and entrainment of aquatic organisms (plants with cooling towers).

SMALL, MODERATE, or LARGE. The impacts of impingement and en-trainment are small at many plants but may be moderate or even large at a few plants with once-through and cooling-pond cooling systems, depending on cooling system withdrawal rates and volumes and the aquatic resources at the site.

1 SMALL. Impingement and entrainment rates are lower at plants that use closed-cycle cooling with cooling towers because the rates and volumes of water withdrawal needed for makeup are minimized.

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64 Pt. 51, Subpt. A, App. B 10 CFR Ch. I (1-1-14 Edition)

TABLE B-1

SUMMARY

OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1Continued Issue Category 2 Finding 3 Entrainment of phytoplankton and zooplankton (all plants).

Thermal impacts on aquatic orga-nisms (plants with once-through cooling systems or cooling ponds).

Thermal impacts on aquatic orga-nisms (plants with cooling towers).

Infrequently reported thermal impacts (all plants).

Effects of cooling water discharge on dissolved

oxygen, gas super-saturation, and eutrophication.

Effects of non-radiological contami-nants on aquatic organisms.

Exposure of aquatic organisms to radionuclides.

Effects of dredging on aquatic orga-nisms.

Water use conflicts with aquatic re-sources (plants with cooling ponds or cooling towers using makeup water from a river).

Effects on aquatic resources (non-cooling system impacts).

Impacts of transmission line right-of-way (ROW) management on aquatic resources 4.

Losses from predation, parasitism, and disease among organisms ex-posed to sublethal stresses.

1 2

1 1

1 1

1 1

2 1

1 1

SMALL. Entrainment of phytoplankton and zooplankton has not been found to be a problem at operating nuclear power plants and is not ex-pected to be a problem during the license renewal term.

SMALL, MODERATE, or LARGE. Most of the effects associated with ther-mal discharges are localized and are not expected to affect overall sta-bility of populations or resources. The magnitude of impacts, however, would depend on site-specific thermal plume characteristics and the na-ture of aquatic resources in the area.

SMALL. Thermal effects associated with plants that use cooling towers are expected to be small because of the reduced amount of heated dis-charge.

SMALL. Continued operations during the license renewal term are ex-pected to have small thermal impacts with respect to the following:

Cold shock has been satisfactorily mitigated at operating nuclear plants with once-through cooling systems, has not endangered fish popu-lations or been found to be a problem at operating nuclear power plants with cooling towers or cooling ponds, and is not expected to be a prob-lem.

Thermal plumes have not been found to be a problem at operating nu-clear power plants and are not expected to be a problem.

Thermal discharge may have localized effects but is not expected to affect the larger geographical distribution of aquatic organisms.

Premature emergence has been found to be a localized effect at some operating nuclear power plants but has not been a problem and is not expected to be a problem.

Stimulation of nuisance organisms has been satisfactorily mitigated at the single nuclear power plant with a once-through cooling system where previously it was a problem. It has not been found to be a problem at operating nuclear power plants with cooling towers or cooling ponds and is not expected to be a problem.

SMALL. Gas supersaturation was a concern at a small number of oper-ating nuclear power plants with once-through cooling systems but has been mitigated. Low dissolved oxygen was a concern at one nuclear power plant with a once-through cooling system but has been mitigated.

Eutrophication (nutrient loading) and resulting effects on chemical and biological oxygen demands have not been found to be a problem at op-erating nuclear power plants.

SMALL. Best management practices and discharge limitations of NPDES permits are expected to minimize the potential for impacts to aquatic re-sources during continued operations and refurbishment associated with license renewal. Accumulation of metal contaminants has been a con-cern at a few nuclear power plants but has been satisfactorily mitigated by replacing copper alloy condenser tubes with those of another metal.

SMALL. Doses to aquatic organisms are expected to be well below expo-sure guidelines developed to protect these aquatic organisms.

SMALL. Dredging at nuclear power plants is expected to occur infre-quently, would be of relatively short duration, and would affect relatively small areas. Dredging is performed under permit from the U.S. Army Corps of Engineers, and possibly, from other State or local agencies.

SMALL or MODERATE. Impacts on aquatic resources in stream commu-nities affected by water use conflicts could be of moderate significance in some situations.

SMALL. Licensee application of appropriate mitigation measures is ex-pected to result in no more than small changes to aquatic communities from their current condition.

SMALL. Licensee application of best management practices to ROW maintenance is expected to result in no more than small impacts to aquatic resources.

SMALL. These types of losses have not been found to be a problem at operating nuclear power plants and are not expected to be a problem during the license renewal term.

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65 Nuclear Regulatory Commission Pt. 51, Subpt. A, App. B TABLE B-1

SUMMARY

OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1Continued Issue Category 2 Finding 3 Special Status Species and Habitats Threatened, endangered, and pro-tected species and essential fish habitat.

2 The magnitude of impacts on threatened, endangered, and protected spe-cies, critical habitat, and essential fish habitat would depend on the oc-currence of listed species and habitats and the effects of power plant systems on them. Consultation with appropriate agencies would be needed to determine whether special status species or habitats are present and whether they would be adversely affected by continued op-erations and refurbishment associated with license renewal.

Historic and Cultural Resources Historic and cultural resources 4........

2 Continued operations and refurbishment associated with license renewal are expected to have no more than small impacts on historic and cul-tural resources located onsite and in the transmission line ROW be-cause most impacts could be mitigated by avoiding those resources.

The National Historic Preservation Act (NHPA) requires the Federal agency to consult with the State Historic Preservation Officer (SHPO) and appropriate Native American Tribes to determine the potential ef-fects on historic properties and mitigation, if necessary.

Socioeconomics Employment and income, recreation and tourism.

Tax revenues.....................................

Community services and education..

Population and housing.....................

Transportation...................................

1 1

1 1

1 SMALL. Although most nuclear plants have large numbers of employees with higher than average wages and salaries, employment, income, recreation, and tourism impacts from continued operations and refur-bishment associated with license renewal are expected to be small.

SMALL. Nuclear plants provide tax revenue to local jurisdictions in the form of property tax payments, payments in lieu of tax (PILOT), or tax payments on energy production. The amount of tax revenue paid during the license renewal term as a result of continued operations and refur-bishment associated with license renewal is not expected to change.

SMALL. Changes resulting from continued operations and refurbishment associated with license renewal to local community and educational services would be small. With little or no change in employment at the licensees plant, value of the power plant, payments on energy produc-tion, and PILOT payments expected during the license renewal term, community and educational services would not be affected by continued power plant operations.

SMALL. Changes resulting from continued operations and refurbishment associated with license renewal to regional population and housing availability and value would be small. With little or no change in employ-ment at the licensees plant expected during the license renewal term, population and housing availability and values would not be affected by continued power plant operations.

SMALL. Changes resulting from continued operations and refurbishment associated with license renewal to traffic volumes would be small.

Human Health Radiation exposures to the public.....

1 Radiation exposures to plant workers 1

Human health impact from chemicals 1

Microbiological hazards to the public (plants with cooling ponds or ca-nals or cooling towers that dis-charge to a river).

SMALL. Radiation doses to the public from continued operations and re-furbishment associated with license renewal are expected to continue at current levels, and would be well below regulatory limits.

SMALL. Occupational doses from continued operations and refurbishment associated with license renewal are expected to be within the range of doses experienced during the current license term, and would continue to be well below regulatory limits.

SMALL. Chemical hazards to plant workers resulting from continued oper-ations and refurbishment associated with license renewal are expected to be minimized by the licensee implementing good industrial hygiene practices as required by permits and Federal and State regulations.

Chemical releases to the environment and the potential for impacts to the public are expected to be minimized by adherence to discharge limi-tations of NPDES and other permits.

2 SMALL, MODERATE, or LARGE. These organisms are not expected to be a problem at most operating plants except possibly at plants using cooling ponds, lakes, or canals, or that discharge into rivers. Impacts would depend on site-specific characteristics.

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66 Pt. 51, Subpt. A, App. B 10 CFR Ch. I (1-1-14 Edition)

TABLE B-1

SUMMARY

OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1Continued Issue Category 2 Finding 3 Microbiological hazards to plant workers.

Chronic effects of electromagnetic fields (EMFs) 4 6.

Physical occupational hazards..........

Electric shock hazards 4....................

1 N/A 5 1

2 SMALL. Occupational health impacts are expected to be controlled by continued application of accepted industrial hygiene practices to mini-mize worker exposures as required by permits and Federal and State regulations.

Uncertain impact. Studies of 60-Hz EMFs have not uncovered consistent evidence linking harmful effects with field exposures. EMFs are unlike other agents that have a toxic effect (e.g., toxic chemicals and ionizing radiation) in that dramatic acute effects cannot be forced and longer-term effects, if real, are subtle. Because the state of the science is cur-rently inadequate, no generic conclusion on human health impacts is possible.

SMALL. Occupational safety and health hazards are generic to all types of electrical generating stations, including nuclear power plants, and are of small significance if the workers adhere to safety standards and use protective equipment as required by Federal and State regulations.

SMALL, MODERATE, or LARGE. Electrical shock potential is of small sig-nificance for transmission lines that are operated in adherence with the National Electrical Safety Code (NESC). Without a review of conform-ance with NESC criteria of each nuclear power plants in-scope trans-mission lines, it is not possible to determine the significance of the elec-trical shock potential.

Postulated Accidents Design-basis accidents.....................

Severe accidents...............................

1 2

SMALL. The NRC staff has concluded that the environmental impacts of design-basis accidents are of small significance for all plants.

SMALL. The probability-weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small for all plants.

However, alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives.

Environmental Justice Minority and low-income populations 2 Impacts to minority and low-income populations and subsistence con-sumption resulting from continued operations and refurbishment associ-ated with license renewal will be addressed in plant-specific reviews.

See NRC Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions (69 FR 52040; Au-gust 24, 2004).

Waste Management Low-level waste storage and dis-posal.

Onsite storage of spent nuclear fuel Offsite radiological impacts of spent nuclear fuel and high-level waste disposal.

Mixed-waste storage and disposal....

Nonradioactive waste storage and disposal.

1 1

N/A 5 1

1 SMALL. The comprehensive regulatory controls that are in place and the low public doses being achieved at reactors ensure that the radiological impacts to the environment would remain small during the license re-newal term.

SMALL. The expected increase in the volume of spent fuel from an addi-tional 20 years of operation can be safely accommodated onsite during the license renewal term with small environmental effects through dry or pool storage at all plants.

Uncertain impact. The generic conclusion on offsite radiological impacts of spent nuclear fuel and high-level waste is not being finalized pending the completion of a generic environmental impact statement on waste confidence.7 SMALL. The comprehensive regulatory controls and the facilities and pro-cedures that are in place ensure proper handling and storage, as well as negligible doses and exposure to toxic materials for the public and the environment at all plants. License renewal would not increase the small, continuing risk to human health and the environment posed by mixed waste at all plants. The radiological and nonradiological environ-mental impacts of long-term disposal of mixed waste from any individual plant at licensed sites are small.

SMALL. No changes to systems that generate nonradioactive waste are anticipated during the license renewal term. Facilities and procedures are in place to ensure continued proper handling, storage, and disposal, as well as negligible exposure to toxic materials for the public and the environment at all plants.

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67 Nuclear Regulatory Commission Pt. 51, Subpt. A, App. B TABLE B-1

SUMMARY

OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1Continued Issue Category 2 Finding 3 Cumulative Impacts Cumulative impacts...........................

2 Cumulative impacts of continued operations and refurbishment associated with license renewal must be considered on a plant-specific basis. Im-pacts would depend on regional resource characteristics, the resource-specific impacts of license renewal, and the cumulative significance of other factors affecting the resource.

Uranium Fuel Cycle Offsite radiological impactsindi-vidual impacts from other than the disposal of spent fuel and high-level waste.

Offsite radiological impactscollec-tive impacts from other than the disposal of spent fuel and high-level waste.

Nonradiological impacts of the ura-nium fuel cycle.

Transportation...................................

1 1

1 1

SMALL. The impacts to the public from radiological exposures have been considered by the Commission in Table S-3 of this part. Based on in-formation in the GEIS, impacts to individuals from radioactive gaseous and liquid releases, including radon-222 and technetium-99, would re-main at or below the NRCs regulatory limits.

There are no regulatory limits applicable to collective doses to the general public from fuel-cycle facilities. The practice of estimating health effects on the basis of collective doses may not be meaningful. All fuel-cycle facilities are designed and operated to meet the applicable regulatory limits and standards. The Commission concludes that the collective im-pacts are acceptable.

The Commission concludes that the impacts would not be sufficiently large to require the NEPA conclusion, for any plant, that the option of extended operation under 10 CFR part 54 should be eliminated. Ac-cordingly, while the Commission has not assigned a single level of sig-nificance for the collective impacts of the uranium fuel cycle, this issue is considered Category 1.

SMALL. The nonradiological impacts of the uranium fuel cycle resulting from the renewal of an operating license for any plant would be small.

SMALL. The impacts of transporting materials to and from uranium-fuel-cycle facilities on workers, the public, and the environment are expected to be small.

Termination of Nuclear Power Plant Operations and Decommissioning Termination of plant operations and decommissioning.

1 SMALL. License renewal is expected to have a negligible effect on the im-pacts of terminating operations and decommissioning on all resources.

1 Data supporting this table are contained in NUREG-1437, Revision 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013).

2 The numerical entries in this column are based on the following category definitions:

Category 1: For the issue, the analysis reported in the Generic Environmental Impact Statement has shown:

(1) The environmental impacts associated with the issue have been determined to apply either to all plants or, for some issues, to plants having a specific type of cooling system or other specified plant or site characteristic; (2) A single significance level (i.e., small, moderate, or large) has been assigned to the impacts (except for Offsite radiological impactscollective impacts from other than the disposal of spent fuel and high-level waste); and (3) Mitigation of adverse impacts associated with the issue has been considered in the analysis, and it has been determined that additional plant-specific mitigation measures are not likely to be sufficiently beneficial to warrant implementation.

The generic analysis of the issue may be adopted in each plant-specific review.

Category 2: For the issue, the analysis reported in the Generic Environmental Impact Statement has shown that one or more of the criteria of Category 1 cannot be met, and therefore additional plant-specific review is required.

3 The impact findings in this column are based on the definitions of three significance levels. Unless the significance level is identified as beneficial, the impact is adverse, or in the case of small, may be negligible. The definitions of significance follow:

SMALLFor the issue, environmental effects are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource. For the purposes of assessing radiological impacts, the Commission has concluded that those impacts that do not exceed permissible levels in the Commissions regulations are considered small as the term is used in this table.

MODERATEFor the issue, environmental effects are sufficient to alter noticeably, but not to destabilize, important attributes of the resource.

LARGEFor the issue, environmental effects are clearly noticeable and are sufficient to destabilize important attributes of the resource.

For issues where probability is a key consideration (i.e., accident consequences), probability was a factor in determining sig-nificance.

4 This issue applies only to the in-scope portion of electric power transmission lines, which are defined as transmission lines that connect the nuclear power plant to the substation where electricity is fed into the regional power distribution system and transmission lines that supply power to the nuclear plant from the grid.

5 NA (not applicable). The categorization and impact finding definitions do not apply to these issues.

6 If, in the future, the Commission finds that, contrary to current indications, a consensus has been reached by appropriate Federal health agencies that there are adverse health effects from electromagnetic fields, the Commission will require applicants to submit plant-specific reviews of these health effects as part of their license renewal applications. Until such time, applicants for license renewal are not required to submit information on this issue.

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68 Pt. 52 10 CFR Ch. I (1-1-14 Edition) 7 As a result of the decision of United States Court of Appeals in New York v. NRC, 681 F.3d 471 (DC Cir. 2012), the NRC cannot rely upon its Waste Confidence Decision and Rule until it has taken those actions that will address the deficiencies identi-fied by the D.C. Circuit. Although the Waste Confidence Decision and Rule did not assess the impacts associated with disposal of spent nuclear fuel and high-level waste in a repository, it did reflect the Commissions confidence, at the time, in the technical feasibility of a repository and when that repository could have been expected to become available. Without the analysis in the Waste Confidence Decision and Rule regarding the technical feasibility and availability of a repository, the NRC cannot assess how long the spent fuel will need to be stored onsite.

[61 FR 66546, Dec. 18, 1996, as amended at 62 FR 59276, Nov. 3, 1997; 64 FR 48507, Sept. 3, 1999; 66 FR 39278, July 30, 2001; 78 FR 37317, June 20, 2013]

Subpart B [Reserved]

PART 52LICENSES, CERTIFI-CATIONS, AND APPROVALS FOR NUCLEAR POWER PLANTS GENERAL PROVISIONS Sec.

52.1 Scope; applicability of 10 CFR Chapter I provisions.

52.2 Definitions.

52.3 Interpretations.

52.4 Written communications.

52.5 Deliberate misconduct.

52.6 Employee protection.

52.7 Completeness and accuracy of informa-tion.

52.8 Specific exemptions.

52.9 Combining licenses; elimination of rep-etition.

52.10 Jurisdictional limits.

52.11 Attacks and destructive acts.

52.12 Information collection requirements:

OMB approval.

Subpart AEarly Site Permits 52.13 Scope of subpart.

52.14 Relationship to other subparts.

52.15 Filing of applications.

52.16 Contents of applications; general in-formation.

52.17 Contents of applications; technical in-formation.

52.18 Standards for review of applications.

52.21 Administrative review of applications; hearings.

52.23 Referral to the Advisory Committee on Reactor Safeguards (ACRS).

52.24 Issuance of early site permit.

52.25 Extent of activities permitted.

52.26 Duration of permit.

52.27 Limited work authorization after issuance of early site permit.

52.28 Transfer of early site permit.

52.29 Application for renewal.

52.31 Criteria for renewal.

52.33 Duration of renewal.

52.35 Use of site for other purposes.

52.39 Finality of early site permit deter-minations.

52.43 Relationship to other subparts.

52.45 Filing of applications.

52.46 Contents of applications; general in-formation.

52.47 Contents of applications; technical in-formation.

52.48 Standards for review of applications.

52.51 Administrative review of applications.

52.53 Referral to the Advisory Committee on Reactor Safeguards (ACRS).

52.54 Issuance of standard design certifi-cation.

52.55 Duration of certification.

52.57 Application for renewal.

52.59 Criteria for renewal.

52.61 Duration of renewal.

52.63 Finality of standard design certifi-cations.

Subpart CCombined Licenses 52.71 Scope of subpart.

52.73 Relationship to other subparts.

52.75 Filing of applications.

52.77 Contents of applications; general in-formation.

52.79 Contents of applications; technical in-formation in final safety analysis report.

52.80 Contents of applications; additional technical information.

52.81 Standards for review of applications.

52.83 Finality of referenced NRC approvals; partial initial decision on site suit-ability.

52.85 Administrative review of applications; hearings.

52.87 Referral to the Advisory Committee on Reactor Safeguards (ACRS).

52.89 [Reserved]

52.91 Authorization to conduct limited work authorization activities.

52.93 Exemptions and variances.

52.97 Issuance of combined licenses.

52.98 Finality of combined licenses; infor-mation requests.

52.99 Inspection during construction; ITAAC schedules and notifications; NRC notices.

52.103 Operation under a combined license.

52.104 Duration of combined license.

52.105 Transfer of combined license.

52.107 Application for renewal.

52.109 Continuation of combined license.

Subpart BStandard Design Certifications 52.41 Scope of subpart.

52.110 Termination of license.

Subpart D [Reserved]

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