Blue Ridge Environmental Defense League v. Nuclear Regulatory Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2012 Decided May 14, 2013

No. 12-1106

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, ET AL.,

PETITIONERS

v.

NUCLEAR REGULATORY COMMISSION AND THE UNITED

STATES OF AMERICA,

RESPONDENTS

WESTINGHOUSE ELECTRIC COMPANY LLC,

INTERVENORS

Consolidated with 12-1151

On Petition for Review of Orders of the

United States Nuclear Regulatory Commission

Diane Curran argued the cause for petitioners. With her

on the briefs were Mindy Goldstein and John Runkle.

Robert M. Rader, Senior Attorney, U.S. Nuclear

Regulatory Commission, argued the cause for respondents.

With him on the brief were J. David Gunter II, Trial Attorney,

U.S. Department of Justice, John F. Cordes, Jr., Solicitor,

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U.S. Nuclear Regulatory Commission, and Jeremy M.

Suttenberg, Attorney.

Randall L. Speck, David L. Cousineau, M. Stanford

Blanton, Millicent W. Ronnlund, and Kathryn M. Sutton were

on the brief for intervenors Westinghouse Electric Company

LLC, et al., in support of respondents.

Before: BROWN, Circuit Judge, and EDWARDS and

SILBERMAN, Senior Circuit Judges.

EDWARDS, Senior Circuit Judge: This case arises from

actions taken by the Nuclear Regulatory Commission (“NRC”

or “Commission”) approving (1) an application by Southern

Nuclear Operating Company (“Southern”) for combined

licenses to construct and operate new Units 3 and 4 of the

Vogtle Nuclear Power Plant and (2) an application by

Westinghouse Electric Company (“Westinghouse”) for an

amendment to its already-approved AP1000 reactor design on

which the Vogtle application relied. In approving the

applications, NRC applied the regulatory scheme incorporated

in 10 C.F.R. Part 52 covering the licensing of commercial

nuclear power reactors. See Nuclear Info. Res. Serv. v. NRC,

969 F.2d 1169, 1170 (D.C. Cir. 1992) (en banc) (upholding

two-part regulatory scheme in 10 C.F.R. Part 52).

In 2009, after a contested evidentiary hearing in which

Petitioners participated, NRC granted Southern an early site

permit for Vogtle Units 3 and 4. In 2008, Southern applied for

combined licenses. A second contested proceeding was held

in which Petitioners participated. The application for the early

site permit was supported by an Environmental Impact

Statement (“EIS”); the application for combined licenses was

supported by the initial EIS and an updated EIS. After the

close of the combined-license hearing record, Petitioners

sought to reopen the hearing to litigate contentions relating to

the nuclear accident at the Fukushima Dai-ichi complex in

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Japan on March 11, 2011. In the wake of the Fukushima

accident, NRC commissioned a Task Force to reevaluate

nuclear safety regulations in the United States. Petitioners

unsuccessfully sought to forestall the licensing of the Vogtle

reactors and the approval of the modified AP1000 design until

NRC had fully considered and implemented the Task Force

recommendations.

After the Task Force recommendations were issued and

approved by NRC, Petitioners pursued various actions to

compel the agency to supplement its EIS and to delay any

action on the combined license and AP1000 design

rulemaking proceedings until after the agency had

implemented the Task Force recommendations. Petitioners

contended, inter alia, that Vogtle’s EIS violated the National

Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-

4347, because it did not address allegedly new and significant

environmental implications of the Task Force’s

recommendations after Fukushima. NRC ruled that

Petitioners’ challenges were premature, that the agency’s

existing procedural mechanisms were sufficient to ensure

licensees’ compliance with not-yet-enacted regulatory

safeguards, and that the licensing and rulemaking proceedings

could continue without delay. NRC further held that

Petitioners had failed to satisfy the contention-specificity

requirements of 10 C.F.R. § 2.309(f)(1), which state that the

proponents of contentions must indicate with specificity the

claims they wish to litigate. See Union of Concerned

Scientists v. NRC, 920 F.2d 50, 51-52 (D.C. Cir. 1990). NRC

also held that Petitioners had failed to identify any

environmentally significant information from the Task Force

recommendations suggesting a deficiency in the Vogtle EIS.

NRC thus declined to reopen the combined-license hearing

record under 10 C.F.R. § 2.326.

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In late 2011, NRC issued its rule approving the AP1000

amended design, and in 2012 it authorized issuance of the

combined licenses. Petitioners then filed the petitions for

review giving rise to this action. Petitioners raise three

principal contentions for consideration by the court. First,

Petitioners claim that NRC abused its discretion in refusing to

reopen the hearing record in the Vogtle licensing proceeding.

Second, Petitioners assert that NRC unreasonably denied

them a right to participate in a mandatory hearing at which

NRC technical staff confirmed that the Fukushima accident

had not presented new and significant information that would

require a supplemental EIS for Vogtle. Finally, Petitioners

argue that NRC abused its discretion in approving the

AP1000 reactor design without first supplementing the

AP1000 Environmental Assessment (“EA”) that contained

important information regarding “Severe Accident Mitigation

Design Alternatives” applicable to Vogtle. Because we find

no merit in any of these contentions, we deny the petitions for

review.

I. REGULATORY BACKGROUND

A. Reactor Design Certification

Under 10 C.F.R. Part 52, Subpart B, a party may request

a “standard design certification” for the approval of a nuclear

power plant design. See 10 C.F.R. § 52.41. Once a design is

certified through this generic process, a future applicant may

rely on the already-approved design. See id. § 52.43(a).

Design certification by NRC requires notice-and-comment

rulemaking and culminates in publication in the Federal

Register as a “design certification rule.” See id. § 52.54.

When a proposed design certification rule is published,

NRC’s associated EA is published for comment at the same

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time. See id. § 51.31(b)(1). Because a reactor design is

certified without reference to any specific plans for its

construction, NRC has determined by rule that every

proposed design certification or amendment requires only an

EA, not a more comprehensive EIS. See id. §§ 51.31(b)(1)(i),

51.32(b)(1)-(2).

The EA for a design certification addresses only one

topic: the costs and benefits of any Severe Accident

Mitigation Design Alternatives that were considered and not

incorporated into the final design. See id. § 51.30(d). When a

proposal is made to modify an approved design certification

rule, the amendment may rely on the EA generated for the

original design certification rule and need only consider (1)

whether the proposed design change renders any previously

rejected design alternatives cost-beneficial and (2) whether

the design change results in the identification of any new

design alternatives that necessitate a previously unperformed

cost-benefit analysis. See id. § 51.30(d). In other words,

modifications to the original EA are necessary only if the

proposed design change amendment alters the cost-benefit

calculus concerning any Severe Accident Mitigation Design

Alternatives.

B. Combined Operating Licenses

The Atomic Energy Act authorizes NRC to issue a

combined operating license for both the construction and

operation of new reactors after a public hearing. See 42

U.S.C. § 2235(b). Any such license must be accompanied by

a full EIS, 10 C.F.R. §§ 51.75, 51.92(b), (d), (e), and may rely

on and incorporate by reference an approved standard design

certification, id. § 51.75(c)(2).

NRC must afford interested parties an opportunity to

participate in a contested hearing subject to additional

procedural requirements. See 42 U.S.C. § 2239(a). However,

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in order to initiate such a contested hearing, NRC regulations

require that interested parties submit contentions that are

supported by “sufficient information to show that a genuine

dispute exists with the applicant/licensee on a material issue

of law or fact.” 10 C.F.R. § 2.309(f)(1)(vi). In addition,

interested parties “must set forth with particularity the

contentions sought to be raised” and must:

(ii) Provide a brief explanation of the basis for the

contention;

***

(v) Provide a concise statement of the alleged facts or

expert opinions which support the requestor’s/petitioner’s

position on the issue and on which the petitioner intends to

rely . . . together with references to the specific sources and

documents [at issue]; [and]

***

(vii) In a [combined license] proceeding . . . 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

met . . . .

Id. § 2.309(f)(1)(ii), (v), (vii). When interested parties are

allowed to intervene, “[t]he scope of the Intervenors’

participation in adjudications is limited to their admitted

contentions, i.e., they are barred from participating in the

uncontested portion of the hearing.” Exelon Generation Co.,

LLC, 62 N.R.C. 5, 49 (2005).

NRC also holds a separate “mandatory” hearing before

issuing a combined license. See 42 U.S.C. §§ 2235(b),

2239(a); see also Exelon Generation, 62 N.R.C. at 49-50. The

mandatory hearing does not address contentions raised by the

parties, and participation is limited to the applicant and NRC

staff. See Exelon Generation, 62 N.R.C. at 49-50. The

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mandatory NRC hearing determines the adequacy of the NRC

staff’s review of the application.

Separate regulations govern when NRC must reopen a

closed hearing. See 10 C.F.R. § 2.326(a). In their briefs to this

court, the parties focused on NRC’s application of its

contention-admissibility standards, not on whether the agency

erred in declining to reopen the combined-license hearing

record. Because we find that NRC properly denied

Petitioners’ contentions, and because the standards for

reopening a closed proceeding are higher than those for

admitting a new contention, see Luminant Generation Co.,

LLC, CLI-12-07, slip op. at 14 n.47 (Mar. 16, 2012), we need

not reach the application of NRC’s reopening regulations.

C. Environmental Requirements

NEPA mandates that a federal agency take a “hard look”

at any major undertaking by assembling an EIS. This

ensures that the agency, in reaching its decision, will have

available, and will carefully consider, detailed information

concerning significant environmental impacts; it also

guarantees that the relevant information will be made available

to the larger audience that may also play a role in both the

decisionmaking process and the implementation of that

decision.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

349 (1989). The EIS must address all reasonably foreseeable

environmental impacts, including reactor accidents, even if

the probability of such an occurrence is low. See 40 C.F.R.

§ 1502.22(b).

As a major federal action, NRC’s issuance of a combined

operating license requires an EIS. See 10 C.F.R. § 51.20(b).

NRC regulations require preparation of an EIS both at the

early site permit stage and at the combined operating license

stage. See 10 C.F.R. § 51.75(b) (requiring EIS for early site

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permit); id. § 51.75(c)(1) (requiring supplementation for

combined operating license).

Once NRC has prepared an EIS, it must continue to

evaluate the environmental consequences of the project and

supplement the EIS, as necessary, even after initial approval.

See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 370-78

(1989). This ongoing duty is mitigated, however, by a “rule of

reason,” which excuses the agency from supplementing an

environmental report based only on “remote and highly

speculative consequences.” Deukmejian v. NRC, 751 F.2d

1287, 1300 (D.C. Cir. 1984) reh’g granted and opinion

vacated on other grounds sub nom. San Luis Obispo Mothers

for Peace v. NRC, 760 F.2d 1320 (D.C. Cir. 1985) and on

reh’g sub nom. San Luis Obispo Mothers for Peace v. NRC,

789 F.2d 26 (D.C. Cir. 1986).

The EIS must be submitted for public comment. See

TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433

F.3d 852, 861 (D.C. Cir. 2006); 40 C.F.R. § 1502.9. Although

Petitioners contend that similar public comment is mandatory

for all EAs, we have held that “the agency has significant

discretion in determining when public comment is required

with respect to EAs.” TOMAC, 433 F.3d at 861.

D. Fukushima Accident and NRC Fukushima Task

Force

On March 21, 2011, a catastrophic accident occurred at

the Fukushima Dai-ichi Nuclear Power Station in Honshu,

Japan. See U.S. NUCLEAR REGULATORY COMM’N,

RECOMMENDATIONS FOR ENHANCING REACTOR SAFETY IN

ST

THE 21 CENTURY: THE NEAR-TERM TASK FORCE REVIEW OF

INSIGHTS FROM THE FUKUSHIMA DAI-ICHI ACCIDENT 7 (July

12, 2011) (“Task Force Report”). NRC appointed a Task

Force to study the regulatory implications of the accident for

the United States. The Task Force was charged to

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conduct a systematic and methodical review of U.S.

Nuclear Regulatory Commission processes and

regulations to determine whether the agency should make

additional improvements to its regulatory system and to

make recommendations to the Commission for its policy

direction, in light of the accident at the Fukushima Dai-

ichi Nuclear Power Plant.

Id. at vii. The Commission asked the Task Force to identify

“potential or preliminary near term/immediate operational or

regulatory issues” related to natural disasters, severe accident

mitigation, and emergency preparedness, and to propose other

improvements in light of the Fukushima accident. Union Elec.

Co., CLI-11-05, 74 N.R.C. 141, 147 (2011); see also Task

Force Report at viii.

NRC’s Fukushima Task Force issued its report in July

2011, concluding that NRC’s “current regulatory approach,

and more importantly, the resultant plant capabilities”

demonstrate “that a sequence of events like the Fukushima

accident is unlikely to occur in the United States and some

appropriate mitigation measures have been implemented,

reducing the likelihood of core damage and radiological

releases.” Task Force Report at vii. The Task Force supported

completing work on the then-pending AP1000 design

certification rulemaking “without delay” and noted that “all of

the current early site permits [e.g., Vogtle Units 3 and 4]

already meet the requirements” of the Task Force Report

recommendation governing seismic and flooding analysis. Id.

at 71-72. In sum, the Task Force Report recommended that

both the AP1000 rulemaking and the Vogtle license

application proceedings continue without interruption.

The Task Force offered twelve recommendations which,

“taken together are intended to clarify and strengthen the

[NRC’s] regulatory framework.” See id. at viii. The Task

Force grouped these recommendations into five categories:

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“Clarifying the Regulatory Framework,” “Ensuring

Protection,” “Enhancing Mitigation,” “Strengthening

Emergency Preparedness,” and “Improving the Efficiency of

NRC Programs.” Id. at ix.

NRC approved the Task Force’s recommendations and

urged implementation by 2016. In March 2012, NRC

implemented two Task Force recommendations, one

concerning licensees’ abilities to protect spent fuel rods in

unpredictably dangerous conditions and the other proposing

development of a new rule to upgrade “station blackout”

requirements for power failures both within and outside a

plant.

II. FACTUAL BACKGROUND

A. AP1000 Design Certification

NRC first issued a design certification rule approving

Westinghouse’s AP1000 design in 2006. Along with this

design certification rule, NRC prepared an EA that analyzed

sixteen Severe Accident Mitigation Design Alternatives and

rejected all sixteen on cost-benefit grounds. See

Environmental Assessment by the U.S. Nuclear Regulatory

Commission Relating to the Certification of the AP1000

Standard Plant Design, Docket No. 52-006 (2006), reprinted

in J.A. 866-902.

Westinghouse subsequently applied for an amendment to

the approved AP1000 reactor design. NRC received and

considered over 200 public comments, most of which urged

delaying resolution of the AP1000 design amendment

proceeding until the lessons learned from the Fukushima

accident were applied to NRC regulations. See AP1000

Design Certification Amendment, 76 Fed. Reg. 82,079-01,

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82,079-81 (Dec. 30, 2011) (outlining history of AP1000

design certification rule).

On December 30, 2011, after considering these

comments, NRC declined to suspend or delay the design

certification rulemaking proceeding, emphasizing that the

AP1000 design was already compliant with many of the Task

Force recommendations. See id. NRC concluded that no

Severe Accident Mitigation Design Alternatives were cost-

beneficial and that no supplemental EA was necessary. See

Environmental Assessment by the U.S. Nuclear Regulatory

Commission Relating to Certification of the Amendment to

the AP1000 Standard Plant Design, Docket No. 52-006, 5-6

(Dec. 22, 2011), reprinted in J.A. 224-25.

NRC certified the AP1000 design and stressed the

ongoing nature of Commission review of designs, stating that:

even if the Commission concludes at a later time that some

additional action is needed for the AP1000, the NRC has

ample opportunity and legal authority to modify the AP1000

[design certification rule] to implement NRC-required design

changes, as well as to take any necessary action to ensure that

holders of [combined licenses] referencing the AP1000 also

make the necessary design changes.

AP1000 Design Certification Amendment, 76 Fed. Reg. at

82,081. As a result, NRC concluded “that no changes to the

AP1000 [design certification rule] are required at this time,”

id., and noted that the Task Force itself endorsed completion

of the AP 1000 rulemaking “without delay,” id. at 82,083.

B. Vogtle Combined Operating Licenses

On August 15, 2006, Southern applied for an early site

permit for Vogtle Units 3 and 4. A coalition of community

action organizations, including several Petitioners in this case,

sought a hearing on the application and intervened on three

admitted contentions related to NRC’s draft EIS for the site.

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NRC assigned the conduct of the licensure proceeding to a

three-member Atomic Safety and Licensing Board (“Board”),

which considered Petitioners’ contentions in a series of on-

the-record hearings. The Board ruled against Petitioners on all

three contentions, and NRC denied review, ending the

contested portion of the hearing. The Board issued its final

initial decision in August 2009, after holding its mandatory

sufficiency review and questioning Southern and NRC staff,

and approved the Vogtle early site application.

Southern subsequently applied for combined operating

licenses for Vogtle Units 3 and 4. As with the early site

permit proceeding, NRC prepared an EIS for this licensing

action, which included consideration of the potential for

severe accidents and their consequences. See Environmental

Impacts of Postulated Accidents, Environmental Impacts of

Operation at the Vogtle Electric Generating Plant Site, § 5.10

(Mar. 2011) (“Vogtle EIS”), reprinted in J.A. 805-09;

Southern Nuclear Operating Company, Inc.; Notice of

Availability of the Final Supplemental Environmental Impact

Statement for Vogtle Electric Generating Plant Units 3 and 4;

Combined License Application Review, 76 Fed. Reg. 16,645-

02 (Mar. 24, 2011).

In response, Petitioners brought three contentions to the

Board, which denied two and admitted the third, a safety-

related contention. After consideration of the contention, the

Board granted summary disposition against the intervenors,

finding that the contention failed to present a material factual

dispute. The Board declined to admit an additional

environmental contention and concluded the contested portion

of the proceeding. A second licensing Board was established

to consider another contention in April 2010; it denied the

request, and NRC affirmed.

In April 2011, shortly after the Task Force was

appointed, Petitioners and other organizations submitted an

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Emergency Petition, asking NRC to suspend all pending

licensing decisions, including the decision whether to issue a

combined license for Vogtle 3 and 4, while it investigated the

implications of the Fukushima accident. The Commission

denied these requests for a suspension. See generally Union

Elec. Co., CLI-11-05, 74 N.R.C. 144, 150-51, 175-76 (2011).

At the same time, Petitioners submitted a petition

requesting that NRC immediately suspend the rulemaking for

the amendment of the AP1000 design certification pending

evaluation of the implications of the Fukushima accident. Id.

at 172-73. Petitioners asked NRC to undertake “a

comprehensive review of the Fukushima accident to develop

lessons learned for new reactor designs and the subsequent

development and implementation of new regulatory

safeguards to protect public health and safety.” Id. at 172. The

Commission denied the request for immediate postponement

as premature, but directed NRC staff to consider the

submissions as comments to the AP1000 rulemaking. Id. at

172-73. Petitioners filed additional supplemental comments

requesting that NRC consider the environmental implications

of the Fukushima accident and the Task Force Report.

Supplemental Comments by the AP1000 Oversight Group et

al. Regarding Failure of Rulemaking on Certification, In the

Matter of AP1000 Design Certification Amendment, NRC-

2010-0131 (Sept. 29, 2011), reprinted in J.A. 326-36.

In August 2011, after the Task Force issued its report,

several Petitioners submitted motions to reopen the record of

the then-closed Vogtle licensing proceeding and admit

contentions challenging the failure of NRC to order a

supplemental Vogtle EIS to address the environmental

implications of the Task Force Report. See PPL Bell Bend,

L.L.C., LBP-11-27, slip op. (Oct. 18, 2011). Two groups of

Petitioners submitted substantively identical proposed

contentions, which read as follows:

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The EIS for . . . Vogtle fails to satisfy the requirements of

NEPA because it does not address the new and significant

environmental implications of the findings and

recommendations raised by NRC’s Fukushima Task Force

Report, including seismic-flood and environmental justice

issues. As required by 10 C.F.R. § 51.92(a)(2) and 40 C.F.R.

§ 1502.9(c), these implications must be addressed in a

supplemental Draft EIS.

Id. at 6. The contention was supported by declarations which

alleged that the Fukushima accident and the Task Force

Report presented new and significant information about risks

to public health and safety. See id. at 9-10 (summarizing

supporting declarations).

On September 9, 2011, the Commission denied

Petitioners’ April 2011 Emergency Petitions with respect to

the Vogtle licensing decision and the AP1000 rule. The

Commission concluded that “nothing learned to date requires

immediate cessation of our review of license applications or

proposed reactor designs.” Union Elec., CLI-11-05, 74 N.R.C.

at 161. In addition, the Commission found that there was no

cause to require a “generic” environmental review because the

Fukushima accident did not present “new and significant”

information. Id. at 166-67. The Commission further noted that

“we do not know today the full implications of the Japan

events for U.S. facilities. Therefore, any generic NEPA duty –

if one were appropriate at all – does not accrue now.” Id. at

167.

The Commission did, however, leave open the possibility

that an individual NEPA contention in a particular licensing

proceeding might require additional review, stating that “[i]f

the NRC determines that changes to its current environmental

assessment rules are warranted, we can revisit whether an

individual licensing review or adjudication should be held in

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abeyance pending the outcome of a relevant rulemaking.” Id.

at 174.

On October 18, 2011, the Board rejected as premature

Petitioners’ August 2011 contentions, “seeking to revive”

several closed adjudicatory proceedings, including the Vogtle

licensing. See PPL Bell Bend, LBP-11-27, slip op. at 1. The

Board read the Commission’s decision in CLI-11-05 as

instructing “precisely and definitively that it remains much

too early in the process of assessing the Fukushima event in

the context of the operation of reactors in the United States to

allow any informed conclusion regarding the possible safety

or environmental implications of that event.” Id. at 13. The

Board also noted that Petitioners did not indicate “any unique

characteristics of the [Vogtle] site that might make the content

of the Task Force report of greater environmental significance

to that reactor than to United States reactors in general.” Id. at

13-14. Because CLI-11-05 invited contentions in licensing

proceedings that alleged particular risks from the specific site,

the Board found this lack of specificity dispositive.

Also on October 18, 2011, the Commission adopted all of

the Task Force recommendations and ordered NRC staff to

implement them within the following five years. See

Luminant Generation Co., LLC, LBP-11-36, slip op. at 4-5

(Nov. 30, 2011). Upon the Commission’s adoption of the

Task Force recommendations, several Petitioners resubmitted

their contentions and asked the Board to reconsider its denial

of their contentions in light of the Commission’s decision to

adopt all of the Task Force recommendations. See id.

On November 30, 2011, the Board denied the motion to

reconsider, finding that the Commission’s adoption of the

Task Force recommendations had not “materially changed

matters.” Id. at 5. The Board noted that there had been no

express request that it reconsider the framework underlying its

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prematurity decision in LBP-11-27, and it declined to do so.

Id. at 3-4.

On February 9, 2012, the Commission handed down its

opinion resulting from its September 27 and 28, 2011,

mandatory hearing on the Vogtle licensing application. See S.

Nuclear Operating Co., CLI-12-02, slip op. at 2 (Feb. 9,

2012). Under Commission precedent, participation in the

hearing was appropriately limited to Southern and NRC staff,

and the hearing addressed only the sufficiency of the staff’s

review of Southern’s license application. See Exelon

Generation, 62 N.R.C. at 49-50. At the hearing, NRC

technical staff confirmed that the AP1000 design certification

and the Vogtle licenses met current safety and environmental

standards. S. Nuclear Operating Co., CLI-12-02, slip op. at

22. NRC staff testified that Fukushima-like accidents have an

“extremely low probability,” despite their “potentially high

consequences.” Id. at 74. The Commission considered the

likelihood and consequences of potential severe accidents

similar to the Fukushima accident and found that the risks to

the AP1000 reactor design at the Vogtle site were “lower than

those for current generation plants.” Id. at 72-73.

NRC approved the combined license applications for the

Vogtle 3 and 4 reactors at the conclusion of the mandatory

hearing. The Commission found that the staff’s review

adequately supported the requisite safety and environmental

findings under 10 C.F.R. §§ 52.97, 51.107(a) & (d), and

50.10, that all NEPA requirements had been met, and that the

staff had followed an appropriate process for assessing “new

and significant” information. See id. at 2, 79. In addition, the

Commission restated that no plant, including Vogtle, would

be exempt from Task Force recommendations enacted in the

future:

All affected nuclear plants will be required to comply with

NRC direction resulting from lessons learned from the

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Fukushima accident, regardless of the timing of issuance of

the affected licenses. We therefore expect the new Vogtle

units will comply with all applicable “post-Fukushima”

requirements.

Id. at 82. NRC found it premature to order implementation of

the Task Force recommendations, as many recommendations

were still in development and not yet formulated into

regulations. Instead, the Commission stated that it would not

establish new regulatory processes or requirements until after

taking sufficient time to “ensure that any new requirements

are technically justified and implemented appropriately.” Id.

Commission Chairman Jaczko dissented from the

Commission’s decision, stating that he would not “authorize

issuance of these licenses without any binding obligation that

these plants will have implemented the lessons learned from

the Fukushima accident before they operate.” Id. (Jaczko, C.,

dissenting) slip op. at 1. Even Chairman Jaczko, however, did

not argue that a supplemental EIS was necessary before the

Vogtle licenses could proceed; his dissent was based solely on

his belief that the Commission should have demanded

assurances of compliance with future safety requirements, not

current environmental shortcomings.

On March 16, 2012, the Commission upheld the Board’s

denial of Petitioners’ contention, agreeing that Petitioners had

“not identified environmental effects from the Fukushima

Dai-ichi events that can be concretely evaluated at this time,

or identified specific new information challenging the site-

specific environmental assessments” for Vogtle. Luminant

Generation Co., CLI-12-07, slip op. at 9. The Commission

held that the Task Force’s recommendations did not

themselves identify any environmentally significant

information for Vogtle, and Petitioners did not explain how

any particular recommendation related to the Vogtle licenses

in a manner that mandated a supplemental EIS. NRC held that

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the Task Force recommendations, standing alone, did not

provide sufficient support for an admissible contention.

Rather, the Commission held that a valid contention must

“include facts sufficient to demonstrate a genuine dispute”

with the license application; a contention that merely alludes

to Task Force findings “is too vague . . . for litigation.” Id. at

13-14.

The Commission also found that Petitioners failed to

demonstrate that the Task Force Report presented a “seriously

different picture of the environmental impact of the proposed

project from what was previously envisioned” that would

necessitate a supplemental EIS. Id. at 10. NRC held that

“reference to the Task Force Report recommendations alone,

without facts or expert opinion that explain their significance

for the unique characteristics” of the Vogtle reactors “does

not provide sufficient support” to demand further NEPA

review. Id. at 13. NRC ruled that the same lack of specificity

was also fatal to Petitioners’ attempt to meet NRC’s “more

stringent reopening rule” and to require Southern to

supplement the Vogtle EIS. Id. at 14 n.47.

On April 16, 2012, the Commission denied Petitioners’

motion to stay the effectiveness of the Vogtle licensing

decision, pending review by this court. The Commission

reiterated its conclusion that Petitioners “have not

demonstrated that the Fukushima events or any regulatory

response to those events would raise environmental impacts

that differ significantly from the impacts that the NRC has

already reviewed and addressed” in approving the Vogtle

licenses. See S. Nuclear Operating Co., CLI-12-11, slip op. at

12-13 (Apr. 16, 2012).

On February 17, 2012, Petitioners sought review of the

NRC’s AP1000 rule. A month later, Petitioners sought review

of the Commission’s decisions rejecting Petitioners’

contentions and of all the authorizations resulting from the

19

approval of the Vogtle licenses. On April 3, 2012, we

consolidated the petitions for review. After the Commission

denied Petitioners’ motion for a stay, Petitioners moved for a

stay in this court, which we denied.

On appeal before us now are (1) the amended AP1000

design certification rule, (2) the Commission’s rejection of

Petitioners’ contentions and motions to reopen the record to

supplement the Vogtle EIS, and (3) all the licensing

authorizations resulting from the Commission’s decision to

allow the Vogtle licenses to go forward. The specific

decisions implicated are:

 The AP1000 rule, Final Rule, AP1000 Design Certification

Amendment, 76 Fed. Reg. 82,079 (Dec. 30, 2011); and

 The Commission’s rejection of Petitioners’ contentions and

motions to reopen the record, and the resulting licenses and

work authorizations:

o Luminant Generation Co., LLC, CLI-12-07, slip op.

(Mar. 16, 2012);

o Luminant Generation Co., LLC, LBP-11-36, slip op.

(Nov. 30, 2011);

o Vogtle Electric Generating Plant, Units 3 and 4;

Issuance of Combined Licenses and Limited Work

Authorizations and Record of Decision, 77 Fed. Reg.

12,332-02 (Feb. 29, 2012);

o Combined License No. NPF-91 (Vogtle Electric

Generating Plant Unit 3) (Feb. 10, 2012), reprinted in

J.A. 35;

o Combined License No. NPF-92 (Vogtle Electric

Generating Plant Unit 4) (Feb. 10, 2012), reprinted in

J.A. 53;

20

o Limited Work Authorization No. LWA-001, (Vogtle

Electric Generating Plant Unit 3) (Feb. 10, 2012),

reprinted in J.A. 71; and

o Limited Work Authorization No. LWA-002, (Vogtle

Electric Generating Plant Unit 4) (Feb. 10, 2012),

reprinted in J.A. 83.

III. STANDARD OF REVIEW

This court will set aside an agency rule or licensing

decision only if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A); see also, e.g., Advocates for Highway & Auto

Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136,

1144 (D.C. Cir. 2005).

The arbitrary and capricious standard also controls our

review of agency actions with respect to any substantive

environmental issues that are properly before the court. We

may set aside such actions only if we find that NRC

committed “a clear error of judgment.” Marsh, 490 U.S. at

385. We owe deference to NRC’s decision not to supplement

either its EA for the AP1000 reactor design or its EIS for the

Vogtle reactors. See id. (finding that the agency “conducted a

reasoned evaluation of the relevant information and reached a

decision that, although perhaps disputable, was not ‘arbitrary

or capricious’”); see also Great Old Broads for Wilderness v.

Kimbell, 709 F.3d 836, 853-55 (9th Cir. 2013) (reviewing

decision not to supplement an EIS under the deferential

“arbitrary or capricious” standard).

To the extent that NRC’s technical judgments and

predictions are before the court for review, we “must

generally be at [our] most deferential.” Balt. Gas & Elec. Co.

v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983).

We are obligated to “defer to the wisdom of the agency,

21

provided its decision is reasoned and rational.” Dillmon v.

Nat’l Transp. Safety Bd., 588 F.3d 1085, 1089 (D.C. Cir.

2009).

In reviewing NRC’s interpretations of its own rules –

here, notably, its rules governing the reopening of closed

proceedings and governing contention admissibility – we give

“controlling weight” to the agency’s constructions unless they

are “plainly erroneous or inconsistent with the regulation.”

City of Idaho Falls, Idaho v. FERC, 629 F.3d 222, 228 (D.C.

Cir. 2011).

NRC’s interpretation of its enabling legislation is

reviewed pursuant to the familiar standards enunciated in

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842-45 (1984). See also, e.g., Nuclear

Info. Res. Serv., 969 F.2d at 1173. An agency’s interpretation

of its governing statute is entitled to no judicial deference if

“Congress has directly spoken to the precise question at

issue.” Chevron, 467 U.S. at 842. If, as in this case, “Congress

has explicitly left a gap for the agency to fill, there is an

express delegation of authority to the agency to elucidate a

specific provision of the statute by regulation. Such legislative

regulations are given controlling weight unless they are

arbitrary, capricious, or manifestly contrary to the statute.” Id.

at 843-44. We have previously endorsed NRC’s “high

standards” for reopening closed hearings and the “stringency

of those criteria.” Deukmejian, 751 F.2d at 1316. We are

therefore bound to defer to NRC’s implementation of its

contention-specificity regulations.

We are also “obliged to defer to the operating procedures

employed by an agency when the governing statute requires

only that a ‘hearing’ be held.” Union of Concerned Scientists,

920 F.2d at 54. As a result, we consider with due deference

NRC’s rejection of Petitioners’ objections to the agency

procedures at issue here.

22

IV. ANALYSIS

A. NRC’s Refusal to Admit Petitioners’ Contentions

NRC regulations dictate the criteria that a party’s

contention must meet in order to initiate a contested hearing.

See 10 C.F.R. § 2.309(f)(1). Because we have held that

NRC’s “procedural rules [under 10 C.F.R. § 2.309(f)] do not

facially violate the Atomic Energy Act or the APA [and] they

are also consistent with NEPA,” Union of Concerned

Scientists, 920 F.2d at 56-57, and because we find that NRC

reasonably applied these rules in evaluating Petitioners’

contentions, we defer to NRC’s rejection of Petitioners’

contentions.

After carefully reviewing the record in this case, we hold

that the Commission acted reasonably in denying Petitioners’

contentions on the grounds that they (1) failed to “[p]rovide

a . . . statement of the alleged facts or expert opinions which

support the requestor’s/petitioner’s position,” 10 C.F.R.

§ 2.309(f)(1)(v), and (2) failed to “include references to

specific portions of the . . . environmental report . . . that the

petitioner disputes and the supporting reasons,” id.

§ 2.309(f)(1)(vi). See Luminant Generation Co., CLI-12-07,

slip op. at 13 n.43.

1. The Task Force Report Alone Was Not a “New and

Significant” Circumstance Requiring a Supplemental

EIS

Petitioners failed to indicate any environmental data that

were not considered in the EIS. Because Petitioners failed to

point to any specific shortcoming in the EIS, NRC reasonably

found Petitioners’ contentions insufficient to support a

contested hearing. The Commission clearly stated its reasons

for refusing to admit Petitioners’ contentions:

23

We expect Petitioners to identify information that was not

considered in the environmental review for the application at

issue and explain, with asserted facts or expert opinion, how it

presents “a seriously different picture of the environmental

impact of the proposed project from what was previously

envisioned.”

Id. at 13. This explanation is well-supported by the record and

represents a reasonable interpretation of NRC’s contention-

specificity regulations. See 10 C.F.R. § 2.309(f).

Under NEPA, NRC is obligated to undertake a

supplemental EIS only when presented with “substantial

changes in the proposed action that are relevant to

environmental concerns” or “new and significant

circumstances or information relevant to environmental

concerns and bearing on the proposed action or its impacts”

after the EIS is assembled. 10 C.F.R. § 51.92(a)(1)-(2); see

also id. § 51.72(a)(1)-(2). “New and significant” information

presents “a seriously different picture of the environmental

impact of the proposed project from what was previously

envisioned.” Hydro Res., Inc., 50 N.R.C. 3, 14 (1999); see

also Marsh, 490 U.S. at 374 (looking to “the value of the new

information to the still pending decisionmaking process” and

requiring a supplemental EIS only if the new information is

sufficient to show environmental effects “in a significant

manner or to a significant extent not already considered”).

The determination as to whether information is either new or

significant “requires a high level of technical expertise”; thus,

we “defer to the informed discretion of the [Commission].”

Marsh, 490 U.S. at 377.

Petitioners contend that the Task Force recommendations

give rise to an obligation to supplement the Vogtle EIS

because the recommendations may alter NRC regulations in

the years ahead. Thus, in Petitioners’ view, the Vogtle

licenses necessarily must be delayed until the

24

recommendations are finalized. We rejected a similar line of

reasoning in Union of Concerned Scientists:

Information raised in the environmental reports does not

amount to a new material “issue” simply because it adds

marginal weight to the case of an opponent or a proponent of a

license; the reports instead raise a new “issue” only when the

argument itself (as distinct from its chances of success) was

not apparent at the time of the application. Although the

concepts of new issues and new evidence are analytically

distinct, we recognize that in practice they can converge – the

demarcation line may depend on how the “issue” is stated.

Still, whether an actual new “issue” is raised is a matter for the

NRC to determine in the first instance and is reviewed

deferentially.

920 F.2d at 55.

It is also noteworthy that the position taken by the

Commission in this case is consistent with holdings reached

by Atomic Safety and Licensing Boards in licensing

proceedings for other locations. In these proceedings, the

Boards have found that the Task Force Report alone does not

provide a sufficient foundation for an admissible contention.

See Pac. Gas & Elec. Co., LBP-11-32, slip op. at 19 (Nov. 18,

2011) (finding a proposed contention inadmissible because

the petitioner “offer[ed] nothing to link the outcome of the

Fukushima events” to the pending license renewal

application), review denied at Pac. Gas & Elec. Co., CLI-12-

13 (Jun. 7, 2012); Fla. Power & Light Co., LBP-11-33, slip

op. at 8 (Nov. 21, 2011) (rejecting proposed contention

because the petitioners “allege[d] no facts linking the events

at Fukushima to the sufficiency of NEPA-related documents”

for the pending combined license application). Obviously,

these Board decisions do not control the disposition of this

case, but they do give further credence to the view that the

Task Force Report alone does not support Petitioners’

position.

25

In this case, NRC’s original EIS for Vogtle considered

precisely the types of harm that occurred as a result of the

Fukushima accident. The EIS considered consequences and

mitigation of severe accidents involving reactor core damage

and the release of fission products. See Vogtle EIS at § 5.10,

reprinted in J.A. 805-09; see also Final Environmental Impact

Statement for an Early Site Permit (ESP) at the Vogtle

Electric Generating Plant Site, § 5.10.2 (Aug. 2008) (“Vogtle

ESP EIS”), reprinted in J.A. 835-44. In addition, the EIS for

the Vogtle early site permit evaluated the human health

impacts, economic costs, and land contamination risks,

concluding that the environmental risks associated with

severe accidents from an AP1000 reactor at the Vogtle site

“would be small compared to risks associated with operation

of the current-generation reactors at [Vogtle]” and were “well

below NRC safety goals.” Vogtle ESP EIS at 5-81, 5-89,

reprinted in J.A. 836, 844.

Petitioners’ contentions provide no explanation as to how

the Task Force Report recommendations raise previously

unaddressed issues. See Union of Concerned Scientists, 920

F.2d at 55. The Commission reasonably concluded that, for

their contentions to be admitted for consideration, Petitioners

were required to cite particular information that was missing

from the Vogtle EIS based on particular recommendations

from the Task Force. See Luminant Generation Co., CLI-12-

07, slip op. at 13; PPL Bell Bend, LBP-11-27, slip op. at 13.

Petitioners failed to do this.

Petitioners argue that, once NRC described the

Fukushima accident as “significant,” the agency was

obligated to generate new environmental reports for all

implicated pending sites and reactor designs. This argument is

clearly unavailing, as it relies on Petitioners’ elision of “safety

significance” with “environmental significance.” In the case

on which Petitioners chiefly rely, San Luis Obispo Mothers

26

for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006), NRC had

categorically declined to consider any environmental

consequences resulting from terrorism-related threats. The

Ninth Circuit thus overturned the Commission’s decision. Id.

at 1031. The situation here is quite different. In this case,

NRC thoroughly analyzed the environmental consequences of

severe accidents for Vogtle. See Vogtle ESP EIS at § 5.10.2,

reprinted in J.A. 835-44; Vogtle EIS at § 5.10, reprinted in

J.A. 805-09. Chairman Jaczko, the lone dissenter from the

issuance of the Vogtle licenses, objected because he sought

greater assurances that the Vogtle reactors would remain in

compliance with future safety regulations. The Chairman did

not contend that his concerns about safety standards created

present environmental concerns; and he did not claim that

there were any present shortcomings at the Vogtle site or any

need for additional NEPA review. See generally S. Nuclear

Operating Co., CLI-12-02, slip op. (Jaczko, C., dissenting).

“[N]ew information about nuclear power plant safety

arising between the time of the initial application and the

commencement of operations” does not necessarily provide

cause for additional NEPA review. Union of Concerned

Scientists, 920 F.2d at 55. And it does not create such cause

here because the EIS addressed and dismissed precisely the

risks that gave rise to the Fukushima accident. The

Commission reasonably found that it was not obligated to

postpone its decision “until inchoate information matures into

something that might later affect [its] review.” Luminant

Generation Co., CLI-12-07, slip op. at 14; see also N.J. Dep’t

of Envtl. Prot. v. NRC, 561 F.3d 132, 143 (3d Cir. 2009)

(holding that “precautionary actions to guard against a

particular risk do not trigger a duty to perform a NEPA

analysis”).

Furthermore, as noted above, both the Task Force and

NRC noted that further regulatory initiatives would be

27

possible, as necessary, after the Commission studied the Task

Force recommendations. See S. Nuclear Operating Co., CLI-

12-02, slip op. at 81-82. However, merely because the

Commission might impose more stringent safety regulations

after carefully assessing the Task Force recommendations

does not mean that the agency’s present actions are

inconsistent with NEPA.

Without an explanation from Petitioners as to what

specific “new and significant” environmental information

NRC failed to consider, or what deficiency in the existing EIS

it failed to rectify, NRC reasonably found that Petitioners’

contentions did not warrant a contested hearing. Petitioners’

attempts to rely on future safety concerns in lieu of present

environmental risks do not create an obligation for further

NEPA review.

2. Petitioners’ Contentions Lacked Specific Links

Between the Fukushima Accident and the Vogtle Site

After the Task Force issued its report, the Commission

rejected as premature Petitioners’ requests for a generic

NEPA review arising out of the Task Force Report. The

Commission held that if “new and significant information

comes to light that requires consideration as part of the

ongoing preparation of application-specific NEPA documents,

the agency will assess the significance of that information, as

appropriate.” Union Elec., CLI-11-05, 74 N.R.C. at 167.

Petitioners do not challenge this decision on appeal, but

instead “attempt to distinguish CLI-11-[0]5 by claiming that

[the Commission’s] holding there rested on a finding that

sufficient information was not yet available to conduct a

generic analysis,” and that such information now exists.

Luminant Generation Co., CLI-12-07, slip op. at 9. The

Commission rejected this argument and upheld the Board’s

ruling “that Petitioners did not relate their contention to any

unique characteristics of the particular site at issue, and

28

therefore, the contention was akin to the generic type of

NEPA review that we declared premature in CLI-11-[0]5.” Id.

(citing PPL Bell Bend, LBP-11-27, slip op. at 13-14).

The First Circuit, addressing an appeal from NRC’s

denial of other post-Fukushima objections to plant licensing

actions, held that a petitioner’s “mere pointing to a piece of

information and speculating that the results of the

[environmental risk analysis] may be different was not

sufficient to meet” the Commission’s stringent standards for

reopening a closed proceeding. Massachusetts v. NRC, 708

F.3d 63, 76-77 (1st Cir. 2013). We agree. We therefore

uphold NRC’s determination that its rejection of Petitioners’

contentions as “premature” was governed by its decision in

CLI-11-05.

In light of the Commission’s decision in CLI-11-05,

Petitioners were obligated to present a contention sufficiently

detailed and specifically related to the challenged reactor

location to demonstrate how the contention differed from the

“premature” generic request that the Commission denied in

CLI-11-05. Absent any evidence – or even allegation –

linking the conditions at the Vogtle site itself to the Task

Force recommendations, NRC appropriately applied the

applicable contention-specificity regulations in declining to

admit Petitioners’ contentions. We defer to the Commission’s

judgment. See Idaho Falls, 629 F.3d at 228.

B. Declining to Allow Petitioners to Intervene in

Mandatory Hearing

Petitioners challenge their exclusion from NRC’s

mandatory hearing regarding the Vogtle licenses. Their claim

is meritless. As discussed above, there was no need for an

additional contested hearing once NRC reasonably denied

Petitioners’ contentions. Petitioners participated in two

29

contested hearings related to the Vogtle licenses. They had no

right to participate in the Commission’s “mandatory” hearing.

Mandatory hearings are “sufficiency” reviews, designed

to assess the efforts of the NRC staff and determine whether

the safety and environmental record is sufficient to support

the license. Participation in these hearings is limited to the

license applicant and NRC staff. Exelon Generation, 62

N.R.C. at 49-50 (2005) (petitioners are “barred from

participating in the uncontested portion of the hearing”).

Petitioners point to no statutory or regulatory provision, nor

agency practice, affording them a right to participate in a

mandatory hearing. We therefore reject their claim on this

point.

C. Approval of AP1000 Reactor Design Certification

Finally, we hold that NRC properly declined to

supplement its existing EA for the AP1000 design

certification amendment before adopting the final rule. The

EA for a design certification amendment considers only

whether the design change that is the subject of the proposed

amendment renders a previously rejected Severe Accident

Mitigation Design Alternative cost beneficial or identifies a

new alternative necessitating its own cost-benefit analysis.

See 10 C.F.R. § 51.30(d). The Commission reasonably found

that the existing AP1000 EA adequately considered Severe

Accident Mitigation Design Alternatives.

In considering the AP1000 design certification

amendment, NRC reexamined the probability that a severe

accident might occur and concluded that potential design

changes did not affect its original evaluations. Environmental

Assessment by NRC Relating to the Certification of the

Amendment to the AP1000 Standard Plant Design, Docket

No. 52-006 at 5, (Dec. 22, 2011), reprinted in J.A. 224; see

also AP1000 Design Certification Amendment, 76 Fed. Reg.

30

at 82,096; NRC Responses to Public Comments, Final Rule:

Amendment to AP1000 Design Certification Rule at 15-23

(Dec. 2011), reprinted in J.A. 268-76 (detailing public

comments and explaining why no supplemental EA was

necessary); id. at 44-45, reprinted in J.A. 280-81 (detailing

the reasons no additional Severe Accident Design Mitigation

Alternatives were necessary). NRC erred “on the side of high

consequences” and concluded that the AP1000 EA “make[s] a

convincing case that no identified [Severe Accident

Mitigation Design Alternative] is worth the expense.” NRC

Responses to Public Comments at 45, reprinted in J.A. 281.

Petitioners do not challenge this analysis, nor do they connect

any of the Task Force recommendations to any alternative

that NRC failed to consider. Without an explicit challenge,

NRC appropriately relied on its 2011 EA in approving the

final AP1000 rule amendment. Indeed, the Task Force Report

“supports completing [the AP1000] design certification

rulemaking activities without delay.” Task Force Report at

71-72; see also AP1000 Design Certification Amendment, 76

Fed. Reg. at 82,083.

Petitioners have failed to demonstrate that NRC acted

less than reasonably in declining to order a supplemental EA

for the AP1000 design certification amendment. We therefore

defer to the Commission’s conclusion that such a supplement

was unnecessary.

V. CONCLUSION

For the foregoing reasons, the petition for review is

denied.