Opposition Brief — Kelley v. Selin

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No. 94-1702 ie

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In the Supreme Court of the United States

OCTOBER TERM, 1994

FRANK J. KELLEY, ATTORNEY GENERAL

OF MICHIGAN, ET AL., PETITIONERS

Vv.

IVAN SELIN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

VO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

Drew S. Days, IIT

Solicitor General

Lots J. SCHIFFER

Assistant Attorney General

JOHN F. CORDES ALBERT M. FERLO, JR.

Solicitor Attorney

E. LEO SLAGGIE Department of Justice

Deputy Solicitor Washington, D.C. 20530

PETER G. CRANE (202) 514-2217

Attorney

U.S. Nuclear Regulatory Commission

Washington, D.C. 20555

"BEST AVAILABLE COPY

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QUESTIONS PRESENTED

The Nuclear Waste Policy Act of 1982 (NWPA),

42 U.S.C. 10198(a), required the Nuclear Re gulatory

Commission (NRC) to establish procedures for the

generic approval of storage containers for spent

nuclear fuel “without, to the maximum extent

practicable, the need for additional site-specific ap-

provals.” Pursuant to the NWPA, the NRC deter-

mined that it was practicable ge nerically to approve

certain rugged and durable spent fuel storage casks

for use at any plant site alt the need for site-

specific approvals. The NRC thus promulgated a

final rule in 1990 generically approving four cask

designs, issuing a general license for their use at any

licensed power reactor site, and establishing proce-

dures for future generic approval of additional de-

signs. In 1993, the NRC promulgated a rule adding

a new cask design to the list of those it had ven-

erically approved. The questions presented are:

1. Whether, notwithstanding the Hobbs Act’s 60-

day limitation pericd, petitioners’ 1993 challenge to

the 1990 NRC rule was timely because the NRC

relied on that rule to approve a new cask design in

19938

2. Whether site-specific adjudicatory hearings are

required under the Atomic Energy Act of 1954. 42

U.S.C. 2289(a)(1)(A) (Supp. V 1998). and site-

specific environmental impact statements are required

under the National Environmental Policy Act of

1969, 42 U.S.C. 4321 et seq., before a utility may use

casks generically licensed for use at any facility

without site-specific approvals.

(1)

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SE er

TABLE OF CONTENTS

Page

ESE RR Penne ee nee Oe eo |

ERNE RM re Re On cee a a a iia 1

i ERE ka ee Sa oO ee nee a 1

RESIS RR eaten ne ener aden ii led elite asa alee 9

6 eae PO See oR I OP A LO 17

TABLE OF AUTHORITIES

Cases:

Baltimore Gas & Elec. Co. v. Natural Resources

Defense Council, Inc., 462 U.S. 87 (1983)........ 16, 17

Edison Elec. Inst. v. United States EPA, 996 F.2d

SU ee ss simmgtigbbiiedsimaucnee, 13, 14

Limerick Ecology Action, Inc. v. United States

NRC, 869 F.2d 719 (3d Cir. 1989) _.......0... 16

Lujan V. National Wildlife Fed’n, 497 U.S. 871

(1990) . ands aa 8, 11,12

Nuclear Information Resouree Servi ice V. DM "RC, 969

P.2a 1568 (*.C. Cir. 1992) ................... 15

Public Citizen v. NRC, 901 F.2d 147 (D.C. Cir.),

cert. denied, 498 U.S. 992 (1990)... 13

Reno Vv. Catholic Social Services, Inc., 113 S. Ct.

AE eee aaa a 8, 11,12

State of Ohio Vv. United States EPA, 838 F.2d 1325

I 13

Union of Concerned Scientists v. United States

Regulatory Comm’n, 920 F.2d 50 (D.C. Cir.

UE te | EAA SLOT RTO READ es Soles 6

Statutes and regulations:

Atomic Energy Act, 42 U.S.C. 2239 et seq.:

§ 189(a), 42 U.S.C. 2239(a) . pape ea 10

§ 189(a), 42 U.S.C. 2239 (a) (1) (A) ...5, 6, 9, 14

BS FOO CD), SE UT. SEO) one vccccccccccccceccceess- 10

(IIT)

IV

Statutes and regulations—Continued: Page

National Environmental Policy Act, 42 U.S.C. 4321

| | Se AREA TOL EOS EE Tre ON OEM AOR lS P Pa 1

S 102, 42 U.S.C. 46322) (> ..................-...... 6, 7

Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101

et seq.:

BD Ue mie ROTBETOEAG. .....<.ccccecccnceccacceese--- joo 2

42 US.C. 10189 {c) ................. pian 10

42 U.S.C. 10151-10157 ..... eee hae 2

42 U.S.C. 10153 ote ras eee 2

42 U.S.C. 10198 (a) ... aie a 5 _.2, 6, 14

28 U.S.C. 2342(4) ...... mite ' 9, 10

SAR. Se.” | EME ND TPT RL EE Ta 10

10 C.F.R.:

Section 2.206 NS Roe a MSE REF 13

Re 3

rt. Ta:

SUR noe ; an 3

Section 72.210 3

Section 72.212 oe 3

Section 72.214 EIN PEER 2 3

Subpt. L ......... mes oo 3

55 Fed. Reg. (1990):

t p. 29,181

p. 29,183

p. 29,186

L. 29,187

pp. 29,191-29,193

pp. 29,193-29,194

QF *)

Pp. Ose x4

7 + . 25 eH Fe

en ee ee eee ee

56 Fed. Keg. 41,870 (1991) 4,13

57 Fed. Reg. 28,645-28,647 (1992) 5, 14

58 Fed. Reg. (1993):

p. 17,950 Sars Cae | 5

pp. 17,950-17,951 14

In the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1702

FRANK J. KELLEY, ATTORNEY GENERAL

OF MICHIGAN, ET AL., PETITIONERS

v.

IVAN SELIN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

la-40a) is reported at 42 F.3d 1501. The opinion of

the district court (Pet. App. 41a-51la) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on January 11, 1995. The petition for a writ of cer-

tiorari was filed on April 11, 1995. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Congress enacted the Nuclear Waste Policy Act

of 1982 (NWPA), 42 U.S.C. 10101 eft seq., in re-

(1)

te)

— ———

)

sponse to growing concerns that the nation lacked

facilities for the permanent disposal of high-level

nuclear waste, including spent fuel from nuclear

power plants licensed by the Nuclear Regulatory

Commission (NRC). Without a means for perma-

nent disposal of accumulating spent fuel, utilities

stored it at nuclear plant sites in pools designed

only for temporary storage of limited amounts of

spent fuel. Congress recognized that the spent fuel

pools at several nuclear power plants were filling up,

creating a risk of premature shutdown of those

plants. See Pet. App. 39a.

The NWPA set a schedule for the siting, construe-

tion, and operation of permanent federal repositories

for the disposal of high-level nuclear waste. 42

U.S.C. 10131-10145. That Act also addressed the

immediate need for additional spent fuel storage

capacity by speeding the development, approval, and

deployment of interim on-site storage technologies.

See generally 42 U.S.C. 10151-10157. In that regard,

the NWPA directed the Secretary of Energy to es-

tablish a demonstration program for the dry storage

of spent fuel at existing nuclear plants in “‘fuel stor-

age casks, caissons, or silos.” 42 U.S.C. 10198(a).

The objective of the demonstration program was to

establish “fone or more technologies that the [ Nuclear

regulatory} Commission may, by rule, approve for

use at the sites of civilian nuclear power reactors

without, to the maximum extent practicable, the need

for additional site-specific approvals by the Commis-

sion.” Ibid. The NWPA further provided that the

“Commission shall, by rule, establish procedures for

the licensing of any technology approved by the Com-

mission under [42 U.S.C. 10198(a)] for use at the

site of any civilian nuclear power reactor.” 42 U.S.C.

10158.

tod

The NRC found that it is practicable to construct

casks sufficiently durable and resistant to extreme

environmental conditions as to be usable for interim

spent fuel storage at any reactor site. 55 Fed. Reg.

29,185 (1990). Thus, in 1990, the NRC implemented

NWPA’s statutory directive by prom made a rule

referred to as Subpart K. 10 C.F.R. Pt. 72 Subpt.

K. That rule granted generic approval of four spent

fuel storage cask designs, 55 Fed Reg. 29,191-29,193:

10 C.F.R. 72.214 (1991), and generally licenses

utilities to use any approved cask at any licensed

1uclear power plant for a period of up to 20 years,

provided that the utility meets certain detailed condi-

tions, 10 C.F.R. 72.210, 72.212. At the same time

the NRC promalgated Subpart L, which established

regulatory procedures for adding cask designs to

the approval list. 10 C.F.R. Pt. 72 Subpt. L. See

9) Fed. Reg. 29,181, 29,193-29,194 (1990).

The NRC determined that Environmental Impact

Statements (EIS) were not required for storage of

spent fuel in NRC-approved casks at reactor sites.

and that only an overall Environmental Assessment

(EA) was required. 55 Fed. Reg. 29,187 (1990):

see 10 C.F.R. 51.23. The NRC explained that “free-

standing casks, being very strong and massive struc-

tures, are independent of the effects of site-specific

natural phenomena.” 55 Fed. Reg. 29,186 (1990)

(quoted in Pet. App. 23a). The NRC thus published

an EA with the 1990 rule. The EA reviewed more

than 30 years of experience in the United States and

abroad with dry storage of spent fuel, and pound

that on-site use of casks meeting the rule’s rigorou

criteria would have insignificant environmental im-

pacts. C.A. App. 464-482; see Gov’t. C.A. Br. 7-8

a ee

4

When the NRC promulgated its final rule in 1990,

it had under consideration an application by the

Consumers Power Company (Consumers) for a li-

cense amendment to allow Consumers to construct

and use dry casks at the Palisades Nuclear Plant in

Van Buren County, Michigan (Palisades). Pet. App.

4a-5a. The NRC had issued a notice of opportunity

for hearing on the proposed license amendment, and

had received a number of responses. On August 17,

1990, when the new rule became effective, however,

Consumers withdrew its application on the ground

that “the need for a site-specific proceeding is mooted

by adoption of the new rule.” Consumers’ Opp. App.

2-3. Consumers’ withdrawal letter to the NRC ex-

plained that “the Company * * * intends to utilize

the general license granted in new Subpart K when

it is able to satisfy the conditions of the general

license,” and stated that it was sending copies of its

letter to all those who petitioned for a hearing on

its proposed license amendment. Jbid.; see also 55

Fed. Reg. 35,384 (1990) (noting availability of letter

for public inspection). Despite the public notice of

Consumers’ intent to construct storage casks at

-alisades under Subpart K without further site-

specific approval, neither petitioners nor any other

persons then sought review of Subpart K.

In April, 1991, the manufacturer of a cask design

referred to as VSC-24 applied to the NRC to add

that design to the list of cask designs the NRC had

generically approved. The manufacturer also then

requested an exemption from NRC regulations to

permit construction of VSC-24 casks at the Palisades

site before NRC’s generic approval of the cask.

Notice of that exemption request was published in

the Federal Register, 56 Fed. Reg. 41,870 (1991),

5

and the NRC received no objections to the proposed

exemption.

In June, 1992, the NRC issued a notice of proposed

rule, stating its intent to grant generic approval for

the VSC-24 cask. 57 Fed. Reg. 28,645-28,647 (1992).

In December, 1992, petitioner Frank J. Kelley, Attor-

ney General of Michigan, wrote to the NRC Chair-

man, respondent Ivan Selin, to express his concerns

about the proposed use of VSC-24 casks at Palisades.

Corrected Index of Record No. 273 Attach. Kelley

acknowledged that “the NRC is not required to hold

a public hearing,” but asked that the NRC nonethe-

less exercise its discretion to hold an adjudicatory

hearing. Ibid. The NRC declined to do so, but did

conduct an informal public meeting at which peti-

tioner Kelley and others presented their views and

NRC officials responded to questions. See 58 Fed.

Reg. 17,950 (1993). On April 7, 1993, the NRC

published its final rule adding the VSC-24 cask to

the list of approved designs.

2. On May 4, 1993, three days before the effective

date of the rule adding the VSC-24 to the list of

generically approved casks, petitioners filed a com-

plaint in district court seeking an injunction and a

temporary restraining order prohibiting Consumers

from loading fuel into VSC-24 casks. The district

court dismissed the action on May 10, 1993. for lack

of jurisdiction (Pet. App. 41a-52a). and transferred

the case to the court of appeals (id. at 58a-54a).

3. In the court of appeals, petitioners contended

that the NRC’s failure to hold an adjudicatory hear-

ing on Consumers’ proposed use of VSC-24 casks vio-

lated Section 189(a) of the Atomic Energy Act of

1954 (AEA), 42 U.S.C. 2239(a)(1)(A) (Supp. V

1993), and that the Commission’s failure to issue a

site-specific environmental impact statement violated

6

the National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. 4882(2) (C).

The court of appeals denied petitioners’ claims.

The court held that no adjudicatory hearing regard-

ing the proposed use of VSC-24 casks at Palisades

was required. The generic approval of designs for

spent fuel storage casks was, the court held, “exactly

the type of NRC decision which may be the subject

of generic rulemaking” under the NWPA, 42 U.S.C.

10198(a). Pet. App. 22a. In any event, the Atomic

Energy Act, upon which petitioners relied, “nowhere

describes the content of a hearing or prescribes the

manner in which this ‘hearing’ is to be run.” Pet.

App. 17a (quoting Union of Concerned Scientists v.

United States Nuclear Regulatory Comm'n, 920 F.2d

50, 53 (D.C. Cir. 1990) ); see also Pet. App. 21a-22¢

(“nothing in the applicable statutes or the relevant

precedents compels the NRC to hold a formal adjudi-

catory hearing’’).’ The court pointed out that, “[a]!-

though the NRC denied petitioners’ request for an

adjudicatory hearing concerning the use of the VSC-

24 casks at Palisades, the NRC did hold a ‘hearing’

at which Michigan citizens were able to comment.”

‘Section 189(a) of the Atomic Energy Act, 42 U.S.C.

2239(a) (1) (A) (Supp. V 1993), provides:

In any proceeding under this chapter, for the granting,

suspending, revoking, or amending of any license or

construction permit, or application to transfer control,

and in any proceeding for the issuance or modification

of rules and regulations dealing with the activities of

licensees, * * the [Nuclear Regulatory] Commission

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.

7

Pet. App. 2la. The court of appeals also observed

that, even insofar as site-specific issues are con-

cerned, hearing rights under the AEA are limited to

issues “material to [a] licensing decision,” and that

“[t]here [wa]s no licensing decision being made

here,” where no greater operating capacity was

granted, and no safety requirements or other rules

were changed. Jd. at 25a-26a.

The court of appeals also upheld the NRC’s deci-

sion to issue only a generic Envionmental Assessment

on the environmental impact of dry cask storage.

Pet. App. 32a-39a. The court held that the NRC

had sufficient grounds for its conclusion that the

19953 rule approving the VSC-24 cask was not a

“major Federal action significantly affecting the

quality of the human environment” and that an en-

vironmental impact statement was therefore not re-

quired under the National Environmental Policy Act,

12 U.S.C. 4332(2)(C). Pet. App. 32a. The court

concluded that, in its EA, “the NRC did take a ‘hard

look’ at the environmental consequences of its action,

as required by NEPA.” /d. at 39a. The court re-

jected petitioners’ NEPA claim as “essentially an

attack on the policy choice made by Congress, and

embodied in the NWPA,” to empower the NRC to

promulgate rules generically authorizing on-site spent

nuclear fuel storage. bid.

- Section 102 of the National Environmental Policy Act, 42

U.S.C. 4332(2)(C), requires federal agencies to include an

Environmental Impact Statement in every recommendation

or report on “major Federal actions significantly affecting

the quality of the human environment.”

*The court of appeals also observed that petitioners

acknowledged the propriety of a generic environmental as-

To the extent that petitioners’ claims required in-

validation of the procedures for generic approvals

established by the NRC’s 1990 rule, the court of

appeals held that they were barred by the Hobbs

Act’s 60-day period of limitation. Pet. App. 26a-27a

n.d. The court of appeals rejected the argument that,

under Reno v. Catholic Social Services, Ine., 113

S. Ct. 2485 (1993), and Lujan v. National Wildlife

Fed’n, 497 U.S. 871 (1990), petitioners could not

have challenged the 1990 rule until 1993, when the

NRC granted generic approval for the particular

cask design Consumers proposed to use at Palisades.

The court stated:

In this case, the NRC’s 1990 rule had an im-

mediate impact. After promulgation of the rule,

the very procedures about which petitioners now

complain were in place, and any civilian reactor

in the nation, including Palisades, was free to

use the approved storage systems.

Pet. App. 27a n.3. The court also rejected petition-

ers’ contention that the NRC “reopened” the 1990

rule (and thereby again subjected it to review) by

promulgating the 1993 rule. The court held that the

NRC in its 1993 rule merely added a new form of

storage cask to the list of approved systems, and did

not thereby “reconsider[] the propriety of its grant

of a general license” or “restructurf[e] its earlier

rules.” /bid.

(

Pam)

sessment “regarding truly generic issues posed by the VSC-24

sks.” Pet. App. 32a (quoting Pet. C.A. Br. 43). Other

than a “conclusory statement in their brief on appeal,” how-

ever, the court noted that “petitioners have not identified,

much less established, any factor requiring a site-specific

analysis before the VSC-24 cask could be added to the list of

approved casks.” Pet. App. 37a.

9

ARGUMENT

The NRC’s generic rather than site-specific proce-

dures for approving dry storage casks for interim

spent fuel storage properly implemented the mandate

of the Nuclear Waste Policy Act. That procedural

approach is consistent with the NRC’s obligations

under the Atomic Energy Act and National Environ-

mental Policy Act, and no court of appeals has held

to the contrary. To the extent that petitioners sought

in 1993 to challenge the NRC’s 1990 final rule adopt-

ing a generic approach to cask design approvals, the

court of appeals correctly held that their claims are

time-barred. No further review is warranted.

l.a. The court of appeals correctly concluded that

petitioners untimely challenged, and thus are bound

by, the procedural framework the NRC established

in its 1990 rule providing for generic approval of

spent fuel storage casks. It was only when Con-

sumers Power Company in 1993 began to use casks

the NRC had generically approved that petitioners

sought site-specific consideration. To the extent that

petitioners’ asserted harm flows from the 1990 rule,

their challenge comes too late.

Challenges to NRC rules ordinarily must be filed

within 60 days of their issuance. Appellate jurisdic-

tion to review “any proceeding for the issuance or

modification of rules and regulations dealing with

the activities of [NRC] licensees” is governed by the

Hobbs Act. 28 U.S.C. 2342(4); 42 U.S.C. 2239

(a)(1)(A) (Supp. V 1993). The Hobbs Act pro-

‘The Hobbs Act grants the courts of appeals ‘exclusive

jurisdiction to enjoin, set aside, suspend (in whole or in

part), or to determine the validity of” all “final orders of

the [Nuciear Regulatory] Commission made reviewable by

10

vides that ‘“[a]ny party aggrieved by the final order

may, Within 60 days after its entry, file a petition to

review the order.”” 28 U.S.C. 2344."

As petitioners acknowledged, Consumers gave no-

tice, in a letter to the NRC dated August 17, 1990,

of its withdrawal of its site-specific application. See

Pet. C.A. Br. 11-12. That same letter explicitly

stated Consumers’ intent to utilize the general license

granted in new Subpart K. Thus, contrary to peti-

tioners’ claim that Consumers in 1990 “apparently

abandoned” its plan to use dry storage casks at

Palisades (Pet. 5), Consumers in fact then gave

notice that it was withdrawing its site-specific ap-

plication only because the new rule had rendered

that procedure unnecessary. At that time, the Hobbs

Act’s 60-day period had not yet run. Petitioners

could have, but did not, request that the NRC re-

consider the 1990 rule at that time. If such a request

had been denied, petitioners would have had a timely

opportunity to challenge the rule in federal court.

Petitioners assert that the 60-day limitations per-

iod ran not from the promulgation of the 1990 rule,

but from the date in 1998 when the NRC added the

section 2239 of title 42.” 28 U.S.C. 2342(4). The Atomic

Energy Act, 42 U.S.C. 2239(b) (Supp. V 1998), defines such

reviewable orders to include “[a]ny final order entered in

any proceeding of the kind specified in [42 U.S.C. 22359 (a) ],”

which in turn refers to “any proceeding for the issuance or

modification of rules and regulations dealing with the activi-

ties of [NRC] licensees.”

* Even if the 1990 NRC rule were subject not to the Hobbs

Act’s 60-day time limit, but to the 180-day limit established

by the Nuclear Waste Policy Act (NWPA), 42 U.S.C.

10139(c), the time in which to seek review had lone since

expired when petitioners challenged that rule in 1993.

’

1]

VSC-24 cask design to the list of those it had gen-

erically approved. Relying on Reno v. Catholic Social

Services, Inc., 113 S. Ct. 2485 (1993), and Lujan vy.

National Wildlife Fed’n, 497 U.S. 871 (1990), peti-

tioners reason that before 1993, they had no ripe

claim against the 1990 rule because it had not yet

had a concrete effect on them. They thus contend

that their opportunity to challenge the 1990 rule

should be deemed to have first arisen in 1993. The

court of appeals correctly rejected that contention.

This Court in Catholic Social Services considered

claims raised by a class of aliens challenging Immi-

gration and Naturalization Service (INS) regula-

tions that potentially deprived them of the ability to

obtain temporary residence status. The Court held

the aliens’ claims unripe because temporary residence

Status is not “automatically bestowed on eligible

aliens”; rather, each alien desiring temporary resi-

dence is required to “take further affirmative steps,

and to satisfy criteria beyond those addressed by the

disputed regulations.” 113 S. Ct. at 2496. Here, in

contrast, “the NRC’s 1990 rule had an immediate

impact.” Pet. App. 26a n.3. The 1990 rule granted

a general license for use of approved casks without

regard to site-specific considerations, and established

the generic procedures by which the NRC added the

VSC-24 cask to the list of approved casks without a

site-specific hearing or environmental review. Peti-

tioners’ situation is thus precisely the converse of

that of the aliens in Catholic Social Services. Peti-

tioners’ claims were not unripe due to an unmet re-

quirement of “further affirmative steps”; rather,

their claims address the agency’s failure to require

any further steps before Consumers availed itself of

12

the benefits of the 1990 rule.” When no further

steps are required to trigger a regulation’s challenged

effect, the regulation is subject to immediate review.

This Court’s decision in Lujan is also not to the

contrary. The Court there rejected an amorphous

challenge to the Bureau of Land Management’s

(BLM) land withdrawal review program because, in

seeking to challenge that “program,” petitioners did

not “refer to a single BLM order or regulation, or

even to a completed universe of particular BLM

orders and regulations.” 497 U.S. at 890. The time-

barred claims in this case, in contrast, addressed the

clearly identifiable 1990 NRC rule.‘ Moreover, the

Court in Lujan observed that, unlike the Administra-

tive Procedure Act that governed there, “[s]ome

statutes permit broad regulations to serve as the

‘agency action,’ and thus to be the object of judicial

review directly, even before the concrete effects nor-

mally required for APA review are felt.” 497 U.S.

at 891. As the court of appeals here recognized, the

Hobbs Act amounts to just such specific statutory

authorization of challenges to NRC regulations. Pet.

* Petitioners’ challenges to such categorical approval are

thus more closely analogous to claims that this Court in

Catholic Social Services recognized might well have been ripe

—those of aliens subject to a categorical ‘“front-desking”’

policy of prefiling rejection of applications of aliens whom

INS personnel forecast would be ineligible under the chal-

lenged regulations. 113 S. Ct. at 2497-2499.

‘The Lujan Court acknowledged that the claim of a mem-

ber of one of the petitioner organizations would “no doubt”

be ripe for review once a mining permit application she iden-

tified as pending was granted. 497 U.S. at 892 n.3. Under

that logic, petitioners’ claims in this case were ripe as of

1990, because no site-specific application was required.

13

App. 26a n.3. Lujan is therefore inapplicable by its

own. terms.

Even if petitioners were correct that some action

in addition to the 1990 rule’s generic approval and

general licensing was required before their claims

would be wipe, such action took place in 1991. The

manufacturer of the VSC-24 casks then sought gen-

eric approval of the cask design and, in an action

announced by the NRC in a Federal Register notice,

asked the NRC for an exemption allowing immediate

construction of VSC-24 casks at the Palisades site

pending final approval by NRC of the cask design.

56 Fed. Reg. 41,870 (1991). Under their own timeli-

ness theory, petitioners could at that juncture have

objected to an exemption, requested reconsideration

of the 1990 rule, and/or filed a petition under 10

C.F.R. 2.206 protesting application of the generic

approach of the 1990 rule to the Palisades site. They

took no such steps.

b. The court of appeals correctly held that the

NRC’s 1993 rule did not restart the period for seek-

ing judicial review of the 1990 rule under the “re-

opener doctrine” set forth in Edison Elec. Inst. v.

United States EPA, 996 F.2d 326, 331-332 (D.C.

Cir. 1993); see also Public Citizen v. NRC, 901 F.2d

147, 150-153 (D.C. Cir.), cert. denied, 498 U.S. 992

(1990) ; State of Ohio v. United States EPA, 838 F.2d

1325, 1328-1329 (D.C. Cir. 1988). In its 1993 rule,

the NRC did not reconsider the propriety of the 1990

rule, but “merely add[ed] a new form of storage

cask to its list of approved systems.” Pet. App. 26¢

n.d. In proposing the 1993 rule, the NRC referred

to the 1990 rule as setting the established procedural

framework for generic approval of new casks; the

NRC did not indicate any intent to reconsider the

14

yeneric-approval approach as such. 57 Fed. Reg.

28,645-28,647 (1992). In responding to public com-

ments, the NRC expressly noted that commenters

“discussed topics that were not the subject of this

rulemaking,” including whether “[a] formal hearing

should be required at each site using dry casks.”’ 58

Fed. Reg. 17,950-17,951 (1993). In Edison, by con-

trast, the D.C. Circuit found that the agency reopened

consideration of an existing rule by soliciting addi-

tional comments on it and by advancing a possible

“alternative approach” to that rule. 996 F.2d at 329-

330, 332. Each of the other cases upon which peti-

tioners rely (Pet. 18-20) similarly besed its timeli-

ness decision on findings that the agency had indi-

cated its intent to reconsider an existing rule. Given

the absence of any such indication here, the reopener

doctrine does not apply.

2.a. The court of appeals correctly held that peti-

tioners were not entitled to a site-specific licensing

hearing under the Atomic Energy Act, 42 U.S.C.

2239(a)(1)(A) (Supp. V 1993). The Nuclear

Waste Policy Act directed the NRC to determine

whether it was technologically feasible to construct

dry storage containers for spent nuclear fuel that

would be sufficiently strong and durable to withstand

any environmental conditions at existing commercial

nuclear plants, thereby obviating the need for site-

specific evaluations before the containers could be

used for interim storage. The NWPA thus called

upon the NRC to establish procedures for the generic

approval of standardized spent fuel storage technolo-

gies ‘without, to the maximum extent practicable,

the need for additional site-specific approvals.” 42

U.S.C. 10198(a). The NRC determined that devel-

15

opment of such containers was indeed feasible, and

implemented the NWPA by issuing a general license

for four cask designs specifying the detailed condi-

tions under which the casks can appropriately be

used at any commercial nuclear plant site. To the

extent that such generic approval overrides site-

specific hearings otherwise available under the

Atomic Energy Act, Congress clearly intended that

result. Pet. App. 22a.

The court of appeals correctly held that the AEA

did not, in any event, require an adjudicatory hear-

ing under these circumstances, and no court of ap-

peals has held to the contrary. There was no site-

specific licensing decision at issue. Pet. App. 25a-

26a. Moreover, the NRC provided an opportunity

for petitioners to be heard in the rulemaking regard-

ing the proposed use of VSC-24 casks at Palisades.

Id. at 21a. Nothing in the AEA specifies that an

informal hearing is inadequate in such circumstances,

or that the kind of formal adjudicatory hearing peti-

tioners seek is required.*

* Petitioners’ reliance on Nuclear Information Resource

Service v. NRC, 969 F.2d 1169, 1173 (D.C. Cir. 1992) (en

banc), depends on their untenable assertion that the installa-

tion of spent fuel storage casks is “just like the issuance of a

construction permit, expansion of a wet pool, or licensing of

a new reactor.” Pet. 25. In the NWPA, however, Congress

treated deployment of dry storage technology quite differ-

ently from the construction or expansion of nuclear reactors,

and did so for good reason. The premise of Congress’s au-

thorization of generic, non-site-specific licensing of dry

storage casks was that such casks might be manufactured so

as to be secure at any existing reactor site. Construction and

licensing of nuclear reactors themselves, and expansion of

wet pools for storage of spent fuel, in contrast, generally

present site-specific issues not amenable to fully generic reg-

ulatory treatment.

16

b. The court of appeals also correctly decided that

the National Environmental Policy Act does not re-

quire an Environmental Impact Statement here.

There is no basis for petitioners’ contention (Pet.

26-29) that the decision below conflicts with Kalti-

more Gas & Elec. Co. vy. Natural Resources Defense

Council, Inc., 462 U.S. 87 (1983), and Limerick

Ecology Action, Inc. v. United States NRC, 869 F.2d

719 (3d Cir. 1989). This Court in Baltimore Gas

upheld a generic NRC rule directing licensing boards

to assume, for purposes of the consideration and

disclosure of environmental impacts under NEPA,

that permanent storage of certain nuclear wastes

would have no significant environmental impact.

The Court’s deference to NRC expertise in that case,

and its recognition of the appropriateness in certain

circumstances of a generic approach to disclosure of

environmental impacts under NEPA, support the

result here.

Relying on Limerick, petitioners assert that the

salttmore Gas approach is appropriate only where

the issues are indeed generic, and that “where there

is a legitimate question of site-specific linkage, the

generic approach will not suffice.” Pet. 28. In peti-

tioners’ view, “‘the placement of the VSC-24 casks at

Palisades has serious site-specific implications.” Jbid.

The generic approach embodied in the NRC’s 1990

rule, however, represents the Commission’s consid-

ered view to the contrary. The premise of that rule

is the NRC’s finding that casks for dry storage of

nuclear waste can be deployed under a general license

without significant site-specific environmental impli-

cations. As the court of appeals noted, “this type of

technical decision by the NRC, operating at the

frontiers of science, is entitled to great deference by

,

the courts.” Pet. App. 38a (citing Baltimore Gas

462 U.S. at 103).

,

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. Days, III

Solicitor Ge ne ral

Lois J. SCHIFFER

. issistant A ttorne y ts He ral

ALBERT M. FERLO, JR.

A ttorne y

JOHN F. CORDES

Solicitor

E. LEO SLAGGIE

Deputy Solicitor

PETER G. CRANE

Attorney

U.S. Nuclear Regulatory Commission

JUNE 1995

' Petitioners seek to bolster their NEPA claim by reference

to extra-record documents, including a December 1993 let-

ter from an official of the Environmental] Protection Agency

and a February 1994 memorandum from an NRC staff mem-

ber. Pet. 29. The court of appeals denied petitioners’ motion

to supplement the record with those documents. however, and

petitioners do not challenge that ruling here.

GOVERNMENT PRINTING OFFICE. 199° 387147