no. 06-1142 in the united states court of ...ecology action v. aec, 492 f.2d 998 (2d cir. 1974)...
TRANSCRIPT
No. 06-1142
IN THE UNITED STATES COURT OF APPEALSFOR THE SEVENTH CIRCUIT
ENVIRONMENTAL LAW AND POLICY CENTER, BLUE RIDGE ENVIRONMENTALDEFENSE LEAGUE, NUCLEAR ENERGY INFORMATION SERVICE, NUCLEAR
INFORMATION AND RESOURCE SERVICE, AND PUBLIC CITIZEN,Petitioners,
V.
U.S. NUCLEAR REGULATORY COMMISSIONand the UNITED STATES OF AMERICA,
Federal Respondents.
ON A PETITION FOR REVIEW OF AN ORDER OF THEU.S. NUCLEAR REGULATORY COMMISSION
BRIEF FOR THE FEDERAL RESPONDENTS
SUE ELLEN WOOLDRIDGEAssistant Attorney General
RONALD SPRITZERAttorneyAppellate SectionEnvironment and NaturalResources Division
U.S. Department of JusticeP.O. Box 23795Washington, D.C. 20026-3795(202) 514-3977
KAREN D. CYRGeneral Counsel
JOHN F. CORDES, JR.Solicitor
E. LEO SLAGGIEDeputy Solicitor
JARED K. HECKAttorneyOffice of the General CounselU.S. Nuclear RegulatoryCommission
Washington, D.C. 20555(301) 415-1623
June 12, 2006
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................
TABLE OF AUTHORITIES ........................................
G LO SSA RY ..................................................... xi
JURISDICTIONAL STATEMENT ...................................
ISSUES PRESEN TED ..............................................
STATEM ENT OF FACTS ...........................................
A . N ature of the Case ........................................
B. Overview of NRC Regulations and ProcessesPertinent to Early Site Permits .............................
1. The Part 52 Process .................................
2. NRC Hearing Process .............................. I
C. Petitioners' Contention 3.1 ............................... 1
D. Exelon's and the NRC Staff's Response to Contention 3.1 ....... 1
E. Exelon's Motion for Summary Disposition ................... 1
F. The Licensing Board and Commission Decisions onExelon's Motion for Summary Disposition ................... 1
SUMMARY OF THE ARGUMENT ................................. 1
A RG U M EN T .................................................... 2
i
iv
ii
1
1
2
2
6
6
.1
3
5
7
8
9
.3
i
STANDARD OF REVIEW .................................... 23
1. THIS COURT LACKS JURISDICTION BECAUSEPETITIONERS DO NOT SEEK REVIEW OF A"FINAL" NRC DECISION TO ISSUE AN EARLYSITE PERM IT .................................... ..... 25
11. THE COMMISSION REASONABLY RESOLVEDPETITIONERS' NEPA-RELATED CONTENTIONS INTHE CLINTON ESP ADJUDICATION ................... 29
A. The Commission Reasonably Concluded that EnergyEfficiency was Not an Alternative Within the Scopeof the Clinton ESP Hearing .......................... 32
1. NRC Regulations Do Not Require Analysisof the "Need for Power" at the ESP Stage .......... 32
2. Energy Efficiency Would Not SatisfyProject Purposes .............................. 35
B. The Commission Reasonably Concluded ThatContention 3.1 Failed to Raise any Genuine Issueof M aterial Fact ... .........................
1. No Genuine Dispute Regarding the Amountor Type of Impacts ......................
2. No Genuine Dispute Regarding Land-UseImpacts of Wind Power ..................
3. No Genuine Dispute Regarding UraniumFuel Cycle Impacts ......................
4. The Comparative Cost of the CombinationAlternative and Nuclear Power is Immaterial
.... 39
...... 40
...... 41
...... 42
...... 43
CONCLUSION .................
CERTIFICATE OF COMPLIANCE
45
46
ii
CERTIFICATE OF SERVICE ....................................... 47
STATUTORY AND REGULATORY ADDENDUM .................. 1.1
Hobbs Act, 28 U.S.C. §§ 2342(4), 2344 ......................... 1.2
NRC Hearing Rules, 10 C.F.R. §§ 2.309(a), (c), (f), 2.710 ......... 1.3
NRC Early Site Permit Rules, 10 C.F.R. Part 52, Subpart A ....... 1.8
iii
TABLE OF AUTHORITIES
FEDERAL CASES
U.S. Supreme Court Cases
Bennett v. Spear, 520 U.S. 154 (1997) .............................. 25, 26
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) ........... 23
Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) ....... 34
Franklin v. Massachusetts, 505 U.S. 788 (1992) ......................... 24
Marsh v. Oregon Natural Resources Defense Council,490 U .S. 360 (1989) .................................... 23, 24, 33
Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726 (1998) .............. 27
Vermont Yankee v. Natural Resources Defense Council, 435 U.S. 519(1978) ............................................... 30, 31, 38
7th Circuit Court of Appeals Cases
Acker v. EPA, 290 F.3d 892 (7th Cir. 2002) ............................ 25
Atcheson, Topeka, and Sante Fe Railway Co. v. Pena, 44 F.3d 437(7th Cir. 1994), aff'd, 516 U.S. 152 (1996) ........................ 24
City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983) ............ 2/n.8
Highway J Citizens Group v. Mineta, 349 F.3d 938 (7th Cir. 2003),cert. denied, 541 U.S. 974 (2004) ....................... 23-24, 37, 38
iv
Home Builders Ass'n of Greater Chicago v. U.S. Army Corps of Engineers,
335 F.3d 607 (7th Cir. 2003) .......................... 25, 29 n.10
Midland Coal Company v. Director, Office of Workers" Compensation Programs,149 F.3d 558 (7th Cir. 1998) ................................... 23
Porter County Chapter of Izaak Walton League of Amer., Inc. v. AEC,515 F.2d 513 (7th Cir. 1975), rev'd, 423 U.S. 12 (1975),
rev'd, 423 U .S. 12 (1975) ................................... 26 n.8
River Rd. Alliance, Inc. v. Corps of Eng'rs of United States Army,
764 F.2d 445 (7th Cir. 1985), cert. denied, 475 U.S. 1055 (1986) ...... 37
Simmons v. United States Army Corps of Engineers,
120 F.3d 664 (7th Cir. 1997), cert. denied, 502 U.S. 994 ....... 24, 36, 38
In re UAL Corp., 408 F.3d 847 (7th Cir. 2005) ................... 27-28 n.9
Other Court of Appeals Cases
Alaska v. FERC, 980 F.2d 761 (D.C. Cir. 1992) ...................... 28 n.9
Citizens Against Burlington, Inc., v. Busey, 938 F.2d 190 (D.C. Cir. 1991) .. 35
City of Benton v. NRC, 136 F.3d 824 (D.C. Cir. 1998) ................... 26
City of Grapevine v. DOT, 17 F.3d 1502 (D.C. Cir. 1994), cert. denied, 513 U.S.1043 (1994) ...................................................... 36
Duke Power Co. v. FERC, 864 F.2d 823 (D.C. Cir. 1989) ................. 24
V
Ecology Action v. AEC, 492 F.2d 998 (2d Cir. 1974) ..................... 25
Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972),
cert. denied, 412 U.S. 908 (1973) ................................ 30
Jicarilla Apache Tribe v. Morton, 471 F.2d 1275 (9th Cir. 1973) ........... 30
Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995),
cert. denied, 515 U.S. 1159 (1995) ............................ 24, 31
National Engineering Contracting Co. v. OSHA, 928 F.2d 762
(6th C ir. 1991) .............................................. 24
National Helium Corporation v. Morton, 455 F.2d 650 (10th Cir. 1971),
rev'd 486 F.2d 995 (1973), cert. denied, 416 U.S. 993 (1974) ......... 29
Natural Resources Defense Council, Inc. v. NRC,
680 F.2d 810 (D.C. Cir. 1982) ............................... 26, 29
Nuclear Energy Institute v. EPA, 373 F.3d 1251 (D.C. Cir. 2004) ........ 1, 27
Nuclear Information and Resource Service v. NRC, 969 F.2d 1169
(D .C . C ir. 1992) ............................................ 6-7
Ohio Citizens for Responsible Energy, Inc., v. NRC, 803 F.2d 258
(6th. Cir. 1986), cert. denied, 481 U.S. 1016 (1987) ................. 26
Sierra Club v. NRC, 825 F.2d 1356 (9th Cir. 1987) ...................... 26
vi
Thermal Ecology Must Be Preserved v. AEC, 433 F.2d 524
(D .C . C ir. 1970) .......................................... 26, 28
Tribune Co. v. FCC, 133 F.3d 61 (D.C. Cir. 1998) ....................... 43
Union of Concerned Scientists v. NRC, 920 F.2d 50
(D .C . Cir. 1990) ....................................... 24, 30, 31
'STATUTES
Administrative Procedure Act
5 U .S.C . § 706(2)(A ) ............................................... 23
Atomic Energy Act
AEA § 189, 42 U .S.C. § 2239 ...................................... 1,30
AEA § 189a, 42 U.S.C. § 2239(a) ................................. 10, 27
AEA § 189b, 42 U.S.C. § 2239(b) ................................... 24
Hobbs Act
28 U .S.C . § 2342(4) .......................................... 1, 20, 24
28 U .S.C . § 2344 ............................................... 28 n.9
vii
ADMINISTRATIVE AUTHORITIES
NRC Regulations
10 C .F.R . § 2.309(a) ............................................... 11
10 C .F.R . § 2.309(c) ............................................... 12
10 C .F.R . § 2.309(f) ............................................... 11
10 C.F.R. §§ 2.309(f)(1)(i)-(v) ....................................... 11
10 C .F.R. §§ 2.309(f)(1)(iii) ......................................... 34
10 C .F.R . § 2.309(f)(1)(vi) .......................................... 11
10 C .F.R. § 2.309(f)(2) .......................................... 12, 26
10 C .F.R. § 2.309(f)(2)(i)-(iii) ....................................... 12
10 C .F.R . § 2.326 ................................................. 12
10 C .F.R . § 2.335 ................................................. 43
10 C .F.R . § 2.335(a) ............................................... 11
10 C .F.R . § 2.710 .............................................. 11-12
viii
10 C.F.R. § 2.710(c) .. 40
.710 C.F.R. §
10 C.F.R. §
10 C.F.R. §
10 C.F.R. §
10 C.F.R. §
10 C.F.R. §
10 C.F.R. §
10 C.F.R. §
10 C.F.R. §
10 C.F.R. §
10 C.F.R. §
10 C.F.R. §
50.10(e)(1)
51.28 ....
51.29 ....
51.51 ....
51.52 ....
51.70 ....
51.71 ....
51.73 ....
51.90 ....
51.91 ....
51.93 ....
51.94 ....
.. 9
.• 9
. 41
. 42
6,9
.. 9
6,9
.. 6
• 10
...... 6
6, 10,27
... 6,3210 C.F.R. Part 52
ix
10 C .F.R . § 52.11 .................................................. 7
10 C.F.R. § 52.17(a)(2) ................................... 7, 8-9, 32,44
10 C.F.R. § 52.18 ......................................... 7, 14, 32,44
10 C .F.R . § 52.24 ............................................ 6, 10, 27
10 C .F.R . § 52.25 .................................................. 7
10 C .F.R . § 52.27 ................................................ 7, 8
10 C .F.R . § 52.29 .................................................. 8
10 C .F.R . § 52.29-52.33 ............................................. 7
10 C .F.R . § 52.35 ................................................ 7, 8
10 C .F.R . § 52.71 .................................................. 8
10 C .F.R . § 52.79(a)(1) .............................................. 8
NRC Adjudicatory Decisions
Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041),CLI-93-22, 38 NRC 98 (1993) .................................. 12
X
Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site),
CLI-05-17, 62 NRC 5 (2005) ...................... 6, 7, 10, 26, 32, 33
Federal Register Notices
Exelon Generation Company, LLC; Notice of Hearing and Opportunity toPetition for Leave to Intervene Early Site Permit for the Clinton ESP Site,68 Fed. Reg. 69,426 (December 12, 2003) ........................ 3
Proposed Rule, Licenses, Certifications, and Approvals for Nuclear PowerPlants, 71 Fed. Reg. 12,781 (Mar. 13, 2006) ....................... 6
xi
xii
GLOSSARY
EIS Environmental Impact Statement
ESP Early Site Permit
NEPA National Environmental Policy Act
NRC Nuclear Regulatory Commission
xiii
JURISDICTIONAL STATEMENT
Pursuant to the Hobbs Act, this Court's jurisdiction is limited to
review of "final orders" entered by the Nuclear Regulatory Commission
(NRC) in any proceeding for the granting of any license or construction
permit. See 28 U.S.C. § 2342(4); 42 U.S.C. § 2239. Here, the Commission
has not yet issued or authorized the "early site permit" at issue in the NRC
proceeding. Petitioners challenge various NRC NEPA1 determinations, but
NEPA decisions are not ripe for review until "used to support a concrete
and final decision." Nuclear Energy Institute v. EPA, 373 F.3d 1251, 1313
(D.C. Cir. 2004). Petitioners have raised no exception to the finality and
ripeness requirements. Unless they do so successfully, this Court is
without jurisdiction to consider the petition for review. We argue this
point more fully in the Argument.
ISSUES PRESENTED
1. Whether this Court lacks jurisdiction to review a Commission
adjudicatory order rejecting Petitioners' NEPA-related contentions in
an NRC adjudication on an "early site permit" (ESP) where the
1"NEPA" is the National Environmental Policy Act, 42 U.S.C. § 4231 et seq.
1
Commission has not completed its NEPA review or issued a final
order on whether to grant the ESP application.
2. Assuming jurisdiction, whether the Commission reasonably rejected
Petitioners' NEPA-related contention that energy efficiency should
be considered as an alternative to siting a nuclear power plant where
NRC rules do not require examining need for power in an ESP
proceeding, and where energy conservation would not meet the
applicant's stated purpose of generating power.
3. Assuming jurisdiction, whether the Commission acted reasonably in
summarily disposing of Petitioners' NEPA-related contention
without an evidentiary hearing after concluding that the NRC staff's
draft environmental impact statement resolved all issues of material
fact.
STATEMENT OF FACTS
A. Nature of the Case
On September 23, 2003, Exelon Generation Company, LLC, applied
to the NRC for an early site permit (ESP). An ESP is an NRC approval of a
site upon which the applicant is considering building a nuclear power
2
plant. Exelon is considering building a new nuclear power plant on an
existing reactor site, the Clinton Power Station, located in DeWitt County,
Illinois.
Shortly after receiving Exelon's ESP application, the NRC published
notice in the Federal Register and offered interested persons the opportunity
for an agency hearing. See 68 Fed. Reg. 69,426 (December 12, 2003).
Petitioners filed a petition to intervene in the ESP proceeding and a hearing
request, arguing that Exelon's ESP application and associated
environmental report failed to satisfy the NRC's NEPA regulations because
they contained an incomplete analysis of project alternatives.
The Commission established an Atomic Safety and Licensing Board
(Licensing Board) to resolve Petitioners' hearing request. In 2004, the
Licensing Board found that Petitioners had standing to intervene, and that
one of their challenges to Exelon's alternatives analysis, called a
"contention" under NRC rules of practice, warranted further adjudication.
(A-78 to 81; A-88 to 89). Accordingly, the Licensing Board granted
Petitioners' intervention.
3
Petitioners' single admitted contention was that Exelon's
environmental report, which evaluated the environmental impacts of
individual, non-nuclear power alternatives, should also have evaluated the
impacts of generating power using a combination of solar, wind, and
fossil-fuel technologies. (A-96). The Licensing Board dismissed a portion
of the contention that sought evaluation of energy efficiency (or energy
conservation) measures as an alternative to the siting of a new nuclear
power plant. (A-88 to 89).
After Petitioners' contention was admitted the NRC staff requested
additional information from Exelon to address the contention. (A-157, A-
160). Exelon responded by updating its environmental report with an
analysis of a combination of wind, solar, and gas-fired generation
technologies. (A-160 to 195).
Shortly thereafter, the NRC staff published its draft environmental
impact statement (EIS), which also analyzed a combination of non-nuclear
alternatives. (A-196 to 220). Exelon then moved for summary disposition
of Petitioners' sole admitted contention. Exelon argued (and the NRC staff
agreed) that the updated environmental report and draft EIS cured the
4
omissions noted by Petitioners, and that no genuine dispute of material
fact remained to be litigated. The Licensing Board agreed that Exelon and
the NRC staff had adequately addressed Petitioners' contention, and
granted Exelon's motion. (A-67 to 70).
Petitioners sought Commission review of the Licensing Board's
decision, but the Commission turned down their petition. (A-i). The
Commission ruled that the Board had correctly found Petitioners' "energy
efficiency" claim tantamount to a prohibited inquiry into the need for
power and, in any event, outside the range of reasonable alternatives to a
project designed to sell power on the open market. (A-4 to 9). The
Commission also upheld the Board's finding that Petitioners failed to raise
a material fact dispute in their challenge to the draft EIS's discussion of
non-nuclear power alternatives. (A-9 to 14).
The Licensing Board's summary disposition of Petitioners'
contention did not terminate the overall ESP licensing proceeding or result
in the issuance of an ESP. Several steps in the licensing process have yet to
be completed. The NRC staff must still complete its final EIS and make a
recommendation to the Commission whether or not to grant Exelon's ESP
5
application. See 10 C.F.R. §§ 51.70, 51.73, 51.90, 51.93. The Licensing Board
must then independently review the staff's work and make its own
recommendation. See Exelon Generation Co., LLC (Early Site Permit for
Clinton ESP Site), CLI-05-17, 62 NRC 5, 28-31 (2005). Finally, the
Commission itself must review the record before determining whether to
grant Exelon's ESP application. See 10 C.F.R. §§ 51.94, 52.24.
Petitioners' lawsuit does not challenge the contents of the NRC's
final EIS (it doesn't yet exist) or the Commission's decision to issue an ESP
(it hasn't yet occurred). Rather, Petitioners challenge a Commission order
upholding the Licensing Board's dismissal and/or summary disposition of
their contentions in a licensing adjudication.
B. Overview of NRC Regulations and Processes Pertinent to Early SitePermits
1. The Part 52 Process
In 10 C.F.R. Part 52, the NRC promulgated a new, phased process for
licensing nuclear power plants.2 See generally Nuclear Information and
2The NRC currently is engaged in a rulemaking to revise Part 52 in waysnot pertinent to this lawsuit. See Proposed Rule, Licenses, Certifications, andApprovals for Nuclear Power Plants, 71 Fed. Reg. 12,781 (Mar. 13, 2006).
6
Resource Service v. NRC, 969 F.2d 1169 (D.C. Cir. 1992) (en banc). Among
other things, Part 52 permits an entity that is considering building a
nuclear power plant to obtain early approval-an "early site permit"- for
a potential reactor site. See 10 C.F.R. § 52.11 et seq. That approval, if
granted, is called an ESP. An ESP is a siting approval only-it does not
authorize the actual construction or operation of a nuclear power plant.
See 10 C.F.R. §§ 50.10(e)(1), 52.25, 52.35. An ESP is valid for up to 20 years
and may be renewed. See 10 C.F.R. §§ 52.27, 52.29-52.33.
An ESP applicant must submit an environmental report with its
application that analyzes the environmental impacts of building and
operating a new reactor at the proposed ESP site and at a number of
alternative sites. See 10 C.F.R. §§ 52.17(a)(2), 52.18. NRC regulations do
not require the environmental report to analyze whether there is an actual
need for more electric power, or what the environmental impacts of
building and operating a power plant fueled by some alternative energy
source would be. See id.; Clinton, CLI-05-17, 62 NRC at 48. Under the
NRC's rules, those issues can await later consideration, when there is a
7
proposal to actually construct and operate a nuclear power plant. See 10
C.F.R. § 52.79(a)(1).
If an ESP holder decides to build a nuclear power plant on the pre-
approved site, it may submit a new and separate application for a
construction permit and an operating license, also known as a "combined
license." See 10 C.F.R. § 52.71 et seq. An application for a combined license
might not be submitted until many years after the ESP is granted, if at all.
See 10 C.F.R. §§ 52.27, 52.29, 52.35. In the interim, significant economic,
technological, and environmental changes may occur that affect the
decision whether or not a nuclear power plant should actually be built and
operated on the ESP site. NRC regulations contemplate that possibility
and require a combined license application to contain information
sufficient to resolve any significant environmental issue not considered in
at the ESP stage. See 10 C.F.R. § 52.79(a)(1).
An ESP applicant does not have to wait until the combined license
stage to evaluate the public's need for power or the environmental impacts
of alternative energy sources-an ESP applicant may include more analysis
in its environmental report than NRC regulations require. See 10 C.F.R.
8
§ 52.17(a)(2) (stating that an ESP applicant "need not" include an
assessment of project "benefits," such as "need for power."). See also A-5 at
n. 24. Exelon included additional analyses in this case, evaluating the
impacts of a number of non-nuclear generation technologies in its initial
environmental report, but not in combination. (A-44 to 45; A-161 to 169).
The NRC staff also evaluated a wide range of non-nuclear
alternatives in its draft EIS on the ESP.3 (A-201 to 218). The NRC staff
developed its draft EIS after consulting with Federal, State, and local
agencies, tribal organizations, and members of the public to determine the
scope of its environmental review. See 10 C.F.R. § 51.28, 51.29. Next, the
staff conducted a preliminary analysis and drafted an EIS based on input
received during the scoping process. See 10 C.F.R. §§ 51.70, 51.71. The staff
then published its draft EIS for comment. See 10 C.F.R. § 51.73.
The last step in the NRC staff's environmental review in the ESP
proceeding will be publication of the final EIS, which responds to public
3Petitioners included Chapter 8 of the draft EIS in their appendix. Theentire draft EIS is lengthy and the NRC has not reproduced it here. Thedraft EIS can be viewed in its entirety by visiting the NRC's public website:http: / /www.nrc.gov / reading-rm/ doc-collections /nuregs / staff/sr 1815 / sr1815.pdf
9
comments received on the draft EIS and contains the NRC staff's
recommendation on whether the ESP should be granted or denied. See 10
C.F.R. § 51.91. The NRC staff has not yet published its final EIS.
Once the NRC staff has completed its final EIS and made a
recommendation to the Commission whether to approve or deny the ESP,
the Licensing Board must perform an independent review of the NRC
staff's work on the ESP application and make its own recommendation to
the Commission.4 The Commission will then consider the entire
record-the application, the final EIS, the staff's safety analysis, the
Licensing Board's independent recommendation, and the record generated
during any licensing hearing-before issuing a final order approving or
denying the ESP application. See 10 C.F.R. §§ 51.94, 52.24.
At this stage in this ESP proceeding, the NRC staff has not completed
its final EIS or made a recommendation whether the ESP should issue; the
Licensing Board has not begun its mandatory review of the staff's work;
4 An ESP amounts to a partial construction permit for a new nuclear powerreactor and the Atomic Energy Act mandates a full hearing on constructionpermits, whether any party requests one or not. See AEA § 189a, 42 U.S.C.§ 2239(a); Clinton, CLI-05-17, 62 NRC at 28-31.
10
nor has the Commission determined whether an ESP should issue. But the
Licensing Board did complete a contested adjudication in which Petitioners
participated.
2. NRC Hearing Process
To be admitted as a party to an ESP adjudication, Petitioners were
required to show an "interest" in the proceeding, that is, standing to
intervene, and to submit at least one admissible "contention," that is, an
issue to litigate. See 10 C.F.R. § 2.309(a), (f). An admissible contention must
be specific, raise issues within the scope of the licensing proceeding, and be
supported by references to the specific sources and documents that
support the contention. See 10 C.F.R. §§ 2.309(f)(1)(i)-(v). "Mere 'notice
pleading' does not suffice."' (A-9). "NRC contention-pleading rules are
'strict by design." (Id.). Contentions that merely challenge the validity of
NRC regulations are not admissible. See 10 C.F.R. § 2.335(a).
An admissible contention must also "[p]rovide 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). If, after a
contention is admitted and additional information is filed it no longer
11
appears that any genuine issue of material fact remains to be litigated, a
party may move for summary disposition of the contention. See 10 C.F.R.
§ 2.710. Motions for summary disposition under NRC regulations are held
to the same standards by which Federal courts evaluate summary
judgment motions. See Advanced Medical Systems, Inc. (One Factory Row,
Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102 (1993).
NRC rules require that contentions arising under NEPA initially be
based on the applicant's environmental report. See 10 C.F.R. § 2.309(f)(2).
But once the NRC completes its draft EIS, an intervenor may file new or
amended contentions if the draft EIS contains data or conclusions that
differ significantly from those in the applicant's environmental report. See
id. An intervenor has another opportunity to file new or amended NEPA
contentions once the NRC staff publishes its final EIS. See id. And, prior to
permit issuance, other types of contentions may be filed with leave of the
Licensing Board if they are based on new information that is materially
different from that previously available, if they are submitted in a timely
fashion after the discovery of the new information, and if they otherwise
meet NRC procedural rules. See 10 C.F.R. §§ 2.309(c), (f)(2)(i)-(iii), 2.326.
12
C. Petitioners" Contention 3.1
Petitioners' contention before the Licensing Board (Contention 3.1)
was that NEPA requires an analysis of a combination of energy
alternatives, including energy efficiency measures, as an alternative to the
construction and operation of a nuclear power plant. (A-88). Contention
3.1 faulted Exelon's environmental report for not analyzing a combination
of non-nuclear alternatives.
In response to the contention, Exelon argued that it was not required
by NRC regulations to evaluate energy-efficiency alternatives. In Exelon's
view, such an evaluation was not required because the energy-efficiency
alternative would not satisfy Exelon's purpose in building a new nuclear
plant-generating baseload power' for sale on the deregulated energy
market.
In a threshold ruling, the Licensing Board agreed that Exelon did not
have to analyze energy efficiency alternatives in its environmental report
because energy efficiency programs would not generate new power, and
5"Baseload power" means power that can be generated nearly
continuously at a consistent level of output.
13
would therefore not meet Exelon's business purposes. (A-88 to 89). The
Licensing Board also concluded that Petitioners' energy-efficiency
contention was not allowed by the Commission's regulations because the
question whether energy efficiency can substitute for new generation
essentially asks whether there is a "need for power," something that NRC
rules explicitly do not require to be analyzed at the ESP stage. See id.; 10
C.F.R. §§ 52.17(a)(2), 52.18. Accordingly, the Licensing Board rejected the
energy-efficiency portion of Petitioners' contention. (A-88 to 89).
The Licensing Board did not reject Contention 3.1 outright, however.
Rather, the Licensing Board admitted a part of the contention seeking an
analysis of a combination of solar, wind, and fossil-fuel generation
alternatives.6 (A-89). Shortly thereafter, in response to a request for
additional information from the NRC staff, Exelon updated its
environmental report with an analysis of the environmental impacts of
using a combination of wind, solar, and gas-fired generation technologies.
6Even though this is an early site proceeding, not a power plant licensingproceeding, Exelon's environmental report and the NRC staff's draft EISexamined non-nuclear power sources, thus (the Commission later held)introducing those issues into the adjudication. See A-5 n. 24.
14
(A-157 to 195). Later, the NRC staff issued its draft EIS, which also
analyzed a combination of alternatives. (A-196 to 220). We discuss those
analyses next.
D. Exelon's and the NRC Staff's Response to Contention 3.1
Exelon's analysis assumed that, to meet the company's project
purposes, the combination of wind, solar, and gas-fired technologies
analyzed would need to generate the same baseload capacity as would a
new nuclear power plant. (A-170). From this premise, Exelon reasoned
that the gas-fired portion of the combination would have to be large
enough to provide an equal amount of power output as a new nuclear
plant, because there would undoubtedly be times when wind and solar
technologies would not be able to operate (i.e., at night when the wind was
not blowing). (A-171).
Exelon's supplemental analysis showed that the gas-fired portion
would have greater air quality impacts than would a new nuclear plant.
(A-173). Exelon also noted that the land use impacts of the wind and solar
portions could be larger than those expected from building a new reactor
on an existing nuclear plant site, depending on how much power the solar
15
and wind portions were to provide. Id. Ultimately, Exelon concluded that
"the combination of a gas-fired plant and wind or solar facilities would
have environmental impacts that are equal to or greater than those of a
nuclear facility." Id.
A few months after Exelon updated its environmental report to
address Petitioners' contention, the NRC staff published its draft EIS. The
draft EIS analyzed the environmental impacts of generating baseload
power using a number of different non-nuclear technologies, both alone
and in combination. With regard to the combination alternative, the staff
assumed that only the fossil-fuel-fired portion of the combination would
have any environmental impacts (the staff attributed zero impacts to wind,
solar, and other portions). (A-212, A-217 to 218). The NRC staff's analysis
showed that a combination facility would have greater impacts than
nuclear "in the areas of air resources, ecological resources, water resources,
and aesthetics," and that "a new nuclear unit at the ESP site is either
environmentally equivalent or preferable to... a reasonable combination of
power generation alternatives." (A-218).
16
E. Exelon's Motion for Summary Disposition
Shortly after publication of the draft EIS, Exelon moved for summary
disposition of Petitioners' contention. (A-24). Exelon argued (and the NRC
staff agreed) that no genuine dispute remained to be litigated because
Exelon and the NRC staff had provided the analysis of alternatives
Contention 3.1 contemplated. (A-24 to 25).
In essence, Exelon argued that the new analyses resolved the dispute
with Petitioners regarding the completeness or adequacy of Exelon's or the
NRC staff's environmental review. Exelon argued that the new analyses
encompassed information and data originally cited by Petitioners in
support of Contention 3.1. Exelon provided a detailed list of undisputed
facts in support of its motion.7
Petitioners opposed Exelon's motion and moved to amend their
contention. (A-24 to 25). They reiterated their earlier position that the
NRC staff should not be limited to the Exelon project's stated purpose in
7See Certified Index of Record, Exelon's Motion for Summary Disposition ofContention 3.1 (Mar. 17, 2005). The motion can be viewed by entering thedocument's "accession number" (ML050870594) into the NRC's onlineADAMS database: http://adamswebsearch.nrc.gov / scripts / securelogin.pl
17
analyzing alternatives. Petitioners also reiterated their challenge to data
underlying Exelon's environmental report and the NRC staff's draft EIS,
arguing that they were factually inaccurate. Petitioners cited essentially
the same facts they had in support of their original Contention 3.1.
F. The Licensing Board and Commission Decisions on Exelon's Motion forSummary Disposition
In a lengthy decision, the Licensing Board carefully analyzed each
alleged factual dispute raised by petitioners to determine whether any
genuine dispute of material fact remained to be litigated. (A-43 to 65). The
Licensing Board concluded that none remained, and granted Exelon's
motion for summary disposition. (A-65 to 70).
On review, the Commission upheld the Licensing Board's decision,
finding that no material dispute remained to be litigated. (A-1 to 15). The
Commission summarized the underpinnings of its "materiality" analysis:
In order to satisfy the purpose of the project, and thus toconstitute a reasonable alternative, the combined facility mustbe able to generate power in the amount of 2180 MW at alltimes.
Because wind and solar power cannot reliably generate powerat all times the fossil-fueled portions of the facility would haveto have a capacity of 2180 MW.
18
* Due to the impacts of fossil-fueled facilities, a combination ofwind and solar with a 2180 MW fossil-fueled facility is notenvironmentally preferable to the proposed nuclear powerplant.
The [draft EIS assumed] that the wind or solar portions of theanalyzed combination facility would have no environmentalimpacts.
(A-9 to 10). The Commission also upheld the Licensing Board's original
decision, touched on in the Board's summary disposition ruling, that the
EIS need not consider the energy-efficiency alternative. (A-4 to 9). The
Commission repeated the Board's view that the energy-efficiency inquiry
would amount to examining the "need for power"-something NRC rules
do not require-and would expand the range of alternatives beyond the
project's purpose (i.e., selling power to the open market). Id.
Even though the ESP has not issued, Petitioners have filed a petition
for review in this Court challenging the Commission's (and the Licensing
Board's) adjudicatory decision on Petitioners' NEPA claims.
SUMMARY OF THE ARGUMENT
1. Petitioners challenge a Commission NEPA decision entered in a
contested NRC adjudication, which was but one phase of a larger
19
administrative proceeding to determine whether Exelon should be granted
an ESP. As several Circuits have held, with limited exceptions (Petitioners
have invoked none), a preliminary decision of this kind is not a "final
order" subject to review under the Hobbs Act.
The petition for review challenges the NRC's compliance with NEPA
and its rejection of Petitioners' NEPA contention, but the NRC has not even
completed its environmental review. The NRC staff must still publish its
final EIS, the Licensing Board must independently review it, and the
Commission must then weigh it when deciding whether to issue an ESP.
And under NRC regulations, Petitioners will have additional opportunities
to raise NEPA-related contentions and obtain an NRC hearing prior to a
final NRC decision on whether to issue an ESP. With no final ESP yet
issued, and with the NEPA process still ongoing, Petitioners' lawsuit is
premature. Petitioners have shown no reason why this Court should
decide NRC NEPA determinations not linked to any discrete or final
agency action.
2. If the Court determines that it has jurisdiction to review the merits
of Petitioners' arguments now, it should uphold the NRC's resolution of
20
Petitioners' NEPA-related contention. The NRC reasonably dismissed the
"energy efficiency" part of the contention because NRC regulations do not
require a "need for power" analysis at the ESP stage, and because an
energy-efficiency inquiry would have required an analysis of project
alternatives that would not achieve the purposes of the proposed action (to
generate baseload power). The NRC reasonably granted summary
disposition on the remainder of the contention-dealing with a
combination of alternative power sources such as wind and solar-because
the contention failed to raise any genuine dispute of material fact that
would warrant further litigation. Neither NEPA nor NRC hearing rules
require an evidentiary hearing on such matters.
NEPA does not require the NRC to ignore a license or permit
applicant's project purposes when determining which alternatives to
consider in its draft EIS. The NRC may take an applicant's purposes into
account if in doing so it does not define the proposed action so narrowly
that no alternatives can be imagined or evaluated. In this case, Exelon's
project purpose-generating baseload power-was stated broadly enough
21
to permit consideration of a wide range of reasonable alternatives by the
NRC staff.
The NRC staff's alternatives analysis in the draft EIS, which the
Commission relied on to reject part of Petitioners' contention, is thorough,
well-reasoned, and based on technically sound data and assumptions.
Petitioners quibble with some data and assumptions, but the
disagreements are quite minor. Petitioners can point to no material flaw in
the data relied upon by the NRC staff that would change the conclusions
contained in the draft EIS. The NRC's regulations do not require the NRC
to hold hearings on inconsequential disagreements-only material factual
omissions or inaccuracies warrant evidentiary hearings.
Ultimately, Petitioners seem less interested in the facts contained in
the draft EIS than they are in the conclusions the NRC staff draws from
those facts-namely, that a combination of wind, solar, and fossil-fuel
energy-generation technologies is not environmentally preferable to a new
nuclear plant. But Petitioners failed to identify in the NRC adjudication
any material fact dispute that would undermine the preliminary
conclusions of the draft EIS. The Commission reasonably concluded that
22
the energy-efficiency part of Petitioners' contention was outside the scope
of the adjudication, and that the remainder warranted summary
disposition. The Commission's application of its hearing rules was
consistent with NEPA, and the petition for review should be denied.
ARGUMENT
STANDARD OF REVIEW
This Court must review the question of its own jurisdiction de novo.
See Midland Coal Company v. Director, Office of Workers' Compensation
Programs, 149 F.3d 558, 561 (7th Cir. 1998). If jurisdiction exists, the Court
must uphold the NRC's action unless it is "arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with the law." 5 U.S.C.
§ 706(2)(A). This is a narrow standard of review, and does not permit a
court to "substitute its judgment for that of the agency." Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 416 (1971). See also Marsh v. Oregon
Natural Resources Defense Council, 490 U.S. 360, 378 (1989).
In NEPA cases, "If an agency considers the proper factors and makes
a factual determination on whether the environmental impacts are
significant or not, that decision implicates substantial agency expertise and
23
is entitled to deference." Highway f Citizens Group v. Mineta, 349 F.3d 938,
952-53 (7th Cir. 2003), cert. denied, 541 U.S. 974 (2004). The Court also owes
deference to the agency's judgment on whether and to what extent a
particular alternative should be analyzed under NEPA. Simmons v. United
States Army Corps of Engineers, 120 F.3d 664, 668-69 (7th Cir. 1997), cert.
denied, 502 U.S. 994.
Finally, deference should be accorded to the Commission's
application of its own procedural rules in an NRC adjudication. See Kelley
v. Selin, 42 F.3d 1501, 1511 (6th Cir. 1995), cert. denied, 515 U.S. 1159 (1995);
Union of Concerned Scientists v. NRC, 920 F.2d 50, 54 (D.C. Cir. 1990). The
Court also owes deference when reviewing an agency's grant of summary
disposition on matters within the agency's expertise. See National
Engineering Contracting Co. v. OSHA, 928 F.2d 762 (6th Cir. 1991); Duke
Power Co. v. FERC, 864 F.2d 823, 829 (D.C. Cir. 1989). See generally Marsh,
490 U.S. at 377.
24
I. THIS COURT LACKS JURISDICTION BECAUSE PETITIONERSDO NOT SEEK REVIEW OF A "FINAL" NRC DECISION TOISSUE AN EARLY SITE PERMIT
Pursuant to the Hobbs Act, this Court's jurisdiction is limited to
review of "final orders" entered by the Commission in any proceeding for
the granting of any license or construction permit. See 28 U.S.C. § 2342(4);
42 U.S.C. § 2239(b). "The core question is whether the agency has
completed its decision-making process and whether the result of that
process is one that will directly affect the parties." Franklin v. Massachusetts,
505 U.S. 788, 797 (1992); accord Atcheson, Topeka, and Sante Fe Railway Co. v.
Pena, 44 F.3d 437, 441 (7th Cir. 1994) (en banc), aff'd, 516 U.S. 152 (1996).
For an agency decision to be considered final, "[f]irst, the action must mark
the consummation of the agency's decisionmaking process-it must not be of
a merely tentative or interlocutory nature. And second, the action must be
one by which rights or obligations have been determined, or from which
legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 177-78 (1997)
(quotations and citations omitted); accord Home Builders Ass'n of Greater
Chicago v. U.S. Army Corps of Engineers, 335 F.3d 607, 614 (7th Cir. 2003);
Acker v. EPA, 290 F.3d 892, 894 (7th Cir. 2002).
25
In an NRC licensing adjudication, "it is the order granting or denying
the license that is ordinarily the final order." City of Benton v. NRC, 136 F.3d
824 (D.C. Cir. 1998). See Ohio Citizens for Responsible Energy, Inc. v. NRC, 803
F.2d 258, 260 (6th. Cir. 1986), cert. denied, 481 U.S. 1016 (1987); Natural
Resources Defense Council, Inc. v. NRC, 680 F.2d 810, 815-16 (D.C. Cir. 1982);
Ecology Action v. AEC, 492 F.2d 998 (2d Cir. 1974); Thermal Ecology Must Be
Preserved v. AEC, 433 F.2d 524 (D.C. Cir. 1970) (per curiam); see also Sierra
Club v. NRC, 825 F.2d 1356, 1361-62 (9th Cir. 1987). Here, the Commission
has not yet issued, or authorized issuing, an ESP and therefore there has
been no "final order" in the NRC licensing proceeding.8
The Commission's order upholding summary disposition of
Petitioners' NEPA contention is not a final order because it does not
represent the "consummation of the decision-making process." Bennett, 520
U.S. at 177-78. Several procedural steps remain before an ESP is issued.
The NRC staff must still publish its final EIS. After the EIS is published,
8This Court has not had occasion to review many NRC licensing decisions,butkfvhen it has, the orders reviewed either issued or authorized a license.See'City of West Chicago v. NRC, 701 F.2d 632, 637-38 (7th Cir. 1983); PorterCounty Chapter of Izaak Walton League of Amer., Inc. v. AEC, 515 F.2d 513, 516(7th Cir. 1975), rev'd, 423 U.S. 12 (1975).
26
Petitioners may have additional opportunities to raise NEPA-related
contentions in an NRC licensing hearing, which may in turn lead to further
Commission orders similar to the one currently challenged by Petitioners.
See 10 C.F.R. § 2.309(f)(2). In addition, the Licensing Board must
independently review the NRC staff's EIS and safety analysis, and make a
licensing recommendation to the Commission. See AEA § 189a, 42 U.S.C.
§ 2239(a); Clinton, CLI-05-17, 62 NRC at 28-31. Finally, the Commission
must itself weigh the EIS (and other matters) in deciding whether to grant
or deny an ESP. See 10 C.F.R. §§ 51.94, 52.24. Under the Hobbs Act, the
Court should allow the full administrative process to play out rather than
entertain piecemeal challenges to the NRC's NEPA review.
Even if the NRC's NEPA review were complete, this Court
presumably would not yet entertain Petitioners' arguments. Courts do not
review agency environmental findings in a stand-alone manner. Only if a
final EIS "has been used to support a specific, concrete, and final
decision"-here, the ESP-is a NEPA challenge ripe. Nuclear Energy
Institute v. EPA, 373 F.3d at 1313, citing Ohio Forestry Ass'n, Inc. v. Sierra
Club, 523 U.S. 726, 733-37 (1998).
27
In rare circumstances, an interlocutory NRC order may be appealed to
court in advance of a final licensing decision. This exception applies to only
an NRC order depriving a potential intervenor of the right to participate in
the NRC process altogether-that is, an order denying a party's right to
intervene. See Thermal Ecology, 433 F.2d at 525; see also Natural Resources
Defense Council, 680 F.2d at 816 n. 12.9 Petitioners may argue they were
deprived of their hearing rights here, but that is not so-the Licensing
Board found that Petitioners met the NRC's requirements for intervention,
admitted them as parties to the Clinton ESP proceeding, and adjudicated
their NEPA contention on its merits. Although Petitioners do not care for
the outcome, their hearing rights were fully vindicated. Petitioners have no
cognizable right to insist upon keeping an NRC adjudication open until
they achieve a favorable ruling.
9As this Court stated in a case involving intervention in a judicialproceeding, "[a] decision denying a motion to intervene as of right isappealable immediately because it finally concludes a putative intervenor'srights, for only a party may appeal from the ultimate decision." In re UALCorp., 408 F.3d 847, 849 (7th Cir. 2005) (emphasis added). Under the HobbsAct, only "parties" may challenge final NRC decisions. See 28 U.S.C.§ 2344. Petitioners here are intervenor-parties before the NRC. They arenot "putative intervenors." See Alaska v. FERC, 980 F.2d 761, 763-68 (D.C.Cir. 1992).
28
If the Court declines to hear Petitioners' case now, Petitioners will
suffer no legal injury. Petitioners will still be able to seek judicial review
once the Commission makes its final ESP decision. At that point, if the
Court finds that an error was made during the course of the Clinton ESP
proceeding it may reverse the Commission's decision and order that any
errors be corrected. See Natural Resources Defense Council, 680 F.2d at 816-
17; Thermal Ecology, 433 F.2d at 526. Of course, the possibility also remains
that the Commission may deny the ESP application, "thereby avoiding
judicial review entirely" on Petitioners' NEPA claims. Natural Resources
Defense Council, 680 F.2d at 817.10
II. THE COMMISSION REASONABLY RESOLVED PETITIONERS'
NEPA-RELATED CONTENTIONS IN THE CLINTON ESPADJUDICATION
Even if this Court finds jurisdiction, it should uphold the NRC's
decision. Petitioners have offered no persuasive legal or factual argument
1°This Court sometimes has described finality as a "pragmatic" inquiry. SeeHome Builders Ass'n of Greater Chicago, 335 F.3d at 614. For the reasonsgiven in the text, we don't believe "pragmatic" considerations warrantjudicial review now. But if this Court chooses to exercise jurisdiction, itshould take care to limit its decision to the peculiar facts of this case.
29
warranting remand of the Licensing Board's and the Commission's well-
reasoned rejection of Petitioners' NEPA claims.
At the outset, we note that Petitioners repeatedly argue that the
Commission violated NEPA by not conducting a "full and fair evidentiary
hearing" on alternatives. But NEPA does not of its own force require
agencies to hold hearings at all. See Jicarilla Apache Tribe v. Morton, 471 F.2d
1275, 1284-1286 (9th Cir. 1973); Hanly v. Kleindienst, 471 F.2d 823, 836 (2d
Cir. 1972), cert. denied, 412 U.S. 908 (1973); National Helium Corporation v.
Morton, 455 F.2d 650, 656 (10th Cir. 1971), rev'd 486 F.2d 995 (1973), cert.
denied, 416 U.S. 993 (1974). "While NEPA clearly mandates that an agency
fully consider environmental issues, it does not itself provide for a hearing
on those issues." Union of Concerned Scientists v. NRC, 920 F.2d 50, 56 (D.C.
Cir. 1990).
Strangely, Petitioners cite the Supreme Court's well-known Vermont
Yankee decision11 for the proposition that NEPA guarantees an agency
hearing. Pet. Br. at 27. But that case says nothing to suggest that NEPA
entitles Petitioners to a hearing. Rather, it holds that NEPA does not
11Vermont Yankee v. Natural Resources Defense Council, 435 U.S. 519 (1978).
30
impose rules of procedure in agency hearings above and beyond those set
forth in the Administrative Procedure Act or other statutes. See 435 U.S. at
548. Under Vermont Yankee, whatever hearing rights Petitioners may have
arise from the Atomic Energy Act, the Administrative Procedure Act, and
NRC regulations, not NEPA. Id.
Thus, this case arises not under a NEPA-based right to a
hearing-there is none-but under the Atomic Energy Act, 42 U.S.C. § 2239.
It therefore concerns application of NRC hearing rules. Those rules impose
strict requirements governing intervention and participation in NRC
hearings. The Court should defer to the Commission's application of its
procedural hearing rules. Kelley, 42 F.3d at 1511; Union of Concerned
Scientists, 920 F.2d at 54.
Applying those rules, the Commission concluded that the portion of
Contention 3.1 dealing with energy efficiency alternatives was inadmissible,
and that the remainder was properly disposed of on a motion for summary
disposition. (A-5, A-9). The Commission's decision on both points was
reasonable and consistent with NRC regulations and NEPA.
31
A. The Commission Reasonably Concluded that Energy Efficiency was Not anAlternative Within the Scope of the Clinton ESP Hearing
1. NRC Regulations Do Not Require Analysis of the
"Need for Power" at the ESP Stage
NRC rules do not require analyzing the "need for power" at the ESP
stage. See 10 C.F.R. §§ 52.17(a)(2), 52.18. As the Licensing Board and
Commission held, this defeats Petitioners' "energy efficiency" contention,
which is premised on the idea that new generation capacity is not needed.
"[E]nergy efficiency is a surrogate for the 'need for power,' an inquiry
[NRC] regulations expressly declare unnecessary." (A-5, A-36 to 37, A-88).
As outlined in our Statement of Facts, the NRC's licensing process
under 10 C.F.R. Part 52 occurs in stages. At each stage, the NRC must write
an EIS. Because the stages may occur many years apart and involve
resolution of different questions, the issues analyzed in each EIS are
different. See Clinton, CLI-05-17, 62 NRC at 47.
At the ESP stage, analyzing the need for power would be highly
speculative. Analyzing the need for power makes more sense at the later
"combined license" stage, when there is a proposal before the NRC to
32
actually build and operate a nuclear power plant. At that point, which may
not occur for 20 or more years after an ESP is granted, more accurate and
timely information regarding the energy market, consumer needs, and
technological changes will be available to enable a meaningful need-for-
power analysis.
Because of the potential for change, evaluating the need for power at
the ESP stage would be not only speculative but also inefficient. Significant
social, economic, and technological changes might render the ESP need-for-
power analysis out-of-date and trigger an obligation under NEPA to
analyze it again at the combined license stage. See Marsh, 490 U.S. at 372.
Finally, analyzing the need for power now would not inform the
NRC's decision whether to issue an ESP. Whether the public needs power
is irrelevant to the NRC's determination whether a particular site can be
considered suitable for the potential construction and operation of a reactor
an. An ESP "proceeding is focused on an appropriate site, not on
construction of a reactor." Clinton, CLI-05-17, 62 NRC at 48. NEPA's "rule
of reason" does not require agencies to evaluate matters that are of no use
33
to their decisionmaking processes. See Department of Transportation v. Public
Citizen, 541 U.S. 752, 767 (2004).
Petitioners argue, though, that the NRC itself has put the need for
power into play in this case. See Pet. Br. at 23-24. Petitioners are simply
wrong. Neither the NRC nor Exelon have analyzed the need for power. In
fact, both Exelon's environmental report and the NRC staff's draft EIS
explicitly state that no such analysis has been performed.12 Consistent with
NRC regulations, it has been deferred until the combined license stage.13
12intervenor-Respondent Exelon Generation Corporation filed asupplemental appendix with excerpts from Exelon's environmental reportand the NRC staff's draft EIS, which show that need for power has notbeen analyzed. See B-2, B-6.
13Below (Part II.B., infra) we defend the NRC's handling of Petitioners'"alternative power sources" contention. As with need for power, the NRCmight well have deferred analysis of alternative power sources as well, asthe ESP stage is concerned with competing sites, not competing energysources. See Clinton, CLI-05-17, 62 NRC at 48. The Commission decided,however, that where (as here) an ESP applicant decides to analyzealternate power sources, the NRC staff and the ESP Licensing Board mayconsider the issue, which then "becomes material to the adjudication...and appropriate for litigation." (A-5 at n. 24).
34
2. Energy Efficiency Would Not Satisfy Project Purposes
Not only does Petitioners' energy-efficiency contention run afoul of
the NRC's "need for power" exclusion, it fails under NEPA because energy
efficiency would not meet the goal of Exelon's proposed action-the
generation of baseload power. Therefore, as the Commission held, energy
efficiency was not a reasonable alternative that need be considered. (A-5).
Because the energy-efficiency portion of Contention 3.1 sought analysis of
an alternative not required by NEPA, it was beyond the scope of the
Clinton ESP proceeding and was, therefore, inadmissible. (A-8); see 10
C.F.R. § 2.309(f)(1)(iii).
How the Commission stated the goals of the Clinton ESP proceeding
was vital to its determination, for "[t]he goals of an action delimit the
universe of the action's reasonable alternatives." Citizens Against
Burlington, Inc., v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991). In this case, the
Commission's decision was driven by Exelon's broadly-stated, long-term
purpose: the generation of baseload power. Petitioners fault the
Commission's reliance on Exelon's purpose, arguing that when deciding
which alternatives to evaluate in its NEPA analysis, the NRC cannot
35
"adopt[] Exelon's business goal of generating baseload power." Pet. Br. at
19.
Petitioners are incorrect. While licensing agencies cannot blindly
accept an applicant's self-interested views of its project, the agency's
"consideration of alternatives may accord substantial weight to the
preferences of the applicant and/or sponsor in the siting and design of the
project." City of Grapevine v. DOT, 17 F.3d 1502, 1506 (D.C. Cir. 1994), cert.
denied, 513 U.S. 1043 (1994). In enacting NEPA, "Congress did not expect
agencies to determine for the applicant what the goals of the applicant's
proposal should be." Id.
Petitioners rely heavily on this Court's opinion in Simmons v. United
States Army Corps of Engineers to support their argument that "adoption of
an applicant's goals is 'a losing proposition' because it does not allow for
the full consideration of alternatives required by NEPA." Pet. Br. at 18,
quoting Simmons, 120 F.3d at 669. But Simmons did not hold that an agency
may never consider an applicant's goals when evaluating reasonable
alternatives. Rather, Simmons stands for the common-sense proposition that
an agency may not "contrive a purpose so slender as to define competing
36
'reasonable alternatives' out of consideration (and even out of existence)."
Simmons, 120 F.3d at 666. As this Court said in a later case, reviewing
courts should approve agency NEPA determinations if they are based on a
"sufficient number of reasonable alternatives." Mineta, 349 F.3d at 961.
Ours is not a case where the NRC contrived a slender purpose to
avoid evaluating a range of alternatives. The stated purpose-generation of
baseload power-is broad and permits evaluation of a wide range of
reasonable alternatives. The draft EIS bears that out by analyzing and
comparing not only alternative sites, but alternative generation technologies
as well. (A-198 to 218).
The range of alternatives analyzed by the NRC staff was reasonable,
especially considering that nearly all of the environmental impacts of siting
a new nuclear power plant at Clinton were determined to be small.
According to the draft EIS, building and operating a nuclear power plant at
the Clinton site would have only a few noticeable socio-economic and
aquatic impacts.14 "When, as here, an agency makes an informed decision
14Chapter 9.0 of the draft EIS contains two tables (Table 9-1 and 9-2)comparing the impacts of building and operating a nuclear power plant atthe Clinton site versus other sites. The tables can be viewed on pages 9-4
37
that the environmental impact will be small... a 'less extensive' search [for
alternatives] is required." Mineta, 349 F.3d at 938, quoting River Rd. Alliance,
Inc. v. Corps of Eng'rs of United States Army, 764 F.2d 445, 452 (7th Cir. 1985),
cert. denied, 475 U.S. 1055 (1986).
Nevertheless, Petitioners are dissatisfied with the breadth of the
NRC's analysis. They would have the agency evaluate an alternative that
would generate no power, even though Exelon has proposed a project to sell
power. To do so, the NRC would have to completely ignore Exelon's
project purposes-something that neither NEPA nor Simmons requires.
Petitioners' final argument on this point is that Vermont Yankee
requires the Commission to consider energy efficiency as an alternative to
nuclear power. But Vermont Yankee contains no such holding, and in fact
upheld the NRC's rejection of a contention seeking analysis of energy-
efficiency alternatives. See 435 U.S. at 549-55.
through 9-7 of the draft EIS on the NRC's public website, available athttp: / /www.nrc.gov / reading-rm/ doc-collections /nuregs / stafft/sr 1815 / sr1815.pdf
38
The Licensing Board and Commission acted reasonably in declining
to adjudicate, at the ESP stage, the energy-efficiency portion of Petitioners'
NEPA contention.
B. The Commission Reasonably Concluded That Contention 3.1 Failed to Raiseany Genuine Issue of Material Fact
The admitted portion of Contention 3.1 sought an analysis of the
environmental impacts of a combination of non-nuclear generation
technologies (specifically, solar, wind, and fossil-fuel technologies) as an
alternative means of generating baseload power. After Exelon and the NRC
staff analyzed a combination of alternatives using data proffered by
Petitioners, no genuine dispute of material fact remained. Accordingly, the
Licensing Board granted Exelon's motion for summary disposition of
Contention 3.1 and the Commission affirmed. (A-9 to 14, A-67 to 70). The
agency's summary disposition decision was reasonable.
Petitioners allege a number of factual disputes throughout their brief
and claim that those disputes require a full-scale evidentiary hearing. We
briefly examine each to show that no genuine dispute of material fact exists
that would warrant further NRC hearings.
39
1. No Genuine Dispute Regarding the Amount or Type of Impacts
Petitioners argue in their brief that a new nuclear plant would impact
more categories of resources than would a combination of wind and gas-
fired technologies, and that therefore it was "plainly erroneous" to conclude
that wind and natural gas in combination "are not environmentally
preferable to a new nuclear plant." Pet. Brief at 28-29.
With this argument, Petitioners are not raising a factual dispute about
the accuracy of the NRC staff's environmental data. Rather, they are
challenging the reasonableness of the conclusions drawn from that data by
the NRC staff's draft EIS. Petitioners have not shown a specific, material,
and factual dispute to survive a motion for summary disposition. See 10
C.F.R. § 2.710(c). All Petitioners have shown is their disagreement with the
staff's conclusions.
The reasons behind the NRC staff's conclusions appear in section
8.2.3.10 of the draft EIS. (A-217 to 218). The staff's analysis finds that a
combination of wind-powered and gas-fired alternatives would not be
environmentally preferable to a nuclear plant because the gas-fired portion
of the mix would generate substantial negative air quality impacts that a
40
nuclear plant would not. (A-212, A-218). The draft EIS reasonably
concludes that "[a] new nuclear unit at the ESP site is preferable to... the
combination of alternatives in the areas of air resources, ecological
resources, water resources, and aesthetics." (A-218). Petitioners offered
the Licensing Board no concrete facts on air quality or other impacts
contradicting the NRC's staff's finding, and thus they did not show a
genuine dispute of material fact warranting an evidentiary hearing.
2. No Genuine Dispute Regarding Land-Use Impacts of Wind Power
Petitioners argue in their brief that "the NRC ignored clear evidence
that Exelon and the NRC Staff overestimated the impacts of clean energy
alternatives and underestimated the impacts of the proposed new nuclear
plant." Pet. Br. at 29. Petitioners suggest that more analysis is needed,
arguing that the NRC did not "account for the differences in the severity
and duration" of land-use impacts between wind power and nuclear power
when analyzing the combination alternative. Pet. Br. at 30.
Again, Petitioners have not stated a litigable factual dispute under
NRC hearing rules. In the draft EIS, the NRC staff assumes that the wind
power portion of a combination facility would have zero impacts. (A-212,
41
A-218). With wind-power impacts already assumed to be zero, a hearing
to determine wind power's actual impacts would not alter the comparison
of nuclear power versus the combination alternative, except perhaps to
increase impacts of the wind-power portion of a combination facility. That
would only reinforce the NRC staff's conclusion that "a new nuclear unit at
the [Clinton] site is either environmentally equivalent or preferable" to a
combination of alternatives. (A-218). Thus, Petitioners have stated no
genuine dispute of material fact requiring an evidentiary hearing.
3. No Genuine Dispute Regarding Uranium Fuel Cycle Impacts
Petitioners argue in their brief that Exelon didn't consider the "mining
and enrichment of uranium" or the "storage and disposal of highly
radioactive nuclear wastes" in its environmental analyses. Pet. Br. at 30.
But as the Licensing Board pointed out, Exelon did account for those
impacts by relying on "Table S-3," an NRC rule describing the
environmental impacts of the uranium fuel cycle. (A-59 to 60); see 10 C.F.R.
§ 51.51. "Table S-4"describes the environmental effects of the
transportation of fuel and waste. See 10 C.F.R. § 51.52. Under NRC
procedural rules, parties may not collaterally attack the agency's
42
substantive regulations at adjudicatory hearings See 10 C.F.R. § 2.335. See
generally Tribune Co. v. FCC, 133 F.3d 61, 68 (D.C. Cir. 1998). Petitioners
offer no specific challenge to the NRC's analysis that warrants an
evidentiary hearing.
4. The Comparative Cost of the Combination Alternative
and Nuclear Power is Immaterial
Petitioners argue in their brief that the NRC violated NEPA when it
"refused to even consider costs in comparing alternatives.. ." Pet. Br. at 31.
But the NRC did not totally refuse to consider costs. The Licensing Board
compared Petitioners' cost estimates with those proffered by Exelon. (A-62
to 65). Ultimately, however, the Licensing Board concluded that the
comparative cost of the combination alternative was immaterial because a
comparison of costs comes into play only if a reasonable alternative that is
environmentally preferable to the proposed project has been identified. (A-
64). Petitioners do not challenge this reasonable approach. In this case, the
combination alternative was not determined to be environmentally
preferable, and so the accuracy of cost estimates was immaterial. (A-10, A-
47, A-218).
43
The Licensing Board rejected Petitioners' cost arguments because they
run afoul of NRC rules as well. See 10 C.F.R. §§ 52.17(a)(2), 52.18. Under
NRC rules, neither Exelon nor the NRC staff is required to evaluate the
benefits of building a new nuclear power plant at the ESP stage because like
the need for power, the potential benefits of building a new nuclear power
plant can be better determined once an application for a combined license is
filed. "There is no apparent reason to analyze the 'cost' side of the cost-
benefit balance until it comes time-in the combined license proceeding-to
consider benefits." (A-13). Petitioners cite no authority to undermine the
Commission's reasoned conclusion on this point.
44
CONCLUSION
For the foregoing reasons, the petition for review should be dismissed
for lack of jurisdiction. If this Court finds jurisdiction, the petition for
review should be denied on the merits.
Respectfully submitted,
SUE ELLEN WOOLDRIDGEAssistant Attorney GeneralEnvironment and NaturalResources Division
KAREN D. CYRGeneral Counsel
RONALD SPRITZERAttorneyAppellate SectionEnvironment and NaturalResources Division
U.S. Department of JusticeP.O. Box 23795Washington, D.C. 20026-3795
JOHN F. CORDES, JR.Solicitor
E. LEO SLAGGIEDeputy Solicitor
JARED K. HECKAttorneyU.S. Nuclear RegulatoryCommissionWashington, D.C. 20555(301) 415-1623
Dated June 12, 2006
45
CERTIFICATE OF COMPLIANCE UNDER FRAP 32(a)(7)(c)
I hereby certify that the number of words in the Brief for the Federal
Respondents, excluding the Table of Contents, Table of Authorities,
Glossary and Addendum, is 8,578, as counted by the Corel WordPerfect 10
program.
Respectfully submitted,
Jared K. Heck
Attorney
Office of the General Counsel
U.S. Nuclear RegulatoryCommission
Dated June 12, 2006.
46
CERTIFICATE OF SERVICE
I hereby certify that on June 12, 2006, copies of the Brief for the
Federal Respondents were served by mail, postage prepaid, upon the
following:
Steven Frantz
Paul Bessette
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., NW
Washington, DC 20004
Howard A. Learner
Shannon Fisk
Environmental Law & Policy Center
35 E. Wacker Dr., Suite 1300
Chicago, IL 60601
Jared K. Heck
Counsel for Respondent
U.S. Nuclear Regulatory
Commission
47
STATUTORY AND REGULATORY ADDENDUM
Hobbs Act, 28 U.S.C. §§ 2342(4), 2344 ............................... 1.2
NRC Hearing Rules, 10 C.F.R. §§ 2.309(a), (c), (f), 2.710 ................ 1.3
NRC Early Site Permit Rules, 10 C.F.R. Part 52, Subpart A ............. 1.7
1.1
Hobbs Act
28 U.S.C. § 2342. Jurisdiction of court of appeals.
The court of appeals (other than the United States Court of Appeals for theFederal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (inwhole or in part), or to determine the validity of--
(4) all final orders of the Atomic Energy Commission made reviewable bysection 2239 of title 42;
Jurisdiction is invoked by filing a petition as provided by section 2344 ofthis title.
28 U.S.C. § 2344. Review of orders; time; notice; contents of petition; service.
On the entry of a final order reviewable under this chapter, the agency shallpromptly give notice thereof by service or publication in accordance withits rules. Any party aggrieved by the final order may, within 60 days afterits entry, file a petition to review the order in the court of appeals whereinvenue lies. The action shall be against the United States. The petition shallcontain 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.
1.2
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 thepetition on the agency and on the Attorney General by registered mail, withrequest for a return receipt.
NRC Hearing Rules
§ 2.309 Hearing requests, petitions to intervene, requirements for standing, andcontentions.
(a) General requirements. Any person whose interest may be affected by aproceeding and who desires to participate as a party must file a writtenrequest for hearing or petition for leave to intervene and a specification ofthe contentions which the person seeks to have litigated in the hearing.Except as provided in paragraph (e) of this section, the Commission,presiding officer or the Atomic Safety and Licensing Board designated torule on the request for hearing and/or petition for leave to intervene willgrant the request/petition if it determines that the requestor/petitioner hasstanding under the provisions of paragraph (d) of this section and hasproposed at least one admissible contention that meets the requirements ofparagraph (f) of this section. In ruling on the request for hearing/petition tointervene submitted by petitioners seeking to intervene in the proceedingon the HLW repository, the Commission, the presiding officer or theAtomic Safety and Licensing Board shall also consider any failure of thepetitioner to participate as a potential party in the pre-license applicationphase 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 inresponse to any notice of hearing or opportunity for hearing, theapplicant/licensee shall be deemed to be a party.
1.3
(c) Nontimely filings.
(1) Nontimely requests and/or petitions and contentions will not beentertained absent a determination by the Commission, the presidingofficer or the Atomic Safety and Licensing Board designated to rule onthe request and/or petition and contentions that the request and/orpetition should be granted and/or the contentions should be admittedbased upon a balancing of the following factors to the extent that theyapply to the particular nontimely filing:
(i) Good cause, if any, for the failure to file on time;
(ii) The nature of the requestor's/petitioner's right under the Act to bemade a party to the proceeding;
(iii) The nature and extent of the requestor's/petitioner's property,financial or other interest in the proceeding;
(iv) The possible effect of any order that may be entered in theproceeding on the requestor's/petitioner's interest;
(v) The availability of other means whereby therequestor's/petitioner's interest will be protected;
(vi) The extent to which the requestor's/petitioner's interests will berepresented by existing parties;
(vii) The extent to which the requestor's/petitioner's participation willbroaden the issues or delay the proceeding; and
(viii) The extent to which the requestor's/petitioner's participationmay reasonably be expected to assist in developing a sound record.
(2) The requestor/petitioner shall address the factors in paragraphs(c)(1)(i) through (c)(1)(viii) of this section in its nontimely filing.
(f) Contentions.
(1) A request for hearing or petition for leave to intervene must setforth with particularity the contentions sought to be raised. For eachcontention, the request or petition must:
(i) Provide a specific statement of the issue of law or fact to beraised or controverted;
1.4
(ii) Provide a brief explanation of the basis for the contention;
(iii) Demonstrate that the issue raised in the contention is withinthe scope of the proceeding;
(iv) Demonstrate that the issue raised in the contention ismaterial to the findings the NRC must make to support theaction that is involved in the proceeding;
(v) Provide a concise statement of the alleged facts or expertopinions which support the requestor's/petitioner's position onthe issue and on which the petitioner intends to rely at hearing,together with references to the specific sources and documentson which the requestor/petitioner intends to rely to support itsposition on the issue; and
(vi) Provide sufficient information to show that a genuinedispute exists with the applicant/licensee on a material issue oflaw or fact. This information must include references to specificportions of the application (including the applicant'senvironmental report and safety report) that the petitionerdisputes and the supporting reasons for each dispute, or, if thepetitioner believes that the application fails to containinformation on a relevant matter as required by law, theidentification of each failure and the supporting reasons for thepetitioner's belief.
(2) Contentions must be based on documents or other informationavailable at the time the petition is to be filed, such as the application,supporting safety analysis report, environmental report or othersupporting document filed by an applicant or licensee, or otherwiseavailable to a petitioner. On issues arising under the NationalEnvironmental Policy Act, the petitioner shall file contentions basedon the applicant's environmental report. The petitioner may amendthose contentions or file new contentions if there are data orconclusions in the NRC draft or final environmental impactstatement, environmental assessment, or any supplements relatingthereto, that differ significantly from the data or conclusions in theapplicant's documents. Otherwise, contentions may be amended or
1.5
new contentions filed after the initial filing only with leave of thepresiding officer upon a showing that--
(i) The information upon which the amended or new contentionis based was not previously available;
(ii) The information upon which the amended or newcontention is based is materially different than informationpreviously available; and
(iii) The amended or new contention has been submitted in atimely fashion based on the availability of the subsequentinformation.
(3) If two or more requestors/petitioners seek to co-sponsor acontention, the requestors/petitioners shall jointly designate arepresentative who shall have the authority to act for therequestors/petitioners with respect to that contention. If arequestor/petitioner seeks to adopt the contention of anothersponsoring requestor /petitioner, the requestor /petitioner who seeksto adopt the contention must either agree that the sponsoringrequestor/petitioner shall act as the representative with respect tothat contention, or jointly designate with the sponsoringrequestor/petitioner a representative who shall have the authority toact for the requestors/petitioners with respect to that contention.
§ 2.710 Motions for Summary Disposition.
(a) Any party to a proceeding may move, with or without supportingaffidavits, for a decision by the presiding officer in that party's favor as toall or any part of the matters involved in the proceeding. Summarydisposition motions must be filed no later than twenty (20) days after theclose of discovery. The moving party shall attach to the motion a separate,short, and concise statement of the material facts as to which the movingparty contends that there is no genuine issue to be heard. Any other party
1.6
may serve an answer supporting or opposing the motion, with or withoutaffidavits, within twenty (20) days after service of the motion. The partyshall attach to any answer opposing the motion a separate, short, andconcise statement of the material facts as to which it is contended thereexists a genuine issue to be heard. All material facts set forth in thestatement required to be served by the moving party will be considered tobe admitted unless controverted by the statement required to be served bythe opposing party. The opposing party may, within ten (10) days afterservice, respond in writing to new facts and arguments presented in anystatement filed in support of the motion. No further supporting statementsor responses thereto will be entertained.
(b) Affidavits must set forth the facts that would be admissible in evidence,and must demonstrate affirmatively that the affiant is competent to testifyto the matters stated in the affidavit. The presiding officer may permitaffidavits to be supplemented or opposed by depositions, answers tointerrogatories or further affidavits. When a motion for summary decisionis made and supported as provided in this section, a party opposing themotion may not rest upon the mere allegations or denials of his answer. Theanswer by affidavits or as otherwise provided in this section must set forthspecific facts showing that there is a genuine issue of fact. If no answer isfiled, the decision sought, if appropriate, must be rendered.
(c) Should it appear from the affidavits of a party opposing the motion thathe or she cannot, for reasons stated, present by affidavit facts essential tojustify the party's opposition, the presiding officer may refuse theapplication for summary decision, order a continuance to permit affidavitsto be obtained, or make an order as is appropriate. A determination to thateffect must be made a matter of record.
(d) (1) The presiding officer need not consider a motion for summarydisposition unless its resolution will serve to expedite the proceedingif the motion is granted. The presiding officer may dismiss summarilyor hold in abeyance untimely motions filed shortly before the hearingcommences or during the hearing if the other parties or the presidingofficer would be required to divert substantial resources from thehearing in order to respond adequately to the motion and therebyextend the proceeding.
1.7
(2) The presiding officer shall render the decision sought if the filingsin the proceeding, depositions, answers to interrogatories, andadmissions on file, together with the statements of the parties and theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a decision as amatter of law. However, in any proceeding involving a constructionpermit for a production or utilization facility, the procedure describedin this section may be used only for the determination of specificsubordinate issues and may not be used to determine the ultimateissue as to whether the permit shall be issued.
(e) The presiding officer shall issue an order no later than forty (40) daysafter any responses to the summary disposition motion are filed, indicatingwhether the motion is granted, or denied, and the bases therefore.
NRC Early Site Permit Rules
10 C.F.R. Part 52, Subpart A
§ 52.11 Scope of subpart.
This subpart sets out the requirements and procedures applicable toCommission issuance of early site permits for approval of a site or sites forone or more nuclear power facilities separate from the filing of anapplication for a construction permit or combined license for such a facility.
§ 52.13 Relationship to subpart F of 10 CFR part 2 and appendix Q of this part.
The procedures of this subpart do not replace those set out in subpart F of10 CFR part 2 or appendix Q of this part. Subpart F applies only when earlyreview of site suitability issues is sought in connection with an applicationfor a permit to construct certain power facilities. Appendix Q applies onlywhen NRC staff review of one or more site suitability issues is soughtseparately from and prior to the submittal of a construction permit. A StaffSite Report issued under appendix Q in no way affects the authority of theCommission or the presiding officer in any proceeding under subpart F or
1.8
G of 10 CFR part 2. Subpart A applies when any person who may apply fora construction permit under 10 CFR part 50 or for a combined license under10 CFR part 52 seeks an early site permit from the Commission separatelyfrom an application for a construction permit or a combined license for afacility.
§ 52.15 Filing of applications.
(a) Any person who may apply for a construction permit under 10 CFR part50, or for a combined license under 10 CFR part 52, may file with theDirector of Nuclear Reactor Regulation an application for an early sitepermit. An application for an early site permit may be filednotwithstanding the fact that an application for a construction permit or acombined license has not been filed in connection with the site or sites forwhich a permit is sought.
(b) The application must comply with the filing requirements of 10 CFR50.30 (a), (b), and (f) as they would apply to an application for aconstruction permit. The following portions of § 50.4, which is referencedby § 50.30(a)(1), are applicable: paragraphs (a), (b) (1)-(3), (c), (d), and (e).
§ 52.17 Contents of applications.
(a)(1) The application must contain the information required by §50.33 (a) through (d), the information required by § 50.34 (a)(12)and (b)(10), and to the extent approval of emergency plans issought under paragraph (b)(2)(ii) of this section, the informationrequired by § 50.33 (g) and (j), and § 50.34 (b)(6)(v) of thischapter. The application must also contain a description andsafety assessment of the site on which the facility is to belocated. The assessment must contain an analysis andevaluation of the major structures, systems, and components ofthe facility that bear significantly on the acceptability of the siteunder the radiological consequence evaluation factors identifiedin § 50.34(a)(1) of this chapter. Site characteristics must complywith part 100 of this chapter. In addition, the application shoulddescribe the following:
1.9
(i) The number, type, and thermal power level of the facilities forwhich the site may be used;
(ii) The boundaries of the site;
(iii) The proposed general location of each facility on the site;
(iv) The anticipated maximum levels of radiological and thermaleffluents each facility will produce;
(v) The type of cooling systems, intakes, and outflows that may beassociated with each facility;
(vi) The seismic, meteorological, hydrologic, and geologiccharacteristics of the proposed site;
(vii) The location and description of any nearby industrial, military, ortransportation facilities and routes; and
(viii) The existing and projected future population profile of the areasurrounding the site.
(2) A complete environmental report as required by 10 CFR 51.45and 51.50 must be included in the application, provided,however, that such environmental report must focus on theenvironmental effects of construction and operation of a reactor,or reactors, which have characteristics that fall within thepostulated site parameters, and provided further that the reportneed not include an assessment of the benefits (for example,need for power) of the proposed action, but must include anevaluation of alternative sites to determine whether there is anyobviously superior alternative to the site proposed.
(b)(1) The application must identify physical characteristics unique tothe proposed site, such as egress limitations from the areasurrounding the site, that could pose a significant impedimentto the development of emergency plans.
(2) The application may also either:
(i) Propose major features of the emergency plans, such as the exactsizes of the emergency planning zones, that can be reviewed and
1.10
approved by NRC in consultation with FEMA in the absence ofcomplete and integrated emergency plans; or
(ii) Propose complete and integrated emergency plans for review andapproval by the NRC, in consultation with the Federal EmergencyManagement Agency, in accord with the applicable provisions of 10CFR 50.47.
(3) Under paragraphs (b)(1) and (2)(i) of this section, theapplication must include a description of contacts andarrangements made with local, state, and federal governmentalagencies with emergency planning responsibilities. Under theoption set forth in paragraph (b)(2)(ii) of this section, theapplicant shall make good faith efforts to obtain from the samegovernmental agencies certifications that: (i) The proposedemergency plans are practicable; (ii) These agencies arecommitted to participating in any further development of theplans, including any required field demonstrations, and (iii) thatthese agencies are committed to executing their responsibilitiesunder the plans in the event of an emergency. The applicationmust contain any certifications that have been obtained. If thesecertifications cannot be obtained, the application must containinformation, including a utility plan, sufficient to show that theproposed plans nonetheless provide reasonable assurance thatadequate protective measures can and will be taken, in theevent of a radiological emergency at the site.
(c) If the applicant wishes to be able to perform, after grant of the early sitepermit, the activities at the site allowed by 10 CFR 50.10(e)(1) without firstobtaining the separate authorization required by that section, the applicantshall propose, in the early site permit, a plan for redress of the site in theevent that the activities are performed and the site permit expires before itis referenced in an application for a construction permit or a combinedlicense issued under subpart C of this part. The application mustdemonstrate that there is reasonable assurance that redress carried outunder the plan will achieve an environmentally stable and aestheticallyacceptable site suitable for whatever non-nuclear use may conform withlocal zoning laws.
1.11
§ 52.18 Standards for review of applications.
Applications filed under this subpart will be reviewed according tothe applicable standards set out in 10 CFR part 50 and its appendices andpart 100 as they apply to applications for construction permits for nuclearpower plants. In particular, the Commission shall prepare anenvironmental impact statement during review of the application, inaccordance with the applicable provisions of 10 CFR part 51, provided,however, that the draft and final environmental impact statementsprepared by the Commission focus on the environmental effects ofconstruction and operation of a reactor, or reactors, which havecharacteristics that fall within the postulated site parameters, and providedfurther that the statements need not include an assessment of the benefits(for example, need for power) of the proposed action, but must include anevaluation of alternative sites to determine whether there is any obviouslysuperior alternative to the site proposed. The Commission shall determine,after consultation with the Federal Emergency Management Agency,whether the information required of the applicant by § 52.17(b)(1) showsthat there is no significant impediment to the development of emergencyplans, whether any major features of emergency plans submitted by theapplicant under § 52.17(b)(2)(i) are acceptable, and whether any emergencyplans submitted by the applicant under § 52.17(b)(2)(ii) provide reasonableassurance that adequate protective measures can and will be taken in theevent of a radiological emergency.
§ 52.19 Permit and renewal fees.
The fees charged for the review of an application for the initialissuance or renewal of an early site permit are set forth in 10 CFR 170.21and shall be paid in accordance with 10 CFR 170.12.
§ 52.21 Hearings.
An early site permit is a partial construction permit and is thereforesubject to all procedural requirements in 10 CFR part 2 which are applicableto construction permits, including the requirements for docketing in §2.101(a)(1)-(4), and the requirements for issuance of a notice of hearing in §§
1.12
2.104(a), (b)(1)(iv) and (v), (b)(2) to the extent it runs parallel to (b)(1)(iv)and (v), and (b)(3), provided that the designated sections may not beconstrued to require that the environmental report or draft or finalenvironmental impact statement include an assessment of the benefits ofthe proposed action. In the hearing, the presiding officer shall alsodetermine whether, taking into consideration the site criteria contained in10 CFR part 100, a reactor, or reactors, having characteristics that fall withinthe parameters for the site can be constructed and operated without unduerisk to the health and safety of the public. All hearings conducted onapplications for early site permits filed under this part are governed by theprocedures contained in subparts C, G and L of part 2 of this chapter.
§ 52.23 Referral to the ACRS.
The Commission shall refer a copy of the application to the AdvisoryCommittee on Reactor Safeguards (ACRS). The ACRS shall report on thoseportions of the application which concern safety.
§ 52.24 Issuance of early site permit.
After conducting a hearing under § 52.21 of this subpart and receiving.the report to be submitted by the Advisory Committee on ReactorSafeguards under § 52.23 of this subpart, and upon determining that anapplication for an early site permit meets the applicable standards andrequirements of the Atomic Energy Act and the Commission's regulations,and that notifications, if any, to other agencies or bodies have been dulymade, the Commission shall issue an early site permit, in the form andcontaining the conditions and limitations, as the Commission deemsappropriate and necessary.
§ 52.25 Extent of activities permitted.
(a) If an early site permit contains a site redress plan, the holder of thepermit, or the applicant for a construction permit or combined license whoreferences the permit, may perform the activities at the site allowed by 10
1.13
CFR 50.10(e)(1) without first obtaining the separate authorization requiredby that section, provided that the final environmental impact statementprepared for the permit has concluded that the activities will not result inany significant adverse environmental impact which cannot be redressed.
(b) If the activities permitted by paragraph (a) of this section areperformed at any site for which an early site permit has been granted, andthe site is not referenced in an application for a construction permit or acombined license issued under subpart C of this part while the permitremains valid, then the early site permit must remain in effect solely for thepurpose of site redress, and the holder of the permit shall redress the site inaccordance with the terms of the site redress plan required by § 52.17(c). If,before redress is complete, a use not envisaged in the redress plan is foundfor the site or parts thereof, the holder of the permit shall carry out theredress plan to the greatest extent possible consistent with the alternate use.
§ 52.27 Duration of permit.
(a) Except as provided in paragraph (b) of this section, an early site permitissued under this subpart may be valid for not less than ten nor more thantwenty years from the date of issuance.
(b)(1) An early site permit continues to be valid beyond the date ofexpiration in any proceeding on a construction permitapplication or a combined license application which referencesthe early site permit and is docketed either before the date ofexpiration of the early site permit, or, if a timely application forrenewal of the permit has been filed, before the Commission hasdetermined whether to renew the permit.
An early site permit also continues to be valid beyond the dateof expiration in any proceeding on an operating licenseapplication which is based on a construction permit whichreferences the early site permit, and in any hearing held under §52.103 of this part before operation begins under a combinedlicense which references the early site permit.
(2)
1.14
(c) An applicant for a construction permit or combined license may, at itsown risk, reference in its application a site for which an early site permitapplication has been docketed but not granted.
§ 52.29 Application for renewal.
(a) Not less than twelve nor more than thirty-six months prior to theend of the initial twenty-year period, or any later renewal period, thepermit holder may apply for a renewal of the permit. An application forrenewal must contain all information necessary to bring up to date theinformation and data contained in the previous application.
(b) Any person whose interests may be affected by renewal of thepermit may request a hearing on the application for renewal. The requestfor a hearing must comply with 10 CFR 2.309. If a hearing is granted, noticeof the hearing will be published in accordance with 10 CFR 2.309.
(c) An early site permit, either original or renewed, for which a timelyapplication for renewal has been filed, remains in effect until theCommission has determined whether to renew the permit. If the permit isnot renewed, it continues to be valid in certain proceedings in accordancewith the provisions of § 52.27(b).
(d) The Commission shall refer a copy of the application for renewalto the Advisory Committee on Reactor Safeguards (ACRS). The ACRS shallreport on those portions of the application which concern safety and shallapply the criteria set forth in § 52.31.
§ 52.31 Criteria for renewal.
(a) The Commission shall grant the renewal if the Commission determinesthat the site complies with the Atomic Energy Act and the Commission'sregulations and orders applicable and in effect at the time the site permitwas originally issued, and any new requirements the Commission maywish to impose after a determination that there is a substantial increase inoverall protection of the public health and safety or the common defenseand security to be derived from the new requirements and that the direct
1.15
and indirect costs of implementation of those requirements are justified inview of this increased protection.
(b) A denial of renewal on this basis does not bar the permit holder oranother applicant from filing a new application for the site which proposeschanges to the site or the way in which it is used which correct thedeficiencies cited in the denial of the renewal.
§ 52.33 Duration of renewal.
Each renewal of an early site permit may be for not less than ten nor morethan twenty years.
§ 52.35 Use of site for other purposes.
A site for which an early site permit has been issued under this subpartmay be used for purposes other than those described in the permit,including the location of other types of energy facilities. The permit holdershall inform the Director of Nuclear Reactor Regulation of any significantuses for the site which have not been approved in the early site permit. Theinformation about the activities must be given to the Director in advance ofany actual construction or site modification for the activities. Theinformation provided could be the basis for imposing new requirements onthe permit, in accordance with the provisions of § 52.39. If the permit holderinforms the Director that the holder no longer intends to use the site for anuclear power plant, the Director shall terminate the permit.
§ 52.37 Reporting of defects and noncompliance; revocation, suspension,modification of permits for cause.
For purposes of part 21 and 10 CFR 50.100, an early site permit is aconstruction permit.
§ 52.39 Finality of early site permit determinations.
(a)(1) Notwithstanding any provision in 10 CFR 50.109, while an earlysite permit is in effect under §§ 52.27 or 52.33 the Commission
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may not impose new requirements, including new emergencyplanning requirements, on the early site permit or the site forwhich it was issued, unless the Commission determines that amodification is necessary either to bring the permit or the siteinto compliance with the Commission's regulations and ordersapplicable and in effect at the time the permit was issued, or toassure adequate protection of the public health and safety or thecommon defense and security.
(2) In making the findings required for issuance of a construction permit,operating license, or combined license, or the findings required by §52.103 of this part, if the application for the construction permit,operating license, or combined license references an early site permit,the Commission shall treat as resolved those matters resolved in theproceeding on the application for issuance or renewal of the early sitepermit, unless a contention is admitted that a reactor does not fitwithin one or more of the site parameters included in the site permit,or a petition is filed which alleges either that the site is not incompliance with the terms of the early site permit, or that the termsand conditions of the early site permit should be modified.
(i) A contention that a reactor does not fit within one or more of thesite parameters included in the site permit may be litigated in thesame manner as other issues material to the proceeding.
(ii) A petition alleging that the site is not in compliance with the termsof the early site permit must include, or clearly reference, official NRCdocuments, documents prepared by or for the permit holder, orevidence admissible in a proceeding under subpart C of 10 CFR part2, which show, prima facie, that the acceptance criteria have not beenmet. The permit holder and NRC staff may file answers to the petitionwithin the time specified in 10 CFR 2.323 for answers to motions byparties and staff. If the Commission, in its judgment, decides, on thebasis of the petitions and any answers thereto, that the petition meetsthe requirements of this paragraph, that the issues are not exemptfrom adjudication under 5 U.S.C. 554(a)(3), that genuine issues ofmaterial fact are raised, and that settlement or other informalresolution of the issues is not possible, then the genuine issues of
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material fact raised by the petition must be resolved in accordancewith the provisions in 5 U.S.C. 554, 556, and 557 which are applicableto determining applications for initial licenses.
(iii) A petition which alleges that the terms and conditions of the earlysite permit should be modified will be processed in accord with 10CFR 2.206. Before construction commences, the Commission shallconsider the petition and determine whether any immediate action isrequired. If the petition is granted, then an appropriate order will beissued. Construction under the construction permit or combinedlicense will not be affected by the granting of the petition unless theorder is made immediately effective.
(iv) Prior to construction, the Commission shall find that the terms ofthe early site permit have been met.
(b) An applicant for a construction permit, operating license, or combinedlicense who has filed an application referencing an early site permit issuedunder this subpart may include in the application a request for a variancefrom one or more elements of the permit. In determining whether to grantthe variance, the Commission shall apply the same technically relevantcriteria as were applicable to the application for the original or renewed sitepermit. Issuance of the variance must be subject to litigation during theconstruction permit, operating license, or combined license proceeding inthe same manner as other issues material to those proceedings
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