Massachusetts v. United States

United States Court of Appeals
For the First Circuit

Nos. 07-1482, 07-1483

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

v.

UNITED STATES; UNITED STATES NUCLEAR REGULATORY COMMISSION,

Respondents,

ENTERGY NUCLEAR OPERATIONS, INC.; ENTERGY NUCLEAR
VERMONT YANKEE LLC; ENTERGY NUCLEAR GENERATION COMPANY,

Intervenors.

ON PETITIONS FOR REVIEW OF ORDERS OF THE
U.S. NUCLEAR REGULATORY COMMISSION

Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Matthew Brock, Assistant Attorney General, with whom Martha
Coakley, Attorney General, Diane Curran, and Harmon, Curran,
Spielberg & Eisenberg, L.L.P. were on brief for petitioner.
Steven C. Hamrick, Attorney, with whom Karen D. Cyr, General
Counsel, John F. Cordes, Jr., Solicitor, E. Leo Slaggie, Deputy
Solicitor, U.S. Nuclear Regulatory Commission, Ronald J. Tenpas,
Acting Assistant Attorney General, and Lane M. McFadden, Attorney,
U.S. Department of Justice, were on brief for respondents.
David R. Lewis with whom Paul A. Gaukler and Pillsbury
Winthrop Shaw Pittman LLP were on brief for intervenors.

April 8, 2008
 LYNCH, Circuit Judge. The Commonwealth of Massachusetts

wishes to ensure that the United States Nuclear Regulatory

Commission ("NRC" or the "Commission") will take account of the

Commonwealth's safety concerns about treatment of spent fuel rods

before the NRC decides whether to renew the operating licenses of

two nuclear energy plants: the Pilgrim plant in Plymouth,

Massachusetts, and the Vermont Yankee plant in Vernon, Vermont,

which is within ten miles of the Massachusetts border. The

licenses were originally issued in 1972 and will expire in 2012;

the re-licensing proceedings have been initiated and are ongoing.

The Commonwealth says that old assumptions about safe

storage of spent fuel rods -- on which the NRC has relied since at

least the early 1970s -- no longer hold. The Commonwealth claims

that more recent studies and changed circumstances indicate an

increased risk that the plants' method of storing spent fuel rods

will lead to an environmental catastrophe. It also raises its

concern that the plants' method of storing spent fuel leaves the

plants vulnerable to terrorist attack.

Both sides agree that the safety issues raised are

deserving of careful consideration. Both sides also agree that the

Commonwealth is by law permitted to raise its various concerns by

some path and to obtain judicial review of any NRC decision that

adversely affects its interests in this matter. The question

presented here is whether the Commonwealth has, from the regulatory

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maze, chosen the correct path for doing so. The Commonwealth

insists it has chosen the appropriate path, indeed, the only one

available to it. In short, the Commonwealth argues that it must be

allowed to participate directly in the re-licensing proceedings as

a party in order to get its safety-based contentions heard. In the

alternative, the Commonwealth argues that the NRC must ensure that

it resolves a separate rulemaking petition, initiated by the

Commonwealth and based on the same concerns about spent fuel

storage, before the Commission issues any renewal licenses so that

the results of the rulemaking will apply to the Pilgrim and Vermont

Yankee re-licensing proceedings.

The NRC says the Commonwealth has chosen the wrong path,

indeed, one precluded by its regulations. The agency also says

that another option is available, is the proper path to be

followed, and will adequately protect the state's interests.

According to the NRC, the Commonwealth must abandon its attempt to

attain formal "party" status in the licensing proceedings and

instead seek to participate in those proceedings as an "interested

governmental entity." The Commonwealth may, in that capacity,

petition the agency to delay issuance of the renewal licenses until

the Commonwealth's request for a rulemaking is resolved. Indeed,

the NRC has committed itself in this case to an interpretation of

its regulations in such a way as to provide this alternative path,

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complete with opportunities for eventual judicial review, to the

Commonwealth.

We hold as a matter of law that the Commonwealth has

chosen the wrong path in seeking to raise the safety issues as a

party in the licensing proceedings and deny its petition. We also

bind the NRC to its litigation position, described in more detail

below. This leaves the Commonwealth free to follow the NRC's

preferred path if it so chooses. To the extent the Commonwealth

seeks an order from this court interfering with the NRC's ongoing

re-licensing proceedings by imposing decision-making timetables on

the agency, we issue a very brief stay but otherwise decline to

issue such relief.

I.

Regulatory Background

A description of the regulatory scheme governing the

process for renewing licenses to operate nuclear power plants is

helpful to understand this case. The Atomic Energy Act ("AEA")

contains the statutory basis for issuing and renewing such

licenses. See 42 U.S.C. §§ 2133, 2134(b). The AEA empowers the

NRC to make licensing decisions. Id. §§ 2133, 2134(b). The AEA

provides for initial operating licenses valid for up to forty years

and specifies that licenses "may be renewed." Id. § 2133(c).1 The

1
Sections 2133 and 2134(b) originally provided separate
bases for issuing atomic energy licenses. Unlike § 2133, § 2134(b)
does not explicitly impose a forty-year limit or provide for

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AEA says nothing more about requirements for re-licensing, instead

delegating to the NRC authority to determine applicable rules and

regulations. Id. §§ 2133, 2134(b).

The NRC has codified two distinct sets of regulations

containing requirements for license renewal applications. The

first set of regulations focuses on technical issues such as

equipment aging. See, e.g., 10 C.F.R. § 54.4 (defining scope of

renewal requirements in 10 C.F.R. Part 54). Those provisions are

not at issue here.

The NRC promulgated the other set of regulations,

codified at 10 C.F.R. Part 51, primarily to fulfill the agency's

obligations under the National Environmental Policy Act ("NEPA").

See 10 C.F.R. § 51.10 (explaining purpose of Part 51 regulations).

NEPA requires federal agencies to document the environmental

impacts and possible alternatives to proposed "major Federal

actions significantly affecting the quality of the human

environment." 42 U.S.C. § 4332(C). In doing so, NEPA fulfills

dual purposes. First, it "places upon an agency the obligation to

consider every significant aspect of the environmental impact of a

license renewal. However, the agency has treated licenses issued
under either provision as subject to the same terms limiting the
initial license to no more than forty years and providing for
renewal following expiration of the initial license. See Nuclear
Power Plant License Renewal, 55 Fed. Reg. 29,043, 29,050 (proposed
July 17, 1990); see also 10 C.F.R. § 50.51. Agency regulations now
explicitly subject licenses for plants issued under both provisions
to the same requirements for renewal. See 10 C.F.R. § 54.1.

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proposed action." Balt. Gas & Elec. Co. v. Nat'l Res. Def.

Council, Inc., 462 U.S. 87, 97 (1983) (quoting Vt. Yankee Nuclear

Power Corp. v. Nat'l Res. Def. Council, Inc., 435 U.S. 519, 553

(1978)) (internal quotation marks omitted). "Second, it ensures

that the agency will inform the public that it has indeed

considered environmental concerns in its decisionmaking process."

Id. (citing Weinberger v. Catholic Action of Haw. Peace Educ.

Project, 454 U.S. 139, 143 (1981)).

Issuance or renewal of a license to operate a nuclear

power plant is a "major Federal action" triggering NEPA's

requirement that the agency produce an Environmental Impact

Statement ("EIS") for such proceedings. 10 C.F.R. § 51.20.

Producing an EIS containing adequate discussion of all

the environmental issues relevant to licensing the operation of a

nuclear power plant poses a significant task for the NRC. In an

effort to streamline the license renewal process, the NRC in 1996

conducted a study to determine which NEPA-related issues could be

addressed generically (that is, applying to all plants) and which

need to be determined on a plant-by-plant basis. The agency

characterizes the first group of issues as Category 1, and the

second as Category 2, issues. See generally Office of Nuclear

Regulatory Research, U.S. Nuclear Regulatory Comm'n, NUREG-1437, 1

Generic Environmental Impact Statement for License Renewal of

Nuclear Plants (1996).

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 Category 1 issues are common to all nuclear power plants,

or to a sub-class of plants. As such, the NRC does not analyze

generic Category 1 issues afresh with each individual plant

operating license application. Instead, the agency conducted an

extensive survey and generated findings, contained within a Generic

Environmental Impact Statement ("GEIS"), that answer Category 1

issues as to all nuclear power plants. See id. at 1-3 to 1-6. The

GEIS findings have since been codified through a rulemaking. See

Environmental Review for Renewal of Nuclear Power Plant Operating

Licenses, 61 Fed. Reg. 28,467 (June 5, 1996) [hereinafter Final

Rule]; see also 10 C.F.R. pt. 51, subpt. A, app. B (listing "NEPA

issues for license renewal of nuclear power plants" and assigning

them to either Category 1 or 2). Category 2 issues, by contrast,

are those non-generic issues that require site-specific analysis

for each individual licensing proceeding. 10 C.F.R. pt. 51, subpt.

A, app. B, n.2.

These categories affect how the NRC handles the NEPA-

mandated EIS requirements. The process of creating the EIS for an

operating licensing (or re-licensing) proceeding begins with the

applicant, although producing the EIS is ultimately the NRC's

responsibility. Under the regulations, each applicant must submit

to the agency an environmental report that includes plant-specific

analysis of all Category 2 issues. Id. § 51.53(c)(3)(ii). The

regulations generally relieve applicants of having to discuss

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Category 1 issues, instead allowing applicants to rest on the GEIS

findings. Id. § 51.53(c)(3)(i).

The regulation does require an applicant's report to

include "any new and significant information regarding the

environmental impacts of license renewal of which the applicant is

aware." Id. § 51.53(c)(3)(iv). The NRC concedes that this applies

even to "new and significant information" concerning Category 1

issues.

NRC staff then draw upon the applicant's environmental

report to produce a draft supplemental EIS ("SEIS") for the license

renewal. See id. § 51.95(c). This plant-specific SEIS addresses

Category 2 issues and complements the GEIS, which covers Category

1 issues. Id. § 51.71(d). When the GEIS and SEIS are combined,

they cover all issues that NEPA requires be addressed in an EIS for

a nuclear power plant license renewal proceeding.

Once the agency has prepared a draft SEIS, it must be

made available for comment both to the public and to other federal,

state, and local agencies. Id. §§ 51.73, 51.74. After receiving

comments, the NRC must then prepare a final SEIS. Id.

§ 51.95(c)(3) (referencing id. § 51.91).

Because Category 1 issues have already been addressed

globally by 10 C.F.R. pt. 51, subpt. A, app. B, they cannot be

litigated in individual adjudications, such as license renewal

proceedings for individual plants. See id. § 2.335; Fla. Power &

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Light Co. (Turkey Point Nuclear Generating Plant), 54 N.R.C. 3, 12,

20-23 (2001). Instead, the agency has established other means for

challenging GEIS findings regarding Category 1 issues when

necessary, whether by the agency's own initiative or by petition

from an outside entity. This divergent treatment of generic and

site-specific issues is reasonable and consistent with the purpose

of promoting efficiency in handling license renewal decisions.

There are several methods of review of Category 1 issues.

First, the agency must review the GEIS findings every ten years.

See Final Rule, supra, 61 Fed. Reg. at 28,468. Second, the NRC

staff may make a request to the Commission that a rule be suspended

on a generic basis or that a particular adjudication be delayed

until the GEIS and accompanying rule are amended. Id. at 28,470.

This would be an appropriate course of action should public

comments on a draft SEIS (or information submitted by a license

renewal applicant) alert the agency to "new and significant

information" calling into question the validity of a GEIS finding.

Id.

Third, the NRC staff may request that a rule be suspended

with respect to a particular plant if comments to a draft SEIS

reveal site-specific information indicating that the rule would be

inapplicable to that particular plant. Id.

Fourth, "[a] party to an adjudicatory proceeding" may

petition for a waiver of an NRC rule or regulation with respect to

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that proceeding. 10 C.F.R. § 2.335(b). "The sole ground for

petition of waiver or exception is that special circumstances with

respect to the subject matter of the particular proceeding are such

that the application of the rule or regulation . . . would not

serve the purposes for which [it] was adopted." Id.

Finally, any member of the public may petition the agency

for a rulemaking proceeding aimed at altering the GEIS and its

accompanying rule. Final Rule, supra, 61 Fed. Reg. at 28,470.

II.

Administrative Proceedings

Entergy,2 intervenor to these petitions, obtained

operating licenses for the Pilgrim and Vermont Yankee plants in

1972. Those licenses will expire in 2012, but they may be renewed

for an additional twenty-year period, which would last until 2032.

On January 25, 2006, Entergy submitted applications to begin the

license renewal process.3

Both the Pilgrim and the Vermont Yankee applications

included an environmental report specific to the respective plant.

Entergy's environmental reports did not contain in-depth discussion

2
We use "Entergy" to refer to three entities: Entergy
Nuclear Generation Company holds the Pilgrim plant possession and
use license; Entergy Nuclear Vermont Yankee LLC holds the Vermont
Yankee plant possession and use license; and Entergy Nuclear
Operations, Inc. holds the operating licenses for both facilities.
3
The Commission is currently scheduled to issue a decision
on the Plymouth application by July 27, 2008 and the Vermont Yankee
application by November 2008.

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of any Category 1 issues and represented that "Entergy has not

identified any new and significant information concerning the

impacts addressed by these [GEIS] findings."

On May 26, 2006, the Commonwealth of Massachusetts

submitted parallel hearing requests in each of the two plant re-

licensing proceedings. Each request included only one contention

that the Commonwealth proposed to introduce into the proceedings:

that Entergy's environmental reports for each plant did not satisfy

NEPA "because [they do] not address the environmental impacts of

severe spent fuel pool accidents."

The storage of spent fuel on site at nuclear power plants

is a Category 1 issue for operating license renewal purposes.4 10

C.F.R. pt. 51, subpt. A, app. B. That subject is normally exempt

from discussion in a license renewal applicant's environmental

report, id. § 51.53(c)(3)(i), but may be raised elsewhere. The

Commonwealth contends that it may raise the issue in the re-

licensing proceeding and that Entergy's report violated NEPA and 10

C.F.R. § 51.53(c)(3)(iv) because it failed to address "new and

4
The regulation adopts the GEIS findings that "[t]he
expected increase in the volume of spent fuel from an additional 20
years of operation can be safely accommodated on site with small
environmental effects through dry or pool storage at all plants if
a permanent repository or monitored retrievable storage is not
available." 10 C.F.R. pt. 51, subpt. A, app. B. As such, the
license renewal regulations classify the environmental impacts of
on-site spent fuel storage as "small," i.e., "not detectable or .
. . so minor that they will neither destabilize nor noticeably
alter any important attribute of the resource." Id. at n.3.

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significant information" regarding the risks of on-site spent fuel

storage.

Spent fuel rods are a radioactive waste product of

nuclear power plants. When the Pilgrim and Vermont Yankee plants

were originally licensed in 1972, it was common practice to arrange

spent fuel rods in low-density racks in water-filled storage pools

located at the plant that produced the waste. At the time, there

was a national policy of eventually disposing of spent fuel through

reprocessing. Long-term storage in a central geologic repository

posed another option for removing spent fuel from reactor sites.

However, the reprocessing strategy was abandoned in the mid-1970s,

and although the federal government has been planning to accept

spent fuel at a proposed repository at Yucca Mountain, Nevada, that

option will not be available until at least 2015, if at all. As a

result, spent fuel has accumulated at on-site storage facilities,

and power plant operators have replaced low-density racks with

high-density racks in storage pools in order to accommodate the

mounting volume of spent fuel rods. According to the Commonwealth,

use of high-density racks restricts the flow of cooling fluid

around spent fuel rods and raises the risk of fire under a number

of scenarios.

The Commonwealth contended in the re-licensing

proceedings that new and significant information about on-site

spent fuel storage at the Pilgrim and Vermont Yankee plants was

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demonstrated by the switch to high-density storage racks, recent

scientific studies regarding the dangers of high-density storage

pool fires, and the increased likelihood of terrorist attack

following September 11, 2001. According to the Commonwealth,

[s]ignificant new information now firmly
establishes that (a) if the water level in a
fuel storage pool drops to the point where the
tops of the fuel assemblies are uncovered, the
fuel will burn, (b) the fuel will burn
regardless of its age, (c) the fire will
propagate to other assemblies in the pool, and
([d]) the fire may be catastrophic.

A spent fuel pool fire would be catastrophic in large part because

"[a] large, atmospheric release of radioactive material would

occur."

The Commonwealth appended four reports to its hearing

requests in support of its pool fire contention. The first two

resulted from studies commissioned by the Commonwealth to assess

the risks of and alternatives to on-site, high-density pool storage

at the Pilgrim and Vermont Yankee plants. The first of these was

written by Dr. Gordon R. Thompson of the Institute for Resource and

Security Studies in Cambridge, Massachusetts. The Thompson report

surveyed analyses by NRC staff and others and found that they

recognized that "a loss of water from . . . high-density, closed-

form storage racks would, over a range of scenarios, lead to self-

ignition" of a fire "that could propagate across the pool." The

report assessed the probability of a high-density storage pool fire

occurring at either Pilgrim or Vermont Yankee as at least one per

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10,000 years. Dr. Thompson recommended replacing the high-density

storage racks at both facilities with low-density, open-frame

racks. This course would, according to Dr. Thompson, "return the

plant[s] to [their] original design configuration" and "achieve the

largest risk reduction[] during plant operation within a license

extension period." Dr. Thompson also surmised that re-equipping

the plants with the recommended racks would cost less than $110

million for each plant.

The second study commissioned by the Commonwealth was

authored by Dr. Jan Beyea, a nuclear physicist affiliated with

Consulting in the Public Interest, and focused on the consequences

of a hypothetical pool fire at the Pilgrim or Vermont Yankee

plants. Under a scenario in which ten percent of the radioactive

material in storage at the plants was released into the atmosphere

due to a pool fire, Dr. Beyea estimated economic costs of $105-171

billion for Pilgrim, and $87-165 billion for Vermont Yankee. If

one hundred percent of the radioactive material were released in

such a fire, the costs would rise to $342-488 billion at Pilgrim

and $364-518 billion at Vermont Yankee. Dr. Beyea estimated that

a one hundred percent release of radioactive material at either

plant could result in up to 8,000 cases of latent cancer. Dr.

Beyea's report further concluded that the results of recent

epidemiologic studies could significantly inflate his estimates of

the economic and health costs of a pool fire.

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 The third report submitted by the Commonwealth with its

hearing requests was authored by NRC staff to assess the risk of

spent fuel pool accidents at decommissioned nuclear power plants.

Published publicly in early 2001, the report acknowledged the

possibility that even a partial loss of cooling fluid in a storage

pool could result in a fire. The report also observed that because

"fuel assembly geometry and rack configuration are plant specific,"

the possibility of pool fires "cannot be precluded on a generic

basis." However, the report also concluded that "even though the

consequences from a zirconium fire could be serious," the risk of

such fires at decommissioning plants "is low and well within the

Commission's safety goals."

Finally, the Commonwealth submitted a report produced, at

the request of Congress, by the National Academy of Sciences to

examine the potential consequences of a terrorist attack on spent

fuel storage facilities sited at nuclear power plants. The report

concluded that while all plants should have on-site pools for

storage of spent fuel, there is some risk that a terrorist attack

could partially or fully drain such a pool, leading to a fire and

the release of radioactive material. The report also concluded

that "[t]he potential vulnerabilities of spent fuel pools to

terrorist attacks are plant-design specific. Therefore, specific

vulnerabilities can be understood only by examining the

characteristics of spent fuel storage at each plant."

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 The NRC convened two Atomic Safety and Licensing Boards

("ASLB" or "Board") to assess whether the various contentions

submitted by the Commonwealth and other entities were admissible in

the Pilgrim and Vermont Yankee license renewal proceedings. On

June 22, 2006, Entergy and the NRC staff filed oppositions to the

Commonwealth's hearing requests, arguing the Commonwealth had

chosen the wrong path to raise its contentions. They asserted the

Commonwealth had impermissibly challenged a generic Category 1

issue without requesting a waiver of the agency's rule within the

Pilgrim and Vermont Yankee proceedings. They also argued that the

information submitted by the Commonwealth did not constitute "new

and significant" information within the meaning of 10 C.F.R.

§ 51.53(c)(3)(iv). During oral arguments at pre-hearing

conferences in front of the ASLBs, the Commonwealth staked out its

position that the waiver provision was unavailable in any event; it

could not seek waiver in the individual proceedings because its

contention regarding pool fires was not specific to either of the

two plants, but was a safety issue common to all plants.

The Commonwealth also informed the ASLBs of its intention

to file a rulemaking petition aimed at modifying the GEIS findings

about on-site spent fuel storage. The parties agree that this

rulemaking path is and always has been open to the Commonwealth.

On August 25, 2006, following oral arguments in front of

the Pilgrim and Vermont Yankee ASLBs, the Commonwealth filed a

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petition for rulemaking with the NRC based on the same pool fire

contention raised in its hearing requests in the individual

licensing proceedings.5 The petition requested that the NRC

(a) consider new and significant information
showing that the NRC's characterization of the
environmental impacts of spent fuel storage as
insignificant in the 1996 [GEIS] is incorrect,
(b) revoke the regulations which codify that
incorrect conclusion and excuse consideration
of spent fuel storage impacts in NEPA
decision-making documents, (c) issue a generic
determination that the environmental impacts
of high-density pool storage of spent fuel are
significant, and (d) order that any NRC
licensing decision that approves high-density
pool storage of spent fuel at a nuclear power
plant . . . must be accompanied by an [EIS]
that addresses (i) the environmental impacts
of high-density pool storage of spent fuel at
that nuclear plant and (ii) a reasonable array
of alternatives for avoiding or mitigating
those impacts.

The petition also urged the NRC to "withhold any decision to renew

the operating licenses for the Pilgrim and Vermont Yankee nuclear

power plants until the requested rulemaking has been completed" and

suspend consideration of the Commonwealth's contentions in the

individual proceedings. In support of its petition, the

Commonwealth appended the same four reports described above. To

date, there has been no decision on the rulemaking petition, and

5
The State of California has submitted a petition for
rulemaking raising similar concerns; the NRC is currently
considering both petitions. See State of California; Receipt of
Petition for Rulemaking, 72 Fed. Reg. 27,068 (proposed May 14,
2007); Mass. Attorney Gen.; Receipt of Petition for Rulemaking, 71
Fed. Reg. 64,169 (proposed Nov. 1, 2006).

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the issue before us does not involve that petition, but rather the

Commonwealth's hearing requests in the individual plant re-

licensing proceedings.

The Vermont Yankee ASLB issued its decision on the

hearing requests in that proceeding on September 22, 2006. Entergy

Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station) (Vt.

Yankee I), 64 N.R.C. 131 (2006). As an initial matter, the ASLB

granted standing to the Commonwealth. Id. at 145. The Board went

on to reject the Commonwealth's contention, ruling that even if the

Commonwealth's contention presented "new and significant

information" about pool fires, "as a matter of law the contention

is not admissible because the Commission has already decided, in

Turkey Point, that licensing boards cannot admit an environmental

contention regarding a Category 1 issue." Id. at 155. The Board

stated the agency's position that under 10 C.F.R. § 51.53(c)(3), a

licensing applicant such as Entergy must provide analysis of new

and significant information regarding a NEPA issue, whether

Category 1 or 2, in its environmental report. Id. Further, the

Board observed that "if the information that the [Commonwealth]

presents is indeed new and significant, the Staff's SEIS needs to

address it." Id. at 156.

The Board's ruling did not purport to foreclose any

challenge by the Commonwealth to the agency's rule on on-site spent

fuel storage. Again citing Turkey Point, the Board pointed out

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that the Commonwealth "has several options, including filing a

petition for rulemaking, providing the information to the NRC Staff

(which can then seek Commission approval to suspend the application

of the rules or delay the license renewal proceeding), or

petitioning the Commission to waive the application of the rule."

Id. at 159. The Board concluded its discussion of the

Commonwealth's contention by noting the Commonwealth's pending

rulemaking petition. "Thus we see," the Board stated, "that the

[Commonwealth] has already begun to pursue the alternative remedies

specified in Turkey Point." Id. at 161.

On October 16, 2006, the Pilgrim ASLB issued a ruling

rejecting the Commonwealth's pool fire contention on substantially

the same grounds as had the Vermont Yankee ASLB. Entergy Nuclear

Generation Co. (Pilgrim Nuclear Power Station), 64 N.R.C. 257, 294-

300 (2006).

The Commonwealth appealed the ASLB decisions to the NRC.

The Commission affirmed the Pilgrim and Vermont Yankee ASLB

decisions on January 22, 2007. Entergy Nuclear Vt. Yankee, LLC

(Vt. Yankee Nuclear Power Station) (Vt. Yankee II), 65 N.R.C. 13

(2007). The NRC agreed with the ASLBs that the Commonwealth "chose

the appropriate way to challenge the GEIS when [it] filed [its]

rulemaking petition." Id. at 20. The Commission explained that

"[i]t makes more sense for the NRC to study whether, as a technical

matter, the agency should modify its requirements relating to spent

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fuel storage for all plants across the board than to litigate in

particular adjudications whether generic findings in the GEIS are

impeached by . . . claims of new information." Id. at 20-21.

Otherwise, plant-by-plant litigation of Category 1 issues "would

defeat the purpose of resolving generic issues in a GEIS." Id. at

21.

The Commission's decision also described how the pending

rulemaking could affect the Pilgrim and Vermont Yankee licensing

proceedings. The Commission rejected the Commonwealth's request

that it suspend the licensing proceedings. It would be "premature"

to delay a final decision on licensing, the Commission reasoned,

where "final decisions in those proceedings are not expected for

another year or more" and "involve many issues unrelated to the

[Commonwealth's] rulemaking petition." Id. at 22 n.37. However,

"depending on the timing and outcome" of the rulemaking, the

Commission recognized the possibility that NRC staff could request

that the Commission suspend the generic rule and include plant-

specific analysis of pool storage in the Pilgrim and Vermont Yankee

SEISs. Id. at 22. We are told that to date, that has not

happened.

The Commission also outlined a route by which the

Commonwealth itself could influence the timing of the licensing

decisions:

NRC regulations provide that a petitioner who
has filed a petition for rulemaking "may

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 request the Commission to suspend all or any
part of any licensing proceeding to which the
petitioner is a party pending disposition of
the petition for rulemaking." 10 C.F.R.
§ 2.802(d). An interested governmental entity
participating under 10 C.F.R. § 2.315 could
also make this request.

Id. at 22 n.37. Because alternatives were available, "admitting

the [Commonwealth's] contention for an adjudicatory hearing is not

necessary to ensure that the claim receives a full and fair

airing." Id. at 22.

The Commonwealth filed a motion for reconsideration and

clarification on February 1, 2007. The Commonwealth requested that

the Commission

establish that: (a) [Vt. Yankee II] is not a
final decision with respect to the
[Commonwealth's] rights of participation in
the Pilgrim and Vermont Yankee license renewal
proceedings, (b) the Commission will treat the
[Commonwealth] as a party if the
[Commonwealth] later decides to seek to
suspend the license renewal decisions for [the
plants] under 10 C.F.R. § 2.802, and (c) as a
party, the [Commonwealth] would be permitted
to seek judicial review of any decision by the
NRC that fails to make timely application of
the results of the proceeding on the
[Commonwealth's] petition for rulemaking to
the individual license renewal decisions for
Pilgrim and Vermont Yankee.

The Commission denied the motion on March 15, 2007.

Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station)

(Vt. Yankee III), 65 N.R.C. 211 (2007). The Commission found that

the motion failed to demonstrate "compelling circumstances"

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justifying reconsideration. Id. at 214. The Commission clarified

that its previous decision constituted a final decision with

regards to the NRC's rejection of the Commonwealth's contentions in

the licensing proceedings. The Commission also pointed out that

the Commonwealth, after the NRC's decision of the rulemaking

petition, could eventually also obtain judicial review of that

decision. Id. at 214 & n.13. Finally, the Commission made clear

that the Commonwealth "could seek [interested governmental entity]

status even now," a maneuver that would allow the Commonwealth to

request a stay of the licensing proceedings under 10 C.F.R.

§ 2.802(d). Id. at 214-15 & n.16.

The Commonwealth petitioned this court for review of the

Commission's decisions.

III.

The Commonwealth's principal argument in these petitions

is that by refusing to take into account its alleged new and

significant information regarding pool fires in the Pilgrim and

Vermont Yankee license renewal proceedings, whether by admitting

the Commonwealth as a party to the licensing proceedings or by

promising to apply the results of the rulemaking to those

proceedings, the NRC violated NEPA and the Administrative Procedure

Act ("APA").

The NRC and Entergy respond that the Commonwealth's NEPA

and APA claims are not properly before this court. Both of these

-22-
parties assert that the agency's ruling in Vt. Yankee II that it

had not suspended the licensing proceedings is not yet ripe for

judicial review because there has been no final agency action on

either the rulemaking petition or the license renewal applications.

Entergy further argues that we may not review the NEPA and APA

claims because the Commonwealth failed to exhaust available

administrative remedies.

A. NRC Decisions

The Administrative Procedure Act authorizes this court to

displace the Commission's decisions only to the extent that they

are "arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law." 5 U.S.C. § 706(2)(A); Massachusetts

v. U.S. Nuclear Regulatory Comm'n, 878 F.2d 1516, 1522 (1st Cir.

1989). This general posture of deference toward agency decision-

making is particularly marked with regards to NRC actions because

"[t]he [AEA] is hallmarked by the amount of discretion granted the

Commission in working to achieve the statute's ends."

Massachusetts, 878 F.2d at 1523 (quoting Pub. Serv. Co. of N.H. v.

U.S. Nuclear Regulatory Comm'n, 582 F.2d 77, 82 (1st Cir. 1978)).

This principle is applicable in the context of licensing decisions,

where statutory directives are scant and the AEA explicitly

delegates broad authority to the agency to promulgate rules and

regulations. See, e.g., 42 U.S.C. §§ 2133, 2134(b).

-23-
 This court must also be mindful of the substantial

deference required when an agency adopts reasonable interpretations

of regulations of its own creation. Fed. Express Corp. v.

Holowecki, 128 S. Ct. 1147, 1155 (2008); Auer v. Robbins, 519 U.S.

452, 461 (1997). We must accept the agency's position unless it is

"plainly erroneous or inconsistent with the regulation." Auer, 519

U.S. at 461 (quoting Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 359 (1989)) (internal quotation marks omitted).

The Commission's decision to deny party status to the

Commonwealth in the Pilgrim and Vermont Yankee license renewal

proceedings is reasonable in context, and consistent with agency

rules. As the Commonwealth has conceded, the pool fire contention

it raised in its hearing requests does not apply solely to the

Pilgrim or Vermont Yankee plants and instead challenges a Category

1 GEIS finding.

Where environmental impacts of an NRC action are not

plant-specific, the Supreme Court has endorsed "[t]he generic

method . . . [as] clearly an appropriate method of conducting the

hard look required by NEPA." Balt. Gas & Elec. Co., 462 U.S. at

101 (citing Vt. Yankee, 435 U.S. at 535 n.13). "Administrative

efficiency and consistency of decision are both furthered by a

generic determination of these effects without needless repetition

of the litigation in individual proceedings, which are subject to

review by the Commission in any event." Id.

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 The NRC's procedural rules are clear: generic Category 1

issues cannot be litigated in individual licensing adjudications

without a waiver. 10 C.F.R. § 2.335; see also Dominion Nuclear

Conn., Inc. (Millstone Nuclear Power Station), 54 N.R.C. 349, 364

(2001); Turkey Point, 54 N.R.C. at 12; Duke Energy Corp. (Oconee

Nuclear Station), 49 N.R.C. 328, 343 (1999). If the Commonwealth

or any citizen wishes to attack the agency's rule on such an issue,

it must petition for a generic rulemaking. Turkey Point, 54 N.R.C.

at 12.

NEPA does impose a requirement that the NRC consider any

new and significant information regarding environmental impacts

before renewing a nuclear power plant's operating license.

However, "NEPA does not require agencies to adopt any particular

internal decisionmaking structure." Balt. Gas & Elec. Co., 462

U.S. at 100. Here, the NRC procedures anticipate a situation, such

as that alleged here by the Commonwealth, in which a generic

finding adopted by agency rule may have become obsolete. In such

a situation, the regulations provide channels through which the

agency's expert staff may receive new and significant information,

namely from a license renewal applicant's environmental report or

from public comments on a draft SEIS, and the NRC staff may seek

modification of a generic Category 1 finding.

The Commonwealth has already chosen the available option

of a rulemaking petition. But the rulemaking petition may not move

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quickly enough to address the Commonwealth's safety concerns before

the Commission renders re-licensing decisions regarding the Pilgrim

and Vermont Yankee plants.

The Commonwealth argues that the NRC acted arbitrarily

and capriciously when it channeled the Commonwealth's pool fire

concerns into a generic rulemaking without any assurances that the

result of the rulemaking would apply to the individual licensing

proceedings for the Pilgrim and Vermont Yankee plants. Central to

the Commonwealth's argument is its assumption that "[u]nder the

NRC's present process, the Commonwealth does not even have a right

to request the agency to exercise its discretion to stay the

individual proceedings so that the results of the rulemaking may be

applied to Pilgrim and Vermont Yankee." Pet'r Br. 35.

The Commonwealth's concern is apparently based on a

misreading of the NRC's position. Both in its decisions in the

administrative proceedings and before this court, the NRC has

outlined at least one path by which the Commonwealth may establish

a connection between the rulemaking and the licensing proceedings.

That path consists of two stages. First, the Commonwealth may

participate in the licensing proceedings not as a party with its

own contentions, but as an interested governmental body under 10

C.F.R. § 2.315(c).6 Second, in the rulemaking proceedings, the

6
That regulation states that the officer presiding over a
licensing proceeding

-26-
Commonwealth may invoke 10 C.F.R. § 2.802(d), which provides that

a rulemaking petitioner "may request the Commission to suspend all

or any part of any licensing proceeding to which the petitioner is

a party pending disposition of the petition for rulemaking." This

stay procedure would, the agency argues, allow the Commonwealth an

opportunity to influence the order and timing of the agency's final

decisions in the rulemaking and licensing proceedings. But, since

the Commonwealth has as yet done neither of those things, there is

no final order and those issues are premature.

will afford an interested State, local
governmental body . . . and affected,
Federally-recognized Indian Tribe, which has
not been admitted as a party under [10 C.F.R.]
§ 2.309, a reasonable opportunity to
participate in a hearing. Each State [and]
local governmental body . . . shall, in its
request to participate in a hearing, each
designate a single representative for the
hearing. The representative shall be
permitted to introduce evidence, interrogate
witnesses where cross-examination by the
parties is permitted, advise the Commission
without requiring the representative to take a
position with respect to the issue, file
proposed findings in those proceedings where
findings are permitted, and petition for
review by the Commission under § 2.341 with
respect to the admitted contentions. The
representative shall identify those
contentions on which it will participate in
advance of any hearing held.

10 C.F.R. § 2.315(c). The regulation echoes a provision of the AEA
that requires the NRC to "afford reasonable opportunity" for state
representatives to participate in licensing proceedings. 42 U.S.C.
§ 2021(l).

-27-
 The Commonwealth asserts the agency is changing positions

before this court regarding the availability of the § 2.802(d)

mechanism. Again, we think this is based on a misunderstanding.

The Commonwealth quotes a passage from the NRC's denial of the

motion for reconsideration: "[U]nder NRC regulations, the

[Commonwealth] currently has no right to request that the final

decisions in the Pilgrim and Vermont Yankee license renewal

proceedings be stayed until the rulemaking is resolved." Pet'r Br.

36 (quoting Vt. Yankee III, 65 N.R.C. at 214) (internal quotation

marks omitted). The Commission's decision goes on to explain,

however, that the Commonwealth could not "currently" request a stay

under § 2.802(d) because at the time of the NRC's decision, the

Commonwealth had neither been admitted as a "party" to the

licensing proceedings nor asserted interested governmental entity

status under § 2.315.7 Vt. Yankee III, 65 N.R.C. at 214-15. The

Commission further represented that the Commonwealth could attain

7
Agency procedure precludes a state from participating in
a single proceeding as both a party with an admitted contention and
an interested governmental entity. 10 C.F.R. § 2.315(c); La.
Energy Servs., L.P. (Nat'l Enrichment Facility), 60 N.R.C. 619,
626-27 (2004). The Commonwealth could thus not participate under
§ 2.315(c) until the NRC disposed of the Commonwealth's hearing
requests. Because the NRC has refused the Commonwealth party
status in a decision that is "final" as to those hearing requests,
and we deny the Commonwealth's petition, the path has been cleared
for the Commonwealth to seek interested governmental entity status,
if it so chooses. See Vt. Yankee III, 65 N.R.C. at 214-15 & n.16.

-28-
interested governmental entity status "even now." Id. at 215

n.16.8

The Commonwealth seizes upon a textual mismatch in the

regulations to argue that an "interested State" participating in a

licensing proceeding under § 2.315(c) is distinct from a "party,"

and therefore could not invoke the § 2.802(d) procedure. Compare

10 C.F.R. § 2.315(c) (making participant status available to a

governmental body "which has not been admitted as a party") with

id. § 2.802(d) (allowing petitioner in pending rulemaking to

request suspension of a licensing proceeding "to which the

petitioner is a party").

While we recognize what may be tension between the

wording of these two regulations, we decline to adopt the

Commonwealth's preclusive reading of the term "party" in the face

of a contrary and reasonable reading by the agency. Dispositive

here is the agency's own reasonable reading of the term, which

treats an interested governmental entity as the equivalent of a

"party" for purposes of § 2.802(d). "Party" can both be defined in

one context as a term of art, e.g., as one who has demonstrated

standing and whose contention has been admitted for hearing in a

8
The NRC has represented to this court that even though
the Pilgrim and Vermont Yankee proceedings have continued since the
Commission's decision dated March 15, 2007, the Commonwealth may
still attain interested governmental entity status and avail itself
of the § 2.802(d) stay procedure. We consider the NRC to be bound
by this representation.

-29-
licensing adjudication, see 10 C.F.R. § 2.309(a), and deployed in

its more general sense of one who participates in a proceeding or

transaction, see Webster's Third New International Dictionary 1648

(1993) (defining "party" to include one who "takes part with others

in an action or affair" or an individual "involved in the case at

hand"). The NRC has not defined the term "party" uniformly

throughout its regulations. See, e.g., 10 C.F.R. § 2.4 (containing

regulatory "Definitions," but not including one for "party"). We

must pay deference to this agency's interpretation of its own

regulations. Auer, 519 U.S. at 461.

The Commonwealth charges that the NRC has adopted this

interpretation for the first time before this court "[i]n an effort

to avoid judicial review." Pet'r Supplemental Reply Br. 5. This

is not a mere litigation position. The Commission explicitly

stated in its January 22, 2007 affirmance of the ASLB rulings that

an interested governmental entity participating under § 2.315(c)

could request a suspension under § 2.802(d). Vt. Yankee II, 65

N.R.C. at 22 n.37. We thus take the NRC's proffered reading of how

§ 2.315(c) and § 2.802(d) interact to be consistent with the

agency's practice generally, as well as its litigation position in

this court.

In sum, the NRC acted reasonably when it invoked a well-

established agency rule to reject the Commonwealth's requests to

participate as a party in individual re-licensing proceedings to

-30-
raise generic safety concerns and required that the Commonwealth

present its concerns in a rulemaking petition. The agency is also

within the bounds of its authority to interpret its regulations to

afford the Commonwealth an opportunity to participate in the

Pilgrim and Vermont Yankee licensing proceedings under § 2.315(c)

and thereby qualify to request a suspension of those proceedings

under § 2.802(d). We note, however, that these conclusions rely on

our deference to the agency's interpretations of its own

regulations. By staking its position regarding procedural avenues

available to the Commonwealth in this case, both in its

administrative decisions and in its representations before this

court, the agency has, in our view, bound itself to honor those

interpretations. See New Hampshire v. Maine, 532 U.S. 742, 749-51

(2001). Further, if the agency were to act contrary to these

representations in this matter, a reviewing court would most likely

consider such actions to be arbitrary and capricious.

Timing is a factor in this case. Section 2.315(c)

affords interested states an opportunity to participate in

licensing hearings, but the agency has not stayed the Pilgrim and

Vermont Yankee proceedings pending the outcome of this court's

decision, and the hearing schedule in at least the Pilgrim

proceedings may be coming rapidly to a close. We therefore stay

the close of hearings in both plant license renewal proceedings for

-31-
fourteen days from the date of issuance of mandate in this case9 in

order to afford the Commonwealth an opportunity to request

participant status under 10 C.F.R. § 2.315(c), should it desire to

do so.

What remains is the Commonwealth's objection that

accepting the NRC's recommended procedural vehicle subjects the

Commonwealth's rights under NEPA to "the NRC's unfettered

discretion to grant or withhold" a stay of the licensing

proceedings. Pet'r Br. 36. Again, although NEPA does impose an

obligation on the NRC to consider environmental impacts of the

Pilgrim and Vermont Yankee license renewal before issuing a final

decision, the statute does not mandate how the agency must fulfill

that obligation. See 42 U.S.C. § 4332; Balt. Gas & Elec. Co., 462

U.S. at 100-01; Vt. Yankee, 435 U.S. at 548. Beyond "the statutory

minima" imposed by NEPA, Vt. Yankee, 435 U.S. at 548, the

implementing procedures are committed to the agency's judgment. In

theory, what fetters the agency's decision-making process and

ensures ultimate compliance with NEPA is judicial review. The NRC

does not take the position that the Commonwealth is not entitled to

judicial review in the future. We turn next to the question of

9
Action by this court was held in abeyance from December
6, 2007 to February 14, 2008 in order to afford the parties an
opportunity to settle. A settlement was not reached, but the
Commonwealth's opportunity to avail itself of the NRC's procedural
mechanisms to participate in the Pilgrim and Vermont Yankee
proceedings should not be prejudiced by the delay in securing a
decision from this court.

-32-
whether a meaningful opportunity to seek judicial review would be

available to the Commonwealth should it pursue the procedural

course advanced by the agency.

B. Availability of Judicial Review

The NRC and Entergy point out two routes by which the

Commonwealth can obtain judicial review of the agency's ultimate

treatment of its concerns involving spent fuel pool fires. The

first is direct review of the results of the now-pending rulemaking

petition; the second is review of a hypothetical Commission denial

of a § 2.802(d) stay request, should the Commonwealth pursue that

route.10

The question of the availability of judicial review upon

the occurrence of contingent hypothetical events is not before us

and we do not give advisory opinions. It suffices to say that the

Commonwealth's argument is not proven that this proceeding must not

be dismissed because it is the Commonwealth's one and only path for

review of the agency's ultimate resolution of the Commonwealth's

pool fire concerns. We doubt the Commonwealth will wish to push

10
The NRC also suggests that in the event that the agency
issues the Pilgrim and/or Vermont Yankee renewal licenses before
concluding the pending rulemaking, the Commonwealth could petition
this court for a writ of mandamus under 28 U.S.C. § 1651 to compel
a final decision from the agency. Because more conventional
avenues to judicial review exist, we do not consider here whether
and under what circumstances this "extraordinary remedy" would be
available to the Commonwealth. Telecomms. Research & Action Ctr.
v. FCC, 750 F.2d 70, 78 (1984); accord In re City of Fall River,
470 F.3d 30, 32 (1st Cir. 2006).

-33-
this argument in the future, and we see no reason why it cannot

change its position. We do offer a few comments to explain our

conclusion.

The Hobbs Act provides the jurisdictional basis for

federal court review of NRC actions. See 28 U.S.C. §§ 2342(4),

2344. Section 2344 provides that "[a]ny party aggrieved by the

final order may, within 60 days after its entry, file a petition to

review the order in the court of appeals wherein venue lies." Id.

§ 2344. The statute embodies two threshold requirements for a

court to assert jurisdiction to review an NRC action. A petitioner

must first qualify as a "party aggrieved" under the statute in

order to have standing to appeal. Clark & Reid Co. v. United

States, 804 F.2d 3, 5 (1st Cir. 1986). There must also be a "final

order" for the court to review. 28 U.S.C. §§ 2342(2), 2344; see

generally Bennett v. Spear, 520 U.S. 154, 177-78 (1997);

Massachusetts, 878 F.2d at 1519-20.

This court applies a functional test to determine whether

one is a "party aggrieved" for Hobbs Act purposes. That test asks

whether the would-be petitioner "directly and actually participated

in the administrative proceedings." Clark & Reid Co., 804 F.2d at

5. Because "we do not equate the regulatory definition of a

'party' in an [agency] proceeding with the participatory party

status required for judicial review," id. at 6, it matters not here

-34-
whether NRC regulations label the Commonwealth as a "party" or an

"interested governmental entity."

C. Commonwealth's NEPA and APA Claims

The Commonwealth makes a claim for immediate injunctive

relief from claimed statutory violations by the NRC.11 The NRC and

Entergy are correct that the Commonwealth's claims that the agency

violated the NEPA and the APA by failing to consider the pool fire

contention, regardless of the path followed, is not reviewable at

this time.

The Commonwealth's claim that the agency committed

statutory violations by rejecting its hearing request fails because

it does not meet the basic prerequisite that a petitioner for

judicial review of an agency action first exhaust administrative

remedies. P.R. Assoc. of Physical Med. & Rehab., Inc. v. United

States, ___ F.3d ___, 2008 WL 787972, at *2 (1st Cir. Mar. 26,

2008) (citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41,

11
Specifically, the Commonwealth requests that this court
direct the agency to

withhold any final decision in the individual
license renewal proceedings for Pilgrim and
Vermont Yankee unless and until the Commission
considers and rules upon the Commonwealth's
new and significant information in accordance
with NEPA and the AEA and any further rulings
by the Court, and the Commission applies those
considerations and rulings to the individual
Pilgrim and Vermont Yankee relicensing
proceedings.

Pet'r Br. 43.

-35-
50-51 (1938)); see also 33 Wright & Koch, Federal Practice &

Procedure: Judicial Review § 8398, at 397 (2006). The

administrative exhaustion requirement gives agencies "a fair and

full opportunity" to adjudicate claims presented to them by

requiring that litigants use "all steps that the agency holds out,

and do[] so properly (so that the agency addresses the issues on

the merits)." Woodford v. Ngo, 126 S. Ct. 2378, 2385 (2006)

(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002))

(internal quotation mark omitted). Otherwise, court review might

interrupt the administrative process, impinge on the discretionary

authority granted to the agency by the legislature, and squander

judicial resources where continued administrative proceedings might

resolve the dispute in the petitioner's favor. McKart v. United

States, 395 U.S. 185, 193-95 (1969). Those concerns are involved

here.

The Commonwealth argues that when the NRC dismissed it

from the license renewal proceedings without addressing the NEPA

claims, the NRC "conclusively established the Commonwealth's rights

and . . . eliminate[d] the Commonwealth's right to challenge the

agency's compliance with NEPA . . . ." Pet'r Reply Br. 6. The

availability of interested state status under § 2.315(c) and the

request for suspension mechanism in § 2.802(d) undermine that

position. There has not yet been such a conclusive order. We

cannot at this point in the administrative proceedings predict how

-36-
the agency would respond on the merits to a § 2.802(d) request from

the Commonwealth, let alone evaluate the agency's ultimate

compliance with NEPA should the Commonwealth follow that procedure.

The Commonwealth argues separately that the NRC violated

NEPA and acted arbitrarily and capriciously when it refused to

ensure that the results of the rulemaking would apply to the

Pilgrim and Vermont Yankee licensing proceedings. This argument

merely repackages the Commonwealth's claims regarding its dismissal

from the licensing proceedings and recasts them in the context of

its rulemaking petition. We cannot review the NRC's treatment of

that petition, however, because the agency has not issued a final

order regarding the rulemaking petition.

The NRC decision which the Commonwealth attempts to

construe as a "final" refusal to tie the results of the rulemaking

back into the individual proceedings was no such thing; it was a

"final order" only insofar as it affirmed the agency's dismissal of

the Commonwealth's hearing requests in the re-licensing

proceedings. See Vt. Yankee III, 65 N.R.C. at 214. Further, by

their express language, the Commission's decisions did not purport

to rule out a possible future order suspending the Pilgrim and

Vermont Yankee proceedings. The Commission merely observed that it

would be "premature to consider" such action at a time when there

were other, unrelated issues involved in the licensing proceedings

that would require significant time to resolve. Vt. Yankee II, 65

-37-
N.R.C. at 22 n.37. The NRC's statements about the rulemaking

within its decisions to dismiss the Commonwealth's hearing requests

are "merely tentative" and do not determine any legal rights or

consequences. See Bennett, 520 U.S. at 177-78.

The petitions for review are denied. No costs are

awarded.

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