Natural Resources Defense Council v. U.S. Nuclear Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2015 Decided April 26, 2016

No. 14-1225

NATURAL RESOURCES DEFENSE COUNCIL,
PETITIONER

v.

U.S. NUCLEAR REGULATORY COMMISSION AND UNITED STATES
OF AMERICA,
RESPONDENTS

EXELON GENERATION COMPANY, LLC,
INTERVENOR

On Petition for Review of An Order of the
United States Nuclear Regulatory Commission

Howard M. Crystal argued the cause for petitioner. With
him on the briefs were Eric R. Glitzenstein and Geoffrey H.
Fettus.

James E. Adler, Senior Attorney, U.S. Nuclear Regulatory
Commission, argued the cause for respondents. With him on
the brief were John C. Cruden, Assistant Attorney General,
U.S. Department of Justice, John E. Arbab, Attorney, and
Andrew P. Averbach, Solicitor, U.S. Nuclear Regulatory
Commission.
 2

Brad Fagg argued the cause and filed the brief for
intervenor Exelon Generation Company, LLC,

Before: ROGERS, BROWN and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: National Resources Defense
Council (NRDC) challenges the Nuclear Regulatory
Commission’s (NRC’s) denial of NRDC’s request for a hearing
and subsequent application for a waiver, asserting this process
was inconsistent with the procedural rigor mandated by the
National Environmental Policy Act (NEPA). The denial
thwarted NRDC’s attempt to intervene in the license renewal
proceeding for Exelon’s Limerick nuclear power station in
Pennsylvania. NRDC sought to present “new and significant”
information regarding severe accident mitigation alternatives
(SAMAs) relevant to Limerick. We find the Commission
reasonably concluded NRDC’s request to intervene was a
challenge to a general rule—10 C.F.R. §51.53(c)(3)(ii)(L)
(Rule (L))—improperly raised in an individual adjudication;
and, contrary to NRDC’s view, while NEPA requires agencies
to take a hard look before approving a major federal action, it
does not mandate adoption of a particular process for doing so.
Having failed to show its contentions were unique to Limerick,
NRDC also was not entitled to a waiver. We conclude the
Commission’s actions were not arbitrary and capricious and
deny the petition.

I.

The Atomic Energy Act (AEA) empowers the Commission
to issue and renew nuclear power plant licenses. See 42 U.S.C.
 3
§ 2133. The Act limits initial licenses to a forty-year term but
otherwise grants the Commission wide authority to regulate the
license issuance and renewal process. See id. at § 2133(c). In
10 C.F.R. Part 54, the Commission laid out the general
framework for renewal. The Commission also promulgated 10
C.F.R. Part 51 to deal with its obligations under NEPA. NEPA
requires preparation of an Environmental Impact Statement
(EIS) before undertaking any “major Federal action[]
significantly affecting the quality of the human environment.”
42 U.S.C. § 4332(2)(C); see also New York v. NRC, 681 F.3d
471, 476 (D.C. Cir. 2012). This requirement ensures each
agency “consider[s] every significant aspect of the
environmental impact of a proposed action” and “inform[s] the
public that it has indeed considered environmental concerns in
its decisionmaking process.” Balt. Gas & Elec. Co. v. NRDC,
462 U.S. 87, 97 (1983). The issuance or renewal of a nuclear
power plant license qualifies as a “major federal action”
triggering the Commission’s obligations under NEPA. See
New York, 681 F.3d at 476.

The AEA also provides that “the Commission shall grant a
hearing upon the request of any person whose interest may be
affected by the proceeding.” 42 U.S.C. § 2239(a)(1)(A). In 10
C.F.R. § 2.309, the Commission laid out the specific
procedures an intervening party must follow. The interested
party must file a written request listing the specific contentions
the party seeks to litigate. See id. at § 2.309(a), (f)(1). If a
party’s contentions do not meet the Commission’s specificity or
relevancy requirements, the agency may deny the hearing
request. See id. Finally, the AEA subjects all final
Commission orders to judicial review. 42 U.S.C. § 2239(b).
“Any party aggrieved” by a final order of the Commission may
“file a petition to review the order in the court of appeals.” 28
U.S.C. § 2344. This court has “routinely interpreted [the
phrase ‘any party aggrieved’] to allow petitions by parties who
 4
were intervenors before the Commission.” State of Alaska v.
FERC, 980 F.2d 761, 763 (D.C. Cir. 1992). To challenge the
Commission’s grant of a license renewal, then, a party must
have successfully intervened in the proceeding by submitting
adequate contentions under 10 C.F.R. § 2.309.

II.

NRDC here sought to intervene in the relicensing of
Exelon’s Limerick power station. To understand how this
relicensing process works, a brief history of the power plant at
issue is helpful. The Limerick Generating Station is a dual-unit
nuclear power plant with two boiling water reactors located in
Limerick Township, Pennsylvania, approximately 35 miles
outside of Philadelphia. The Commission first licensed
Limerick in 1984 after conducting ninety-five days of hearings
and “generating a 20,000-page transcript.” Limerick Ecology
Action, Inc. v. NRC, 869 F.2d 719, 728 (3d Cir. 1989). Various
environmental petitioners challenged NRC’s grant of a full
power license to Limerick, alleging the Commission failed to
adequately consider several environmentally relevant factors in
violation of NEPA. Specifically, petitioners contended the
Commission improperly declined to consider severe accident
mitigation design alternatives (SAMDAs) 1 on the basis of the
Agency’s policy statement that read: “[NRC will] exclude
consideration of design alternatives as a matter of Commission
policy while research into design alternatives [is] ongoing.” Id.
at 734. SAMDAs are defined as “possible plant design
modifications that are intended not to prevent an accident, but
to lessen the severity of the impact of an accident should one
occur.” Id. at 731.

1
The terms “severe accident mitigation alternatives” (SAMAs) and
“severe accident mitigation design alternatives” (SAMDAs) have the
same meaning and are used interchangeably throughout this opinion.
 5

The Third Circuit held NRC’s policy statement—unlike a
notice-and-comment rulemaking—was not entitled to
deference. See id. at 729–31. Moreover, the court rejected
NRC’s Final Environmental Impact Statement (FEIS) for
Limerick as inadequate under NEPA because it did not include
“the requisite careful consideration of the environmental
consequences [of SAMDAs].” Id. at 723. But the court did not
foreclose the possibility that SAMDAs could be dealt with
“generically” through a subsequent rulemaking. 2 See id.
(“Although NEPA requires the Commission to undertake
‘careful consideration’ of environmental consequences, . . . it
may issue a rulemaking to address and evaluate environmental
impacts that are ‘generic,’ i.e. not plant-specific.” (citation
omitted)).

Prompted by Limerick Ecology, NRC staff conducted a
site-specific severe accident mitigation analysis at Limerick
and issued a supplemental environmental impact statement
(SEIS) summarizing its findings. See U.S. Nuclear Regulatory
Comm’n, Office of Nuclear Reactor Regulation, Final
Environmental Statement Related to the Operation of Limerick
Generating Station, Units 1 and 2, NUREG-0974 Supplement
(Aug. 1989). NRC staff concluded “the risks and
environmental impacts of severe accidents at Limerick are

2
The Third Circuit did conclude SAMDAs were “unlikely” to
qualify for generic treatment based on the record presented. Id. at
739. But, as discussed infra, NRC ultimately treated SAMDAs as
“quasi-generic” (conducting a single site-specific SAMDA analysis
for each plant when initially licensed but requiring no new analysis
when re-licensed) and, regardless, the Third Circuit’s dicta did not
eliminate the Commission’s ability to treat this issue generically if
resolved through notice-and-comment rulemaking on a more
extensive record.
 6
acceptably low” and that “no new information” called into
question the FEIS’s original severe accident findings. Id. at vi.

A. The 1996 Rulemaking

The Commission subsequently accepted the Third Circuit’s
invitation to streamline its evaluation of environmental issues
during license renewal by resolving many issues generically.
See Environmental Review for Renewal of Nuclear Power Plant
Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996). The
Commission identified 92 issues material to environmental
review of nuclear power plants; of these, it assessed that 68
issues could be adequately addressed generically, whereas 24
“were found to require additional assessment for at least some
plants at the time of the license renewal review.” Id. at 28,468;
see also 10 C.F.R. pt. 51 appx. B. The former were classified
as “Category 1” issues and the latter as “Category 2.” See 10
C.F.R. pt. 51 appx. B. The rulemaking also addressed two
related concerns: that interested parties would be denied the
opportunity to participate in the license renewal process with
respect to “generically” resolved issues and that a generic EIS
could not satisfy NEPA’s “hard look” requirement because it
would necessarily rely on findings from 20 years prior. See 61
Fed. Reg. at 28,470. NRC responded to these concerns by (i)
committing to prepare a supplemental site-specific EIS (rather
than simply an environmental assessment) for each renewal
which would consider comments introducing “new and
significant” information regardless of whether the comments
were directed to Category 1 or 2 issues; (ii) leaving cost-benefit
conclusions and conclusions “relative to the overall
environmental impacts including cumulative impacts” entirely
to the site-specific supplemental EIS; and (iii) formally
reviewing the rule and the generic EIS (GEIS) every 10 years
to determine “what, if anything, in the rule requires revision.”
Id. at 28,470-71.
 7

The Commission formally classified SAMAs as a Category
2 issue, although it included an exception for plants that had
previously performed a SAMA analysis. See 10 C.F.R. pt. 51
appx. B. (“[A]lternatives to mitigate severe accidents must be
considered for all plants that have not considered such
alternatives.”). The Commission explained its categorization of
SAMAs at length. The GEIS analyzes SAMAs for “each site”
using “site-specific estimates for parameters such as population
distribution and meteorological conditions.” 61 Fed. Reg. at
28,480. The information incorporated into the GEIS is
therefore based on an evaluation of each particular plant. See
id. (“[T]he analyses performed for the GEIS represent
adequate, plant-specific estimates of the impacts from severe
accidents that would generally over-predict, rather than under-
predict, environmental consequences.” (emphasis added)). But
NRC concluded that SAMAs could not yet be categorized as a
“Category 1” issue because not all plants had conducted a
SAMA analysis at the initial licensing stage:

The Commission has determined that a site-
specific consideration of alternatives to mitigate
severe accidents will be required at the time of
license renewal unless a previous consideration of
such alternatives regarding plant operation has
been included in a final environmental impact
statement or a related supplement. . . . Although
the Commission has considered containment
improvements for all plants . . . [and] has
additional ongoing regulatory programs whereby
licensees search for individual plant vulnerabilities
to severe accidents and consider cost-beneficial
improvements, these programs have not yet been
completed. Therefore, a conclusion that severe
 8
accident mitigation has been generically
considered for license renewal is premature.

Id. at 28,480–81. In its rulemaking, NRC also specifically
enumerated the plants, including Limerick, which had already
completed an adequate SAMA analysis at licensing and so
were not required to conduct further analysis at relicensing.
See id. at 28,481 (“NRC staff considerations of [SAMAs] have
already been completed and included in an EIS or supplemental
EIS for Limerick, Comanche Peak, and Watts Bar. Therefore,
[SAMAs] need not be reconsidered for these plants for license
renewal.”).

The Commission codified its treatment of SAMAs at 10
C.F.R. § 51.53(c)(3)(ii)(L) (Rule (L)), which states: “If the staff
has not previously considered severe accident mitigation
alternatives for the applicant’s plant in an environmental impact
statement or related supplement or in an environmental
assessment, a consideration of alternatives to mitigate severe
accidents must be provided.” Rule (L) thus constitutes a
generic determination, via rulemaking, that one SAMA per
plant is sufficient to “uncover most cost-beneficial measures to
mitigate both the risk and the effects of severe accidents, thus
satisfying [the Commission’s] obligations under NEPA.” In
the Matter of Exelon Generation Co., LLC (Limerick
Generating Station, Units 1 and 2), 2013 WL 5872241, at *5
(Oct. 31, 2013). For plants like Limerick where a SAMA
analysis was performed when the plant was initially licensed,
reliance on that earlier site-specific analysis is sufficient: The
Commission relies on both the site-specific SEIS and the GEIS
to conduct its severe accident analysis under NEPA. So
although SAMAs are a “mixed” general and site-specific issue,
the Commission has described Rule (L) as the functional
equivalent of a Category 1 designation for severe accident
impacts at plants such as Limerick.
 9

B. The Relicensing Process

The categorization of SAMAs directly impacts a licensee’s
obligations during relicensing. Under 10 C.F.R. § 51.53(c)(1) –
(2), every applicant for renewal of a power plant license must
submit an Environmental Report (ER), which describes “in
detail the affected environment around the plant, the
modifications directly affecting the environment . . . , and any
planned refurbishment activities.” The applicant need only
submit plant-specific information for Category 2 issues, id.
§ 51.53(c)(3)(ii), as the Category 1 GEIS findings can generally
be incorporated wholesale, id. § 51.53(c)(3)(i). Although Rule
(L) exempts an applicant from conducting another plant-
specific SAMA analysis if one has previously been completed,
that applicant is still required to report “any new and significant
information regarding the environmental impacts of license
renewal of which the applicant is aware,” including information
about SAMAs. 10 C.F.R. § 51.53(c)(3)(iv); see Massachusetts
v. United States, 522 F.3d 115, 120 (1st Cir. 2008) (“The NRC
concedes that this [requirement] applies even to ‘new and
significant information’ concerning Category 1 issues.”).

After an applicant has submitted its ER, the NRC staff
produces a draft supplemental EIS for license renewal. 10
C.F.R. § 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 NEPA requires be
addressed in an EIS for a nuclear power plant license renewal
proceeding.” Massachusetts, 522 F.3d at 120. The public then
has an opportunity to comment on the draft SEIS, and NRC
staff prepare a final SEIS only after reviewing the comments.
See 10 C.F.R. § 51.95(c)(3).
 10
For parties seeking to challenge the staff’s findings, the
process varies by issue category. Because Category 2 issues
are site-specific, they can be challenged directly during the
relicensing proceeding. The Commission has established a
different mechanism for challenging generic Category 1
findings during individual license renewal proceedings. If a
party submits comments on a Category 1 issue during the
public comment period, the NRC staff has three potential
avenues for response. If it deems the existing generic analysis
adequate, it can provide an explanation of that view (including,
if applicable, consideration of the significance of the new
information). See 61 Fed. Reg. at 28,470. However, if a
commenter provides new information that calls into question
the validity of a generic Category 1 finding, “the NRC staff will
seek Commission approval to either suspend the application of
the rule on a generic basis . . . or delay granting the renewal
application” until the GEIS is updated and the rule amended.
Id. If the commenter provides site-specific information
indicating the rule is incorrect with respect to that particular
plant, the NRC staff will petition the Commission to “waive the
application of the rule with respect to that analysis in that
specific renewal proceeding.” Id.

A party who remains dissatisfied by the Commission’s
response to its Category 1-related comment has two final
alternatives: that party can (i) petition for a waiver of the NRC
regulation (such as Rule L) with respect to that proceeding, see
10 C.F.R § 2.335(b); or (ii) petition the agency for a
rulemaking to amend the GEIS, see 61 Fed. Reg. at 28,470.
“This divergent treatment of generic and site-specific issues is
reasonable and consistent with the purpose of promoting
efficiency in handling license renewal decisions.”
Massachusetts, 522 F.3d at 120.
 11
III.

This litigation spans many years and many volumes. In
June 2011, Exelon Generation Company, LLC (Exelon) filed
an application to renew its initial 40-year operating licenses for
Limerick Generating Station, Units 1 and 2, for an additional
20 years. Because of Rule (L)’s carve-out for plants that
previously conducted a SAMA analysis, Exelon’s ER
supporting its license renewal application did not contain a new
SAMA analysis but merely noted such an analysis had been
completed for the initial operating licenses. See Exelon
Generation Co., Environmental Report—Operating License
Renewal Stage, Limerick Generation Station, Units 1 and 2, at
4-49 (June 2011). Although Exelon relied on Rule (L) to
conclude no updated site-specific analysis was legally required,
it still included a detailed consideration of whether “new and
significant” information had identified “a significant
environmental issue not covered in the GEIS” or an issue
excluded from the GEIS that could lead to “an impact finding
different from that codified in the regulation.” Id. at 5-2.
Exelon concluded that it had discovered no such new or
significant information. See id. at 5-4 to 5-9.

After NRC staff published a Notice of Opportunity for
Hearing on Exelon’s relicensing application, see 76 Fed. Reg.
52,992 (Aug. 24, 2011), NRDC submitted a petition to
intervene and a hearing request. Perhaps anticipating that its
SAMA-related contentions would be precluded by Rule (L),
NRDC framed its arguments in terms of NEPA, alleging that
NEPA requires an EIS to contain “high quality” information
and “accurate scientific analysis,” meaning an agency cannot
possibly comply with NEPA if it relies on “outdated,
inaccurate, or incomplete” environmental analyses. See
Natural Resource Defense Council Petition to Intervene and
Notice of Intention to Participate, Nos. 50-352-LR, 50-353-LR,
 12
at 48 (Nov. 22, 2011). In its petition, NRDC specifically
contended that Exelon’s ER “erroneously conclude[d] that new
information related to its SAMDA analysis [was] not
significant.” Id. at 16. The Atomic Safety and Licensing
Board (“Board”) admitted only this contention. In the Matter
of Exelon Generation Co., LLC (Limerick Generating Station,
Units 1 and 2), 75 N.R.C. 539, 570–71 (2012). In doing so, the
Board rejected Exelon’s argument that Rule (L) absolved it of
any responsibility to conduct an updated SAMA analysis. See
id. at 543.

Both NRC staff and Exelon appealed the Board’s
admission of NRDC’s contention as an impermissible
challenge to Rule (L) in the context of an individual
adjudication. Exelon acknowledged its obligation to evaluate
“new and significant” information related to SAMAs but
argued no party could challenge the adequacy of its evaluation
as it relates to the prior Limerick SAMA analysis, absent a
waiver. See Exelon’s Brief in Support of the Appeal of LBP-12-
08, Nos. 50-352-LR, 50-353-LR, at 7 (Apr. 16, 2012). The
Commission agreed and reversed the Board’s ruling,
concluding that NRDC’s contention, “reduced to its simplest
terms, amounts to a challenge to [Rule (L)].” See In the Matter
of Exelon Generation, Co., 76 N.R.C. 377, 386 (Oct. 23, 2012)
(“The assumption underlying [NRDC’s contention] is that
Exelon’s 1989 SAMDA analysis is out-of-date, which Exelon
then must remedy in its [ER], even though this is something
[Rule (L)] otherwise exempts Exelon from having to do.”).

However, because the Commission conceded it had not yet
faced this precise factual scenario, it found NRDC could
potentially challenge the adequacy of Exelon’s ER by seeking a
waiver of Rule (L). See id. The Commission therefore
remanded the case to the Board to afford NRDC an opportunity
to file a petition for waiver. Id. at 388. The Commission also
 13
noted NRDC could file a petition for rulemaking to rescind
Rule (L)’s exception. Id. at 387. NRDC declined to do so.

On remand, the Board concluded Rule (L) could not be
waived but referred the decision back to the Commission for
further review given the complex interplay between Rule (L)
and 10 C.F.R. §2.335(b). 3 The Commission ultimately
affirmed the Board’s decision to deny the waiver but did so on
different grounds. In doing so, it justified its stringent waiver
standard by explaining:

When we engage in rulemaking, we are “carving
out” issues from adjudication for generic resolution.
Therefore, to challenge the generic application of a
rule, a petitioner seeking waiver must show that
there is something extraordinary about the subject
matter of the proceeding such that the rule should
not apply.

Exelon Generation Co., LLC, 2013 WL 5872241, at *3. To
qualify for waiver, four factors must be met. See In the Matter
of Dominion Nuclear Connecticut, Inc. (Millstone), 62 N.R.C.
551, 559–60 (2005). The Commission found NRDC failed to
meet its burden since it could not demonstrate that its challenge
rested on “issues that [were] legitimately unique to the
proceeding” rather than issues of “broader concern[] about the
rule’s general viability or appropriateness.” Exelon Generation
Co., at *4. Because NRDC was not relying on information that
set “Limerick apart from other plants undergoing license
renewal whose previous SAMA analyses purportedly also
3
Under section 2.335(b), “[t]he sole ground for petition of waiver . . .
is that special circumstances with respect to the subject matter of the
particular proceeding are such that the application of the rule or
regulation (or a provision of it) would not serve the purposes for
which the rule or regulation was adopted.” Id.
 14
would be in need of updating,” the Commission denied the
waiver. Id. at *8. Nevertheless, the Commission directed the
Staff to review the significance of any new SAMA-related
information raised by NRDC. Id. at *9.

IV.

The Administrative Procedure Act governs our review of
an agency’s rule or licensing decision. See 5 U.S.C. § 500 et
seq. This court is authorized to set aside the Commission’s
relicensing decision only if it was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
Id. § 706(2)(A). Our general posture of deference toward
agency decision-making is particularly marked with regards to
NRC actions because “the [AEA] is hallmarked by the amount
of discretion granted the Commission in working to achieve the
statute’s ends.” Massachusetts v. NRC, 878 F.2d 1516, 1523
(1st Cir. 1989) (quoting Pub. Serv. Co. of N.H. v. NRC, 582
F.2d 77, 82 (1st Cir. 1978) (alterations omitted)).

Moreover, to the extent NRC’s technical judgment is
before the court, we “must generally be at [our] most
deferential.” Balt. Gas & Elec. Co., 462 U.S. at 103. In the
NEPA context “determining what constitutes significant new
information” is “a factual question requiring technical
expertise,” and so the agency’s determination is “owe[d]
considerable deference.” Town of Winthrop v. FAA, 535 F.3d
1, 8 (1st Cir. 2008). Still, we must ensure NRC “examine[d]
the relevant data and articulate[d] a satisfactory explanation for
its action including a rational connection between the facts
found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

Finally, we evaluate the Commission’s interpretation of the
AEA’s hearing requirement under the familiar two-step
 15
Chevron analysis. This court is “obliged to defer to the
operating procedures employed by an agency when the
governing statute requires only that a ‘hearing’ be held,” as
does the AEA. Union of Concerned Scientists v. NRC, 920
F.2d 50, 54 (D.C. Cir. 1990). And the Commission’s
interpretation of its own regulations is given “controlling
weight” unless that interpretation is “plainly erroneous or
inconsistent with the regulation.” City of Idaho Falls v. FERC,
629 F.3d 222, 228 (D.C. Cir. 2011).

V.

Before delving into the law, it is helpful to lay out in plain
terms what is at stake in this case from both parties’
perspectives. For NRDC, the existence of Rule (L) ostensibly
creates a “regulatory blackhole” that prevents the organization
from intervening in the relicensing adjudication to challenge
the adequacy of Limerick’s 1989 SAMA analysis in light of
advancements in technology. Because NRDC is barred from
intervening, the organization is not entitled to an evidentiary
hearing on its claims. See 10 C.F.R. § 2.310. Moreover, even
though the Commission directed NRC staff to consider
NRDC’s “new and significant” information, that consideration
is shielded from substantive judicial review because NRDC
was prevented from intervening in the adjudication. See State
of Alaska, 980 F.2d at 763.

NRDC alleges both alternative routes to a challenge—
seeking a waiver or submitting a petition for rulemaking—are
merely illusory. As the Commission conceded at oral
argument, it has rarely, if ever, granted a petition for waiver.
And rulemaking is a lengthy process, often taking years. A
party that has submitted a rulemaking petition can seek to
suspend the relicensing process while its petition is considered.
However, it is unclear under Commission regulations whether
 16
NRDC would qualify to request suspension: a petitioner may
request suspension of “any licensing proceeding to which the
petitioner is a participant.” 10 C.F.R. § 2.802(e) (emphasis
added). “Participant” is defined by the Commission as “an
individual or organization . . . that has petitioned to intervene in
a proceeding or requested a hearing but has not yet been
granted party status by the [Board].” Id. § 2.4. Even if NRDC
qualifies under this definition—having been definitively denied
intervenor status—it would still have to satisfy the
Commission’s three-pronged test for suspension of licensing
proceeding. See In the Matter of Private Fuel Storage, LLC, 54
N.R.C. 376 (2001).

At first glance, NRDC’s predicament is worrisome given
the decades that elapse between licensing and relicensing and
the advances in mitigation technology that inevitably occur in
the interim. Concern is especially understandable in light of
the Fukushima tragedy. In March 2011, the world watched in
horror as, following a Magnitude 9 earthquake off the coast of
Japan, the tsunami it generated crashed ashore—killing
thousands, flooding cities, destroying homes, schools and
factories, and overwhelming the ten meter seawalls protecting
Fukushima’s Dai-Ichi Nuclear Power Plant. All six of the
boiling water reactors at the plant were damaged, and three
experienced meltdowns. The profound human cost of this
event is a powerful reminder that these issues demand our most
careful attention.

After closer inspection, however, we are persuaded that the
issue is less problematic than it first appears. SAMAs represent
only a minor portion of the Commission’s overall regulatory
regime—separate and apart from its safety requirements. A
SAMA is simply “a cost-benefit analysis that addresses
whether the expense of implementing a mitigation measure not
mandated by the NRC is outweighed by the expected reduction
 17
in environmental cost it would provide in a core damage
event.” Massachusetts v. NRC, 708 F.3d 63, 68 (1st Cir. 2013).
Potential benefits include “averted costs such as public
exposure, offsite property damage, occupational exposure
costs, cleanup and decontamination costs, and replacement
power costs.” Id. at 68 n.5. Put simply, SAMAs are not meant
to prevent an accident but rather to mitigate the severity should
one occur. The Commission relies on a myriad of other safety
mechanisms to prevent accidents. For example, plants are
required to maintain “up-to-date” emergency plans that are
evaluated on a site-specific basis during license renewal. See
61 Fed. Reg. at 28,480. The Commission also uses ongoing
programs to evaluate mitigation alternatives including the
Containment Performance Improvement program, the
Individual Plant Examination program, and the Individual Plant
Examination for External Events programs. See id. at 28,481.
These site-specific programs have considered a range of
potential mitigation measures, resulting in the adoption of
several “plant procedural or programmatic improvements”
apart from the relicensing process. Id. As plants like Limerick
implement these changes, the relative benefits of adopting
additional mitigation alternatives diminish. 4

The Commission—and the plants themselves—are thus
constantly evaluating new mitigation alternatives through
channels other than the relicensing process. Exelon has in fact
implemented several additional mitigation measures at

4
The ongoing nature of many mitigation measures reinforces this
dynamic. One SAMA adopted by Exelon, for example, was the
creation of an accident management program to develop “procedures
that promote the most effective use of available plant equipment and
staff in the event of an accident.” Limerick Environmental Report, at
5-5. This management program continues to exist and so,
presumably, continues to develop relevant procedures to mitigate
damage in the event of an accident.
 18
Limerick since its 1989 SAMA analysis. See Limerick 2014
Supplemental EIS, supra, at 5-4 to 5-9. The Commission has
also evaluated the safety of all plants in light of events at
Fukushima; immediately after the earthquake, the Commission
convened a task force to consider its ramifications. The Task
Force issued its preliminary findings only four months after the
accident. See U.S. Nuclear Regulatory Comm’n,
Recommendations for Enhancing Reactor Safety in the 21st
Century: The Near-Term Task Force Review of Insights from
the Fukushima Dai-ichi Accident (July 12, 2011). It concluded
“a sequence of events like the Fukushima accident is unlikely
to occur in the United States and some appropriate mitigation
measures have been implemented, reducing the likelihood of
core damage and radiological releases.” Id. at vii. Notably,
SAMA analyses had long assumed that a sequence of events
similar to Fukushima “could yield devastating consequences”
and so had accounted for such circumstances. See Limerick
2014 Supplemental EIS, supra, at 5–8. The Task Force’s report
thus confirmed the Commission’s “twin expectations” that
“future SAMA analyses would not likely find major plant
improvements cost-beneficial” and that risk reduction could be
adequately accomplished through “ongoing safety oversight.”
Id.

But the relicensing process also includes means for NRC
to consider “new and significant” information related to
Category 1 issues—even if it does not guarantee a hearing. As
discussed previously, if a party raises relevant “new and
significant” information regarding a generic finding, NRC staff
have the option to suspend the rule and relicensing until the
GEIS is updated or to waive application of the rule to that
particular plant. See 61 Fed. Reg. at 28,470. And in this case,
NRC staff actually considered and explained its treatment of
NRDC’s “new and significant” information. See Limerick
2014 Supplemental EIS, supra, at 5-25 to 5-26.
 19

From the Commission’s perspective, then, it is both
effective and efficient to resolve certain issues through generic
findings. The relicensing process is already lengthy, as NRC
staff must evaluate all relevant information, respond to public
comment, and hold evidentiary hearings on challenges to site-
specific issues. If any party could also challenge every
generically resolved issue, the number of hearings would
increase dramatically—even though those hearings would be
unlikely to identify measures not already considered by the
Commission. The agency has therefore wisely chosen to focus
its limited resources in other more availing areas, while still
building in several safety valves to ensure that truly significant
new information is not overlooked.

Having explained the regulatory framework—and defined
the issues at stake—we now turn to the legal questions.

A.

This case’s complicated procedural background obscures
the relatively straightforward legal issue at play. The key
question is whether NRDC is seeking a hearing on an issue
generically resolved through rulemaking via an individual
adjudication. Commission regulations preclude such collateral
attacks, absent a waiver. See 10 C.F.R. § 2.335(a) (“[N]o rule
or regulation of the Commission, or any provision thereof,
concerning the licensing of . . . facilities . . . is subject to attack
by way of discovery, proof, argument, or other means in any
adjudicatory proceeding subject to this part.”). Moreover, “it is
‘hornbook administrative law that an agency need not—indeed
should not—entertain a challenge to a regulation’ in an
individual adjudication.” New Jersey Dep’t of Env’t Protection
v. NRC, 561 F.3d 132, 143 (3rd Cir. 2009) (quoting Tribune
Co. v. FCC, 133 F.3d 61, 68 (D.C. Cir. 1998)).
 20

From the outset, NRDC’s contentions have focused on the
inadequacy of Limerick’s 1989 SAMA in light of changes over
the past three decades. Rule (L) forecloses this approach.
NRDC is arguably correct in arguing that Rule (L)’s language,
on its face, does not preclude the Commission from requiring
plants that have already undergone a SAMA analysis to
conduct an additional analysis. But here, NRC has reasonably
concluded that Rule (L) means SAMAs can be treated
generically for plants like Limerick that have once completed a
SAMA analysis. Given how extensive the first SAMA analysis
is, the Commission found a second analysis would not provide
enough value to justify the resource expenditure. This
determination is reasonable and so is entitled to deference. See
Ames Constr., Inc. v. Fed. Mine Safety & Health Review
Comm’n, 676 F.3d 1109, 1112 (D.C. Cir. 2012).

NRDC attempts to wriggle out from under this regulatory
bar by asserting that its right to a hearing on “new and
significant” information derives from the AEA and NEPA’s
hearing requirements. But neither statute does the work NRDC
asks of it. The organization points, at times, to the AEA’s
mandate that, “the Commission shall grant a hearing upon the
request of any person whose interest may be affected by the
proceeding.” 42 U.S.C. § 2239(a). Yet the AEA “does not
confer the automatic right of intervention upon anyone.” Union
of Concerned Scientists, 920 F.2d at 55. Because the AEA
itself “nowhere describes the content of a hearing or prescribes
the manner in which this ‘hearing’ is to be run,” id. at 53, we
must defer to the operating procedures adopted by the agency,
see id. at 54. Indeed, the Supreme Court has recognized “time
and again” that “even where an agency’s enabling statute
expressly requires it to hold a hearing, the agency may rely on
its rulemaking authority to determine issues that do not require
case-by-case consideration.” Nuclear Info. Res. Serv. v. NRC,
 21
969 F.2d 1169, 1176 (D.C. Cir. 1992) (en banc). Indeed, “a
contrary holding would require the agency continually to
relitigate issues that may be established fairly and efficiently in
a single rulemaking proceeding.” Id.

Similarly, with respect to NEPA, that statute “does not, by
its own terms or its intent, alter the Commission’s hearing
procedures . . . . The Supreme Court has been clear that ‘the
only procedural requirements imposed by NEPA are those
stated in the plain language of the Act.’ NEPA does not
mandate particular hearing procedures and does not require
hearings.” Beyond Nuclear v. NRC, 704 F.3d 12, 18–19 (1st
Cir. 2013) (quoting Vermont Yankee Nuclear Power Corp. v.
Nat. Res. Def. Council, Inc., 435 U.S. 519, 548 (1978)). And
though 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,” it “does not require agencies to adopt any
particular internal decisionmaking structure.” Massachusetts,
522 F.3d at 127 (quoting Baltimore Gas & Electric Co., 462
U.S. at 100). Because neither the AEA nor NEPA guarantees
an absolute right to a hearing and neither dictates how the
Commission should determine who receives a hearing,
NRDC’s reliance is misplaced. If every party challenging a
generically resolved issue on the basis of “new and significant
information” were guaranteed a hearing, the Commission
would have no ability to streamline its relicensing process via
generic rulemaking. And “the Supreme Court has found
agency reliance on prior [generic] determinations to be
perfectly acceptable, even when the statute before it plainly
calls for individualized hearings and findings.” Nuclear Info.
Res. Serv., 969 F.2d at 1175 (listing Supreme Court cases). 5

5
NRDC’s reliance on Union of Concerned Scientists v. NRC (USC I)
also fails. 735 F.2d 1437 (D.C. Cir. 1984). In that case, the
 22

Existing precedent further bolsters the Commission’s
position that generically resolved issues need not be fully
reconsidered at relicensing to comply with NEPA’s “hard look”
requirement. For instance, in New Jersey Department of
Environmental Protection v. NRC, the Third Circuit considered
whether the NRC, when reviewing a relicensing application,
had to examine the environmental impact of a hypothetical
terrorist attack on a particular plant. The court concluded
“[e]ven if NEPA required an assessment of the environmental
effects of a hypothetical terrorist attack on a nuclear facility,
the NRC has already made this assessment . . . . The NRC
rules codify these generic findings, and by regulation, license
renewal applications are excused from discussing generic
issues in their environmental reports.” 561 F.3d at 143. The
appellant in that case still attempted to argue that NRC’s
generic findings did not properly account for the unique risks
borne by that particular plant. But the Third Circuit rejected
these arguments as “collateral attacks on the licensing renewal
regulations” and concluded “the proper way to raise them
would have been in a petition for rulemaking or a petition for a
waiver based on ‘special circumstances.’” Id.

Commission postponed its evaluation of emergency preparedness
exercises to the post-adjudicatory phase of licensing and, in doing so,
removed the public’s ability to seek a hearing on that issue. This
court reversed, holding the Commission had lacked authority to
eliminate hearings on issues it conceded were material to its licensing
decision. See id. at 1447. But the regulation in that case prohibited
hearings without resolving the underlying issue in a generic rule—a
process which affords the public an opportunity to comment during
the rulemaking. Because the USC I framework is inapt here, we rely
instead on precedents that address the Commission’s authority to
resolve material issues generically rather than on a case-by-case
basis. See, e.g., Nuclear Info. Res. Serv., 969 F.2d at 1176;
Massachusetts, 522 F.3d at 127.
 23
For all practical purposes, this case cannot be
distinguished. Here, an NRC regulation excludes plants like
Limerick from conducting a subsequent SAMA analysis;
NRDC argues that this general regulation does not account for
new circumstances. Such an argument similarly amounts to a
collateral attack on the agency’s regulation—an attack which
should properly have been brought through a rulemaking
petition or via the waiver process.

The Supreme Court in Baltimore Gas & Electric Co.
considered a similar issue: there, NRC had chosen to
generically evaluate the impact of fuel cycles and to inform
licensing boards of its evaluation through a published table.
This process was challenged as improperly forgoing any plant-
specific analysis. But the Court upheld NRC’s determination:
“The generic method chosen by the agency is clearly an
appropriate method of conducting the hard look required by
NEPA.” 462 U.S. at 101. The Court noted that generic
resolution furthers “[a]dministrative efficiency,” and cautioned
“[i]t is not our task to determine what decision we, as
Commissioners, would have reached. Our only task is to
determine whether the Commission has considered the relevant
factors and articulated a rational connection between the facts
found and the choice made.” Id. at 105. Here, NRC considered
whether additional site-specific SAMAs would be efficacious,
concluding that they would not. This decision was rational,
supported by facts, and similarly sufficient to satisfy the
Commission’s “hard look” obligation under NEPA with respect
to plants like Limerick.

Finally, in Massachusetts v. United States, the First Circuit
confronted a challenge to NRC’s global findings regarding the
storage of spent fuel on site at a nuclear plant. The
Commonwealth contended, as NRDC does here, that “it may
raise [this] issue in the re-licensing proceeding and that [the
 24
company’s] report violated NEPA and 10 C.F.R.
§ 51.53(c)(3)(iv) because it failed to address ‘new and
significant information’ regarding the risk of on-site spent fuel
storage.” 522 F.3d at 122. Because on-site storage was
classified as a Category 1 issue under its regulations, NRC
denied the Commonwealth intervener status and encouraged it
to pursue the issue via a petition for rulemaking. The court
held “the Commission’s decision to deny party status to the
Commonwealth in the . . . license renewal proceedings [was]
reasonable in context, and consistent with agency rules.” Id. at
127. The court also emphasized that, as here, NRC 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.” Id.

NRDC brushes aside these cases as distinguishable
because the issues there fell squarely under a “Category 1”
classification. But, at bottom, NRDC is challenging Rule (L)
itself as the organization has raised only issues precluded by
this regulation. Whether the SAMA analysis is considered as a
proper “Category 1” issue for plants like Limerick or rather as a
“functional equivalent,” the principle remains the same: NRDC
cannot challenge an agency’s rulemaking via collateral attack,
absent a waiver. Moreover, NRDC has not been denied full
access to litigate these issues; no party has an unequivocal right
to a hearing on any terms before the Commission, and NRDC
has been free all along to seek a waiver (as it did) or to pursue
its contentions through rulemaking. The Commission has
spoken to NRDC’s precise contentions through a notice-and-
comment generic rule concerning a matter squarely within the
agency’s expertise. We therefore uphold the Commission’s
interpretation and invocation of Rule (L).
 25
B.

Having concluded the Commission’s interpretation of Rule
(L) is reasonable and NRDC can only proceed if it receives a
waiver, we now consider whether NRDC’s petition for waiver
was properly denied. The Commission’s determination is
entitled to deference as long as it was not arbitrary and
capricious. See, e.g., Baltimore Gas & Electric Co., 462 U.S.
at 98. Under 10 C.F.R. § 2.335(b), a party is entitled to waiver
only if it can prove “special circumstances” justify suspension
of the rule. The Commission has adopted a four-factor test for
assessing special circumstances. A movant must show “that
(i) the rule’s strict application would not serve the purposes for
which [it] was adopted; (ii) the movant has alleged special
circumstances that were not considered, either explicitly or by
necessary implication, in the rulemaking proceeding leading to
the rule sought to be waived; (iii) those circumstances are
“unique” to the facility rather than common to a large class of
facilities; and (iv) a waiver of the regulation is necessary to
reach a significant safety problem. . . . For a waiver request to
be granted, all four factors must be met.” Millstone, 62 N.R.C.
at 559–60.

Here, the Commission’s decision rested on the third factor
of “uniqueness.” In Millstone, the Commission found that
considerations such as proximity of the plant to an adjoining
state and changes in demographics and roadways around the
plant were “hardly unique” as these were “important but
common problem[s] addressed by the NRC’s ongoing
regulatory program.” Id. at 562. Other circuits have upheld the
Commission’s denial of waivers on a similar basis. See, e.g.,
Massachusetts, 708 F.3d at 74 (holding that, because the
concerns raised by spent fuel cell storage “applied to all nuclear
power plants,” the claims were best handled through
rulemaking).
 26

In this case, NRDC raised claims of newer, more
efficacious technology developed since 1989 for boiling water
reactors like Limerick. It also pointed to demographic changes
around the plant (such as increased population and changed
economic circumstances). But—as in Millstone—these
concerns are applicable to many, if not all, other plants that
would be seeking relicensing after a twenty-year period. [JA
393] The Commission therefore denied the petition for lack of
“unique” application. That reasonable determination is entitled
to deference from this court.

As a final note, NRDC’s aims are ultimately best served by
pursuing a rulemaking to challenge Rule (L), as the
Commission has urged. Although rulemaking is far from the
fastest route, it has transparency, extensive public input, and
broad application to recommend it. As it stands, however, we
conclude the Commission’s interpretation and application of
Rule (L) in the Limerick relicensing proceeding was reasonable
and cannot be challenged through NRDC’s collateral attack.

V. Conclusion

For the foregoing reasons, the petition is
Denied.