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New Jersey Dep't of Environmental Protection v. United States Nuclear Regulatory Commission

March 31, 2009

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, PETITIONER
v.
UNITED STATES NUCLEAR REGULATORY COMMISSION; AMERGEN ENERGY COMPANY, LLC RESPONDENT



Petition for Review of an Order by the United States Nuclear Regulatory Commission, (NRC-1 50-0219-LR).

The opinion of the court was delivered by: Roth, Circuit Judge

PRECEDENTIAL

Argued on December 10, 2008

Before: McKEE, SMITH and ROTH, Circuit Judges

OPINION

The issue presented by this appeal is whether the Nuclear Regulatory Commission (NRC), when it is reviewing an application to relicense a nuclear power facility, must examine the environmental impact of a hypothetical terrorist attack on that nuclear power facility. The New Jersey Department of Environmental Protection (NJDEP) contends that the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq, requires the analysis of the impact of such an attack. NJDEP has petitioned for review of an NRC decision denying its request to intervene in relicensing proceedings for the Oyster Creek Nuclear Generating Station (Oyster Creek). The NRC concluded that terrorist attacks are "too far removed from the natural or expected consequences of agency action" to require an environmental impact analysis and that, in any event, it had already addressed the environmental impact of a potential terrorist act at Oyster Creek through its Generic Environmental Impact Statement and site-specific Supplemental Environmental Impact Statement. We agree with the NRC and will deny the petition.

I. BACKGROUND

A. Statutory and Regulatory Framework

The Atomic Energy Act of 1954 (AEA), as amended, 42 U.S.C. § 2011 et seq., establishes a "comprehensive regulatory framework for the ongoing review of nuclear power plants located in the United States." Sections 103 and 104(b) of the AEA authorize the NRC to issue licenses to operate commercial power reactors. 42 U.S.C. §§ 2133, 2134(b). Section 103 limits licenses to forty-year terms but provides for renewal of nearly-expired licenses. 42 U.S.C. § 2133. By regulation, the NRC may renew a license for up to twenty years. See 10 C.F.R. § 54.31.

Two sets of regulatory requirements govern the NRC's review of license renewal applications. Under 10 C.F.R. Part 54, the NRC conducts a health and safety review focused on "the detrimental effects of aging"on the plant. See Nuclear Power Plant License Renewal: Revisions, 60 Fed. Reg. 22,461, 22,464 (May 8, 1995).

Under 10 C.F.R. Part 51, the NRC completes a NEPA-based environmental review, focusing on the potential impacts of twenty additional years of operation. NEPA is a procedural statute that does not mandate particular substantive results. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350--51 (1989). Rather, it is designed "to insure a fully informed and well-considered decision" in the examination of potential environmental impacts of a proposed agency action. Vermont Yankee, 435 U.S. at 558. NEPA "merely prohibits uninformed-rather than unwise-agency action." Robertson, 490 U.S. at 351. In addition, NEPA review should be consistent with NEPA's "national policy [to] encourage productive and enjoyable harmony between man and his environment." 42 U.S.C. § 4321. NEPA's "twin aims" are to "'place[] upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action' [and to] ensur[e] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983) (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553 (1978)).

By regulation, the NRC has divided the environmental requirements for license renewal into generic and plant-specific issues. This division resulted from "a systematic inquiry into the environmental impacts of refurbishment activities associated with license renewal and the environmental impacts of continued operation during the renewal period (up to 20 years for each licensing action)." Notice of Intent to Prepare an Environmental Impact Statement for the License Renewal of Nuclear Power Plants and to Conduct Scoping Process, 68 Fed. Reg. 332909, 33209 (June 3, 2003). The NRC analyzed "[t]he significance of environmental impacts... for each of nearly 100 issues [and] categorized which of these analyses could be applied to all plants and whether the additional mitigation measures would be warranted for each environmental issue." Id. Ultimately, "[o]f the 92 issues analyzed, 69 were resolved generally, 21 require a further site-specific analysis that applicants are required to address, and 2 require a site-specific assessment by the NRC." Id.

The NRC's "Generic Environmental Impact Statement for License Renewal of Nuclear Plants," Final Report, Vol. I (May 1996) (GEIS), addresses issues that are common to all nuclear plants. These have been designated "Category 1" issues. GEIS at 1-5, 1-6. Of particular note here, the GEIS reviews the risk of sabotage to nuclear power plants. The NRC has determined from this review that the risk is small and is provided for in the consideration of internal severe accidents:

The regulatory requirements under 10 CFR part 73 [i.e., "Physical Protection of Plants and Materials"] provide reasonable assurance that the risk from sabotage is small. Although the threat of sabotage events cannot be accurately quantified, the commission believes that acts of sabotage are not reasonably expected. Nonetheless, if such events were to occur, the commission would expect that resultant core damage and radiological releases would be no worse than those expected from internally initiated events.

Based on the above, the commission concludes that the risk from sabotage is small and additionally, that the risks f[ro]m other external events[] are adequately addressed by a generic consideration of internally initiated severe accidents.

GEIS at 5-18. The NRC expressly incorporated the GEIS's findings related to internal severe accidents into the NRC's environmental review regulations. See 10 ...


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