Court Denies NRDC Petition Against Nuclear Plant Renewal

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By Rebecca Kern

April 26 — A federal appeals court denied the Natural Resources Defense Council's petition challenging the Nuclear Regulatory Commission's refusal to allow the NRDC to intervene in the license renewal process for Exelon Corp.'s nuclear plant in Limerick, Pa.

The U.S. Court of Appeals for the District of Columbia Circuit issued a ruling April 26 that the NRDC “failed to show its contentions were unique to Limerick”—a nuclear plant 35 miles outside of Philadelphia—and therefore wasn't entitled to a waiver request of NRC regulations.

In connection with the National Environmental Policy Act, the NRDC had sought to intervene in the relicensing of the Limerick plant over what it said was the NRC's failure to consider new and significant information related to Severe Accident Mitigation Alternatives (SAMA), which are measures that may mitigate against a severe nuclear accident.

“Today’s decision overlooks the fact that the NRC and Exelon had ignored cost-effective measures that would mitigate the severity of a nuclear accident at Limerick,” Geoffrey Fettus, senior attorney with NRDC’s nuclear program and an author on the group's brief in the case, told Bloomberg BNA April 26.

Exelon is still reviewing the decision, Marshall Murphy, an Exelon spokesman, told Bloomberg BNA April 26.

The ruling was limited in scope, as the Limerick plant is one of three nuclear plants exempt from conducting new SAMA analysis when undergoing the license renewal process.

The opinion of the court was filed by Judge Janice Brown, who heard the case along with Judge Judith Rogers and Judge Brett Kavanaugh.

Complicated Regulatory Renewal History

The basis of the NRC's denial of the NRDC's request to intervene in the Limerick license renewal goes back to the agency's 1996 rulemaking—Environmental Review for Renewal of Nuclear Power Plant Operating Licenses.

The rule specifically lists three plants—Limerick, Comanche Peak and Watts Bar—which had already completed their SAMA analysis in their original 40-year licenses.

The operators are exempt from conducting further SAMA analysis during the process of seeking a 20-year license renewal. Therefore, Exelon didn't conduct additional SAMA analysis in the renewal process for Units 1 and 2 of the Limerick plant.

However, the NRC requires applicants in the relicensing process to report “any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware,” including information about SAMA. Exelon issued an environmental report in June 2011 to support its license application.

NEPA Requirements Raised

The NRDC submitted a petition to intervene and a hearing request, alleging that the National Environmental Policy Act requires an environmental impact statement [EIS], saying the agency can't rely on “outdated, inaccurate or incomplete” environmental analyses. “The renewal of a nuclear power plant operating license is a major federal action significantly affecting the quality of the human environment, and thus a new EIS is required,” the NRDC said in its brief.

The NRC denied the NRDC's hearing request as well as its waiver request to certain NRC regulations, saying that the issues raised weren't unique to the Limerick proceeding and they were about a broader concern with NRC regulations.

The NRC issued renewal licenses for both Unit 1 and 2 in October 2014.

Deference to NRC

The court explained it backed the agency's decision to reject the NRDC's requests, saying it gives deference toward agency decision-making. It added, “Moreover, to the extent NRC's technical judgment is before the court, we must generally be at our most deferential.”

Edwin Lyman, senior scientist at the Union of Concerned Scientists, said, “The bar for an appeals court to overturn an NRC decision is very, very high. Their precedent is you give extreme deference to the agency. So you'd have to have a really extraordinary case to be able to get that kind of relief, and it does happen, but very rarely.”

Howard Crystal, attorney with Meyer Glitzenstein & Eubanks LLP, argued on behalf of the NRDC.

James Adler, attorney at the NRC, argued on behalf of the agency. Brad Fagg, partner at Morgan, Lewis & Bockius LLP, argued on behalf of Exelon, which was an intervenor in the case on the side of the NRC.

To contact the reporter on this story: Rebecca Kern in Washington at rkern@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com