[00:00:00] Speaker 00: Case 14-1225, Natural Resource Defense Council Petitioner, the U.S. [00:00:08] Speaker 00: Nuclear Regulatory Commission et al. [00:00:10] Speaker 00: Mr. Kristol for the petitioner, Mr. Adler for the respondent, and Mr. Fack for the intervener. [00:00:17] Speaker 03: Good morning. [00:00:21] Speaker 01: Good morning, Your Honors. [00:00:23] Speaker 01: Howard Kristol for the petitioner, Natural Resources Defense Council, and I'd like to reserve three minutes for rebuttal. [00:00:30] Speaker 01: Your Honor, this petition is about the consideration of severe accident mitigation alternatives in the relicensing of the Limerick Nuclear Power Plant. [00:00:39] Speaker 01: Only certain parties may challenge Commission decisions, those admitted as parties through a petition to intervene before the Commission and granted an administrative hearing. [00:00:51] Speaker 01: In this case, the Atomic Safety and Licensing Board granted NRDC's request for a hearing, finding certain issues warranted consideration as an evidentiary matter with expert testimony, including, for example, whether certain severe accident mitigation measures that had been considered recently for other boiling water reactor plants should be considered in the relicensing for Limerick. [00:01:15] Speaker 01: However, the Commission reversed, finding that any hearing is precluded by the Commission's regulations because severe accident mitigation had been considered for the Limerick plant when the plant was initially licensed more than 25 years ago. [00:01:33] Speaker 01: The key premise of the Commission's argument is that issues related to severe accident mitigation at the Limerick Nuclear Power Plant and its relicensing for an additional 20 years were somehow resolved in the generic environmental impact statement for relicensing. [00:01:50] Speaker 01: That generic EIS, if I may call it, [00:01:53] Speaker 01: applies to all power plants across the country, because the Commission's approach is to resolve generic issues as to all plants in a single document, the generic EIS, and then to do site-specific supplements for each plant as it comes up for relicensing. [00:02:08] Speaker 05: They say you're challenging a rule. [00:02:10] Speaker 05: You can't challenge a rule in this forum. [00:02:13] Speaker 05: because the rule covers this situation. [00:02:16] Speaker 01: That's right. [00:02:17] Speaker 01: And the rule is a codification. [00:02:19] Speaker 01: It's all part of this generic EIS, which is part of a rulemaking done in 1996. [00:02:24] Speaker 01: And the commission's position, as you say, is that this issue is somehow resolved by rule. [00:02:29] Speaker 01: But the problem is... The rule refers to this specific [00:02:33] Speaker 01: That's correct, Your Honor. [00:02:36] Speaker 01: Just so we're all on the same page, there's a lot of regulations at issue here. [00:02:39] Speaker 01: This is 10 CFR, 51.53, C32L, which I'd like to call the Accident Mitigation Regulation. [00:02:46] Speaker 01: Let's call it L. L. Let's call it L. That would be a step. [00:02:49] Speaker ?: Thank you. [00:02:50] Speaker 01: That regulation says 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. [00:03:08] Speaker 01: The regulation itself doesn't mention Limerick, but certainly the rulemaking, we're not arguing that the rulemaking doesn't purport to say that because of this regulation, Limerick does not have to be considered [00:03:20] Speaker 01: The severe accident mitigation as delimit doesn't have to be considered during the licensing. [00:03:25] Speaker 01: But there's another regulation. [00:03:27] Speaker 01: This is 10 CFR 51.53C34, which I'll call the new information regulation unless we prefer to call it four, which is fine. [00:03:37] Speaker 01: That regulation requires, and I quote, this refers to each individual plant supplement, it says [00:03:44] Speaker 01: Those environmental review documents must address, quote, any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware. [00:03:55] Speaker 01: And in this case, the issue is how you reconcile those two requirements. [00:03:59] Speaker 01: That is, the idea that certain issues are off the table in the relicensing context because somehow they've been resolved in the generic EIS and how you're going to address new and significant information that may have come up later. [00:04:13] Speaker 03: The commission tries... So, could I just be clear here? [00:04:18] Speaker 03: What you say you're entitled to is a contested hearing, where you get to put your evidence on, the applicant gets to put his response, the commission staff or whoever. [00:04:33] Speaker 03: All right. [00:04:35] Speaker 03: So, the commission says, in part, [00:04:42] Speaker 03: We have a formula that we used in this generic development. [00:04:52] Speaker 03: And we decided that given the formula, it's very unlikely that anything's going to happen later on ever that would change our analysis. [00:05:11] Speaker 03: And it says, if we've approached this in the wrong way, then you ought to file a petition for a rulemaking to change this scheme or get a waiver of L. As I understand the commission, it also says that a number of other things are ongoing, such as these facilities are making changes on their own, [00:05:40] Speaker 03: And the Commission has a procedure for considering whether or not additional safety measures are needed. [00:05:49] Speaker 03: And that's quite separate and apart from the relicensing proceeding itself. [00:05:55] Speaker 03: So as I read the Commission's brief, it's saying not only can you not challenge L, [00:06:02] Speaker 03: in this process. [00:06:04] Speaker 03: But you have other avenues open to you where the things you're concerned about can be raised in a contested manner. [00:06:13] Speaker 03: And furthermore, we the Commission have given the staff your comments [00:06:20] Speaker 03: And the Commission, as I understand it, I'll ask the Commission this, but it's interpreted, it's intervention rule so that there's no later time for you to move for intervention such that when the supplemental draft EIS [00:06:36] Speaker 03: is submitted to the Commission, you would have an opportunity then to come in and challenge what's there. [00:06:41] Speaker 01: That's right. [00:06:42] Speaker 01: So you've raised three issues. [00:06:43] Speaker 01: Let me start with the third one, because I think it's absolutely important and ties back to the first two, which is that, as you note, in the final denial of our petition, the Commission said we're not entitled to a hearing. [00:06:54] Speaker 01: But it said, and I'm quoting now from their denial at 22, which is JA 395, [00:07:00] Speaker 01: quote, NRDC has identified information that bears consideration in our environmental review of Exelon's application, and they say outside the adjudicatory process. [00:07:11] Speaker 01: Therefore, we refer NRDC's waiver petition to the staff as comments on the limerick draft supplemental EIS and expect the staff to incorporate any new SAMA-related information that it finds to be significant in the final EIS. [00:07:24] Speaker 01: So the commission [00:07:26] Speaker 01: decided that the information that NRDC was presenting needed to be considered in the site-specific Limerick re-licensing proceeding. [00:07:35] Speaker 01: But its position here is no matter what happened with that, when the Commission put out its final, we have no avenue to challenge that decision. [00:07:42] Speaker 01: And now that goes back to the first part of your question, which is true, that the Commission in the rulemaking purported to say that if [00:07:50] Speaker 01: This issue had been considered in the original licensing proceeding. [00:07:55] Speaker 01: It need not be reconsidered in licensing. [00:07:58] Speaker 01: The problem with the Commission's approach is that Category 1 issues were actually considered. [00:08:04] Speaker 01: They were considered for relicensing in the generic EIS. [00:08:08] Speaker 01: So, for example, a Category 1 issue like bird collisions with cooling towers. [00:08:13] Speaker 01: They looked at whatever information there was at relicensing, this is in the 90s, about that issue, and they decided this does not need to be considered further in site-specific. [00:08:23] Speaker 01: They did not do that as to severe accident mitigation. [00:08:26] Speaker 01: They did quite the contrary. [00:08:27] Speaker 01: They said in the generic EIS, and I'm now reading from JA584, that quote, a site-specific analysis of measures that mitigate severe accidents needs to be conducted in each licensing. [00:08:39] Speaker 01: More recently, in 2013, [00:08:42] Speaker 01: The commission issued an update to the generic EIS, and in that update, this is cited in our reply brief at page 10, quote, plant-specific mitigation measures vary greatly based on plant designs, safety systems, fuel type, operating procedures, local environment, population, and siting characteristics. [00:09:01] Speaker 01: Again, making clear that the commission's view is that this is not a generic issue that can be resolved generically. [00:09:07] Speaker 01: Now, there's a reason for that. [00:09:09] Speaker 01: In 1988, I believe it was, in the Limerick Ecology case, the Third Circuit rejected the Commission's effort to resolve severe accident mitigation generically and said, in particular, because issues vary tremendously among plants, including, for example, population, this plant is near a very significant population center, [00:09:30] Speaker 01: the degree to which and the way you're going to look at severe accident mitigation is going to vary greatly depending on the plant. [00:09:38] Speaker 01: So unlike all other issues which were resolved generically in the generic EIS for relicensing, [00:09:45] Speaker 01: The SAMA analysis was not done generically. [00:09:48] Speaker 01: For all other plants, other than the three they purported to exclude, severe accident mitigation is going to be considered on a site-specific basis. [00:09:56] Speaker 01: And we're left with this regulatory and review black hole, because severe accident mitigation as to limerick was resolved neither in the generic EIS, and neither the commission's view is not going to be resolved in the site-specific limerick EIS. [00:10:13] Speaker 01: Whereas every other issue that's material to licensing is going to be resolved in one or the other. [00:10:19] Speaker 01: And then to the second part of your question, which had concerned the Commission's arguments about how these issues are going to be addressed elsewhere and other procedures. [00:10:28] Speaker 01: There's this thing called internal processing of events and external events. [00:10:32] Speaker 01: There are various acronyms. [00:10:34] Speaker 01: All sorts of steps the Commission says it's going to take to address these problems. [00:10:38] Speaker 01: That approach was rejected by this court in the first Union of Concerned Scientists case, which is 735 F. [00:10:43] Speaker 01: 2nd, 1437, where the commission argued that certain safety procedures, because they were going to be considered close to the time of licensing, it was appropriate to consider them outside the hearing process, that they could be removed altogether. [00:10:59] Speaker 01: But at the same time, the commission agreed that that issue was material to its licensing decision. [00:11:06] Speaker 01: And the court said, if you have an issue that's material, you cannot, consistent with the Atomic Energy Act, exclude it from a hearing. [00:11:13] Speaker 01: That's exactly what the commission has done here. [00:11:15] Speaker 01: They've taken an issue, they concede as material to relicensing, the consideration of severe accident mitigation. [00:11:21] Speaker 01: Not only did they consider it material, they sent it to the staff to include in the site-specific EIS-4 limerick. [00:11:28] Speaker 01: And yet they are saying that we are categorically barred by their regulation from even presenting our evidence through the standard contention and miscibility requirements to cite another regulation. [00:11:40] Speaker 01: Excuse me. [00:11:46] Speaker 01: The contention admissibility requirements, which are 10 CFR 2.309F, those are the basic threshold criteria that have to be satisfied to bring a contention forward. [00:11:57] Speaker 01: You have to raise a specific issue of law. [00:11:59] Speaker 01: You have to explain its basis. [00:12:00] Speaker 01: You have to show it's within the scope of the proceeding. [00:12:03] Speaker 01: Those are the factors that the Atomic Safety and Licensing Board considered and decided that we'd satisfied as to these contentions. [00:12:09] Speaker 01: But the Commission's view is we can't get there. [00:12:11] Speaker 01: We're not entitled to the consideration of our contentions under those basic factors because of this bar of this rule. [00:12:18] Speaker 01: And our view is that that cannot be consistent with [00:12:20] Speaker 01: the Atomic Energy Act with NEPA, which require both that environmental issues be resolved during relicensing, which is a major federal action. [00:12:29] Speaker 01: It's another critical point that the Commission overlooks. [00:12:32] Speaker 01: They would suggest that somehow relicensing this nuclear power plant is itself [00:12:37] Speaker 01: somehow tear off of the licensing and therefore it's appropriate to go back to the limerick licensing and the consideration of severe accident mitigation at that stage. [00:12:45] Speaker 01: However, the commission acknowledges, this court has noted in the New York case that we cite in our briefs, that relicensing a nuclear power plant is a new major federal action. [00:12:55] Speaker 01: Therefore, material issues have to be resolved. [00:12:58] Speaker 02: I have to admit that I find the [00:13:02] Speaker 02: procedures here, somewhat difficult to follow. [00:13:07] Speaker 02: But if I understand what you are essentially arguing, it is that some of these severe accident mitigation alternatives cannot be handled generically. [00:13:20] Speaker 02: That is what the rule purports to do, to say we can have a generic EIS. [00:13:26] Speaker 02: So what the Commission says is, if you have a problem with the rule, [00:13:31] Speaker 02: then you need to challenge it in rulemaking. [00:13:35] Speaker 02: And if that is your problem, that you're saying this isn't an appropriate rule, why doesn't that work? [00:13:42] Speaker 01: Well, the problem, Your Honor, is that in fact the Commission did not decide that severe exit mitigation could be resolved generically. [00:13:50] Speaker 01: In fact, there were two petitions that we cite in our brief. [00:13:55] Speaker 01: This is in our opening brief on page 36. [00:13:57] Speaker 01: by the industry asking for SAMIS to be removed from this process and to be resolved generically. [00:14:02] Speaker 01: And the commission rejected that because as I said before, in multiple places the commission has said [00:14:08] Speaker 01: following limerick ecology, that severe accident mitigation differs significantly depending on the plant and that it cannot be resolved generically. [00:14:17] Speaker 01: So the thing that's confusing, Your Honor, is what they did in this generic EIS and in this rule, because they resolved certain issues generically, like cooling towers and bird collisions, [00:14:28] Speaker 01: But as to severe accident mitigation and certain other issues, they said they have to be resolved in a plan-specific basis. [00:14:34] Speaker 01: But then there's this carve-out that's the basis. [00:14:37] Speaker 02: I just want to make sure that I understand or try to understand what's going on here. [00:14:42] Speaker 02: Did they say you couldn't ever do it generically, or did they simply say if we haven't done it at least once, [00:14:51] Speaker 02: then it has to be site-specific. [00:14:53] Speaker 01: Remember, there's an important distinction. [00:14:58] Speaker 01: Doing it generically means that the issues are similar enough, sufficiently similar as to all plants, that there's no site-specific variable that needs to be considered. [00:15:07] Speaker 01: The key thing they decided is that severe accident mitigation doesn't fit that criteria. [00:15:12] Speaker 01: It's not generic [00:15:14] Speaker 01: sufficiently generic that it can be resolved as to all plants. [00:15:17] Speaker 01: That's the reason why, for plants that never considered severe accident mitigation during relicensing, they are going to do a site-specific severe accident mitigation analysis. [00:15:26] Speaker 01: But what they're trying to say, what they're arguing, and that's what this case turns on, is to suggest that, well, if we did consider it in the original licensing phase, [00:15:35] Speaker 01: We don't have to reconsider it during relicensing. [00:15:39] Speaker 01: And the problem with that, as I point out, is that relicensing is a new major federal action. [00:15:44] Speaker 01: And therefore, environmental issues have to be considered and resolved, particularly new and significant information about environmental issues. [00:15:51] Speaker 02: Okay, so I go back to my question then. [00:15:54] Speaker 02: Your problem is this carve out, which is the part of the rule. [00:15:59] Speaker 02: So why isn't a challenge to the rule a way to deal with that? [00:16:04] Speaker 01: Well, the issue is the context in which this problem arises. [00:16:10] Speaker 01: Our view and our position has been that this rule could not be read consistent with the Atomic Energy Act and with NEPA. [00:16:17] Speaker 01: to exclude the consideration of new and significant information about SAMAs in the plant-specific limerick relicensing. [00:16:25] Speaker 01: And if we're right about that, that's where we are now, the plant-specific relicensing, we should be entitled to a hearing or at least consideration of our contentions in that hearing process. [00:16:34] Speaker 01: The rulemaking petition avenue is to change a rule that the Commission has enacted that applies to all plants, like the Queeling Towers Regulation. [00:16:44] Speaker 01: Someone epitomized a problem that that regulation, the right avenue, is for them to submit a rulemaking petition to change that regulation's application to all plants. [00:16:53] Speaker 01: The regulation we're talking about, its application in this instance only applies to the Limerick nuclear power plant. [00:16:59] Speaker 01: There's no other power plant across the country that it applies to. [00:17:02] Speaker 01: So it's not a generic determination, although they would have us believe it is. [00:17:06] Speaker 01: It's a site-specific determination, and now we're trying to bring forward... There is another avenue to challenge it. [00:17:12] Speaker 05: The waiver, Your Honor? [00:17:14] Speaker 05: No, another avenue to challenge even the site specific. [00:17:18] Speaker 05: I mean, you could do the petition for rulemaking. [00:17:22] Speaker 01: Yes, and just to be clear, what the petition for rulemaking would ask is to change this regulation's application to the Limerick nuclear power plant. [00:17:29] Speaker 05: No, I understand it may be silly from your perspective and maybe from mine, but there is a way to do this. [00:17:36] Speaker 01: Yeah, well, and if I could just spend a minute on the other way that the commission at least gave lip service to our being able to do this is to ask for a waiver of the regulation, which we did. [00:17:45] Speaker 01: So our threshold argument is that the way to reconcile these two regulations, because the Commission has no argument for how to apply the new information regulation I cited in a way that gives it meaning in this context given their interpretation, but we've also suggested if the only avenue to us to have our issues considered in the limerick site-specific [00:18:08] Speaker 01: relicensing proceeding is to somehow change this regulation, we satisfy the waiver criteria, which allows for a waiver of a regulation when there are special circumstances with respect to the subject matter of the particular proceeding. [00:18:23] Speaker 01: The issues we are raising are specific to Limerick. [00:18:26] Speaker 01: The government argues our issues are not unique because we're raising new information. [00:18:30] Speaker 01: And of course, there will always be new information. [00:18:33] Speaker 01: But how can there be a waiver system? [00:18:37] Speaker 01: And I should mention that the Commission has never in its history granted a waiver. [00:18:41] Speaker 01: But how can we give any meaning to the waiver option? [00:18:44] Speaker 01: If to satisfy the unique criteria, you're disallowed if all you're raising is new information. [00:18:51] Speaker 01: That's the only kind of information that would be relevant to consideration of a waiver. [00:18:56] Speaker 01: So we've suggested several pathways that we think the court could [00:19:01] Speaker 01: thread the statutory scheme that would give us what we believe we're entitled to, which is to have our contentions considered against the same criteria of the Atomic Safety Licensing Board. [00:19:12] Speaker 01: First, the court could read those two regulations, the L regulation and the new information regulation, can harmonize them to read that first regulation [00:19:21] Speaker 01: to apply only to basically to allow consideration of new and significant information to read that first regulation, not to exclude new and significant information. [00:19:32] Speaker 01: Alternatively, the court could find that we fit to satisfy the criteria for a waiver. [00:19:38] Speaker 01: And finally, our view is that there is just no way to read this scheme consistent with the various statutes that would preclude our right. [00:19:45] Speaker 01: And therefore, if the court were to find that neither approach is appropriate, the court should find that this regulatory scheme just is not consistent with the Atomic Energy Act and with the National Environment Policy Act. [00:19:56] Speaker 03: To what extent are you arguing that our opinions in the Union of Concerned Scientists 1 and 2 [00:20:07] Speaker 03: have basically already decided this question. [00:20:10] Speaker 01: Well, I do think we believe that this case is controlled by particularly the first decision, but certainly also by language in the second decision, which basically rejected an as-applied challenge to, it wasn't to these regulations, but to other regulations, but made clear that any interpretation of the Commission's regulations that excludes parties from their statutory right to a hearing will not be upheld. [00:20:34] Speaker 03: Well, and the second opinion says, as I understand it, and I'll ask the Commission obviously what it understands what I mean, that it can't be a regulatory scheme that excludes the matter from being brought in a hearing by anyone. [00:20:54] Speaker 03: So if you were just duplicating some other party's arguments, you would have no right to intervene. [00:21:04] Speaker 01: That's right. [00:21:04] Speaker 01: That's exactly right. [00:21:05] Speaker 01: But another important point is that the Commission mischaracterizes our reliance on those cases to suggest that we're saying we have an automatic right to a hearing. [00:21:12] Speaker 01: I want to make sure that's absolutely clear. [00:21:14] Speaker 01: All we're saying is our, just like any other party, [00:21:17] Speaker 01: Our contention should be considered against the 2.309 Contention and Missibility Factors, which the Atomic Safety and Licensing Board considered. [00:21:24] Speaker 01: We meet the criteria, as the board said, and our contentions go forward. [00:21:28] Speaker 01: For some reason, our contentions are not within the scope of the proceeding or otherwise deficient. [00:21:32] Speaker 01: Maybe we can't go forward. [00:21:33] Speaker 01: We're not saying an automatic right. [00:21:35] Speaker 01: What we're saying is there cannot be an automatic bar, which is what the Commission has applied to us here. [00:21:41] Speaker 03: All right. [00:21:41] Speaker 01: Thank you. [00:21:42] Speaker 01: Thank you, officer. [00:21:43] Speaker 01: My time for rebuttal. [00:21:44] Speaker 03: All right. [00:22:00] Speaker 04: May it please the Court. [00:22:01] Speaker 04: My name is James Ather. [00:22:02] Speaker 04: I represent the Nuclear Regulatory Commission in the United States. [00:22:07] Speaker 04: The NRC has a regulation that already answers the question NRDC wanted to litigate in the LIMRIC license renewal proceeding. [00:22:14] Speaker 04: It's a narrower question than simply, what are we going to do with SAMAs generally? [00:22:20] Speaker 04: It refers just to a second analysis when one has already been done. [00:22:24] Speaker 03: What regulation is that? [00:22:25] Speaker 04: Well, actually, we have multiple. [00:22:28] Speaker 04: There is the one called L. All right. [00:22:31] Speaker 03: So we're talking about L, right? [00:22:32] Speaker 04: Also, the generic EIS was codified through table B1 at the end of 10 CFR part 51. [00:22:42] Speaker 04: And that has, as is summarized in the table under postulated accidents, as the same principle as in 51, 53, 53, 2L. [00:22:58] Speaker 04: NRDC's contention clearly attacked this by saying that the issue had to be addressed again for Limerick. [00:23:05] Speaker 04: So the Commission reasonably found that this was an attack on the rule. [00:23:09] Speaker 04: When that happens, there's the possibility of a waiver. [00:23:12] Speaker 04: The normal way to challenge it would be a rulemaking petition. [00:23:15] Speaker 02: Can I ask you if the Commission has ever granted a waiver? [00:23:20] Speaker 02: Do you know? [00:23:21] Speaker 04: I don't believe so. [00:23:22] Speaker 04: I've also never been overturned on a waiver decision. [00:23:25] Speaker 04: The First Circuit looked at one in 2013 in the Massachusetts versus NRC case and found the NRC's decision reasonable. [00:23:37] Speaker 04: But it's designed not to be the normal course. [00:23:41] Speaker 04: It's an exception of the rule. [00:23:42] Speaker 04: The general strong principle in our administrative law is if we have regulations, they're not subject to collateral attack and individual adjudications. [00:23:50] Speaker 04: When we have regulations, we're able to rely on those in individual adjudications. [00:23:54] Speaker 04: The Supreme Court has made that clear in a number of cases. [00:23:57] Speaker 04: At Clarity Campbell in 1983, this court in the en banc nuclear information resource service versus NRC case in 1992 chronicled this as nothing unusual about the NRC issuing a rule and then not opening that to attack in individual adjudications. [00:24:13] Speaker 04: That's all that's happening here. [00:24:16] Speaker 05: What's the problem? [00:24:18] Speaker 05: I realize this is not the issue, by the way, but what's the problem from the Commission's perspective if they were allowed to intervene here? [00:24:25] Speaker 04: NRDC claims that there's only one plant that this rule applies to that's not true. [00:24:31] Speaker 04: Certainly in Limerick's own generation of SAM or SAMDA analysis, whichever term you want to use, there's a Watts-Barr reactor, two Comanche Peak reactors. [00:24:43] Speaker 04: NRDC makes the point that Limerick of those is the only boiling water reactor. [00:24:48] Speaker 04: but it doesn't explain why that carries the day. [00:24:51] Speaker 04: And the commission, it clearly doesn't, the commission dispatched it in a footnote. [00:24:55] Speaker 04: I think it's footnote 82 in the CLI 13-7 decision where it pointed out, sure, Wadspar and Comanche Peak aren't boiling water reactors, but it's also true for them that there were additional mitigation measures looked at by [00:25:09] Speaker 04: future SAM analysis, in this case would be pressurized water reactors. [00:25:14] Speaker 04: They didn't use the MAX 2 code that future pressurized water reactor SAM analyses use. [00:25:21] Speaker 04: And then the Commission pointed out that there was, in its 1996 rule, it didn't envision that there was just one way to do a SAM analysis. [00:25:29] Speaker 03: So furthering Judge Kavanaugh's question, what does the Commission see as the problem? [00:25:38] Speaker 03: on a practical level. [00:25:40] Speaker 03: In other words, there's been a generic determination. [00:25:43] Speaker 03: A plant has been in operation for decades. [00:25:47] Speaker 03: It seeks relicensing for decades. [00:25:52] Speaker 03: And no matter that was previously considered can be raised by an interested party, even though the commission determines its material to its [00:26:08] Speaker 03: decision on relicensing? [00:26:10] Speaker 04: If it was decided in a rulemaking, and this is not a UCS-1 type rule where, I mean, is that court? [00:26:17] Speaker 04: If you look at the conclusion paragraph at the end of UCS-1, the majority opinion, it summarized the particular fact pattern it was looking at, which was the Commission was still requiring applicants to go through emergency preparedness exercises and demonstrate that they did so sufficiently. [00:26:37] Speaker 04: But the commission wanted that to happen late in the licensing process, after the hearing process was over. [00:26:44] Speaker 04: And it was worried that it would delay licenses if it allowed a hearing on the question of whether those emergency preparedness... So delay is the commission's concern? [00:26:53] Speaker 04: In UCS-1, that's not the issue here. [00:26:56] Speaker 04: Here, it's a very different regulation. [00:26:59] Speaker 04: It's not talking about hearings. [00:27:00] Speaker 04: It tells applicants you don't have to do this analysis. [00:27:03] Speaker 04: It tells the NRC staff you don't have to require applicants to do this analysis or do it yourself. [00:27:09] Speaker 04: Hearings is simply the effect on hearings is a corollary just of the heckler v. Campbell. [00:27:14] Speaker 03: So the only way to proceed as a practical matter is to petition for a rulemaking. [00:27:22] Speaker 04: That's the most straightforward and easy way. [00:27:24] Speaker 04: There are no hurdles in the way. [00:27:26] Speaker 03: And then we have a rulemaking that goes on for some time. [00:27:29] Speaker 03: The rulemaking is challenged in the Court of Appeals. [00:27:31] Speaker 03: We remand. [00:27:32] Speaker 03: It goes back and forth. [00:27:34] Speaker 03: I just want to be clear what the difference is here. [00:27:38] Speaker 03: I understand and I thought I understood what the Third Circuit was getting at. [00:27:44] Speaker 03: And I thought our cases were getting at somewhat the same thing. [00:27:48] Speaker 03: that if the Commission has deemed that the issue is material, it's not enough for the Commission simply say to the staff, look at these comments, but rather there is this obligation for a contested hearing, to provide a contested hearing. [00:28:06] Speaker 04: I think there are two things. [00:28:08] Speaker 04: For all our generic [00:28:10] Speaker 04: NEPA determinations. [00:28:15] Speaker 04: The default is that a new and significant information type contention like NRDC brought is not an available option unless you get a waiver. [00:28:25] Speaker 04: That's what happened in the 2008 Massachusetts versus United States situation. [00:28:30] Speaker 03: But in that situation, was it mass housing? [00:28:36] Speaker 03: Is that the case? [00:28:37] Speaker 04: This was Massachusetts, the Commonwealth of Massachusetts versus United States. [00:28:42] Speaker 03: The state had another opportunity to come in as an intervener. [00:28:47] Speaker 03: And the court, the First Circuit says, in this context, we find no problem with what the commission, we find no problem with the commission's interpretation. [00:28:59] Speaker 03: But of course, here, and I want to be clear about that, [00:29:03] Speaker 03: Under the Commission's rules, there is, as the Commission has interpreted them, no further opportunity for intervention if you don't get the intervention granted. [00:29:17] Speaker 03: under F1. [00:29:18] Speaker 04: I think a very important distinction in that case is why the first secret was talking about that was because it wanted to be sure that Massachusetts, not that they could litigate this issue as an interested state in the adjudicatory hearing, but they could take advantage of 10 CFR section 2. [00:29:38] Speaker 04: 2.802d, which says that a rulemaking petitioner can ask the NRC to suspend a particular licensing proceeding. [00:29:47] Speaker 03: I know that, but it also said that the state had another means under the Commission's regulations to seek intervention in addition to filing a petition for a rulemaking. [00:30:01] Speaker 04: I think that goes to the question of whether they would be eligible under 2.8 or 2D as a, quote, interested state. [00:30:08] Speaker 04: And with that, you can become an interested state participant in an NRC proceeding by simply saying, essentially, I want to be an interested state. [00:30:17] Speaker 03: I understand. [00:30:17] Speaker 03: And my point is that that case, to me, is so distinguishable simply because the parties, not the party, but the petitioners seeking [00:30:34] Speaker 03: to intervene had another opportunity to become an intervener. [00:30:39] Speaker 03: That is not true, as I understand it, under the commission's current rules. [00:30:46] Speaker 04: Right, unless they successfully got some contention in on another issue. [00:30:52] Speaker 04: I don't think Massachusetts' ability to get in as an interest of state would have meant it would have gotten a hearing on this issue that the commission was saying you can't get a hearing on. [00:31:01] Speaker 02: So basically, if NRDC did follow the Commission's advice and challenge the rule, they would not be able to ask for the licensing proceeding to be suspended while that was resolved. [00:31:19] Speaker 02: Is that correct? [00:31:20] Speaker 04: I don't know that that's been resolved by the Commission, but I suspect the answer is one way or another. [00:31:28] Speaker 04: They can tell the Commission to do that if they've convinced the Commission that there's a problem with the rule here. [00:31:37] Speaker 04: I think it's clear from the look at the comment process discussion in 1996. [00:31:42] Speaker 04: The Commission knows that it can't just go forward with individual licensing proceedings if there's a problem with a generic [00:31:49] Speaker 02: What I'm trying to figure out is whether NRDC would be a party here that would have the ability to ask for the suspension of the licensing proceeding or something like that. [00:32:03] Speaker 02: Because if not, the rulemaking may go on for quite some time and may not even be resolved before [00:32:10] Speaker 02: this licensing is concluded. [00:32:13] Speaker 02: So the question is do they really can they get at this? [00:32:17] Speaker 02: Council referred to this as a regulatory black hole. [00:32:21] Speaker 02: I mean are they in a situation where there's really no way to get to this? [00:32:24] Speaker 04: Well if NRDC had filed a rulemaking petition and asked us to suspend the proceeding we would [00:32:29] Speaker 04: have an answer here. [00:32:32] Speaker 04: In the Massachusetts case, 2008, the commission's position was that it takes a flexible approach to that party requirement. [00:32:40] Speaker 04: And so even though Massachusetts might not be a party in the usual sense, it would be a participant in the proceeding. [00:32:47] Speaker 04: NRDC has been very involved in this proceeding. [00:32:50] Speaker 04: I mean, ultimately, I think the goal of that is not a formal requirement that someone get party status, because it might be on a completely unrelated issue that they [00:32:59] Speaker 01: Well, yes. [00:33:01] Speaker 04: And so, you know, I think it's ensuring that this is some party that actually cares about that proceeding, has some link to it. [00:33:09] Speaker 04: But again, we would know for sure if NRDC had actually done that. [00:33:15] Speaker 03: Okay, under your rule 2.309 F2, it refers to participants. [00:33:24] Speaker 03: So what does that mean? [00:33:27] Speaker 03: You say NRDC has been a participant in these proceedings. [00:33:32] Speaker 04: Well, I mean, I suppose the question is what it means under 2.802D. [00:33:37] Speaker 04: They've certainly been very involved. [00:33:39] Speaker 04: And the commission, I think, in the... No, let me be clear, counsel. [00:33:42] Speaker 03: I want to know what it means in 2.309F2. [00:33:49] Speaker 03: Because F2 says, [00:33:52] Speaker 03: that participants may file new or amended environmental contentions after the deadline in paragraph B of this section. [00:34:02] Speaker 03: And then there's a long paracentical. [00:34:07] Speaker 03: If the contention complies with the requirements in C, which is the substantive requirement, and they're talking about filing contentions based on the environmental report initially, [00:34:21] Speaker 03: and then based on a draft or final NRC, Environmental Impact Statement. [00:34:29] Speaker 03: So my question is, if you denied intervention as NRDC has been [00:34:35] Speaker 03: Now, is there an opportunity for it to come back once the draft supplemental EIS is prepared by staff and submitted to the commission for approval? [00:34:49] Speaker 04: Yes, I believe so. [00:34:50] Speaker 04: If there is something new that develops in the EIS that wasn't apparent from the applicant's environmental report, I don't believe there's a bar against someone doing that if they haven't. [00:35:01] Speaker 03: Doing what? [00:35:02] Speaker 04: getting a contention in and a hearing if they haven't succeeded already on something and become a formal party. [00:35:10] Speaker 03: I don't believe that's the... Do we have any interpretation by the commission of this regulation? [00:35:14] Speaker 04: I suspect. [00:35:15] Speaker 04: I mean, unfortunately, I'm not an expert in this particular issue, but there are... Intervention. [00:35:20] Speaker 04: There's plenty of commission case law out there on this. [00:35:23] Speaker 04: Yeah. [00:35:24] Speaker 03: Well, both recite F and they cite F2, but they don't talk about this particular provision. [00:35:31] Speaker 03: Oh, they don't discuss it. [00:35:33] Speaker 03: And I just wondered whether or not there was some other opportunity in the process for NRDC once the draft supplemental environmental impact statement is prepared by staff and submitted. [00:35:50] Speaker 03: Could NRDC then seek intervening status as an intervener? [00:35:59] Speaker 04: I think my understanding is, in general, yes. [00:36:02] Speaker 04: I mean, here, if there was the same issue, they'd face the same problem with the regulation having already addressed the question. [00:36:08] Speaker 04: So they'd need a waiver still. [00:36:11] Speaker 03: And if the... So we don't know, at least at this point, you can't give me a site saying that that's the way the Commission interprets this interpretation, because I wasn't sure what the word participant meant, whether it meant someone who has already been granted [00:36:27] Speaker 03: status, the status of intervener, or just anybody who wants to submit a comment. [00:36:35] Speaker 04: I don't know that the specific one that's been cited by the Commission did point NRDC to the suspension option in this case. [00:36:41] Speaker 04: So I would expect it wouldn't have done that. [00:36:44] Speaker 03: That's a suspension with regard to a rulemaking that you and Judge Brown were discussing. [00:36:48] Speaker 03: I'm talking about this F2. [00:36:50] Speaker 04: Right, which wasn't an issue before the Commission. [00:36:56] Speaker 03: I'm asking, since both parties have cited the regulation, what does it mean? [00:37:03] Speaker 04: Unfortunately, I can't give you an answer, just being unfamiliar with the case law. [00:37:08] Speaker 04: Okay. [00:37:10] Speaker 04: Any further questions? [00:37:12] Speaker 04: Okay. [00:37:13] Speaker 03: Thank you. [00:37:22] Speaker 03: Thank you. [00:37:23] Speaker 06: Thank you, Mayor. [00:37:24] Speaker 06: Please support Your Honor Brad Fagg for intervening. [00:37:26] Speaker 06: Excellent. [00:37:26] Speaker 06: To pick up just on that last colloquy, and unfortunately I don't have the specific site, but I know enough to know that if there's truly new information, there's an opportunity. [00:37:36] Speaker 06: It's a high burden, but there's an opportunity for a party to come in and allege. [00:37:39] Speaker 06: For a party? [00:37:41] Speaker 06: I'm sorry. [00:37:42] Speaker 06: Not for a puritan party. [00:37:45] Speaker 06: For a party in the lower P sort of case to come in. [00:37:49] Speaker 06: And the regulations do draw a distinction between participant and party. [00:37:53] Speaker 06: terms of art. [00:37:55] Speaker 06: So again, I don't have the site handy. [00:37:56] Speaker 06: We could follow it up. [00:37:57] Speaker 06: But I know enough to know that in response to your honor's question, it's a high burden, but there is that opportunity under the regulations. [00:38:07] Speaker 03: I'd like to also, I guess... Could I just ask you without dragging this out too far, but is it your understanding that what the regulation refers to as a participant is someone who has standing but has not been granted the status of an intervener? [00:38:23] Speaker 06: That is my non-agency understanding of that, and I'll be corrected. [00:38:30] Speaker 06: My counsel is sort of nodding, so I'll take that as an affirmative. [00:38:33] Speaker 03: Thank you. [00:38:35] Speaker 06: The other point I guess I'd like to make, again following up on some of the colloquy here, responds to some of the arguments that were made and some of the questions about the import of [00:38:44] Speaker 06: the Union of Concerned Scientists first decision, the fact that there is alleged to be new and significant information. [00:38:51] Speaker 06: I think a key point here is those arguments prove too much. [00:38:56] Speaker 06: If those arguments are right, then the whole category one generic scheme means nothing. [00:39:02] Speaker 06: Because if NRDC is right here, there's no reason why you can't come into a proceeding where there is an undeniably generic [00:39:12] Speaker 06: determination, put aside the subtleties of this particular rule, but it sweeps all of that away because it takes away the agency's right and ability, which has been long ratified by Supreme Court and multiple courts of appeals, to deal with things on a rule-based basis. [00:39:28] Speaker 06: And that, winding around to the main point here, I think, and what this case is all about, this is about an RDC does not like that rule. [00:39:35] Speaker 06: They don't like L. [00:39:36] Speaker 06: And so you heard Mr. Crystal Openwood, somehow it applies. [00:39:41] Speaker 06: It's not somehow it applies. [00:39:43] Speaker 06: It absolutely applies. [00:39:44] Speaker 06: It was drafted with Limerick and two other sites in mind. [00:39:47] Speaker 06: And that rule is once but only once, under the very specific, unique thing we're talking about here, a SAMA analysis, which is [00:39:54] Speaker 06: as I think the panel appreciates not, safety, it's more, it's mitigation, it's complicated algorithms. [00:40:01] Speaker 06: But a very considered judgment was made as at 602 and three of the joint appendix. [00:40:06] Speaker 06: In 1996, the commission looked very hard at all of this and said, once but once is enough. [00:40:12] Speaker 06: Now if there is new and significant information, that has to be looked at underneath, but it doesn't give you a right to a hearing. [00:40:19] Speaker 06: Just like new and significant information for a Category 1 issue doesn't give you a right to a hearing. [00:40:23] Speaker 06: The hearing is not the panacea and the cure-all for everything. [00:40:29] Speaker 06: Agencies certainly have the ability to proceed by rule, and that's what this case is all about. [00:40:34] Speaker 06: And in fact, what this case is all about, I wrote it down as part of what we heard from petitioners here, if what this case is all about [00:40:41] Speaker 06: is rule L, then what they needed to do and should have done and were free to do is say, rule L's wrong, and come in with all those arguments. [00:40:48] Speaker 06: It would have been a decision if rule L was overturned, then they would have been granted. [00:40:53] Speaker 06: They would have been afforded an adjudicatory hearing and all the things they want here. [00:40:58] Speaker 06: Rule L was not that we could be arguing here about the merits of why or why not rule L was appropriate. [00:41:04] Speaker 06: But none of that was chosen. [00:41:05] Speaker 06: And again, it's a scheme that falls comfortably, I would submit, within the discretion that's afforded to the agency to manage that. [00:41:16] Speaker 06: Finally, I guess now, talking about the waiver issues, in a sense, not to be glib, but no good deed goes unpunished here. [00:41:26] Speaker 06: The requirement to seek a waiver has been on the books for decades. [00:41:31] Speaker 06: It is intentionally stringent and hard. [00:41:34] Speaker 06: There's dozens of NRC cases that have applied it. [00:41:36] Speaker 06: The First Circuit both in the 2008 case and the 2013 case have applied it. [00:41:41] Speaker 06: I guess two points to make about that. [00:41:44] Speaker 06: One, the determination about whether or not a waiver here really does involve technical assessments. [00:41:49] Speaker 06: Technical assessments about whether the allegations were truly unique to the site [00:41:56] Speaker 06: or not, and that falls within the area of the highest deference owed to the agency. [00:42:01] Speaker 06: And then secondly, the nature of what was sought for the waiver here was we're looking at new and more up-to-date seminalysis done at other plants. [00:42:12] Speaker 06: That is absolutely what the Commission knew would happen in 1996 when it passed this rule that is being challenged in the wrong way in this appeal. [00:42:20] Speaker 06: They knew there was going to be more on salmon analysis of other plants. [00:42:24] Speaker 06: That's what their complaint is here about limerick. [00:42:26] Speaker 06: There's also salmon analysis that would apply to the other two sites here, the Wise Bar and the Command GP. [00:42:31] Speaker 06: And what the commission said in a very thorough and reasoned decision in 1996 is the utility of those new and better inputs are not going to move the needle. [00:42:42] Speaker 06: And that's not something that we [00:42:44] Speaker 06: should be devoting resources and scarce resources to, we can address this particular set of circumstances by rule once and only once is enough, and that applies to these five units, I guess, three sites. [00:42:57] Speaker 06: And if there's no further questions. [00:42:58] Speaker 03: Yes, I have one question. [00:42:59] Speaker 03: You heard me say in the beginning that there are other types of proceedings the Commission conducts. [00:43:05] Speaker 03: I don't know the technical terms, but there's a safety [00:43:09] Speaker 03: proceeding where it looks whether or not there are things that facilities ought to be doing because of technological changes, other types of concerns, so that the types of issues that ELL prohibits, if I put it that way, would come to the Commission in a different proceeding other than even in rulemaking, and an entity like NRDC could participate in that. [00:43:40] Speaker 06: Well, I'm not sure if I followed all of those steps. [00:43:44] Speaker 06: I think it's important to draw the distinction between the ongoing regulation of the safety of the plan, the operating plan. [00:43:51] Speaker 06: This is not that, emphatically. [00:43:52] Speaker 06: This is not that. [00:43:53] Speaker 03: But that's a separate process in proceeding. [00:43:55] Speaker 06: A whole separate scheme, a whole separate. [00:43:57] Speaker 06: And even when you get into the relicensing, issues become, does the commission look at something that needs to be looked at because it's going to operate for 20 more years? [00:44:06] Speaker 06: Or is this something that we look at every day anyway? [00:44:09] Speaker 06: And that's the safety scheme, and I think it's important to understand, but if you're new to this industry and new to these, it's not always self-apparent because it's called a safety, you know, a SAMA, a safety accident mitigation alternative, but really the safety function of the NRC regulation is [00:44:24] Speaker 06: not implicated here at all. [00:44:25] Speaker 06: This is a very narrow mitigation for incidents that have already been determined the likelihood to be small. [00:44:33] Speaker 06: So if this infinitesimally unlikely event happens, is there something that could be done to mitigate the impact? [00:44:43] Speaker 06: And so I think that's what I was referring to if that's responsible. [00:44:51] Speaker 01: Your Honor, I'd like to start with, Judge Rogers, with your questions about the F2. [00:44:56] Speaker 01: Just to be clear, I think it's very important here. [00:44:58] Speaker 01: The draft SEIS has been issued. [00:45:02] Speaker 01: The final SEIS has been issued. [00:45:03] Speaker 01: The license has been issued. [00:45:05] Speaker 01: All of that has happened as part of the NEPA process. [00:45:07] Speaker 01: When the draft SEIS was issued, we submitted contentions [00:45:11] Speaker 01: Against the draft making the same arguments because we have that concern, you know, could someone later say you were required to do that? [00:45:19] Speaker 01: And this is at three seventy to seventy one. [00:45:21] Speaker 01: The Atomic Safety and Licensing Board said. [00:45:24] Speaker 01: adopting the arguments made by staff and Exelon at that time that we can't submit those contentions because of the Commission's view that these issues are precluded. [00:45:35] Speaker 01: And it's explicitly said in that same order that if this order was issued before the final SEIS, it said if the final SEIS is issued, [00:45:43] Speaker 01: You can't submit contentions against that either on severe accident mitigation unless and until the commission decides that these kind of contentions can go forward. [00:45:50] Speaker 01: So we've availed ourselves of every avenue that we can to try and get these issues. [00:45:54] Speaker 01: And it's also critical for the court to appreciate that unless we're granted party status in the administrative process, we don't get judicial review. [00:46:03] Speaker 01: So under the current scheme as the commission's interpreting it, we will never get the chance to challenge before the commission or before this court [00:46:10] Speaker 01: the adequacy of the information that we submitted to the Commission, and that the Commission directed the staff to include in the final EIS. [00:46:18] Speaker 01: And that also completely distinguishes the Massachusetts case, which was about the Category 1 issue. [00:46:24] Speaker 01: The Commission in that case didn't say, oh, this is interesting information, Massachusetts, you know, we want the staff to consider it. [00:46:29] Speaker 01: They considered it as generic, and they said this is not appropriate to be considered in the Massachusetts relicensing. [00:46:35] Speaker 01: They did the complete opposite here. [00:46:37] Speaker 01: They said these are important issues, staff consider it in the final license. [00:46:41] Speaker 01: There's 20 pages of the final SEIS about the information we submitted and their position is we will never get the opportunity before the Commission or before this Court to demonstrate that it wasn't done in a manner consistent with the National Environmental Policy Act. [00:46:54] Speaker 01: Finally, the Atomic Energy Act has this hearing right, which was designed by Congress to expand the rights of participation by parties. [00:47:02] Speaker 01: And what's happening in this case is that the Commission is using that hearing right as a barrier not only to review before the Commission, but to judicial review. [00:47:10] Speaker 01: And that should just not be permitted. [00:47:12] Speaker 01: The risks of an accident, a severe nuclear accident, these are real risks. [00:47:16] Speaker 01: And mitigating against those accidents can make a real difference in people's lives. [00:47:21] Speaker 01: And the commission should not be permitted to ignore 25 years of developments in severe accident mitigation in relicensing the plan just because it took a look at some mitigation alternatives 25 years ago. [00:47:33] Speaker 01: And that's what this case is about. [00:47:34] Speaker 03: What about my question about other procedures that address [00:47:41] Speaker 03: perhaps some of the concerns that your client has. [00:47:46] Speaker 01: My answer, Your Honor, is that that's the issue that was considered and resolved in UCS-1. [00:47:51] Speaker 01: Because the commission in that case was saying, these are issues that we have other processes to resolve. [00:47:56] Speaker 01: And what the court said in that case was, if it's a material issue to your relicensing decision, there has to be, under the Atomic Energy Act, a hearing opportunity. [00:48:03] Speaker 01: You can't exclude it from that. [00:48:05] Speaker 01: There is no other hearing opportunity that we would have. [00:48:07] Speaker 03: Well, you heard how counsel for the commission [00:48:10] Speaker 03: It's a different kind of regulation at issue there. [00:48:18] Speaker 01: Well, it is a different regulation, of course. [00:48:20] Speaker 01: The facts are always different in different cases. [00:48:23] Speaker 01: The salient fact is that in both cases, the commission acknowledges that it's an issue material to relicensing. [00:48:29] Speaker 01: It was never resolved generically. [00:48:30] Speaker 01: I urge the court to look at all of our citations demonstrating that, contrary to what counsel for Exelon suggested, [00:48:36] Speaker 01: SAMAs were not resolved generically in the generic EIS. [00:48:39] Speaker 01: They are a category two issue. [00:48:42] Speaker 01: They are site-specific issues that need to be considered on a site-specific basis. [00:48:47] Speaker 03: Thank you.