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Blue Ridge Environmental Defense League v. Nuclear Regulatory Commission and United States of America

February 17, 2012

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE,
PETITIONER
v.
NUCLEAR REGULATORY COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS TENNESSEE VALLEY AUTHORITY, INTERVENOR



On Petitions for Review of Orders of the Nuclear Regulatory Commission

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

Argued October 20, 2011

Before: GARLAND and KAVANAUGH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge

EDWARDS.

In December 1974,

Tennessee Valley Authority ("TVA") received construction permits from the Atomic Energy Commission, the predecessor to the Nuclear Regulatory Commission ("the NRC" or "the Commission"), for the Bellefonte Nuclear Plant, Units 1 and 2 ("the units"). TVA pursued construction under a series of permit extensions through the late 1980s, when, based on its projections of diminished energy demand, it decided to place the units in "deferred status" and establish a maintenance program under the NRC's Policy Statement on Deferred Plants ("the Policy Statement"). See 52 Fed. Reg. 38,077, 38,077-79 (Oct. 14, 1987). Under the Policy Statement, during a deferral period, a permit holder is required to undertake maintenance and preservation activities but may halt actual construction. In 2005, TVA placed the units in "terminated" status under the Policy Statement. One year later, TVA voluntarily requested that the NRC withdraw the permits. The NRC granted this request.

In 2008, TVA asked the NRC to reinstate its withdrawn construction permits. Although neither withdrawal nor reinstatement are specifically addressed in the Atomic Energy Act ("the AEA" or "the Act"), see 42 U.S.C. § 2239 (2006), the NRC granted TVA's reinstatement request in an order issued on March 9, 2009 and published in the Federal Register on March 13, 2009.

On March 30, 2009, the Blue Ridge Environmental Defense League ("BREDL" or "Petitioner") filed a petition with this court, purporting to challenge the NRC's decision to reinstate the construction permits. However, in its Statement of Issues To Be Raised, in its Reply Brief, and during oral argument, BREDL insisted that it was not challenging the NRC order that was published in the Federal Register on March 13, 2009. Rather, BREDL asserted that its March 30, 2009 petition for review challenges only a compilation of "Response Sheets" filed by individual Commissioners in December 2008 and January 2009.

BREDL contends that this compilation of Commissioners' views resulted in a final order on January 27, 2009. We disagree. After the Commissioners' "Response Sheets" were assembled, the matter was referred to the NRC staff for evaluation. However, it was not until February 18, 2009 that the NRC authorized the staff to issue an order on behalf of the agency reinstating the construction permits. That order was published in the Federal Register on March 13, 2009. Therefore, BREDL's petition for review challenging an alleged action of the NRC taken on January 27, 2009 does not seek review of a final NRC order.

On May 8, 2009, BREDL, along with some other parties, petitioned the NRC to intervene in an agency good cause hearing on the Commission's action reinstating the construction permits. The NRC decided to hear BREDL's legal contentions first, before addressing technical contentions primarily regarding the safety of reinstating the construction permits. On January 7, 2010, the NRC issued an opinion rejecting BREDL's legal claims and referring BREDL's remaining claims to the Atomic Safety and Licensing Board ("the ASLB") for disposition. On March 8, 2010, before the ASLB had addressed BREDL's remaining contentions, BREDL filed its second petition for review with this court. This second petition challenges the NRC's January 7, 2010 opinion rejecting BREDL's legal claims.

BREDL contends that the agency's January 7 opinion qualifies as a final agency action that is subject to judicial review. We disagree. It is clear on the record here that the NRC's January 7 opinion was merely an interlocutory action addressing BREDL's legal challenges to the Commission's authority. BREDL had raised numerous other claims that were referred to the ASLB, and those claims remained pending before the NRC when BREDL filed its premature petition for review on March 8, 2010.

Under the Hobbs Act, this court has jurisdiction to review only "final orders" of the NRC. 28 U.S.C. § 2342(4) (2006).

The March 30, 2009 and March 8, 2010 petitions filed by BREDL with this court do not seek review of final NRC orders. Therefore, we lack jurisdiction and must dismiss.

I. Background

A. Facts

The AEA provides the general framework that governs the construction of nuclear power plants. Before a company can build a plant, it must seek a construction permit from the NRC. See 42 U.S.C. § 2235(a). All construction permits must specify the latest date by which construction must be complete, although the NRC can extend deadlines for good cause. Id. All of a permit holder's rights and privileges are "forfeited" when a permit "expire[s]" on the designated completion date. Id. The AEA also authorizes the NRC to revoke a construction permit prior to completion in the event of wrongdoing. See id. § 2236. But the Act does not account for the possibility that a permit holder might voluntarily request that the NRC withdraw a valid construction permit, nor does it address whether the NRC may reinstate a construction permit that has been withdrawn. See id. § 2239.

TVA first applied for construction permits for the units in 1973. See In re Tenn. Valley Auth., 71 N.R.C. 113, 115 (2010), reprinted in Joint App. ("J.A.") 14. The ASLB considered interested citizens' intervention requests, conducted an evidentiary hearing, and issued a favorable decision in December 1974. The permits for the units were set to expire in 1979 and 1980 respectively. See id. at 115-16. But by 1979, TVA realized that it would not be able to complete construction by the deadlines due in part to labor shortages, delivery problems, and the need for new safety features following the Three Mile Island accident. See TVA, Bellefonte Nuclear Plant, Units 1 and 2; Order Extending Construction Completion Dates, 44 Fed. Reg. 76,893, 76,893 (Dec. 28, 1979). TVA thus requested, and the NRC granted, an extension of the permit deadlines. See id. But TVA found that it could not complete construction by the new deadlines, and it again submitted timely extension requests, which the NRC granted. See TVA, Bellefonte Nuclear Plant, Units 1 and 2; Order Extending Construction Completion Dates, 52 Fed. Reg. 25,676, 25,676 (July 8, 1987).

Soon after the 1987 extension, TVA decided to defer construction of the plants under the Commission's Policy Statement. In re Tenn. Valley Auth., 71 N.R.C. at 116. At the time of deferral, Units 1 and 2 were approximately ninety and sixty percent complete, respectively. Id. Under the Policy Statement, a permit holder may resume construction of a plant only after providing at least an 120-day notice to the NRC and receiving the NRC's approval that the plant's systems, structures, and components are acceptable. See 52 Fed. Reg. at 38,079. TVA provided notice of its intent to resume construction in 1993 and requested deadline extensions for its permits. In re Tenn. Valley Auth., 71 N.R.C. at 116-17. The NRC granted this request, extending Unit 1's deadline into 2001 and Unit 2's deadline into 2004. See In the Matters of TVA (Bellefonte Nuclear Plant, Units 1 and 2), 59 Fed. Reg. 34,874, 34,874-75 (July 7, 1994). Shortly thereafter, TVA decided that the units could not be completed without additional financial support, and it suspended further construction pending completion of a comprehensive evaluation of its power needs.

Although the units were in deferred status, TVA requested further extensions in 2001. See In re Tenn. Valley Auth., 71 N.R.C. at 117. NRC approved this request in March 2003, extending the permits for Units 1 and 2 into 2011 and 2014, respectively. See In the Matters of TVA (Bellefonte Nuclear Plant, Units 1 and 2); Order, 68 Fed. Reg. 11,415, 11,415-16 (Mar. 10, 2003). As completion continued to be delayed, however, TVA placed the units in terminated status, concluding that they could not be justified economically. See In re Tenn. Valley Auth., 71 N.R.C. at 117. TVA's board of directors voted to cancel construction, and, in 2006, TVA formally requested that the NRC withdraw the permits. The Commission granted TVA's request by letter that same year. See id.

TVA recounts that, in 2008, a number of factors - the estimated cost per kilowatt of installed capacity among generation alternatives, the number of worldwide suppliers capable of providing necessary reactor components, and the number of entities expressing interest in developing new nuclear generation capacity - augured in favor of completing construction of the units. In light of these changed circumstances, TVA requested by letter that the NRC reinstate the permits and return the plants to "deferred" status, such that TVA could resume preservation and maintenance activities to prepare the plants for construction. See id. at 117-18.

B. Procedural History

Because this court's jurisdiction under the Hobbs Act turns on the finality of the challenged agency actions, we offer a somewhat detailed description of both the internal procedures followed by the NRC with respect to TVA's reinstatement request and BREDL's petitions for review.

In a "tasking memorandum" issued on October 30, 2008, the NRC Chairman directed the NRC staff to provide its views and recommendations on TVA's reinstatement request. See Memorandum from R. W. Borchardt, Exec. Dir. for Operations, to Chairman Klein, Commissioner Jaczko, Commissioner Lyons, and Commission Svinicki 1 (Dec. 12, 2008) ("Borchardt Memo"), reprinted in J.A. 92 (describing staff's responsibilities under Chairman's tasking memo). The staff submitted its response on December 12, 2008, asking for authorization from the Commissioners "for the recommendation to go forward with the review and action on [TVA's] request." Id. The staff's memorandum states:

If the Commission agrees with the staff's recommendation, the staff will evaluate TVA's request for reinstatement to determine whether it is supported by good cause, considering the totality of the circumstances. If the staff finds the request acceptable, it will prepare an order granting the request, ...


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