Nuclear Information Resource Service v. Nuclear Regulatory Commission

969 F.2d 1169, 297 U.S. App. D.C. 169
Court of Appeals for the D.C. Circuit·Decided July 17, 1992·No. No. 89-1381·Published·Cited by 4 cases

Opinions

Opinion for the Court filed by Circuit Judge SENTELLE.

Dissenting opinion on the denial of a preoperational hearing on new safety information filed by Circuit Judge WALD, with whom Chief Judge MIKVA and Circuit Judge HARRY T. EDWARDS join.

Opinion concurring in part and dissenting in part filed by Circuit Judge BUCKLEY.

SENTELLE, Circuit Judge:

We today review en banc a Nuclear Regulatory Commission (“NRC” or “Commission”) rule aimed at substantially revamping the licensing process for nuclear power plants. 10 C.F.R. Part 52. This matter was previously heard by a panel of this Court in Nuclear Information and Resource Service v. United States NRC, 918 F.2d 189 (D.C.Cir.1990) (“NIRS ”).

The panel concluded that the Commission’s decision in Part 52 to authorize issuance of a single, “combined license” in lieu of separate construction and operating permits was acceptable under the Atomic Energy Act (“Act” or “AEA”). It likewise upheld the Commission’s reliance on a preapproval process for assessing reactor designs and sites. The panel did, however, declare facially invalid Part 52’s regulations regarding the Commission’s duties in making findings and holding hearings after construction is completed and before operation begins.

After rehearing, we continue to affirm the Commission’s combined license procedures and its reliance on the pre-approval process; however, we now also hold that the post-construction procedures embodied in Part 52 are based on a permissible reading of the AEA.1

I.

Before conducting the rulemaking now before us, the NRC licensed nuclear reactors in two regulatory steps. See 10 C.F.R. Part 50. At the first step, the Commission was required to find the proposed site and preliminary design plans acceptable, and conduct a public hearing on these matters; thereafter, the Commission issued a construction permit. Upon completion of construction, the licensee then sought an operating license, which could be granted only after the Commission approved the reactor’s final design, made several other findings, and conducted another public hearing.

Because Part 50 allowed the NRC to issue a construction permit on incomplete design information, it often became necessary for the Commission to impose new regulatory requirements as construction continued and plans changed. A “design-as-you-go” approach on the part of licensees was mirrored by a “regulate-as-you-go” tack on the part of the Commission. The result of this regimen was, as the [171]*171Office of Technology Assessment has stated, that

[essentially every reactor ... has been custom-designed and custom-built. The fact that almost every reactor is “one of a kind” has led to excessive difficulty in verifying the safety of individual plants and identifying particular problems in transferring the safety lessons from one reactor to another.

Congress of the United States, Office of Technology Assessment, Nuclear Power Plant Standardization at 3 (1981).

After a number of unsuccessful attempts to persuade Congress to restructure the licensing process through new legislation, in 1987 the Commission moved to reform reactor licensing regulations under existing legislation. It did so with two announced objectives: to standardize nuclear power plant design, and to establish a procedural framework for resolving with some finality as many safety and environmental issues as possible before — rather than after — construction begins. See 52 Fed.Reg. 34,884 (1987). In 1989, the Commission announced its final product, known collectively as Part 52. 54 Fed.Reg. 15,372 (1989) (codified at 10 C.F.R. Part 52).

Pre-Approval of Designs and Sites. One major feature of Part 52 is the NRC’s new regulatory scheme for pre-approval of standardized power plant designs by rule-making. 10 C.F.R. Part 52, Subpart B. Under Subpart B, an applicant files with the Commission a proposed design; if, after a period of notice and comment and a possible hearing, the Commission concludes that the design is safe, it issues a design certification. 10 C.F.R. §§ 52.41-.63. This certification remains effective for 15 years, and is renewable in successive rulemakings. 10 C.F.R. §§ 52.57-61. Thus, the procedure allows applicants to register a “generic” design with the Commission that may be utilized any number of times during the life of the certification.

Related to the pre-approval process for plant designs is one for the early determination of plant sites. 10 C.F.R. Part 52, Subpart A. Under the “early site permit” process, the Commission may, after conducting a hearing and making necessary findings, approve a site permit. 10 C.F.R. §§ 52.11-.39. While a site permit does not authorize construction, it does establish design criteria for plant construction on the proposed site. Moreover, it retains validity for up to 20 years, though the NRC may extend this period after another examination. 10 C.F.R. §§ 52.29-33.

Combined Licenses. Part 52 also establishes a process by which an applicant may obtain a “combined license.” 10 C.F.R. Part 52, Subpart C. A combined license constitutes not only a construction permit, but also a conditional operating permit. Issued before construction, it forms the centerpiece of the Commission’s effort to resolve as many issues as possible as early in the licensing process as possible. See 54 Fed.Reg. at 15,373-74 (1989).

The Commission requires an applicant for a combined license under Part 52 to provide a much higher level of detail concerning the final design of the facility than was needed for a construction permit under Part 50. Before issuing the new combined license, the Commission must find that the proposed final design complies with the Act and NRC regulations; it must also hold a hearing on all related issues. 10 C.F.R. §§ 52.79, 52.85, 52.97. If, however, a combined license application references a preapproved design, issues regarding design will be deemed resolved; the Commission will conduct no new findings regarding the design and the required hearing will not encompass issues heard at the design certification stage. Id.

Even if referencing a pre-approved design, the applicant must still show at this stage that the certified design can be successfully linked to site-specific design elements.

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Nuclear Information Resource Service v. Nuclear Regulatory Commission, 969 F.2d 1169, 297 U.S. App. D.C. 169 (D.C. Cir. 1992).

969 F.2d 1169 (Nuclear Information Resource Service v. Nuclear Regulatory Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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