Energy & environmental law - Nuclear Regulatory Commission authorizes inaugural combined licenses for construction and operation of two commercial nuclear power plants - In re Southern Nuclear Operating Company.

Author:Burke, Andrew J.
Position:CASE COMMENT

Energy & Environmental Law--Nuclear Regulatory Commission Authorizes Inaugural Combined Licenses for Construction and Operation of Two Commercial Nuclear Power Plants--In re Southern Nuclear Operating Company, Nos. 52-025-COL, 52-026-COL, 2012 WL 440403 (N.R.C. Feb. 9, 2012)

On February 9, 2012, the United States Nuclear Regulatory Commission (NRC) brought an end to the atomic power industry's thirty-four-year construction hiatus when it green-lighted the licensing of two state-of-the-art nuclear reactors in eastern Georgia. (1) In In re Southern Nuclear Operating Co. (2) [hereinafter Vogtle 3 & 4], the NRC considered whether Southern Nuclear Operating Company's (SNC) application for two combined construction and operating licenses satisfied the applicable licensing standards set forth in the Atomic Energy Act of 1954 (AEA), the National Environmental Policy Act of 1969 (NEPA), and the agency's own rules and regulations. (3) By a 4-1 margin, with Chairman Gregory Jaczko as the lone dissenter, the Commission concluded that SNC fulfilled all statutory and regulatory prerequisites for full licensure and authorized the construction and operation of the third and fourth units (Units 3 and 4) at the company's existing Vogtle Electric Generating Plant site. (4)

Following two years of preliminary proceedings, on March 31, 2008, SNC formally submitted its license application for Units 3 and 4. (5) In accordance with statutory and regulatory guidelines, SNC's application included, among other things, general information relating to the proposed plant design, as well as the company's financial viability and antitrust status. (6) The most voluminous and highly scrutinized portion of the company's application, however, was its final safety analysis report (FSAR)--an 828-page document describing at length the design basis, security plan, organizational structure, and all other radiological, environmental, and technical aspects of the proposed units. (7) After accepting it for docketing, the NRC Staff (Staff) commenced an exhaustive review of SNC's application, including a comprehensive FSAR evaluation and environmental-impacts analysis. (8) The Staff's efforts culminated in the August 2011 publication of its Final Safety Evaluation Report for Combined Licenses for Vogtle Electric Generating Plant, Units 3 and 4--a highly detailed, safety-oriented assessment communicating to the public and five NRC Commissioners (Commission) the Staff's official approval of SNC's license application. (9)

Throughout the entire three-year application review and beyond, SNC and the Staff faced multiple legal challenges to both the sufficiency and content of the application and the adequacy of the Staffs final safety evaluation. (10) On November 17, 2008, in response to publication in the Federal Register of SNC's pending application review, five nonprofit organizations (Joint Intervenors) petitioned to intervene as parties seeking to contest the combined license (COL) application for Units 3 and 4. (11) In granting the petition, the Commission established a panel of the Atomic Safety and Licensing Board (Board), giving it jurisdiction to preside over the now-contested portion of the application proceeding. (12) Joint Intervenors immediately filed three contentions alleging that the FSAR for Units 3 and 4 omitted critical safety information. (13) Over the ensuing eighteen months, the Board heard oral arguments, allowed limited discovery, accepted written submissions, and entertained two additional safety-related contentions. (14) After dismissing two of the three original contentions for failure to state a claim, on May 19, 2010, the Board granted SNC's motion for summary disposition and dismissed as overly broad the Joint Intervenors' sole remaining contention. (15)

The Board's dispositive ruling was supposed to have ended Vogtle 3 & 4's contested portion and allowed the proceeding to move towards its final phase--an uncontested hearing before the Commission itself. (16) Over the subsequent twelve months, however, the Commission twice re-established Board panels to adjudicate additional petitions to reopen Vogtle 3 & 4's evidentiary record. (17) While the Board expeditiously dismissed the first petition, on March 11, 2011, a magnitude-9.0 earthquake and consequent 46-foot tsunami, which devastated northeast Japan and demolished the Fukushima Daiichi reactor complex, thrust the nuclear industry directly into the crosshairs of a panicked and untrusting public. (18) Thereafter, amid the growing antinuclear hype, several organizations sought to reinitiate Vogtle 3 & 4's adjudicatory hearings and force the Staff to conduct another environmental assessment based on possible lessons learned from the catastrophe. (19) The Board took a different approach, however, dismissing such measures as "premature" and concluding that current NRC practices provided reasonable assurances to the public that U.S. plants would not suffer a similar fate. (20) The Board's dismissal ultimately paved the way for the Commission to authorize--for the first time in more than a generation--the licensing of a commercial nuclear power plant to be built and operated on U.S. soil. (21)

Standing before the United Nations General Assembly in December 1953, President Dwight Eisenhower asked, "[w]ho can doubt, if the entire body of the world's scientists and engineers had adequate amounts of fissionable material with which to test and develop their ideas, that this [nuclear] capability would rapidly be transformed into universal, efficient and economic usage?" (22) Delivered at the dawn of the atomic age, Eisenhower's now-famous "Atoms for Peace" speech addressed a cautiously optimistic international community that, having witnessed firsthand the unimaginable destructiveness of nuclear weaponry, was determined to realize the atom's full potential for peaceful creativity and innovation. (23) While the U.S. government had monopolized all nuclear research and development since the end of World War II, (24) within months of "Atoms for Peace," Congress enacted the AEA, declaring that atomic energy would thenceforth be developed "to promote world peace, improve the general welfare, increase the standard of living, and strengthen free competition in private enterprise." (25) To effectuate the AEA's declaration, Congress lifted several restrictions on obtaining classified data and granted broad discretionary authority to the Atomic Energy Commission (AEC), the overseer of nuclear stockpiles since 1946. (26) Unfortunately, though its ostensible mission was to cultivate atomic enterprise, the AEC's wide-ranging roles and predilection towards the military's nuclear needs fostered a perception of regulatory corner cutting, which gradually led to the agency's downfall and jeopardized the continuing viability of President Eisenhower's vision for privatized nuclear development. (27)

While intense industrial competition and favorable market forces throughout the 1960s motivated the once-timid business community to flock to nuclear power, rather than bolstering the AEC's image, private industry's surging interest in nuclear power ironically hastened the agency's demise. (28) As the AEC's backlog of construction permit requests ballooned, regulatory standards correspondingly deflated, and an increasingly vocal citizenry began questioning AEC's efficacy in safeguarding public health. (29) The AEC's troubles peaked during the mid-1970s, when a perfect storm of publicly perceived ineptitude, burgeoning antinuclear sentiments, and the energy crisis of 1973-1974 forced Congress to divide the embattled AEC into two separate agencies: the United States Energy Research and Development Administration, and the NRC. (30) Under the Energy Reorganization Act of 1974, the NRC's authority was similar to the AEC's, but important changes to the NRC's regulatory structure differed from its predecessor's in ways Congress hoped would boost the new agency's political legitimacy. (31) Congress, however, could not legislatively enhance the NRC's pretarnished ancestral image, and despite an increased focus on reactor safety, for decades the agency's rebounding efforts stood significantly in arrears. (32) Indeed, within eleven years, three nuclear accidents of increasing severity--the 1975 Browns Ferry fire, Three Mile Island's (TMI) partial meltdown in 1979, and the catastrophic 1986 explosion of the Chernobyl reactor in the former Soviet Union--dramatically eroded support for nuclear energy and further undercut the NRC's already fragile institutional legitimacy. (33)

While grappling with the Browns Ferry, TMI, and Chernobyl disasters, a growing backlog of new construction requests also forced the NRC to deal with an increasingly disenfranchised and frustrated industry. (34) The convoluted and oft-criticized "two-step" application procedure became such a disincentive to utilities that, by the time the NRC modernized its licensing regulations, many potential builders had shelved or altogether abandoned plans to expand their nuclear portfolios. (35) But the NRC was determined to address the problem head-on and, by the late-1980s, the agency adopted several regulations designed to streamline, stabilize, and restore confidence in its application- review process. (36) Now codified at 10 C.F.R. Part 52 (Part 52), the new rules and procedures allow the NRC to issue "combined licenses," under which licensees are authorized both to build and to operate either precertified or fully customized plants. (37) Part 52 also allows COL applicants to satisfy NEPA by obtaining an "early site permit" (ESP) that, after a thorough preapplication environmental assessment, is virtually uncontestable and can easily be incorporated by reference into COL applications. (38) Since adopting Part 52 in 1989, the NRC has persistently sought to improve the flow of COL proceedings, and, as Congress and the courts have continued to uphold and...

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