A federal appeals court has ruled that the Blue Ridge Environmental Defense League (BREDL) jumped the gun when it appealed a U.S. Nuclear Regulatory Commission (NRC) order on the license for a never-completed Tennessee Valley Authority (TVA) nuclear plant before the NRC had issued a final decision.
BREDL had petitioned the U.S. Court of Appeals for the District of Columbia Circuit in 2009 seeking to challenge the NRC’s decision “to reinstate the construction permits” for the Bellefonte nuclear plant in Jackson County, Ala.
However, the appeals court concluded in a Feb. 17 opinion that BREDL had not actually appealed a final order by the NRC. “Under the Hobbs Act, this court has jurisdiction to review only ‘final orders’ of the NRC,” according to the appeals court decision.
TVA has been pursuing development of a nuclear plant at the Bellefonte site off-and-on since the 1970s. The latest big development came in August 2011 when the TVA board authorized completion of one nuclear unit at TVA’s Bellefonte site near Scottsboro, Ala.
TVA said that once complete the $4.9-bn Bellefonte project will generate 1,260 MW. Thanks to previous construction work over the years, the plant is about 55% complete and is expected to go into operation by 2020, TVA said.
Bellefonte has a long procedural history. TVA first received its construction permits for two nuclear units in late 1974 from NRC’s predecessor, the Atomic Energy Commission.
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 for the infrastructure built so far.
In 2005, TVA placed the units in “terminated” status. One year later, TVA voluntarily requested that the NRC withdraw the permits. The NRC granted this request, the appeals court noted.
In 2008, TVA asked the NRC to reinstate its withdrawn construction permits. Although neither withdrawal nor reinstatement is specifically addressed in the Atomic Energy Act, NRC granted the request. The reinstatement was addressed in an order published in the Federal Register on March 19, 2009.
The problem with BREDL’s case, however, is that it has repeatedly said in filings and oral arguments that it was not challenging the NRC order published in the Federal Register, the appeals court said. Instead, BREDL said it was challenging 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 Jan. 27, 2009. We disagree,” the appeals court said. After additional staff evaluation, it wasn’t until Feb. 18, 2009, that the commission had the staff draft an order reinstating construction permits.
Oral arguments were made before the appeals court in October 2011. No. 09-1112 Blue Ridge Environmental Defense League versus Nuclear Regulatory Commission and the United States. The Tennessee Valley Authority also intervened in the case.