D.C. Circuit rejects Blue Ridge challenge to Vogtle construction

A federal appeals court has upheld the U.S. Nuclear Regulatory Commission (NRC) issuance of a combined construction and operating license (COL) for Vogtle Units 3 and 4 in Waynesboro, Ga.

In addition, the U.S. Court of Appeals for the District of Columbia Circuit also rejected a challenge to NRC approval for an amendment to Westinghouse Electric’s already-approved AP1000 reactor design on which the Vogtle application relied.

In its May 14 ruling, the D.C. Circuit rejected a legal challenge brought by the Blue Ridge Environmental Defense League and other petitioners. The two Vogtle units were the first new nuclear reactors approved by NRC in more than 30 years. The units are being constructed by an ownership group led by Southern (NYSE:SO) subsidiary Georgia Power.

Foes sought to reopen NRC case post-Fukushima

The administrative record on the combined license proceedings had already closed in March 2011 when a massive earthquake and tsunami resulted in a major nuclear accident at Tokyo Electric Power’s Fukushima Dai-ichi complex in Japan.

In the wake of the Fukushima accident, NRC commissioned a task force to reevaluate nuclear safety regulations in the United States. Petitioners unsuccessfully sought to forestall the licensing of the Vogtle reactors and the approval of the modified AP1000 design until NRC had fully considered and implemented the Task Force recommendations.

NRC ruled that Petitioners’ challenges were premature, that the agency’s existing procedural mechanisms were sufficient to ensure licensees’ compliance with not-yet-enacted regulatory safeguards and that the licensing and rulemaking proceedings could continue without delay.

The NRC also held that Blue Ridge and the other foes failed to identify any environmentally significant information from the task force recommendations that would suggest a deficiency in the Vogtle environmental impact statement (EIS).

In the case before the appeals court, Blue Ridge and the other groups claim NRC abused its discretion in refusing to reopen the Vogtle hearing record. Second, petitioners asserted that NRC unreasonably denied them a right to participate in a mandatory hearing at which NRC technical staff confirmed that the Fukushima accident had not presented new and significant information that would require a supplemental EIS for Vogtle.

Finally, petitioners argued that NRC abused its discretion in approving the AP1000 reactor design without first supplementing the AP1000 Environmental Assessment (“EA”) that contained important information regarding “Severe Accident Mitigation Design Alternatives” applicable to Vogtle.

“Because we find no merit in any of these contentions, we deny the petitions for review,” the appeals court said in a 30-page opinion.

“In this case, NRC’s original EIS for Vogtle considered precisely the types of harm that occurred as a result of the Fukushima accident,” the court said in the opinion. “The EIS considered consequences and mitigation of severe accidents involving reactor core damage and the release of fission products,” the court said.

The NRC concluded that risks associated with the AP1000 reactors at the Vogtle site would be small compared to risks associated with operation of current-generation reactors – like the two already operating at the Vogtle station, the court noted.

The appeals court did note that then NRC Chairman Greg Jaczko opposed issuance of the combined license for the new Vogtle units.

“Chairman Jaczko, the lone dissenter from the issuance of the Vogtle licenses, objected because he sought greater assurances that the Vogtle reactors would remain in compliance with future safety regulations. The Chairman did not contend that his concerns about safety standards created present environmental concerns; and he did not claim that there were any present shortcomings at the Vogtle site or any need for additional NEPA review,” the court said in the opinion.

Oral arguments in the case had been held in November 2012. The opinion for the three-judge panel was drafted by Senior Circuit Judge Harry Edwards. There were no dissents.

Vogtle Units 3 and 4 represent a $14bn capital investment. They are scheduled to be placed into service in 2017 and 2018 respectively.

Blue Ridge Environmental Defense League versus Nuclear Regulatory Commission: No. 12-1106, Consolidated with 12-1151.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.