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

By Burke, Andrew J. | Suffolk University Law Review, November 2012 | Go to article overview

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


Burke, Andrew J., Suffolk University Law Review


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. …

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