United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2012 Decided May 14, 2013

No. 12-1106

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, ET AL.,

PETITIONERS

v.

NUCLEAR REGULATORY COMMISSION AND THE UNITED 

STATES OF AMERICA,

RESPONDENTS

WESTINGHOUSE ELECTRIC COMPANY LLC,

INTERVENORS

Consolidated with 12-1151

On Petition for Review of Orders of the 

United States Nuclear Regulatory Commission

Diane Curran argued the cause for petitioners. With her 

on the briefs were Mindy Goldstein and John Runkle.

Robert M. Rader, Senior Attorney, U.S. Nuclear 

Regulatory Commission, argued the cause for respondents. 

With him on the brief were J. David Gunter II, Trial Attorney, 

U.S. Department of Justice, John F. Cordes, Jr., Solicitor, 
2

U.S. Nuclear Regulatory Commission, and Jeremy M. 

Suttenberg, Attorney. 

Randall L. Speck, David L. Cousineau, M. Stanford 

Blanton, Millicent W. Ronnlund, and Kathryn M. Sutton were 

on the brief for intervenors Westinghouse Electric Company 

LLC, et al., in support of respondents. 

Before: BROWN, Circuit Judge, and EDWARDS and 

SILBERMAN, Senior Circuit Judges.

EDWARDS, Senior Circuit Judge: This case arises from 

actions taken by the Nuclear Regulatory Commission (“NRC”

or “Commission”) approving (1) an application by Southern 

Nuclear Operating Company (“Southern”) for combined 

licenses to construct and operate new Units 3 and 4 of the 

Vogtle Nuclear Power Plant and (2) an application by

Westinghouse Electric Company (“Westinghouse”) for an 

amendment to its already-approved AP1000 reactor design on 

which the Vogtle application relied. In approving the 

applications, NRC applied the regulatory scheme incorporated 

in 10 C.F.R. Part 52 covering the licensing of commercial 

nuclear power reactors. See Nuclear Info. Res. Serv. v. NRC, 

969 F.2d 1169, 1170 (D.C. Cir. 1992) (en banc) (upholding 

two-part regulatory scheme in 10 C.F.R. Part 52).

In 2009, after a contested evidentiary hearing in which 

Petitioners participated, NRC granted Southern an early site 

permit for Vogtle Units 3 and 4. In 2008, Southern applied for 

combined licenses. A second contested proceeding was held 

in which Petitioners participated. The application for the early 

site permit was supported by an Environmental Impact 

Statement (“EIS”); the application for combined licenses was 

supported by the initial EIS and an updated EIS. After the 

close of the combined-license hearing record, Petitioners 

sought to reopen the hearing to litigate contentions relating to

the nuclear accident at the Fukushima Dai-ichi complex in 
3

Japan on March 11, 2011. 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. 

After the Task Force recommendations were issued and 

approved by NRC, Petitioners pursued various actions to 

compel the agency to supplement its EIS and to delay any 

action on the combined license and AP1000 design 

rulemaking proceedings until after the agency had 

implemented the Task Force recommendations. Petitioners 

contended, inter alia, that Vogtle’s EIS violated the National 

Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-

4347, because it did not address allegedly new and significant 

environmental implications of the Task Force’s 

recommendations after Fukushima. 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. NRC further held that 

Petitioners had failed to satisfy the contention-specificity 

requirements of 10 C.F.R. § 2.309(f)(1), which state that the 

proponents of contentions must indicate with specificity the 

claims they wish to litigate. See Union of Concerned 

Scientists v. NRC, 920 F.2d 50, 51-52 (D.C. Cir. 1990). NRC 

also held that Petitioners had failed to identify any 

environmentally significant information from the Task Force 

recommendations suggesting a deficiency in the Vogtle EIS. 

NRC thus declined to reopen the combined-license hearing 

record under 10 C.F.R. § 2.326.
4

In late 2011, NRC issued its rule approving the AP1000 

amended design, and in 2012 it authorized issuance of the 

combined licenses. Petitioners then filed the petitions for 

review giving rise to this action. Petitioners raise three 

principal contentions for consideration by the court. First, 

Petitioners claim that NRC abused its discretion in refusing to 

reopen the hearing record in the Vogtle licensing proceeding. 

Second, Petitioners assert 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 

argue 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.

I. REGULATORY BACKGROUND

A. Reactor Design Certification

Under 10 C.F.R. Part 52, Subpart B, a party may request

a “standard design certification” for the approval of a nuclear 

power plant design. See 10 C.F.R. § 52.41. Once a design is 

certified through this generic process, a future applicant may 

rely on the already-approved design. See id. § 52.43(a). 

Design certification by NRC requires notice-and-comment 

rulemaking and culminates in publication in the Federal 

Register as a “design certification rule.” See id. § 52.54.

When a proposed design certification rule is published, 

NRC’s associated EA is published for comment at the same 
5

time. See id. § 51.31(b)(1). Because a reactor design is 

certified without reference to any specific plans for its 

construction, NRC has determined by rule that every 

proposed design certification or amendment requires only an 

EA, not a more comprehensive EIS. See id. §§ 51.31(b)(1)(i), 

51.32(b)(1)-(2). 

The EA for a design certification addresses only one 

topic: the costs and benefits of any Severe Accident 

Mitigation Design Alternatives that were considered and not 

incorporated into the final design. See id. § 51.30(d). When a 

proposal is made to modify an approved design certification 

rule, the amendment may rely on the EA generated for the 

original design certification rule and need only consider (1) 

whether the proposed design change renders any previously

rejected design alternatives cost-beneficial and (2) whether 

the design change results in the identification of any new 

design alternatives that necessitate a previously unperformed 

cost-benefit analysis. See id. § 51.30(d). In other words, 

modifications to the original EA are necessary only if the 

proposed design change amendment alters the cost-benefit 

calculus concerning any Severe Accident Mitigation Design 

Alternatives.

B. Combined Operating Licenses

The Atomic Energy Act authorizes NRC to issue a 

combined operating license for both the construction and 

operation of new reactors after a public hearing. See 42 

U.S.C. § 2235(b). Any such license must be accompanied by 

a full EIS, 10 C.F.R. §§ 51.75, 51.92(b), (d), (e), and may rely 

on and incorporate by reference an approved standard design 

certification, id. § 51.75(c)(2).

NRC must afford interested parties an opportunity to 

participate in a contested hearing subject to additional 

procedural requirements. See 42 U.S.C. § 2239(a). However, 
6

in order to initiate such a contested hearing, NRC regulations 

require that interested parties submit contentions that are

supported by “sufficient information to show that a genuine 

dispute exists with the applicant/licensee on a material issue 

of law or fact.” 10 C.F.R. § 2.309(f)(1)(vi). In addition, 

interested parties “must set forth with particularity the 

contentions sought to be raised” and must:

(ii) Provide a brief explanation of the basis for the 

contention;

* * *

(v) Provide a concise statement of the alleged facts or 

expert opinions which support the requestor’s/petitioner’s 

position on the issue and on which the petitioner intends to 

rely . . . together with references to the specific sources and 

documents [at issue]; [and]

* * *

(vii) In a [combined license] proceeding . . . the 

information must be sufficient, and include supporting 

information showing, prima facie, that one or more of the 

acceptance criteria in the combined license have not been

met . . . .

Id. § 2.309(f)(1)(ii), (v), (vii). When interested parties are 

allowed to intervene, “[t]he scope of the Intervenors’

participation in adjudications is limited to their admitted 

contentions, i.e., they are barred from participating in the 

uncontested portion of the hearing.” Exelon Generation Co., 

LLC, 62 N.R.C. 5, 49 (2005).

NRC also holds a separate “mandatory” hearing before 

issuing a combined license. See 42 U.S.C. §§ 2235(b), 

2239(a); see also Exelon Generation, 62 N.R.C. at 49-50. The 

mandatory hearing does not address contentions raised by the 

parties, and participation is limited to the applicant and NRC 

staff. See Exelon Generation, 62 N.R.C. at 49-50. The 
7

mandatory NRC hearing determines the adequacy of the NRC

staff’s review of the application.

Separate regulations govern when NRC must reopen a 

closed hearing. See 10 C.F.R. § 2.326(a). In their briefs to this 

court, the parties focused on NRC’s application of its 

contention-admissibility standards, not on whether the agency 

erred in declining to reopen the combined-license hearing 

record. Because we find that NRC properly denied 

Petitioners’ contentions, and because the standards for 

reopening a closed proceeding are higher than those for 

admitting a new contention, see Luminant Generation Co.,

LLC, CLI-12-07, slip op. at 14 n.47 (Mar. 16, 2012), we need 

not reach the application of NRC’s reopening regulations.

C. Environmental Requirements

NEPA mandates that a federal agency take a “hard look”

at any major undertaking by assembling an EIS. This

ensures that the agency, in reaching its decision, will have 

available, and will carefully consider, detailed information

concerning significant environmental impacts; it also 

guarantees that the relevant information will be made available 

to the larger audience that may also play a role in both the 

decisionmaking process and the implementation of that 

decision.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 

349 (1989). The EIS must address all reasonably foreseeable 

environmental impacts, including reactor accidents, even if 

the probability of such an occurrence is low. See 40 C.F.R. 

§ 1502.22(b).

As a major federal action, NRC’s issuance of a combined 

operating license requires an EIS. See 10 C.F.R. § 51.20(b).

NRC regulations require preparation of an EIS both at the 

early site permit stage and at the combined operating license 

stage. See 10 C.F.R. § 51.75(b) (requiring EIS for early site 
8

permit); id. § 51.75(c)(1) (requiring supplementation for 

combined operating license).

Once NRC has prepared an EIS, it must continue to 

evaluate the environmental consequences of the project and 

supplement the EIS, as necessary, even after initial approval. 

See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 370-78

(1989). This ongoing duty is mitigated, however, by a “rule of 

reason,” which excuses the agency from supplementing an 

environmental report based only on “remote and highly 

speculative consequences.” Deukmejian v. NRC, 751 F.2d 

1287, 1300 (D.C. Cir. 1984) reh’g granted and opinion 

vacated on other grounds sub nom. San Luis Obispo Mothers 

for Peace v. NRC, 760 F.2d 1320 (D.C. Cir. 1985) and on 

reh’g sub nom. San Luis Obispo Mothers for Peace v. NRC, 

789 F.2d 26 (D.C. Cir. 1986).

The EIS must be submitted for public comment. See 

TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 

F.3d 852, 861 (D.C. Cir. 2006); 40 C.F.R. § 1502.9. Although 

Petitioners contend that similar public comment is mandatory 

for all EAs, we have held that “the agency has significant 

discretion in determining when public comment is required 

with respect to EAs.” TOMAC, 433 F.3d at 861.

D. Fukushima Accident and NRC Fukushima Task

Force

On March 21, 2011, a catastrophic accident occurred at 

the Fukushima Dai-ichi Nuclear Power Station in Honshu, 

Japan. See U.S. NUCLEAR REGULATORY COMM’N,

RECOMMENDATIONS FOR ENHANCING REACTOR SAFETY IN 

THE 21ST CENTURY: THE NEAR-TERM TASK FORCE REVIEW OF 

INSIGHTS FROM THE FUKUSHIMA DAI-ICHI ACCIDENT 7 (July 

12, 2011) (“Task Force Report”). NRC appointed a Task 

Force to study the regulatory implications of the accident for 

the United States. The Task Force was charged to 
9

conduct a systematic and methodical review of U.S. 

Nuclear Regulatory Commission processes and 

regulations to determine whether the agency should make 

additional improvements to its regulatory system and to 

make recommendations to the Commission for its policy 

direction, in light of the accident at the Fukushima Daiichi Nuclear Power Plant.

Id. at vii. The Commission asked the Task Force to identify 

“potential or preliminary near term/immediate operational or 

regulatory issues” related to natural disasters, severe accident 

mitigation, and emergency preparedness, and to propose other 

improvements in light of the Fukushima accident. Union Elec. 

Co., CLI-11-05, 74 N.R.C. 141, 147 (2011); see also Task 

Force Report at viii.

NRC’s Fukushima Task Force issued its report in July 

2011, concluding that NRC’s “current regulatory approach, 

and more importantly, the resultant plant capabilities”

demonstrate “that a sequence of events like the Fukushima 

accident is unlikely to occur in the United States and some 

appropriate mitigation measures have been implemented, 

reducing the likelihood of core damage and radiological 

releases.” Task Force Report at vii. The Task Force supported 

completing work on the then-pending AP1000 design 

certification rulemaking “without delay” and noted that “all of 

the current early site permits [e.g., Vogtle Units 3 and 4] 

already meet the requirements” of the Task Force Report 

recommendation governing seismic and flooding analysis. Id.

at 71-72. In sum, the Task Force Report recommended that 

both the AP1000 rulemaking and the Vogtle license 

application proceedings continue without interruption.

The Task Force offered twelve recommendations which, 

“taken together are intended to clarify and strengthen the 

[NRC’s] regulatory framework.” See id. at viii. The Task 

Force grouped these recommendations into five categories: 
10

“Clarifying the Regulatory Framework,” “Ensuring 

Protection,” “Enhancing Mitigation,” “Strengthening 

Emergency Preparedness,” and “Improving the Efficiency of 

NRC Programs.” Id. at ix.

NRC approved the Task Force’s recommendations and 

urged implementation by 2016. In March 2012, NRC

implemented two Task Force recommendations, one 

concerning licensees’ abilities to protect spent fuel rods in 

unpredictably dangerous conditions and the other proposing 

development of a new rule to upgrade “station blackout”

requirements for power failures both within and outside a 

plant. 

II. FACTUAL BACKGROUND

A. AP1000 Design Certification

NRC first issued a design certification rule approving 

Westinghouse’s AP1000 design in 2006. Along with this 

design certification rule, NRC prepared an EA that analyzed 

sixteen Severe Accident Mitigation Design Alternatives and 

rejected all sixteen on cost-benefit grounds. See

Environmental Assessment by the U.S. Nuclear Regulatory 

Commission Relating to the Certification of the AP1000 

Standard Plant Design, Docket No. 52-006 (2006), reprinted 

in J.A. 866-902.

Westinghouse subsequently applied for an amendment to 

the approved AP1000 reactor design. NRC received and 

considered over 200 public comments, most of which urged 

delaying resolution of the AP1000 design amendment 

proceeding until the lessons learned from the Fukushima 

accident were applied to NRC regulations. See AP1000 

Design Certification Amendment, 76 Fed. Reg. 82,079-01, 
11

82,079-81 (Dec. 30, 2011) (outlining history of AP1000 

design certification rule).

On December 30, 2011, after considering these 

comments, NRC declined to suspend or delay the design 

certification rulemaking proceeding, emphasizing that the 

AP1000 design was already compliant with many of the Task 

Force recommendations. See id. NRC concluded that no 

Severe Accident Mitigation Design Alternatives were costbeneficial and that no supplemental EA was necessary. See

Environmental Assessment by the U.S. Nuclear Regulatory 

Commission Relating to Certification of the Amendment to 

the AP1000 Standard Plant Design, Docket No. 52-006, 5-6 

(Dec. 22, 2011), reprinted in J.A. 224-25.

NRC certified the AP1000 design and stressed the 

ongoing nature of Commission review of designs, stating that:

even if the Commission concludes at a later time that some 

additional action is needed for the AP1000, the NRC has 

ample opportunity and legal authority to modify the AP1000 

[design certification rule] to implement NRC-required design 

changes, as well as to take any necessary action to ensure that 

holders of [combined licenses] referencing the AP1000 also 

make the necessary design changes. 

AP1000 Design Certification Amendment, 76 Fed. Reg. at 

82,081. As a result, NRC concluded “that no changes to the 

AP1000 [design certification rule] are required at this time,”

id., and noted that the Task Force itself endorsed completion 

of the AP 1000 rulemaking “without delay,” id. at 82,083.

B. Vogtle Combined Operating Licenses

On August 15, 2006, Southern applied for an early site 

permit for Vogtle Units 3 and 4. A coalition of community 

action organizations, including several Petitioners in this case, 

sought a hearing on the application and intervened on three 

admitted contentions related to NRC’s draft EIS for the site.
12

NRC assigned the conduct of the licensure proceeding to a 

three-member Atomic Safety and Licensing Board (“Board”), 

which considered Petitioners’ contentions in a series of onthe-record hearings. The Board ruled against Petitioners on all 

three contentions, and NRC denied review, ending the 

contested portion of the hearing. The Board issued its final 

initial decision in August 2009, after holding its mandatory 

sufficiency review and questioning Southern and NRC staff, 

and approved the Vogtle early site application.

Southern subsequently applied for combined operating 

licenses for Vogtle Units 3 and 4. As with the early site 

permit proceeding, NRC prepared an EIS for this licensing 

action, which included consideration of the potential for 

severe accidents and their consequences. See Environmental 

Impacts of Postulated Accidents, Environmental Impacts of 

Operation at the Vogtle Electric Generating Plant Site, § 5.10

(Mar. 2011) (“Vogtle EIS”), reprinted in J.A. 805-09; 

Southern Nuclear Operating Company, Inc.; Notice of 

Availability of the Final Supplemental Environmental Impact 

Statement for Vogtle Electric Generating Plant Units 3 and 4; 

Combined License Application Review, 76 Fed. Reg. 16,645-

02 (Mar. 24, 2011).

In response, Petitioners brought three contentions to the 

Board, which denied two and admitted the third, a safetyrelated contention. After consideration of the contention, the 

Board granted summary disposition against the intervenors, 

finding that the contention failed to present a material factual 

dispute. The Board declined to admit an additional 

environmental contention and concluded the contested portion 

of the proceeding. A second licensing Board was established 

to consider another contention in April 2010; it denied the 

request, and NRC affirmed.

In April 2011, shortly after the Task Force was 

appointed, Petitioners and other organizations submitted an 
13

Emergency Petition, asking NRC to suspend all pending 

licensing decisions, including the decision whether to issue a 

combined license for Vogtle 3 and 4, while it investigated the 

implications of the Fukushima accident. The Commission 

denied these requests for a suspension. See generally Union 

Elec. Co., CLI-11-05, 74 N.R.C. 144, 150-51, 175-76 (2011).

At the same time, Petitioners submitted a petition 

requesting that NRC immediately suspend the rulemaking for 

the amendment of the AP1000 design certification pending 

evaluation of the implications of the Fukushima accident. Id.

at 172-73. Petitioners asked NRC to undertake “a 

comprehensive review of the Fukushima accident to develop 

lessons learned for new reactor designs and the subsequent 

development and implementation of new regulatory 

safeguards to protect public health and safety.” Id. at 172. The 

Commission denied the request for immediate postponement

as premature, but directed NRC staff to consider the 

submissions as comments to the AP1000 rulemaking. Id. at 

172-73. Petitioners filed additional supplemental comments 

requesting that NRC consider the environmental implications 

of the Fukushima accident and the Task Force Report. 

Supplemental Comments by the AP1000 Oversight Group et 

al. Regarding Failure of Rulemaking on Certification, In the 

Matter of AP1000 Design Certification Amendment, NRC2010-0131 (Sept. 29, 2011), reprinted in J.A. 326-36.

In August 2011, after the Task Force issued its report, 

several Petitioners submitted motions to reopen the record of 

the then-closed Vogtle licensing proceeding and admit 

contentions challenging the failure of NRC to order a 

supplemental Vogtle EIS to address the environmental 

implications of the Task Force Report. See PPL Bell Bend, 

L.L.C., LBP-11-27, slip op. (Oct. 18, 2011). Two groups of 

Petitioners submitted substantively identical proposed 

contentions, which read as follows:
14

The EIS for . . . Vogtle fails to satisfy the requirements of 

NEPA because it does not address the new and significant 

environmental implications of the findings and 

recommendations raised by NRC’s Fukushima Task Force 

Report, including seismic-flood and environmental justice 

issues. As required by 10 C.F.R. § 51.92(a)(2) and 40 C.F.R. 

§ 1502.9(c), these implications must be addressed in a 

supplemental Draft EIS.

Id. at 6. The contention was supported by declarations which

alleged that the Fukushima accident and the Task Force 

Report presented new and significant information about risks 

to public health and safety. See id. at 9-10 (summarizing 

supporting declarations).

On September 9, 2011, the Commission denied 

Petitioners’ April 2011 Emergency Petitions with respect to

the Vogtle licensing decision and the AP1000 rule. The 

Commission concluded that “nothing learned to date requires 

immediate cessation of our review of license applications or 

proposed reactor designs.” Union Elec., CLI-11-05, 74 N.R.C.

at 161. In addition, the Commission found that there was no 

cause to require a “generic” environmental review because the 

Fukushima accident did not present “new and significant”

information. Id. at 166-67. The Commission further noted that 

“we do not know today the full implications of the Japan 

events for U.S. facilities. Therefore, any generic NEPA duty –

if one were appropriate at all – does not accrue now.” Id. at 

167. 

The Commission did, however, leave open the possibility 

that an individual NEPA contention in a particular licensing 

proceeding might require additional review, stating that “[i]f 

the NRC determines that changes to its current environmental 

assessment rules are warranted, we can revisit whether an 

individual licensing review or adjudication should be held in 
15

abeyance pending the outcome of a relevant rulemaking.” Id.

at 174.

On October 18, 2011, the Board rejected as premature 

Petitioners’ August 2011 contentions, “seeking to revive”

several closed adjudicatory proceedings, including the Vogtle 

licensing. See PPL Bell Bend, LBP-11-27, slip op. at 1. The 

Board read the Commission’s decision in CLI-11-05 as 

instructing “precisely and definitively that it remains much 

too early in the process of assessing the Fukushima event in 

the context of the operation of reactors in the United States to 

allow any informed conclusion regarding the possible safety 

or environmental implications of that event.” Id. at 13. The 

Board also noted that Petitioners did not indicate “any unique 

characteristics of the [Vogtle] site that might make the content 

of the Task Force report of greater environmental significance 

to that reactor than to United States reactors in general.” Id. at

13-14. Because CLI-11-05 invited contentions in licensing 

proceedings that alleged particular risks from the specific site, 

the Board found this lack of specificity dispositive.

Also on October 18, 2011, the Commission adopted all of 

the Task Force recommendations and ordered NRC staff to 

implement them within the following five years. See 

Luminant Generation Co., LLC, LBP-11-36, slip op. at 4-5

(Nov. 30, 2011). Upon the Commission’s adoption of the 

Task Force recommendations, several Petitioners resubmitted 

their contentions and asked the Board to reconsider its denial 

of their contentions in light of the Commission’s decision to 

adopt all of the Task Force recommendations. See id.

On November 30, 2011, the Board denied the motion to 

reconsider, finding that the Commission’s adoption of the 

Task Force recommendations had not “materially changed 

matters.” Id. at 5. The Board noted that there had been no 

express request that it reconsider the framework underlying its 
16

prematurity decision in LBP-11-27, and it declined to do so. 

Id. at 3-4.

On February 9, 2012, the Commission handed down its 

opinion resulting from its September 27 and 28, 2011, 

mandatory hearing on the Vogtle licensing application. See S.

Nuclear Operating Co., CLI-12-02, slip op. at 2 (Feb. 9, 

2012). Under Commission precedent, participation in the 

hearing was appropriately limited to Southern and NRC staff,

and the hearing addressed only the sufficiency of the staff’s

review of Southern’s license application. See Exelon 

Generation, 62 N.R.C. at 49-50. At the hearing, NRC

technical staff confirmed that the AP1000 design certification 

and the Vogtle licenses met current safety and environmental 

standards. S. Nuclear Operating Co., CLI-12-02, slip op. at 

22. NRC staff testified that Fukushima-like accidents have an 

“extremely low probability,” despite their “potentially high 

consequences.” Id. at 74. The Commission considered the 

likelihood and consequences of potential severe accidents 

similar to the Fukushima accident and found that the risks to 

the AP1000 reactor design at the Vogtle site were “lower than 

those for current generation plants.” Id. at 72-73.

NRC approved the combined license applications for the 

Vogtle 3 and 4 reactors at the conclusion of the mandatory 

hearing. The Commission found that the staff’s review 

adequately supported the requisite safety and environmental 

findings under 10 C.F.R. §§ 52.97, 51.107(a) & (d), and 

50.10, that all NEPA requirements had been met, and that the 

staff had followed an appropriate process for assessing “new 

and significant” information. See id. at 2, 79. In addition, the 

Commission restated that no plant, including Vogtle, would 

be exempt from Task Force recommendations enacted in the 

future:

All affected nuclear plants will be required to comply with 

NRC direction resulting from lessons learned from the 
17

Fukushima accident, regardless of the timing of issuance of 

the affected licenses. We therefore expect the new Vogtle 

units will comply with all applicable “post-Fukushima”

requirements.

Id. at 82. NRC found it premature to order implementation of 

the Task Force recommendations, as many recommendations 

were still in development and not yet formulated into 

regulations. Instead, the Commission stated that it would not 

establish new regulatory processes or requirements until after 

taking sufficient time to “ensure that any new requirements 

are technically justified and implemented appropriately.” Id.

Commission Chairman Jaczko dissented from the 

Commission’s decision, stating that he would not “authorize 

issuance of these licenses without any binding obligation that 

these plants will have implemented the lessons learned from 

the Fukushima accident before they operate.” Id. (Jaczko, C., 

dissenting) slip op. at 1. Even Chairman Jaczko, however, did 

not argue that a supplemental EIS was necessary before the 

Vogtle licenses could proceed; his dissent was based solely on 

his belief that the Commission should have demanded 

assurances of compliance with future safety requirements, not 

current environmental shortcomings.

On March 16, 2012, the Commission upheld the Board’s 

denial of Petitioners’ contention, agreeing that Petitioners had 

“not identified environmental effects from the Fukushima 

Dai-ichi events that can be concretely evaluated at this time, 

or identified specific new information challenging the sitespecific environmental assessments” for Vogtle. Luminant 

Generation Co., CLI-12-07, slip op. at 9. The Commission 

held that the Task Force’s recommendations did not 

themselves identify any environmentally significant 

information for Vogtle, and Petitioners did not explain how 

any particular recommendation related to the Vogtle licenses 

in a manner that mandated a supplemental EIS. NRC held that 
18

the Task Force recommendations, standing alone, did not 

provide sufficient support for an admissible contention.

Rather, the Commission held that a valid contention must 

“include facts sufficient to demonstrate a genuine dispute” 

with the license application; a contention that merely alludes 

to Task Force findings “is too vague . . . for litigation.” Id. at 

13-14.

The Commission also found that Petitioners failed to 

demonstrate that the Task Force Report presented a “seriously 

different picture of the environmental impact of the proposed 

project from what was previously envisioned” that would 

necessitate a supplemental EIS. Id. at 10. NRC held that 

“reference to the Task Force Report recommendations alone, 

without facts or expert opinion that explain their significance 

for the unique characteristics” of the Vogtle reactors “does 

not provide sufficient support” to demand further NEPA 

review. Id. at 13. NRC ruled that the same lack of specificity 

was also fatal to Petitioners’ attempt to meet NRC’s “more 

stringent reopening rule” and to require Southern to 

supplement the Vogtle EIS. Id. at 14 n.47.

On April 16, 2012, the Commission denied Petitioners’

motion to stay the effectiveness of the Vogtle licensing 

decision, pending review by this court. The Commission 

reiterated its conclusion that Petitioners “have not 

demonstrated that the Fukushima events or any regulatory 

response to those events would raise environmental impacts 

that differ significantly from the impacts that the NRC has 

already reviewed and addressed” in approving the Vogtle

licenses. See S. Nuclear Operating Co., CLI-12-11, slip op. at 

12-13 (Apr. 16, 2012).

On February 17, 2012, Petitioners sought review of the 

NRC’s AP1000 rule. A month later, Petitioners sought review 

of the Commission’s decisions rejecting Petitioners’

contentions and of all the authorizations resulting from the 
19

approval of the Vogtle licenses. On April 3, 2012, we

consolidated the petitions for review. After the Commission 

denied Petitioners’ motion for a stay, Petitioners moved for a 

stay in this court, which we denied.

On appeal before us now are (1) the amended AP1000 

design certification rule, (2) the Commission’s rejection of 

Petitioners’ contentions and motions to reopen the record to 

supplement the Vogtle EIS, and (3) all the licensing 

authorizations resulting from the Commission’s decision to 

allow the Vogtle licenses to go forward. The specific 

decisions implicated are:

 The AP1000 rule, Final Rule, AP1000 Design Certification 

Amendment, 76 Fed. Reg. 82,079 (Dec. 30, 2011); and 

 The Commission’s rejection of Petitioners’ contentions and 

motions to reopen the record, and the resulting licenses and 

work authorizations:

o Luminant Generation Co., LLC, CLI-12-07, slip op. 

(Mar. 16, 2012);

o Luminant Generation Co., LLC, LBP-11-36, slip op. 

(Nov. 30, 2011);

o Vogtle Electric Generating Plant, Units 3 and 4; 

Issuance of Combined Licenses and Limited Work 

Authorizations and Record of Decision, 77 Fed. Reg. 

12,332-02 (Feb. 29, 2012); 

o Combined License No. NPF-91 (Vogtle Electric 

Generating Plant Unit 3) (Feb. 10, 2012), reprinted in

J.A. 35;

o Combined License No. NPF-92 (Vogtle Electric 

Generating Plant Unit 4) (Feb. 10, 2012), reprinted in

J.A. 53; 
20

o Limited Work Authorization No. LWA-001, (Vogtle 

Electric Generating Plant Unit 3) (Feb. 10, 2012), 

reprinted in J.A. 71; and

o Limited Work Authorization No. LWA-002, (Vogtle 

Electric Generating Plant Unit 4) (Feb. 10, 2012), 

reprinted in J.A. 83.

III. STANDARD OF REVIEW

This court will set aside an agency rule or licensing 

decision only if it is “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.” 5 U.S.C. 

§ 706(2)(A); see also, e.g., Advocates for Highway & Auto 

Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 

1144 (D.C. Cir. 2005).

The arbitrary and capricious standard also controls our 

review of agency actions with respect to any substantive 

environmental issues that are properly before the court. We 

may set aside such actions only if we find that NRC 

committed “a clear error of judgment.” Marsh, 490 U.S. at 

385. We owe deference to NRC’s decision not to supplement 

either its EA for the AP1000 reactor design or its EIS for the 

Vogtle reactors. See id. (finding that the agency “conducted a 

reasoned evaluation of the relevant information and reached a 

decision that, although perhaps disputable, was not ‘arbitrary 

or capricious’”); see also Great Old Broads for Wilderness v. 

Kimbell, 709 F.3d 836, 853-55 (9th Cir. 2013) (reviewing 

decision not to supplement an EIS under the deferential 

“arbitrary or capricious” standard).

To the extent that NRC’s technical judgments and 

predictions are before the court for review, we “must 

generally be at [our] most deferential.” Balt. Gas & Elec. Co. 

v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983). 

We are obligated to “defer to the wisdom of the agency, 
21

provided its decision is reasoned and rational.” Dillmon v. 

Nat’l Transp. Safety Bd., 588 F.3d 1085, 1089 (D.C. Cir. 

2009). 

In reviewing NRC’s interpretations of its own rules –

here, notably, its rules governing the reopening of closed 

proceedings and governing contention admissibility – we give 

“controlling weight” to the agency’s constructions unless they 

are “plainly erroneous or inconsistent with the regulation.”

City of Idaho Falls, Idaho v. FERC, 629 F.3d 222, 228 (D.C. 

Cir. 2011).

NRC’s interpretation of its enabling legislation is 

reviewed pursuant to the familiar standards enunciated in 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842-45 (1984). See also, e.g., Nuclear 

Info. Res. Serv., 969 F.2d at 1173. An agency’s interpretation 

of its governing statute is entitled to no judicial deference if 

“Congress has directly spoken to the precise question at 

issue.” Chevron, 467 U.S. at 842. If, as in this case, “Congress 

has explicitly left a gap for the agency to fill, there is an 

express delegation of authority to the agency to elucidate a 

specific provision of the statute by regulation. Such legislative 

regulations are given controlling weight unless they are 

arbitrary, capricious, or manifestly contrary to the statute.” Id. 

at 843-44. We have previously endorsed NRC’s “high 

standards” for reopening closed hearings and the “stringency 

of those criteria.” Deukmejian, 751 F.2d at 1316. We are

therefore bound to defer to NRC’s implementation of its 

contention-specificity regulations. 

We are also “obliged to defer to the operating procedures 

employed by an agency when the governing statute requires 

only that a ‘hearing’ be held.” Union of Concerned Scientists,

920 F.2d at 54. As a result, we consider with due deference 

NRC’s rejection of Petitioners’ objections to the agency 

procedures at issue here.
22

IV. ANALYSIS

A. NRC’s Refusal to Admit Petitioners’ Contentions

NRC regulations dictate the criteria that a party’s 

contention must meet in order to initiate a contested hearing. 

See 10 C.F.R. § 2.309(f)(1). Because we have held that 

NRC’s “procedural rules [under 10 C.F.R. § 2.309(f)] do not 

facially violate the Atomic Energy Act or the APA [and] they 

are also consistent with NEPA,” Union of Concerned 

Scientists, 920 F.2d at 56-57, and because we find that NRC

reasonably applied these rules in evaluating Petitioners’ 

contentions, we defer to NRC’s rejection of Petitioners’ 

contentions. 

After carefully reviewing the record in this case, we hold

that the Commission acted reasonably in denying Petitioners’ 

contentions on the grounds that they (1) failed to “[p]rovide 

a . . . statement of the alleged facts or expert opinions which 

support the requestor’s/petitioner’s position,” 10 C.F.R. 

§ 2.309(f)(1)(v), and (2) failed to “include references to 

specific portions of the . . . environmental report . . . that the 

petitioner disputes and the supporting reasons,” id.

§ 2.309(f)(1)(vi). See Luminant Generation Co., CLI-12-07, 

slip op. at 13 n.43.

1. The Task Force Report Alone Was Not a “New and 

Significant” Circumstance Requiring a Supplemental 

EIS

Petitioners failed to indicate any environmental data that 

were not considered in the EIS. Because Petitioners failed to 

point to any specific shortcoming in the EIS, NRC reasonably 

found Petitioners’ contentions insufficient to support a 

contested hearing. The Commission clearly stated its reasons 

for refusing to admit Petitioners’ contentions:
23

We expect Petitioners to identify information that was not 

considered in the environmental review for the application at 

issue and explain, with asserted facts or expert opinion, how it 

presents “a seriously different picture of the environmental 

impact of the proposed project from what was previously 

envisioned.”

Id. at 13. This explanation is well-supported by the record and 

represents a reasonable interpretation of NRC’s contentionspecificity regulations. See 10 C.F.R. § 2.309(f).

Under NEPA, NRC is obligated to undertake a 

supplemental EIS only when presented with “substantial 

changes in the proposed action that are relevant to 

environmental concerns” or “new and significant 

circumstances or information relevant to environmental 

concerns and bearing on the proposed action or its impacts”

after the EIS is assembled. 10 C.F.R. § 51.92(a)(1)-(2); see 

also id. § 51.72(a)(1)-(2). “New and significant” information 

presents “a seriously different picture of the environmental 

impact of the proposed project from what was previously 

envisioned.” Hydro Res., Inc., 50 N.R.C. 3, 14 (1999); see 

also Marsh, 490 U.S. at 374 (looking to “the value of the new 

information to the still pending decisionmaking process” and 

requiring a supplemental EIS only if the new information is 

sufficient to show environmental effects “in a significant 

manner or to a significant extent not already considered”).

The determination as to whether information is either new or 

significant “requires a high level of technical expertise”; thus, 

we “defer to the informed discretion of the [Commission].”

Marsh, 490 U.S. at 377. 

Petitioners contend that the Task Force recommendations 

give rise to an obligation to supplement the Vogtle EIS

because the recommendations may alter NRC regulations in 

the years ahead. Thus, in Petitioners’ view, the Vogtle 

licenses necessarily must be delayed until the 
24

recommendations are finalized. We rejected a similar line of 

reasoning in Union of Concerned Scientists:

Information raised in the environmental reports does not 

amount to a new material “issue” simply because it adds 

marginal weight to the case of an opponent or a proponent of a 

license; the reports instead raise a new “issue” only when the 

argument itself (as distinct from its chances of success) was 

not apparent at the time of the application. Although the 

concepts of new issues and new evidence are analytically 

distinct, we recognize that in practice they can converge – the 

demarcation line may depend on how the “issue” is stated. 

Still, whether an actual new “issue” is raised is a matter for the 

NRC to determine in the first instance and is reviewed 

deferentially.

920 F.2d at 55.

It is also noteworthy that the position taken by the 

Commission in this case is consistent with holdings reached 

by Atomic Safety and Licensing Boards in licensing 

proceedings for other locations. In these proceedings, the 

Boards have found that the Task Force Report alone does not 

provide a sufficient foundation for an admissible contention. 

See Pac. Gas & Elec. Co., LBP-11-32, slip op. at 19 (Nov. 18, 

2011) (finding a proposed contention inadmissible because 

the petitioner “offer[ed] nothing to link the outcome of the 

Fukushima events” to the pending license renewal 

application), review denied at Pac. Gas & Elec. Co., CLI-12-

13 (Jun. 7, 2012); Fla. Power & Light Co., LBP-11-33, slip 

op. at 8 (Nov. 21, 2011) (rejecting proposed contention 

because the petitioners “allege[d] no facts linking the events 

at Fukushima to the sufficiency of NEPA-related documents” 

for the pending combined license application). Obviously, 

these Board decisions do not control the disposition of this 

case, but they do give further credence to the view that the 

Task Force Report alone does not support Petitioners’ 

position.
25

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 EIS considered consequences and 

mitigation of severe accidents involving reactor core damage 

and the release of fission products. See Vogtle EIS at § 5.10,

reprinted in J.A. 805-09; see also Final Environmental Impact 

Statement for an Early Site Permit (ESP) at the Vogtle 

Electric Generating Plant Site, § 5.10.2 (Aug. 2008) (“Vogtle 

ESP EIS”), reprinted in J.A. 835-44. In addition, the EIS for 

the Vogtle early site permit evaluated the human health 

impacts, economic costs, and land contamination risks, 

concluding that the environmental risks associated with 

severe accidents from an AP1000 reactor at the Vogtle site

“would be small compared to risks associated with operation 

of the current-generation reactors at [Vogtle]” and were “well 

below NRC safety goals.” Vogtle ESP EIS at 5-81, 5-89, 

reprinted in J.A. 836, 844. 

Petitioners’ contentions provide no explanation as to how 

the Task Force Report recommendations raise previously 

unaddressed issues. See Union of Concerned Scientists, 920 

F.2d at 55. The Commission reasonably concluded that, for 

their contentions to be admitted for consideration, Petitioners

were required to cite particular information that was missing 

from the Vogtle EIS based on particular recommendations 

from the Task Force. See Luminant Generation Co., CLI-12-

07, slip op. at 13; PPL Bell Bend, LBP-11-27, slip op. at 13.

Petitioners failed to do this.

Petitioners argue that, once NRC described the 

Fukushima accident as “significant,” the agency was 

obligated to generate new environmental reports for all 

implicated pending sites and reactor designs. This argument is

clearly unavailing, as it relies on Petitioners’ elision of “safety 

significance” with “environmental significance.” In the case 

on which Petitioners chiefly rely, San Luis Obispo Mothers 
26

for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006), NRC had 

categorically declined to consider any environmental 

consequences resulting from terrorism-related threats. The 

Ninth Circuit thus overturned the Commission’s decision. Id.

at 1031. The situation here is quite different. In this case, 

NRC thoroughly analyzed the environmental consequences of 

severe accidents for Vogtle. See Vogtle ESP EIS at § 5.10.2, 

reprinted in J.A. 835-44; Vogtle EIS at § 5.10, reprinted in

J.A. 805-09. 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. See generally S. Nuclear 

Operating Co., CLI-12-02, slip op. (Jaczko, C., dissenting).

“[N]ew information about nuclear power plant safety 

arising between the time of the initial application and the 

commencement of operations” does not necessarily provide 

cause for additional NEPA review. Union of Concerned 

Scientists, 920 F.2d at 55. And it does not create such cause

here because the EIS addressed and dismissed precisely the 

risks that gave rise to the Fukushima accident. The 

Commission reasonably found that it was not obligated to 

postpone its decision “until inchoate information matures into 

something that might later affect [its] review.” Luminant 

Generation Co., CLI-12-07, slip op. at 14; see also N.J. Dep’t

of Envtl. Prot. v. NRC, 561 F.3d 132, 143 (3d Cir. 2009)

(holding that “precautionary actions to guard against a 

particular risk do not trigger a duty to perform a NEPA 

analysis”). 

Furthermore, as noted above, both the Task Force and 

NRC noted that further regulatory initiatives would be 
27

possible, as necessary, after the Commission studied the Task 

Force recommendations. See S. Nuclear Operating Co., CLI12-02, slip op. at 81-82. However, merely because the 

Commission might impose more stringent safety regulations 

after carefully assessing the Task Force recommendations 

does not mean that the agency’s present actions are 

inconsistent with NEPA.

Without an explanation from Petitioners as to what 

specific “new and significant” environmental information 

NRC failed to consider, or what deficiency in the existing EIS 

it failed to rectify, NRC reasonably found that Petitioners’ 

contentions did not warrant a contested hearing. Petitioners’ 

attempts to rely on future safety concerns in lieu of present 

environmental risks do not create an obligation for further 

NEPA review. 

2. Petitioners’ Contentions Lacked Specific Links 

Between the Fukushima Accident and the Vogtle Site

After the Task Force issued its report, the Commission 

rejected as premature Petitioners’ requests for a generic 

NEPA review arising out of the Task Force Report. The 

Commission held that if “new and significant information 

comes to light that requires consideration as part of the 

ongoing preparation of application-specific NEPA documents, 

the agency will assess the significance of that information, as 

appropriate.” Union Elec., CLI-11-05, 74 N.R.C. at 167. 

Petitioners do not challenge this decision on appeal, but 

instead “attempt to distinguish CLI-11-[0]5 by claiming that 

[the Commission’s] holding there rested on a finding that 

sufficient information was not yet available to conduct a 

generic analysis,” and that such information now exists.

Luminant Generation Co., CLI-12-07, slip op. at 9. The 

Commission rejected this argument and upheld the Board’s 

ruling “that Petitioners did not relate their contention to any 

unique characteristics of the particular site at issue, and 
28

therefore, the contention was akin to the generic type of 

NEPA review that we declared premature in CLI-11-[0]5.” Id.

(citing PPL Bell Bend, LBP-11-27, slip op. at 13-14).

The First Circuit, addressing an appeal from NRC’s 

denial of other post-Fukushima objections to plant licensing 

actions, held that a petitioner’s “mere pointing to a piece of 

information and speculating that the results of the 

[environmental risk analysis] may be different was not 

sufficient to meet” the Commission’s stringent standards for 

reopening a closed proceeding. Massachusetts v. NRC, 708 

F.3d 63, 76-77 (1st Cir. 2013). We agree. We therefore

uphold NRC’s determination that its rejection of Petitioners’ 

contentions as “premature” was governed by its decision in 

CLI-11-05. 

In light of the Commission’s decision in CLI-11-05, 

Petitioners were obligated to present a contention sufficiently 

detailed and specifically related to the challenged reactor 

location to demonstrate how the contention differed from the 

“premature” generic request that the Commission denied in 

CLI-11-05. Absent any evidence – or even allegation –

linking the conditions at the Vogtle site itself to the Task 

Force recommendations, NRC appropriately applied the 

applicable contention-specificity regulations in declining to 

admit Petitioners’ contentions. We defer to the Commission’s

judgment. See Idaho Falls, 629 F.3d at 228.

B. Declining to Allow Petitioners to Intervene in 

Mandatory Hearing

Petitioners challenge their exclusion from NRC’s 

mandatory hearing regarding the Vogtle licenses. Their claim 

is meritless. As discussed above, there was no need for an 

additional contested hearing once NRC reasonably denied 

Petitioners’ contentions. Petitioners participated in two 
29

contested hearings related to the Vogtle licenses. They had no 

right to participate in the Commission’s “mandatory” hearing.

Mandatory hearings are “sufficiency” reviews, designed 

to assess the efforts of the NRC staff and determine whether 

the safety and environmental record is sufficient to support 

the license. Participation in these hearings is limited to the 

license applicant and NRC staff. Exelon Generation, 62 

N.R.C. at 49-50 (2005) (petitioners are “barred from 

participating in the uncontested portion of the hearing”).

Petitioners point to no statutory or regulatory provision, nor 

agency practice, affording them a right to participate in a 

mandatory hearing. We therefore reject their claim on this 

point.

C. Approval of AP1000 Reactor Design Certification

Finally, we hold that NRC properly declined to 

supplement its existing EA for the AP1000 design 

certification amendment before adopting the final rule. The 

EA for a design certification amendment considers only 

whether the design change that is the subject of the proposed

amendment renders a previously rejected Severe Accident 

Mitigation Design Alternative cost beneficial or identifies a 

new alternative necessitating its own cost-benefit analysis. 

See 10 C.F.R. § 51.30(d). The Commission reasonably found 

that the existing AP1000 EA adequately considered Severe 

Accident Mitigation Design Alternatives.

In considering the AP1000 design certification 

amendment, NRC reexamined the probability that a severe

accident might occur and concluded that potential design 

changes did not affect its original evaluations. Environmental 

Assessment by NRC Relating to the Certification of the 

Amendment to the AP1000 Standard Plant Design, Docket 

No. 52-006 at 5, (Dec. 22, 2011), reprinted in J.A. 224; see 

also AP1000 Design Certification Amendment, 76 Fed. Reg.
30

at 82,096; NRC Responses to Public Comments, Final Rule: 

Amendment to AP1000 Design Certification Rule at 15-23 

(Dec. 2011), reprinted in J.A. 268-76 (detailing public 

comments and explaining why no supplemental EA was 

necessary); id. at 44-45, reprinted in J.A. 280-81 (detailing 

the reasons no additional Severe Accident Design Mitigation 

Alternatives were necessary). NRC erred “on the side of high 

consequences” and concluded that the AP1000 EA “make[s] a 

convincing case that no identified [Severe Accident 

Mitigation Design Alternative] is worth the expense.” NRC 

Responses to Public Comments at 45, reprinted in J.A. 281. 

Petitioners do not challenge this analysis, nor do they connect 

any of the Task Force recommendations to any alternative 

that NRC failed to consider. Without an explicit challenge, 

NRC appropriately relied on its 2011 EA in approving the 

final AP1000 rule amendment. Indeed, the Task Force Report 

“supports completing [the AP1000] design certification 

rulemaking activities without delay.” Task Force Report at 

71-72; see also AP1000 Design Certification Amendment, 76 

Fed. Reg. at 82,083.

Petitioners have failed to demonstrate that NRC acted 

less than reasonably in declining to order a supplemental EA

for the AP1000 design certification amendment. We therefore 

defer to the Commission’s conclusion that such a supplement 

was unnecessary.

V. CONCLUSION

For the foregoing reasons, the petition for review is 

denied.