Nuclear Regulatory Commission Approves First Nuclear Reactors Since 1978
On February 9, 2012, the United States Nuclear Regulatory Commission (“NRC” or the “Commission”), by a four-to-one vote, granted licenses to the Southern Nuclear Operating Company (“SNOC”) to build and operate two new nuclear reactors at SNOC’s existing Vogtle Electric Generating site near Waynesboro, Georgia. This action marked the first time the NRC had approved the construction of a new nuclear facility since 1978, a year before the partial meltdown at the Three Mile Island facility in Pennsylvania brought the potential dangers of nuclear energy to national prominence. The Commission’s approval was also notable for coming, as it did, in the wake of the March 11, 2011 earthquake and tsunami in northeastern Japan, and the ensuing crisis at the Fukushima Dai-ichi Nuclear Power Plant, which left some 160,000 residents of the surrounding areas displaced. Paul Bowers, chairman of Georgia Power, the SNOC subsidiary that will build the reactors, heralded the decision as a “landmark achievement.” But the approval was not without its detractors; NRC Chairman Gregory B. Jaczko dissented from the Commission’s decision citing the lack of “any binding obligation that these plants will have implemented the lessons learned from the Fukushima accident before they operate,” and the Commission’s responsibility to make “the best decision for nuclear safety.”
Among the several statutes that govern the NRC’s review of an application to build and operate a nuclear reactor, one is especially relevant for the present purposes: section 189(a) of the Atomic Energy Act of 1954 (“AEA”), and associated regulations, require the Commission to consider various safety issues prior to approving such a license. Most fundamentally, those regulations require the NRC to determine that “issuance of the license will not be inimical to . . . the health and safety of the public.” To satisfy this requirement, the NRC staff convened four “Safety Panels” to consider various health-and-safety-related issues, among them site characteristics, design and systems information, and the reactors’ safety features. The five-member Commission then conducted an independent analysis of the sufficiency of the staff’s findings and formally determined that the staff’s conclusion that the issuance of the licenses would not pose a danger to public health and safety “was reasonably supported in logic and fact.”
In its approval of the licenses, the Commission noted that it was mindful of the lessons learned from the Fukushima Dai-ichi disaster, its review of which was still on-going. The reactors, based on a new design by Westinghouse, are reportedly able to withstand the type of incident (an earthquake followed by the loss of electric power) that caused the meltdowns at Fukushima. Moreover, the Commission noted, “nuclear plants will be required to comply with NRC direction resulting from lessons learned from the Fukushima accident,” and, specifically, the Commission “expect[s] that the new Vogtle units will comply with all applicable ‘post-Fukushima’ requirements.”
This expectation, absent a compulsory requirement, was insufficient for one member of the Commission; Chairman Jaczko dissented, noting that he “simply cannot authorize the issuance of these licenses without any binding obligation that these plants will have implemented the lessons learned from the Fukushima accident before they operate.” The Commission declined to adopt this approach, arguing that “[s]uch a license condition . . . cannot now be framed in meaningful terms.” Chairman Jaczko did not take issue with that assessment, but instead maintained that “[i]f our regulatory processes have not proceeded to a point where we can require implementation before operation as a license condition, then we are not yet ready to issue these licenses.” This disagreement will almost certainly be settled in court. A coalition of anti-nuclear organizations has already filed a motion before the Commission, pursuant to section 10(d) of the Administrative Procedure Act, to stay the effectiveness of the licenses pending judicial review the Commission’s action. A decision on that motion is expected in the coming weeks.
 Matthew L. Wald, Federal Regulators Approve Two Nuclear Reactors in Georgia, N.Y. Times, Feb. 10, 2012, at B3; United States of America Nuclear Regulatory Commission, Memorandum and Order In the Matter of Southern Nuclear Operating Co., Docket Nos. 52-025-COL & 52-026-COL, Feb. 9, 2012, at 1, available at http://www.nrc.gov/reading-rm/doc-collections/commission/orders/2012/2012-02cli.pdf (hereinafter “NRC Memorandum”).
 Matthew Daly, NRC Set to Approve Georgia Nuclear Reactors, Associated Press, Feb. 9, 2012.
 See generally Times Topics, Japan – Earthquake, Tsunami and Nuclear Crisis, N.Y. Times, last updated Feb. 16, 2012, available at http://topics.nytimes.com/top/news/international/countriesandterritories/japan/index.html.
 Wald, supra note 1.
 NRC Memorandum, supra note 1, at 86.
 42 U.S.C. § 2239 (2006).
 10 C.F.R. §§ 52.97, 51.107(a), (d), 50.10.
 See NRC Memorandum, supra note 1, at 12.
 10 C.F.R. § 50.10(e)(iv).
 NRC Memorandum, supra note 1, at 28-9.
 Id. at 29-32.
 Id. at 45-7.
 Id. at 75.
 See id. at 81-82.
 See Wald, supra note 1.
 Id. (the design incorporates “[a]n emergency water tank perched above the reactor so that no pumps are needed to deliver cooling water.”).
 NRC Memorandum, supra note 1, at 82.
 Id. at 86.
 Id. at 82.
 Id. at 98.
 5 U.S.C. § 705 (2006).
 See Petitioners’ Motion to Stay the Effectiveness of the Combined License for Vogtle Electric Generating Plan Units 3 and 4 Pending Judicial Review, In the Matter of Southern Nuclear Operating Co., Nos. 52-025-COL & 52-026-COL, Feb. 16, 2012, available at http://www.beyondnuclear.org/storage/2012-02-16_Stay_Motion%20Vogtle%20COL.pdf.