The state of Massachusetts argued at the U.S. Court of Appeals for the First Circuit that the U.S. Nuclear Regulatory Commission didn’t fully incorporate lessons from the Fukushima, Japan radiological accident when relicensing a local nuclear power plant.

The December 5 oral argument concerned the state’s appeal of the commission’s grant of a 20-year license extension to the Pilgrim nuclear power plant in Plymouth, Mass. The state is also challenging the NRC’s denial of its petition for review.

The state argued in its brief that the First Circuit has jurisdiction under the Hobbs Act, the Administrative Procedure Act and the Atomic Energy Act.

Massachusetts also argued that it “presented new and significant information on the lessons learned from the radiological accident at Fukushima,” in the wake of the March 2011 Japanese earthquake and tsunami.That information included an independent expert report and the commission’s own Fukushima Task Force report. Massachusetts said the information showed that the risk of a severe accident at the plant is much greater than indicated in the license renewal application and that the commission’s planning for severe accidents is inadequate.

Massachusetts also complained in its brief that the commission never explained why it made sense to deny the state’s request for a National Environmental Policy Act (NEPA) and Atomic Energy Act hearing on this new information. The state claims the “commission simultaneously – and outside the public Pilgrim relicensing proceeding – relied upon the same Task Force Report to order some additional mitigation measures to reduce the risk of severe accidents at Pilgrim and other plants.”

The NRC in its brief argues that it “has already conducted full-scale NEPA reviews for Pilgrim.” In order to reopen the renewal process, the brief stated, Massachusetts must show why those NEPA reviews are inadequate in light of “new and significant information.”

The commission also argued that it relied on well-established standards to find Massachusetts’s filings “insufficient to justify further NEPA reviews and hearings.” It asserted that “the Task Force Report and orders do not demonstrate any flaws in the Pilgrim NEPA analysis, let alone flaws so fundamental and obvious that they conceivably justify overlooking Massachusetts’s failure to satisfy applicable [commission] threshold standards.”

Intervenors Entergy Nuclear Operations Inc. and Entergy Nuclear Generation Co., which the commission licensed to run the plant, also submitted a brief. Entergy argued that NEPA only requires asupplemental environmental impact statement when the information is significant enough to alter the environmental landscape.

Chief Judge Sandra Lynch sat on the panel along with Judge Juan Torruella and Senior Judge Joseph DiClerico Jr. of the District of New Hampshire, who sat by designation.

Torruella asked the state’s lawyer, Matthew Brock, an assistant attorney general in the environmental protection division of the AG’s office, what new circumstances should allow the state to reopen the hearing.

Brock said the Fukushima accident and the recommendations from the commission’s task force on Fukushima represents new information. “We think it is clear that that same information and those recommendations reflect significant new changes [and] that the [commission] is in the process of ordering Pilgrim and other nuclear power plants across this country to change the way they operate.”

Brock argued, “Once this license issues, the commonwealth will have no more meaningful role in this process.”

Lynch replied, “In the licensing process, yes, but in the rulemaking process you can play a meaningful role. And that rulemaking process will in and of itself be subject to judicial review.”

Brock replied, “The rulemaking process to which you refer will not address severe accidents. It will not address mitigation measures specific to Pilgrim.”

James Adler, an attorney at the NRC who argued for the agency and the U.S. government, opened his argument by discussing the threshold procedural standards for reviewing Massachusetts’s filings.

Lynch said that it’s “unattractive” for the commission to argue that the state waived its argument. “These are serious issues…What lessons are there to be learned from the Japanese experience? Are they to be applied to Pilgrim?”she asked.

Lynch also said the core of Brock’s argument is that the state is never going to get a hearing on whether there are mitigation measures that should be taken.

“We’re focusing here on the environmental impact statements,” Adler replied.

Lynch later asked Adler about the possibility of deferring the licensing decision until after the NRC finishes a rulemaking proceeding and applies its findings to the Pilgrim plant.”Why not wait? What’s the rationale for not waiting?”

Adler responded, “The Pilgrim renew license was issued over a year after the earthquake and tsunami. While we don’t have a complete picture of what happened at Fukushima we have a lot of information.”

Kevin Martin, a partner at Boston’s Goodwin Procter who argued for Entergy said “the commonwealth simply never tied this new information concerning Fukushima to Pilgrim.”

“You can have circumstances…where the commission looks at the facts, looks at the arguments and concludes that there’s no information today suggesting a need to delay,” Martin said.

In his rebuttal time, Brock said “there’s no commitment here by NRC as to any specific mitigation measures for Pilgrim at this point.”

Sheri Qualters can be contacted at squalters@alm.com.