As discussed above in Section A.3, federal agencies have a continuing obligation to gather new information relevant to the environmental impacts of their actions. The Commission may not ignore new information that can reasonably be characterized as significant. See Warm Springs Dam Task Force v. Gribble, supra. Here, there is no question that the new information provided by NIRS’s contention regarding the potential for acts of terrorism and sabotage constitutes significant new information that could have a profound effect on the NRC’s evaluation of the environmental impacts of license renewal, as well as the types of alternatives it should consider for mitigating those impacts. The NRC has never before considered the vulnerability of its nuclear facilities to terrorism or sabotage in the context of NEPA, and thus there is a great deal of information to be gathered and weighed.
In LBP-02-04, the ASLB cites dicta in the Commission’s Turkey Point decision, CLI-01-17, for the proposition that NIRS should be required to meet the standard in 10 C.F.R. § 2.758 before it can gain admission of a contention raising new information in a license renewal case.6 Id., slip op. at 77. The ASLB appears to rely on a statement by the Commission that “[I]n the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule.” Turkey Point, supra, 54 NRC at 12. NIRS respectfully submits that the ASLB took this statement out of its context, which was a general discussion of the Commission’s belief that “even generic findings sometimes need revisiting in particular contexts.” Id. In that case, however, the Commission did not explicitly impose a requirement on the petitioner to satisfy 10 C.F.R. § 2.758 in order to
6 10 C.F.R. § 2.758 provides that in order to obtain a waiver of a regulation in an adjudicatory proceeding, the petitioner must show that “special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted.”