ML20034A774

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Discusses Litigation Rept 1990 - 18 Re Public Citizen Vs NRC & Citizens for Fair Util Regulation Vs NRC Concerning Plant Licensing Proceeding
ML20034A774
Person / Time
Site: Comanche Peak  Luminant icon.png
Issue date: 04/19/1990
From: Cordes J
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
FRN-57FR537, TASK-AII, TASK-SE AD80-1-002, AD80-1-2, SECY-90-142, NUDOCS 9004240253
Download: ML20034A774 (39)
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SUBJECT:

L2TIGATION' REPORT = 1990 - 18 Public Citizen v. United States Nuclear Regulatory Commission, No. 89-1017 (D.C. Cir.,- April 17, 1990) 1 i Section 306-of the Nuclear Waste Policy Act of 1982 directed the NRC to promulgate. " regulations or other appropriate regulatory guidance" that " establish instructional' requirements for-civilian nuclear powerplant licensee personnel training programs." In . response to the' statute the NRC issued a policy statement indicating that the agency expected the industry to participate in, and j comply with, an INPO-administered training program,- Petitioners in this case challenged the NRC's. decision to proceed through a non-binding policy statement rather.than through prescriptive rules. The D.C. Circuit (Judges Wald,-Mikva & Edwards) has just issued l an opinion agreeing with petitioners' j position. _i Initially the court considered, and rejected, our argument that petitioners' suit was time-barred under the Hobbs Act's 60-day deadline for seeking ' judicial review. l Although petitioners did not bring this suit until some four years after the NRC had issued its policy statement, the court held that the NOTE: TO BE MADE PUBLICLY AVAILABLE IN 10 WORKING DAYS FEOM THE DATE OF THIS PAPER goc %tw&S3M S I j

p. V: h c- ^ The Commissioners 2 NRC's decision in 1988 to keep the-policy l statement in effect (and to amend'ittin-l several respects) started anew the time for judicial' review. The' Court concluded-that, "where an agency reiterates a rule or-policy. in such a way as to render the rule?or policy-subject-to-renewed' challenge on anys L substantive ^ grounds, a coordinate challenge thatLthe rule or_ policy-is contrary to. law will-not be held untimely because of atlimited ~ statutory review. period" (Slip opinion, at'. i 10). On the merits the court ~ held, in effect,;that while two of_the statutory terms -- " regulatory guidance" and," instructional . requirements":-- appeared to: point in opposite directions, the term " requirements" provides-the " clearer. indication of Congress'11ntent"' (Slip cpinion, at:15)._ To'the court the " word i ' requirements'.... clearly suggests =a mandatory regime" (id.). The court stated-that."[w]hatever regulatory guidancef is,-it-must share the. crucial-quality of regulations;, that is, it must be mandatory" (Slip opinion,. at 19). The. court concluded that, "[blecause Congress directed the NRC to create! mandatory-requirements for civilian nuclear powerplant personnel training programs', and because.the Commission has failed to do so, we remand the. case to the Commission for further. proceedings consistent with this opinion" (Slip opinion, M at 22). '!I n. We have 45 days to-seek-rehearing and/or: 9[tr rehearing en banc.before the' court of! appeals, ~ l l and 90 days to seek certiorari in the' Supreme / Court. After further study of the decision X and consultation within the-NRC and with: the Department of Justice, we will make'a recommendation on whether furtherJreview is feasible. : Decision

Contact:

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s. 2 r y f ! The Commissioners >} / Lf 1 / .y f ~,p ,,'r Citizens for Fair Utility Regulat$on v. r a United States Nuclear Regulatory Commission, M. i ,~' 7 t 7,J f ~ 'Nos.-89-4124'and 89-4310 (5th Cir., Apri M 2, ,S.. 1990) .{ u-In d,his case a citizensrassociation known as-J - CFUR. sought to^ intervene in the Comanche Peak 4 h. " M.. licensing proceeding.: CPUR originally was'a-l litigant in the: case but dropped-out several. L years ago.in: favor of another citizens- ""gr " l. association known.as CASE. InLJuneJof 1989-

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CASE settled ~the? administrative' litigation by ,c entering intoLan~ agreement with the utility, ,,q o Thefagreement was;.approvediby.the Licensing ai Board, and the Comanche Peak proceeding was closed. 'CPUR sought:to intervene and-reopen-it the case on'the ground-thgt.the CASE "$ N y settlement was improper:and7further safety'. / problems'at Comanche Peak war / anted continued. M y f litigation.: The NRC refused ~to allow the f u intervention for lack {of good cause under the 1 l NRC's ' late-filed" contention rule. Thes?ifth / J Circuit now has-af firmed' the> NRC decision. The court began its analysis with the, j proposition that:a' rem ewing court is..to be; especially deferential "Where, as here,'a -> l Court is reviewing an egency's-applicationcand i l interpretation of its own regulations'1(Slip s c l op. at 3257). The court upheld as reasonable L the NRC's viek that CFUR's " surprise' atLthe-2, f CASE settlement did not constitute " good cause' for trying to get into.the proceeding } a ,/ years after it started. The court viewed the; 't ni possibility of settlement ds a1 risk that CFUR " ' assumed' when it. origins!)f dropped out'of the case. The court also-held:t, hat the~NRC did s not abuse its discreti7n in rejecting CFUR's aJternative; argument that it had madeHa1 ' j " compelling showing' on>the other ' late-filed" contention standar.ds sufficient to overcome the lack-'of good cause9 r a n y j In a footnote the ecurt~se,ipcted as-moot a r claim by Joseph Mgcktal (whuse petition for review was' consolidated with CFUR's) that he !G should have been' permitted.to intervene in the CFUR proceeding to correct' statements made,by the NRC concerning.Macktal's settlement f= agreement with a comanche Peak contractor. / / h , f ,. ( *( ? 9

's 5 i-4, gs ?. ( .e 'w 3 4 e The Commissioners ,9 I, c h 1 1 As an Pa.td,e' W )ote I at, prior to the court j A of appeeds' deciaieny CFUR applied to the Suptsme Court for a 41 sty of lov power y operr.tidos at CotrucE4 Peak.- Justice White I denied dhe stay,,apr.lication on the sune day-it

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was filed. (No.c 'A-681,. March 30, 1990 ). Attachir.gnt - 2 : Pacision, j Contacts t f 4 Charles Mullini) x21606 N t Anthony V. HRC, No. 89-3603 (3d Cir. March 20, p 1990) y" g h This case involves Mr. Anthony's chA)1ttoge to the licensing of the Limerick facillhy. Mr. Anthory claimed thatetne Court's.).'em:And of Anthony v. Fic, 770 F.2d,LPS6=(3d Cir. 1985), entitled hTinTo a de novo tearing before a , lL ~ license could be gianted. On March 20, 1990, the Third Circuit issued a one-line opinion denying Mr. Anthony's l petition. The court gave no grounds for its l action. t : Judgment Order i,

Contact:

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~ 9 i l i Notiec his opinion is eunqiert to formaal revisloe beton pundlesties is the Federal Reporter er U.S. App.D.C. . Usen an.:-::rf to notify the Clerk of any forenal errors in that sortweiens may be made before the bound volumu so to pnen. I Entteh States Emirt of Appeals. t ~ pon fut DisTaser or coLountA coeurr l i Argued March 1,1990 Decided April 17, 1990' i No. 891017 ' Pusuc CmEEN, et al., PRTmoNEns l v. Nocts.An REcutawny Couwisstow and the UNrrto STAns or AMEnscA, nESPoNDENM NucutAn Urum MANAGEMENT AND REsovacEs CouNCg Dmr.nVENon ' On Petition for Review of an Order of the l Nuclear Regulatory Commission Eric R. Glitsenstein, with whom Diane Curran, David C. l Vladeck and Alan B. Morrison were on the brief, for' petl. I tioners. John F. Cordes, Jr., Attorney, Nuclear Regulatory Com-i mission, with whom William C. Parler, General Counsel, E. Leo Slaggie, Special Counsel, Nuclear Regulatory Com. l 1 Bille of costa must be Aled within 14 days aher entry of judgment. The court looks with disfavor upon motions to Ale bille of costa out of time. l s . _ _... _.. _ _. -. _ -. - ~...., _.. ~, _.. _. -. ~ - -...,

__ ~. _.. __. l, i l - l l i l \\ 2. mission, Eduard Shauwker and John Bryeon, Attorneys, Department of Justice, were on the brief, for respondents. i William H. Briggs, Jr. and Karla D. Smith, Attorneys, i Nuclear Regulatory Commission, and David C. Shilton, I j Attorney, Department of Justice, also entered appear-ances for respondents. John T. Boese, with whom Marcus A. Rouden was on j the brief, for intervonor, Before: WALo, Chief Judge, and MtuvA and EowAnos, Circuit Judges, Opinion for the Court 61ed by Chief Judge WALD. i WALo, Chic / Judge: The question presented is whether the United States Nuclear Regulatory Commission must l promulgate mandatory instructional requirements for the personnel training programs of civilian nuclear powerplant licensees, or whether the Commission may simply issue a

  • Policy Statement
  • that encourages, but does not compel, licensees to create training programs that meet criteria identified in the Policy Statement. We hold that Congress l

has ordered the Commission to prescribe criteria to which training programs must adhere. Accordingly, since the Commission has failed to do so, we remand the case for further proceedings. I. BACK0RoUND In 1979, an accident at the Three Mile Island nuclear" powerplant in Pennsylvania shocked the nation. A presi-l dential commission subsequently announced that inade-quate training-of employees at nuclear powerplants contributed significantly to the risks posed by such planta. See Kemeny Commission, Report of the President's Com-mission on the Accident at Three Mile Island (1979). In 1983, Congress enacted $ 300 of the Nuclear Waste Policy Act of 1982 [ sic),42 U.S.C. I 10226, which provides in rel-l evant part, The Nuclear Regulatory Commission is authorized and directed to promulgate regulations, or - other j l i v 3 -w,, --w-y y--rw ww- .. -. -mp.g-g-e-- e-*-9Tr--*e- -+-p*mi*,--tr#,e.y wr s e' WP eSe-'vr--we*+-s+8+s-+- ew'-w + e is t '--*am- --*m"r m-'"*W-

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l i 8 I appropriate Commission regulatory guidance, for the l training and qualifications of civilian nuclear power-plant operators, supervisors, technicians, and other ap propriate operating personnel. Such regulations or gu dance shall establsh... Instructional require-ments for civilian nuclear powerplant licensee per-l sor.nel training programs. Such regulations or other l regulatory guidance shall be promulgated by the l Commlulon within the 12 month period following l January 7,1983[.] In 1985, the Nuclear Regulatory Commission ("NRC" l or " Commission") purported to fulfill its responsibilities l i under i306 by promulgating the " Commission Policy l Statement on Training and Quali6 cation of Nuclear: l Power Plant Personnel," 60 Fed. Reg.11,147- (1986) l i (" Policy Statement"). The Policy Statement noted that L the industry's self regulatory efforts had made progress in improving training programs. Accordingly, the Commis-alon made a temporary decision not to engage in rulemak-f ing, but to monitor the success of industry programs over a two year period. Therefore, although the Policy State-ment set forth 6ve elements as being

  • essential to accept-able training programs," id, at 11,148, it_ did. not i

mandatorily require that licensees' training programs nat-I lefy these elements. Similarly, although the Policy State. ment encouraged all licensees to have their training l programs accredited by the Institute of Nuclear. Power Operations, the industry's self regulatory body, it did not i actually make accreditation mandatory. The Commission stated that it would

  • evaluate the possible need for fut-ther NRC action based on the success of industry pro-grams after a two year period." Id. at 11,147..-

In 1986, petitioner Public Citisen petitioned the Com-mission to issue binding regulations regarding training. First, it asked the NRC for rulemaking with respect to training, claiming among other things that the Policy Statement was insufficient to satisfy the Commission's obligations under I306. While its petition before the Commission was pending, Public Citisen sought review in i T ,.,,,w .c.. .. s. .,,,,_.,w, ,...i- - -.. m ..-.+

.i 4 i this court of the Commlulon's failure to luue regulations. [ While the lawsuit was pending, the Commission denied-l Public Citizen's rulemaking petition. 62 Fed. Reg.3121 (1987), Public Citizen did not seek court review of that denial, perhaps because it already had a lawsuit pending i t concerning the Commission's actions. This court, how. - ever, dismissed the pending action as having been Aled too - late to challenge the Comminion's 1985 Policy Statement and too early to be a petition for review of the denial of i Public Citizen's 1986 petition for rulemaking. Public Citi-men v. NRC, 845 F.2d 1105 (D.C. Cir.1988). Public Citi-sen's esorts in 1986 thus came to naught. Then, in 1988, the Commiulon revisited the training issue. As promised, it reviewed the industry's esorts to satisfy the training goals outlined in the Policy Statement, l t and concluded that they were working. Accordingly, the Commiulon decided once again to refrain from making rules regarding training, and instead republished the Pol-t icy Statement with some minor amendments. 53 Fed. Reg. 46,603 (1988). From this action, the petitioners (col - lectively referred to as *Public Citizen) petitioned for l review. II. TIMELDSSS Before we reach the merits of Public Citizen's chal-i lenge, we must decide whether it is timely. Public Citizen's petition can be viewed as arising under either the review provisions of the Hobbs Act or those of the Nuclear Waste Polley Act, which set deadlines of 60 and 180 days, respectively, for review of NRC action. See 28 U.S.C. t Il 2342(4),2344; 42 U.S.C. I 10139(c). Public Citizen Sled its petition for review within 60 days of publication of the i revised Policy Statement in 1988, but the NRC and the intervenors claim that it is untimely as not filed within 60 or 180 days of the NRC's promulgation'of the original Policy Statement in 1985. They do not accept Public Citi. sen's contention that the NRC first lasued a temporary e Policy Statement in 1985, and then in 1988 reconsidered I -.~ ~..

i l 1 1 i l l \\ 6 l s i the ordire training issue and decided to make its interim l I polie.v permanent. Rather, NRC and intervenors claim that ihe Commission made ita Anal and permanent deci-e j sion h 1986 not to issue mandatory regulations, and, in 19BS, made only minor amendments to that basic policy, l t The Commission's 1988 actions, they argue, did not ren-det the earlier deelsion not to issue mandatory regulations - l subjemo new court challenge. According to the NRC and l the:Intmenors, Public Citizen can now challenge only the - l non:tinuoversial 1988 amendments. In stveral recent cases, this court has wrestled with the l problem of whether an agency's restatement of an esisting i rule 02 policy in a rulemaking format makes the rule or l policy chs.11engeable anew, even where otherwise barred by t statutory time limit. The court has held that whm an ageney's actions show that it has not merely repub-l lished an existing rule in order to propose minor changes - t' to it, but has reconsidered the rule and decided to keep it in effect, challenges to the rule are in order. *(T]he gen-eral principle [is) that if the agency has opened the issue up anew, even though not esplicitly, its renewed adher-J ence is substantively reviewable? Association of American Railroads u.1CC, 846 F.2d 1465,1473 (D.C. Cir.1988). We have, for instance, inferred that an agency has reopened a previously decided issue in a case where the agency (1) proposed to make some change in its rules or policies, (2) called for comments only on new or changed provisions, but at the same time (3) explained the unchanged, repub-lished portions, and (4) responded to at least one com-ment aimed at the previously decided issue. State of Ohio l

p. U.S. E.P.A.,838 F.2d 1325,1828 (D.C. Cir.1988). The i

L language of State of Ohio appeared to suggest that the 1 time period for review would start afresh in any case meeting the four factors just stated (and, a fortiori, in a case meeting factors 1,3, and 4, and in which the agency called for comments on the whole rule, including unchanged portions). Nonetheless, more recently American fron & Steel Institute v. U.S. E.P.A., 886 F.2d i 390 (D.C. Cir.1989): placed some limits on that general l l 9 5 C ~ _ _ _ _ _ _ _ _ _ _. _ _ _ _, _. _._ _.

i 4 I l l t 6 i prinelple. The court there said that *[t]he 'repening' rule of Ohio v. EPA is not a license for bootatrap procedures by which petitioners can comment on matters other than those actually at issue, good an agency into a reply, and { then sue on the grounds that the agency has re opened ~ the luue." 886 F.2d at 898. lt appears, therefore, that the crucial question at this L juncture is whether an agency has in fact reopened an issue, explicitly or implicitly; the four factors mentioned i in State of Ohio are indeed relevant evidence of reopening, but the court cannot stop there, it must look to the entire context of the rulemaking including all relevant proposals and reactions of the agency to determine whether an issue was in fact reopened. if in proposing a rule the agency uses language that can reasonably be read as an invitation l to comment on portions the agency does not explicitly propose to change, or if in responding to comments the agency uses language that shows that it did in fact recon-sider an issue, a renewed challenge to the underlying rule or policy will be allowed. Compare 886 F.2d at 398 (agency l did not make sustained attempt to explain old rule and responded to comments by at most brieMy reiterating its prior reasoning; issue not reopened) with Association of American Railroads v. ICC,846 F.2d at 1473 (agency lan-guage was ambiguous, but because in proposing rule it had said it would attempt to "harmonir.e" existing decialons, a commenter who offered a compelling reason to abandon old decision would presumably have been heeded; issue reopened).- In the present case, there is fortunately no need to quibble about the precite quantum of evidence sufficient to show that the NRC reopened its prior decision not to Issue training regulations. Though the Commission now claims that it never reexamined its 1985 decision, and that the petitioners therefore may challenge only the minor amendments made in 1988 to the Commission's 1985 Pol-l icy Statement, the record before us could not be clearer that the Commission's 1985 action represented a tempo-rary decision not to engage in rulemaking on mandatory ....m.

i i i 1 l t training standards, and that the 1988 action reezamined l this choice and made it permanent. We cite here just a j few of the many indications that this is oo:- l (1) The 1986 Policy Statement aald that the NRC would " refrain from new rulemaking in the area of l training for a minimum period of two years," and I that it would

  • evaluate the possible need for further 3

NRC netton based on the success of industry pro-grams after a two year period." 50 Fed. Reg. at 11,147. (2) In 1987, after Public Citizen petitioned the NRC for rulemaking, the Commission stated in a letter to Public Citizen that the two year evaluation period would " expire" in early 1987. Supplemental Appen-dia 242. (3) In a Federal Register statement explaining the dental of Public Citiren's rulemaking petition, the Commission stated, *[t]he Commission decided :in 1985) to withhold action on promulgating new tram. ing and qualifications regulations during a short eval. e untion period." The Commission also noted that it i would " revisit the entire training issue around March 20,1987." 52 Fed; Reg. at 3124 25. (4) The Commission's 1988 statement said. that "[t]he two year evaluation period ended March 20, 1987" that "the staff evaluated the results of the INPO accreditation program," and that "the NRC ~ concludes that the program is effective." 53 Fed. Reg. at 46,604. In light of these statements, we cannot but conclude that the Commission, in 1988, reopened, reexamined, and reaf. firmed its 1985 deelslon to use exhortation rather than i binding regulations to improve the training of powerplant personnel. The evidence of reopening is in fact much stronger than required by our prior cases, for the Com-mission did not merely implicitly reexamine its former. choice; it did so explicitly. This reconsideration makes the decision subject to renewed challenge. P

- 1 s L l l i i l i g At oral argument, the Commission ofered a diferent reason why the decision to issue regulations should not i J be challengeable. The Commission argued that its 1985 action represented its Anal and unreconsidered decialon on the lawfulness of not issuing binding regulations; the-1988 action reconsidered only the wisdom of that doeision. Thus, even if the petitioners may now raise claims directed at the wisdom of falling to issue mandatory regu. lations (for example, that such action is arbitrary or capri-clous), they may not claim that the action is contrary to law. We reject this argument. In the 6tst place, in light of its statements quoted above, we think the Commisalon's characterization of its 1985 actions as a 6nal decision on the legality of not issuing training requirements is doubt. ful. It spoke then in terms of " withhold [ing) action... during a short evaluation period," a decision which hardly raises the same legal question as a final deelslon not to issue training requirements. But even if we accepted the NRC's premise that it had made a Anal decision on the legality of not issuing mandstory regulations back in 1985, I it still would not render the current challenge untimely. We held in Environmental Defense Fund v. EPA,852 F.2d 1816 (D.C. Cir.1988), cert, denied,109 S.Ct.1220 (1989),i that to the extent that an agency's action "necessarily raises" the question of whether an earlier action was law. ful, review of the earlier action for lawfulness is not time. batted. Id. at 1325; see also Cities of Batavia, Naperville, etc. v. FERC,672 F.2d 64,72 n.15 (D.C, Cir.1982) ("While a petition from on agency order cannot be 6 led after the statutory period for 611ng has run, it may be that 'some of the issues that might have been raised in that appeal are so inextricably linked to a subsequent agency opinion on another aspect of the same case, that those issues may be raised in a timely appeal from the second opinion.') (emphasis in original). In this case, the agency has reconsidered and reinstated its original policy; Such action, we think, necessarily _ raises the lawfulness of the original policy, for agencies i , + - < - _,,.. -, ,,..w_., w ,,m,, y w4.,.,,.g_ ,.w,,, _v q .,.,,.ei.,,w ,,-,-e,

~. 3 l l 9 t have an everpresent duty to insure that their actions are t lawful. An agency can hardly be heard to say that at a l time when it was considering whether to take a certain action, it would have steadfastly ignored a commenter's showing that the action was unlawful. Cf. Association of. l American Rollroads, 846 F.2d at 1473. We therefon think that a challenge to lawMness is now timely. See Nationsi Ass'n of Greeting Card Publishers v. United States heal i Service, 607 F.2d 392, 425 n.59 (D.C. Cir.1979) (court may [ examine " prior agency action on which the validity of the i l later agency action under review depend [s)"), cert. denied, - 444 U.S.1025 (1980). Furthermore, our holding is supported by this circult's long. standing rule that although a statutory review period permanently limits the time within which a petitioner may claim that an ager,cy action was procedurally defec-tive, a claim that agency ection was violative of statute - i may be raised outside a statutory limitations period, by filing a petition for amendment or rescission of the agen-cy's regulations, and challenging the denial of that peti-tion. See, e.g., NLRB Union v. FLRA, 834 F.2d 191,196 (D.C. Cir.1987); Natural Resources Defense Council v. NRC, 666 F.2d 595, 60102 (D.C. Cir.1981); Geller v. FCC, 610 F.2d 973,978 (D.C. Cir.1979); Functional Music v. FCC, 274 F.2d 543, 546 (D.C. Cir.1958), cert, denied, 361 U.S. 813 (1959). Were we to hold in this' case that Public Citizen's challenge' to the lawfulness of the NRC's action was untimely, Public Citizen could file a petition for rule-mak!ng and then raise its claim of unlawfulness when the Commission denied the petition." Such. a requirement-3We have said that "a protestant, who could have but did not seek review, may not create the basis for a reviewable order by unilaterally petitioning for repeal or amendment of a regulation." l State of Montano v. Clark. 749 F.2d 740, 744 (D.C. Cir.1984), cert, denied,474 U.S. 919 (1985). However, as a footnote to that staternent, we added that "where... the petitioner challenges the ' l' substantive validity of a rule, failure to exercise a prior opportu-nity to challenge the regulation ordinarily will not preclude - review."Id. at 744 n.8. (ernphasis in original). The State of Mon-p P -.ev e -4,y c- _.._r. 's,.. -,,.,.,mv,,,_,..e.e-- ...#..e. .y.-. e.

i l i i ) 10 would be a waste of everyone's time and resources.8 We l believe the law to be that where an agency reiterates a ~ rule or policy in such a way F to render the rule or policy j subject to renewed challenge on any substantive grounds, a coordinate challenge that the rule or policy is contrary. to law will not be held untimely because of a limited stat-utory review period.8 tono language therefore reflects our well established rule that a. procedural challenge to agency action must be brought withi statutory review period or be forever barred. Natural Resources Defense Council v. NRC, 666 F.2d 695 (D.C. Cir.1981) has also been cited for the proposition that 'those who have had the opportunity to challenge genera known to them at the time of their luuance? Id. at 602. However, that statement came at the end of a paragraph which clearly drew L the distinction between procedural and substantive-challenges, L and which stated that "we have scrutinized regulations Immune from direct review by reviewing the denial of a subsequent rule. making petition which challenged the regul Indeed, although the court rejected as untimely the petitioners' procedural challenge to the rule at issue, it went on to reach merita of the petitioners'. substantive challenge, id, at 603-06, i although that challenge was equally outaide the statutory deadline and equally based on grounds previously know procedural challenges.:The general policy in federal practic tion. See, , solidate related claims between two parties into one ac e.g., Fed. R. Civ. P.13,18 (Joinder rulcs); Mine Workers p. Gib 383 U.S. 716 (1966) (pendent jurisdiction). While we could not, of course, ignore a jurisdictional barrier in th (policy of Gibbs does not extend to bringing new parties into a case), we think considerations of economy pro raises the issue of the policy's lawfulness, so recent action. This is not to say that there may not be some other bar to the challenge, such as res judicata. collateral estoppel, or failure to 8 i

i ) J 11 In a last ditch effort to show untimeliness, the Commis-slon claims that assuming it made a renewed decision not to promulgate regulations, that decision was not made in i 1988, but in 198'!, when, in a paper that was made avail. l able to the public in the NRC public document room," Brief for Respondents at 23, the Commission approved a staff recommendation that it continue to defer rulemak. ing. Accordingly, the Commission claims, the timeliness of the petition for review should be measured from the 1987 date. This argument borders on the frivolous. Although'an agency has " considerable latitude in determining the I event that triggers commencement of the judicial review period," Associated Gas Distributors v. FERC, 738 P.2d 1388,1391 (D.C. Cir.1984), it must do so reasonably, Southland Mower Co. v. United States Consumer Product l Safety Commission, 600 F.2d 12,13 (5th Cir.1979), bear. ing in mind that "[b]efore any litigant reasonably can be expected to present a petition for review of an agency rule, he first must be put on fair notice that the rule in ,l question is applicable to him." Recreational Vehicle Indus-try Ass'n v. EPA, 653 F.2d 562,568 (D.C. Cir.1981). We i do not see how the mere placement of a declaion in an. agency's public 61es, without any other announcement,- l can start the clock running for review, particularly in view of the Hobbs Act's requirement that agencies promptly give notice of their final orders by service or pubilcation, 28 U.S.C. I 2344, and the Administrative Procedure Act's - provision that no person may be adversely affected by a matter required to be published in the Federal Register -i and not so published,5 U.S.C. I 552(a)(1). Potential peti-tioners cannot be expected to squirrel through the Com-nhaust administrative remedies, and store deckh may make such a challenge unlikely to succeed. Our holding relates only to the limitations imposed by a statutory review period. In this case, no - other limitation applies.- i e ~

12 mission's public document room in search of papers that might aflect $nal agency action.' Ac' ordingly,.we find the petitjon for review to be c timely. Ill. Maarm On the merits, the cruelal question before us is one of the Commission's discretion to pursue its preferred regu. 'latory philosophy. The NRC has decided that the best - way to get civilian nuclear powerplant licensees to improve training in their powerplants is not to impose mandatory requirements upon them, but rather to create what is in effect a "model training code" for powerplant operators, and to urge that licensees voluntarily comply with this code. Normally, of course an agency is free not to exercise ita compulsory power,s if it thinks almple exhortation would be sufficient to achieve its regulatory mission. The precise question at issue is whether Con. gress removed this discretion from the NRC by passing i 806. In resolving the difference between the interpretations of I 306 offered by the petitioners and by the Commission, we apply the rules laid down in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). First, we must decide' "whether Congress has directly spoken to the precise question at issue." Id. at 842. In determining the. intent

  • Furthermore, the documents (n question here do not read any.

thing like a final agency order. SECY.87131, reprinted in Joint Appendis (*J.A?) 89 74, the staff document approved by the Com. mission, recommends that the Commission continue to defer rule. making, but also recommends ht the Commission direct the staff to continue to eveuate industry implementation of the Pol. icy Statement and to revise the Policy Statement. J.A.74. This is hardly the stuff of which Snal orders are made; indeed, b Commission's approval of the staff recommendations demon. strates that it was still in h process of reconsidering h Policy Statement. We doubt whether a challenge to the Commission's approval of SECY.87121 would even have been within our juris. diction to review Anal agency orders. a ] 1 l l

i l l 13 l of Congress, we must look to "the particular statutory l f language at issue, as well as the language end design of the statute as a whole," K Mart Corp. v. Cartier, Inc.,108 j[ S.Ct.1811,' 1817 (1MS), and we must employ traditional tools of statutory constraction, including, whm appropri-I r i ate, legislative history. Ohio v. United States Department of the Interior, 880 F.2d 432, 441 (D.C. Cir.1989). If the l Intent of Congress is clear, we must give it effect. 467 U.S. r at 842 43 (" Chevron step one"). If, however, the statute la silent or ambiguous on a particular issue, we must defer l to the agency's interpretation of the statute if it is reason-l able and consistent with the statutory purpose. /d. at 844 l 45 (" Chevron step two"). We begin, therefore, by inquiring whether Congress made its intent on the question before i us clear in i 306. A. The Language of f 306 On its face,6 306, quoted earlier, sets out four emntial conditions for NRC compliance with its mandate: l (1) The NRC's action must-take the form of regulations or other appropriate Commission regulatory guidance; (2) The NRC's action must establish instructional i requirements for civilian nuclear powerplant licensee personnel training programs; / (3) The NRC' ' action must be promulgated; and (4) The NRC's action must be promulgated within 12 months of January 7,1983. The two key ' phrases in i306 for our purposes are " regulatory guidance" and " establish... Instructional requirements." 1.

  • Regulatory Guidance" Section 306 does not compel the NRC to promulgate regulations; it requires regulations or other appropriate

" regulatory guidance." Congress' use of the term " guidance" in i 306 is what keeps this case from being trivial. To give " guidance" certainly can mean,in ordinary 1

t 1 ) J l 7 l' I .4 parlance, to give advice, or suggntions. The term is not i inconsistent with the notion of mandatory regulations, i but neither is it inconsistent with a bortatory, rather than a mandatory, administrative regime. i The section, of course, does not simply require I

  • guidance"; it requires " regulatory guidance." However, we do not believe the modifier " regulatory" clari6es the i

ambiguity in the word " guidance." The term " regulatory guidance" is not a well established term of art. Indeed, I 306 appears to have been the first section in the entire United States Code to un the term, and a computer-assisted search reveals that apart from its um in l806, the term " regulatory guidance" now appears in just two other places in the Code. The 8rst place is 15 U.S.C. l l 12641(a)(1), the " findings and purpose" section of the l Asbestos Hazard Ernergency Response Act (AHERA). Section 2641(a)(1) notes that because of the " lack of regu. 1 story guldance* from the EPA, some schools have not' undertaken response action to the problem of asbestos. The AHERA therefore requires the Administrator of the' EPA to promulgate regulations establishing procedures for determining-whether asbestos. la preent in school buildings and defining and requiring the implementation of appropriate response actions. I 2643. i The other place in which the term appears is in 20 U.S.C. $ 1234b(c), a section of the National Aspasment of Educational Progress Improvement Act. The section deals with the ability of the United States to recover edu-cation funds improperly spent by states and-localities. The section 'provides that recovery of misspent funds shall be reduced if there are mitigating circumstances; the term mitigating circumstances is narrowly defined to include ortly a few situations, such as when the state or locality actually and reasonably relles on erroneous writ-ten guidance provided by the Department of Education. i 1234b(b)(2). The petion concludes by saying that *[t]he Secretary shall periodically review the written requests for guidance submitted under this section to determine the i i ,_...w.,...,r,. ,,m,,,.,, ,_m --.m

j l 6 16. i need for new or supplementary regulatory or other' guld. ance under applicable programs." iIt84b(c). l This concluding distinction between

  • regulatory
  • and
  • other" guidance suggesta that regulatory guidance is guidance provided by regulations. This provision seems to tell the Secretary to decide, based on the volume of requests for guidance received, whether a particular polat a

could bsst bs nsolvsd by the iseuance of a general regula. l tion. Like the AHERA's curing of the

  • lack of regulatory l

guidance" by requiring the creation of binding regulations, this provision therefore suggests - that.

  • regulatory l

guidance"la not a mere suggestion, but guidance provided i 'in a binding reguletlon. i However, we do not think these two usages of the ters (both of which, incidentally, came after the enactment of I 306) establish a clear meaning for the somewhat arcane. j term. The heavily optional flavor of the word

  • guidance" suggests that " regulatory guidance" could also mean guld.

i ance from a regulatory agency; that is, the very sort of. r set of voluntary suggestions that the NRC has promul. gated here. Accordingly, if l 306 said only that the NRC was required to promulgate regulations or other appropri. ate regulatory guidance concerning plant personnel train-ing, we would hold that it was ambiguous as a Chevron step one matter. l 2.

  • Establish... Instructional Requirements
  • However, apart from " regulations or other appropriate regulatory guidance," l 300 provides another, clearer indi-cation of Congress' intent. The-statute decrees that the regulations or guidance, whatever they be, must " establish '

... Instructional requirements for civilian nuclear power. plant licensee personnel training programs" (emphasis added). The word

  • requirements," unlike the word-
  • guidance," clearly suggests a mandatory regime. Cer.

tainly in common parlance

  • requirement" means-some-thing compelled, not merely suggested.

More important, the congressional command to

  • establish requirements," unlike the command to give i

i l l i l I l l 16 j

  • regulatory guidance," is a familiar one. Numerous stat-utes instruct an agency to establish requirements, and l

almost always in a content that makes clear that the requirements must be mandatory. For instance,30 U.S.C. j $ 871 provides that *(elech coal mine shall be provided i [of Labor) shall establish minimum requireme i type, quality, and quantity of such equipment." One would hardly surmin from this language that Congrees wanted the Secretary merely to exhort coal mine operators to i have minimally suitable Bre6ghting equipment on hand; i indeed,30 U.S.C. $ 861(b) providu that * } i this subchapter is to provide for the imm[t)he purpow of' U.S.C. I 4022 provides that

  • tion of mandatory saf 3

shall establish foreign language [t]he Secretary [of State] pro 8clency requirements for members of the Service who are to be assigned abroad .... The Secretary of State shall arrange for a i language training of members of the Service..ppropriate .in order requirements must be me[t; one could not pic t retary merely eahorting his own subordinates to learn-l could be cited. See, e.g.,15 U.S.C. I 78o(c)(3) ( i by rule or regulation establish minimum Anancial respon. sibility requirements for brokers and dealers) 42 U.S.C. I6922 (EPA shall promulgate regulations e;stablishing standards which shall establish requirements for genera-i tors of hazardous waste). Congress uns very different lan-guage when ' instructing an 'a to establish (EPA shall prepare gu. See, e.g.,gency42 U.S,C. I 69 nonmandatory guidance idelines for procuring-agencies ) chasing recycled goods).which shall *ut forth recommen t Thus, when Congress co:nmanded the. NRC to

  • establish... Instructional requirements," it used a com-mon statutory formula and so must have intended to invoke the formula's clear, well understood meaning. Cf.

HecMer v. Chaney, 470 U.S. 821, 835 (although statute j 1 l L j \\ l l

i i 17 provided that thou who violate its substantive provisions

  • shall be imprisoned... or fined," this language is com.

j monly found in criminal statutes and does not divest a enforcing agency of enforcement discretion). A call for l ' requirements" assumes that the regulated community i will be required to follow training dictates. B. Legislative History The legislative history also supports our reading of the i statutory test.' Senator Lowell Welcker, the author of I 306, stated that it

  • require [s] that the Nuclear Regula.

tory Commission-within the next 12 months-proceed to develop firm regulations for the proper training and requalification of nuclear powerplant operators, supervi. sors, technicians, and other appropriate plant personnel." 128 Cong. Rec.32,543 (1982) (emphasis added). Senator Welcker went on to say that there was a need for the NRC immediately to ? undertake the effort to establish firm regulations and guidelines for l operator)' training programs," id. (emphasis added), and that in view of the large number of plant personnel that would be hired over o i the next decade *it would be folly to enter this period of. Intensive recruitment without strict guidelines and regula. tions outlining how these personnel are to be trained."Id. at 32,544 (emphasis added). Senator Weicker's statementa clearly show that he intended the section to compel the NRC to utablish mandatory requirements for operator training programs. Of course, the remarks of a single legislator regarding a bill are not controlling as to its interpretation. See, e.g, i United States o. McGog, 831 F.2d 1071,1090 (D.C. Cir. 1987).' In this case, however, the remarks simply reinforce %e petitioners argue that we should give Senator Welcker's statementa more weight than a single legislator's statements usu. ally receive, because of the unusual circumstances surrounding the - ensetment of I306: the section was appended to the Nuclear Weste Policy Act on the last day of the legislative session, and since there was no time for it to go to committee, the bill's manas. ers in the two houses of Congress negotiated the test of the sec. r

j I i l i l 18 t what the languay of the bill already makes clear: that 1 Congress commanded the NRC to develop mandatory i 4 requirements. The remarks also strongly suspst that we are correct in reading the ambiguous term *mgulatory i guidance" as meaning some form of mandatory instrue. i tion, at least in the contest of this statute. e C. NRC Arguments The NRC urps that we interpret the phrase

  • establish

... instructional requirements" in light of the term " regulatory guldance." Since the latter term, according to i the Commission, clearly provides that the Commission i need not lune mandatory regulatJons, the term " requirements

  • cannot have its ordinary meaning. We dis.

i agree, however, for two reasons. I First, even if we assumed that the term " regulatory l guidance" unambiguously referred to a set of nonmanda. tory suggestions, we would not agree that the Commlulon could satisfy its obligations under i 306 by simply issuing i such suggestions. The issuance of regulatory guidance would satisfy only one of the Commission's four clear obli. gations under i806. The'second sentence of I306 i unequivocally shows that whatever the Commlulon's reg. ulatory guidance is, it must utablish instructional requirements, and nonmandatory sugpstions fall to do this. When Congress givw an agency its marching orders, the agency must obey all of them, not merely some. The NRC cannot claim to ful611 its obligations under i 306 by issuing regulatory guidance unless that regulatory guld. ance establishes instructional requirements,- tion and utablished a legislative history by submitting statements and colloquies for publication in the Congensional Record. See 128 Cong. Rec. 32,944 1982 ager for the House, re(prese),ted "the full equivalent of n of the section itselfis clear and that Senator Welch merely reinforce that meaning, we End it unnecessar whether they should *,ceive more weight than y to consider that usually accorded to statements of a key legislative player. ....,-m,, ,m.m ,y,..

} I 1 l l l l 19 Second, we do not believe that the term " regulatory 1 guidance" unerrin gestions. Rather, gly points to a set of nonmandatory i as discussed previously, we-And that term itself to be ambippus. Its usage in other statutes suggests that an equally plausible meaning is some form-L of mandatory instruction from a regulatory suency. Of i [ course, when a statute that is entrusted to an a ministra. tive agency contains an ambiguous term, it is generally for t the agency, rather than for this court, to interpret that' j i term, within the bounds of reason and consistently with 1 the statute's purpose. But in this case, the NRC has taken j the impermissible step of plucking the ambiguous term l out of its context in the statute interpreting it in a vac ' 1 l uum, and then twisting the mea,ning of the unambiguous term in the statute to fit its interpretation of the ambigu-out one. This is going about statutory interpretation back-4 wards. When a statute contains a clear term and an i ambiguous term, the ambi in light of the clear one, guous term must be interpreted i not vice versa.. The NRC therefore erred in deciding that the term " requirements" was ambiguous in light of its reading of i the term " regulatory guidance." Rather, the clear com-mand that the NRC establich Instructional requirements suggests that the ambiguous term " regulatory guidance" thould be construed in accordance with the principle ejusdem generis: since " regulatory guidance" is a general term that is coupled with a specific one (" regulations"), it should take its meaning from the specific term. What-ever regulatory guidance is, it must share the crucial qual. ity of regulations; that is, it mu.st be mandatory. The Commission also argues that its Policy Statement establishes what amount to requirementa,in view of the practicalities of the relationship between the NRC and the regulated community of nuclear powerplant licensees. The Commission claims that its policy statement " require (s) i licensees to develop personnel training programs that- [ meet) the guidelines or, if they contemplated any signifi. cant changes or delay, be prepared to justify their actions to the NRC or face NRC enforcement action." Brief for I 5 i - - -... -..,

.c. q 3 i Respondents at 31. The Commission argues that

  • setting out clear guidelines for training programs in the policy i

statement and related documents, backed by vigorous i oversight and an enforcement policy whereby enforceable orders or license conditions would issue if training or i promulgating ' requirements' as the term is used in s{ 306." Id. at 30. We simply do not see how these alleged characteristics of the current enforcement regime, even if accurately i described, satisfy the con training requirements." gressional command to establish } The Commission concedes that "unlike a regulation, a policy statement is not a ' binding l norm' that is immediately enforceable when its terms are 3 i violated." Id. at 31 n.22. At oral arrument, the Commis. I sion's counsel conceded further tsat-the failure of a licensee to follow the suggestions contained in the Policy Statement could not itself be the basis for an enforcement action against the licensee; the Commission would be obliged to show that the licensee's plant was' unsafe as I that term is defined by statute and the NRC's enforceable regulations. Thus, when the Commission claims that " enforceable orders or license conditions would issue if training or qualification deficiencies were found to exist," It cannot mean that the sufBelency of training would be' l l measured by the Policy Statement. The Commission, of 1 course, can always take action against a licensee under its general power to insure that powerplants are safely oper- + ated, but the Policy Statement adds nothing to the Com-mission's arsenal of enforcement powers; since the Policy Statement is not an enforceable rule, the Commlulon, in any enforcement action, would be obliged to support its' policy by reference to other authorities just as if the Pol-icy Statement did not exist. See Pacific Gas & Electric Co. t

u. FPC, 506 F.2d 33, 38 (D.C. Cir.1974). Therefore, while it may well be that most or even all licensees comply with the Policy Statement voluntarily, to say that compliance is a requirement is to mock the word " requirement."

l The Commission might perhaps be arguing that its whole process ofissuing the Policy Statement, monitoring j i .._._ __.+...,.... -.... -. -.,,.~...,,...-,_~y ~.y--,,.. ~,,,., ,.~.e ..-e.- r ,,y, cr, ~ ,e.-

v. w -.,... -

i 4 y i I' j 21 } l industry's compliance, and imposing enforceable condi-l tions on licensees that do not comply, amounts to estab. lishing requirements within the meaning of I 806. That is, the Commission might be saying that it can establish l requirements by a continuing process that includes case-by case impositions of requirements on particular licens-t l ees. If this is what the Commission is saying, however, it will not do. Normally, to be sure, an agency has consider-able discretion to establish norms by a4udication rather than by rulemaking. NLRB v. Bell Aerospace Co.,416 U.S. l 267, 294 (1974); SEC v, Chenery Corp.,832 U.S.194,303 j (1947). Section 306, however, directs the Commission to j " promulgate" its regulations or regulatory guidance, which - i immediately-suggests rulemaking rather than a4udica. tion, and goes on to say that the regulations or guidance must be promulgated "within the - 12 month : period i following" January 7,1983. This deadline is clearly incon-sistent with a policy of establishing requirements by a process of case by case a$udication. The thing the Com-mission promulgates must itself establish requirements. This the Policy Statement falls to do. Finally, the Commission and the intervenor argue that the Commission's imposition of mandatory requirements will make the nuclear power industry len safe, because it will choke of the industry's self regulatory e# orts;licens-ees will regard the Commlulon's requirements as a maxi. l-mum rather than a minimum level of-appropriate training. Whatever we thought of the merits of this argu-ment, we would have no authority to disregard the means that Congress has choun to achieve its objective of improved training. The Commission and the industry must take this argument to the Congress, not to the courts. i IV. CONCW$loN We believe the language and history of I806 clearly support the petitioners' claim that the Commission's actions have not satisfied its obligations under that sec.

t t 22 \\ tion We hold, under Chevron step one, that the intent of 2 Congress in passing i 306 is clear, and that the Commis- { slon must follow it. Because Congrus directed the NRC to create mandatory requirements for cMllan nuclear werplant licensee personnel traininit programs, and ause the Commission has failed to to so we roma the case to the Commission for further proc,edings con. 1 'alstent with this opinion. e ~' it is so ordered, + i ( i 1 L k u l c l l 7'

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m' 4 CITIZENS FOR FAIR UTILITY REG. e. U.S. N.R.C. 3264

1. Administrative Law and Procedure CIT!ZENS FOR FAIR UTILITY
  1. 450 REGULATION, Petitioner.

Electricity ple v, _ Citisens' association did not establish good cause for reentering nuclear power UNITED STATES NUCLEAR REGULA. station licensing procedure after having TORY COMMISSION and the United dropped but alx years previously, by assert-States of America, Respondents. Ing that its earlier withdrawal was based on a belief that another citisens' association Nos. 69-4124, 89-4310. . participating in proceeding would represent its interesta and that reentry was prompted United States Court of Appeals, by surprise settlement between that associ-Fifth Circuit-ation and utility. April 12,1990.

3. Administrative Law and Procedure
  1. 451 Electricity >10 Citizens' association sought to inter-Citisens' association was not entitled to vene in nuclef.t power plant licensing pro-make untimely intervention in nuclear pow.

coeding. The Nuclear Regulatory Commis-er plant licensing procedure, on grounds eion denied pet tion to intervene, and group that it could contribute to a sound record; i otptaled. The Coart of Appeals, Johnson, association had been absent from proceed-Circuit Judge, heH that: (11 association ing for over six years and could not point failed to establish good cause for faihire to to any specific accomplishments during its make timely intervention: (2) association tenure as a participant that would establish failed to establish that it would contribute a contribution to record, or indicate any to a sound record; and (;l) asmoeiation failed potential witnesses it intended to call at to establish its intervention would not de-hearing in support of such claim. lay proceeding or broaden issues.

4. Administrative Law and Procedure Affirmed-well i

Electricity >10 9."".d showm. ""*that its untimely interven- "# " 0"

1. Administrathe Law and Procedure g
  1. 763 tion m nuclear power plant licensing pro-In reviewing agency action, Court of ceeding would not cause delay or broaden L

Appeals will defer to agency judgment un-issues; petition to intervene was filed after less action is arbitrary, capricious, abuse of proecedings had been dismissed and associ-discretion or otherwise not in accordance ation had been absent from proceeding for with law; standard is even more defer-six years; evidence indiented that associa-ential where review involve 9 agency's ap-tion would be seeking to raise issues in the l plication and interpretation of its own regu-area of quality control and quality assur-lations. 5 U.S.C.A. 6 'l06(2KA). anee which had been previously resolved. Svnopsm, Syllabi and Key Number Classifistunn COPYklGHT 01990 ty wI'8T Pt'BLISHING CO. The Synopsis. Syllabi and Key Number Classifs enten consutute no part of the opinion of the tourt. i )

mw g ~9 x o_ b t Stu CITIEENS FOR FAIR UTILITY REG. v. U.S. N.R.C. Petition for Review of Orders of The base of citisent whose primary concerns Nuclear Regulatory Commission, are safe, affordable and environmentally acund energy. Since its founding in 1976, Before WISDOM, POLITZ and CTUR has been dedicated to environmental JOHNSON, Cireult Judges, and energy education." Petitioner's Brief at IHi. In 1979, CFUR was granted inter. JOHNSON, Circuit Judge: venor status in Comanche Peak's licensing - In early February 1990, this Court denied proceeding. At the same time, Citisens a motion to stay proceedings filed by Citi. Association for Sound Energy (CASE) and sens For Fair Utility Regulation (CPUR). Association of Communities for Reform CPUR's motion requested that the issuance Now (ACORN) were also granted inter. of an operating license for the Comanche venor status.' ACORN later withdrew Peak Nuclear Power Plant be stayed pend. from the proceedings in 1981,- CFUR with. ) ing this Court's decision on the merita, drew' from the proceedings on Apr,il 2, Our denial was predicated on a determina. 1982. The proceedings continued with tion that CFUR had failed to demonstrate a' CASE as the sole intervenor.' substantial likelihood of success on the merits of its claim that the Nuclear Regula. By 1954, the proceeding had reso!Md all tory Commission (NRC) erroneously denied contentions with the exception of ot4 relat. CFUR'r late-filed motion to intenene in the ing to Quality Control / Quality Assurance - licensita proceedings. Texas Utilitics Elve. (QC/QA) in the Mnstruction of Ibe plant, tric Co.. et al. (Comanche Peak Steam Elte. On June 2h 19Fti, CASE and TU f.'lectric tric Station, Units 1 and 2). CL1-86-12. 28 reached a settlement agrrement terminut. NRC 605, 607 (1988) (hereinafter CLl-BS-ing the existing proceedings.' Concluent. 12); 10 C.F.R. H 2.714(aX1)(i-vl. We turn ly, CASE, TV Electrie, and the NRC staff now, in this opinion. to address the merits submitted a joint motion to si1+miw N - of CTUR's claim. proceedings as settled. - On Job 18.1988, the Licensing Board held a public ndtjng. +,

1. FACTS AND PROCEDURAL HISTO After receiving comments from the parties #

RY and interested members of the public, the j CPUR is a Tarrant County based public Board issued an order dismissing the pro. interest organisation " representing a broad ceedings. / L

1. The NRC provides a two stage agency pro.

adjudicatory proceeding commences when *. k cess for consideration of those aspects of the NRC publishes notice of proposed scion hcensing a nuclear power plant related to in the Federal Register, The notice inch des protecung public hethh. safety and the envi-a time period during which interestetl per. tonment. 42 U.S.C. 6 2011 et seq.! 42 U.S.C. sons may file a request for a hearing or '.lle a 6 4321 et seg. On February 28.1978. Texas petition for lease to intervene. 10 U.F.IL Utihties Electric Company (TV Electric), the. 66 2.105(d); 2.714(aXI). CTUR. CASE, and owner of the Comanche Pcal station. filed ACORN filed timely petitions to intervene, an application for a license to operate Co-manche Peak. The Atomic Energy Act re.

2. CFUR's brief points out that this settlement quires a hearing on a construction permit marks the first time an imenenor (CASE)ln apphcation but permits the NRC to issue an a nuclear power plant licensing proceedinr/

operating license in the absence of an adjudi. has received financial tenumeration in'the catory hearing if one is not requested. An context of a settlement agrcement. e l / .,s ' A J yj' Ik a f .c .r M. /^v- '

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/ t y t' CITIZENS PVR l' AIR IAILITY REG. e. U.S. N.R.C. 38M i I On Ausbt 1L 1988, CFUR filed a into

2. the aesilability of other means

~ j F petition behre the ATnic Safety and Li-cencieg Board aceking to intervene in the wherel'y the Mtitioner's interest will be protected: Comanche Feabqroceedings. At the time of this fding, CPUn'a petition was filed

3. the extent to which the petitioner's nine years oytef time, six years after participation may nasonably be expected d

to assist in developing a mound record; d'q CFUR's columary withdrawal, and a month afttr the her4 rings had been dis,

4. the extent to which the petitioner,s

' miswd, CFUR filed two supplements to interest will be represented by existing its initial petition. In the first, CFUR al. parties: and leged that Joe.eph J Macktal, intervenor in

6. the extent to which the petitioner's the instant case, had expressed safety con.

partleipation will broadrn the issues or eerna but was prevent +d from raising them leeckie of an illegal agreement between r, delay thearoceedily, 0 th/ Comanch Peak et ntractor, Brown & The burden), on the ' etitionel to demon. p pot.andC E attorneya.8 In the second strate that 'a haho:ing of these "facton supplement ft'R alleged thai TO Electric weighs in favor f. grantirtf fe untimely. had u,cd certqn materials in the construo pt tion.. Metropolitan Edid ' do, tThree A' tion of the,wv~r. in violauon of both the Mile Island Nuclear Station, b it U, CL1-manufhetunrls directinns and the approved A 25. Itt NRC 32109S5). If the petitioner design of coa.iwhe Ptuk, fails to show good caun fodilum to file ^ ~ On lice nNr 21, IM, the NRC, m on time, then the petitior%r) bound to,[, make a compelling showing c,? ae remain-10, c)uding that t.FCh a rution fatled to r4 tis, ing four factors before intepention it prop-. fy the five fauor tekt governing late fikd Sff' '4., L ng Island Ligh 'P-ptitions for intervention. denied the pett; ny Ghoreham Nuclear Power.m}ips Compa >../. tion, Unit tion to intervene. Texas UTties.LeeWe 1), ALAB-T43,16 NRC 3R109E3h Nuclear

Compny, CLl46 It 103Q d.

Fuel Services. Inc. (West Valley keprocess, L i 2.710aul-v). f ing Planti CLI-TM 1 NRC 273 0975). Tb NRC may exercit.e its heretion toin supp rt of its patidon, Cr R alleged j grant a late filed petition if it finds that a that it withdrew from the procc}ulty;s du favorable showing has been made on the to a financial inability to continue and in 1.o following five facton: nHann on We assumption that CASE would continue to Mtigate the proceedings. 1

1. good caur.e for failure to file on time: CFUR further argued that it had no alter-

, h{

3. On December 16.1989. Mncktal filed a peth lt i

uon to intenene in the Cl UR proceedin on 88-06, the Secretary ot.aber ruled on the tahdity of the dispM)prosision, found in a limited inue concerning the nature e the ./+ i setdement agreement. We note here that wiid against public policy, and severed that 7 -\\ prmision, Mack & v. Brown & Root. Inc., 'this inue has become moot. The NRC has ~, { [ wnbJrawn any comment on the legality of Docl.et No. 6twisRA-2M2. Order Rejecting in Madtars settlernent tpreemem and indh Pars and Approving in Part Settlement Be. i a , :ated that iy decolon to deny CITR's petb tusen the Parties and Disn4 sing Case at /,on was inc@endem of the validity of that 1014 (Nov.14,1989). Conspmn.i.v. Mack-j aercement. Memorandum and Order CU. . tars claim that he,tr e/ Wm,adiced by the 1-

g. '18-06. r,Subwquent to the issuance of CU-NRC's imerpretationf s this apeement is

/ moot. r f ).s nt l ( .{ ~ j,. n .k)~ ? 4 U b'. Jy w ~ m ' ' "

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? d- @R V f .o; -i- /yy u p '[ h g 3357' ' 01712 0 4 FOR FAIR UTILITY REG. v. U.S. N.R.C. 1 /v.r i native means to protect its' interest and ' Vaney Cit /sens Council, - U.S. m that it could make impodent contributions 109 S.Ct/1885,1104 L.Ed.2d 851 (1989). to the reterd. ' Finally, CFUR argued that - .J

i allowing it to intervene would not delay the - -(2) CFUR bases its argument as to thol first factor, good cause, lprimarily 1 or, proceedings which were dismissed prior to ~ CFUR's previous participation and CFUR's petition to intervene.

tive reliance on CASE's continued parth > 1 The NRC concluded that CFURihad ipation; CFUR oints out that " CASE, as T failed to demonstrate good cause for the, a Mexempt organization, had been more late filing of the petitjon to intervene.-- 11.W successful in fund:3ising, and since CFUR NRC ' then dcArmud' that CPUR, had had rd estabilshe.d itself as a tax exempt failed to make~ a compelling showing on the organirition, CASE was likely to be in a i remaining four factors. While the NRC /better position to raise funds for a com-did find that'two of the four fae. ors (the bined effort. CFUR decided to withdraw availabit;ty. of other means of protecting in favor of CASE." Petitic,r.ers B'id ati r the petitioners' interests and the extent to CFUR further argues that the settlechnt whid. the petitioner's intercst will be repre-agreement between CASE and TU Electrii ' sented by existing parties), the NRC found was unprecedented and that CFUR had no that the remaining fdctors weighed heavily in fjcation that such action might occur, ~ against OFUli,. Accordingly, the NRC de. nied ti., gtition to intervene based on-1While this Court does not doubt the ve p CFUR's unire to make a compelling show. r,Wity of CFt:R e allegation of suivriMt F ing on the remaining factors, ' CASE's etdemet.t such action on the part e of UASE. in r,d of itself, does not create CFUR now urges this Court to find thkt good cause Er CFUlys late.fikd petition to the NRC abusi.d its discretion by find;ng intervene. RC ; prceedent ' consistently that CPUh had failed to meet the five and clearl < un'tes that a potential inter-requirements for intervention vider 10- cenor cannot rely ou another intervenor to - C.F.R. I 2.714; we decline to do tp pr%ent a certain view or represent certain l-t interests without assuming the risk that -

11. DISCUSS 10N '

' tt.e intervenor will'not do so.' See, c.p., ' Gulf States Utilities Computy (River Bead. l [1] In reviewing agency action, ' this Station, Units 1 and 2), ALAB-H4,6 NRC i Court will defer to agency judgment unWss 160 (1977);\\Easton Utilitics tomrnission ( the' action is " arbitrary, capricious, 'an v. AEC, 424 F.0d - 47 (D.C,MIMO). U [ abuse of discretion, or otherwise not in - CFUR argues that Rirer Bend and Earton \\', j. accordance with law." 5 U.S.C. ' are not appropriate authority for _the in-i 706(2 (A)! Sec c.p., Baltimore Goa & 'stant case because of the extensive prior Electric Co. v. NRDC, 462 U.S. 87,103 involvement of CPUR in the procriefogs.

  • f We do not agree. :While CFUR uppsrtic-

/ l S.Ct. 2246, 76 L.Ed.2d 437 (1983). This. standard is even more deferential where, as ip.te in the early stages of the p< eeedings. here, a Court is reviewing an agency's ap-it withdrew in 1982, some sir., years before plication and interpretation of its own regu. the ultimate cettlement. At the time of the. j lations. See, c.p., Robertson c. Melhor filing of the petition to inte.tvene, CTUR i ( W y t-r / v i p. 1 4 y e I ,) ) / o W s

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.. a.. ,g)kh 'y y4 j 3 3 { CITIZENS FOR FAIR UTILITY REG. v. U.S. N.R.C.' J Jt 3268 was a legal stranger to the action.' As the true ability to contrib' te to the record nr is u NRC succinctly cated, 9CFUR assumed. merely attempting to step in to delay the l, the risk that CAGE wou'&not represent its proceedings or otherwise act as a nuisance interest w its complete satisfaction when it intervenor. The Appeal - Board has' ' withdrew feom the proceedings in 1982.- It stressed the importance of specificity as cannot novt complain when that risk be-this factor, comes reality." CLI-512 at 6. Mississippi Power and Light Company- (Grand Gutt Nuclear Station, CFUR next argues that, even in the ab. Units 1 and 2), ALAB-704,16 NRC 1725' ( sence of a determinatico of good cause, the = 0982). NRC abused its discretWn by falling to find -. In light of the lack of specifielty provi that a compelling dowing in support of . intervention hul been' mr de as to the re-by CPUR, the NRC concluded.that th_is 'I xh l maining fouc factors. The NRC did find in factor weighed heavily against the~ petition-t )q 1. CPUR's favor on two of '.he four factors; er. This attributior, of weight was not an abuse of discretion.5 / '4 however, the NRC cnneluded that the re-

  • [" '

J.~ h. maining f wo 'f.vrors weighed heavily. [4]; Finally, CFUR has failed to demon-l' . against CFOR. T54e NRC concluded that CFUR ha'd failed y make a compelling-strate that it would not delay the procee+ i showing, and we ewmor conclude that this ings or broaden the issues. CFUR's peti - determir.u.oh waiva abuse of discretion. tion was filed after the proceedings had been dismissed;, CFUR has been absent [3} In nralyting the third factor, the 'from the proceedings for six years; and ability to cont ibute Ao a sound record, the petition filed by CFUR indicates that, NRC pointed to CPUP's six year absence at least in the area of QC/QA, CFUR will. i from the proemlirgs nnd to CFUR's fail-attempt to raise additional concerns. ure to point with specificity to any specific . Based on the foregoing, we cannot say secomplishments during its tenure as a par. that the NRC abused its discretion in find. / /1 ticipant or to any. potential. witnesses it Ing that CFUR failed to make a compelling intended to call at the hearings.- Specificity.. showing as to the remaining four factors.j is inherently necessary in order te allow ' Although two of the factors did weigh In ~ the NRC to weigh the equities to determine if a compelling showing has been made. CFUR's favor, these two factors are to be Without specificity, the NRCis forced to accorded less weight. Commonwealth Edi. act as a mystic when determining if the son Co. (Braidwood Nuclear Power Station, Units 1 and 2), CL1-86-8, 23 NRC :241 potential intervenor has demonstrated a (1386). I T CFUR also argues that the circumstances 4. P Imply a " sound foundation" lor replacement the tuues rained by the Licensing Board la because of the exutence of the Macktal earher proceedmss.7 Prior to this peittion. agreement. As we noted in footnote 3. the CFUR filed a petition to intervene which the .j N, L.lcensing Board permitted to be withdrawn - issue involving that agreement is. moot; (i ,) CFUR cannot rely on such an agreement to without prejudice. In doing so, the Board \\ estabhsh good cause for its late. filed petition. indicated several areas which CFUR should i 5. Balancing this factor against CFUR is fur. address in order to demonstrate CFUR's abil. ity to contribute to a sound record.. CFUR ther supported by CFUR's failure to address did not fully address these issues. -) p J \\ e [ ) [', 1 J );) t _ 4 .,I ,f r5

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a 0 3259 _ CITIZENS FOR FAIR UTILITY REG. v. U.S. N.R.C. Ill. ~ CONCLUSION obligated to make a_ compelling showing as - - The action of the NRC in denying the - to the remaining factors. The NRC did not late filed petition for intervention is not _ commit reversible error in concluding that l such a showing had not been made, Conse. arbitrary, capricious, or contrary to exist. quently, we affirm. ing law. Having failed to demonstrate good cause for the late filing, CFUR was AFFIRMED - p r-1 a i-1: i l '- J i .s Adm. Office, U.S. Courts-West Publishir.g Company, Saint Paul, Minn. I L o i

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SUPREME COURT OF,THE UNITED STATES l OFFICE OF THE CLERK i WASHINGTON, D. C. 20543 4 JO EPH F. SPANIOL, JR., amta coot m CLERK OF THE COURT 4430H March 30,._1990 i Mr. Charles E. Mullins Office of. General Counsel U.S. Nuclear. Regulatory Comm. i Washington, DC 20555 Re: Citizens for Fair Utility Regulation,

v. Nuclear Regulary Commission and United States

-Application No. A-681 l

Dear Mr. Mullins:

The application for a stay 'in the abov6--entitled-case has been presented to Justice White,'who_on March 30, 1990 endorsed thereon the following: "The application is denied. Byron R. White. 3/30/90" i very truly yours, JOSEPH F; SPANIOL, JR., Clerk By m Francis J..Lorson Chief Deputy Clerk NOTE - FOR YOUR INFORMATION: A copy of this letter has been. sent to all interested parties shown on-the attached i' ,7 notification list. e

' t'i > L w ' l p.) "y,. SUPREME COURT OF THE UNITED STATES 3 :. ~ OFFICE OF THE CLERK WASHINGTON, D C. 20543 JOSEPH F. SPANioL,'JR., CLthM OF THE Count. Anta coot 202 - "W" p l- . NOTIFICATION LIST l .Mr. Richard Lee Griffin' 600 North. Main' Street > Fort Worth, TX 76106 Mr. Kenneth W.'Starr Solicitor General- .f L U.S.: Department of Justice -i Washington,. DC 20530 Mr. George:L. Edgar Newman & Holtzinger, P.C. 1615 L Street, NW .c Washington, DC 20036 Mr. Stephen M..Kohn 'Kohn, Kohn & Colapinto 517 Florida Avenue, NW Washington, DC 20001 I Mr. Charles E. Mullins Office of General Counsel U.S. Nuclear Regulatory-Comm. Washington, DC 20555 'I l i i 5 5 4 ,,,,e. ,e-.,a

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07.' O [" ' ~.$ f. j .i >, o t UNITED STATES COURT OF APPEALS-i FOR THE-THIRD CIRCUIT-j l ] No. 89-3603 i 3 ROBERT L. ANTHONY, Petitioner r v. UNITED STATES NUCLEAR-REGULATORY COMMISSION, l Respondent PHILADELPHIA ELECTRIC' COMPANY,

Intervenor-On Petition for Review of a Decision-and Orders of-the NUCLEAR REGULATORY COMMISSION (Board Nos. 50-352-OL-2, 5 0-3 5 3 -O L-2, 5 0 -3 5 2 -OL', and 50-353-OL)-

United States Nuclear Regulatory Commission: 'I Submitted Under Third Circuit RuleL12(6) i February 9, 1990 ll s Before: HIGGINBOTHAM, Chief Judae, j-STAPLETON and'SCIRICA, d y_q1Lil Judaej L JUDGMENT ORDER 1 After consideration of the contentions raised:by Petitioner, Respondent, and Intervenor, it is i ORDERED, : ADJUDGED, and-DECREED that.the Petition for Review of the Order of the Nuclear Regulatory Commission dated q

E- -u 3).4 q 9 August 16,.-1989' denying Petitfoner's. petition for intervention be and'is hereby denied.1' BytheCourt,h_ ///f 1'. i Circuit Judp ATTEST: ^- Y &$464f4fK_ Chief Deputy Clfk [ DATED: MAR 2 01990 Certified as a true copy and issued in lieu of>a formal; mandate on April 11, 1990. ] Testi Chief Daputy C1 rk, U.S. Court of Appeals for the Third Circuit i 1 1. PECO's motion to dismiss the Petition-for Review with respect to the August 16, 1989 order denying Petitioner's petition ~for intervention is denied. PECO's motion to dismiss the Petition for Review of the Orders of the Nuclear Regulatory Commission dated July 7, 1989 and August 25, 1989 is granted inasmuch *as petitioner lacks standing to seek review of.these Orders. .}}

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