ML20035C576
| ML20035C576 | |
| Person / Time | |
|---|---|
| Issue date: | 03/19/1993 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-93-070, SECY-93-70, NUDOCS 9304080132 | |
| Download: ML20035C576 (15) | |
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ADJUDICATORY ISSUE I
(InforfTlation)
SECY-93-070 March 19, 1993 FOR:
The Commission FROM:
John F. Cordes, Jr.
Solicitor
SUBJECT:
LITIGATION REPORT - 1993 - 03 Allied-Sicmal, Inc.
- v. NRC, Nos. 91-1407, 91-1435, 92-1001 & 92-1019 (D.C. Cir., decided March 16, 1993)
These consolidated lawsuits challenged the NRC's annual fee rule for fiscal year 1991.
FY 1991 was the first year that the NRC was required by statute to collect 100% of its budget from its licensees through annual fees and user fees.
See 1990 Omnibus Reconciliation Act, 42 U.S.C.
2214.
The court of appeals (Williams, Silberman & D. Ginsburg, JJ) has issued a decision upholding the rule in part, remanding aspects of the rule for reconsideration and requiring the agency to grant an exemption to one of the petitioners.
In several respects the court's decision is helpful to the NRC.
First, the court found no Congressional directive that the I
NRC must spare from annual fees those licensees who cannot " pass through" NRC fees to customers.
Second, the court approved the NRC's generic approach to fee-setting, finding unworkable petitioners' argument that the agency should adjust each licensee's annual fee according to the amount of regulatory attention it receives.
Finally, the court upheld the NRC's
" equal fee per license" approach to allocating fees among licensees in each category (power reactors, fuel fabricators, uranium mills, etc.).
The court remanded the case to the NRC to reconsider two questions:
(1) whether the agency inequitably exempted colleges and universities from fees because of an inability to " pass through" costs while declining to give the same treatment to private businesses; and (2) whether the agency unreasonably apportioned fees for low-level waste without regard to the actual waste generated by each licensee.
The court pointedly declined NOTE:
TO BE MADE PUBLICLY AVAILABLE AMOORO IN 10 WORKING DAYS FROM T E O
2 930319 DATE OF THIS PAPER
[
93--070 PDR Nt
e e
2 to vacate the annual fee rule on these grounds, but left to the NRC the responsibility either to change its rule appropriately or to reaffirm it on the basis of a fresh statement of reasons.
Lastly, the court ordered repayment of annual fees assessed against Combustion Engineering for one of its two licenses.
The court accepted Combustion Engineering's argument that its special situation -- it maintains two licenses for one uranium enrichment process -- entitled it to an examotion under the NRC's " fairness and equity" standard for exemptions.
Granting exemptions to CE for FY 1991 and 1992 will result in refunds totaling more than one million dollars.
The NRC has 45 days to seek rehearing in the court of appeals and 90 days to seek certiorari in the Supreme Court.
After consultation with the Controller's Office, we will submit a recommendation to the Commission on how best to respond to the court of appeals decision.
Attachment:
DC Circuit Decision
Contact:
L. Michael Rafky 504-1974 pow v.
NRC, No. 92-1376 (D.C. Cir., decided March 4, 1993)
Last summer petitioners, who have filed several previous lawsuits (all unsuccessful) challenging the licensing of the Comanche Peak nuclear power plant, attempted late intervention and reopening in three long-closed Comanche Peak proceedings.
In August the Commission denied petitioners' request under its Part 2 standards.
Petitioners sought judicial review.
A motions panel of the D.C.
Circuit (Mikva, CJ, Williams & Sentelle, JJ) has now summarily affirmed the Commission's denial of late intervention.
The Court concluded that "[t]he merits of the parties' positions are so clear as to warrant summary action."
Attachment:
D.C.
Circuit Order
Contact:
f Charles E. Mullins 504-1618 DISTRIBUTION:
7q "3s Commissioners OPA OGC OCA Joh-Cordes, Jr.
OCAA OPP Sol itor OIG EDO SECY
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ATTACHMENT -
i Allied-Slanal. Inc. v. NRC, Nos. 91-1407, 91-1435, 92-1001 & 92-1019 (D.C. Cir., decided March 16, 1993) l I
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e Notice: This opinion is subject to formal revision before publication in Users are requested to the Federal Reporter or U.S. App.D.C. Reports.
notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press.
tRniteb States Court of Eppeals FOR THE DISTRICT oF COLUMBIA CIRCUIT Argued November 5,1992 Decided March 16, 1993 No. 91-1407 ALUED SIGNAL. }NC, PETmONER v.
U.S. NUCLEAR REGULA'mRY COMMISSION AND THE UNITED STATES OF AMERICA.
REsrONDEm No. 91-1435 CoMausTIon ENGINEERING. }NC, PETmONER v.
U. S. NUCLEAR REGULATORY COMMISSION AND THE UNITED STATES OF AMERICA.RESPONDEm Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out of time.
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3 No. 92-1001 Before: SILBERMAN, WILUAMs and D.H. GINsBURG, Circuil Judges.
CounUsnoN ENGINEERING, INC l
PETITIONER i
Opinion for the Court filed by Circuit Judge WituAMs.
i WILUAMS, Circuit Judge: Congress has directed the Nucle-v.
ar Regulatory Commission to recover 100% ofits costs from U.S. NUCLEAR REGULAWRY COMMISSION those who receive its regulatory " services" and to allocate the gggg3 ufairly and equitably" among those recipients. Petition-AND THE UNITED STATES oF AMERICA.
ers Allied Signal and Combustion Engineering challenge an NRC rule making that allocation; they also attack the NRC's denial of various requested exemptions from the fees. They allege that the Commission's actions did not satisfy Con-No. 92-1019 l
gress's " fair [] and equitabl[e]" standard and also were arbi-trary and capricious. We agree in part and remand the cLse AtuEn SIGNAL. INC i
to the Commission.
PETmoNER Under authority granted in the Independent Offices Appro-priation Act of 1952 ("IOAA"),31 U.S.C. i 9701, the Commis-v.
sion has long charged fees to any person who received a U.S. NUCLEAR REGULNmRY COMMISSION.
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" service or thing of value" from the Commission. (That term REslVNDENT includes, perhaps oxymoronically, " regulatory services" such as permit processing.) In 1986, Congress expanded the NRC's recovery authority in the Consolidated Omnibus Bud-Petitions for Review of An Order of get Reconciliation Act of 1985 (" COBRA"), Pub. L. No. 99-the U.S. Nuclear Regulatory Commission 272,100 Stat.147, and authorized it to recover 33% ofits total annual budget through fees. Because 10AA fees could not generate that sum, Congress allowed the NRC to assess fees not only for the service-specific costs covered by IOAA but John Hoff, with whom Leonant A. Afiller was on the brief, also for the Commission's generic costs of operation (e.g.,
for petitioner Allied Signal, Inc. in Nos. 91-1407 and 92-1019.
costs associated with rulemaking proceedings or safety re-Harold F. Reis, with whom Afichael F. Healy was on the i
search). Later acts raised the budget recovery level to 45%
brief, for petitioner Combustion Engineering, Inc. in Nos. 91-for the years 1988 through 1990.' In carrying out the 33%
1435 and 92-1001.
and 45% recovery mandates, the Comnussion imposed fees for generic costs only on licensees who operated nuclear L. Afichael Ra/ky, with whom William C. Parler, General i
Counsel, John F. Cordes, Sr., Solicitor, and B. Leo Slaggie, Power reactors, reasoning that they absorbed the most regu-Deputy Solicitor, U.S. Nuclear Regulatory Commission, and Katherine Adam 4 Attorney, Department of Justice, were on 3 See Omnibus Budget Reamciliation Act of f937 Pub. L. No.
100-203,101 Stat.1330-275; Omnibus Reconciliation Act of1939, the brief, for respondents.
Pub. L. No. 101-239,103 Stat. 2132.
4 5
latory resources. See Florufa Pouer and Light Co. v. United cannot pass the costs fonvard. Allied draws a sharp contrast States, 846 F.2d 765 (D.C. Cir.1988).
between UF. converters and other NRC licensees such as In the 1990 Omnibus Reconciliation Act ("1990 OBRA"),
electric utilities, which it says are readily able to pass the e sta on to customers. The Comnussion disputes none of Pub. L. No. 101-508,104 Stat.1388-299, Congress raised the these assertions.
recovery mandate for 1991-95 to 100% of the Commission's l
I budget, see Pub. L. No. 101-508,6 6101 (codified at 42 U.S.C.
Allied's statutory theory rests both on the 1990 OBRA and j
$ 2214), and told the Commission to promulgate a rule appor-on the legislative history of 1986 COBRA-the latter being l
tioning the generic fees " fairly and equitably" among licen-explicitiy linked to the 1990 OBRA via its legislative history.
sees. Id. at 5 6101(c)(3) (codified at 42 U.S.C. 6 2214(c)(3)).
Section 6201(c)(3) of the 1990 OBRA (codified at 42 U.S.C.
The legislation further said that "[t]o the maximum extent i 2214(c)(3)), provides that practicable, the charges [ assessed by the rule] shall have a
[t]he Commission shall edablish, by rule, a schedule of j
reasonable relationship to the cost of providing regulatory charges fairly and equitably allocating the aggregate i
services and may be based on the allocation of the Commis-amount of charges
[necessary to recoup 100% of the '
sion's resources among licensees or classes of licensees." Id.
Commission's budget].
After notice and comment, the Commission issued a rule (Emphasis added.) The Conference Report to the 1990 purporting to carry out these directions. In doing so, it OBRA states that the Commission has "the discretion... to imposed fees on virtually all licensees. See Revision of Fee assess annual charges against all of its licensees." H.R. Conf.
Schedules; 100% Fee Recovery (the " Final Rule"),56 Fed.
Rep. No. 964,101st Cong., 2d Sess. (1990), at 961. At the Reg. 31,472 (July 10,1991) (codified at 10 CFR 99 52,71,170, same time, however, the Report expressly " reaffirm [s] the and 171).
statement of the [iloor] managers [of 1986 COBRA] on the i
present authority" of the NRC to assess fees. Id. That I
statement in turn declared that it was the " intention of the Allied, a uranium hexaflouride (UP ) converter, first com-conferees that, because certain Comnussion licensees, such as plains about the Commission's failure to consider the inability universities, hospitals, research and medical institutions, and of UF. converters to " pass through" OBRA fees to custom-uranium producers have limited ability to pass through the ers-i.e., to recoup them in whole or in part by raising prices.
costs of these charges to the ultimate consumer, the Commis '
Allied asserts that the Commission's treat 2nent of the issue sion should take this factor into account in deternunmg was inconsistent with OBRA and also with the NRC's treat-whether to modify [its] current fee schedule for such licen-ment of other licensees' passthrough capability.
sees." 132 Cong. Rec. H3797/3 (March 6,1986) (emphases Allied's claim rests on simple facts. It explains that domes.
added).
tic UF. converters compete with foreign UF. converters who The statutory language and legislative hiatory do not, in are not subject to NRC licensing and thus are not required to our v;ew, add up to an inexorable mandate to protect classes pay NRC fees. Competition, it says, is stiff; success in of licensees with limited ability to pass fees fonvard. Even l
bidding on UF. conversion contracts often turns on differen-the 1986 legislative history, written in the context of CO-tials as small as one cent per pound. Fees imposed under the BRA's less-demanding 33% recovery mandate, only directed Final Rule, however, add up to almost five cents per pound of the Commission to "take account" of passthrough consid-UF..
Because adding the fee to their prices will drive erations, which would not necessarily entail that those consid-customers to foreign converters, domestic UF. converters erations control. Moreover, the 1990 Conference Report e
a r m.
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explicidy said that Congress preserved NRC's discretion to much confidence, the Commission's refusal to read the statute impose fees on "one or more classes of non-power-reactor as a nigid mandate to do so is not only understandable but licensees if the Commission believes it can fairly, equitably, reasonable.
and practicably do so."
H.R. Conf. Rep. No. 964, 101st It does not-follow, however, that the Commission's applica-Cong.,2d Sess. (1990), at 961. Even if we were to give the tion of the statute was in every respect reasonable. If legislative history great weight, we could not conclude that i
6 die fees through can be determined with
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Congress has 'directly spoken' to whether the Ccmmission reasonable accuracy and at reasonable cost for specific classes must spare licensees that cannot pass the fees forward. See of licensees, there appears no reason why the Commission Chevron v. Natural Resources Defense Council,467 U.S. 837, should not do so. In fact, the Commission has made such a 842 (1984). The question therefore is whether the Commis-deterndnation for another class oflicensees, even though that sion's interpretation is reasonable. See id. at 845; Chemical dass's claim seems no better founded than the claim of the Afanufacturers Ass'n v. EPA,919 F.2d 158,162-63 (D.C. Ctr.
domestic UP. converters.
1990).
Specifically, in the Final Rule the Commission exempted The Commission offered two j.ustifications for its dec..ision nonprofit educational institutions from payment of certain to disregard the passthrough concerns of UFs converters.
1990 OBRA fees. See 56 Fed. Reg. at 31,487/1-2,31,491/1-2; First,it argued that it could not adjust fees based on competi-10 CFR 6171.11(a). This appears to be based at least in tive impact because the 100% recovery mandate of 1990 OBRA vid require any abatement of fees for one class of part on the rationale that such institutions "have a limited licensees to be recouped from others. See Final Rule, 56 ability to pass the[] costs on to others." Final Rule,56 Fed.
Fed. Reg. at 31,476; Letter of NRC Denying Allied Exemp.
Reg. at 31,477/1-2 (1991).2 See also 56 Fed. Reg. at 31,487/2 tion Request at 3-4. However, while one could argue that it (speaking of educational institutions' " limited ability to pass is unfair to charge any regulatee more than its pro rata share regulatory costs through to Oneir clients").
of generic costs (and not unfair to excuse some regulateea The Comnussion nowhere explains how it was able to make from paying all of their pro rata share when less than 100 this finding for non-profits but is not able to resolve die percent must be recovered), that potential explanation does elasticity claim one way or the other for domestic UF.
not carry the day here. The Commission's willingness to converters. The Commission does not so much as hint at make an exemption for nonprofit educationalinstitutions be-data relating to the markets in which educational institutions lies the assertion that it will not charge any regulatee more serve their " clients"a Neither does the Comnussion explain than its pro rata share.
This passage relates to the service-specific fees, but no indepen-Nonetheless, the Commission also pointed to an entirely dent justification for the exemption from generic costs appears, and legitimate concern-the difficulty of assessing the ability of the Comnussion here seems to assume that the explanation extends its 9000 heensees to pass through costs. See NRC Denial of to the generic. See Commission Brief at 8,19-20.
Allied Exemption Request at 4.
A firm's ability to pass through a burden to its customers depends on the price
- We note that for educational institutions with certain types of licenses, the exemption is unavailable with respect to activities such elasticities of supply and demand. " Inelastic suppliers and as "[r]emunerated seivices lperformed for] other persons" and demanders pay taxes." Donald N. McCloskey, The Applied ernmen e n ee R
unper a a
es m
Theory of Price 324 (1982). (While the fees are technically i 171.11(aK2) & (4). This exclusion from the exemption, however, not taxes, the same principle apph.es to costs generally.)
is I mited to specific types of licenses, namely " byproduct, source or Because these elasticities are typically hard to discover with special nuclear material licenses."
8 9
why a demand elasticity calculation was any easier or less the Commission would need to refund all 1990 OBRA fees costly to complete for educational institutions than for UF.
collected from those converters; in addition it evidently would converters. Thus the Commission's denial of relief for UP.
be unable to recover those fees under a later-enacted rule.
converters, both at the rulemaking and the exemption stages, See Rouen v. Georgetown University Hospital,488 U.S. 204, cannot be viewed as reasoned decision-making.
203-09 (1988) (rejecting retroactive application of rules even An inadequately supported rule, however, need not neces-l if perating only to cure defects in previously enacted rule).
Therefore, because of the possibility that the Commission sarily be vacated. See, e.g., International Union, UAfW v.
1 J
may be able to justify the Rule, and the disrupt 2ve conse-FAfSHA, 920 F.2d 960, 966-67 (D.C. Cir.1990); Afaryland People's Counsel v. FERC,768 F.2d 450,455 (D.C. Cir.1985);
quences of vacating, we remand to the-Comnu,ssion for it to develop a reasoned treatment of exemption claims based on ICORE, Inc v. FCC, Nos. 91-1401 & 91-1655, Slip op. at 12 (D.C. Cir. February 19, 1993). The decision whether to Passthrough limitat2ons.
vacate depends on "the sedousness of the order's deficiencies Combustion Engineering also raised a related passthrough (and thus the extent of doubt whether the agency chose argument-that long-term fixed price contracts in its sector correctly) and the disruptive consequences of an intedm of the industry constrain its ability to pass through costs and change that may itself be changed." International Union, therefore require some sort of gradual phase-in. See Com-920 F.2d at 967.
ments of Combustion Engineering, May 13,1991 at 2. On It is conceivable that the Commission may be able to remand, the Commission must address tids claim as well.
explain how the principles supporting an exemption for edu-cational institutions do not justify a similar exemption for g
domestic UF. converters. For example, the Comndssion may develop a reasoned explanation based on an alternative justi-Allied also argues that the Commission's apportionment of fication that it offered for the non-profit educational institu-fees within the class of domestic UF, converters violated the tions' exemption-that " educational research provides an im-1990 OBRA. Allied argues (again without dispute by the,
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portant benefit to the nuclear industry and the public at large Commission) that it has required much less regulatory atten-and should not be discouraged." 56 Fed. Reg. at 31,477/2.
tion than the only other member of the UF. converter class, While this reference is quite vague-the benefits of UFs the Sequoyah Fuels Corporation, because of the latter's envi-conversion can hardly be deprecated merely because the ronmental problems. See NRC Denial of Allied Exemption converters operate in a conventional market-perhaps the Request at 7. Thus, Allied says, allocation of the fees equally Commission's focus is on education, with the idea that edu-between the two UP. converters violated the 1990 OBRA's cation yields exceptionally large externalized benefits that directives that OBRA charges be apportioned " fairly and cannot be captured in tuition or other market prices. We equitably" and that "[t]o the maximum extent practicable, the cannot tell at this point whether the exemption for education-charges shall have a reasonable relationship to the cost of al institutions could be reasonably rooted in such a theory, l
providing regulatory services."
Pub.
L.
No. 101-508, but there is at least a serious possibility that the Commission f 6101(c)(3) (codified at 42 U.S.C. 5 2214(c)(3)). Allied con-will be able to substantiate its decision on remand.
tends that the Conumssion instead ought to have divided the At the same time, the consequences of vacating may be class's fees either in proportion to the amount of NRC quite disruptive. Even assuming that we could merely vacate attention required by each converter or in proportion to the,
the rule insofar as it denies an exemption for UF. converters, service-specific (10AA) fees paid by the two converters.
11 10 costs in accordance with each dass's contribution to the total Allied's argument fails because it disregards the premise that 1990 OBRA fees are not service-specific: they do not quantity of LLW. Because materials licensees (a group that relate to identifiable services but rather constitute generic includes UP. converters) collectively generate 40% of the costs. See Final Rule, 56 Fed. Reg. at 31,472. Assuming nation's LLW, the. Commission allocated 40% of its LLW that the Commission correctly classified the costs in question costs to that class. See id. When it turned to apportionment (and Allied does not contest the dassification), there is a of those fees among the materials licensees, however, the presumption that even regulatory effort precipitated by the Commission abandoned that approach and simply assessed circumstances of a single licensee of a given class will yield each large fuel facility (of which Allied is one) an identical results, such as research findings or regulations, of roughly charge of $143,500. For explanation, the NRC offered only the condusory statement that "[t]he Commission be-equal importance for all members of the same class.
lieve[s].
the surcharge should be the same for all large This condusion is not undermined by the Commission's fuel facility licensees." See Final Rule, 56 Fed. Reg. at willingness to apportion 1990 OBRA fees betneen groups of 3I'481-licensees on the basis of the attention required by each group.
See Final Rule, 56 Fed. Reg. at 31,476; Letter of NRC The Commission provides no rationale for apportioning Denying Allied Exemption Request at 2, 4-5.
First, the costs among classes of LLW producers on the basis of LLW spillover of benefits seems far greater tcithin a group of output but refusing to apply that same yardstick in apportion-licensees than between groups. See id. at 5. Second, the ing generic costs within classes, and no rationale is readily admuustrative costs of group-level apportionment are obvi-apparent While it is conceivable that the real benefit of ously much lower than licensee-level apportionment because LLW disposal services is merely the availability of such the number of licensees greatly exceeds the number of services-in which case a flat fee would make sense-any such idea is inconsistent with the Conunission's method of groups.
apportioning LLW fees among classes of licensees, which IIere, neither of the measuring devices proposed by Allied appears to assume that benefit is proportional to LLW quan-was workable or accurate enough to warrant our holding the tity. If, on the other hand, any licensee's benefit from LLW Commission's rejection of them arbitrary or capricious. Any disposal is directly proportional to its LLW disposal, appor-correlation between a licensee's 10AA (licensee-specific) costs tioning even generic costs on the basis of output seems to and its benefits from generic costs seems purely coincidental.
make sense-not only as to classes but also as to individual And to use as a yardstick each member's tendency to precipi-licensees. Finally, assuming that the Commission calculated tate regulatory effort would not only disregard spillover each dass's quantity of LLW waste from data supplied by effects but would raise exceptional measurement problems.
each licensee (as seems necessarily true), it is hard to see any See NRC Denial of Allied Exemption Request at 4-8.
adnm, dstrative problem with apportioning the fees within the dass on the basis of output; the data are available and the yyy required computations would be rudimentary.
Allied makes a narrower attack on the Comnu.ssion's rejec-In applying the balancing of Internatimmi Union and like tion of intra-group apportionment, namely that the Commis-cases, we here give little weight to the possibility that the sion was arbitrary and capricious in failing to apportion the Commission could pull a reasonable explanation out of the generic costs associated with the disposal oflow level radioac-hal Nonetheless, vacating the intra-class apportionment of tive waste ("LLW") on the basis of each licensee's actual LLW costs would give licensees a peculiar windfall; even waste. See Final Rule, 56 Fed. Reg. at 31,497; 10 CFR nes that benefitted from the Commission's choice would 5 171.16(e). At the class level, the Commission allocated
t 12 13 presumably be entitled to a refund, and, under Geogetown Combustion attacks both the regulation imposing the
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University Hospital, the LLW costs could be recovered from
" equal fee per license" rule and the Comnussion's denial of an no one. To be sure, the costs are not great, absolutely or as a exemption. Both claims rest ultimately on the 1990 OBRA's proportion of the Commission's $465 million budget for FY direction that fees must be apportioned " fairly and equitably" 1991-$3.8 million. See 56 Fed. Reg. at 31,486, 31,497. But and that "[t]o the maximum extent practicable,.
charges that alone is hardly a reason to create such a windfall.
shall have a reasonable relationship to the cost of providing Accordingly, we refrain from vacating the rule. If on remand regulatory services." Pub. L. No. 101-508,5 6101(c)(3) (codi-the Commission concludes that the apportionment must be in fled at 42 U.S.C. 5 2214(c)(3)). Although we find the first accordance with usage, then those firms whose burden is claim unconvincing, we agree that die Commission has not lower under a new, non-arbitrary, rule should be entitled to justified its refusal to give the requested exemption.
refunds of the difference.
The argument that the " equal fee per license" rule is If indeed the remand leads to replacement of the per-
"[un] fair and [in]equitabl[e]" is persuasive only on the ground l
licensee allocation, and licensees erdoy only refunds for the that the rule produced troubling results when applied to difference between liability under the old rule and liability Combustion's circumstances-which Combustion itself asserts under the new (rather than total refunds), it might be argued are unusual. We see no reason for requiring the Commission that such a result allows the new rule to have " retroactive to attend to that rather rare situation in the rule itself, cf.
effect", in violation of Geometown University Hospital. See NLRB v. Bell Aemspace Co., 416 U.S. 267 (1974), especially 488 U.S. at 208. There is, plainly, some retroactive effect.
as the generic rule allowed (generically) for exemption.4 The effect, however, is only to define that aspect of the old rule that must be cut away as legally excessive. We do not Combustion's exemption argument, however, has merit.
r read Georgetown as barring so limited a retroactive impact The Commission's own criteria call for an exemption if the licensee can show that "the assessment of die annual fee IV wl uld] result in a significantly disproportionate allocation of costs to the licensee." 10 CFR 6171.11(d). The double
, Finally, Combustion Engineering challenges the Commis-assessment against Combustion's two licenses increased its sion's decision to allocate OBRA fees equally to each low OBRA fees by $836,500. Against this, the Comnussion is able enriched uranium (" LEU") manufacturing license instead of to point to almost nothing by way of greater costs. Speaking dividing the fees equally among the LEU manufacturing to the issue in unusually murky, discursive language, the licensees. Combustion owns and operates two LEU facilities, NRC in substance could point to only two additional bur-each separately licensed, and Combustion asserts that in the dens-the need to mail an extra copy of certain NRC publica-aggregate the two are operationally equivalent to the single-tions to the second facility and the need for two different plant, smgle-license, facilities of the other LEU manufactur-NRC regional offices to monitor and respond to allegations At oral argument Combustion explained that it has two ers.
licenses for the facilities only because of historical chance; it 4 Insofar as Combustion argues, in parallel with Allied, that bought a company with a separate license almost 20 years ago i 6101(cX3) of OBRA generally requires intra-group apportionment and until the Commission implemented the current OBRA fee on the basis of factors such as the amount of attention a licensee schedule there has never been any reason to consolidate the requires, the competitive position of the licensee, and the safety licenses. As before, the Commission disputes none of these riska posed by the licensee's activities, we reject it for the reasons contentions.
stated as to Allied.
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--y
14 about the two plants. See NRC Denial of Combustion Ex-emption Request at 5-6.
The double burden for Combustion, measured against de minimis additional burdens for the Commission, amply over-comes the hurdle established by 10 CFR I 171.11(d).* 'Ihus the exemption denial is arbitrary and capricious. We there-I fore direct the Commission to grant an exemption for Com-bustion on the additional fees collected as a result of the double-licensing of its operation.'
Wo remand the case to the Conumssion for a reasoned and coherent treatment of (1) licensees' claims for special treat-ment on the basis of inability to pass the burden of the fees through to customers and (2) the method of apportioning generic LLW disposal costs among materials licensees. In addition, we direct the Commission to grant an exemption to Combustion for the generic fees attributable to the double-licensing of its LEU operation.
So ontered.
510 CFR I 171.11(d) also contains two other factors that the C-miaaion shall consider when evaluating an exemption request.
Although parts of 6171.11(d) are ambiguous regarding whether an applicant must fulfill all, or only one, of the factors, the fact that an cpplicant could not " fulfill
- the criterion listed in i 171.11(dX3)-
"[n]ny other relevant matter that the licensee believes shows that the annual fee was not based on a fair and equitable allocation of NRC costs"-reveals that the " factors" should not be read as cordunctive requirements. The factors instead seem to be best understood as independent considerations which can support an exemption.
"We are not required to address Allied's fee exemption request because of our previous disposition of Allied's other claims. The aspects of Allied's request dealing with passtbrough ability and LLW fees are almost certain to stand or fall along with the remanded clauns; and the aspect clamung that OBRA requires licensee-specific calibration of fees fails.
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l ATTACHMENT -
Dow v.
NRC, No. 92-1376 (D.C. Lir., decided March 4, 1993) t r
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Q Knifeb $tnics @ourt of hpcal.,
TOR THE Di$1RICT Of COLUMBIA circuli N o.92-137 5 September Term,19 92 amted States Court of Appeab For the District of Columbia Grcult Sandra Long Dow, doing business as M M 04 093 Disposable Workers of Come.nche Paak Steam Electric Station:
RON GARVIN R.
Micky Dow, CLERK Petitioners v.
Nuclear Regulatory Commission; United States of America, Respondents Texas Utilities Electric Company, Intervenor BEFORE:
Mikva, Chief Judge; Williams and Sentelle, Circuit Judges ORDER Upon consideration of the motion for summary affirmance, respondent's response in support thereof, the court's order to show cause filed January 6, 1993, and the lack of response thereto, it is ORDERED that the order to show cause be discharged.
It is FURTHER ORDERED that the motion for summary affirmance be granted.
Respondent's application of 10 C.F.R. 5 2.714 (a) (1) to petitioners' petition for late intervention was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.
See Massachusetts v. United States Nuclear Reaulatory Comm'n, 924 F.2d 311, 324 (D.C. Cir.), cert. denied, 112 S. Ct. 275 (1991);
Citizens for Fair Util. Reculation v. United States Nuclear
Knifeb $ faits Gourt of Appeals iOR THE DISTRICT Of COLUMBIA circuli N o.92-137 6 September Term,19 S2 Reculatory Comm'n, 898 F.2d 51, 54 (.5th Cir.), cert. denied, 111 S.
Ct. 246 (1990).
The merits of the parties' positions are so clear as to warrant summary action.
See Cascade Broadcastina Group, Ltd. v.
FCC, 822 F.2d 1172, 1174 (D.C. Cir. 1987) (per curiam); Walker v. Washincton, 627 F.2d 541, 545 (D.C. Cir.) (per curiam), cert, denied, 449 U.S. 994 (1980).
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition S_e_e D. C. Cir. Rule 15.
for rehearing.
e Per Curiam 49
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E John F. Cordes, Jr., Esq.
U.S. Nuclear Regulatory Commission (NRC) General Counsel Mail Stop(15-B-18)
Washington, DC 20555 l
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