ML20058K114
| ML20058K114 | |
| Person / Time | |
|---|---|
| Issue date: | 11/09/1990 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-90-380, NUDOCS 9012070184 | |
| Download: ML20058K114 (58) | |
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,f ADJUDICAkbRY ISSUE Onf0rR1adOn)
November 9, 1990 SECY-90-380 FOR:
The Commissioners FROM:
John F. Cordes, Jr.
Solicitor
SUBJECT:
LITIGATION REPORT 1990-31 Nuclear Information and Research Service v. NRC, No. 89-1381 (D.C. Cir., November 2, 1990)
This lawsuit challenges the NRC's new Part 52 system for licensing nuclear power plants.- The Commission approved Part 52 in 1989 after lengthy deliberations.
Part 52 puts in place procedures for early site approval', certification of standard designs by rulemaking and combined license proceedings,that-would resolve the. lion's share of contested safety issues before plant construction and well before plant operation.
The D.C. Circuit now has-issued an opinion (Hald, CJ, Sentelle &
Thomas, JJ) for.the most part. approving
,Part 52 -- which the court characterized as " bold and creative new regulations" -(slip op. at 16) but striking down one of Part 52's important features; ita., its provision limiting post-construction hearing rights (10 C.F.R.'52.103 (b)).
The' court of appeals had little difficulty brushing aside as "too formal" petitioners' reading'of section 185 of the Atomic Energy Act that would have prevented the agency from reorganizing its licensing proceedings to provide for deciding the bulk of safety issues upfront, before plant construction (Slip op, at 6-8).
The court stated that it-" disagree [d] with the petitioners' claim that section 185 bars combined licenses" (Slip op. at 8).
The court also affirmed the rigorous criteria Part 52 establishes for triggering a post-construction hearing, calling them " reasonable limitations" (Slip op. at 11).-
In addition, the court appeared to approve
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{(90-380 PDC DATE OF THIS PAPER s
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L the design certification and early site approval aspects of Part 52 (Slip op at 15 n.14).
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Where the court parted company with the NRC was,on the right to a post-construction hearing under section 189a of the Atomic Energy Act.
Part 52 establishes a-right to a post-construction hearing only on the question whether "one or more of the acceptance criteria in the combined license have not been. met" (10 C.F.R. 52.103 (b)).
Part 52 does not establish a right to a post-construction hearing on the continuing validity of the
" acceptance criteria" themselves, which are established in the pre-construction combined license. proceeding. Part_52 deals with that question by1 allowing for
"(a) petition to modify the terms and conditions of the combined license.
. in accord with 10 CFR 2.206."
The court invalidated this aspect of Part 52 on the ground that it impermissibly denied a right to a post-construction hearing on conformity with the l
Act.
The court reasoned: (1)'that section 189a guarantees a right to a_ hearing-before issuance of an " authorization" to operate (Slip.op. at 9-10);
(2) that section 185 requires a post-construction finding of conformity with the acceptance criteria Juni conformity with the Atomic -Energy, Act, 3
including a finding that the plant is.not
" inimical
.Lto the health and' safety of the ipublic" (1d.=, at 11-12);~(3) that "(d]uring_the lengthy-construction process, new and safety--
'significant information about: plant design, siting
-i or operation may arise",--(which] "may-in turn raise new issues about thelconformity of'the plant j
with the Act" (14., at 11-12); and.(4) that Part 52-provides no right to a hearing on significant:
new information concerningsconformity with the Act-that arises after the initial combined license (id., 11, 13-14).
The court found'the availability of 2.'206 petitions to modify.the license' insufficient to "save Part 52" because a
~
2.206 petition is not a section 189a " hearing-opportunity"'(14., at 13-14).
i The court concluded that_Part 52 "is.thus. contrary
'to section 185's requirement lof-a' finding of conformity with the Act and section 189(a)is requirement of a pre-licensing hearing" (Slip op.
at 13).
We currently are considering whether to recommena further-review in the courts.
The
44 4
The Commissioners 1 deadline for seeking rehearing or rehearing gn y'
banc in the court of appeals is December 17.
The deadline for seeking certiorari in'the Supreme Court (should we not seek rehearing) is January 31.
CONTACT:
John F. Cordes i
x21600 Nuclear Manacement and Resources Council. Inc.
v._
[
Public Citizen, No.90-360 (S. Ct.)
As previously reported in Litigation Reports 1990-18 and 1990-26, SECY-90-142 & SECY-90-251, the D.C.
Circuit ruled in this case that the NRC had a statutory obligation to promulgate binding rules governing training of nuclear power plant 1
personnel.
We and'NUMARC unsuccessfully sought rehearing en banc.
After consultation _with the l
Department of Justice and within this agency the-M ~
NRC decided not to file a certiorari petition of its own in the Supreme court.
As. expected, however,-NUMARC did seek certiorari.
We drafted a response agreeing with NUMARC on the merits and
'not opposing certiorari.
Last week;the Solicitor-General filed the response (copy. attached) with the Court.. We should know within the next few weeks whether the.CourtLwill accept review.
CONTACT:
Susan Fonner-J x21632 n
Concerned' Citizens of' Nebraska v. NRC, 3 '
No. CV90-L-70 (D. Neb., Oct.~17, 1990) y As reported in-Litigation-Report 199C-12, j
w g SECY-90-064, this lawsuit challenges the E
N constitutionality of theoLow Level Radioactive K
Waste Policy Act Amendments.
It also attacks certain NRC actions in the' low level waste area, i
p",
The case is'related to similar (and'as yet undecided) lawsuits in Michigan and New York.
The.
4 L>
district court-recently issued a decision Ly dismissing claims against the state and private p
defendants, and strongly suggesting-that the suit against the NRC is invalid as well.
In particular L,
li the court found no merit in plaintiff's various E
arguments that the 1985 Act violated' state sovereignty or other federalism principles.
We p1 currently are working with the Department of f
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The Commissioners
~4-
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Justice in preparing a n.ation to dismiss the
~ claims'against the NRC.
Because the district
-court appears to misunderstand Nebraska's agreement state status (ggg slip op. at 13-15) and the court of appeals' exclusive jurisdiction over challenges to NRC regulations (Aga slip op. at 3-4), our motion papers are being drawn up both to clarify points that may confuse the district court and to build on the district court's generally favorable analysis on the merits.
s CONTACT:
Carole Kagan x21632 J
f n F. Cordes Solicitor
. DISTRIBUTION:
Commissioners
' REGIONAL OFFICES EDO
- ASLBP 1ASLAP
'SECY l
L-; die m m -
j Notice-nis opick % subject to formal revision before publication in the Federal IL-erter or ti.S. App.D.C. Reports. Users are % rd to notify the Clerk of any formal errors in order that co.tections may be made before the bound volurnes go to presa.
Muitch f!Htates Gourt of Appeals FUR THE DISTRICT OF COLUMBIA CIRCUIT Argued September 26, 1990 Decided November 2,1990 No. 89-1381 NUCLEAR INMRMATION AND RESOURCE SERVICE, et al., PETrrIONERS v.
UNrrED STATES NUCLEAR REGUIEMRY COMMISSION AND UNrrED STATES OF AMERICA, RESPONDEff!3 NUCLEAR MANAGEMENT AND RESOURCES COUNCIL, INC.,
INTERVENOR On PetLn for Review of an Order cf the Nuclear Regulatory Commission Eric R. Glitzenstein, with whom Dean R. Tousley was on the brief, fa petitioners. William B. Schultz, Alan B. Mor-rison, Diane Curran and James M. Shannon also entered appearar.ces for petitioners.
Steven F. Cmchett, Attorney, United States Nuclear Regulatory Commission, with whom William C. Parler, PRIFfTED FOR Bills of costs must be filed within 14 days after entry of judgment. The ADMINLSTRATIVE OFFICE - U.S. COURE court looks with disfavor opim motions to file bills of costs out of time.
BY EIECTROGRAPl!!C CORP. - SAN FRANCISCO
,7 s.
2
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General Counsel, John F. Cordes, Jr., Solicitor, Martin G.
Malsch, Deputy General Counsel, and E. Leo Slaggie, Deputy Solicitor, United States Nuclear Regulatory Com-mission, Anne S. Almy, Assistant Chief, Appellate Sec-tion, Environmental and Natural Resources Division, and Ellen J. Durkee, Attorney, United States Department of Justice, were on the brief, for respondents. John A. Bry-son, Attorney, United States Department of Justice, also entered an appearance for respondents.
Ba'rton Z. Cowan, with whom Joseph M. Ramirez, Robert W. Bishop, Marcus A. Rowden and P. David Richardson were on the brief, for intervenor.
Dorothy Thompson was on the brief for amicus curiae a
urging that the new rule be overturned. Robert Guild also entered an appearance for amicus curiae.
Before WALD, Chie[ Judge, SERTELLE and THOMAS, 7
)
Circuit Judges.
m Opinion for the Court filed by Chief Judge WALD.
WALD, Chief Judge: Petitioners seek review of regula-L.
tions promulgated by the Nuclear Regulatory Commission that. substantially revise the licensing procedures for nuclear power plants. In part,'the regulations shorten and i
streamline. the licensing process by "frontloading" the required hearings, that is,' by increasing.the number of W
issues decided earlier in the process. Petitioners challenge -
these regulations as contrary to the Commission's author-ity under li185 and 189(a) of the Atomic Energy Act.
[
We find that the plain language of i185 requires the Commission to make a post construction, pre operation H
~ finding that a nuclear plant;will operate in conformity 4
with the Act and that the plain language of'l.189(a) requires the Commission to provide an opportunity for a w'
hearing to consider significant. new information that-o comes tb light after initial licensing and that implicates the Commission's finding obligations under 6185. Accord-
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ingly, we find that two' subsections'of the regulations 'are inconsistent with the statute. We thus vacate 10 C.F.R.
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5 52.103(b) and 10 C.F.R. I 52.103(c); we uphold the remainder of the regulations against petitioners' various challenges.
- 1. BACKGROUND Since the enactment of the Atomic Energy Act ("Act"),
42 U.S.C. I 2011 et seq., the Nuclear Regulatory Commis-sion ("NRC" or " Commission") has considered authoriza-tion of each aspect of each nuclear power plant separately, on a license by license basis. The result,in the words of the Office of Technology Assessment, is that
[ejssentially every reactor... has been custom-designed and custom built. The fact that almost every reacter is 'one of a kind' has led to excessive L
difficulty in verifying the safety of individual plants.
and identifying particular problems in transferring the safety lessons from one reactor to another.
Congress of the United States, Office of Technology l_
Assessment, Nuclear Power Plant Standardization at 3 p
(1981) (quoted in Brief of Intervenor (" Int. Br.") at 5). In l
particular, the construction and licensing of nuclear power facilities has proceeded in~ a stepwise. fashion. First, the Commission issues a construction permit; the Act man-dates a public hearing before a construction permit can be issued. 42 U.S.C. Il 2235, 2239(a);.10 C.F.R. I 2.104(b).
That hearing would address, inter alia, "the proposed a
design of the facility," "[w]hether the applicant is techni-L cally
[and] -
financially qualified,"
and whether L
" construction of the facility will be inimical' to the...
l health and safety of the public." 10 C.F.R.- f 2.104(b) (em-If phasis supplied); see also 10 C.F.R. I 50.35. After construc-l tion and upon certain findings, the. Commission would p
issue an operating license;"a hearing on an operating R
license application would be' held upon the request of an interested party. 42 U.S.C. I 2239(a),10 C.F.R. I 2.104(c).
is At this hearing, the Commission would consider addi-tionalissues such as, whether "[c]onstruction of the facil-ity has been... completed ~in conformity with the []
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permit," whether there "is a reasonable assurance [that the plant can be operated) without endangering the health and safety of the public, and... In compliance with" the Act, and whether emergency plans are adequate.10 C.F.R.
I 2.104(c); 10 C.F.R. I 50.47; see also 10 C.F.R. 6 50.57. See also OystershcIl Alliance v. NRC, 800 F.2d 1201,1204 (D.C.
Cir.1986); Union of Concerned Scientists v. NRC, 735 F.2d 1437,1438 (D.C. Cir.1984).
After numerous unsatisfactory attempts to secure pas-sage of legislation - reforming the nuclear power plant licensing proceos,8 the Commission promulgated, with the required notice and comment period, the regulations at issue in this review,10 C.F.R. Il 52.1 103. 54 Fed. Reg, 15,372 (1989). These regulations (collectiwly "Part _52")
simplify the licensing process and reduce the uncertainties and delays in the current regime in three ways. Subpart A of the regulations provides for "early site permits" for nuclear power plants and allows persons to ap%y for and secure site permits before applying for a construction per-mit or " combined license." 10 C,F.R. Il 52.11.39. Sub-part B establishes procedures for plant design certification by rulemaking, thus facilitating the standardization. of.
large portions of plant design.10 C.F.R. $$ 52.41 63. Sub-part C-the focus of this litigation-provides-for
" combined licenses." 10 C.F.R. $$ 52.71 103.
See, e.g., Nuclear Licensing Reform: Hearing Before the House Subcommittee on Energy and Commerce,100th Cong., 2d Sess.
(1988); Nuclear Facilny Standardisation Act cf 1986: Hearing
' Before the Senate Committee on Energy and Natural Resousces, 99th Cong.,2d Sess. (1986); Nuclear Regulatory Reform: Hearings
-Before the Senate Subcommittee on Nuclear Regulation of the
. Committee on Environment and Public Works 99th Cong.,1st Sess. (1985); NRC Licensing Reform Hearing Before the House Subcommittee on Energy Conservation and Power of the Commit.
tee on Energy' and-Commerce, 98th Cong.,1st Sess. (1983);
Nuclear Regulatory Commission Operating License Process: Over-sight Hearing Before the House Subcommittee on Energy and the Environment of the Committee on Interior and insular Affairs, 97th Cong.,1st Sess. (1981).
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5 Under subpart C, the Commission after a public hear-ing may issue a combined license, or more precisely, a construction permit with a conditional operating license.
10 C.F.R. I 52.97. Upon completion of construction, and upon a finding of conformity with the standards
(" acceptance criteria") specified in the combined license, the Commission authorizes plant operation.10 C.F.R.
I 52.103. After construction (and before authorization), an interested party may contest the authorization to operate the plant in two ways. First, the party may file a " good cause petition" which "shows... that one or more of the acceptance criteria have not been met." 10 C.F.R. 6 52.103(b)(1)(i). If the Commission finds that " genuine issues of mate:ial fact are r31 sed by the petition" and cer.
tain other conditions are met,' tien the Commission hop.a a hearing to resolve the issues. Second, the party may file a petition to modify the terms and conditions of the com.
bined license under 10 C.F.R. I 2.206.3 The " Commission shall considst the petition and determine whether any immediate action is required," 10 C.F.R..I 52.103(b)(2)(ii),
but,need not hold a hearing upon request. -
Subpart C revises the existing licensing process in t' o w
significant ways. First, by combining a construction per-mit and an operating license, the Commission hears and.
decides more licensing issues earlier in the process.
8These con'" tons include: "that settlement or other informal-resolution... is not possible" and "that the issues... are not exempt from adjudication under 5 U.S.C. I 554(a)(3)." 10 C.F.R. 5 52,103(b)(2)(i).
810 C.F.R. I 2.206 provides in part:
(a) Any person may file a request to institute a proceeding pursuant to i 2.202 to modify, suspend, or revoke a license-or for such other action as may be proper....-
(b) Within a reasonable time... the Director of the NRC office with responsibility for the subject matter of the request shall.either institute the requested proceeding... or shall advise [the requesting party otherwise]....
See also Part III.A. infra.
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- [IJssues which in the past have been considered in oper-ating license hearings [are under Part 52] considered at the combined license stage"; subpart C thus " moves the bulk of the issues up front in the licensing process." 54 Fed. Reg. at 15,373 74. For example, the adequacy of emergency plans under 10 C.F.R. $ 50.47 and whether "the facility will be... operated in conformity with the...
Act" would be considered at the combined. license stage.
10 C.F.R. I 52.97 (emphasis supplied). Second, subpart C alters the post construction ~ hearing opportunity. The Commission is required to hold a hearing upon request I
only with regard to issues concerning the conformity of the plant with the acceptance criteria; other concerns are addressed through the 10 C.F.R. I 2.206 petition process.
Petitioners, interested citizens' groups, challenged sub-part C as a violation of the Atomic Energy Act.
II. THE NRC's AtrrHoRTTY M STRUCTURE LICENSING PaocrounEs Petitioners contend that 5185 of the Atomic Energy Act bars the issuance of combined licenses and mandates the stepwise licensing procedures long employed by the Commission. We find the petitioners' reading of the Act overly formal and affirm that the Commission has sub-stantial discretion to reform its licensing procedures._We
. begin our analysis by examining the Commission's statu-tory authority to structure those procedures.
In the Atomic Energy Act, Congress granted the Atomic Energy Commission (and its successor, the-NRC4) subi stantial latitude in the design of licensing procedures. See Union of Concerned Scientists, 735-F.2d at 1446 (the
- "' Commission is entitled to great' freedom in its efforts to structure.its proceedings'" (quoting Bellotti v. NRC, 725 F.2d 1380,1389 (D.C. Cir.1983) (Wright, J., dissent-din 1974, the AEC was abolished and its licensing functions transferred to the NRC. See Pub. L. No. 93 438, 88 Stat.1233 (1974) (codi6ed at 42 U.S.C. I 5801 et seg. (1976)).
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7 D-ing)). Section 161(b) (42 U.S.C. 6 2201(b)), for example,-
authorizes the Commission to establish "such standards and instructions (as necessary) to govern the possession and use of special nuclear material" and i161(h) (42 U.S.C. I 2201(h)) grants the NRC authority to " combine in a single license one or more [ regulated] activities."
The petitioners claim that the plain language of $ 185 bars the issuance of combined licenses. That ser+ ion pro-vides, in relevant part, that All applicants for licenses to construct... facilities shall... he initially granted a Construction permit
.... Upon completion of the construction..., upon the filing of any' additional information needed to bring the original application up to date, and upon finding that the facility authorized has been con-structed and will operate in conformity with the L,
application as amended and in conformity with the provisions of this chapter and of the rules and regula.
tions of the Commission, and in the absence of any-good cause being shown to the Commission why the granting of a license would not be in accordance with l.
the provisions of this chapter, the Commhden shall
[
thereupon issue a license to the ::pplicant.
i 42 U.S.C. 6 2235. Although 6185 does distinguish between p
construction permits and operating licenses, we find the L:
petitioners' reading of the statute too formal. The essence -
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of the provision-is not that construction and operating L.
licenses must be separate permits, but rather that the F
Commission must make. specific findings before authoriz-L o
ing operation.6 '
s The Supreme Court's decision in Power Reactor'Devel-opment Co. v. International Union of Electrical, Radio, &
J Machine Workers, 367 U.S. 396 (1961), is not to the con-i+
l trary. In Power Reactor, the Court considered essentially the reverse claim of that raised here; in that case, the fJ union contended that the Act required the Atomic Energy i'
6Moreover, as the Commission notes, i 161(h) appears to pro.
K vide expressly for this sort of combination of licenses.
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Commission to make a definitive finding about opera-m tional safety before it issued a construction permit. Under the procedures in effect at the time (and essentially simi.
lar to_ pre Part 52 procedures), the Commission consid-ered many operational safety issues at the operating.
license stage. The Court upheld the Commission's proce.-
dures. Citing the Court's statement that " Congress con-templated a step.by step procedure," 367 U.S. at 405, the petitioners maintain that Part 52 is barred by Power Reac-tor. We, however, read the Supreme Court's decision more narrowly. Power Reactor stands not for the proposition that $ 185 requires the precise " step by step" licensing procedures the Commission employed,- but for the propo-sition that 6185 does not mandate all operational safety issues to be decided at the pre construction hearing, The petitioners also maintain that the failure of Con-gress to enact reforms'similar to those provided by Part 52 evidences congressional intent to preserve the existing.
licensing process. We 6nd the-history of congressional inaction less significant than do the petitioners. Although we recognize that Congress has failed to enact numerous similar proposals for restructuring the licensing process, e
we do not agree that such inaction indicates that the sta-tus quo is congressionally mandated. We recognize that it "may often be shaky business to attribute significance L
to the inaction of Congress," 367 U.S. at 409. In this case, p
we believe the most plausible reading of the extended leg-
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< islative scenario is that Congress was rejecting the various
- proposals before it, rather than memorializing the existing scheme.' For all of these reasons, we disagree with the petitioners' claim that $ 185 bars combined licenses.
- See note 1 supra.
?
7We also find unconvincing arguments that the legislative his.
l:
tory of the Atomic Energy Act restricts the NRC to its current-l" licensing procedures. As the petitioners note, only two slim refer-P L ences to the relevant statutory provisions appear in the legislative '
history. One of these the Power Reactor Court has rightly dis-a missed as " inadvertent." 367 U.S. at 410. The other is a colloquy between industry officials and members of Congress. See Atomie I
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h 9-As we have often recognized, the NRC has broad discre-tion to structure and design its licensing procedures. See, e.g.,, Carstens v. NRC, 742 F.2d 1546 (D.C. Cir.1984).
Nonetheless, the Commission's discretion is bounded. For example, i 103 of the Act directs that "no license may be issued [if) issuance of [that) license would be inimical to the common defense and security or to the health and safety of the public." 42 U.S.C. I 2133. The primary b
boundaries on NRC authority implicated in this case derive from il 185 and 189(a) of the Act. Section 185 pro-vides that "[uJpon completion of [ plant] construction,"
and "apon" certain filings and findings, "the Commission 8
s.all thereupon issue a[n operating) license" (emphasis supplied). Thus the plain language of $ 185 requires the Commission to make specific findings after construction and before operation.
Section 189(a) also limits the Commission's discretion; that section provides in part that the Commission "shall i
grant a' hearing upon... request" before the " granting...
of any license.". 42 U.S.C. $ 2239(a)(1).8 Part 52's post-construction " authorization to operate" is a " granting of a license" under i189(a). In order to satisfy iIt the Energy Act of 1956 Hearings on S. 3323 and H.R. 8862 before L
the Joint Committee -on Atomic Energy, 83rd Cong., 2d Sess (1954). Again, the Supreme Court has interpreted this discussion i
as reaffirming that certain conditions'"must be met before an i
operating license is granted," 367 U.S. at 411, not for the broader proposition that existing procedures were mandated.
'Section _189(a)(1) provides in relevant part:
- In any proceeding-... for the granting, suspending, revoking, y
or amending of any license or construction permit, or applica-tion to transfer control... the Commission shall grant a hearing upon the request of any person whose interest may
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be affected by the proceeding.... In cases where such a con-t,
' struction permit has been issued following the holding of such a hearing, the Commission may, in the absence of a request 1
therefor by any person.... issue an operating license....
42 U.S.C. I 2239(a)(1) (emphasis supplied).
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post construction " authorization-to operate under Part
' 52" must be, as the NRC recognizes, " equivalent to the
' license' contemplated in section 185." Brief of Respon-4l dent (" Resp. Br.") at 28. However, if " authorization"
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.means " license" for the purposes of i185; then it must mean " license" for the purposes of i189(a) as well.'
Therefore, authorization under Part 52 must conform to the hearing opportunity requirement of i189(a).
III. Post CONSTRUCTION LICENSINo AUTHORIZATloN UNDER
~
PART 52 1
The central question before this court, therefore, is whether the post construction, pre operation authoriza-(7
' tion proceedings set forth in Part 52 satisfy the require-ments of $$ 185 and 189(a). In assessing whether the new regulations comply with. these statutory directives, we consider each of the contested subsections of Part 52 in i
turn.
A. Section 52.103(b)
Section 189(a) requires a pre operation heanng on D
request; and "[w] hen a statute requires a ' hearing' in an adjudicatory matter, such as licensing, the agency must-generally provide an opportunity for submission and chal-
. lenge of evidence as to any and all issues of material fact."
Union of Concerned Scientists, 735 F.2d at 1444 45 (col.
-lecting authorities). Section 185 expressly mandates pre-s operation findings and thus helps define the scope of the 6189(a). hearing requirements. Section 185 requires'four Ji-findings relevant to this case:
U (a)."that the facility '... has been constructed... in G
conformity with the application,"
(b) "that the' facility... will operate in conformity with the application,"
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'As this court noted in Union of Concerned Scientists,735 F.2d at 1442, "section [189(a)) does not differentiate between the 'au-
;p thorization' and the ' issuance' of a license for purposes of guaran-teeing a hearing on request."
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q 11 (c) "that the facility... will operate.. in confor-mity with the provisions of [the Act) and of the rules and regulations of the Commission," and (d) "[that no] good cause be[] shown to the Com-mission why the granting of a license would not be i
in accordance with" the Act W
42 U.S.C. I 2235.
Part 52 creates a two track system of pre operation review. Section 52.103(b)(2)(i) of Part 52 concerns issues of conformity with the combined license and thus addresses the first two findings required by the plain lan-guage of i185. With regard to these issues, Part 52 pro.
vides, with certain reasonable limitations, a hearing upon 1
request. Section 52.103(b)(2)(ii) provides that e.l! lasues L
other than conformity with the original combined license be treated as " petition (s) to modify the terms and condi-tions of the combined license." These issues-which Elud: questions of the combined license's conformity with the Act (the latter two $ 185 requirements)-are shunted onto a second procedural track. On this second l
l track, interested parties must file pedtions in ecemd with i
10 C.F.R. I 2.206 Part 52 provides that "the Conunission shall consider the[sej petition [s] and determine whether any immediate action is required." However, neither Part 1
L 52 nor 6 2.206 provides an opportunity for a hearing in the Commission's consideration of a 6 2.206 petition.
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- Section 52.103(b), therefore, expressly provides a hear-L ing opportunity regarding the plant's conformity.with its license, but not regarding the plant's (and license's) con-formity with. the.' Aet-with, for example,~ l 103's, broad '
proscription of licenses " inimical to... the health and k
safety of the public." The Commission argues, however, l
th' t the latter issues would have already been heard in a
the pre construction, combined license hearing. Although many issues of a plant's ' eventual conformity with the Act E
'could be heard at the-combined license hearing, some
-issues cannot-by definition-be heard at that time. Dur-ing; the lengthy construction process, new and safety-
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significant information about plant design, siting, or oper-ation may arise. These intervening developments may in turn raise new issues about the conformity of the plant with the Act and thus about the propriety of authoriza-l tion. These developments might involve significant new experiences with the plant design or operation, significant new information about site seismology or meteorology, or significant changes in local population density or infra-structure. Such intervening developmenta could raise important and previously unconsideredS issues about the plant's conformity with the Act. Congress, through 96185 and 189(a), required the Commission to make pre-operation findings that the plant would operate in confor-mity with the Act and to provide a hearing upon request a
to address-material issues related to that - finding.
L Although the Commission retains broad authority to
.s define standards and thresholds for determining when L'
new information raises a material issue of a plant's con-formity with the Act, if such information is presented, it must provide a hearing upon request. This is the express mandate of $$ 185 and 189(a)."
The congressional mandate of $ 103 reaffirms this inter-pretation of the Act. Without consideration of significant
- new information that arises before authorization,.the.
NRC cannot ensure that authorization would 'not "be inimical to the common defense and security or to the health and safety of the public." 4? U.S.C. I 2133.
%'e do not decide at this time the Commission's authority to refuse to consider at the pre operation stage new information that could have been proffered earlier through any procedural route, including a l 2.206 petition.
"We note that the Commission seems to have recognized this y
requirement in its proposed regulations. 43 Fed. Reg. 32,060 (1988). The ' forerunner of I 52.103 provided that "any person whose interests may be affected may request a hearing on the basis... that significant new information shows that some modi 6-cation to the site or the design is necessary to assure adequate protection of public health and safety or the common defense or-security." 43 Fed. Reg. at 32,077. These proposed regulations would appear to hue satis 6ed the Commission's statutory obliga.
U tions under ll 103,185, and 189(a).
u,
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I'
)
o l
~
i
<w' 13 We recognize that the Commission has broad discretion to shape its own proceedings, but it must exercise that discretion consistent with its statutory mandate. In addressing the issue of new informa' ion, the Commission maintains that It is true, of course, that at any time new information may appear bearing on whether the design and speci-fications do in fact assure safety, but any new infor-mation would not be a new issue. The issue of design adequacy has [already been addressed) and a hearing
... held on this issue.
Resp. Br. at 44 (emphasis in original). The Commission's claim, however, is overbroad. Like the regulations, the NRC's comment suggests that any issue that does not concern conformity. with the license need not be heard again. But this-disregards the Commission's statutory 1.
obligation to ensure that authorization to operate is con.
sistent not only with the acceptance criteria, but also with the Act. Section 52.103(b) is thus contrary to i185's requirement of a_ finding of conformity with the Act and
$ 189(a)'s requirement of a pre licensing hearing.
1
-Nor does the availr.bility of 6 2.206 petitions _ meet the requirements of $$ 185 and 189(a) ~and save Part 52. As this court noted in Union of Concerned Scientists, "a
- request... under 10 C.F.R. $ 2.206 is not a section 189(a) proceeding " 735 F.2d at 1444 (citing Lorion v. NRC, 712 1
' F.2d 1472 (D.C. Cir.1983), rev'd on other grounds sub nom.
J Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985)).
Section 2.206 does not provide a. hearing on request as J
$ 189(a) requires. Instead,' $ 2.206 petitions are treated as f.
enforcement actions and may'be decided by the'Commis-sion without briefing or a hearing."8 This form of collat-3'As the Commission's counsel noted at oral argument, Part 52 provides for " modified 2.206" petitions. The petiticna are not for-warded to the director of the appropriate NRC office but to the Secretar of the Commission. Compare 10 C.F.R. I 52.103(b)(2)(ii) with 10 C.F.R. _ l 2.206.. Even so modified,' the availability of ~
i 2.206 petitions does not meet the statutory requirements of-ll 185 and 189(a).-
i
.=~~.
. _.j
5
,e 14 s.
i eral attack does not satisfy the Act's requirements.
Moreover, the scope of judicial review of deniale
- h 6 2.206 petitions may be limited." Although we r.x.
not determine the precise scope of judicial review of denial of 3
.the type of petition with which we are concerned (i.e., one based on substantial new information), we note that in 4
Several circumstan:es, including petitions for license revo-cation based on the inadequacy of quality assurance pro-grams, Safe Energy Coalition v. NRC, 866 F.2d 1473 (D.C.
Cir.
1989),
- plans, Massachusetts v. NRC, 878 F.2d 1516 (1st Cir.1989),
courts have treated $ 2.206 petitions as enforcement actions presumptively unreviewable under Heckler v.
Chancy, 470 U.S. 821 (1985). As these facts indicate, h
. $ 2.206' petitions are insufficient to satisfy the hearing-opportunity requirements of $$ 185 and 189(a).
B. Section 52.103(c)
The final subsection of Part 52-6 52.103(c)-is simi-larly infirm. That subsection provides that "the Commis-sion shall find that. the acceptance criteria in the L
combined license have been met and that, accordingly, the facility has been constructed and will operate in confo.-
i
-mity with the Atomic Energy Act;" 10 C.F.R. I 52.103(c)
(emphasis supplied). Like $ 52.103(b), this subsection relies on the premise that conformity with the license's acceptance criteria is equivalent to conformity with the Act.
As we have' demonstrated, however, this assumption is L
[
flawed. After issuance of the combined license and before authorization to operate, significant new information may arise that implicates the Commission's ability to find that plant operation will conform to the Act. This is particu-L:
- larly tn" as subparts A'and B of. Part 52 are designed to fA.itate the licensing of.
" advanced" and L
" evolutionary" designs with which the Commission has had little experience. See 54 Fed. Reg. at 15,373. Signifi-u P.
"The. Supreme - Court expressly' reserved this question in
(,
Florida Power & Light Co. v. Lorion, 470 U.S. 729,735 n.8 (1985).
/,
.t
.4
..e,
...ev-.=-wee.==v.s.=*e==.==-
e*
4 l
l'-
t m
-~'
1 15 cant new information which surfaces during construction may raise new and rnaterial issues of a plant's conformity with the Act.
Thus, I 52.103(c) is ec.ntroy to the plain meaning of i 185. Section 185 requires the Commissica to make spec.
ified findings after construction, including a finding that the plant will operate in conformity with the Act. When Congress requires " findings" it means findirgs-not mere inferences. For the Commission to " find" that a plant con-forms with the Act simply because it conforms with a license issued years earlier is inadequate; Congress-through the plain language of i185-expressly intended the Commission to do more than Part 52 provides."
C. Severability and Partial Vacation I
As demonstrated above, il 52.103(b) and 52.103(c) are Inconsistent with the NRC's statutory authority under the Atomic Energy Act." Vacation of these subsections would "createl] a temporary regulatory vacuum." Small Refiner i.
Lead Phase Down' Task Force v. EPA, 705 F.2d 506,645 (D.C. Cir.1983). This situation should not be too trouble-some, however, for the time lag between the issuance of a combined incense and the initiation of authorir.ation pro-ceedings is more than sufficient for the promulgation of I
new regulations. Moreover, if the Commission chooses to I
" Pet!tioners also challenge subpart C when combined license applications reference earlier site and dulgt, certifications purou-ant to subparts A and B. Petitioners argue that, because site and t'esign cert!fications may be made many years in advance, com-
[
bined licenses under subpart C deprive the public of a right to a j
hearing on siting and design luues. We believe that the Commis-slon has wide latitude in structuring the neope and timing of ita hearings and that conformity with the statute as outlined above should provide s> adequate opportunity for airing any significant developments with regard to site or design that arine after initial certification.
86 j
Several sections of Part 52 refer to those subactions we now vacate. See, e.g., il 52.39,52.63. We assume that, in promQating new regulations, the Com aimion will make the appropriate revi.
sions to these sections, i
geMe-4
_ _ _ Jg rp W W _
y-945' N N*W'"
"#N'M 4
16 1
treat combined license "authorotions" as it treats tradi-tional operating il.< ose applications, the regulatory vac-uum could be.9'. led by the pre existing (and unamended) regulations for operating license hearings. See 10 C.F.R.
I 2.104. In the alternative, the Commission may wish to t
promulgate new procedural regulations conalttent with this opinion.
CoNewSION In responding to the indnstry's changing knowledge and the public's changing no ds, the NRC has promulgated bold and creative new regulations. T)w Commission's cre-stivity, however, is constrained by !ta statutory authority.
Through the language and structure:sf the Act, Congress has expressly provided that, when alt;nificant new infor-mation arises materially affecting :he conformity of a pending license with the Act, the Commission must hold a hearing upon request to address that information. Sec-tions $2.103(b) and (c) of Part 52 are inconsistent with this express congressional requirement and must be vacated.
More than thirty five years ag>, Congress enacted the Atomic Energy Act. The provisions of the statute reflect Congress' concern with the magical pace-and attendant hazards-of technological development. As the Supreme Court noted in 1981,
[N]uclear reactors are fut developing and fast-changing. What is up to date now may not, probably will not, be as acceptable tomorrow. Problems which seem insuperable now may be solved tomorrow, per-haps in the very process of construction itself.
Power Reactor,367 U.S. at 408. On there grounds, the Act requires the Commission always to remain vigilant and to consider significant new information in its licensing pro-ceedings.
The Commission forcefully contends, however, that times have changed, and that over the past four decades
-9 y-
_ 449 4> wm _
y,-
M e er **e =en ~e ' e Nees e a e p
- o g
17 understanding of nuclear technology ha6 30 evolved as to warrant a reforrned regulatory regime. Pan 62 is, the Commission maintains, a first step in that direction.
Nonetheless, some changes the Commission seeks are so central to the 6cheme of the Act that they cannot be exe.
cuted by the Commission or by this court. And although the
- statute may be imperfect, [the Commission) has no power to correct flaws it perceives in the statute it is empowered to administer. Its rulemaking power is limited to adopting regulations to carry into effect the mill of Congress as expressed in the statute." Federal Reserve System v. Dimension Financial Corp., 474 U.S. 361, 376 (1986). Thus, the ultimate responsibility for such reforrr.s as embodied in il 52.103(b) and (c) lies not with the Com.
mission, but with the Congress.
I I
i i
A y
n_
_--_n.-
-... -. ~
l 1
e s: r~
INTMEUNITEDSTATESDISTRICTCCURT~k'.hL*'l.E 3
- AGf, FOR THE DISTRICT OF NE5RASKA c0OCT19 FH I:25 CONCERNED CITIZENS OF
)
CV90-L-70 p'.
..[. I ". ? ? R NESRAsxA, et al.,
)
" C-
)
Plaintiffs,
)
MEMORANDUM AND CRDER ON
)
DEFENDANTS' U.
S.
- ECOLOGY, vs.
)
AND CENTRAL INTERSTATE
)
LOW-LEVIL RADICACTIVE UNITED STATES NUCLEAR
)
WASTE COMPACT COMMISSIOR "
- REGULATORY COMMISSION, et al.,)
MOTION TO DISMISS i
)
Defendants.
)
g g gg FACTS Plaintiff, concerned Citizens of Nebraska (CCN),
is an unincorporated not-for-profit group seeking declaratory and injunctive relief against defendants U.S.
Ecology (USE), Central Interstate Low-Level Radioactive Wasta Compact Commission (C :. mission),
and others to prevent the establishment of a
radioactive waste disposal facility in Nebraska so long as alleged constitutional violations exist
- and, if such a
facility is established, to assure that it is in cceplete conformance with applicable laws.
USE and the Commission have filed motions to dismiss pursuant to Fed.R. Civ. P.
12 (b) ( 6), stating (1) that CCM lacks standing, and (2) each of the eleven counts fails to state a claim upon which relief can be granted.
Although these motions are responsive to the original complaint and a first amended ce= plaint has been filed after the filing of the motions, I shall consider *the motions to be directed at the first amended complaint, wnien altered only the designations of other defendants and did not change substantive allegations.
On a notion to dismiss pursuant to Fed.R.Civ.P. 12 (b) ( 6), I must accept as true the plaintiff's well-pleaded facts, which are to be viewed in a light most favorable to the plaintiff.
Palmer L, Tn co r. 121ga., 856 F.2d 1131, 1132 (8th Cir. 1988).
A complaint may be dismissed only if it is clear that no' relief could be granted under any set of factual allegatic.s.
14
- However, conclusions of law and unwarranted deductions of fact are not admitted.
Analcarated Meat @tters & Butchers Workmen gf North Arerigg L, Wetterau Ecods, Inc., 597 F.2d 133, 135 (4th Cir. 1979).
DISCUSSION A.
Standina Defendants state that (1) CCN lacks standing under the case an'd controversy requirement of Article III, i
2 of the U.S.
Constitution, (2) the claimed injuries are too remote or speculative, (3) the claimed injuries are not caused by the actions l
l
CCN challenges, and (4) even a favorable decision for CCN would not redress their claimed injuries.
Further, even if members of CCN who live close to the proposed site have standing, other CC"
- embers who live further away do not have standing.
Initially, I note that CCN, as an organization, has standing, i
While the Supreme Court has held that "an asserted right to have the Government act in accordrence with law is not sufficient, standin'g alone, to confer jurisdiction on a federal court,"
DefendeIs g RW1,1fA F_riends,91 Mi h And theh Invironrent L Mode), 851 F.2d 1015,1040 (8th Cir.1988) (quoting Allen y2 Frient, 468 U.S.
- 737, 754 (1984),
an interest in
" aesthetic, conservational, and recreational values will support standing when an organizational plaintiff alleges that its members use the area and will be adversely affected."
Defenderg Q1 Wildlife, 851 F.2d at 1040.
I find that CCN's additional interests in the health, safety, and welfare of its members will support standing.
CCN has identified two members who reside and farm in close proximity to the proposed site, and both have a cognizable interest in avoiding the possibility of contamination by non-natural l
radiatien, of associated health and genetic problems, and of diminution of their proper-ty valuer.
CCN contends that these members have standing and, therefore, it has standing pursuant to
}iant ya Ea s h i neM.D APP.l.g Mve rTJ3, lag Comm ' n., 432 U.S.
3.13, 343 (1977).
An association has standing to sue on bahalf of its members if (1) the members have standing to sue in their own right, i
(2) the organization's interests are ger=ane to its purpose, and (3) neither the clain nor the relief requires the participation of the association's members.
Id.
CCN - exists as a vahicle to organize and educate the public about nuclear waste disposal and to represent its members' interests.
This makes the interests CCN e
seeks to.. protect inherently germane to its purpose.
CCN seeks declaratory and injunctive relief, which does not require the participation of the association's members.
Therefore, if the two identified members of CCN have standing to sua in their own right, then CCN will have standing to sue for its members, t
l At a minimum, standing under Article III requires a party to (1) injury in fact, (2) causation, and (3) redressability.
show l
Vallev Force Christian ggliece y Americans Unite,d iqr Esparation g Cliyr.pj1 And S.tA m Int., 454 U.S.
464, 472 (1982).
The injury in fact must be distinct and palpable. - 41.A.ist one2 B.e31 tors ya Vill aag gi Rellwood, 441 U.S. 91, 100 (1979).
CCN claims that the discharge of non-natural radiation into the environment is a contamination of air, soils, water, plants, and animals of Nebraska and other states, and an interference with the personal, health, economic, and aesthetic interests of CCN's members.
The Supre=a Court has recognized that the emission of non-natural radiation into a person's environment could be "a direct and present injury, i
i given our generalized concern about exposure to radiation and the ap)rehension floving from the t neertainty about the health and 2
\\
genetic consequences of even small emissions.
h)ig pever
& y2 Carolina EDL, Itudy farm, 438 U.S.
59, 74 (1978).
It appears to me, in fact for the purpose of establishing standing.therefore, that there ha The second requiremont to confer standing is that the injury must be fairly traceable to a defendant.
Vallev LQIgA Christien Collece, 454 U.S. at 472.
The nexus requirement does not require absolute certaint the alleged injuries. y that challenged actions vill cause the M. at 78-79.
CCN alleges that the regulations j
governing the construction, operation, and closure of the proposed i
facility will not protect them from the adverse effects of non-natural radiation emitted from vastes stored at the facility.
The regulations that allow releases of non-natural radiation are claimed to be the link between the injuries sought to be prevented and their causes.
I do not find the line of causation between a law that allows for the release of non-natural radiation and pessible harmful effects from that radiation to be t3e attenuated.
Allan ya Wricht, 468 U.S. 737, 752 (1984).
Stated differently, but for the regulation allowing the release, little, if any, non-natural radiation would contaminate the environment cause harm.
Wha Power h, 438 U.S. at 74.
and possibly The final requirement for standing is that plaintiffs show that the requested relief is likely to remedy the alleged injury.
Valley yarg3 Christi An gallagg, 454 U.S. at 472.
The declaratory and injunctive relier requested would prohibit the release of non-natural radiation from the proposed site which might prevent the alleged injuries.
Since all three components required for standing have been met, I find that suit.
ccN does have standing to bring this l
l e
3.
Jurisdiction l
To the extent USE and the commission rely on the Atomic Energy Act, 42 U.S.C. I 2011, n 122., to hold that this court does not have jurisdiction over this case, but that there exists an exclusive right of judicial review by a court of Appeals only af ter an NRC hearing, I note that (1) i 2239(a)(1) deals solely With the activity of alicensees."
I have found no indication that the defendants are licensees and, therefore, not under the jurisdiction of the district court.
While I agree with defendants claim that an independent jurisdictional basis for this suit does not exist under the 'dministrative Procedure Act, 5 U.S.C. 5 701 Al 3.12.,
I also note that this court does have jurisdiction over constitutional claims.
Defendants rely on Siraons ya Arkansas _ Power i Licht &, 655 F. 2d 131 (8th Cir. 1981) to show that "the judicial review and enforcement provisions of the Atomic Energy Act, 42 U.S.C. Il 2231-4 2,, 2271-82, preclude private judicial enforcement of the Act."
M. at 134.
Defendants state that the only avenue for CCN to 3
1 proceed on is the opportunity to participate in agency proceedings granted by 42 U.S.C. I 2239(a)(1), and then to appeal to the Court of Appeals under 28 U.S.C. I 2342(4).
Such reliance is misplaced for two reasons.
First, it ignores the nature of the constitutional claims brought by CCN.
The constitutional claims of the plaintiffs in sinens failed to state claims upon which relief could be granted, but the district court did properly have jurisdiction over those claims.
Simmons, 655 F.2d at 134.
A footnote noted that nothing in that case should be construed as holding that a district court could never properly have jurisdiction.
Id. at 135, n.7.
- Also, this court has jurisdiction under 28 U.S.C. I 1331 which states:
"The district court shall have original actions arising under the Constitution, jurisdiction of all civil laws. or treaties of the United States."
The Supreme Court has emphasized that "Where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear."
W,p ).g i n y E s a, 4 8 6 U. S. 592, 603 (1988).
See also, Jshns.Qn L Esbinnen, 415 U.S. 361 (1974); Weintgrg n y2 1311,1, 422 U.S.
749 (1975).
Furthermore, CCN's claims are substantially similar to several claims raised by the appellee in CSDit 2.Q.Ett Ch. 2 SE&l.iAf6 Envirorutgh gudy gIpm h, 438 U.S. at 68-72, which sustaLned jurisdiction under 28 U.S.C. l 1331.
CCN raises claims under Articles one, two, four, five, six, nine, ten, and fourteen of the U.S. Constitution.
These claims relate to the facial and as-applied validity of federal and state statutes and/or regulations.
I find that this court is not precluded from exercising jurisdiction over such constitutional claims.
- Second, I
note that the Eighth Circuit has previously e
transferred a f actua'11y similar case to a district court for review.
Haunp3.g.a.d County gnd Egy.Rd,&.Cgung Proigg1 ya U_nited Staten Envir_onmental EI.01tE.fdRD Acency, 700 F.2d 459 (8th Cir.
1983).
The Eighth Circuit, mindful of the serious implications involving hazardous waste facilities, transferred, under 28 U.S.C.
I 1631, an appeal from an agency determination.
The appellate court noted the legislative history prompting enactment of i 1631, which addressed the confusion caused by provisions of existing law
--mainly administrative law--that left unclear which of the federal courts have subject matter jurisdiction over certain types of civil actions.
Id. at 462, n.4.
C.
Political gggstions USE and the Commission state that count nine of CCN's complaint raises political questions that this court lacks authority *:o adjudicate, count nine alleges that "the failure of the compact members' state legislatures to ratify the 1985 amendments to the low-level radioactive vaste policy act results in the violation of Art.
I, i
10, and Art.
IV, i 4 of the 1
g, p.,,,, g N"b,'QN 11 A 3 H 11e 50 WO3d S C 8 t' l 06' iI IN
Constitution of the United States."
(complaint, at 35).
CC::
further states that this failure of the legislatu:.es to ratify the i
amendments voids the compact and its commission.
M.
A political question is one more properly decided by r.
co-equal branch of government.
Davis L Bazuilener, 478 U.S.109,123 (1986).
Certain identifying features of a political questiJn were established by the Supreme Court in 18.ktr L GSIg, 396 J.S.
186 (1962), whicn noted:
prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a
lack of
-)udicially discoverable and manageable standards for resolving it; i
or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multif arious pronouncements by various departments on one question.
M. at 217.
l Article IV, 9 4 of the U.S. Constitution (the Guaranty clause) states in part that the United States shall guarantee to every state in the union a republican form of government.
Count nine of CCN's complaint states that the conditional consent of Congress te the for=ation of the nuclear waste disposal compact between the 4
gggggg. {g inyglid
'yndg y thg Gygrgnty glgggg hgggggg thg legislatures of the compact states have not ratified the 1985 congressional amendments to the 14v Level Radioactive Waste Policy Act (LLRWpAA of 1985), Pub. L. No.99-240, 99 Stat. 1842 (1986).
l In P.A.GifiG 211t.13 Telephone i TRI.tgIARh CL, ya oresen, 223 U.S 118 (1912), the Supreme Court held that the enforcement of Art. IV, 5 4 of the U.S. Constitution was, because of its political character, within the exclusive domain of Congress, and not the judiciary.
The Court relied on Luther y2 Borden, 48 U.S.
(7 How.) 1 (1848) which held that whether a particular state government satisfies Art. IV, i 4 is a political question left to Congress.
Article I, i 10 of the U.S. Constitution (the Compact clause),
says in part that no state shall, without the consent of Congress, enter into any agreement or compact with another state.
CCN, in count nine, asks me to declare as void the nuclear vaste disposal compact between Nebraska and several other states, consented to by Congress in January of 1986, because the compact state legislatures fgiled to adopt the LLRWPAA of 1985.
This argu. ment misses the point that it is Congress which has the power to ratify compacts between the states; it is not the states which must ratify compacts 5
e s e e
oe o a 6 e
- or their onendmonts, as approved by congress.
A state has the option of not joining a compact, but it it does choose to join one,
)
then it is subject to Congress' ratification of and amendments to that compact.
The constitution does not appear to licit congressional consent to a compact.
Consent is left to the good judgment of Congress, and it is not for this court to question the 1egislative branch's judgment.
The judicial branch is limited to ruling on the validity, under law, of legislative pronouncements.
The most persuasive authority against CCN's argument is found in the Report of the House of Representatives Committee on Interior and Insular Affairs, entitled Gr. Anting %ht gensent gf %Ag concrets 12 the central Iaterstaj,3 Low-level Radioactive M.A,3.1.3 RGmnact, H.
Rep. No.99-316, Pt. 1 99th Cong., 1st Sess. 4 (198$), which stated "There is no cas,e authority that has held that a compact be re-ratified by the compacting states after congress has must consented to it conditionally.
All that is required is that states
)
act under the compact."
M.
The report also found no instances i
in which a court held a compact invalid for lack of state re-ratification af ter a congressional amendment or condition.
I.;1 l
In Petty ya lennes.see-Mi.g.g.g.uti Erl.gigt comm ' n, 359 U.S.
275 (1959), a casa directly construing the ef fect of congressionally imposed conditions on a compact, the court held that the language of the compact and the conditions imposed by Congress required the cocpacting states to relinquish their constitutional immunity to suit in court.
M. at 280.
Here, the congressionally imposed L
conditions require the compacting states to surrender no rights, but only to accept certain responsibilities.
H. Rep. No.99-316, Pt. 1, 99th cong.,1st sess, at 4.
By agreeing to be a part of the i
compact and by the compact's ratification, the states implicitly agreed to the conditions.
If there was any doubt as to the meaning of a clause in the c' mpact prior to congressional approval, that e
o doubt dissipated when the condition attached by congress was accepted and acted upon by the states.
Pa '2 tv, 359 U.S. at 282.
I find, therefore, that I do not have the authority to act on count nine which presents a political question.
As discussed in Baker ya, carr.
ausI.g, I
find a
textually demonstrable constitutional commitment of the issue to a coordinate political department, a
lack of judicially discoverable and manageable standards for resolving it, the impossibility of deciding without an initial discretion, policy determination of a kind clearly for nonjudicial and the impossibility of a
court's undertaking independent resolution without expressing lack of t' respect due coordinate branches of government to preclude a dec L en.
ccN's I1233 gg,unt l
l ccN's first count states that the non-natural radioactive contamination from the proposed facility will cause a denial of rights guaranteed by the ninth amendment.
That amendment says:
6
". The enumeration in the Constitution, of certain rights, shall net j
be construed to deny or disparage others retained by the people.a U.S.
4 Const.
amend.
IX.
While the ninth amendment shows the traners' belief that the first eight amendments could not possibly be an exhaustive list of rights, it is not an independent source i
rights.
G(isvold L,
cannecticut, 301 U.S.
- 479, 492 of (1965)(Goldberg, ing, the existence of other fundameatal persona 1
J.
concurring).
relevant in show
- rights, now protected from
- state, as well as
- federal, infringement."
Id. at 493.
Movever, if I as to follow CCN's request and find, under the ninth amend =ent, a fundamental right to a healthful environment, specifically one free from non-natural radiation, I would not only have to ignore case law finding there to be no fundamental ri to be free from other potentially hasardous substances, i.e.ght ese gas Louisiana,staMustobacco smoke, Agent Crange defolient, i
F.Supp. agx L.
ud Enesitig District, 418 716 E. D. IA.
1976) and In a "Amant c m ce" Preduet Liability titi(entien, 475 T.Supp. 928 (E.D.N.Y.1979), but I would also have to ignore the traditions and collective conscience of the general publio who determine what is and what is not ranked as fundamental.
I need look only to (1) the history of industriali stien in the United states to find a continuti and systamatic pollution, to one degree or another, of the environment, and (2) continuing government responses to that pollution through t
regulation and discipline of the polluters.
The clear pattern that has amarged is that the people and their government have chosen to allev a
regulated degree of environmental pollution.
A constitutional right to a healthful environment is not, at this I
point, ranked as fundamental.
Nuclear energy and its accompanying wastes present eartain inherent risks, and for that reason they are regulated.
The choice to pursue certain energy forza is not As the Suprese Court stated:
for the judiciary to take.
Congress has made a choice to at least try nuclear energy, establishing a reasonable review process in which
. courts are to play only a limited role.
The fundamental policy questions appropriately resolved in Congress and in the state legislatures are get subject to re-eMazination in the federal courts under the guise of
$1dicial review of agency action.
Time may prove wrong the decision to develop nucicar energy but it is congress or the States within their appropr,iate agencies which must eventually make that judgment.
Vetsont Yankaa Ruolear Dawar core. L }taluni Resouream Befense snuncil h, 435 U.S.
519, 557-558 Since CCN's first s
count rails to state a clain upon which(1978).
defendants' notion to dismiss count one will be granted. relief can be granted, the 1
CClila Xecnnd M n1 7
' 9 9 ' i fW J u w u t *)
- D y n. m i i w cm unwa
?t At sg, "J T 4Sh
..-v
( 4 :.. ! !!
1..
says that the LI.RWPAA of 1985 interferes CCN's second count with the sovereign rights of the state of Nebraska by forcing it to take title to and accept liability for low-level radioactive waste in violation of rights guaranteed by the tenth amendment.
This count refers to 42 U.S.C. 12021e(d) (2) (C) which requires that if, by January 1, 1993, a state in which low-level radioactive waste is generated is unable to provide for disposal within the state or compact region, than that state shall take possession and title to the waste and be liable for all damages incurred by the generator as a consequence of the state not taking possession of the vaste.
The tenth amendment provides that:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to reserved to the States respectively, or to the the states, are U.S.
Const. amend.
X.
- However, Congress' power to i
"The Tenth Amendment people."
regulate state activity is not unlimited.
limits on Congress' authority to regulate state activities are set 469 Antoni_o MetrerMitan Iransit W.Aprity, Garcia holds that the limits are st' " + al, not out in Garcia y.a. S.AD U.S. $28 (1985).
sub s t ant ive--LL., that Staten must find their pr 7
ton from
.1 process, congressional regulation through the national pc.
not through judicially defined spheres of u.
,alable state l
activity.
Id. at 537--554."
, d;,gI, 485 U.S.
j l
505, 512 (1988).
In G.AI.pla, I find several r'elevant points.
First, it is a state, and not CCN or any other private bcdy, that must challenge The State of a statute that allegedly violates a state's rights.5 2021e(d) (2) (c),
Nebrasha..has chosen not to challenge 42 U.S.C.has accepted it a to comply with all the relevant statutes regarding the but establishment of a low-level radioactive waste disposal site.
l
- Second, Nebraska requested congressional consent to the The. elected representatives of compact it freely chose to enter.
the people of the State of Nebraska have actively sought to comply I
1985.
Nebraska has not fought against any I
with the LLRWPAA of it has aspect of the aforementioned federal legislation; rather, I
Furthe more, as er. braced it and is attempting to comply with it.various state officials me the auspices of the National Governors Association to discuss CCN points out, "Many of the National proposed amend =ents to the LLRWPA of 1980.
Governors Associations' proposals were to become part of the LLRWPAA of 1985."
CCN's amended complaint, p.
8, 129.
CCN has shown that the states recognized a problem, sought assistance f rom the federal government, which responded by enacting legislation to address the problem, and the states have acted in confomance with CCN's request that I hold unconstitutional those that legislation.
force title and liability provisions of the LLRWPAA of 1985 thatfor nuclear vaste onto a (1) it assumes 8
\\
establish its own vaste site ou join a compact with one (which is the purpose of the legislation), and (2) ignores a state will not and the fact that it was the states that requested, are following,inds are not complaining about the federal " interference" ccN f distressing.
Third, ccN's complaint f ails to show that Nebraska or its citizens were denied an opportunity to participate in the national political process that brought about the legislation in question.
"Since the representatives of the states and local interests comprise the constituent parts of the federal government, the political process ensures that laws that unduly burden the states 884 F.2d will not be promulgated."
Sigts d Nev> d a y_,, skinner,
- 445, 452 (9th cir.
1989), ca rt,. denied, 110 Sct. 1112 (1990)
(Nevada unsuccessfully argued that its state resources were being to enforce the con =andeered, in violation of the tenth amendment, limitt Nevada, as a state, could make such an national speed ccN8s complaints must ccN, as an association, cannot). I find that count two argument; be resolved in the legislative process.
i f ails to state a claim upon which relief can be granted and is, therefore, to be dismissed, ccN.'s IM21, Fourth m gng Eichth counts all relate four, and eight of ccN's complaint forth in Counts three, to the various definitions of the term ' disposal' as set (LLRWPA cf of 1980 the Low Level Radioactive Waste Policy Act 1980), Pub. L. No.96-573, 94 Stat. 3347 (1980), the LLRWpAA cf 1985, and in NDEC regulations.
Count three alleges that the e
f ailure.of the NDEC, to adopt regulations consistent with the permanent isolation standard is a violation of the supremacy clause.
count four alleges that tJSE should be enjoined frem proceeding on the facility until it adopts the permanent isolatien standard.
count eight alleges that the Nebraska Low-Level Radioactive Waste Disposal Act (NLLRWDA), Neb. Rev. Stat. 5 81-the supremacy clause by not 1578 31 gig.
(1986),
violates These three counts essentially conforming to the LLRWPAA of 1985.
ask me to decide whether the statutory language of the federal laws in question allow a comp et state to premulgate.its own laws that do not contain the same language.
In answering that question, I have looked to the pertinent I have federal and state legislation and to agency regulations.
I the acts involved te also examined the legislative histories of I believe that Furthermore, determine their legislative intent.
an understanding of the reasons behind the enactment of the legislation is important.
Feder g Lecislation g Low-tavel Epdioactive Ets.ig t.
Nuclear vaste is a by-product of the generation of electricity The disposal of this vaste has been and, to a by nuclear power.
9
(
lesser
- extent, still is greatly controlled by the Nuclear Sf,.3 cenerally, 42 U.S.C.
I 2011 g; l
Regulatory Commission (NRC).The NRC is the successor to the Atomic 3.gg. (1973 & Supp. 1990).42 U.S.C. Il 5814 and 5841 (1973 & Supp.
Energy cor. mission, s.gg,which was created by the Atomic Energy Act of 1954.
- Egg, of 42 U.S.C. 52011 (1973 & Supp. 1990).
Prior to the enactment 1990),
a.nd South Carolina i
only Washington, Nevada, 1985 U.S.
the LLRWPA of 1980, operated low-level radioactive waste disposal sites.The legislative history Code Cong. & Admin. News (99 Stat.) 2976.
i to LLRWPA 1980 indicates The temporary or partial shutadown of all national low-level waste disposal sites in 1979 triggered state recommendation and Congressional enactment of the (LLRWPA States were given responsibility for providing of 1980).
new low-level vaste disposal capacity subject to Congressional ratification of interstate compacts under which states could develop regionally exclusive disposal Because these co: pacts contemplate exclusive l
facilities.
facilities, without Congressional ratification such exclusivity vould render any agreement void as an unconstitutional burden on interstate commerce.
Ihg Low-1.avel Radioactiv_a Waste Poliev A,g.1 g 11lLQ M.
A.
LLRWPA 1980 defined low-level radioactive waste as
" radioactive waste not classified as high-level radioactive waste, transuranic waste, spent nuclear fuel, or byproduct material as defined in i 11a. (2) of the Atomic Energy Act of 1954."
LLRWPA as "the 1980, 94" Stat. at 3347, i 2(2).
Disposal Vas defined e
isolation of low-level radioactive waste pursuant to requirements established by the Nuclear Regulatory Commission under applicable The act set forth the policy of the federal i
laws." M. at i 2 (1).
government that (1) each state should be responsible for providing, either in or out of the state, f or the disposal of low-level and (2) radioactive waste generated within the state's borders, ef ficiently be managed on a such waste could most safely and This policy was to be effectuated regional basis.
M. at 3348.
by allowing states to enter into congressionally approved compacts M.
After January 1, to establish regional disposal facilities.
L any such compact was to be able to restrict the use of its l
regional disposal facility to generators of such vaste within the
- 1986, compact.
As 1986 drew nearer, it became apparent to Congress that many states would not meet the deadline to establish compacts and also As a result, Congress designate and construct operational sites. amended the LLRW i
I Ihg Low-I.evel Radioactive Waste Poliev Amendrent A.gl g 198_5.
B.
10
4 i
LLRWPAA of 1985 defined ' disposal' as "the per=anent isolation of low-level radioactive waste pursuant to the require:ents established by the Nuclear Regulatory Commission under applicable laws, or by an agreement State if such isolation occurs in such agreement State."
42 U.S.C.
I 2021b(7), LLRWPAA 1985, 99 Stat.
is defined as "a state that has s
1843, i 2(7).
An ' agreement stade entered into an agreement with the Nuclear Regulatory Cc==ission under i 2021 of this title; and has authority to regulate the disposal of low-level radioactive waste under such agreement."
42 U.S.C. I 2021b(1), LLRWpA 1985, 99 Stat. 1842.
The definition of low-level radioactive waste was changed by the addition of a sentence stating that the term also ceant material "the Nuclear Regulatory Commission, consistent with existing federal law and in accordance with paragraph (A) (42 U.S.C. I 2021b(9) ( A)), classifies as low-level radioactive vaste."
42 U.S.C.
92021b (9) ( B).
l Unchanged were the policies of the federal government in enacting the LLRWPA of 1980 and the requirement of congressional consent to a co= pact.
42 U.S.C. I 2021d(a).
Other changes included a more detailed plan for the states to meet the requirements of the LLRWPAA 1985, milestone incentives, in the form of increasing surcharges, for states to meet the provisions of the act, and substantial penalties for f ailure to comply.
42 U.S.C. I 2021e(d).
I have also noted that within the LLRWPAA of 1985 there are no less than six instances ' in which an agreement state is given Within the text of the LLRWPAA 1985, (1) i 2 (1) ( A)-(B) defines agreement state as "a State that has entered into an agreement with the Nuclear Regulatory Commission under i 274 of the Atc=ic Energy Act (24 U.S.C. 2021); and has authority to regulate the disposal of low-level radioactive vaste under such agree =ent;"
(2) i 2(7) provides the definition of disposal " pursuant to the requirements established by the Nuclear Regulatory Commission under l
applicable laws, or by an agreement State if such isolation occurs in such agraecent State;"
(3) l 3(a)(1)(A) sets forth a state's responsibilities for providing, either by itself or in cooperation with other States, for the disposal of low-level radioactive waste as defined by i 61.55 of Title 10, code of Federal Regulations (waste classification);
(4) l 4 (a) (1)--(2) sets forth the federal government policy that the responsibilities of the states for disposing of low-level radioactive waste, as provided in the act, l
can best be managed on a regional basis and that states should enter into congressionally approved co= pacts for that purpose; (5) i 5(d)(1) gives states with regional disposal sites the authority to impose surcharges, in addition to the fees and surcher g generally applicable, upon low-level radioactive waste generated outside a compacted region; and (6) i 9 gives agreement states, as appropriate, authority to consider applications for disposal facility licenses, and the Nuclear Regulatory Co= mission and an agreement state shall work together to establish capabilities and 11 l
l
responsibility for or control over or both responsibility and control over an aspect of the disposal site within its borders.
This is significant because if 2ongress intended to preempt all aspects of controlling low-level nuclear vaste disposal sites, would (1) not have found it necessary to delegate specific it i
resoonsibilities and authority to an agreement 3
disposal site, and (2) not have enacted two laws that clearly state state hosting a their.*ntent own low.1.evel radioactive vaste,of making states responsible for disposing o j
c.
Thg cantr=1 Intersta,tig Low-Lgy,31 Radioactive Maste Comeact The central Interstate 14w-14 vel Radioactive Waste disposal site,(compact), of which Nebraska is a member and the host state fo compact Radioactive Waste Interstate Compact Consent Act,was approved Title II, Pub.
L. No.99-240, 99 Stat. 1859, l 222 (1986).
The compact defines
' disposal' as "the isolation and final disposition of waste,"
99 Stat. 1864 l 222, art. II(b), and also defines ' extended care '
as "the care o,f a regional facility including necessary corrective
=easures subsequent to its active use for waste management until such time as the regional facility no longer poses a threat to the environment or public health. "
99 Stat, at 1864, i 222, a rt.
t II(c).
found at 99 Stat.The clearest pronouncement of state control over the fac t
is at 1865, i 222, art. III(b), which states:
"To the extent authorized by Federal law and host State law, a host borders and ensure the extended care of such facility." sta i
last sentence of the compact states:
"The provisions of this Also, the compact shall be liberally construed to give effect to the purpose 8
thereof.'h 99 Stat. at 1871 l 222, art. IX.
The purpose of the compact is to provide a mean, responsibility for the disposal of their owns for states to work together and take l
low-level nuclear vastes.
99 Stat. at 1864, l 222, art.
I.
The compact has been approved by Congress under the LIJtWPAA of 1985, which, along with the LLRWPA of 1980, responsible for disposing of its low-level nuclear wastes.have the the stated intent and comprehensive scheme of those two acts Given find it difficult not to construe liberally the compact to meet its I
l; goals.
If doubts :Jamain that congress did not intend to grant agreement states the authority to regulate the disposal of their procedures for processing such applications.
I also note that the supreme court of the state of South Dakota has recognized that an et regulation over the disposal of radioactive vaste." agreemen Kundert, 375 N.W.2d 186, 189 (S.D. 1985).
Wyatt v.
low-levei radioactive vaste, they should be dispelled by examining the legislative history leading to the enactment of the LLRWPAA of The compact provides all the necessary authority for states 1985.
and compacts to operate under the framework of the LLRWPAA of 1985.
congress 12. tat gentral Interst.n.t;g law.m gr,gntina thg Consent sti, the House Committee on Interior and Lgy.pl B,gAienetiva b'in3.0 fampact,99-316, 99th Cong., 1st Sess., pt.
Insular Affairs, h.R. Rep. No.
1, at 3 (1985).
The legislative history reveals that there was considerable discussion over the definition of low-level waste, but little a the definition of disposal or the standards for disposal.g to"The definition of low-level waste in the compact may but the compact provides for adjustments and flexibility vary, its own procedures adequate to allow the compact to handle under waste for which the states are responsible."
M.
the can vary, it is not definition of low-level vaste in a compact inconceivable that the standard for disposing of such waste could also vary.
Furthermore, it seer.s unlikely that Congress would narrowly define ' disposal' given the broad range of disposal techniques available, the unique characteristics of each proposed site that may influence or even dictate one form of disposal over another, and the real interest a state has in controlling its land and the contents buried beneath it.
I find, therefore, that (1) Nebraska is an agreement state, under 42 U.S.C. I 2021b(1), to the Central Interstate Low-Level Radioactive Waste Compact, (2) that an agreement
- state, by low-level definition, "has authority to regulate the disposal of 42 U.S.C. I 2021b(1) (B),
radioactive wasta under such agreement."
(3) that Congress, by enacting the LLRWPA of 1980, and amending it Uith the LLRWpAA of 1985, has decided that the federal government's policy is. to dispose of low-level radioactive waste on a regional basis tnrough the establishment of compacts among the states, 42 4
U.S.C.
5 2021d(a), (4) that disposal, as defined at 42 U.S.C.
s 2021b(7) means permanent isolation pursuant to the requirements established "by an agreament State if such isolation occurs in such Perhaps the reason Congress chose not to elaborate on a 3
preferred method of disposal, or use a more specific definition of disposal, was because the Report of the Committee on Interior and Insular Atfairs noted that " conventional shallow land burial technology as it is used for more concentrated wastes at operating disposal facilities and as required to be developed and implemented under the commission's regulations currently in effect for licensing of low-level waste disposal facilities (10 CTR Part 61)
H.R. Rep. No.
encompasses a broad range of disposal techniques."99-314, 99th Cong., let Sess., pt.1. at 35, reerinted im 1985 tj.S.
Code Cong.
& Admin.
News 2974, 2998.
" Testimony before the committee supported the view that modern conventional shallow land.
burial technology with packaging appropriate to each waste class and with appropriate intrusion barriers and geologic isolation is adequate for most conceivable sites."
M.
l 13 i
agreement State," and (5) that nothing in li 2021b to 2021j of title 42, or within a compact, is to be construed to confer any new authority on a compact commission or state to regulate the disposal of low-level radioactive waste ain a manner incompatible with the regulations of the Nuclear Regulatory Commission,"
42 U.S.C.
I 2021d(3)(A).
I must now, however, look at state law to determine N radioactive vaste are compatible with the regulations of the NRC.;}
whether Nebraska's regulations for disposal of low-level l
In the LLkWPA of 1980 disposal was defined as "the isolation of low-level radioactive vaste pursuant to requirements established by the Nuclear Regulatory Commission.
94 Stat. at 3347.
In the LLRWPAA of 1985, disposal was redefined as "the permanent isolation of low-level radioactive waste pursuant to the requirements established by the Nuclear Regulatory Commission under applicable laws, or by an agreement State if such isolation occurs in such agreement State."
99 Stat. at 1843.
In the compact disposal was defined as "the isolation and final disposition of waste."
99 Stat, at 1864.
Essentially, Congress has gone from embracing the word
" isolation" to
" permanent isolation" to
" isolation and final disposition."
statutory interpretation must begin with the statutory language and its common meaning.
E. g Edue, g 1Ag Westride (cm un d Schools fDist, f,5j,ya. Kergens, No. 88-1597, slip op. at 7 (U.S. Supreme Court, June 4, 1990).
Since the LLRWPAA of 1985 amended the LLRWPA of 1980, it would be logical to use the definitions as amended.
Further1nore, since the compact was adopted after and pursuant to the 1985 amendments, it would be logical to follow the compact's definition of disposal.
" Permanent" is 4
defined.as " continuing or enduring in the same state,
- status, l
place,'or the like, without fundamental or marked change, not subject to fluctuation, or alteration, fixed or intended to be fixed; Generally opposed in law to ' temporary,' but not always meaning ' perpetual. '"
Black's 1,is alq1Jonary 1025 (5th ed.
1979).
" Isolate" is defined as "to set apart from others, to l
separate from another substance so as to obtain pure or in a free l
state." Webster's Egv Co11ecialt plctionarv 613 (1975).
" Dispose" is defined as "to place, distribute, or arrange especially in an orderly way, to transfer to the control of another."
Id. at 330.
l The definition that CCN would have me adopt would allow for no release of non-natural radiation from the vaste that would be stored at the site.
That definition, however, does not fit within the common meaning of the terms.
l The heart of CCN's allegation is that the NDEC's definition of ' disposal' is inconsistent with the definition found in the LLRWPAA of 1985 and, therefore, violative of the supremacy clause of the U.S. Constitution.
I do not agree.
Title 194, Neb. Admin, Code Ch.
1, i.014 defines ' disposal' as "the isolation and final i
disposition of low-level radioactive waste f rom the biosphere by emplacement in a facility that employs technology dictated by the 14
1 toro-rolosso objectivo." Tho zero-relcase objective is defined as "a goal of preventing the release of any radioactive material inte the environment."
M. at i
.041.
The regulations also state that they "are in addition to, and not in substitution for, *.ny other applicable rules or regulations of the State of NeLbraskap ~$he United States Environmental Protection
- Agency, the Nuclear Regulatory Commission, or the United States Departman' 9f Energy."
M.
at Ch.
2, 5
.001.
The NDEC promulgated i+-
fogulations i
pursuant to the authority granted it by Neb. Rev. T 4. I 81-1590.
The State of Nebraska enacted that statute puwuant to the authority granted it by Congress in the LLRWpAA of 1985 in so far as Nebraska was an agreement state to a congressionally approved compact.
S.s.t, 99 Stat at 1842.
Taking into account the complex and intertwined nature of the federal laws, the compact, the state statutes, and state agency regulations, I have concluded that NDEC regulations are not inconsistent with the LLRWPAA of 1985 or in violation of the supremacy clause'.
The NDEC has clearly been given the authority to enact the regulations in question.
it.3, 99 Stat. at 1843.
The NDEC, in its regulations, has shovn great concern for the health, safety, and welfare of the citizens and environment of Nebraska.
The zero-release objective that CCN complains of is not a literal standard but, rather, is an objective toward which the disposal site is to strive.
The NDEC regulations require " reasonable assurance that exposures to individuals are within the li.mits established in the performance objectives."
Title 194, Neb.
Admin.
Code Ch.
4, l
.001.
In fact, the concentrations of radiation allowed to be released under NDEC rules are identical to those allevable under NRC rules.
Et,3, Title 194, Nob. Admin. Codc Ch.
4, 5
.002, and Licensing Requirements for Land Disposal of Radicactive Waste, 10 C.F.R. i 61.41 (1990).
The stated purpose of the Nebraska Low-Level Radioactive Waste Disposal Act (NLLRWDA),
Neb. Rev. Stat. $$ 81-1578 3.1 s m (1986), is to provide "a program of offective regulation of disposal of low-level radioactive waste based on zero-release objectives that will protect the public health and environment with an adequate margin of safety."
Neb.
Rev. Stat,.$ 81-1580(1) (1986).
The meaning of this language is clear.
For the aforementioned reasons I find that counts three, four, and eight fail to state a claim upon which relief :an be granted and, therefore, I shall grant the defendants' motion to dismiss as to those counts.
CCN's complaint, in so far as it equates the "no release" of radiation objective to the "
icolation" or
" isolation and final disposition" language,permanentis in error.
- Congress, the State of Nebraska, the NDEC, and USE have never required such a standard and recognize that, given the technology to date, that standard is impossible to meet.
CCN's reliance on form over substance in its definitions and interpretations of the language involved here is misplaced.
15
CC?!'s f1]Q gnd 3.igh Counts CCN's fif th count alleges that placement of radioactive mixed l
wastes in the proposed facility will violate the Resource Conservation and Recovery Act (RCRA) and thereby deny to CCN's members equal protection u.nder the fifth and fourteenth amendments.
I Although the fif th amendment makes no mention of equal protection, the clause encompasses equal protection principles.
Mathews y gg O s tro, 429 U.S.
- 181, 182, n.1 (1976).
CCN's sixth count incorporates by reference the allegations in count five and asks se to declare Neb. Rev. Stat. I 81-15,101.05, dealing with disposal of mixed wastes, unconstitutional as violative of the supremacy clause.
Mixed waste is defined as " low-level radioactive vaste that also contains hazardous waste which is identified in Title 128."
Title 194, Neb. Admin. Code, Ch.1, 5 029.
The NRC has interpreted
" mixed waste" to include "any class A, B or C waste which contains non-radioactive hazardous waste (i.e., mixed waste)." 54 Fed. Reg.
i 7616 (February 22, 1989).
Federal and state law require that a hazardous waste permit be obtained by any facility that disposes of hazardous waste, which includes mixed wastes.
42 U.S.C.
6925(a); Neb. Rev. Stat. I 81-1521.15 (1987).
In 1985, Nebraska was granted final authorization to operate its hazardous vaste
=anagement program in lieu of the federal program, subject to federal law.
$31 50 Fed. Reg. 3345 (January 24, 1985).
"Section 3006 of the RCRA allows the Invironmental protection Agency (epa) to authorize state hazardous waste programs to operate in the state i
in lieu of the federal hazardous waste program.
To qualify f or final authoritation, a state's program must (1) be ' equivalent' to the feder.nl program, (2) be consistent with the federal program and e
other state programs, and (3) provide for adequate enforcement ($
3006(b) of RCRA, 42 U.S.C. 56226(b))."
M.
The epa also approved Nebraska's revised hazardous waste management program under the i
l RCF.A.
53 Fed. Reg. 38950 (October 4, 1988).
Nebraska's program met "all of the statutory and regulatory requirements established by RCRA," according to the EPA.
M.
Nebraska in 1988 enacted legislation allowing mixed waste to be disposed of at the proposed f acility.
Neb. Rev. Stat. I 81-15,101.05 (1988 and Supp. 1990).
The law says:
Waste which is defined by the Nuclear Regulatory Cor.=ission or the federal Environmental Protection Agency as mixed waste shall be solidified, neutralized, and stabilized to the maximum degree practicable prior to shipment to the f acility.
Mixed waste which has not been treated to the degree required by this section shall not be disposed of at the facility.
.M.
16 y
Neb. Rev. Stat. i 81-15,101.05 was enacted pursuant to the grant of authority given by the federal govern =ent to the State of Nebraska.
The RCRA allows the EPA to authorite state hazardous vaste programs.
Nebraska, in order to receive that expressly delegated regulatory authority, had to show that its hazardous vaste management program was equivalent to and consistent with the federal program.
Since Nebraska was granted its authority under these premises, I find that there is no conflict between the state and federal laws in quartion and, therefore, I shall grant the defendants' notion to dismiss as to CCN's fifth and sixth counts.
CCN's Seventh CCMat Count seven states that the low-level radioactive vaste classification system created by the LLRWPAA of
- 1985, and implemented via NRC and NDEC regulations, is arbitrary and capricious to the extent that it requires disposal of some long-lived radionuclides in near-surface facilities and other similar or equivalent long-lived radionuclides in deep geologic repositories. CCN says that this classification system would cause l
persons impacted by radiation at the proposed site to be denied equal protection of the laws.
It claims that persons fortuitous enough to live near a high-level radioactive vaste disposal site vould benefit from the heightened protection provided such vaste, but that persons living near low-level radioactive vasta disposal sites that contain radioactive vastes with radiation characteristics functionally similar or equivalent to high-level vaste would not be similarly protected.
CcN seeks substantially similar disposal regulations for substantially similar i
radionuclides.
While this request appears reasonable on its face, I must lock beyond appearances and examine whether there was any rational basis for the NRC and NDEC to differentiate between radioactive vastes.
"A statutory discrimination vill not be set aside if any state of f acts reasonably may be conceived to justify it."
Bowen y2 Gilliard, 483 U.S. 587, 601 (1987), quoting McGowan y_
- Marvland, 366 U.S.
420, 426 (1961).
Furthermore, a state is allowed vide latitude in enacting laws that will affect some citizens differently from others.
M. at 425.
A. constitutional violation exists only if the classification rests on grounds wholly irrelevant to the state's objective.
M.
Legislatures are presumed to have acted constitutionally despite the fact that in practice their laws cause some inequality.
M.
The NRC has established a vaste classification scheme that is designed to protect the general population from releases of radioactivity, to protect individuals from inadvertent intrusion, ahd to protect individuals during operations.
10 C.F.R.
I
- 61. 7 (b) (1)
(1990).
The reasons for distinguishing betvean the various forms of low-level radioactive vastes are set forth at 10 17
-e e
,v
=--,--,-w
C.T.R.
I 61. 7 (b) (2 } --( 5).
The different classifications of Icv-level radioactive vaste are set forth at 10 C.F.R.
I 61.55 (1990),
and specifically identify two considerations the NRC used to differentiate between types of wasta.
First, consideration is given to the concentration of long-lived radionuclides whose potential hazard will persist long after precautions have ceased to be effective.
- Second, considerat;on is given to the concentration of shorter-lived radionuclides that can be ef fectively controlled.
The classification scheme in the tables and formulae set forth at 10 C.F.R.
I 61.55 shows that concentration levels of radionuclides constitute the rational reasons for the classification system, and that the NRC has chosen this classification system not by arbitrary and capricious action, but by scientific reasoning that I am not ready to overturn absent a clear showing of error.
I note two other points.
First, the Nebraska legislature has provided that class C low-level radioactive vaste (which acccrding to 10 C.T.R.
6
- 61. 55 (a) (2 ) (iii) must meet the most rigorous requirements for storage),
"shall be stored or disposed of separately from other types of low-level radioactive vaste.
Neb. Rev. Stat. 5 81-15,101.04 (1990 Cum. Supp.).
CCN's argument is undermined to the extent that this legislation provides that the type of vaste most similar to high-level radioactive vaste is to be stored apart frem all other low-level radioactive vastes.
Second, the NRC, at 10 C.F.R.
I 61.58, provides a means by which upon request or upon its own initiative it could authorize other provisions for the classification of vaste.
CCN may find some form of relief before the
- NRC, but based on the aforementioned reasoning, I can only find that CCN's count seven fails to state a claim tpon Which relief can be granted and, therefore, the defendants' motion to dismiss as to that count is to be granted.
CCU's Ninth count Count nine states that the f ailure of the compact's mer.ber states to ratify the LLRWPAA of 1985 voids the compact and its cor.missicn under Article I, i 10 and Article IV, i IV of the Constitution.
I have addressed this point under section C above and found that there is no support for the argument that states must re-ratify amendments relating to a compact Congress approved.
y2 Tennessee-Min 1Qnr.1 Bridae Cramissi.QD, 359 U.S.
275 See, Petty (1959).
Count nine fails to state a cla1.n upon which relief can be granted and, therefore, it must be dirmissed.
cCN's Tenth Coun_t Count ten states that the failure of the defendants to adopt regulations excluding from the proposed site military-related waste in from the Sequoyah Puels nuclear reactor fuel production plant Oklahoma is a violation of the LLRWPAA of 1985 and the NLLRWDA.
CCN states on "inf.>rmation and belief" that the defendants will mix 18
o
)
civilian-generated radioactive vaste with military-generated radioactive vaste. The LLRWPAA of 1985 says that a state shall not be responsible for disposing of the federal govern =ent's low-level radioactive waste that is owned or generated by the Department of Energy ($ 3 (a) (1) (B) (i)), owned or generated by the U.S.
Navy as a
result of the decommissioning of vessels (Id.
at 5
3(a)(1)(B)(ii)), or owned or generated as a result of any research, development, testing, or production of any atomic weapon (Id. at i 3 (a) (1) (B) (iii)).
The federal government shall be responsible for the disposal of the aforementioned kinds of radioactive waste in accordance with 5 3(b).
The act goes on to say that "no j
regional disposal facility may be required to accept for disposal any material (A) that is not low-level radioactive waste" as defined at 10 C.F.R.
I 61.55 (1990).
LLRWPAA of 1985, 6 3(a)(2).
I find that this means the federal government cannot force a state to take vastes identified at il 3(a)(1)(B)(1)--(111).
However, a state can accept such vaste if it so chooses, as the last sentence l
in i 3(a) says "Nothing in this paragraph shall be deemed to I
prohibit a State, subject to the provisions of its compact, or a compact region from accepting for disposal any material identified in subparagraphs (A) and (B). "
The relevant law that must be looked to is, therefore, state law.
I-l Low-level radioactive waste "shall not include waste which remains a federal responsibility as designated in section 3(b) of the Low-I4 vel Radioactive Waste Policy Act, as amendsd, 42 U.S.C.
2021C(b)." Neb. Rev. Stat. I 81-1591 (1990 Cum. Supp.)
The quoted material was added by Laws 1989, LB 761, 55, effective May 26, 1989.
The Nebraska legislature was obviously concerned that federal low-level radioactive vaste could be placed in the proposed site and,-therefore, specifically prohibited such placement.
- ccN, a
however, states that the defendants have not shown a means by which they will segregate military from non-military waste coming from oklahoma, and that until such a means is shown, I should assume military waste vill be placed in the proposed facility in violation of Nebraska law.
I cannot make such an assumption.
First, the compact specifically states that " party states recognize that each state is responsible for the management of its non-federal low-level radioactive wastes."
Art.
I, 99 Stat. at 1864.
Second, the compact also states that "each party state has the right to rely on the god faith performance of each other party state."
Art. III(f), 99 Stat. at 1865.
Nebraska, a party state to the compact, has prohibited the placement of military waste in the proposed facility.
- Oklahoma, also a party state to the in good faith under the compact and only ship compact, must act non-military waste to the proposed facility in Nebraska, ccN has shown me no f acts or reasons to believe that Oklahoma will not abide by the provisions of the compact or the laws of Nebraska.
Therefore, I find that CCN's count ten f ails to state a claim upon which relief can be granted and, therefore, must be dismissed.
19
CON.'s rieventh Count Count eleven alleges that Neb. Rev. Stat. 5 81-15,102. 01 (Cum.
Supp. 1988) establishes an arbitrary and capricious compensation system and, therefore, is unconstitutional under the due process and equal protection provisions of the fifth and fourteenth amendments.
The statute provides that a property owner within a three-mile radius of the facility who believes that his or her property suffered a decline in value as a result of construction of the low-level radioactive waste facility may apply, within five years of the date the facility first beginc accepting waste, for compensation from the county board.
Any real property owner aggrieved by a final decision of the county board may appeal to the district court of the county pursuant to Neb. Rev. Stat. I 23-135 (Cum. Supp. 1990).
CCN says that the time and distance restrictions set by the legislature are arbitrary and capricious.
I find that the l
restrictions are reasonable.
In reviewing a
legislative classification, unless a
funda: ental right is impermissably interfered with or a suspect class suffers a disadvar.tage because of the classification, the strict-scrutiny standard of review is inappropriate. Massachusetts 1814, d Petirement L Murcia, 427 U.S.
307, 312 (1976).
I have found no fundamental rights involved here.
Est. suora, ccN's first count.
There'ere, the proper standard is the rational-basis test which uses a "relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create, distinctions is peculiarly a legislative task and an unavoidable one."
M. at 314.
" Perfection in making the necessary classifications is neither possible nor necessary."
M.
A 1egislature's action in promulgating such laws is presumed to be valid.
M.
That a system of classification may not be vise or the best possible to fulfill stated objectives is not at issue; only whether the enacted provision does not deny equal. protection of the laws is at issue.
M. at 317.
The Nebraska legislature has identified a possible problem and provided what it considers an adequate solution.
Any property owner who believes his or her property value has decreased because of the construction of the low-level radioactive vaste facility may petition for compensation within five years.
The governmental objectives of providing citizens with, compensation for their losses, and of plac.ng an outer liability limit on the developer who would be responsible for such losses are met by the restrictions.
Therefore, the rational-basis test has been met.
As for the three-mile limit being arbitrary and capricious, l
the Eighth Circuit has recognized chat:
1 (T)he Supreme Court has long held that when the state chooses to regulate dif f erentia11y, with the laws f alling unequally on different geographic areas of the state, the Equal Protection Clause is not violated so long as there i
20
4 4
s is no underlyin persons or groups.g discrimination people not places. The Equal Protection Clause prote against 427 (pa,rallel citation omi Egnavan ya Maryland, particular within i
the jurisdictionaltted).
366 U.S.
s equally affected by the law So long as all persons, 420 reach outside the territo of the behave differently. rial rea,ch of the lait matters not that these statute are Egeder y2 w are free to,
(8th cir. 1986EanajuE C1.12 & A1 fo11ea gom'r
\\
Court examined )c,ases gert denied, 479 U.S.
t s,
1065 196 F.2d 1050, all those years 2
has wavered from,its long as "no suggestion thstating th there w 1987).
1053 79 to 1976The Reeder distinctions are within th standing view that reasonablee d\\
at 1054.
at the Supreme CourtIn Since CCN has not alleged
- right, nor shown discrimination again bound by the existence of a funda fairness, constitutional re."
Id.
i L
limitations st a protected class, mental and claims must be drawn somelegislature, not the court policy of i
i to find that I a:n statutes are the the business "wisdon, clearly mark those lines. where an. at 1055 Id d it is the legislature's jThe lines for of the process by this legislative clAs for CCN's allegation th ob to acting outside the bounds of myinvalidate the s ts membe assification,rs are being denied due bo acting as a superlegisl I find tha e rubric of due process,t were I to 4
datorminations properly lef proper role I would be atura passing on, and would, in offeet, 4 53 U.S.
314 t to another branch.
730 (1963fi u, 333 (1981).
the wisdom See Tereusen y En of polic Count L Eg[g2D, 859 F. 2d 1318, 2 sk.ruca,dal L Indiang,y eleven fails bo granted. granted and, therefore, state to 372 U.S.
a clain upon which relief 1319-20 (8th Cir.1
- 726, the defendants' notion t can be t
Contral Interstate Low-Lev lAccordingly, IT IS ORDERED o dismiss it will to dismiss pursuant to Fed R
, that 1
Radioactiv(e) Waste compact Cthe motion e
and (2 surcuan)t to Fed.R.Civ.p. defendant U.S.
the motion of
. Civ. P. 12 (b) (6)
Dated october 12(b) (6), filing 15, Ecology, ling 14, is grante
, ti Inc 18, 1990 is gra., to dismiss nted.
BY THE COURT
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I United States District Judg
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- iu ad. vu so:o u.%j2 # os, rmt.a uw s,u 4 mov4 v4u
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REVISED BY D_dM LM_
TO BE Bf
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Ne$ JUPJS _
No.00 360 i
Itt il}P $1tp!Tttte 601tt1 d d P Ettlith 918128 f
Octom Trmt,1990 NUCIran MANAGEMENT AND RESOURCES COUNCIL, INC., PETITIOhTR i
v.
\\
ON PETITION FOR A WRIT OF CERT 10RAR1 TO TEIE UNITED STATES CCURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCULT BRIEF FOR THE FEDERAL RESPONDEh"IE JOHN G. Roants, Js.
Acting Solicitor General RICHARD D. ST7WAET
\\
Assistant Attorney General WIrLIAM C. PARLEE Prra R. StahuND, Ja.
Genera. _'sunsel JOHN BRYSON r
JOHN F. CORDES, JR.
MN8F8 S.-
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Departunt of Justica ' '\\Qe}g NQgD'--
Solteitor Washington, D.C.20530 g, w w,
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Spem. lCounsel a
Sus 1N FONNE O~
310 W By Q g Q
Attomey
~Ck United diaten Nuclear Regulatory Commission Washington, D.C.20535
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p< n. vu avau m u. ou, ou r mu.uu. t.s u w ou t. u a, QUESTIONS PRESChTED
- 1. Whether the legality of a Nuclear Regulatory Commission policy statement may be challenged in court years after the statement's promulgation be-cause the agency has issued minor amendments to the statement.
- 2. Whether the court of appeals should have de-fe.rred to the Commission's interpretation of Section 306 of the Nuclear Waste Policy Act of 1982, 42 U.S.C.10220, as permitting the promulgation of pol-icy guidance, rather than formal rules, regarding tho training of power plant persennet i
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TABLE OF CONTENTS Page Opinions below.......
I Jurisdiction.
Statement -
Discussion... -
Conclusion ---
TABLE OF AUTHORITIES Cases:
American Iron & Steel inst. v. EPA, 886 F.2d 890 (D.C. Cir.1989)
Chevron U.S.A. Inc. v. NRDC Council, Inc., 467 U.S. 837 (1984)
Fort Stewart Schools v. FLPA,110 S. Ct. 2043 (1990)
Guardian Fed. Sav. & Loan Ass *n v. FSLIC, 589 F.2d 658 (D.C. Cir.1978).....
K-Mart Corp. v. Cartier, ine., 486 U.S. 281 (1986)
Massachusetts v. ICC, 893 F.2d 1868 (D.C. Cir.
1990).....
Natiosuxi Rifle Ass *n v. Federal Election Comm'n, 854 F.2d 1880 (D.C. Ctr.1988) -
Porter County Chapter of the Isaac Walton League
- v. AEC,533 F.2d 1011 (7ht Cir.), cert, denied,*
429 U.S. 945 (1976)
Public Cithen v. NRC, 845 F.2d 1105 (D.C. Cir -
1988)
Raton Gas Transmission Co. v. Federal Election Comm'n, 854 F.2d 1830 (D.C. Cir.1988)
Taglin v. Letitt,110 S. Ct. 792 (1990)
Statutes:
Hobbs. Administrative Orders Review Act, 28 U.S.C. 2842(4)
Nuclear Waste Polley Act of 1982,42 U.S.C.10101 et seq.:
5119 (c),42 U.S.C.10139 (c) f 806,42 U.S.C.10226 (m)
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Niscellaneous:
p 50 Fed. Reg.11147 (1985)
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51 Fed. Reg.17361 (1986),,,,..
J 52 Fed. Reg.8121 (1987 ~~..
y SLD8er, Sutherland Statutory Coutruction
. (Sands 4th ed.' Supp.1990) _..-
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. s-l 3tt th %, viite Gatt t of IIrc Mch states OcTontn Tent,1990 No.90-860 i
NUCLEAR MANAGDIENT MD RESOURCES COUNCIL, INC., PETITION 12 i
. v.
ON PETITION FOR A WRIT OF CERTibRARI TO THE UNITED STATES COURT OF APPEALS FOR THEDISTRICTOF COLUMBIA CIRGUIT
}
BRIEF FOR THE FEDERAL RESPONDEh"rS OPINIONS BELOW The' opinion of.the court of appeals (Pet._ App. in-
~.28a) is reported at 901 F.2d 147. The orders of the court of appeals denying petitions for ahearing and.
L suggestions for1rchenring en bane (Pet. App. 24a, 25a-26a) are unreported.
.TURISDICTION The judgment of the court of appeals was entered
' on' April.17,: 1990. Petitions for rehearing were de-
~,
e s
l nied on June 15,1990 (Pet. App. 24a). The petition
-for a writ of certforari was;61ed on August 29,1990,
- The jurisdictionLof this-Court is invoked under 28 o
U.S.C.1254 (1). :
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~1. Section 306 of the Nuclear Waste Policy Act of 1982, 42 U.S.C,10226, provides that the Nuclear Regulatory Commission "is authorized and directed to promulgate regulations, or other appropriate Com-c mission regulatory guidance" concerning the training and qualifications of civilian nuclear power-plant op-erating personnel, and that such regulations or stuid-
' ance shall establish " instructional requirements" for the personnel training programs of. civilian nuclear power plant licensees.
L implement Section 306, the Commission in 1985 issued a policy statement providing regulatory' guid-ance for the training and qualifications of, nuclear power plant personnel.' 50 Fed. Reg. 11,147 (1985);
Pet) App. 27a-34a. In its policy statement, the Com-mission announced that " regulatory guidan'ce" satis-fled'"the mandate of the Nuclear Waste Policy Act,"
and that it was " deferring rulemaking" on training and qualifications-fo. a minimum of'two years to afford the nuclear u.ility industry an opportunity to achieve the goals u Section 306 without regulations i
L (Pet. App. 28a-49a). The po"cy statement endorsed the training accreditation progam developed by the' Institute of Nuclear Power Operations -(INPO)l an
-industry group established to assist utilities in. Im-
. proving the quality of the management and operation
~
of their nuclear facilities (Pet.. App. 29a, 30a).' In =
addition, the NRC ' stated that it would continue to ;
evaluate the utilities' implementation of the program, and identified a number of specific-actions that it
[
would take to monitor the accreditntion program de-veloped by INPO in order to determine whether fur-ther agency action would be appropriate (Pet. App.
l>
31a-32a).
e
AU/MbiWU 10: 04
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- 2. More than a year after the promulgation of this polley statement, respondent Public Citizen requestad the Commission to "immediately undertake rulemak-ing [in order] to comply with * *
- Section 306 of o
the Nuclear Waste Policy Act of 1982." 51 Fed. Reg.
4 17,801 (1986). Without waiting for the agency to rule on the request for rulemaking, Public Citizen filed suit against the NRC. In that suit, the court of appeals ruled-that Public Citizen's challenge to the 1985 policy statement was too late under either of the p
4 potentially applicable jurisdictional statutes: it was not filed within either the 180-day time limit of the Nuclear Waste Policy Act of 1982, 42 U.S.C.
~10189(c), or the 60-day limit of the Hobbs Admin-3D.
istrative Orders Review Act, 28 U.S.C. 2842(4).
l Alternatively, the court hold.that if the suit were deemed a challenge to the Commission's rejection of m
Public Citizen's petition for rulemaldng, it was too early.. Accordingly, the case was, dismissed. Public em Citizen v. NRC, 845 F.2d 1105 (D.C. Cir.1988)..
?y On February 2,1987, the Commitsion tmsmimously K
denied; the petition for rulemaking. L 52 Fed. Reg.
//
3121'(1987). The Commission explained that it had determined "that ' guidance' or%gulatory guidance' S_
do[es] not necessarily mean a mandatory,' enforce-
[, L '
able. regulation, order or license condition." Id. ct 3125. Public Citizen did not seek judicial review of this denial.
- 3. In 1988, the Commission issued minor amend-ments to. its policy statement. (Pet. ' App. 35a-39a).2 30 t
2 The 1988 amendments made three changes in the policy '
o' statement: (1) NRC monitoring and review were expanded; iJ (2) ~ the enforcement discretion included in the 1985 policy afstement was eliminated: and (3) minor modifications made by the National Academy for Nuclear Training to its ac-
2 v, 4. c.,0 iv. u.
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In January 19'89, respondents brought ~ this suit against the Commission, again asserting that the Commission-had failed to comply with Section 806 by ra. fusing to impose regulations for the training of nuclear power plant personnel. This time, the court of appeals held that the Commission's decision in 1988 to issue amendments to its policy statement and to keep the policy statement in force started anew the time for judicial review, on the theory that the 1986 dacision implicitly " raise [d] the lawfulness" of the~ original determination to issue a policy statement (Pet. App. 9a).
On the merits, the court of appeals concluded that the issuance of the 1985 policy statement did not satisfy the Commission's obligations ' under Section 306. The court acknowledged that the statute al-lowed the NRC "to promulgate regulations, or other appropriate Commission regulatory guidance." 42 U.S.C.10226' (emphasis added).. The court-con-cluded,- however, that other portions of the statute, particularly the direction to " establish... instruc-tional requirements," showed that Congrest wanted the Commission to issue binding rules- (Pet,- App.
L12a 22a). The court also held (Pet. App.L18t, 23a) that the statute was so clear that it precluded con-
/.
sideration of the agency's contmy view, cidng Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984).' The court accordingly ordered the agency "to create mandatory requirements" (Pet. App. 23a).-
- 4. The court of appeals denied petitions for re.
creditation program were incorporated. The statement ac.
4, companying the 1988 amendments reflected the Commission's conclusion "that the ;[INPO training accreditation] program
. As effectivo in ensuring that personnel have quallfications com- -
mensurate with the performance reqctrements of their joba" (Pet. App. 88a,30s).
'ki-
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5 hearing and suggestions for rehearing en bane filed by the Commission and by petitioner, the intervenor below. ~ Pet. App. 24a-26a. Judge Williams, foined by Judge Silberman, D. H. Ginsbttrg, and Sentelle, concurred in the denial of the suggestions for rehear-ing en banc, but specifically disagreed with the panel's decision' on' the merits. He stated that the decision had " completely shorn" Section 306 of its '
7 disjunctive statutory language directing issuance of L
regulationsLor;regulatcry guidance. Pet. App. 26a.
L He explained that he did not call for rehearing en banc because "the statute appears unique" and "per-
. haps more important, it seems * *
- not beyond the reach of agency experitse to deviss ' regulations' that preserve most if not all of the flexibility the Com-
+
mission sought and, correctly * *
- believes lawful."
,E
' Ibid.
- DISCUSSION We agree with petitioner that the court of appeals' view of its power to consider a challenge to a four-year old NRC policy statement is incorrect, and de-feated reasonable < expectations of. stability in this regulatory process.. We also fully endorse petitioner's -
- argument,that the; decision: below incorrectly inter-preted'Section 3067and misconstrued Chevron U.S.A.
4 Inc. ;v.iNRDC, Inc.,- 467 U.S. at 848, by failing, to-L igive deference to a reasonable statutory construction M
- by. the agency to which Congress has delegated the y
responsibility for administering this stai.ute. The fed-i y
eral respondents did not file their own petition be-cause the Commission-expects to follow Judge Wil-1 llams' suggestion and " devise fregulations' that pro-serve most if not all of the flexibility".the Commis-sion= sought'in,its policy statement. Pet. App. 26a.
~-
The fact remains, however, that the court of appeals
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has erroneously required the NRC to intrude on a highly effective, industry-developed program by prcrn-utgating binding regulations that the Commission be-11 oves are neither necessary as a matter of policy nor required by law. Therefore, the federal respondents do not oppose celtiorari.
- 1. The court of appeals' determination that it had subject matter jurisdiction in this case was incorrect.
The court of appeals itself has held repeatedly that, with rare exceptions, an attack on the validity of kgency action must be made within the statutory re-view period. See, e.g.,' Massachusetts v. ICC, 893 F.2d 1868 (D.C. Cir.1990); American Iron & Steel Inst.
- v. EPA, 886 F.2d 390 (D.C. Cir.1989); Rats Gas
' Transmission Co. v. FERC, 852 F.2d 612 (D.C. Cir.
1988); National Rifle Ass'n v. Federal Election
. Comm'n, 854 F.2d 1830 (D.C Cir.1988). Here, the statutory review period for a complaint alle.-ing tl at the NRC failed to implement' Section 306 is estab.
lished by one of two potentially applicable jurisdic-tional statutes: the Nuclear Waste Policy Act of 1982, which ~contains a 180-day time limit -(42 U.S.C.
10189(c)), or the Hobbs Administrative Orders re-i view Act, which contains a 60-day limit- (2S U.S.C.'
2842(4)). Both of those time limits had long'since expired when the petition in this case was filed. Pub-lic Citizen v. NRC, 845 F.2d 1105 (D.C. Cir.1988).
i To overcome this obstacle, the court of appeals 1
L found that "the Commission's 1985 action represented
. a temporary decision not to engage in rulemaking on mandatory training standards, and that the 1988 ac-tion reexamined this choice and made it permanent" (PeL App. 7a). This was an incorrect reading of the Commission's action.
In March 1985, in direct re-l sponse to a congressional directive to issue regula-1 h
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I 7
tions or regulatory guidance impicmenting Sectiori 806, the NRC adopted the policy statement attacked below. The court of appeals previously found that i
announcement suf!1ciently definitive' and final to trig.
ger the running of the limitations period. Publio Citizen ;v. NRC, 845 F.2d at 1108. In our view, the' court was correct in its first decision, rather than its L
second.
,i Nor did the agency reopen the baste issue in 1988.
At that time,' the NRC simply Issued three minor amendments to its 1985 policy statement (see note 1, j
supra).L,While the NRC did, at the same time, ob-serve that its original regulatory choice had proved s
'esective, tit did not' even obliquely reconsider the pol-icy statement's lawfulness. The court of appeals has 1
chosen to disbelieve the. agency and to ' read far mors a
Lt into the agency's statements than is there,'
- 2. The court of appeals' decision on the merits is:
m also incorrect. lit runs counter to established doc-trines-of statutory construction and principles. gov-
-erning judicial wview'_of an agency's interpretation L'
8 The court relied on agencies' "everpresent duty to insure j
that, their actions are lawful"-(Pet. App. 9a). But if this -
1 1
duty suffices to permit challenges to established policies, it would eliminate statutory, review periods altogether. The court also suggested in passing (ibid.) that a claim challeng-i ufr b
ing agency action as violative of a statute may be raised after W
a statutory limitations period has expired by filing a petition
'a b
- for amendment or rescission of the agency's regulations, and challanging the denial of that petition in court. Whether or not this avenue for avoiding limitations periods is available
? to 11tJgante, respondent Public Citizen filed just such a pett-l l
tion with the NRC in 1980, but did not seek timely judicial review of its denial. Public Citizert v. NRC, 845 F.2d 1105 7'
(D.C. Cir.1988). The court of rppeals_did not explain why b
Public Citizen should'have a second chance.
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8 oS its ' statutory mandates. The court read Section 306 to require the Comznission to promulgate regula-tions (Pet. App. 22a). But the operative words of the statutory provision direct the Commission "to promulgate regulations, or other appropriate Commis-sion regulatory guidance" (42 U.S.C.10226 (empha -
sis added)).- This disjunctive phrasing indicates clearly that Congress contemplabd - alternative.ap-proaches, and authori:cd the Commision to aclopt an approach other than issuing regulations. _The court
. of appeals' uinterpretation-by mandating binding rules-makes the phrase "other appropriate Commis-slon regulatory guidance" entirely 'rneaningless.*
(Emphasis added.) This is contrary to the two well-established principles of-statutory construction that (1) statutory language must be held to mean what it plainly expresses (the so-called " plain meaning" rule), and'(2) all of the language of a statute must
- be given effect. : See 2A Singer N. Sutherland Statu-torg Construction -sf 46.01, 46.06 ' (Sands 4,th ed. -
Supp.1990);
It is true, as the court of appeals stressed, that See-tion 306 says' that;the " regulations or " regulatory guidance" must " establish * *
- instructional require-ments," but the court was wrong in concluding that the Commission's " guidance" approach is incompatible with the requirements" directive. In fact, the policy -
statement does establish requirements": it sets forth
" essential elements" for an acceptable training prre 8 The court of appeals Itjected any interpretation of Section.
300 that.would permit the NRC to take any action-such as the case-by-case imposition of requirernents on particular 11ccuseco--short of the issuance of regulations - (Pet. App.
'22a).
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gram.' The statement is backed by vigorous Com-mission oversight.of licensee activities and an en-forcemcat policy leading to enforceable orders or li-cense conditions where training or qualifications de-
- Sciencies exist. In light of the relationship between the Commission and the regulated industry, this scheme certainly creates " requirements" in any prac-tical sense. Indeed, the court of appeals itself in.a previous case chreacterized similar guidance in a rog-ulatory agerTs policy statement as " requirements."
Guardian Fe'.l. Sav. & Loan Ass'n v. FSLIC, 589 F.2d 658,667 (D.C. Cir.1978).
The court of appeals' decision entirely ignores'the Commission's frequent and longstanding practice of issuing "[r]egulatory ifg]uides," not binding in themselves, to the nuclear industry.
See Porter County Chapter of the Isaac Walton League v. AEC, 538 F.2d 1011,1016 n.5 (7th Cir.), cert. denied,429 U.S. 945 (1976). It is difHeult to believe that Con-gross would not have stated that non-binding guid-t
. ance was. impermissible under Section 306,-if Con-gress desired to eliminate it as n'possible method of p
implementing. the statute.' Instead,. as we - have 4 The instrnetional requirements listed in.the statement are as follows (Pet. App. 30a):
- Systematicanalysis of thejobsto beperformed.
- Learning objectives derived from the analysis which
' describe desired performance after training.
- Trdnine design and implementation based on the learningobjectives.
- Evaluation of trainee mastery of the objectives during u
training.
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- Evaluation and revision of the training based on the.
4 pprformance of tralned personnel in the job setting.
- The court of appeals found support for its view of Section L
SOG in other statutes requiring agencies to establish require.
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. stressed, Congress expressly provided that the NRC could issue " guidance" as an alternative to regula-tions.
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At bottom, the court of appeals imposed its pre-ferred reading of Section 306 on the NRC. Indeed, the court virtually acknowledged as much. It recog-nized that "' guidance' certainly can mean, in ordi-nary parlance, to give advice, or suggestions" (Pet.
~ App.14a), but viewed the term " requirements" as
" clearer" (Pet. App.16a). ' This approach to statu-
~
tory construction is fundarnentally at odds with the deference doctrine this Court recognized in Chovron
-which requires courts to resolve ambiguities in the agency's favor, not to engage in their own de novo
. ernmination of the statute, so long as the agency's
- statutory reading is aL " permissible" one. 467.U.S.
'st 848. ' Accord, Fort Stewart Schools v. FLRA,110 S. Ot: 2048, 2046 (1990); E-Mart Corp. v. Cartier,
' Inc., 486 U.S. 281, 292 -(1988). - In this case, what-0
'ever the merits of the court of appeals' own reading mof Section 806, the NRC's contrary reading is, at the least, a " permissible" one.
c8' The court of appeals' decision intrudes on a
- 1. successful training program that has been the-sub-
,iect of lengthy, in-depth deliberation and review by i
the NRC and the expenditure of considerable re-sources by the utility industry. Pet.13 &<n.6. In
- issuing its 1985 policy statement, the Commission de-ments" (Pet. App.16a-17a). This Court has recently criti-cized this method of statutory construction
- Taglin v. Levice,.
110 S. Ct. 792,797 ~ (1990), explaintng that the " mere borrow-ing of statutory laugcage does not imply that Congress also
~ intended to incorporate an of the' baggage that may be at-tached.to the borrowed language" (quoting Lou v. Belzberg, 884 F.2d 730,737 (9th Cir.1987)).
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'$berately chose to issue policy gulilance rather than regulations because the nuclear industry had "de-veloped a training accreditation program wldch the NRC has found to be an acceptable means of industry self-improvement in training" (Pet. App. 28a). In l-amending the policy statement in 1988, the Commis-L sion found that the industry program "is generally
' n effective program for ensuring that nuclear power a
plant personnel have qualifications commensurate
=with the. performance requirements of' their jobs"
-(Pet. App. 85a). The NRC remains' firmly:of the view that the industry ' accreditation program has been a success and does not warrant direct super-vision thzough NRC regulations.
Nonetheless, although in our view the court of ap-t peals has misread the_ law, forcing the hTC to devote
- scarce resources to an area where an e:dsting pro-gram is working well, we have not filed our own petition for' a writ of certiorari. lThe agency cur-rently is studying ways to issue regulations.on cm-ployee training that would disrupt the successful in-dustry initiative to the minimum degreeLpossible, and is hopeful that it will be able to comply with the court's mandate while still preserving mostlof: the policy statement's flexibility. For this reasonc the
- federal respondents have not themselves sought re-view in this Court Nevertheless,.for the r~easons we have outlined, we do not oppose the granting'of the -
instant petition. If the petition is grantediwe will participate in the case in support of petitioner.
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12-CONCLUSION
. The federal respondents do not oppose the petiti.on for a writ of certiorari.
Respectfully submitted.
l-JOIIN G. RonEnts, JR.
Acting Solicitor General
- WILLIAx C. Parn RIcaAnn 5. STEWAnt GeneralCounsel Assistant Attortwy General K
JoIIN F. ConDEs,Ja PETER R. Su2NLAND, Ja.
Sollettor Jonu Dnison.
. E. leo SLACCIE Affomeys
. Specic1Cour:31 -
SUSAN FoNhu
. Attorney t
- UnitedStates Nuclear Regulatory Commission '
Octonta1990-i; i
- The Solleitor. General is disqualifted in tids case.
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