Nuclear Info. & Res. v. Nuclear Reg. Com'n.

Decision Date24 July 2006
Docket NumberNo. 04-71432.,04-71432.
Citation457 F.3d 941
PartiesNUCLEAR INFORMATION AND RESOURCE SERVICE; Committee to Bridge the Gap; Public Citizen, Inc.; and Redwood Alliance, Petitioners, v. NUCLEAR REGULATORY COMMISSION, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

John Farrow, San Francisco, CA, for the petitioners.

Grace H. Kim, Office of the General Counsel, Washington, D.C., for the respondent.

Petition to Review a Decision of the Nuclear Regulatory Commission. NRC No. RIN 3150-AG71.

Before RYMER and WARDLAW, Circuit Judges, and JAMES V. SELNA,* District Judge.

RYMER, Circuit Judge.

The Nuclear Information and Resource Service, Committee to Bridge the Gap, Public Citizen, Inc., and Redwood Alliance (collectively NIRS) challenge the Nuclear Regulatory Commission's (NRC) rulemaking, which revised regulations governing the exemption standards for the transportation of radioactive material. NIRS argues that NRC failed to comply with its obligations under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, by not preparing an Environmental Impact Statement (EIS) and making a finding of no significant impact (FONSI) without basis. We are obligated before reaching the merits of NIRS's NEPA challenge to determine whether NIRS has standing to bring its complaint in federal court. We conclude that it does not, and we therefore dismiss NIRS's petition for review.

I

NRC and the Department of Transportation (DOT) co-regulate the transportation of radioactive material in the United States. NRC is authorized to regulate the use and possession of nuclear materials, which it does by prescribing regulations for its licensees' packaging and transport of such materials. See 42 U.S.C. § 2201(b); 10 C.F.R. § 71.0. DOT is authorized to designate material as hazardous and to prescribe regulations for the safe transportation of such material. 49 U.S.C. §§ 5103(a), (b)(1). Under this authority, DOT has promulgated its Hazardous Materials Regulations (HMR), which regulate the shipment of radioactive materials, including packaging, labeling, and notification, and which apply in addition to NRC's requirements for the shipment of nuclear materials. 49 C.F.R. §§ 171-179. A Memorandum of Understanding (MOU) governs the respective responsibilities of NRC and DOT. Transportation of Radioactive Materials; Memorandum of Understanding, 44 Fed.Reg. 38,690 (July 2, 1979). As NRC summarizes the MOU, "DOT is responsible for regulating safety in transportation of all hazardous materials, including radioactive materials, whereas NRC is responsible for regulating safety in receipt, possession, use, and transfer of byproduct, source, and special nuclear materials." Thus, DOT adopts regulations for all shippers and carriers of hazardous materials, including safety standards for shipping and packaging radioactive material; NRC develops safety standards for packaging certain radioactive materials and regulates its licensees; and DOT "issue[s] complete and comprehensive Federal regulations for the packaging and transportation of all radioactive materials as part of its overall body of Federal regulations." Id.

The United States is a member of the International Atomic Energy Agency (IAEA),1 which, in 1961, adopted international regulations for the safe transportation of radioactive material. The IAEA regulations were published in Regulations for the Safe Transport of Radioactive Materials, IAEA Safety Series No. 6 (SS-6). As a Member State, the United States harmonized its domestic regulations with the IAEA standards. The IAEA periodically has revised SS-6 with "substantial input" from DOT, and, following each revision, DOT and NRC have amended domestic regulations to make them compatible with the IAEA standards. The latest significant revision to the SS-6 was published in December 1996, and redesignated TS-R-1 in June 2000. The principal change from the prior IAEA regulations to TS-R-1 at issue in this case involves radionuclide exemption values.

Following the IAEA revisions, NRC and DOT began the rulemaking process for revising domestic regulations on exemption values to make them compatible with the new IAEA standards—DOT with its IAEA Compatibility Amendments and NRC with conforming amendments to its Part 71 Regulations. See Compatibility with IAEA Transportation Safety Standards (TS-R-1) and Other Transportation Safety Amendments; Final Rule, 69 Fed. Reg. 3,698 (Jan. 26, 2004) (to be codified at 10 C.F.R. pt. 71) ("NRC Final Rule"); Hazardous Materials Regulations; Compatibility With the Regulations of the International Atomic Energy Agency; Final Rule, 69 Fed.Reg. 3,632 (Jan. 26, 2004) (to be codified at 49 C.F.R. pts. 171-78) ("DOT Final Rule"). "Exemption values" are the standards adopted for determining whether nuclear material is subject to regulation during transport; if the radioactivity of the material is below the exemption value, then the material is "exempt" and not subject to regulation. NIRS here challenges NRC's change from an "activity concentration" to a "dose-based" standard for setting exemption values. NRC Final Rule, 69 Fed.Reg. at 3,711-20, 3,765, 3,791; id. at 3,807-13 (setting forth the exemption provisions); see also DOT Final Rule, 69 Fed.Reg. at 3,634-36, 3,656, 3,658.

Before adopting the regulation, NRC (and DOT) applied a uniform "activity concentration" standard to exempt transportation of low-radioactivity material from regulation. "Activity concentration" refers to the number of nuclear disintegrations per second in a gram of material and is commonly measured in Becquerels. A Becquerel is one radioactive disintegration per second. This prior NRC/DOT standard, which was also the pre-1996 IAEA standard, established 70-Becquerels per gram (Bq/g) as the uniform activity concentration standard; radioactive material with fewer than 70 disintegrations per second in a gram was exempted from NRC regulation during transport.

In 1996, the IAEA determined that there was no technical justification for the single activity concentration value of 70 Bq/g and concluded that the technically sound approach was a dose-based standard, which it adopted. Dose depends not only on the number of disintegrations per second but also on the type and energy of the radiation emitted by a nuclear disintegration. Dose limits are expressed in "rems" or "millirems" (mrem). To develop the dose-based approach, the IAEA used safety standards from a 1996 IAEA study—the "BSS" study, Safety Series No. 115, International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources. The BSS study used a dose-based approach in fixed facility exposure scenarios, as opposed to transport scenarios, and it calculated for each radionuclide an exemption threshold that would limit an effective annual dose to 1 mrem or less per year.2 The IAEA researchers performed calculations on a subset of BSS scenarios and calculated the activity concentration for each of twenty radionuclides that would result in a dose of 1 mrem per year to transport workers in transportation scenarios. They concluded that "[d]ue to differences in radionuclide radiation emissions, exposure pathways, etc., the resulting radionuclide-specific activity concentrations varied widely." 69 Fed. Reg. at 3711. In other words, to obtain the 1 mrem per year dose level, the activity concentrations for radionuclides differ —some are less than 70 Bq/g, but others are much higher. Instead of an across-the-board 70 Bq/g standard, the new standard is set forth in a chart that states the allowable activity concentrations for various, commonly shipped radionuclides.

The IAEA found that the activity concentrations required in transportation scenarios to limit the effective annual dose to 1 mrem were less than the BSS fixed facility values but not by more than one to two orders of magnitude. This meant that to meet the 1 mrem criteria, the transportation specific levels would have to be more protective than the generic BSS levels. The IAEA determined that the difference in dose between fixed-facility and transport scenarios did not justify imposing a different set of standards for fixed facilities and transportation exemptions, so it adopted the BSS values for transport in TS-R-1. The IAEA's calculations showed that using the BSS exemption values for transport would yield a dose exceeding 1 mrem for some radionuclides and that the average annual dose using the BSS exemption values would be approximately 23 mrem per year, in excess of the 1 mrem per year target.3 In comparison, the average annual dose for a transport worker under the 70 Bq/g value was about 50 mrem per year.

After the IAEA moved to dose-based regulations, NRC and DOT began the rulemaking process to harmonize domestic standards with the IAEA standards by adopting dose-based, radionuclide-specific radioactivity levels for each of about 380 radionuclides. In July 2000, NRC published an Issues Paper discussing its proposal to adopt the IAEA exemption standards and it solicited written comments and input at three public meetings. Major Revision to 10 CFR Part 71: Compatibility with ST-1—The IAEA Transportation Safety Standards—And Other Transportation Safety Issues, Issues Paper, and Notice of Public Meetings; Proposed Rule, 65 Fed.Reg. 44,360, 44,360-61 (July 17, 2000). Among other things, commenters responded that there was no safe radiation dose, that the scientific materials IAEA used as a basis for its decision were not publicly available, and that there was a growing scientific consensus that low-dose radiation may be more harmful than previously thought.

Following this preliminary public-participation process, in April 2002, NRC published a notice of proposed rulemaking and a draft environmental assessment (EA) as required by NEPA. NRC allowed 90 days for public comment on the proposed rule and held two public meetings. It received about...

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