Concerned Citizens of Nebraska (CCN) v. U.S. Nuclear Regulatory Com'n (NRC), 91-2784

• Citation: 970 F.2d 421
• Decision Date: 17 August 1992
• Docket Number: No. 91-2784,91-2784
• Parties: Nuclear Reg. Rep. P 20,557, 134 P.U.R.4th 575, 22 Envtl. L. Rep. 21,334 CONCERNED CITIZENS OF NEBRASKA (CCN), Ronald Schumann, Lowell Fisher, Diane Burton, David Follrichs, Appellants, v. UNITED STATES NUCLEAR REGULATORY COMMISSION (NRC), Dennis Grams, Director of the Nebraska Department of Environmental Control (NDEC), Central Interstate Low-Level Radioactive Waste Compact Commission, US Ecology, Inc. (USE), Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 421

970 F.2d 421

Nuclear Reg. Rep. P 20,557, 134 P.U.R.4th 575,

22 Envtl. L. Rep. 21,334

CONCERNED CITIZENS OF NEBRASKA (CCN), Ronald Schumann, Lowell Fisher, Diane Burton, David Follrichs, Appellants, v. UNITED STATES NUCLEAR REGULATORY COMMISSION (NRC), Dennis

Grams, Director of the Nebraska Department of Environmental

Control (NDEC), Central Interstate Low-Level Radioactive

Waste Compact Commission, US Ecology, Inc. (USE), Appellees.

No. 91-2784.

United States Court of Appeals,

Eighth Circuit.

Submitted April 13, 1992.

Decided July 6, 1992.

Rehearing Denied Aug. 17, 1992.

Charles Hahn, Auburn, Neb., argued, for appellants.

Alan Peterson, Lincoln, Neb., and Jeffrey Kehne, Dept. of Justice, Washington, D.C., argued (Steven Seglin and Shawn Renner, Lincoln, Neb., Susan Fonner, Louise Milkman and J. Carol Williams, NRC, Washington, D.C., Linda Willard, Asst. Atty. Gen., Lincoln, Neb., on the briefs), for appellees.

Before JOHN R. GIBSON and BEAM, Circuit Judges, and HUNGATE, ^* District Judge.

BEAM, Circuit Judge.

Concerned Citizens of Nebraska, an unincorporated, nonprofit organization, and four of its members (collectively "CCN") filed suit in district court seeking to stop the development of a regional low-level radioactive waste disposal facility in Boyd County, Nebraska. CCN asserted numerous claims against a variety of defendants. In two separate orders, each addressing a different group of defendants, the district court dismissed CCN's complaint. CCN appeals as to several, but not all, of its allegations. We reverse the district court to the extent that it did not have jurisdiction to hear one of CCN's claims. As to CCN's remaining claims, we affirm.

I. BACKGROUND

In 1980, Congress enacted the Low-Level Radioactive Waste Policy Act (LLRW Act), Pub.L. No. 96-573, 94 Stat. 3347 (1980) (amended 1986), to promote the development of regional low-level radioactive waste disposal facilities. Pursuant to the LLRW Act, Nebraska and four other states entered the Central Interstate Low-Level Radioactive Waste Compact (Compact) and requested congressional approval of the Compact. In 1986, Congress approved the Compact under the Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act, Pub.L. No. 99-240, tit. II, sec. 222, 99 Stat. 1859, 1863 (1986). At the same time, Congress amended the LLRW Act by enacting the Low-Level Radioactive Waste Policy Amendments Act of 1985 (LLRW Amendments), Pub.L. No. 99-240, tit. I, 99 Stat. 1842 (1986) (codified at 42 U.S.C. §§ 2021b-2021j (1988)). ¹

The Compact established the Central Interstate Low-Level Radioactive Waste Compact Commission (Compact Commission) as its governing body. The Compact Commission designated Nebraska as the host state for the disposal facility and selected Boyd County as the facility's site. The Compact Commission contracted with US Ecology, Inc., a private corporation, to develop and operate the facility. Current plans for the facility permit the disposal of low-level radioactive waste and mixed waste, low-level radioactive waste also containing non-radioactive hazardous substances. Current plans also permit the limited release of low-level radiation into the surrounding environment. The Environmental Protection Agency (EPA) has approved the disposal of mixed waste at the Boyd County facility, and performance standards established by the United States Nuclear Regulatory Commission (NRC) and the Nebraska Department of Environmental Control (NDEC) do not require complete containment of radiation at low-level waste disposal facilities. See 53 Fed.Reg. 38950 (Oct. 4, 1988); 10 C.F.R. § 61.41 (1992); Neb.Admin.R. & Regs. tit. 194, ch. 4, § 002 (1988). The NDEC regulations, however, establish an objective of zero-release. See Neb.Admin.R. & Regs. tit. 194, ch. 4, § 001 (1988). The Boyd County facility cannot begin operations until it receives a license from the NDEC.

In an attempt to stop development of the Boyd County facility, CCN filed suit in district court, asserting numerous claims against various defendants, including multiple constitutional challenges to certain NRC regulations. Each of the defendants, except for the NRC, moved for dismissal of CCN's claims under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. The district court granted these motions. The NRC moved for dismissal on the pleadings under Fed.R.Civ.P. 12(c). As part of its motion, the NRC argued that the district court lacked jurisdiction to hear CCN's claims challenging its regulations. The district court rejected the NRC's jurisdictional argument, but granted the agency summary judgment. ²

CCN appeals the district court's dismissal of the following claims: (1) that the NRC and NDEC performance standards permit the release of radiation from the Boyd County facility, violating a fundamental right of CCN's members to be free of non-natural radiation; ³ (2) that the federal and state radioactive waste classification systems allow the disposal of low-level waste in facilities subject to less stringent containment standards than those for high-level waste facilities, violating the equal protection guarantees of the Fifth and Fourteenth Amendments; (3) that the NRC and NDEC performance standards for the Boyd County facility conflict with federal statutory authority, violating the constitutional principle of separation of powers and the Supremacy Clause, respectively; and (4) that Nebraska statutory law permitting the disposal of mixed waste at the Boyd County facility conflicts with federal statutory law, violating the Supremacy Clause.

II. DISCUSSION

A. Jurisdiction

Before determining whether the district court erred in dismissing CCN's claims, we must first address the NRC's contention that the district court lacked jurisdiction to hear CCN's claims challenging NRC regulations. CCN formulates all of its claims in constitutional terms. As the following discussion reveals, we agree with the NRC's jurisdictional argument to the extent that we find that one of CCN's claims is statutory and not constitutional.

CCN asserts multiple challenges to various NRC regulations. Initially, CCN contends that the NRC performance standards for low-level radioactive waste conflict with the provisions of the LLRW Amendments. ⁴ CCN casts what would otherwise appear to be a statutory claim as a constitutional wrong by arguing that the NRC has violated the separation of powers doctrine. CCN also asserts that the NRC performance standards for low-level waste violate a fundamental right of its members to be free of non-natural radioactive waste, which right is protected by the Ninth Amendment, and that the differences between the NRC performance standards for high-level and low-level waste violate the equal protection guarantees embodied in the Fifth Amendment. ⁵

The NRC responds by arguing that the Atomic Energy Act of 1954 (AEA), 42 U.S.C. §§ 2011-2296 (1988), precludes CCN from challenging the regulations in district court. The regulations in issue were established by the NRC pursuant to its rulemaking authority under the AEA. The AEA governs challenges to final orders stemming from "any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees." Id. § 2239(a)(1). Under the AEA's provisions, the sole method of challenging a final order is to file a petition for review with the court of appeals within sixty days of the order's entry. See id. § 2239(b) (referring to appeal procedures contained in the Administrative Orders Review (Hobbs) Act, 28 U.S.C. §§ 2341-2351 (1988)). ⁶

The district court rejected the NRC's arguments and concluded that it had jurisdiction over CCN's claims. The court initially ruled that the AEA did not apply because none of the parties to the litigation was a licensee. The court then held that it had federal question jurisdiction under 28 U.S.C. § 1331 because all of CCN's challenges to the regulations were constitutional in nature.

We disagree with this analysis. Although no licensee is involved in the present litigation, the regulations in issue deal with the activities of licensees. The regulations govern the development and operation of low-level radioactive waste disposal facilities, which must receive licenses from the NRC or a state agency administering a regulatory program compatible with the NRC's before accepting waste. Section 2239(a)(1) of the AEA speaks to the nature of the challenged order, not the parties involved. Thus, the fact that the Boyd County facility has yet to become licensed is irrelevant. Cf. Union of Concerned Scientists v. Nuclear Regulatory Comm'n, 920 F.2d 50 (D.C.Cir.1990) (Hobbs Act review of non-licensee's challenges to NRC regulations concerning licensing procedures).

The AEA's provisions, however, do not necessarily apply to all of CCN's claims against the NRC regulations. In Simmons v. Arkansas Power & Light Co., 655 F.2d 131 (8th Cir.1981), we recognized a distinction between claims that allege the NRC has failed to comply with a statute and claims that assert the NRC has directly violated the Constitution. The Simmons court declined to address various claims against the NRC based on the AEA, holding that the district court lacked jurisdiction over such claims. The plaintiffs only avenue to enforce the statute was to follow the appropriate administrative procedures. Id. at 134. The court, however, did address claims against the NRC based directly on the Constitution, implying that the district court had jurisdiction over such claims. See id. This distinction is consistent with the Supreme Court's decision in Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053, 100 L.Ed.2d 632 (1988) ("[W]here Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.").

In the present case, therefore, the district court's jurisdiction over a particular claim against the NRC regulations turns on...