Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Com'n
| Decision Date | 10 January 1995 |
| Docket Number | No. 94-1562,94-1562 |
| Citation | 59 F.3d 284 |
| Parties | Nuclear Reg. Rep. P 20,569, 41 ERC 1302, 64 USLW 2074, 25 Envtl. L. Rep. 21,564 CITIZENS AWARENESS NETWORK, INC., Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Respondent. Yankee Atomic Electric Company, Intervenor. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Jonathan M. Block, Putney, VT, with whom Robert L. Quinn, Egan, Flanagan and Cohen, P.C., Springfield, MA, was on brief for petitioner.
Charles E. Mullins, Sr. Atty., Office of the General Counsel, U.S. Nuclear Regulatory Com'n, with whom Karen D. Cyr, General Counsel, Washington, DC, John F. Cordes, Jr., Sol., E. Leo Slaggie, Deputy Sol., U.S. Nuclear Regulatory Com'n, Rockville, MD, Anne S. Almy, Asst. Chief, and William B. Lazarus, Attorney, Appellate Section, Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, were on brief for respondent.
Thomas G. Dignan, Jr., with whom Ropes & Gray, Boston, MA, was on brief for intervenor.
Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and CYR, Circuit Judge.
Citizens Awareness Network ("CAN") petitions for review of a final order and opinion of the United States Nuclear Regulatory Commission ("NRC" or "the Commission") denying CAN's request for an adjudicatory hearing regarding decommissioning activities taking place at the Yankee Nuclear Power Station ("Yankee NPS"). CAN's petition for review rests on three grounds. First, CAN contends that the Commission's order violates CAN members' right to due process under the Fifth Amendment and Sec. 189(a) of the Atomic Energy Act ("AEA"), 42 U.S.C. Sec. 2239 (1988). Second, CAN argues that the NRC's action violates the National Environmental Policy Act, ("NEPA"), 42 U.S.C. Sec. 4321 et seq. (1988) by failing to conduct an environmental assessment ("EA") or an environmental impact statement ("EIS") prior to decommissioning. Finally, CAN argues that the Commission's actions violate its own precedents and regulations, in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 501 et seq. Although we reject CAN's Fifth Amendment arguments, we grant CAN's petition for review on the other grounds stated.
Operators of nuclear power plants must have a license issued by the NRC. That license describes the facility and the authorized activities that the operator may conduct. If the operator, called the "licensee," wishes to modify the facility or take actions not specifically authorized by the license, the licensee may seek an amendment to its license from the Commission. See 42 U.S.C. Secs. 2131-2133, 2237 (1988).
Section 189(a) of the AEA provides that:
In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees, ... the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding....
42 U.S.C. Sec. 2239(a)(1)(A). The Commission has issued regulations specifically allowing a licensee to modify its facilities without NRC supervision, unless the modification is inconsistent with the license or involves an "unreviewed safety question." 10 C.F.R. Sec. 50.59(a)(1). If the proposed change is inconsistent with the license, or does involve an unreviewed safety question (as that term is defined in 10 C.F.R. Sec. 50.59(a)(2)(ii)), the licensee must apply to the Commission for a license amendment, 10 C.F.R. Sec. 50.59(c), and only then are the statutory hearing rights of Sec. 189a triggered.
The procedures for decommissioning 1 a nuclear power plant are set forth principally in 10 C.F.R. Secs. 50.82, 50.75, 51.53, and 51.95 (1990). The formal process begins with the filing of an application by the licensee, normally after the plant has ceased permanent operations, for authority to surrender its license and to decommission the facility. Five years before the licensee expects to end plant operations, the licensee must submit a preliminary decommissioning plan containing a cost estimate for decommissioning and an assessment of the major technical factors that could affect planning for decommissioning. 10 C.F.R. Sec. 50.75. Within two years after "permanent cessation of operations" at the plant, but no later than one year prior to expiration of its license, a licensee must submit to the Commission an application for "authority to surrender a license voluntarily and to decommission the facility," together with an environmental report covering the proposed decommissioning activities. 10 C.F.R. Secs. 50.82, 50.59. This application must be accompanied by the licensee's proposed decommissioning plan, which describes the decommissioning method chosen and the activities involved, and sets forth a financial plan for assuring the availability of adequate funds for the decommissioning costs. 10 C.F.R. Sec. 50.82(b). The Commission then reviews the decommissioning plan, prepares either an environmental impact statement ("EIS") or an environmental assessment ("EA") in compliance with NEPA, and gives notice to interested parties. 10 C.F.R. Sec. 51.95. If the NRC finds the plan satisfactory (i.e., in accordance with regulations and not inimical to the common defense or the health and safety of the public), the Commission issues a decommissioning order approving the plan and authorizing decommissioning. 10 C.F.R. Sec. 50.82(e).
The Commission has stated that its regulations allow a licensee to conduct certain, limited decommissioning activities prior to obtaining NRC approval:
[I]t should be noted that [10 C.F.R.] Sec. 50.59 permits a holder of an operating license to carry out certain activities without prior Commission approval unless these activities involve a change in the technical specifications or an unreviewed safety question. However, when there is a change in the technical specifications or an unreviewed safety question, Sec. 50.59 requires the holder of an operating license to submit an application for amendment to the license pursuant to Sec. 50.90.... [T]his rulemaking do[es] not alter a licensee's capability to conduct activities under Sec. 50.59. Although the Commission must approve the decommissioning alternative and major structural changes to radioactive components of the facility or other major changes, the licensee may proceed with some activities such as decontamination, minor component disassembly, and shipment and storage of spent fuel if these activities are permitted by the operating license and/or Sec. 50.59.
53 Fed.Reg. at 24025-24026 (emphasis added). The Commission adhered to this position from the issuance of this statement in 1988 until 1993. See, e.g., Long Island Lighting Co., 33 N.R.C. at 73 n. 5 (); Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), 35 N.R.C. 47, 62 n. 7 (1992) (same).
On February 27, 1992, licensee Yankee Atomic Electric Company ("YAEC") announced its intention to cease operations permanently at Yankee NPS, a nuclear power plant located near Rowe, Massachusetts. One month later, YAEC applied for a license amendment to limit its license to a POL, a possession-only license, thus revoking YAEC's authority to operate the plant. The NRC published a Notice of Proposed Action informing the public of its opportunity to be heard on the license amendment request, pursuant to Sec. 189(a) of the AEA. 57 Fed.Reg. 13126, 13140 (April 15, 1992). There were no hearing requests; accordingly, the NRC issued the requested amendment to YAEC's license on August 5, 1992. 57 Fed.Reg. 37558, 37579 (Aug. 19, 1992). In the cover letter accompanying YAEC's amended license, the Commission reminded YAEC that "[t]he NRC must approve ... major structural changes to radioactive components of the facility...." See Issuance of Amendment No. __ to Facility Operating License No. DPR-3 (N.R.C. Docket No. 50-029).
At a meeting between YAEC and NRC representatives on October 27, 1992, YAEC proposed that the NRC grant permission for YAEC to initiate an "early component removal project" (the "CRP"), prior to submission and approval of its decommissioning plan, and hence prior to conducting an environmental assessment of decommissioning at the site. YAEC explained that it wished expeditious commencement of this early CRP because of the unexpected availability of space in the Barnwell, South Carolina Low-level Waste Disposal facility. If made to wait for submission and approval of a decommissioning plan, YAEC would lose its chance to use the Barnwell facility.
Pursuant to this proposed CRP, YAEC would first remove the four steam generators and the pressurizer from the nuclear reactor containment, remove core internals from the reactor pressure vessel, and transport all of these radioactive components to the Barnwell facility. After this dismantling, YAEC proposed to then cut up the nuclear reactor core baffle plate (which is too radioactive to meet low-level waste criteria and thus cannot be dumped in the Barnwell site), and store the pieces in canisters in the spent fuel pool for future delivery to a U.S. Department of Energy waste site. Finally, YAEC planned to remove and transport the four main coolant pumps to the Barnwell site. These CRP activities would result in the permanent disposal of 90% of the nonfuel, residual radioactivity at Yankee NPS, all prior to approval of the actual decommissioning plan.
On November 25, 1992, YAEC sent a letter to the NRC which set forth YAEC's arguments as to how NRC regulations, Statements of...
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