Com. of Mass. v. U.S. Nuclear Regulatory Com'n

• Citation: 878 F.2d 1516
• Decision Date: 01 May 1989
• Docket Number: No. 88-2211,88-2211
• Parties: COMMONWEALTH OF MASSACHUSETTS, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1516

878 F.2d 1516

COMMONWEALTH OF MASSACHUSETTS, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents.

No. 88-2211.

United States Court of Appeals First Circuit.

Heard May 1, 1989.

Decided June 29, 1989.

Stephen A. Jonas, Deputy Atty. Gen., Chief, Public Protection Bureau, with whom James M. Shannon, Atty. Gen., and John Traficonte, Asst. Atty. Gen., Chief, Nuclear Safety Unit, were on brief, for petitioner.

Carole F. Kagan, Sr. Atty., with whom William C. Parler, Gen. Counsel, William H. Briggs, Jr., Sol., E. Leo Slaggie, Deputy Sol., and Jeffrey P. Kehne, Land and Natural Resources Div., Dept. of Justice, were on brief, for respondents.

R.K. Gad III with whom James B. Levy, Ropes & Gray and William S. Stowe were on brief, for intervenor, Boston Edison Co.

Before BOWNES and BREYER, Circuit Judges, and GRAY, ^* Senior District Judge.

BOWNES, Circuit Judge.

Petitioner, the Commonwealth of Massachusetts, requests that we set aside three actions taken by the respondents, the United States and the United States Nuclear Regulatory Commission (collectively, NRC or Commission), with respect to the operation of Pilgrim Nuclear Power Station (Pilgrim) by the Boston Edison Company (Edison), which is an intervenor in this action. NRC and Edison moved to dismiss the petition on jurisdictional grounds. For the reasons set forth below, we deny the petition; we do not dismiss it on jurisdictional grounds.

I. FACTS

In 1972, Edison was issued a license to operate Pilgrim. Because of problems, Pilgrim was shut down voluntarily by Edison in April 1986. The shut down and continued cessation of operation were accomplished without a formal order by the NRC. The NRC required, however, that Edison satisfy it that certain improvements had been made before it would allow the restart of Pilgrim. These improvements covered 47 items involving operations, maintenance and security. In August 1987, the Federal Emergency Management Agency (FEMA) withdrew its finding that Pilgrim's off-site emergency plan ¹ was adequate. Shortly thereafter, NRC informed Edison that a decision to restart Pilgrim would also involve consideration of the matters raised by FEMA.

By late 1988, the NRC staff had completed its review of Edison's improvements and recommended that the Commission approve restart. On December 9, 1988, the Commission held a meeting with state and local officials at which the officials stated that restart was inappropriate because of the current state of the emergency plans. The NRC staff reiterated its position that, although the improvements were not complete, there had been sufficient progress in all troubled areas to warrant restart. On December 21, 1988, the Commission voted unanimously to allow restart by a staged power ascension plan under NRC staff oversight.

On December 29, 1988, the NRC denied part of a Commonwealth petition to modify, suspend or revoke Pilgrim's license brought pursuant to 10 C.F.R. Secs. 2.202, 2.206. ² The NRC had previously denied other parts of this petition with respect to issues not germane to the present case. The only relevant issue concerned deficiencies in the emergency plans. The NRC's reasons for denying this part of the petition were set forth in a published decision.

See Boston Edison Co., 28 N.R.C. 814 (1988).

On January 5, 1989, the NRC granted Edison its third exemption from the requirement under 10 C.F.R. 50 App.E Sec. IV F. 3 that it conduct a biennial full-participation emergency preparedness drill. Edison was exempted from that requirement "provided that such an exercise be conducted within 120 days after the completion of the power ascension program." 54 Fed.Reg. 336, 338 (1989).

On December 21, 1988, the Commonwealth filed a petition in this court seeking review of the NRC's decision to allow Pilgrim to restart. The petition was amended to include NRC's subsequent denial on December 29, 1988 of the Commonwealth's petition to modify, suspend or revoke Pilgrim's license. The Commonwealth has also requested that the NRC's grant of an exemption to Pilgrim from emergency preparedness drills be addressed at this time. Its motion to amend, now pending before this court, to include the emergency drill exemption for review is hereby granted because all of the NRC's actions bear on the same basic issue--emergency plans at Pilgrim. The Commonwealth seeks reversal of the actions by NRC allowing Pilgrim to restart, denying its petition and granting Edison the exemption. It also contends that the 47 modifications required prior to restart and the emergency drill exemption entitled it to a hearing pursuant to 42 U.S.C. Sec. 2239(a) (Sec. 189(a) of the Atomic Energy Act) and asks that we order such a hearing and suspend the NRC's orders pending the hearing.

On January 11, 1989, we permitted Edison to intervene. On January 24, 1989, NRC and Edison moved to dismiss the petition on four jurisdictional grounds: (1) there was no "final order" under 28 U.S.C. Sec. 2342(4) and 42 U.S.C. Sec. 2239(b); (2) the Commonwealth is not a "party" under 28 U.S.C. Sec. 2344; (3) the NRC's order did not involve the "granting, suspending, revoking or amending" of Pilgrim's license under 42 U.S.C. Sec. 2239(a); and (4) denials of Sec. 2.206 petitions ³ are not reviewable under Massachusetts Public Interest Research Group, Inc. v. NRC, 852 F.2d 9 (1st Cir.1988) (Mass. PIRG ).

On February 21, 1989, the Commonwealth moved for an interlocutory injunction to prevent Pilgrim from being operated at more than five percent of full power. On March 7, we denied the motion but ordered an expedited briefing and argument schedule.

We address initially the first two issues raised by the motion to dismiss: finality and the Commonwealth's "party" status. Thereafter, we turn to the issues raised by the petition and incorporate in that discussion the other issues raised by the motion to dismiss.

II. MOTION TO DISMISS

A. Final Order

Review of NRC decisions is governed by the Hobbs Act, 28 U.S.C. Sec. 2342(4). ⁴ Recently we addressed the finality requirement and stated:

The standard for determining whether an agency has taken final agency action within the meaning of the Administrative Procedure Act is set forth in Port of Boston Marine Terminal Association v. Rederiaktiebolaget Transatlantic, 400 Mass. PIRG, 852 F.2d at 13; see also Dickinson v. Zech, 846 F.2d 369, 371 (6th Cir.1988) ("an order is final only if it 'imposes an obligation, denies a right, or fixes some legal relationship, usually at the consummation of an administrative process.' ") (quoting NRDC v. NRC, 680 F.2d 810, 815 (D.C.Cir.1982)).

                U.S. 62, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970):  "[T]he relevant considerations in determining finality are whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action."    Id. at 71, 91 S.Ct. at 209 (citations omitted)
                

The December 21, 1988 decision authorizing the restart of Pilgrim was final. The decision was the last action necessary to be taken by the NRC prior to Edison being allowed to restart Pilgrim. Indeed, Pilgrim has already resumed low level operation. Barring some unforeseen event at Pilgrim, the NRC will take no further action. There is thus no ongoing proceeding for judicial review to disrupt. And the decision determined Edison's right to restart Pilgrim. The grant of an exemption from emergency drills is a final order for the same reasons the decision to restart is: there is no ongoing proceeding to disrupt and the exemption determined Edison's right not to conduct the drill. Finally, we have already held that the denial of a Sec. 2.206 petition is a final action. Mass. PIRG, 852 F.2d at 13-14.

B. Commonwealth as a "Party"

NRC and Edison next argue that because the Commonwealth was not a party to the NRC's actions, it cannot be a "party aggrieved by the final order." 28 U.S.C. Sec. 2344. ⁵ This argument is circular. The Commonwealth is, in part, claiming that the NRC should have made it a party to these actions by holding hearings and instituting certain proceedings. The NRC cannot now claim that by refusing to grant the Commonwealth's requests to become a party, the NRC's decisions are beyond review.

III. COMMONWEALTH'S RIGHT TO A HEARING

The Commonwealth contends that it was entitled to a hearing pursuant to 42 U.S.C. Sec. 2239(a) before Pilgrim was restarted. ⁶ It argues that the NRC's actions--requiring 47 improvements, granting the exemption from emergency drills, and allowing Pilgrim to restart--amounted to either an amendment to or a reinstatement of Edison's license to operate Pilgrim.

A. Amendment

The Commonwealth contends that by requiring Edison to address 47 items and by granting the exemption from emergency drills, NRC amended Edison's license.

The Third Circuit was faced with a similar issue: whether an NRC decision that 155 conditions be met before restart constituted a license amendment requiring a hearing. In re Three Mile Island Alert, Inc., 771 F.2d 720 (3d Cir.1985) (TMI ), cert. denied, 475 U.S. 1082, 106 S.Ct. 1460, 89 L.Ed.2d 717 (1986). The court held this was not a license amendment; it reasoned as follows:

The sole effect of that Order is to lift the 1979 shutdown orders; the licensee has no greater operating authority by virtue of the May 29, 1985 Order than it had on July 1, 1979. It is true that the Commission, as a condition of lifting its shutdown order, has imposed numerous restrictions on the way in which the licensee may exercise its existing authority, but petitioners have pointed us to nothing in this record which indicates that the Commission has purported to effect Id. at 729 (footnotes omitted); see also San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1314 (D.C.Cir.1984) (SLO ) (lifting of a license...