Envirocare of Utah v. Nuclear Regulatory Comm'n.

• Decision Date: 22 October 1999
• Docket Number: No. 98-1592,No. 98-1426,98-1426,98-1592
• Citation: 194 F.3d 72
• Parties: (D.C. Cir. 1999) Envirocare of Utah, Inc.,Petitioner v. Nuclear Regulatory Commission and United States of America, Respondents Quivira Mining Company and International Uranium (USA) Corporation, Intervenors Consolidated with
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 72

194 F.3d 72 (D.C. Cir. 1999)

Envirocare of Utah, Inc.,Petitioner v. Nuclear Regulatory Commission and United States of America, Respondents

Quivira Mining Company and International Uranium (USA) Corporation, Intervenors

No. 98-1426 Consolidated with No. 98-1592

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 1999

Decided October 22, 1999

On Petitions for Review of an Order of the Nuclear Regulatory Commission

Richard L. Cys argued the cause for petitioner. With him on the briefs was Lynda L. Brothers.

E. Leo Slaggie, Deputy Solicitor, U.S. Nuclear Regulatory Commission, argued the cause for respondents. With him on the brief were Lois J. Schiffer, Assistant Attorney General, U.S. Department of Justice, Robert H. Oakley, Attorney, Karen D. Cyr, General Counsel, U.S. Nuclear Regulatory Commission, and John F. Cordes, Jr., Solicitor. Grace H. Kim, Attorney, entered an appearance.

Anthony J. Thompson, Frederick S. Phillips, David C. Lashway, Mark J. Wetterhahn and Robert M. Rader were on the brief for intervenors.

Before: Edwards, Chief Judge, Sentelle and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

Federal agencies may, and sometimes do, permit persons to intervene in administrative proceedings even though these persons would not have standing to challenge the agency's final action in federal court. Agencies, of course, are not constrained by Article III of the Constitution; nor are they governed by judicially-created standing doctrines restricting access to the federal courts. The criteria for establishing "administrative standing" therefore may permissibly be less demanding than the criteria for "judicial standing." See, e.g., Pittsburgh & W.Va. Ry. v. United States, 281 U.S. 479, 486 (1930); Alexander Sprunt & Son, Inc. v. United States, 281 U.S. 249, 255 (1930); Henry J. Friendly, Federal Jurisdiction: A General View 118 (1973).¹

Is the converse true? May an agency refuse to grant a hearing to persons who would satisfy the criteria for judicial standing and refuse to allow them to intervene in administrative proceedings? This is the ultimate question posed in these consolidated petitions for judicial review of two orders of the Nuclear Regulatory Commission refusing to grant Envirocare of Utah, Inc.'s requests for a hearing and for intervention in licensing proceedings.

I

Envirocare was the first commercial facility in the nation the Commission licensed to dispose of certain radioactive byproduct material from offsite sources.² The Commission had licensed other companies to dispose of such radioactive waste, but only if the waste was produced onsite. In the late 1990s, the Commission granted the applications of two such companies for amended licenses to allow them to dispose of radioactive waste received from other sites. International Uranium (USA) Corporation's facility in Utah became licensed to receive and dispose of approximately 25,000 dry tons of waste still remaining from the Manhattan Project and currently stored in New York State. Quivira Mining Company's facility in New Mexico, some 500 miles from Envirocare's operation, also became licensed to dispose of specified amounts of such material from offsite sources.

In both licensing proceedings before the Atomic Safety and Licensing Board, Envirocare requested a hearing and sought leave to intervene to oppose the amendment. Envirocare's basic complaint was "that the license amendment permits [the company] to become a general commercial facility like Envirocare, but that the NRC did not require [the company] to meet the same regulatory standards the agency imposed upon Envirocare when Envirocare sought its license to become a commercial disposal facility for" radioactive waste. Quivira Mining Co., 48 N.R.C. 1, 4 (1998). The Licensing Board rejected Envirocare's requests for a hearing and for leave to intervene in both cases, and in separate opinions several months apart, the Commission affirmed.

With respect to the proceedings to amend Quivira's license, the Commission ruled that Envirocare did not come within the following "standing" provision in the Atomic Energy Act: when the Commission institutes a proceeding for the granting or amending of a license, "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. § 2239(a)(1)(A). In determining whether Envirocare possessed the requisite "interest" under this provision, the Commission looked to "current judicial concepts of standing."Quivira Mining Co., 48 N.R.C. at 6. Envirocare alleged economic injury, claiming that the less stringent application of regulations to Quivira placed Envirocare at a competitive disadvantage. This allegation was sufficient, the Commission held, to meet the injury-in-fact requirements of constitutional standing. On the question of prudential standing, however, the Commission determined that "Envirocare's purely competitive interests, unrelated to any radiological harm to itself, do not bring it within the zone of interests of the AEA for the purpose of policing the license requirements of a competitor."Id. at 16.

With respect to International Uranium's license, the Commission agreed with the Licensing Board that the case was "on all fours" with Quivira. International Uranium Corp., 48 N.R.C. 259, 261 (1998). As in that case, Envirocare's injury from International Uranium's competition was not within the Atomic Energy Act's zone of interests. In addition, the Commission made explicit its view that judicial standing doctrines were not controlling in the administrative context and that its duty was to interpret the "interest[s]" Congress intended to recognize in § 2239(a)(1)(A): "Our understanding of the AEA requires us to insist that a competitor's pecuniary aim of imposing additional regulatory restrictions or burdens on fellow market participants does not fall within those 'interests' that trigger a right to hearing and intervention under [§ 2239(a)(1)(A)]." International Uranium Corp., 48 N.R.C. at 264.

II

Envirocare spends all of its time arguing that in light of decisions of the Supreme Court and of this court, its status as a competitor satisfies the "zone of interests" test for standing, as the test was formulated in Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970), and as it was refined in National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479 (1998). We shall assume that Envirocare is correct. It does not follow that the Commission erred in refusing the company's motions for a hearing and for leave to intervene, at least in regard to International Uranium's license amendment. The Commission rightly pointed out, in International Uranium and in Quivira, that it is not an Article III court and thus is not bound to follow the law of standing derived from the "case or controversy" requirement. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Judicially-devised prudential standing requirements, of which the "zone of interests" test is one, are also inapplicable to an administrative agency acting within the jurisdiction Congress assigned to it. The doctrine of prudential standing, like that derived from the Constitution, rests on considerations "about the proper--and properly limited--role of the courts in a democratic society." Warth v. Seldin, 422 U.S. 490, 498 (1975).

Whether the Commission erred in excluding Envirocare from participating in International Uranium's licensing proceeding therefore turns not on judicial decisions dealing with standing to sue, but on familiar principles of administrative law regarding an agency's interpretation of the statutes it alone administers. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). The governing provision--42 U.S.C. § 2239(a)(1)(A)--requires the Commission to hold a hearing "on the request of any person whose interest may be affected by the proceeding" and to allow such a person to intervene.³ The term "interest" is not defined in the Act and it is scarcely self-defining. It could mean merely an academic or organizational interest in a problem or subject, as in Sierra Club v. Morton, 405 U.S. 727, 738-40 (1972). Or an interest in avoiding economic harm or in gaining an economic benefit from agency action directed at others. See Association of Data Processing Serv. Orgs., 397 U.S. at 154. Or an "interest" in "aesthetic, conservational and recreational values." Id. Or all of these. But whatever the judicial mind thinks of today as an "interest" affected by a proceeding is not necessarily what Congress meant when it enacted this provision in 1954. At the time, judicial notions of standing were considerably more restrictive than they are now. The Supreme Court had put it this way: a private party could challenge federal government action in federal court only if the party had a legally protected interest, that is, "one of property, one arising out of contract, one protected against tortious invasion or one founded on a statute which confers a privilege." Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 137-38 (1939); see also Stephen G. Breyer & Richard B. Stewart, Administrative Law and Regulatory Policy: Problems, Text, and Cases 1195-96 (2d ed. 1985).Thus, traders in one market were not "parties in interest" entitled to sue for an injunction against a railroad's extending its track to a competitive market. L. Singer & Sons v. Union Pac. R.R., 311 U.S. 295 (1940). On the other hand, some Supreme Court opinions pointed in the opposite direction, recognizing judicial standing for competitors who would suffer economic injury from agency action. An example is FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940).Another is The Chicago Junction...