Nat'l Resources Defense Council v. Abraham

• Decision Date: 28 March 2001
• Docket Number: No. 00-70015,00-70015
• Citation: 244 F.3d 742
• Parties: (9th Cir. 2001) NATURAL RESOURCES DEFENSE COUNCIL, INC.; SNAKE RIVER ALLIANCE,Petitioners, v. SPENCER ABRAHAM, <A HREF="#fr1-*" name="fn1-*">* Secretary of Energy; UNITED STATES OF AMERICA, Respondents
• Court: U.S. Court of Appeals — Ninth Circuit

Page 742

244 F.3d 742 (9th Cir. 2001)

NATURAL RESOURCES DEFENSE COUNCIL, INC.; SNAKE RIVER ALLIANCE,Petitioners, v. SPENCER ABRAHAM,^* Secretary of Energy; UNITED STATES OF AMERICA, Respondents.

No. 00-70015

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 9, 2001

Filed March 28, 2001

David E. Adelman (argued), Natural Resources Defense Council, Washington, D.C., and Eric R. Glitzenstein, Meyer& Glitzenstein, Washington, D.C., for the petitioners.

Lisa E. Jones, Department of Justice, Environment & Natural Resources Division, Washington, D.C., for respondents.

Petition to Review a Decision of the Department of Energy. DOE No.435.1

Before: Pamela Ann Rymer, Sidney R. Thomas and M. Margaret McKeown, Circuit Judges. Opinion by Judge Rymer

RYMER, Circuit Judge:

This case involves Department of Energy (DOE) Order 435.1, together with its Manual and Implementation Guide, which provide (among other things) a process for determining whether certain radioactive waste streams are "waste incidental to reprocessing" that are not considered "high-level waste." The Natural Resources Defense Council, Inc. and the Snake River Alliance (collectively, NRDC) filed a petition for review in this court to set aside DOE Order 435.1. NRDC contends that the evaluation method adopted in the Order, Manual and Guide redefines "high-level radioactive waste" as low-level or transuranic waste, contrary to the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. S 10101(12),¹ and allows DOE, rather than the Environmental Protection Agency (EPA) and the Nuclear Regulatory Commission (NRC), to determine whether to leave this reprocessing waste in nuclear waste storage tanks at DOE's Hanford Reservation, Savannah River, and Idaho National Engineering Laboratory sites.²

As NRDC invokes our original jurisdiction pursuant to NWPA, 42 U.S.C. S 10139(a), we must first decide whether this is an agency decision over which S 10139(a) confers original and exclusive jurisdiction in the courts of appeals. NWPA's judicial review provisions are not a model of clarity. However, we conclude that this court lacks subject matter jurisdiction because DOE Order 435.1 pertains to management of radioactive waste at federal defense facilities and is not a decision "under" NWPA. Accordingly, we shall transfer this petition to the district court for the District of Idaho.

I

NRDC submits that review of DOE Order 435.1 falls within S 10139(a)(1)(A). Section 10139(a) is NWPA's provision for judicial review, and subsection (1)(A) states:

. . . the United States courts of appeals shall have original and exclusive jurisdiction over any civil action

(A) for review of any final decision or action of the Secretary, the President, or the Commission under this part; . . .

"This part" -Part A of Subchapter I -of NWPA is entitled "Repositories for Disposal of High-Level Radioactive Waste and Spent Nuclear Fuel." Subchapter I is captioned "Disposal and Storage of High-Level Radioactive Waste, Spent Nuclear Fuel and Low-Level Radioactive Waste." Part A establishes procedures for disposal of high-level radioactive waste and spent nuclear fuel in repositories, now sited solely at Yucca Mountain, Nevada. See Nevada v. Department Of Energy, 133 F.3d 1201, 1203 (9th Cir. 1998). The purposes of "this part" are to establish a schedule for siting, constructing and operating repositories; to establish the federal responsibility for disposal of civilian waste and spent fuel; to define the relationship between the federal government and state governments with respect to disposal of such waste and spent fuel; and to establish a Nuclear Waste Fund, composed of payments made by generators and owners of such waste. 42 U.S.C. S 10131(b). Hanford, Savannah and the Idaho National Engineering Laboratory are federal facilities where high-level waste is generated and stored; they pre-date NWPA, and are not repositories. For these reasons, DOE maintains that NWPA does not govern its waste management decisions at these installations thus, DOE Order 431.5 is not a decision under NWPA that is subject to judicial review within this court's original jurisdiction.

"In the NWPA, Congress created a comprehensive scheme for the interim storage and permanent disposal of high-level radioactive waste generated by civilian nuclear power plants." Indiana Michigan Power Co. v. Department of Energy, 88 F.3d 1272, 1273 (D.C. Cir. 1996). Section 10107(a) provides that NWPA does not apply to any atomic energy defense activity or facility.³ NRDC acknowledges that NWPA does not require defense high-level waste to be disposed in a repository, but points out that it does require the President to evaluate potential methods for disposing of such waste. 42 U.S.C. S 10107(b)(1). Because the President determined on April 30, 1985, that a separate facility was not necessary for defense high-level waste, NRDC notes that DOE only has authority for disposal of defense high-level wastes at Yucca Mountain.⁴

While this may be true, DOE Order 435.1 addresses management of wastes at DOE facilities. The authority to do so comes from the Atomic Energy Act (AEA), 42 U.S.C. S 2151 et seq.; the Energy Reorganization Act (ERA), Pub. L. No. 98-438, 88 Stat. 1233, codified at 42 U.S.C. S 5801 et seq.; and the Department of Energy Organization Act (DEO),Pub. L. No. 95-91, 91 Stat. 565, codified at 42 U.S.C. S 7101 et seq.

The AEA, enacted in 1954, established a comprehensive regulatory scheme for military and domestic nuclear energy. It authorized the Atomic Energy Commission (AEC) -now DOE and NRC -to establish instructions by rule, regulation, or order, governing possession and use of nuclear material⁵ and the operation of facilities used in conducting its activities.⁶ When the AEC was abolished in 1974, its functions were transferred to the Energy Research and Development Agency (ERDA), DOE's predecessor agency, and to the NRC. See Energy Reorganization Act of 1974 (ERA), Pub. L. No. 93438 SS 104, 201, 88 Stat. 1233, 1237-38, 1242-44, codified at 42 U.S.C. S 5814. Under the ERA, NRC was given commercial licensing and related regulatory functions; the ERDA took over the rest of AEC's functions, except that the NRC must license ERDA facilities that are authorized for "subsequent long-term storage of high-level radioactive waste generated by the Administration." 42 U.S.C. S 5842. As the Senate Committee explained, "[i]t is not the intent of the committee to require licensing of such storage facilities which are already in existence . . ." S.Rep.No. 93-980, 93d Cong., 2d sess., reprinted in 1974 U.S.C.C.A.N 5520-21; see also Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 606 F.2d 1261, 1267 (D.C. Cir. 1979). In 1977, Congress abolished ERDA and transferred its functions to DOE. See DEO, S 301(a), Pub. L. No. 95-91, 91 Stat. 565, 577-78 (1977), codified at 42 U.S.C. S 7151(a). This left control over existing government facilities and defense nuclear waste in DOE. See 42 U.S.C. S 7133(a)(8)(A), (B), (C), and (E).⁷

DOE Order 435.1 was promulgated in accordance with the AEA to replace a previous DOE Order on Radioactive Waste Management, DOE O 5820.2A, and applies to the management of all high-level waste, transuranic waste, and low-level waste for which DOE is responsible. It is not a decision about the siting of a repository, establishing federal responsibility for disposal of civilian radioactive waste, defining the relationship between the federal government and state governments with respect to disposal of such waste and spent fuel, or establishing a Nuclear Waste Fund under Part A of Subchapter I of NWPA. See 42 U.S.C. S 10131(b). Nor is DOE Order 435.1 a decision under any other Part of Subchapter I, or of any other Subchapter of NWPA.⁸ Therefore, this action does not seek review of any decision that is directly "under this part."⁹

NRDC does not argue otherwise; rather, it posits that the Manual and Guide accompanying DOE Order 435.1 state that all high-level waste must be disposed pursuant to the NWPA. The Manual provides that "[d]isposal of high-level wastemust be in accordance with the provisions of the Atomic Energy Act of 1954, as amended, the Nuclear Waste Policy Act of 1982, as amended, or any other applicable statutes." DOE M 435.1-1 at II-12. The Guide observes that "[b]ackground and knowledge of both the Nuclear Waste Policy Act of 1982, as amended, definition and the Nuclear Regulatory Commission definition, at 10 CFR Part 60, is needed to ensure that waste that is to be managed as high-level waste has been properly characterized to be high-level waste." DOE G 435.1-1 at II-1. From these statements NRDC infers that the NWPA is necessarily implicated whenever high-level waste is disposed, and the AEA does not exclusively control DOE's disposal of defense high-level waste.

Whether or not this is so, it does not follow that DOE was making a decision "under [Part A]" of NWPA for purposes of this court's original jurisdiction over NRDC's action. NWPA -like any other authority -can be implicated by a decision that is not "under" it for purposes of subject matter jurisdiction.

NRDC also points to NWPA's overarching purpose of establishing federal policy for safely disposing of all highlevel wastes, 42 U.S.C. S 10131(a),¹⁰ and contends that NWPA should be broadly construed to enfold any kind of disposal of high-level waste. In its view, this would bring the order's incidental waste process under the jurisdiction of the Act because no matter what it is called, the waste continues to be "waste resulting from reprocessing" that must be disposed in accordance with NWPA. NRDC further suggests that reading the judicial review provision in NWPA to apply to the entire Act, as the court did in General Electric Uranium Management Corp. v. Department of Energy, 764 F.2d 896 (D.C. Cir. 1985), compels us to take jurisdiction of this case. We disagree.

General Electric...