Nuclear Information and Resource Service v. U.S. Nuclear Regulatory Com'n, No. 89-1381

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before WALD, Chief Judge, SENTELLE and THOMAS; WALD
• Citation: 918 F.2d 189
• Docket Number: No. 89-1381
• Decision Date: 02 November 1990
• Parties: , 59 USLW 2337, 118 P.U.R.4th 286, 21 Envtl. L. Rep. 20,153 NUCLEAR INFORMATION AND RESOURCE SERVICE, et al., Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Nuclear Management and Resources Council, Inc., Intervenor.

Page 189

918 F.2d 189 286 U.S.App.D.C. 384, 59 USLW 2337,
118 P.U.R.4th 286,
21 Envtl. L. Rep. 20,153 NUCLEAR INFORMATION AND RESOURCE SERVICE, et al., Petitioners,
v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and United
States of America, Respondents,
Nuclear Management and Resources Council, Inc., Intervenor. No. 89-1381. United States Court of Appeals,
District of Columbia Circuit. Argued Sept. 26, 1990.
Decided Nov. 2, 1990.

Eric R. Glitzenstein, with whom Dean R. Tousley was on the brief, for petitioners. William B. Schultz, Alan B. Morrison, Diane Curran and James M. Shannon also entered appearances for petitioners.

Steven F. Crockett, Atty., U.S. Nuclear Regulatory Com'n, with whom William C. Parler, Gen. Counsel, John F. Cordes, Jr., Sol., Martin G. Malsch, Deputy Gen. Counsel, and E. Leo Slaggie, Deputy Sol., U.S. Nuclear Regulatory Com'n, Anne S. Almy, Asst. Chief, Appellate Section, Environmental and Natural Resources Div., and Ellen J. Durkee, Atty., U.S. Dept. of Justice, were on the brief, for respondents. John A. Bryson, Atty., U.S. Dept. of Justice, also entered an appearance for respondents.

Barton Z. Cowan, with whom Joseph M. Ramirez, Robert W. Bishop, Marcus A. Rowden and P. David Richardson were on the brief, for intervenor.

Dorothy Thompson was on the brief for amicus curiae urging that the new rule be overturned. Robert Guild also entered an appearance for amicus curiae.

Before WALD, Chief Judge, SENTELLE and THOMAS, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

Petitioners seek review of regulations promulgated by the Nuclear Regulatory Commission that substantially revise the licensing procedures for nuclear power plants. In part, the regulations shorten and streamline the licensing process by "frontloading" the required hearings, that is, by increasing the number of issues decided earlier in the process. Petitioners challenge these regulations as contrary to the Commission's authority under Secs. 185 and 189(a) of the Atomic Energy Act.

We find that the plain language of Sec. 185 requires the Commission to make a post-construction, pre-operation finding that a nuclear plant will operate in conformity with the Act and that the plain language of Sec. 189(a) requires the Commission to provide an opportunity for a hearing to consider significant new information that comes to light after initial licensing and that implicates the Commission's finding obligations under Sec. 185. Accordingly, we find that two subsections of the regulations are inconsistent with the statute. We thus vacate 10 C.F.R. Sec. 52.103(b) and 10 C.F.R. Sec. 52.103(c); we uphold the remainder of the regulations against petitioners' various challenges.

I. BACKGROUND

Since the enactment of the Atomic Energy Act ("Act"), 42 U.S.C. Sec. 2011 et seq., the Nuclear Regulatory Commission ("NRC" or "Commission") has considered authorization of each aspect of each nuclear power plant separately, on a license-by-license basis. The result, in the words of the Office of Technology Assessment, is that

[e]ssentially every reactor ... has been custom-designed and custom-built. The fact that almost every reactor is 'one-of-a-kind' has led to excessive difficulty in verifying the safety of individual plants and identifying particular problems in transferring the safety lessons from one reactor to another.

Congress of the United States, Office of Technology Assessment, Nuclear Power Plant Standardization at 3 (1981) (quoted in Brief of Intervenor ("Int. Br.") at 5). In particular, the construction and licensing of nuclear power facilities has proceeded in a stepwise fashion. First, the Commission issues a construction permit; the Act mandates a public hearing before a construction permit can be issued. 42 U.S.C. Secs. 2235, 2239(a); 10 C.F.R. Sec. 2.104(b). That hearing would address, inter alia, "the proposed design of the facility," "[w]hether the applicant is technically [and]

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financially qualified," and whether "construction of the facility will be inimical to the ... health and safety of the public." 10 C.F.R. Sec. 2.104(b) (emphasis supplied); see also 10 C.F.R. Sec. 50.35. After construction and upon certain findings, the Commission would issue an operating license; a hearing on an operating license application would be held upon the request of an interested party. 42 U.S.C. Sec. 2239(a), 10 C.F.R. Sec. 2.104(c). At this hearing, the Commission would consider additional issues such as, whether "[c]onstruction of the facility has been ... completed in conformity with the [ ] permit," whether there "is a reasonable assurance [that the plant can be operated] without endangering the health and safety of the public, and ... in compliance with" the Act, and whether emergency plans are adequate. 10 C.F.R. Sec. 2.104(c); 10 C.F.R. Sec. 50.47; see also 10 C.F.R. Sec. 50.57. See also Oystershell Alliance v. NRC, 800 F.2d 1201, 1204 (D.C.Cir.1986); Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1438 (D.C.Cir.1984).

After numerous unsatisfactory attempts to secure passage of legislation reforming the nuclear power plant licensing process, ¹ the Commission promulgated, with the required notice and comment period, the regulations at issue in this review, 10 C.F.R. Secs. 52.1-.103. 54 Fed.Reg. 15,372 (1989). These regulations (collectively "Part 52") simplify the licensing process and reduce the uncertainties and delays in the current regime in three ways. Subpart A of the regulations provides for "early site permits" for nuclear power plants and allows persons to apply for and secure site permits before applying for a construction permit or "combined license." 10 C.F.R. Secs. 52.11-.39. Subpart B establishes procedures for plant design certification by rulemaking, thus facilitating the standardization of large portions of plant design. 10 C.F.R. Secs. 52.41-.63. Subpart C--the focus of this litigation--provides for "combined licenses." 10 C.F.R. Secs. 52.71-.103.

Under subpart C, the Commission after a public hearing may issue a combined license, or more precisely, a construction permit with a conditional operating license. 10 C.F.R. Sec. 52.97. Upon completion of construction, and upon a finding of conformity with the standards ("acceptance criteria") specified in the combined license, the Commission authorizes plant operation. 10 C.F.R. Sec. 52.103. After construction (and before authorization), an interested party may contest the authorization to operate the plant in two ways. First, the party may file a "good cause petition" which "shows ... that one or more of the acceptance criteria have not been met." 10 C.F.R. Sec. 52.103(b)(1)(i). If the Commission finds that "genuine issues of material fact are raised by the petition" and certain other conditions are met, ² then the Commission holds a hearing to resolve the issues. Second, the party may file a petition to modify the terms and conditions of the combined license under 10 C.F.R. Sec. 2.206. ³ The "Commission shall consider the petition and determine whether any immediate

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action is required," 10 C.F.R. Sec. 52.103(b)(2)(ii), but need not hold a hearing upon request.

Subpart C revises the existing licensing process in two significant ways. First, by combining a construction permit and an operating license, the Commission hears and decides more licensing issues earlier in the process. "[I]ssues which in the past have been considered in operating license hearings [are under Part 52] considered at the combined license stage"; subpart C thus "moves the bulk of the issues up front in the licensing process." 54 Fed.Reg. at 15,373-74. For example, the adequacy of emergency plans under 10 C.F.R. Sec. 50.47 and whether "the facility will be ... operated in conformity with the ... Act" would be considered at the combined-license stage. 10 C.F.R. Sec. 52.97 (emphasis supplied). Second, subpart C alters the post-construction hearing opportunity. The Commission is required to hold a hearing upon request only with regard to issues concerning the conformity of the plant with the acceptance criteria; other concerns are addressed through the 10 C.F.R. Sec. 2.206 petition process.

Petitioners, interested citizens' groups, challenged subpart C as a violation of the Atomic Energy Act.

II. THE NRC'S AUTHORITY TO STRUCTURE LICENSING PROCEDURES

Petitioners contend that Sec. 185 of the Atomic Energy Act bars the issuance of combined licenses and mandates the stepwise licensing procedures long employed by the Commission. We find the petitioners' reading of the Act overly formal and affirm that the Commission has substantial discretion to reform its licensing procedures. We begin our analysis by examining the Commission's statutory authority to structure those procedures.

In the Atomic Energy Act, Congress granted the Atomic Energy Commission (and its successor, the NRC ⁴ ) substantial latitude in the design of licensing procedures. See Union of Concerned Scientists, 735 F.2d at 1446 (the " 'Commission is entitled to great freedom in its efforts to structure its proceedings' " (quoting Bellotti v. NRC, 725 F.2d 1380, 1389 (D.C.Cir.1983) (Wright, J., dissenting)). Section 161(b) (42 U.S.C. Sec. 2201(b)), for example, authorizes the Commission to establish "such standards and instructions [as necessary] to govern the possession and use of special nuclear material" and Sec. 161(h) (42 U.S.C. Sec. 2201(h)) grants the NRC authority to "combine in a single license one or more [regulated] activities."

The petitioners claim that the plain language of Sec. 185 bars the issuance of combined licenses. That section provides, in relevant part, that

All applicants for licenses to construct ... facilities shall ... be initially granted a construction permit.... Upon completion of the construction ..., upon the filing of any additional information needed to bring the original application up to date, and upon finding that the...