Public Citizen, Inc. v. U.S. Nuclear Regulatory Com'n

• Decision Date: 02 August 1991
• Docket Number: No. 90-1432,90-1432
• Parties: , 291 U.S.App.D.C. 248 PUBLIC CITIZEN, INC., et al., Petitioners, v. U.S. NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, City of Tucson, Arizona, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 679

940 F.2d 679

34 ERC 1224, 291 U.S.App.D.C. 248

PUBLIC CITIZEN, INC., et al., Petitioners, v. U.S. NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents City of Tucson, Arizona, Intervenor.

No. 90-1432.

United States Court of Appeals District of Columbia Circuit.

Argued April 22, 1991.

Decided Aug. 2, 1991.

Petition for Review of an Order of the Nuclear Regulatory Commission.

Patti A. Goldman, with whom Alan B. Morrison, Timothy J. Harrison and Dan W. Reicher, were on the joint brief, for petitioners and intervenor, City of Tucson, Ariz.

Marjorie S. Nordlinger, Atty. Nuclear Regulatory Com'n, with whom William C. Parler, Gen. Counsel, John F. Cordes, Jr., Sol., E. Leo Slaggie, Sp. Counsel, Nuclear Regulatory Com'n, Richard B. Stewart, Asst. Atty. Gen., and Ellen J. Durkee, Atty. Dept. of Justice, were on the brief, Washington, D.C., for respondents. Martin W. Matzen, Atty. Dept. of Justice, also entered an appearance, Washington, D.C., for respondents.

Robert Abrams and E. Gail Suchman, for the State of N.Y., Theodora Berger, Los Angeles, Cal., Craig C. Thompson, Sacramento, Cal., and Susan L. Durbin, Los Angeles, Cal., for the State of Cal., Joseph Rubin, Hartford, Conn., for the State of Conn., Jon Glogau, Hollywood, Fla., for the State of Fla., and Gini Nelson, Santa Fe, N.M., for the State of N.M. were on the joint brief for amici curiae urging that this Court declare that the Policy Statement does not preempt state legislating materials and practices designated BRC by the federal government.

Before BUCKLEY, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

Last summer the Nuclear Regulatory Commission published a document it styled a "policy statement" endorsing regulatory exemptions for practices that expose the public to radiation in such minute amounts as to be "below regulatory concern". Below Regulatory Concern; Policy Statement, 55 Fed.Reg. 27,522 (1990) ("BRC Policy Statement"). The petitioners, a group of 29 citizen, consumer and environmental organizations as well as the State of Maine, claim that the BRC policy is in fact a substantive rule adopted in violation of the Administrative Procedure Act's notice and comment requirements. See 5 U.S.C. Sec. 553 (1988); compare id. Sec. 553(b)(A) (exemption for "general statements of policy"). Because the intended effect of the policy statement is not clear on its face, and the Commission has yet to employ it in a specific rulemaking or licensing proceeding, we find the challenge unripe.

I

Both Congress and the NRC have long recognized the need to exempt certain uses of radioactive materials from the Commission's pervasive licensing requirements. See, e.g., Atomic Energy Act, 42 U.S.C. Sec. 2111 (1988). Up to now the NRC's exemption decisions have proceeded piecemeal. See, e.g., 10 CFR Sec. 30.15(a) (1991) (exemptions through rulemakings); id. Sec. 30.11(a) (case-by-case exemption orders). Spurred by congressional interest in such exemptions, see, e.g., Low-Level Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C. Sec. 2021j (1988), as well as the development of BRC policies at other agencies and reports from the Commission staff that nuclear reactor operators were irradiating gemstones, such as topaz, for the consumer market, the NRC decided to develop a comprehensive policy that would "identify a level of radiation risk below which government regulation becomes unwarranted." Memorandum from Andrew L. Bates, Acting Secretary, NRC (Nov. 24, 1987), reprinted in Joint Appendix ("J.A.") at 97; see also 51 Fed.Reg. 43,367 (1986).

In December 1988 the Commission issued an advance notice of a proposed policy statement on exempting from regulation practices "whose health and safety impacts could be considered below regulatory concern." 53 Fed.Reg. 49,886, 49,886/3 (1988). After holding a public meeting, receiving extensive public comments, and participating in an international workshop on the subject, the Commission published a final policy statement on July 3, 1990. BRC Policy Statement, 55 Fed.Reg. at 27,522. The statement defines a region, based on individual and collective dose thresholds, where the Commission believes that regulation is no longer warranted. The statement envisions exemptions for practices that produce an average dose to individuals in the "critical group" ¹ of less than 10 millirem (mrem) per year and a collective dose of less than 1000 person-rem per year. ² Id. at 27,527. These numbers were based on the level of natural background radiation that members of the public routinely accept in daily life, as well as epidemiological evidence. Id. at 27,526-27. In a typical roundtrip coast-to-coast flight, for example, a passenger will receive a 5 mrem dose from natural background radiation. Id. at 27,527/1.

Besides setting out these numerical thresholds, the policy statement also indicates a shift in the Commission's attitude toward two other factors affecting exemption: requiring social justification and making any radiation exposure as low as is reasonably achievable. Id. at 27,526/1. Whereas formerly the Commission had considered whether a practice was justified in terms of "net societal benefits" (i.e., whether the opportunity costs of prohibition outweighed the benefits), see, e.g., 30 Fed.Reg. 3462 (1965) (earlier policy statement on uses of radioactive material in consumer products), the BRC policy statement said it would no longer do so. 55 Fed.Reg. at 27,526/1. And, although the Commission does not abandon its belief that the collective dose from all practices, including exempt practices, should be as low as is reasonably achievable, it concludes that its resources would not be wisely spent trying to hold exempt practices to that principle. Id. at 27,527/3; see also id. at 27,528/1-2.

The petitioners challenged the policy statement both on substantive grounds, arguing that it is contrary to statutory authority as well as arbitrary and capricious, and on procedural grounds, arguing that it was issued without proper notice and opportunity to comment and also that it should have been accompanied by an environmental impact statement. Through candid briefing, the parties have narrowed their dispute considerably. The Commission appears to admit that it did not comply fully with the APA's notice and comment requirements because it considers the BRC policy a "general statement of policy" exempted from those requirements. See Brief for Respondents at 26. The petitioners in turn agree that the court need not reach their substantive claims, for if the court decides that the Commission "has not yet finalized its decisions" the substantive claims will not be ripe, while if it decides otherwise petitioners will win on their procedural claim. Reply Brief at 3. Indeed, if the government's litigating position--that the BRC policy is not a substantive rule--estops the Commission from arguing in the future that the policy was adopted as a substantive rule, a point not altogether clear, see Clarke v. United States, 915 F.2d 699, 702 (D.C.Cir.1990) (en banc); Farmland Indus., Inc. v. Grain Bd. of Iraq, 904 F.2d 732, 739 (D.C.Cir.1990), then petitioners could not be injured by any want of notice and comment and their claim would be moot. We rest our decision, however, on the conclusion that the dispute is not ripe. ³

II

In determining whether an agency statement is a substantive rule, which requires notice and comment, or a policy statement, which does not, the ultimate issue is "the agency's intent to be bound". Vietnam Veterans v. Secretary of the Navy, 843 F.2d 528, 538 (D.C.Cir.1988). Substantive rules are ones treated as binding by the agency, while true policy statements are not. Id. at 536-38. Sometimes a simple reading of the document and study of its role in the regulatory scheme will yield the answer. See, e.g., NRDC v. EPA, 859 F.2d 156, 190-91 (D.C.Cir.1988); Telecommunications Research & Action Center v. FCC, 800 F.2d 1181, 1186 (D.C.Cir.1986); Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39 (D.C.Cir.1986); Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 40-45 (D.C.Cir.1974).

Here, however, the Commission's policy statement sends mixed messages. As the petitioners point out, the statement uses some unequivocal language. For example, the Commission states that the policy "establishes a baseline level of risk beyond which further government regulation to reduce risks is unwarranted." BRC Policy Statement, 55 Fed.Reg. at 27,526/2 (emphasis added); see also id. at 27,527/2 ("continued regulatory controls are unnecessary and unwarranted" below the individual dose thresholds set out in the policy statement). The policy statement also announces, in a break with prior NRC policy, that "the Commission will not consider whether a practice is justified in terms of net societal benefit." Id. at 27,526/1 (emphasis added). The policy statement further "concludes" that in the assessment of a practice's collective dose, it is appropriate to exclude from the calculation individual doses below 0.1 mrem per year. Id. at 27,528/1.

There are as many indications cutting the other way, however. The introduction of the policy statement contains this explanation: "In today's notice, the Commission establishes a policy to guide its decisions on which radioactive materials are 'below regulatory concern'.... This policy translates the Commission's judgement on acceptable risk into explicit and practical criteria on which to base decisions to exempt practices from the full scope of NRC's regulatory program." Id. at 27,523/1 (emphasis added). The policy statement makes it clear that the decisions have not yet been taken: "These decisions will be implemented by the Commission through rulemakings and licensing decisions based on careful and thorough analyses of the risks associated with specific practices to...