Public Citizen v. Nuclear Regulatory Com'n, 89-1017

• Decision Date: 15 June 1990
• Docket Number: No. 89-1017,89-1017
• Citation: 901 F.2d 147
• Parties: , 58 USLW 2627, 22 Envtl. L. Rep. 21,224 PUBLIC CITIZEN, et al., Petitioners, v. NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, Nuclear Utility Management and Resources Council, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 147

901 F.2d 147

284 U.S.App.D.C. 41, 58 USLW 2627, 22

Envtl. L. Rep. 21,224

PUBLIC CITIZEN, et al., Petitioners, v. NUCLEAR REGULATORY COMMISSION and the United States of

America, Respondents,

Nuclear Utility Management and Resources Council, Intervenor.

No. 89-1017.

United States Court of Appeals, District of Columbia Circuit.

Argued March 1, 1990.

Decided April 17, 1990.

Rehearing En Banc Denied June 15, 1990.

Eric R. Glitzenstein, with whom Diane Curran, David C. Vladeck and Alan B. Morrison, Washington, D.C., were on the brief, for petitioners.

John F. Cordes, Jr., Atty., Nuclear Regulatory Com'n, with whom William C. Parler, Gen. Counsel, E. Leo Slaggie, Sp. Counsel, Nuclear Regulatory Com'n, Edward Shawaker and John Bryson, Attys., Dept. of Justice, were on the brief, for respondents.

William H. Briggs, Jr. and Karla D. Smith, Attys., Nuclear Regulatory Com'n, and David C. Shilton, Atty., Dept. of Justice, Washington, D.C., also entered appearances, for respondents.

John T. Boese, with whom Marcus A. Rowden, Washington, D.C., was on the brief, for intervenor.

Before WALD, Chief Judge, and MIKVA and EDWARDS, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

The question presented is whether the United States Nuclear Regulatory Commission must promulgate mandatory instructional requirements for the personnel training programs of civilian nuclear powerplant licensees, or whether the Commission may simply issue a "Policy Statement" that encourages, but does not compel, licensees to create training programs that meet criteria identified in the Policy Statement. We hold that Congress has ordered the Commission to prescribe criteria to which training programs must adhere. Accordingly, since the Commission has failed to do so, we remand the case for further proceedings.

I. BACKGROUND

In 1979, an accident at the Three Mile Island nuclear powerplant in Pennsylvania shocked the nation. A presidential commission subsequently announced that inadequate training of employees at nuclear powerplants contributed significantly to the risks posed by such plants. See Kemeny Commission, Report of the President's Commission on the Accident at Three Mile Island (1979). In 1983, Congress enacted Sec. 306 of the Nuclear Waste Policy Act of 1982 [sic], 42 U.S.C. Sec. 10226, which provides in relevant part,

The Nuclear Regulatory Commission is authorized and directed to promulgate regulations, or other appropriate Commission regulatory guidance, for the training and qualifications of civilian nuclear powerplant operators, supervisors, technicians, and other appropriate operating personnel. Such regulations or guidance shall establish ... instructional requirements for civilian nuclear powerplant licensee personnel training programs. Such regulations or other regulatory guidance shall be promulgated by the Commission within the 12-month period following January 7, 1983[.]

In 1985, the Nuclear Regulatory Commission ("NRC" or "Commission") purported to fulfill its responsibilities under Sec. 306 by promulgating the "Commission Policy Statement on Training and Qualification of Nuclear Power Plant Personnel," 50 Fed.Reg. 11,147 (1985) ("Policy Statement"). The Policy Statement noted that the industry's self-regulatory efforts had made progress in improving training programs. Accordingly, the Commission made a temporary decision not to engage in rulemaking, but to monitor the success of industry programs over a two-year period. Therefore, although the Policy Statement set forth five elements as being "essential to acceptable training programs," id. at 11,148, it did not mandatorily require that licensees' training programs satisfy these elements. Similarly, although the Policy Statement encouraged all licensees to have their training programs accredited by the Institute of Nuclear Power Operations, the industry's self-regulatory body, it did not actually make accreditation mandatory. The Commission stated that it would "evaluate the possible need for further NRC action based on the success of industry programs after a two-year period." Id. at 11,147.

In 1986, petitioner Public Citizen petitioned the Commission to issue binding regulations regarding training. First, it asked the NRC for rulemaking with respect to training, claiming among other things that the Policy Statement was insufficient to satisfy the Commission's obligations under Sec. 306. While its petition before the Commission was pending, Public Citizen sought review in this court of the Commission's failure to issue regulations. While the lawsuit was pending, the Commission denied Public Citizen's rulemaking petition. 52 Fed.Reg. 3121 (1987). Public Citizen did not seek court review of that denial, perhaps because it already had a lawsuit pending concerning the Commission's actions. This court, however, dismissed the pending action as having been filed too late to challenge the Commission's 1985 Policy Statement and too early to be a petition for review of the denial of Public Citizen's 1986 petition for rulemaking. Public Citizen v. NRC, 845 F.2d 1105 (D.C.Cir.1988). Public Citizen's efforts in 1986 thus came to naught.

Then, in 1988, the Commission revisited the training issue. As promised, it reviewed the industry's efforts to satisfy the training goals outlined in the Policy Statement, and concluded that they were working. Accordingly, the Commission decided once again to refrain from making rules regarding training, and instead republished the Policy Statement with some minor amendments. 53 Fed.Reg. 46,603 (1988). From this action, the petitioners (collectively referred to as "Public Citizen") petitioned for review.

II. TIMELINESS

Before we reach the merits of Public Citizen's challenge, we must decide whether it is timely. Public Citizen's petition can be viewed as arising under either the review provisions of the Hobbs Act or those of the Nuclear Waste Policy Act, which set deadlines of 60 and 180 days, respectively, for review of NRC action. See 28 U.S.C. Secs. 2342(4), 2344; 42 U.S.C. Sec. 10139(c). Public Citizen filed its petition for review within 60 days of publication of the revised Policy Statement in 1988, but the NRC and the intervenors claim that it is untimely as not filed within 60 or 180 days of the NRC's promulgation of the original Policy Statement in 1985. They do not accept Public Citizen's contention that the NRC first issued a temporary Policy Statement in 1985, and then in 1988 reconsidered the entire training issue and decided to make its interim policy permanent. Rather, NRC and intervenors claim that the Commission made its final and permanent decision in 1985 not to issue mandatory regulations, and, in 1988, made only minor amendments to that basic policy. The Commission's 1988 actions, they argue, did not render the earlier decision not to issue mandatory regulations subject to new court challenge. According to the NRC and the intervenors, Public Citizen can now challenge only the noncontroversial 1988 amendments.

In several recent cases, this court has wrestled with the problem of whether an agency's restatement of an existing rule or policy in a rulemaking format makes the rule or policy challengeable anew, even where otherwise barred by a statutory time limit. The court has held that where an agency's actions show that it has not merely republished an existing rule in order to propose minor changes to it, but has reconsidered the rule and decided to keep it in effect, challenges to the rule are in order. "[T]he general principle [is] that if the agency has opened the issue up anew, even though not explicitly, its renewed adherence is substantively reviewable." Association of American Railroads v. ICC, 846 F.2d 1465, 1473 (D.C.Cir.1988). We have, for instance, inferred that an agency has reopened a previously decided issue in a case where the agency (1) proposed to make some change in its rules or policies, (2) called for comments only on new or changed provisions, but at the same time (3) explained the unchanged, republished portions, and (4) responded to at least one comment aimed at the previously decided issue. State of Ohio v. U.S. E.P.A., 838 F.2d 1325, 1328 (D.C.Cir.1988). The language of State of Ohio appeared to suggest that the time period for review would start afresh in any case meeting the four factors just stated (and, a fortiori, in a case meeting factors 1, 3, and 4, and in which the agency called for comments on the whole rule, including unchanged portions). Nonetheless, more recently American Iron & Steel Institute v. U.S. E.P.A., 886 F.2d 390 (D.C.Cir.1989), placed some limits on that general principle. The court there said that "[t]he 'reopening' rule of Ohio v. EPA is not a license for bootstrap procedures by which petitioners can comment on matters other than those actually at issue, goad an agency into a reply, and then sue on the grounds that the agency has re-opened the issue." 886 F.2d at 398.

It appears, therefore, that the crucial question at this juncture is whether an agency has in fact reopened an issue, explicitly or implicitly; the four factors mentioned in State of Ohio are indeed relevant evidence of reopening, but the court cannot stop there. It must look to the entire context of the rulemaking including all relevant proposals and reactions of the agency to determine whether an issue was in fact reopened. If in proposing a rule the agency uses language that can reasonably be read as an invitation to comment on portions the agency does not explicitly propose to change, or if in responding to comments the agency uses language that shows that it did in fact reconsider an issue, a renewed challenge to the underlying rule or policy will be allowed. Compare 886 F.2d at 398 (agency did not make sustained attempt to explain old rule and responded to comments by at most briefly reiterating its prior reasoning; issue not reopened) with Association of...