Union of Concerned Scientists v. U.S. Nuclear Regulatory Com'n

• Decision Date: 30 November 1990
• Docket Number: No. 89-1617,89-1617
• Citation: 920 F.2d 50
• Parties: , 118 P.U.R.4th 512 UNION OF CONCERNED SCIENTISTS, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, Nuclear Management and Resources Council, Inc. and Edison Electric Institute, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 50

920 F.2d 50

287 U.S.App.D.C. 119, 118 P.U.R.4th 512

UNION OF CONCERNED SCIENTISTS, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents Nuclear Management and Resources Council, Inc. and Edison Electric Institute, Intervenors.

No. 89-1617.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 5, 1990.

Decided Nov. 30, 1990.

Diane Curran, with whom Dean R. Tousley, was on the brief, for petitioner.

Carole F. Kagan, Sr. Atty., Nuclear Regulatory Com'n, with whom William C. Parler, Gen. Counsel, John F. Cordes, Jr., Sol., and E. Leo Slaggie, Deputy Sol., Nuclear Regulatory Com'n, and Robert L. Klarquist, Atty., Dept. of Justice, were on the brief, for respondents.

Jay E. Silberg, with whom Thomas A. Baxter, Mindy A. Buren, Robert W. Bishop, and Peter B. Kelsey were on the brief, for intervenors Nuclear Management and Resources Council, Inc. and Edison Elec. Institute.

Before: SILBERMAN, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

The Union of Concerned Scientists (UCS) petitions for review of a Nuclear Regulatory Commission (NRC) rule heightening the specificity requirements for pleadings filed by parties seeking to intervene in licensing hearings, 54 Fed.Reg. 33,168 (Aug. 11, 1989). UCS contends that the rule on its face violates the Atomic Energy Act, 42 U.S.C. Sec. 2011 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4321 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. Sec. 551 et seq. We deny the petition.

I.

An understanding of UCS' objection to the NRC rule requires a brief summary of the NRC licensing process. Utilities seeking to construct or operate a nuclear power plant must file a license application and detailed health, safety, and environmental submissions with the NRC. 10 C.F.R. Sec. 50.34 (1990). The NRC Staff then studies the applicant's submissions and compiles a Safety Evaluation Report (SER) and the environmental documents required by NEPA. Interested parties may request or move to intervene in a hearing within 30 days of the filing of the application. 10 C.F.R. Sec. 2.714(a) (1990); Sec. 2.102(d)(3) (1990). Shortly after making such a request or motion, and well before the NRC Staff completes the SER or NEPA documents and releases them publicly, a party must file a pleading listing its "contentions," that is, what it seeks to litigate in the hearing. 10 C.F.R. Sec. 2.714(b) (1990).

Any party that timely files at least one admissible contention may participate in the hearing. Previously, prospective intervenors had only to set forth the bases for contentions with "reasonable specificity." 10 C.F.R. Sec. 2.714(b) (1989) J.A. 45. The new rule perceptibly heightens this pleading standard. It requires that contentions consist of "a specific statement of the issue of law or fact to be raised or controverted," that they detail the alleged facts or opinion on which the prospective intervenor will rely, and that they "show that a genuine dispute exists with the applicant on a material issue of law or fact." 10 C.F.R. Sec. 2.714(b)(2). As the NRC recognized that this showing would have to be made before the NEPA reports are released, the rule further provides that with respect to environmental issues "the petitioner shall file contentions based upon the applicant's environmental report [and] ... can amend those contentions or file new contentions if there are data or conclusions in the ... [NEPA reports] that differ significantly from the data or conclusions in the applicant's document." 10 C.F.R. Sec. 2.714(b)(2)(iii). Intervenors who had raised issues in a timely fashion and who had been admitted to the hearing thus may incorporate as of right new evidence raised in the SER and the NEPA reports bearing on those issues.

In promulgating the new rule, the NRC also made clear that it had not changed its 17 year-old rule with respect to late-filed contentions. See 54 Fed.Reg. 33,172 (Aug. 11, 1989). Under that prior rule, parties advancing untimely contentions are not automatically granted access to the hearing even if their contentions otherwise pass muster under the NRC admissibility criteria; instead, they are admitted on the basis of a discretionary, five-factor balancing test. 10 C.F.R. Sec. 2.714(a). ¹ This test applies fully even in cases where contentions are filed late only because the information on which they are based was not available until after the filing deadline; the NRC has ruled that while the first factor--good cause for filing late--is by definition met in such circumstances, the other four factors, if implicated, permit the denial of intervention in a given case. See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2) CLI-83-19, 17 NRC 1041, 1045-50 (1983) ("Catawba ").

II.

The sole question presented by UCS' petition for review is whether the new contentions rule is on its face "not in accordance with law," 5 U.S.C. Sec. 706(b). UCS does not, however, contend that the heightened pleading requirement, standing alone, would be illegal. Its position is rather that the new rule's operation in conjunction with the longstanding late-filing rule denies it the ability fully to litigate challenges to licenses, and that the combination of the rules therefore facially violates the Atomic Energy Act, the APA, and NEPA. It argues that the NRC may not apply the final four factors of the late-filing balancing test whenever there is good cause for the late filing due to the unavailability of information, but must instead admit as of right contentions filed late for this reason.

The NRC claims that this argument is actually an out of time challenge to the late-filing rule and the interpretation of it in Catawba and that we accordingly lack jurisdiction to hear UCS' petition. To be sure, the preponderance of UCS' brief is devoted to criticism of the late-filing rule. UCS, however, also argues that even if the late-filing rule itself is consistent with Section 189(a), the heightened specificity requirements of the new rule push the NRC over the statutory edge by foreclosing a previously available circumvention of the late-filing rule. Under the old, more lenient, pleading standard, parties could file timely contentions incorporating evidence and issues frequently appearing in SERs and NEPA documents but not disclosed in the license application; many of these "anticipatory" contentions, as the NRC concedes (NRC Br. at 27-28), would be eliminated by the new rule's specificity requirements. We consequently have jurisdiction to entertain UCS' claims and so we turn to the merits. ²

In order to prevail on its claim that the NRC is bound to conduct its proceedings in the particular manner it advocates, UCS must point to a statute specifically mandating that procedure, for "absent constitutional constraints or extremely compelling circumstances" courts are never free to impose on the NRC (or any other agency) a procedural requirement not provided for by Congress. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 543, 98 S.Ct. 1197, 1211, 55 L.Ed.2d 460 (1978). UCS focuses on Section 189(a) of the Atomic Energy Act, which provides that "[i]n any proceeding under this chapter, for the granting, suspending, revoking, or amending of any 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. Sec. 2239(a).

The only term in this section that UCS implicitly seeks to interpret is the word "hearing." As the Act itself nowhere describes the content of a hearing or prescribes the manner in which this "hearing" is to be run, UCS' challenge to the NRC's procedural rules faces a steep uphill climb. ³ We are, of course, obliged to defer to the operating procedures employed by an agency when the governing statute requires only that a "hearing" be held. See, e.g., American Trucking Ass'ns v. United States, 627 F.2d 1313, 1319 n. 20, 1321 (D.C.Cir.1980) (noting that such "operating procedures" fall "uniquely within the expertise of the agency"); see also Richardson v. Wright, 405 U.S. 208, 209, 92 S.Ct. 788, 789, 31 L.Ed.2d 151 (1972); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143-44, 60 S.Ct. 437, 441-42, 84 L.Ed. 656 (1940); see generally Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). And we have in addition long noted the increased deference due NRC procedural rules because of the "unique degree 'to which broad responsibility is reposed in the [Commission], free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives.' " BPI v. Atomic Energy Comm'n, 502 F.2d 424, 428 n. 3 (D.C.Cir.1974) (quoting Siegel v. Atomic Energy Comm'n, 400 F.2d 778, 783 (D.C.Cir.1968)); see also Cities of Statesville v. Atomic Energy Comm'n, 441 F.2d 962, 977 (D.C.Cir.1969) (en banc) (quotation omitted) (the NRC "should be accorded broad discretion in establishing and applying rules for ... public participation").

UCS nonetheless argues that the operation of the NRC procedural rules denies it a hearing within the "plain meaning" of Section 189(a). It claims that the NRC may not exclude a late-filed contention raising "information" first brought to light by the staff documents on grounds (contained in its five-factor balancing test) that the late-filing party's interest will be protected by other means, that the party's participation is not necessary to develop a sound record, that the party's interest is represented by other parties to the hearing, or that the party's participation will delay the proceeding. This argument is based on the following syllogism: (1) under Section 189(a), any party has a right to a hearing...