Union of Concerned Scientists v. U.S. Nuclear Regulatory Com'n, 88-1561
| Decision Date | 25 July 1989 |
| Docket Number | No. 88-1561,88-1561 |
| Citation | 880 F.2d 552 |
| Parties | , 19 Envtl. L. Rep. 21,353 UNION OF CONCERNED SCIENTISTS, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Nuclear Utility Backfitting and Reform Group, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Diane Curran, with whom Andrea C. Ferster, Anne Spielberg, and Dean Tousley, Washington, D.C., were on the brief, for petitioner.
Steven F. Crockett, Attorney, U.S. Nuclear Regulatory Com'n, with whom Peter R. Steenland, Jr., Chief, Appellate Section, Jacques B. Gelin and Sarah P. Robinson, Attys., U.S. Dept. of Justice, Washington, D.C., and William C. Parler, Gen. Counsel, Rockville, Md., William H. Briggs, Jr., Sol., E. Leo Slaggie, Deputy Sol., and Rochelle M. Gunner, Atty., U.S. Nuclear Regulatory Com'n, Washington, D.C., were on the brief, for respondents.
Nicholas S. Reynolds, with whom Daniel F. Stenger and James W. Moeller, Washington, D.C., were on the brief, for intervenor. Barton Z. Cowan, Pittsburgh, Pa., and Robert W. Bishop, for amicus curiae Nuclear Management and Resources Council, Inc., were also on the brief for intervenor.
Before MIKVA, SILBERMAN, and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
The Union of Concerned Scientists ("UCS") petitions for review of the U.S. Nuclear Regulatory Commission's ("Commission") "backfit rule," 10 C.F.R. Sec. 50.109, 53 Fed.Reg. 20,603 (1988), revised in response to this court's remand in Union of Concerned Scientists v. Nuclear Regulatory Commission, 824 F.2d 108 (D.C.Cir.1987) ("UCS I ").
In UCS I, this court vacated the Commission's 1985 backfit rule on the ground that it permitted costs to be considered in the establishment of the "adequate-protection" standard, in violation of section 182(a) of the Atomic Energy Act ("Act"), 42 U.S.C. Sec. 2232(a). On remand and after notice and comment, the Commission promulgated a revised rule that made explicit its policy that costs were not to be considered either when backfitting is necessary to ensure adequate protection of public health and safety or when the Commission defines or redefines the adequate-protection standard. See 10 C.F.R. Sec. 50.109(a)(4).
We hold that the Commission's revised backfit rule survives petitioner's facial challenge. In doing so, we of course do not foreclose petitioner from future challenges to the Commission's application of the rule.
"Backfitting" refers to the imposition of new or modified safety requirements on nuclear power plants previously licensed for construction or operation. See UCS I, 824 F.2d at 109. In 1985, in response to mounting criticism of its then-existing backfit rule, the Commission modified its standard for determining when a backfit would be required, adding a cost-benefit test to the then-existing requirement that the backfit substantially increase protection to health and safety. See 10 C.F.R. Sec. 50.109(a)(3) (1986); UCS I, 824 F.2d at 110-12. The 1985 rule included three exceptions to the cost-benefit requirement where the backfit was necessary either to bring a facility into compliance with rules or licenses or to ensure adequate protection of public health and safety. See 10 C.F.R. Sec. 50.109(a)(4)(i), (ii), (ii) n. 3 (1986).
UCS petitioned for review of the 1985 rule, and in UCS I this court held that "the Act precludes the NRC from taking costs into account in establishing or enforcing the level of adequate protection, but allows the NRC to consider costs in devising or administering requirements that offer protection beyond that level." UCS I, 824 F.2d at 114. We accordingly rejected UCS's contention that the Act forbids the Commission from ever considering economic costs in the backfitting process. Id. at 109; see also id. at 121 (Williams, J., concurring).
We nevertheless vacated the 1985 rule in its entirety, even though we found that "[w]e conceivably could read the terms of this rule to comply with the statutory scheme," 824 F.2d at 119, because the Commission, in its Statement of Considerations accompanying the rule, "allow[ed] the consideration of costs in the establishment of the adequate-protection standard[,] * * * [a] consideration * * * forbidden by the statute." Id. We also vacated a chapter of the Commission's Staff manual ("Chapter 0514" or "chapter"), which was challenged by UCS and which contained internal agency procedures for implementing the rule, because the chapter was "inextricably intertwined" with the provisions of the final rule. Id. at 120.
On June 6, 1988, after notice and comment, the Commission issued a revised rule in response to this court's remand in UCS I. The 1988 rule expressly stated the Commission's policy that "[i]n defining, redefining, or enforcing [the Act's] statutory standard of adequate protection, the Commission will not consider economic costs." 53 Fed.Reg. 20,604 (1988). In addition, the Commission reasserted its authority to "impose additional safety requirements not needed for adequate protection and to consider economic costs in doing so." Id.
The structure of the 1988 rule is substantially the same as that of the 1985 rule. The heart of the 1988 rule is paragraph (a)(3), which imposes a cost-benefit test for backfits generally:
Except as provided in paragraph (a)(4) of this section, the Commission shall require the backfitting of a facility only when it determines, based on the analysis described in paragraph (c) of this section, that there is a substantial increase in the overall protection of the public health and safety or the common defense and security to be derived from the backfit and that the direct and indirect costs of implementation for that facility are justified in view of the increased protection.
10 C.F.R. Sec. 50.109(a)(3) (emphasis added).
As with the 1985 rule, the 1988 rule contains three exceptions to the use of the cost-benefit test of paragraph (a)(3). The major difference between the two rules is that the revised rule makes clear that the cost-benefit test is not to be used to establish the level of protection defined as adequate. The first exception is where "a modification is necessary to bring a facility into compliance with a license or the rules or orders of the Commission * * *." Sec. 50.109(a)(4)(i). The second exception is where "regulatory action is necessary to ensure that the facility provides adequate protection to the health and safety of the public * * *." Sec. 50.109(a)(4)(ii). The third exception is where "regulatory action involves defining or redefining what level of protection to the public health or safety * * * should be regarded as adequate." Sec. 50.109(a)(4)(iii). For each of the three exceptions, the cost-benefit test of paragraph (a)(3) does not apply.
Another difference is that the 1988 rule explicitly states that "the Commission shall always require the backfitting of a facility if it determines that such regulatory action is necessary to ensure that the facility provides adequate protection to the health and safety of the public and is in accord with the common defense and security." Sec. 50.109(a)(5) (emphasis added).
Finally, the 1988 rule, like its 1985 predecessor, provides a nonexhaustive list of factors to consider when conducting a cost-benefit analysis under paragraph (a)(3), including the "[p]otential change in the risk to the public from the accidental off-site release of radioactive material," the "[i]nstallation and continuing costs associated with the backfit, including the cost of facility downtime or the cost of construction delay," "[t]he estimated resource burden on the NRC associated with the proposed backfit and the availability of such resources," and "any other information relevant and material to the proposed backfit." Sec. 50.109(c).
Petitioner mounts a facial challenge to the revised backfit rule and to the revised chapter of the Commission's manual that guides the Commission's technical staff in implementing the rule. Specifically, petitioner argues that (1) the revised backfit rule suffers from the same fatal flaws as the 1985 rule; (2) the cost-benefit analysis permitted by the revised rule has a "built-in bias" by allowing cost considerations to dominate; (3) the revised rule violates public participation rights; and (4) the Commission's method for performing cost-benefit analysis is arbitrary and capricious. We discuss each of these arguments in turn.
Petitioner's primary challenge to the Commission's revised backfit rule is that, notwithstanding the added provisions, the rule fails to constrain the Commission from injecting cost considerations in determining whether a backfit is necessary to provide adequate protection to the public. Petitioner urges that the revised rule, to pass muster under the Act and UCS I, must include a set of "objective criteria" to distinguish safety improvements that are necessary for adequate protection of the public (cost-independent standards) and those that go beyond adequate protection (cost-dependent standards).
As a threshold matter, the parties dispute the proper standard for reviewing the Commission's interpretation of the Act. We need not decide this question, however, because this case does not involve a question of statutory construction; any distinction would accordingly not make a difference in this case. This court in UCS I found that, regardless of the standard of review, the Act's meaning was clear. See 824 F.2d at 113-14. Because this court's UCS I interpretation of the Act now governs this case, the only question is whether the rule at issue violates that interpretation or is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. Sec. 706(2)(A).
On the merits of petitioner's facial challenge, we find the...
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Case summaries.
...73). (114) 824 F.2d 108 (D.C. Cir. 1987). (115) Id. at 114, 118. (116) Union of Concerned Scientists v. U.S. Nuclear Regulatory Comm'n, 880 F.2d 552, 558 (D.C. Cir. (117) See Riverkeeper, Inc. v. Collins, 359 F.3d 156, 170 (2d Cir. 2004) (Relying on "other governmental bodies to address a r......