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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 16, 2004 Decided February 24, 2004
No. 03-1018
MARGENE BULLCREEK, ET AL.,
PETITIONERS
v.
NUCLEAR REGULATORY COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
PRIVATE FUEL STORAGE, L.L.C. AND
SKULL VALLEY BAND OF GOSHUTE INDIANS,
INTERVENORS
Consolidated with
No. 03-1022
On Petitions for Review of an Order of the
Nuclear Regulatory Commission
–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Thomas R. Lee argued the cause for petitioners. With him
on the briefs were Mark L. Shurtleff, Attorney General,
Attorney General’s Office of the State of Utah, Monte N.
Stewart, Special Assistant Attorney General, Denise Chancel-
lor and Connie Nakahara, Assistant Attorneys General, and
Paul C. EchoHawk.
Grace H. Kim, Attorney, U.S. Nuclear Regulatory Com-
mission, argued the cause for respondent U.S. Nuclear Regu-
latory Commission. With her on the brief were Karen D.
Cyr, General Counsel, John F. Cordes, Jr., Solicitor, and E.
Leo Slaggie, Deputy Solicitor.
Jay E. Silberg argued the cause for intervenors. With him
on the brief was Tim Vollmann.
Before: ROGERS and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The issue on appeal is whether
§ 10155(h) of the Nuclear Waste Policy Act of 1982, 42 U.S.C.
§§ 10101 et seq., repealed or superseded the authority of the
Nuclear Regulatory Commission (‘‘NRC’’) under the Atomic
Energy Act of 1954, 42 U.S.C. §§ 2011 et seq., to license the
storage of private spent nuclear fuel at privately owned away-
from-reactor storage facilities. The State of Utah and others
challenged the NRC’s jurisdiction to grant a private license to
develop and operate a private away-from-reactor storage
facility on the ground that § 10155(h) barred such facilities.
The NRC rejected Utah’s interpretation of § 10155(h) and
declined to institute a rulemaking to amend its regulations.
Utah and others seek review of the order denying the petition
to institute a rulemaking, contending that the NRC’s inter-
pretation is contrary to the plain language of § 10155(h) and
to the structure and legislative history of the Nuclear Waste
Policy Act. We hold that § 10155(h) does not repeal or
supersede the NRC’s authority under the Atomic Energy Act
to license private away-from-reactor storage facilities, and we
therefore deny the petitions for review.
3
I.
The Atomic Energy Act of 1954 (‘‘AEA’’), 42 U.S.C.
§§ 2011 et seq., authorized the NRC to regulate the posses-
sion, use, and transfer of the constituent materials of spent
nuclear fuel, including special nuclear material, source materi-
al, and byproduct material. See id. §§ 2073, 2092, 2093, 2111,
2201(b); see also 10 C.F.R. § 72.3 (2003). While the AEA
does not specifically refer to the storage or disposal of spent
nuclear fuel, it has long been recognized that the AEA
confers on the NRC authority to license and regulate the
storage and disposal of such fuel. See Pac. Gas & Elec. Co. v.
State Energy Res. Conservation & Dev. Comm’n, 461 U.S.
190, 207 (1983); Illinois v. Gen. Elec. Co., 683 F.2d 206, 214–
15 (7th Cir. 1982); Jersey Cent. Power & Light Co. v.
Township of Lacey, 772 F.2d 1103, 1112 (3rd Cir. 1985).
Pursuant to its AEA authority, the NRC promulgated regula-
tions in 1980 for licensing onsite and away-from-reactor spent
nuclear fuel storage facilities for private nuclear generators.
See 10 C.F.R. Part 72.
Two years later, Congress enacted the Nuclear Waste
Policy Act of 1982 (‘‘NWPA’’), 42 U.S.C. §§ 10101 et seq., in
response to ‘‘a national problem’’ created by the accumulation
of spent nuclear fuel from private nuclear generators, as well
as radioactive waste from reprocessing such fuel, activities
related to medical research, diagnosis, and treatment, and
other sources. Id. § 10131(a)(2). Finding inadequate the
federal efforts in the past 30 years to devise a permanent
solution, id. § 10131(a)(3), Congress established a schedule
for siting, construction, and operation of a permanent federal
repository (Subtitle A), id. §§ 10131–10145, and developed a
federally monitored retrievable storage program in the event
the permanent repository was unavailable by the specified
deadline (Subtitle C). Id. §§ 10161–10169. Finding further
that the generators and owners of high-level radioactive
waste and spent nuclear fuel have ‘‘the primary responsibility
to provide for, and TTT to pay the costs of, the interim storage
of such waste and spent fuel,’’ id. § 10131(a)(5); see also id.
§ 10151(a)(1), Congress, under Subtitle B, id. §§ 10151–
10157, limited the federal government’s obligation to assist
4
private nuclear generators with interim storage of spent
nuclear fuel. As a precondition of federal interim storage,
private generators were required to exhaust onsite options
for storage. Id. § 10155(b)(1); see also id. §§ 10151(a)(1),
10152. While the NRC was responsible for the licensing of
technology used at the reactor site, id. §§ 10153–10154, and
for developing the criteria for eligibility, id. § 10155(g); see
also id. § 10155(a)-(b), the Department of Energy (‘‘DOE’’)
was directed to provide, and authorized to enter into con-
tracts for, interim storage of not more than 1,900 metric tons
of capacity, but only until January 1, 1990. Id. §§ 10155(a)-
(b), 10156(a)(1). That said, Congress provided:
Notwithstanding any other provision of law, nothing in
this chapter [108, Nuclear Waste Policy,] shall be con-
strued to encourage, authorize, or require the private or
Federal use, purchase, lease, or other acquisition of any
storage facility located away from the site of any civilian
nuclear power reactor and not owned by the Federal
Government on January 7, 1983.
Id. § 10155(h).
The dispute over the effect of § 10155(h) on the NRC’s
authority under the AEA to license private away-from-reactor
storage facilities arises in connection with a lease. The Skull
Valley Band of Goshute Indians (‘‘Band’’) entered into a lease
with Private Fuel Storage, LLC (‘‘PFS’’) for the development
of a private away-from-reactor spent nuclear storage facility
on the Band’s reservation located 50 miles west of Salt Lake
City, Utah. Pursuant to NRC regulations, see 10 C.F.R.
§§ 72.1, 72.16–72.40, PFS filed a license application, and the
NRC’s Atomic Safety and Licensing Board (‘‘Board’’) initiated
an adjudicatory licensing proceeding. See In the Matter of
Private Fuel Storage, LLC, 47 NRC 142 (1998) (hereinafter
‘‘Licensing Proceeding’’). After permitting the State of Utah
and the Ohngo Gaudadeh Devia (‘‘OGD’’), an association
consisting primarily of members of the Band, to intervene, id.
at 169, the Board concluded that it lacked jurisdiction to
decide whether § 10155(h) excluded from the nuclear waste
management program the creation and use of private away-
5
from-reactor storage facilities because such argument consti-
tuted an attack on the NRC’s regulations. Id. at 183–84.
Proceeding to the NRC, Utah made two filings in 2002.
The first was a ‘‘Suggestion of Lack of Jurisdiction,’’ claiming
that the NRC lacked jurisdiction over PFS’s license applica-
tion. Utah argued that Congress had established in the
NWPA a ‘‘comprehensive national nuclear waste management
system for the storage of [spent nuclear fuel],’’ and
§ 10155(h) made clear that the storage of such fuel at private-
ly owned away-from-reactor facilities was prohibited. The
second filing was a ‘‘Petition to Institute Rulemaking and to
Stay Licensing Proceeding’’ to amend 10 C.F.R. Part 72 in
light of § 10155(h)’s repeal or supersession of the NRC’s
authority under the AEA to regulate private away-from-
reactor facilities, and to suspend the licensing proceedings
during the rulemaking. The OGD also submitted a brief to
the NRC adopting the arguments advanced by Utah’s peti-
tions.
The NRC declined to stay the licensing proceeding. See In
the Matter of Private Fuel Storage, LLC, 55 NRC 260, 261–62
(2002). The NRC also rejected Utah’s argument that it
lacked jurisdiction to issue PFS’s license, and denied Utah’s
request for rulemaking. See In the Matter of Private Fuel
Storage, LLC, 56 NRC 390 (2002) (hereinafter ‘‘Rulemaking
Order’’). The NRC interpreted § 10155(h) to have no effect
on its licensing authority under the AEA of private away-
from-reactor storage facilities. Id. at 396–401. Observing
that § 10155(h) contains no prohibitory language and ‘‘is
facially neutral on the question of the NRC’s general AEA
authority to license [private] away-from-reactor’’ facilities, id.
at 397, the NRC opined that Congress intended § 10155(h)
‘‘to recognize and distinguish, not abrogate, existing provi-
sions of law authorizing [away-from-reactor] spent fuel stor-
age.’’ Id. at 401. As each word has its own significance
when read in the context of the whole of Subtitle B, the NRC
concluded that Congress simply ‘‘limited the scope of
[§ 10155(h)] to those programs created under the NWPA
itself.’’ Id. at 397–98. By providing that the NWPA did not
‘‘authorize’’ the use of a private storage facility, Congress
6
limited DOE’s authority. Id. at 398. As DOE’s authority to
store spent nuclear fuel originated with the NWPA,
§ 10155(h) ensured that DOE would not take over a private
facility to fulfill DOE’s obligations under the NWPA. Id.
The NRC’s authority, on the other hand, to license private
generators to store spent nuclear fuel, originated with the
AEA, and hence the NWPA’s failure to ‘‘authorize’’ storage at
private facilities had no effect on this preexisting authority.
Id. The NRC pointed out that Congress did not need to
provide that the NWPA did not ‘‘encourage’’ or ‘‘require’’
DOE to use private facilities, but did need to use those terms
in describing the NWPA’s conditions on private generators’
use of federal interim storage. Id. Subtitle B included
several provisions that ‘‘encourage[d]’’ private generators to
expand onsite storage, see 42 U.S.C. §§ 10152–10154, and
through § 10155(h), the NRC reasoned, Congress made clear
that such provisions were not also encouraging the expansion
of private away-from-reactor storage. Id. Context and legis-
lative background further explained why Congress would
specify that the NWPA did not ‘‘require’’ private away-from-
reactor storage: such a requirement appeared early in the
legislative process and in prior bills. Id. at 398–99. By
contrast, the NRC noted, Utah’s interpretation of § 10155(h)
as repealing or superseding the NRC’s authority under the
AEA provided no role for ‘‘encourage’’ and ‘‘require’’ to play.
Id. at 397–98. The NRC thus concluded that neither the text
of § 10155(h) nor the NWPA’s structure or legislative history
indicated that Congress intended to repeal or supersede the
NRC’s authority under the AEA to license and regulate
private away-from-reactor spent fuel storage facilities. Id. at
396–411.
II.
Utah, the OGD, and nine individual Goshute members
petition for review of the NRC’s Rulemaking Order, renew-
ing the arguments before the NRC in challenging the NRC’s
interpretation of § 10155(h). The petitioners read § 10155(h)
to prohibit the creation or use of private away-from-reactor
storage facilities, and thus to repeal or supersede prior
7
statutory authority authorizing private away-from-reactor
storage facilities for spent nuclear fuel. Contending that the
plain text, structure, and legislative history of the NWPA
support their interpretation of § 10155(h), the petitioners
seek to have the court direct the NRC to amend its 10 C.F.R.
Part 72 regulations. We address two threshold issues on
standing and our standard of review in Part II, and then turn
to the merits in Part III.
A.
The NRC and the intervenors, PFS and the Band, chal-
lenge the standing of certain petitioners under the Hobbs
Act, 28 U.S.C. § 2344. The Hobbs Act requires that a party
participate in the underlying agency proceeding and meet the
requirements of constitutional and prudential standing. See
Reyblatt v. NRC, 105 F.3d 715, 720 (D.C. Cir. 1997); see also
S. Pac. Transp. Co. v. ICC, 69 F.3d 583, 587 (D.C. Cir. 1995).
It is undisputed that Utah has standing; it participated below
and the administrative record reflects that it met the require-
ments of constitutional and prudential standing, see Licensing
Proceeding, 47 NRC at 169. Cf. Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 102–04 (1998); City of Waukesha v.
EPA, 320 F.3d 228, 233–35 (D.C. Cir. 2003). Hence, inas-
much as the petitioners have filed a joint brief, cf. Ala. Power
Co. v. FCC, 311 F.3d 1357, 1364–65, 1366–67 (11th Cir. 2002),
the court need not decide whether the other petitioners have
standing to challenge the NRC’s Rulemaking Order. See
Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin.,
793 F.2d 1322, 1328–29 n.41 (D.C. Cir. 1986); see also Cheme-
huevi Tribe of Indians v. FRC, 489 F.2d 1207, 1212 n.12 (D.C.
Cir. 1973), vacated on other grounds, 420 U.S. 395 (1975).
B.
The court typically defers under Chevron U.S.A., Inc. v.
NRDC, 467 U.S. 837 (1984), to an agency’s interpretation of
its own jurisdiction under a statute that it implements. See
Okla. Natural Gas Co. v. FERC, 28 F.3d 1281, 1283–84 (D.C.
Cir. 1994). But such deference may be inappropriate where
8
more than one agency implements the same statute. See
Collins v. NTSB, 351 F.3d 1246, 1252–53 (D.C. Cir. 2003);
Rapaport v. Dep’t of Treasury, 59 F.3d 212, 216–17 (D.C. Cir.
1995). On occasion, the court has viewed the NWPA as the
type of statutory scheme where Chevron deference is due.
See Ind. Mich. Power Co. v. DOE, 88 F.3d 1272, 1274 (D.C.
Cir. 1996); Gen. Elec. Uranium Mgmt. Corp. v. DOE, 764
F.2d 896, 907 (D.C. Cir. 1985); see also Public Citizen v.
NRC, 901 F.2d 147, 153–54 (D.C. Cir. 1990). Both the NRC
and DOE, however, are responsible for implementing the
federal interim storage program under Subtitle B of the
NWPA. See 42 U.S.C. §§ 10151–10157; see also id. § 10101.
The question of whether Chevron deference applies to the
NRC’s interpretation of § 10155(h) is moot here because the
result is the same whether the court applies de novo review,
deference under Skidmore v. Swift & Co., 232 U.S. 134 (1944),
or Chevron deference, see Collins, 351 F.3d at 1254; Bd. of
Trade of City of Chicago v. SEC, 187 F.3d 713, 719 (7th Cir.
1999) (citing Dunn v. Commodity Futures Trading Comm’n,
519 U.S. 465, 479 n.14 (1997)); Rapaport, 59 F.3d at 220
(Rogers, J., concurring in part and concurring in the judg-
ment); the text of § 10155(h) as well as the statutory struc-
ture and legislative history of Subtitle B of the NWPA
support the NRC’s interpretation.
III.
Essentially, Utah’s interpretation of § 10155(h) hinges on
its view that this provision ‘‘expressly disavows’’ any intent to
encourage or authorize private away-from-reactor storage
facilities, Petitioners’ Br. at 13, and that in order to give
meaning to the ‘‘notwithstanding’’ clause it must be read as
eliminating prior authority to allow such storage. Utah also
looks to the NWPA’s structure, noting the protections includ-
ed for state and local governments where such federal stor-
age is permitted and contends that it would make no sense
for Congress to eliminate those protections when storage is
private rather than federal. Finally, Utah contends that its
interpretation is consistent with congressional concerns about
the location of private storage facilities and assurances that
9
§ 10155(h) was designed to eliminate any basis for those
concerns.
In addressing Utah’s challenge to the NRC’s interpretation
of § 10155(h), the court looks first to the language of the
statute. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438,
450 (2002); Toibb v. Radloff, 501 U.S. 157, 162 (1991). The
structure of the statute is also relevant in understanding
Congress’s intent. ‘‘[I]f the statutory language is unambigu-
ous and the statutory scheme is coherent and consistent,’’ the
court’s inquiry ceases. See Barnhart, 534 U.S. at 450 (quot-
ing Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997))
(internal quotation marks omitted). The legislative history
can assist the court in identifying legislative intent where the
statute is unclear, see Blum v. Stenson, 465 U.S. 886, 896
(1984), and, on rare occasions, it may suffice to overcome a
result of the plain language of the statute that is ‘‘demonstra-
bly at odds with the intentions of its drafters.’’ United States
v. Ron Pair Enterp., Inc., 489 U.S. 235, 242 (1989) (quoting
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982));
see also Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1088–89
(D.C. Cir. 1996).
The text of § 10155(h), read in light of Subtitle B of the
NWPA, demonstrates that Congress did not intend to repeal
or supersede the NRC’s authority under the AEA to license
and regulate private use of private away-from-reactor spent
fuel storage facilities. Section 10155(h) itself contains no
prohibitory language, and, as Utah conceded at oral argu-
ment, the NRC had authority under the AEA to regulate
private away-from-reactor storage facilities. In providing
that ‘‘nothing in this chapter shall be construed to TTT
authorize’’ private storage facilities, 42 U.S.C. §§ 10155(h)
(emphasis added), Congress limited the scope of the NWPA,
but left untouched prior and subsequent statutes that author-
ized such facilities. As the NRC rests its authority to
regulate and authorize private away-from-reactor facilities on
the AEA, a provision limiting the effects of ‘‘this chapter’’
could not undermine that authority, if at all, without some
fairly unusual accompanying language or context. Section
10155(h) makes no mention of either the AEA, although that
10
statute is mentioned elsewhere in the NWPA, see, e.g., 42
U.S.C. §§ 10153(a), (b)(3), 10155(a)(1)(A)(i), or the NRC’s
regulations at 10 C.F.R. Part 72, of which Congress was
aware. See S. Rep. No. 97–282, at 44 (1981); see also
Medtronic, Inc. v. Lohr, 518 U.S. 470, 491 (1996); Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 729 (1989). Given that
Congress was aware of the NRC’s regulations for licensing
private away-from-reactor storage facilities, the plain lan-
guage of § 10155(h) provides no support for Utah’s conclusion
that Congress ‘‘expressly disavow[ed]’’ use of private away-
from-reactor storage facilities or silently meant to repeal or
supersede the NRC’s authority under the AEA. See Morton
v. Mancari, 417 U.S. 535, 550–51 (1974). It is a ‘‘cardinal rule
[of statutory construction] that repeals by implication are not
favored.’’ Id. at 549 (internal quotation marks omitted).
This canon is no less applicable when the original grant of
authority is implicit rather than express.
To the extent that the words of § 10155(h) derive contextu-
al meaning, the statutory structure demonstrates that the
more reasonable reading of § 10155(h) is that it sets forth the
limits of the NWPA. As the NRC explained, when viewed in
light of the whole of Subtitle B, each word of § 10155(h) has
its own significance. See Rulemaking Order, 56 NRC at 397–
99. In not ‘‘authoriz[ing]’’ private storage facilities, Congress
intended to limit the scope of the NWPA. DOE’s authority
originated with the NWPA, and therefore, the NWPA’s fail-
ure to ‘‘authorize’’ storage at private facilities resulted in
restricting DOE’s powers to take over a private facility to
fulfill its NWPA obligations. The NRC’s authority, however,
originated with the AEA, and nothing in the text of
§ 10155(h) suggests that Congress intended to repeal this
authority. Although it may have been unnecessary for Con-
gress to add that the NWPA does not ‘‘encourage’’ or ‘‘re-
quire’’ DOE to use private facilities, it was necessary for
Congress to use such terms in describing the preconditions on
private generators for obtaining federal interim storage; pro-
visions in Subtitle B ‘‘encourage’’ private onsite storage, and
inclusion in § 10155(h)’s introductory clause of the phrase
‘‘[n]otwithstanding any other provision of law’’ eliminated
11
reliance on a prior draft of § 10155 that ‘‘require[d]’’ private
generators to exhaust private away-from-reactor options be-
fore requesting federal interim storage. Once each word of
§ 10155(h) is given a role in Subtitle B, it reasonably follows,
as the NRC pointed out, that § 10155(h) is ‘‘facially neutral:
neither prohibiting nor promoting the use of private [away-
from-reactor] storage facilities.’’ Id. at 407.
Contrary to Utah’s position, the NRC’s interpretation of
§ 10155(h) does, in fact, give full meaning to Congress’s use
of the word ‘‘authorize.’’ In light of the role of that word in
Subtitle B, there is no reason to conclude that Congress
intended in relatively obscure terms for the NWPA’s failure
to ‘‘authorize’’ such storage to repeal or supersede the NRC’s
preexisting authority under the AEA to license storage of
spent fuel at private away-from-reactor facilities. The NRC’s
interpretation also gives full meaning to the other words of
§ 10155(h) in light of Subtitle B. To the extent that Utah
maintains that the NRC’s interpretation creates a ‘‘big anom-
aly’’ between the NWPA’s system of allowing federal away-
from-reactor facilities that are capacity-limited and subject to
numerous restrictions and the AEA’s regulatory system of
permitting private away-from-reactor facilities of unlimited
size and without any of the restrictions imposed on federal
facilities, see Petitioners’ Br. at 31–36, Utah ignores that
private away-from-reactor storage was already regulated by
the NRC under the AEA prior to the NWPA. It was not an
anomaly for the NWPA to focus on regulating those ‘‘supple-
ments’’ that the NWPA itself added, namely federal storage
programs, and to leave the pre-existing regulatory scheme as
it found it. See 42 U.S.C. §§ 10131, 10151; S. Rep. No. 97–
282, at 1 (1981). In the absence of irreconcilability between
the AEA and the NWPA, there is no basis to conclude that in
enacting the NWPA Congress implicitly repealed or super-
seded the NRC’s authority. See Morton, 417 U.S. at 550–51
(1974); Whitman v. Am. Trucking Ass’n, Inc., 531 U.S. 457,
468 (2001).
The legislative history of the NWPA on which Utah relies
does not reflect, contrary to the text of § 10155(h), an ‘‘ex-
press[ ] disavow[al]’’ of the NRC’s authority under the AEA
12
to license private away-from-reactor storage facilities. The
congressional reports and debates referred to by the parties
indicate that § 10155(h) represented a compromise of three
contested issues: (1) the level of federal involvement in
interim storage; (2) federal use for interim storage of private
away-from-reactor storage facilities, of which there were
three; and (3) political and social limitations on private
generators to develop away-from-reactor solutions to spent
fuel storage problems. See S. Rep. No. 97–282 (1981); H.R.
Rep. No. 97–491, pt. 1 (1982); 128 Cong. Rec. 28,032 (1982);
see also 42 U.S.C. § 10131. Section 10155(h) thus ensured
that DOE would not take over private facilities to fulfill its
NWPA obligations, and clarified that private generators were
not obligated under the NWPA to exhaust all away-from-
reactor options prior to receiving federal assistance. Nothing
in those reports and debates suggests that Congress intended
to prohibit private use of private away-from-reactor facilities.
For these reasons we hold that the NRC’s interpretation is
more in conformance with the language of § 10155(h) viewed
in the context of Subtitle B than that offered by Utah.
Accordingly, we deny the petitions for review of the NRC’s
Rulemaking Order and the motion to dismiss as to certain
petitioners for lack of standing.