UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1562
CITIZENS AWARENESS NETWORK, INC.,
Petitioner,
v.
UNITED STATES NUCLEAR REGULATORY COMMISSION,
Respondent.
YANKEE ATOMIC ELECTRIC COMPANY,
Intervenor.
ON PETITION FOR REVIEW OF A DECISION OF THE
UNITED STATES NUCLEAR REGULATORY COMMISSION
Before
Torruella, Chief Judge,
Aldrich, Senior Circuit Judge,
and Cyr, Circuit Judge.
Jonathan M. Block, with whom Robert L. Quinn and Egan,
Flanagan and Cohen, P.C. were on brief for petitioner.
Charles E. Mullins, Senior Attorney, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, with whom Karen D.
Cyr, General Counsel, John F. Cordes, Jr., Solicitor, E. Leo
Slaggie, Deputy Solicitor, U.S. Nuclear Regulatory Commission,
Anne S. Almy, Assistant Chief, and William B. Lazarus, Attorney,
Appellate Section, Environment and Natural Resources Division,
U.S. Department of Justice, were on brief for respondent.
Thomas G. Dignan, Jr., with whom Ropes & Gray, was on brief
for intervenor.
July 20, 1995
TORRUELLA, Chief Judge. Citizens Awareness Network
TORRUELLA, Chief Judge
("CAN") petitions for review of a final order and opinion of the
United States Nuclear Regulatory Commission ("NRC" or "the
Commission") denying CAN's request for an adjudicatory hearing
regarding decommissioning activities taking place at the Yankee
Nuclear Power Station ("Yankee NPS"). CAN's petition for review
rests on three grounds. First, CAN contends that the
Commission's order violates CAN members' right to due process
under the Fifth Amendment and 189a of the Atomic Energy Act
("AEA"), 42 U.S.C. 2239 (1988). Second, CAN argues that the
NRC's action violates the National Environmental Policy Act,
("NEPA"), 42 U.S.C. 4321 et seq. (1988) by failing to conduct
an environmental analysis ("EA") or an environmental impact
statement ("EIS") prior to decommissioning. Finally, CAN argues
that the Commission's actions violate its own precedents and
regulations, in violation of the Administrative Procedure Act
("APA"), 5 U.S.C. 501 et seq. Although we reject CAN's Fifth
Amendment arguments, we grant CAN's petition for review on the
other grounds stated.
BACKGROUND
BACKGROUND
A. The Regulatory Framework
A. The Regulatory Framework
Operators of nuclear power plants must have a license
issued by the NRC. That license describes the facility and the
authorized activities that the operator may conduct. If the
operator, called the "licensee," wishes to modify the facility or
take actions not specifically authorized by the license, the
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licensee may seek an amendment to its license from the
Commission. See 42 U.S.C. 2131-2133, 2237 (1988).
Section 189a of the AEA provides that:
In any proceeding under this chapter, for
the granting, suspending, revoking, or
amending of any license or construction
permit, or application to transfer
control, and in any proceeding for the
issuance or modification of rules and
regulations dealing with the activities
of licensees, . . . 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. 2239(a)(1)(A). The Commission has issued regulations
specifically allowing a licensee to modify its facilities without
NRC supervision, unless the modification is inconsistent with the
license or involves an "unreviewed safety question." 10 C.F.R.
50.59(a)(1). If the proposed change is inconsistent with the
license, or does involve an unreviewed safety question (as that
term is defined in 10 C.F.R. 50.59(a)(2)(ii)), the licensee
must apply to the Commission for a license amendment, 10 C.F.R.
50.59(c), and only then are the statutory hearing rights of
189a triggered.
The procedures for decommissioning1 a nuclear power
plant are set forth principally in 10 C.F.R. 50.82, 50.75,
51.53, and 51.95 (1990). The formal process begins with the
1 "Decommissioning" means those activities necessary "to remove
[a facility] safely from service and reduce residual
radioactivity to a level that permits release of the property for
unrestricted use and termination of the license." 10 C.F.R.
50.2; 53 Fed. Reg. 24018, 24021 (June 27, 1988).
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filing of an application by the licensee, normally after the
plant has ceased permanent operations, for authority to surrender
its license and to decommission the facility. Five years before
the licensee expects to end plant operations, the licensee must
submit a preliminary decommissioning plan containing a cost
estimate for decommissioning and an assessment of the major
technical factors that could affect planning for decommissioning.
10 C.F.R. 50.75. Within two years after "permanent cessation
of operations" at the plant, but no later than one year prior to
expiration of its license, a licensee must submit to the
Commission an application for "authority to surrender a license
voluntarily and to decommission the facility," together with an
environmental report covering the proposed decommissioning
activities. 10 C.F.R. 50.82, 50.83. This application must be
accompanied by the licensee's proposed decommissioning plan,
which describes the decommissioning method chosen and the
activities involved, and sets forth a financial plan for assuring
the availability of adequate funds for the decommissioning costs.
10 C.F.R. 50.82(b). The Commission then reviews the
decommissioning plan, prepares either an environmental impact
statement ("EIS") or an environmental assessment ("EA") in
compliance with NEPA, and gives notice to interested parties. 10
C.F.R. 51.95. If the NRC finds the plan satisfactory (i.e., in
accordance with regulations and not inimical to the common
defense or the health and safety of the public), the Commission
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issues a decommissioning order approving the plan and authorizing
decommissioning. 10 C.F.R. 50.82(e).
The Commission has stated that its regulations allow a
licensee to conduct certain, limited decommissioning activities
prior to obtaining NRC approval:
[I]t should be noted that [10 C.F.R.]
50.59 permits a holder of an operating
license to carry out certain activities
without prior Commission approval unless
these activities involve a change in the
technical specifications or an unreviewed
safety question. However, when there is
a change in the technical specifications
or an unreviewed safety question, 50.59
requires the holder of an operating
license to submit an application for
amendment to the license pursuant to
50.90 . . . . [T]his rulemaking do[es]
not alter a licensee's capability to
conduct activities under 50.59.
Although the Commission must approve the
decommissioning alternative and major
structural changes to radioactive
components of the facility or other major
changes, the licensee may proceed with
some activities such as decontamination,
minor component disassembly, and shipment
and storage of spent fuel if these
activities are permitted by the operating
license and/or 50.59.
53 Fed. Reg. at 24025-24026 (emphasis added). The Commission
adhered to this position from the issuance of this statement in
1988 until 1993. See, e.g., Long Island Lighting Co., 33 N.R.C.
at 73 n.5 ("Major dismantling and other activities that
constitute decommissioning under the NRC's regulations must await
NRC approval of a decommissioning plan"); Sacramento Mun. Util.
Dist. (Rancho Seco Nuclear Generating Station), 35 N.R.C. 47, 62
n.7 (1992) (same).
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B. Factual Background
B. Factual Background
On February 27, 1992, licensee Yankee Atomic Electric
Company ("YAEC") announced its intention to cease operations
permanently at Yankee NPS, a nuclear power plant located near
Rowe, Massachusetts. One month later, YAEC applied for a license
amendment to limit its license to a POL, a possession-only
license, thus revoking YAEC's authority to operate the plant.
The NRC published a Notice of Proposed Action informing the
public of its opportunity to be heard on the license amendment
request, pursuant to 189a of the AEA. 57 Fed. Reg. 13126,
13140 (April 15, 1992). There were no hearing requests;
accordingly, the NRC issued the requested amendment to YAEC's
license on August 5, 1992. 57 Fed. Reg. 37558, 37579 (Aug. 19,
1992). In the cover letter accompanying YAEC's amended license,
the Commission reminded YAEC that "[t]he NRC must approve . . .
major structural changes to radioactive components of the
facility . . . ." See Issuance of Amendment No. to Facility
Operating License No. DPR-3 (N.R.C. Docket No. 50-029).
At a meeting between YAEC and NRC representatives on
October 27, 1992, YAEC proposed that the NRC grant permission for
YAEC to initiate an "early component removal project" (the
"CRP"), prior to submission and approval of its decommissioning
plan, and hence prior to conducting an environmental assessment
of decommissioning at the site. YAEC explained that it wished
expeditious commencement of this early CRP because of the
unexpected availability of space in the Barnwell, South Carolina
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Low-level Waste Disposal facility. If made to wait for
submission and approval of a decommissioning plan, YAEC would
lose its chance to use the Barnwell facility.
Pursuant to this proposed CRP, YAEC would first remove
the four steam generators and the pressurizer from the nuclear
reactor containment, remove core internals from the reactor
pressure vessel, and transport all of these radioactive
components to the Barnwell facility. After this dismantling,
YAEC proposed to then cut up the nuclear reactor core baffle
plate (which is too radioactive to meet low-level waste criteria
and thus cannot be dumped in the Barnwell site), and store the
pieces in canisters in the spent fuel pool for future delivery to
a U.S. Department of Energy waste site. Finally, YAEC planned to
remove and transport the four main coolant pumps to the Barnwell
site. These CRP activities would result in the permanent
disposal of 90% of the nonfuel, residual radioactivity at Yankee
NPS, all prior to approval of the actual decommissioning plan.
On November 25, 1992, YAEC sent a letter to the NRC
which set forth YAEC's arguments as to how NRC regulations,
Statements of Consideration issued with those regulations, and
Commission precedents could be "interpreted" to allow approval of
the early CRP, despite the fact that the Commission's
interpretative policy at that time explicitly required NRC
approval for major structural changes.
During this period, CAN also wrote two letters to the
NRC, on November 2, 1992 and again on December 21, 1992,
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requesting inter alia that the Commission halt or postpone any
and all dismantling activities at Yankee NPS until a
decommissioning plan was submitted, moved through the public
notice-and-comment process, and approved. In a December 29, 1992
letter to CAN, Kenneth Rogers, the Acting Chairman of the
Commission, responded that the Commission was "considering a
public meeting in the vicinity of the plant early in 1993 to
provide information to the public on NRC's review of
decommissioning in general and on expected site activities which
will occur prior to the licensee's submittal of a decommissioning
plan in late 1993."
On January 14, 1993, following internal review of its
decommissioning policies, the Commission issued a Staff
Requirements Memo ("SRM"), setting forth a significant,
substantial change from previously held agency positions on
decommissioning activities, and essentially adopting YAEC's
proposed "interpretation" of prior agency precedents and
positions. Without any explanation for the substantial
modification, or any further analysis, the SRM stated:
Notwithstanding the Commission's
statements in footnote 3 of CLI-90-08
[Long Island Lighting Co., 33 N.R.C. 61
(1991)] and the Statements of
Consideration for the decommissioning
rules at 53 Federal Register 24025-26,
licensees should be allowed to undertake
any decommissioning activity (as the term
"decommission" is defined in 10 C.F.R.
50.2) that does not -- (a) foreclose the
release of the site for possible
unrestricted use, (b) significantly
increase decommissioning costs, (c) cause
any significant environmental impact not
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previously reviewed, or (d) violate the
terms of the licensee's existing license
(e.g., OL, POL, OL with confirmatory
shutdown order etc.) or 10 C.F.R. 50.59
as applied to the existing license. . . .
The staff may permit licensees to use
their decommissioning funds for the
decommissioning activities permitted
above . . ., notwithstanding the fact
that their decommissioning plans have not
yet been approved by the NRC.
Shortly after the Commission issued this SRM, YAEC advised the
NRC that it planned to begin its CRP activities in accordance
with this new policy.2
On June 30, 1993, the Commission issued another SRM
reiterating its new decommissioning policy, and stating that it
had voted to formally amend 10 C.F.R. 50.59 to reflect this new
position. This proposed rulemaking is still underway. The
Commission also stated that approval of a decommissioning plan is
not an action that triggers hearing rights under 189a of the
AEA, but that the Commission staff could, in its discretion,
formulate an informal hearing process for decommissioning plan
approval.
On September 8, 1993, CAN again wrote to the NRC, again
requesting a hearing on the CRP at Yankee NPS. CAN also
generally alleged that the NRC was in violation of its own
regulations, and in violation of "the rule making process," by
allowing a licensee to engage in a CRP without prior Commission
2 Later, YAEC submitted a decommissioning plan, which is
currently under NRC review. YAEC completed most of the CRP
activities, however, before it ever submitted its decommissioning
plan to the Commission, and well before any environmental
assessment was performed.
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approval. The Commission responded to these allegations in a
letter dated November 18, 1993, stating that CAN had "failed to
identify the proposed action that might be taken by the NRC Staff
that requires the offer of a hearing."
The next day, CAN filed a petition for agency review
under 10 C.F.R. 2.206,3 requesting that the NRC halt the CRP
activities pending an investigation by the Inspector General's
office. In the petition, CAN reiterated its position that the
CRP constitutes decommissioning, and that the NRC was thus in
violation of its own regulations in allowing CRP activities at
Yankee NPS prior to approval of a decommissioning plan. The NRC
responded by letter dated December 29, 1993, explaining its
policy change as set forth in the SRMs, and concluding that CAN's
petition "does not provide any new information regarding why
public health and safety warrants suspension of the CRP and
therefore does not meet the threshold for treatment under 10 CFR
2.206."
After a flurry of letters, in which CAN repeatedly
requested formal hearings on the CRP and the Commission
consistently denied these requests on the grounds that the CRP
was inaccord withthe newpolicy, CANfiled thispetition forreview.4
3 Under 10 C.F.R. 2.206, members of the public may request
agency enforcement action against a licensee that is allegedly in
violation of an NRC regulation or requirement.
4 In April 1993, CAN also filed a motion in the United States
District Court for the District of Massachusetts seeking a
temporary restraining order to halt the CRP activities. The
district court dismissed the action for lack of subject matter
jurisdiction. Citizens Awareness Network v. NRC, 854 F. Supp.
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STANDARD OF REVIEW
STANDARD OF REVIEW
We review agency actions and decisions with substantial
deference, setting them aside only if found to be "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law." 5 U.S.C. 706(2)(A); Motor Vehicle
16, 18-19 (1994). In so doing, however, the district court
wrote:
The court makes this decision with a
heavy heart. The plaintiffs have been
diligently attempting for months to get a
hearing on the appropriateness and
competence of the NRC's actions. Many of
them live near the site of the
decommissioned nuclear plant. They and
their families are the most directly at
risk if the job of removing contaminated
materials is bungled. . . . Not only have
the plaintiffs been denied the
opportunity to present their concerns and
to hear the response of the NRC at a
formal hearing, they have not as yet even
been afforded a forum in which to argue
their entitlement to a hearing. They had
no incentive to seek a hearing when the
NRC originally issued the POL, because at
that time it was the policy of the NRC to
require final approval and NEPA
compliance before authorizing early
component removal. Months later, the NRC
now concedes, this policy changed and the
NRC decided to view the POL as itself
authorizing early component removal
without more. Requests for hearing at
this point were denied. . . . This course
of conduct suggests a concerted
bureaucratic effort to thwart the efforts
of local citizens to be heard about an
event that vitally affects them and their
children. . . . The prospect that this
tactic may be used nationally, as more
nuclear plants shut down, . . . is, to
put it mildly, disquieting.
Id. at 19 (emphasis in original).
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Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 41 (1983).
The scope of this review is narrow; a court should not substitute
its judgment for that of the agency, and agency decisions will be
upheld so long as they "'do not collide directly with substantive
statutory commands and so long as procedural corners are squarely
turned.'" Adams v. EPA, 38 F.3d 43, 49 (1st Cir. 1994) (quoting
Puerto Rico Sun Oil Co. v. EPA, 8 F.3d 73, 77 (1st Cir. 1993)).
This deference is especially marked in technical or scientific
matters within the agency's area of expertise. Id.
While this is a highly deferential standard of review,
it is not a rubber stamp; in order to avoid being deemed
arbitrary and capricious, an agency decision must be rational.
Id.; Puerto Rico Sun Oil Co., 8 F.3d at 77. Moreover, when an
administrative agency departs significantly from its own
precedent, "it must confront the issue squarely and explain why
the departure is reasonable." D vila-Bardales v. INS, 27 F.3d 1,
5 (1st Cir. 1994). This is not to say that agencies must forever
adhere to their precedents; agencies may "refine, reformulate and
even reverse their precedents in the light of new insights and
changed circumstances." Id. See also Rust v. Sullivan, 500 U.S.
173, 186-87 (1991). An agency changing its course must, however,
supply a reasoned analysis for the change. Motor Vehicle Mfrs.
Ass'n, 463 U.S. at 42; Puerto Rico Sun Oil Co., 8 F.3d at 77.
With these principles in mind, we turn to the merits of CAN's
petition.
ANALYSIS
ANALYSIS
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CAN raises three principal arguments. First, CAN
contends that the NRC's refusal to grant CAN a formal hearing
before allowing YAEC to conduct decommissioning constitutes a
regulatory taking of their property without due process or
compensation, denies CAN members their right to due process under
the Fifth Amendment, and violates the hearing requirements of
189a of the AEA. Second, CAN argues that the Commission has
violated NEPA by allowing YAEC to accomplish almost 90% of its
decommissioning activities before conducting any environmental
assessment. Finally, CAN contends that the NRC's unexplained
change in its decommissioning policy was irrational and contrary
to its own duly-promulgated regulations, in violation of the
procedural requirements of the APA. We address these contentions
in reverse order.
A. The NRC's Change In Policy
A. The NRC's Change In Policy
CAN argues that the Commission's significant policy
shift, manifested in its two Staff Requirements Memos, improperly
revoked duly-promulgated Commission regulations, interpretations
and precedents, without the benefit of rulemaking procedures or
even a rational explanation for the change. By allowing YAEC to
commence the CRP activities notwithstanding its own precedents
and regulations, CAN contends, the Commission acted arbitrarily
and capriciously, in violation of the APA. In defense of the
unexplained change in its decommissioning policy, the NRC
maintains that the former policy had never been incorporated into
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the regulations themselves, and, in any case, that agencies are
free to alter their interpretations of their own regulations.5
While this is certainly true, any such alteration or
reversal must be accompanied by some reasoning -- some indication
that the shift is rational, and therefore not arbitrary and
capricious. Puerto Rico Sun Oil Co., 8 F.3d at 77-78. See also
Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412
U.S. 800, 808 (1973)("Whatever the ground for the [agency's]
departure from prior norms, . . . it must be clearly set forth so
that the reviewing court may understand the basis of the agency's
action."). Courts should not attempt to supply a reasoned basis
for the action that the agency itself has not given. Motor
Vehicle Mfrs. Ass'n, 463 U.S. at 43. While this is not a
difficult standard to meet, the Commission has not met it here.
The prior Commission policy regarding decommissioning,
embodied in 10 C.F.R. 50.59 and explicated in the Commission's
published Statement of Consideration, required NRC approval of a
decommissioning plan before a licensee undertook any major
structural changes to a facility. This policy was developed
through a lengthy notice and comment period, with substantial
public participation. See 53 Fed. Reg. 24018, 24020 (a total of
5 We are baffled by the Commission's assertion that "CAN has not
challenged this modification of NRC policy," as we count three
pages of argument in CAN's brief devoted to this precise issue.
Nor can the Commission claim that CAN did not raise this issue
prior to filing this petition for review. In both its September
8, 1993 letter to the NRC and its 2.206 enforcement petition, CAN
alleged that the Commission was in violation of its own
regulations and of the "rule making process."
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143 individuals and organizations submitted comments on proposed
rule). The Commission adhered to this policy for almost five
years, reiterating its position in at least two adjudicatory
decisions. Then, rather suddenly, the Commission circulated two
internal staff memos that completely reversed this settled
policy, without any notice to the affected public. More
troubling, however, was the Commission's failure to provide in
those memos, or anywhere else, any justification or reasoning
whatsoever for the change. The memos did not set forth any new
facts, fresh information, or changed circumstances which would
counsel the shift. Nor did they provide any legal analysis of
how the new policy comported with, or at least did not conflict
with, existing agency regulations. With nothing more than a
breezy "notwithstanding," the Commission abruptly disposed of
five years' worth of well-reasoned, duly-promulgated agency
precedent.
Moreover, the NRC's actions are inconsistent with the
plain terms of the AEA, the NRC's enabling statute, which provide
that "in any proceeding for the issuance or modification of rules
and regulations dealing with the activities of licensees, . . .
the Commission shall grant a hearing upon the request of any
person whose interest may be affected by the proceeding. . . ."
42 U.S.C. 2239(a)(1)(A) (emphasis added). While the NRC's
policy shift involved an interpretation of its regulation, and
not the regulation itself, it was an interpretative policy that
provided a great deal of substantive guidance on the rather
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ambiguous language of the regulation, by specifically delineating
the permissible activities of licensees. We think that the
statute's phrase "modification of rules and regulations"
encompasses substantive interpretative policy changes like the
one involved here, and therefore that the Commission cannot
effect such modifications without complying with the statute's
notice and hearing provisions. See Natural Resources, Etc. v.
NRC, 695 F.2d 623, 625 (D.C. Cir. 1982)("Fair notice to affected
parties requires that the Commission not alter suddenly and sub
silentio settled interpretations of its own regulations.").6
Finally, we agree with the petitioners that the
Commission's new policy appears utterly irrational on its face.
By allowing licensees to conduct most, if not all, of the
permanent removal and shipment of the major structures and
radioactive components before the submittal of a decommissioning
plan, it appears that the Commission is rendering the entire
decommissioning plan approval process nugatory. Why should a
licensee be required to submit such a plan if its decommissioning
is already irreversibly underway? Why offer the public the
opportunity to be heard on a proposed decommissioning plan if the
actual decommissioning activities are already completed? In
6 The Commission points out that in June 1993 it held a public
meeting, attended by several CAN members. Although the meeting
was ostensibly to address the community's questions about the
decommissioning activities at Yankee NPS, the transcript of the
meeting indicates that the NRC representatives carefully
sidestepped the few questions raised about the recent change in
Commission policy regarding decommissioning. We do not think
that this type of forum or proceeding meets the hearing
requirements of the AEA.
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short, the Commission's new decommissioning policy seems to
render any regulatory oversight of the decommissioning process
moot. Perhaps a rational basis for this policy exists, but we
cannot see one, and the Commission has not provided one.
The Commission's failure to provide any explanation for
its seemingly irrational change in policy renders its new policy
arbitrary and capricious, and not in accordance with the
requirements of 42 U.S.C. 2239(a)(1)(A). We therefore remand
the issue of the NRC's change in decommissioning policy for
further proceedings, in accordance with the AEA's hearing
requirements and this opinion.
B. Petitioner's NEPA Arguments
B. Petitioner's NEPA Arguments
CAN also contends that the Commission's irrational
interpretation of its regulations has led to the agency's
permitting YAEC to accomplish over 90% of the decommissioning
activities at Yankee NPS prior to conducting any EA or EIS, in
violation of NEPA, 42 U.S.C. 4332.7 In response, the
7 The National Environmental Policy Act, 42 U.S.C. 4321 et
seq., requires all federal agencies, including the NRC, to
prepare a "detailed statement," containing specified
environmental information, for all proposed "major federal
actions significantly affecting the quality of the human
environment." 42 U.S.C. 4332 (2)(C). When the NRC plans to
issue a license amendment or take some other form of regulatory
action that requires NEPA compliance, the NRC will publish either
an EA stating that there is no significant impact on the
environment from the proposed action, or an EIS, reviewing the
impact of the proposed action and listing alternatives. 10
C.F.R. 51.20, 51.21. When approving a licensee's request to
decommission, the NRC prepares either a supplemental EIS for the
post-operating license stage, or an EA updating the prior
environmental review for the facility, as it deems appropriate.
10 C.F.R. 51.95(b).
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Commission claims that the CRP activities do not constitute a
"major federal action" triggering NEPA compliance. The
Commission explains that it did not actively permit YAEC to
initiate CRP activities; rather, it "simply reviewed YAEC's
implementation of the CRP, as a part of its everyday oversight of
its licensee's activities, and found no reasons to interfere with
YAEC's plans." Because mere "regulatory oversight, as opposed to
active permission, does not implicate NEPA," the NRC argues, no
EA or EIS was required.
This argument is completely devoid of merit. First,
the Commission holds in trust certain funds set aside by
licensees, including YAEC, to finance decommissioning activities.
42 U.S.C. 2232(a). The Commission therefore had to approve the
release of these set-aside funds in order to finance YAEC's CRP
activities. See Letter from Morton B. Fairtile re:
Decommissioning Funds, N.R.C. Docket No. 50-029 (April 16, 1993).
In essence, the Commission had to actively permit the release of
funds, or YAEC could not have initiated the CRP. Far from being
"mere oversight," we think the Commission's approval of financing
certainly constitutes its active permission of the CRP. Second,
it is undisputed that decommissioning is an action which, even
under the Commission's new policy, requires NEPA compliance. 10
C.F.R. 51.95(b). In "advising" YAEC that it could initiate
decommissioning prior to submitting a decommissioning plan, the
NRC effectively granted YAEC permission to commence activities
normally conducted after decommissioning plan approval, including
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the removal and storage of almost all of the radioactive
components. This permission, in turn, allowed YAEC to
decommission its facility without the benefit of NEPA compliance
by the Commission.
Regardless of the label the Commission places on its
decision to release the necessary funds to YAEC and "advise" the
licensee to go ahead with its CRP, it was effectively, even
explicitly, permitting YAEC to decommission the facility. An
agency cannot skirt NEPA or other statutory commands by
essentially exempting a licensee from regulatory compliance, and
then simply labelling its decision "mere oversight" rather than a
major federal action. To do so is manifestly arbitrary and
capricious.
We note that the Commission's arguments on this issue
are implicitly predicated on the assumed validity of its new
interpretative policy. As we have explained, however, the
Commission has failed to provide any rational explanation for
this policy, thus rendering it arbitrary and capricious. The
Commission therefore cannot rely on its new policy as a basis for
its decision that NEPA compliance was unnecessary prior to
decommissioning at Yankee NPS. Accordingly, we find that the
Commission's action in allowing YAEC to complete 90% of the
decommissioning at Yankee NPS prior to NEPA compliance lacked any
rational basis, and was thus arbitrary and capricious. We remand
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this issue to the Commission for actions in accordance with this
holding.8
C. Petitioner's Remaining Arguments
C. Petitioner's Remaining Arguments
1. Petitioner's Fifth Amendment Arguments
1. Petitioner's Fifth Amendment Arguments
CAN contends that because the property interests of its
members have been "invaded by radiation due to the NRC's
regulatory decisions concerning the decommissioning" of Yankee
NPS, the NRC's actions constitute a regulatory taking of their
property in violation of the Fifth Amendment. We need not dwell
on this argument, however, as CAN has not stated a cognizable
takings claim. Beyond its general statement that its property
interests have been "invaded" by radiation, CAN has not explained
or argued even generally how this is so, nor does it offer any
factual support for its claims regarding radiation.9 CAN also
does not seek compensation for any alleged invasion of its
property interests, but simply wishes a hearing on the CRP
activities. Given the sparsity of its allegations and the
8 We recognize that this holding comes too late to prevent much
of the CRP activity. There remains, however, a significant
amount of radioactive material and structures at the Yankee NPS
site, the removal of which will continue to affect CAN members.
This continued removal will undoubtedly continue to pose health,
safety and environmental questions, thereby requiring NRC
oversight and NEPA compliance. CAN's arguments on this point
are therefore not moot.
9 In its brief, CAN does point to the statement made in an
affidavit by CAN member Will Sparks, describing the NRC's actions
as "a form of invasion, like have [sic] a stranger in the house,
like being burglarized." Even assuming that Mr. Sparks'
affidavit is properly part of the record in this petition, this
statement is simply insufficient to support a broad takings claim
like the one put forth here.
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complete lack of argument or factual support for its bare
assertion, we see no reason to depart from the well-settled rule
in this circuit that "issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990). "It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court to
. . . put flesh on its bones." Id. Consequently, we reject
CAN's takings claim.
Nor do we find any merit in CAN's rather vague allusion
to a more general Fifth Amendment argument, presumably that the
NRC's actions deprived its members of life, liberty or property
without due process of law. This contention suffers from the
same deficiencies as CAN's takings claim, being overbroad, vague,
and unaccompanied by factual support or analysis. Moreover, as
the NRC points out, "generalized health, safety and environmental
concerns do not constitute liberty or property subject to due
process protections." West Chicago, Ill. v. NRC, 701 F.2d 632,
645 (7th Cir. 1983). We simply cannot fashion a constitutional
violation out of whole cloth on the basis of the kind of
nonspecific and unsupported allegations raised by CAN here.
Accordingly, we reject CAN's allegations that the NRC's actions
violated its members' Fifth Amendment due process rights.
2. Petitioner's Atomic Energy Act Arguments
2. Petitioner's Atomic Energy Act Arguments
CAN contends that Commission approval of YAEC's CRP
violated AEA section 189a, which requires the Commission to grant
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a hearing upon request by any party in interest whenever it
undertakes any proceeding to "amend" a license. 42 U.S.C. 2239
(a)(1)(A). CAN argues that Commission approval of YAEC's CRP was
a de facto "amendment" of YAEC's POL because it authorized YAEC
(as well as other extant and prospective licensees) to engage in
materially different conduct not permitted under the pre-1993
POL, namely, major component dismantling absent prior NRC
approval of a final decommissioning plan. See 53 Fed. Reg. 24018,
24020 (1988). The Commission counters that its so-called
"approval" of the CRP cannot be deemed a license "amendment"
proceeding since the language requiring NRC approval for major
structural changes was never expressly incorporated into YAEC's
license.10 Instead, it says, the decommissioning plan
procedure, which is subject to procedural protections (e.g.,
public hearings, preparation of environmental assessments)
entirely different from those designated in section 189a, was
described only in a cover letter accompanying the license, and
the Commission has never treated the decommissioning plan process
as "amendatory" for section 189a purposes.
We reject the Commission's claim that its abrupt policy
change in 1993, to the extent it substantially enlarged the
authority of an extant licensee (YAEC) retroactively, nonetheless
10 As a threshold matter, the Commission repeats its contention
that no 2239(a)(1)(A) "proceeding" occurred, because it took no
affirmative action and merely refused to intervene to prevent
YAEC from undertaking the CRP. For the reasons previously noted
in our discussion of the Commission's NEPA violations, see supra
at 17-18, we disagree with this characterization.
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did not entitle CAN to the requested section 189a hearing. As
the Commission itself concedes, by its nature a license is
presumptively an exclusive -- not an inclusive -- regulatory
device. See Brief for Respondent at 5 ("Th[e] license describes
the facility and the authorized activities that the operator may
conduct under the license. If the holder of the licensee (sic) .
. . wishes to modify the facility or to take actions that are not
specifically authorized under the license, the licensee may need
to seek a change or 'amendment' to the terms of the license.")
(emphasis added). The sophistical suggestion that the
decommissioning plan procedures were never formally incorporated
into YAEC's POL license ignores licensing realities. Licenses
customarily delineate the types of regulated conduct in which the
licensee may engage. Regulated conduct which is neither
delineated, nor reasonably encompassed within delineated
categories of authorized conduct, presumptively remains
unlicensed. YAEC's original license did not authorize it to
implement major-component dismantling of the type undertaken in
the CRP.
Thus, if section 189a is to serve its intended purpose,
surely it contemplates that parties in interest be afforded a
meaningful opportunity to request a hearing before the Commission
retroactively reinvents the terms of an extant license by voiding
its implicit limitations on the licensee's conduct. See Skidgel
v. Maine Dep't of Human Servs., 994 F.2d 930, 937 (1st Cir. 1993)
(statutory language must be interpreted in context, including its
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legislative purpose). The claimed right to deny such a hearing
request undermines the integrity of the licensing process. At
the time YAEC obtained its original license, and again when it
amended the original license to a POL, parties in interest,
including CAN, presumably refrained from any request for a
section 189a hearing -- to which they would unquestionably have
been entitled -- in reasonable reliance upon such implicit
limitations in YAEC's license.
The Commission correctly points out that we have
observed that the term "amend," as used in section 189a, is to be
construed quite literally. See Commonwealth of Mass. v. United
States Nuclear Regulatory Comm'n, 878 F.2d 1516, 1522 (1st Cir.
1989). But we were careful to note as well that it is the
substance of the NRC action that determines entitlement to a
section 189a hearing, not the particular label the NRC chooses to
assign to its action. Id. at 1521 (citing Columbia Broadcasting
Syst. Inc. v. United States, 316 U.S. 407, 416 (1942)).11
11 Moreover, Commonwealth is readily distinguishable on its
facts. There, the NRC decision approving resumption of
operations by a licensee, which had shut down its facility
voluntarily prior to any formal suspension or revocation of its
operating license by the NRC, did not implicate section 189a.
Rather, the NRC requirements for license "reinstatement" were
simply additional interim license restrictions -- imposed
pursuant to pre-existing Commission regulations -- none of which
conflicted with, or required the alteration of, any term of the
original license. Commonwealth, 878 F.2d at 1520-21 (citing and
adopting rationale in In re Three Mile Island Alert, Inc., 771
F.2d 720 (3d Cir. 1985), cert. denied, 475 U.S. 1082 (1986)).
Thus, the operator obtained no greater authority (literally,
"license") than it had before its license was reinstated by the
NRC. Id. at 1520. Even though the Commission temporarily
exempted the licensee from one restriction generally applicable
to other licensees, the discretionary exemption was expressly
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By contrast, the policy change adopted by the
Commission in 1993, relating to "minor" component dismantling,
was in no sense provisional. Moreover, it undeniably
supplemented the operating authority of extant licensees
generally, and YAEC in particular, which might henceforth engage
in major forms of component disassembly beyond the ambit of their
original licenses. Prior to 1993, parties in interest reasonably
could presume that YAEC was not authorized to undertake this type
of CRP unless it submitted to the lapidary process of preparing a
final decommissioning plan and environmental assessment
acceptable to the NRC, or it moved to amend its existing license.
Then, in 1993, the Commission, by ambiguous fiat,
declared that some forms of "major component disassembly" hence-
forth were to be outside the license-amendment process, whereas
more "serious" types of component removal were to remain subject
to the amendment process. See 10 C.F.R. 50.59. In our view,
however, the latter provision plainly confirms that the
Commission had always considered component disassembly, similar
to that involved in YAEC's CRP, as action beyond the ambit of the
presumptive authority granted under the licenses it issued.
The Commission elevates labels over substance. It
would have us determine that a "proceeding" specifically aimed at
excusing a licensee from filing a petition to amend its license
authorized and granted under pre-existing agency regulations, see
id. at 1521, so that parties in interest were on notice from the
time the license was granted that NRC retained the discretion to
approve the limited exemption at any time in the future.
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is not the functional equivalent of a proceeding to allow a de
facto "amendment" to its license. As this construct would
eviscerate the very procedural protections Congress envisioned in
its enactment of section 189a, we decline to permit the
Commission to do by indirection what it is prohibited from doing
directly. See 42 U.S.C. 2239(a)(1)(A) (Commission must afford
hearing "in any proceeding for the . . . modification of rules
and regulations dealing with the activities of licensees."). We
therefore hold that CAN was entitled to a hearing under section
189a in connection with the NRC decision to permit YAEC's early
CRP.
CONCLUSION
CONCLUSION
For the foregoing reasons, we grant CAN's petition for
review in part, and remand to the Commission for proceedings
consistent with this opinion.
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