No. 94-1562.United States Court of Appeals, First Circuit.Heard January 10, 1995.
Decided July 20, 1995.
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Jonathan M. Block, with whom Robert L. Quinn and Egan, Flanagan and Cohen, P.C., Springfield, MA, were on brief for petitioner.
Charles E. Mullins, Sr. Atty., Office of the General Counsel, U.S. Nuclear Regulatory Com’n, with whom Karen D. Cyr, General Counsel, Washington, DC, John F. Cordes, Jr., Sol., E. Leo Slaggie, Deputy Sol., U.S. Nuclear Regulatory Com’n, Rockville, MD, Anne S. Almy, Asst. Chief, and William B. Lazarus, Attorney, Appellate Section, Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, were on brief for respondent.
Thomas G. Dignan, Jr., with whom Ropes Gray, Boston, MA, was on brief for intervenor.
Appeal from the Nuclear Regulatory Commission (NRC).
Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and CYR, Circuit Judge.
TORRUELLA, Chief Judge.
[1] Citizens Awareness Network (“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 § 189(a) 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 assessment (“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
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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.
[2] BACKGROUND[3] A. The Regulatory Framework
[4] 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 licensee may seek an amendment to its license from the Commission. See 42 U.S.C. §§ 2131–2133, 2237 (1988).
[6] 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 CFR § 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 CFR § 50.59(a)(2)(ii)), the licensee must apply to the Commission for a license amendment, 10 CFR § 50.59(c), and only then are the statutory hearing rights of § 189a triggered. [7] The procedures for decommissioning[1] a nuclear power plant are set forth principally in 10 CFR §§ 50.82, 50.75, 51.53, and 51.95 (1990). The formal process begins with the 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 CFR § 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 CFR §§ 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 CFR § 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 CFR § 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 issues a decommissioning order approving the plan and authorizing decommissioning. 10 CFR § 50.82(e). [8] The Commission has stated that its regulations allow a licensee to conduct certain, limited decommissioning activities prior to obtaining NRC approval: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. . . .
[9] 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). [10] B. Factual BackgroundIt should be noted that [10 CFR] § 50.59 permits a holder of an operating license to carry out certain activities without
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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.
[11] 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 § 189(a) 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). [12] 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 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. [13] 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. [14] 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.
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[15] During this period, CAN also wrote two letters to the NRC, on November 2, 1992 and again on December 21, 1992, 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.” [16] 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:[17] 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] [18] On June 30, 1993, the Commission issued another SRM reiterating its new decommissioning policy, and stating that it had voted to formally amend 10 CFR § 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 § 189(a) of the AEA, but that the Commission staff could, in its discretion, formulate an informal hearing process for decommissioning plan approval. [19] 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 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.” [20] The next day, CAN filed a petition for agency review under 10 CFR § 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 DecemberNotwithstanding 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 CFR 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 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 CFR 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.
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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.”
[21] 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 in accord with the new policy, CAN filed this petition for review.[4][22] STANDARD OF REVIEW
[23] 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 Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 41, 103 S. Ct. 2856, 2865, 77 L.Ed.2d 443 (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.
[25] ANALYSIS
[26] 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 § 189(a) of the AEA. Second, CAN argues that the Commission
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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.
[27] A. The NRC’s Change In Policy[28] 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 the regulations themselves, and, in any case, that agencies are free to alter their interpretations of their own regulations.[5] [29] 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, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350 (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, 103 S.Ct. at 2867. While this is not a difficult standard to meet, the Commission has not met it here. [30] The prior Commission policy regarding decommissioning, embodied in 10 CFR § 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 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. [31] 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,
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it was an interpretative policy that provided a great deal of substantive guidance on the rather 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]
[32] 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 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. [33] The Commission’s failure to provide any for its seemingly irrational in policy renders its new policy arbitrary capricious, and not in accordance 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. [34] B. Petitioner’s NEPA Arguments[35] 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 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. [36] 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
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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 t 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 CFR § 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 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.
[41] 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 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
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skeletal way, leaving the court to . . . put flesh on its bones.”Id. Consequently, we reject CAN’s takings claim.
[42] 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.[43] 2. Petitioner’s Atomic Energy Act Arguments
[44] CAN contends that Commission approval of YAEC’s CRP violated AEA section 189(a), which requires the Commission to grant 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).
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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 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 189(a) hearing — to which they woul unquestionably have been entitled — in reasonable reliance upon such implicit limitations in YAEC’s license.
[48] The Commission correctly points out that we have observed that the term “amend,” as used in section 189(a), 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 189(a) 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, 62 S.Ct. 1194, 1199-1200, 86 L.Ed. 1563 (1942)).[11] [49] 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. [50] Then, in 1993, the Commission, by ambiguous fiat, declared that some forms of “major component disassembly” henceforth 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 CFR § 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. [51] 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 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 189(a), 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 189(a) in connection with the NRC decision to permit YAEC’s early CRP.
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[52] CONCLUSION
[53] For the foregoing reasons, we grant CAN’s petition for review in part, and remand to the Commission for proceedings consistent with this opinion.
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).
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, 106 S.Ct. 1460, 89 L.Ed.2d 717 (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 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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