County of Esmeralda, State of Nevada v. U.S. Department of Energy, County of Inyo, State of California v. U.S. Department of Energy , 925 F.2d 1216 ( 1991 )

WIGGINS, Circuit Judge:

Esmeralda County, Nevada, and Inyo County, California, petition this court to vacate as arbitrary and capricious the Department of Energy’s denial of their request to designate them units of local government affected by the Yucca Mountain High Level Nuclear Waste Repository Project. We grant the counties’ petitions and vacate the Secretary’s decisions not to designate the counties affected units.

BACKGROUND

The Nuclear Waste Policy Act requires the Department of Energy to site, construct, and operate repositories for high level radioactive waste. 42 U.S.C. § 10131(b)(1). As amended in 1987, the Act provides that Yucca Mountain is the sole area to be evaluated as a potential site for the first waste dump. 42 U.S.C. § 10172. In association with the Department’s site evaluation, the Secretary of Energy must provide funds for participating in evaluation activities to affected units of local government, 42 U.S.C. § 10136(c), as well as involve them in the evaluation process to a significant extent, see, e.g., 42 U.S.C. § 10173(a)(3); 42 U.S.C. § 10178b(a)(2). The Act defines an “affected unit of local government” as:

the unit of local government with jurisdiction over the site of a repository or a monitored retrievable storage facility. Such term may, at the discretion of the Secretary, include units of local government that are contiguous with such unit.

42 U.S.C. § 10101(31). The unit of local government with jurisdiction over Yucca Mountain is Nye County, Nevada. In April 1988, the Secretary designated Clark County, Nevada, a county contiguous to Nye County, as an affected unit of local government, in response to a request by the County. In June 1988, the Secretary similarly designated Lincoln County, also contiguous to Nye County, as an affected unit of local government. In August and October 1988, respectively, the Secretary denied the requests of Esmeralda and Inyo counties, both contiguous to Nye County, to be designated as affected units of local government. Both counties requested reconsideration. The Secretary denied Esmeralda County’s reconsideration request and Esmeralda County timely petitioned this court for review. After 120 days of inaction by the Secretary on its reconsideration request, Inyo County also petitioned this court for review. The Secretary had yet to respond to Inyo County’s reconsideration request when this case was submitted.

DISCUSSION

1. Jurisdiction

42 U.S.C. § 10139(a)(1)(A) grants this court original jurisdiction to review only final decisions of the Secretary. At the time of this appeal, Inyo County had a motion for reconsideration pending before the Secretary. This renders the Secretary’s refusal to grant affected unit status non-final. See ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 284-85, 107 S.Ct. 2360, 2369-70, 96 L.Ed.2d 222 (1987) (agency decision is non-final until request for reconsideration is acted on).

We have previously held that finality problems may be cured while an appeal is pending. In Anderson v. Allstate Ins. Co., 630 F.2d 677 (9th Cir.1980), we gained jurisdiction over an appeal when a district judge dismissed remaining defendants from an action. The appealed orders were not initially final, because some of the plaintiffs’ claims remained. Id. at 680. However, during the course of the appeal, the judge dismissed the entire action. We considered this development sufficient to validate the appeal, reasoning that “[tjhere is no danger of piecemeal appeal ... nothing else remains in the federal courts.” Id. at 681.

This case is similar to Anderson. On August 17, 1990, Inyo County notified us that it had withdrawn its motion for reconsideration. This subsequent event renders the Secretary’s decision final, and “validate[s] [Inyo County’s] prematurely filed appeal.” Id. at 681. Because the Secretary’s decision is now final, we have jurisdiction over Inyo County’s claims under 42 U.S.C. § 10139(a)(1)(A).

2. Reviewability

Under the Administrative Procedure Act, an agency action is unreviewable when a statute commits the action to the agency’s discretion, and “the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). Such a determination is statute specific, see Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 2052, 100 L.Ed.2d 632 (1988), and relates to the language of the statute and whether the general purposes of the statute would be endangered by judicial review, see id. 108 S.Ct. at 2052-53.

The Secretary correctly points out that the Nuclear Waste Policy Act does not identify specific factors for him to use in determining whether to grant contiguous counties affected unit status. The Act states merely that the decision to designate contiguous counties as affected units is “at the discretion of the Secretary.” 42 U.S.C. § 10101(31). And the statement in the legislative history that the Secretary “has the flexibility to designate a contiguous unit of local government as ‘affected’ when the Secretary feels that to do so will promote equity and further the process of facility citing and development,” S.Rep. No. 152, 100th Cong., 1st Sess., 11-12 (1987) (emphasis added), supports his position. See Webster, 108 S.Ct. at 2052 (finding language allowing action which the CIA Director deems to be in the interests of the United States, rather than action which is in the interests of the United States to “exude[] deference” to the agency).

However, another section of the Nuclear Waste Policy Act specifically precludes judicial review of decisions of the Secretary taken under that section, see 42 U.S.C. § 10173(f), while the subtitle of the Act relevant to this case contains no such provision. Indeed, the subtitle of the Act relevant to this case expressly provides for judicial review of “any final decision or action of the Secretary,” 42 U.S.C. § 10139(a)(1)(A) (emphasis added), or the alleged “failure of the Secretary ... to make any decision, or take any action, required under this subtitle,” 42 U.S.C. § 10139(a)(1)(B) (emphasis added).

Furthermore, it is difficult to see how the purposes of the Act will be endangered by judicial review of the type of action at issue here. National security is not a concern here, cf. Webster, 108 S.Ct. at 2052, neither is prosecutorial discretion, cf Chaney, 470 U.S. at 831, 105 S.Ct. at 1655. And a judicially manageable standard by which to review the Secretary’s action readily presents itself: Did the Secretary meaningfully consider the possibility and extent of the suggested impacts of repository operations at Yucca Mountain upon the counties at issue and make a reasoned decision based upon such consideration? We therefore hold that judicial review of the Secretary’s actions is appropriate in this context.

3. Substantive Review of the Secretary’s Actions

We will set aside the Secretary’s decisions only if they were arbitrary, capricious or otherwise not in accordance with law. Delaney v. E.P.A., 898 F.2d 687, 689 (9th Cir.1990). We will not set aside an agency’s construction of a statute it is implementing unless that construction conflicts with clear congressional intent or is unreasonable. Id.

A. Statutory Interpretation and Stare Decisis Arguments

The counties first contend that 42 U.S.C. § 10101(31) allows the Secretary only to designate all or none of the units of local government contiguous to Nye County as affected by the Yucca Mountain Project. We reject this contention. This statute is ambiguous as to whether the Secretary may include some contiguous areas but not others. But the relevant legislative history states that section 10101(31) is meant to give the Secretary “the flexibility to designate a contiguous unit of local government as ‘affected’ when [he] feels that to do so will promote equity....” S.Rep. No. 152, at 11-12 (emphasis added). This reference to “contiguous unit” in the singular, as well as the discussion of flexibility and equities, points toward individualized designations, not the all or nothing scheme that the counties advocate. Furthermore, even if the legislative history were silent, the Secretary’s interpretation is surely a reasonable one, which is all that is necessary for it to be valid.

The counties also argue that the Secretary’s refusal to designate them as affected units of local government is arbitrary and capricious because it disregards his alleged past policy of so designating contiguous counties simply on the basis of their location next to Nye County. Even if we were to accept the counties’ dubious characterization of the Secretary’s past actions, we reject the argument. The Secretary has promulgated no formal rule or even a policy statement on this issue. Absent such a rule or policy statement, we are in no position to compare the Secretary’s actions with respect to Esmeralda and Inyo counties to the Secretary’s actions with respect to Lincoln and Clark counties — actions which are not before this court. Inyo and Esmeralda counties are entitled to an independent determination by the Secretary, not a comparison to the determinations by the Secretary in other cases. See K. Davis, 4 Administrative Law Treatise § 20.11 at 37 (2d ed. 1983) (“[o]nly for some formal adjudication or formal rulemaking do the courts even consider inconsistency of agencies’ action”).

B. The Secretary’s Alleged Failure to Consider Effects Upon Inyo and Esmeralda Counties

The counties argue that the Secretary’s decisions are arbitrary and capricious because they disregard the effects that site characterization and repository activities might have on the counties.

Inyo County contends that the Secretary disregarded socio-economic impacts upon Inyo County. We reject this contention. The Secretary points out that only 0.03 percent of Nevada test site workers lived in Inyo County in 1988. By our calculation, this is only one of the 3,420 Nevada test site workers. While studies mentioned in the Secretary’s December 1988 Report to Congress Pursuant to Section 175 of the Nuclear Waste Policy Act project that the figure might get a bit higher, it had not changed as of June 1989 and even if it did, there is no indication that it would be anything but minimal. While Inyo County has asserted that currently “a number” of Nevada Test Site workers reside there and more Yucca Mountain personnel “may also be expected”, they provide no figures contrary to those of the Secretary. In any event, if in the future a significant number of Yucca Mountain personnel settle in Inyo County, the county could reapply for affected unit status.

Inyo County next contends that the Secretary disregarded the possibility of groundwater contamination in Inyo County from repository operation. We believe that this contention is justified. The Secretary does not dispute that Inyo County and Yucca Mountain share a common aquifer and that there is, therefore, a possibility that Inyo County water will be contaminated by radiation from Yucca Mountain. The Secretary contends that currently planned studies of the possibility of Inyo County groundwater contamination will be non-intrusive and current preliminary assessments indicate a very low probability that Inyo County groundwater will be contaminated by repository operation. However, the Secretary overlooks the fact that the purpose of affected unit status is not just to mitigate the effects of current site characterization activities or environmental harms which are certain to flow from repository operation. Affected unit status is also meant to ensure that all potential harms from repository operation — whatever the current estimate of their probability — are sufficiently studied before Yucca Mountain is approved as a repository. See, e.g., 42 U.S.C. § 10136(c)(B)(i) (“The Secretary shall make grants to ... any affected unit of local government for the purpose of enabling [it] ... to review activities taken under this subtitle with respect to the Yucca Mountain site for purposes of determining any potential ... environmental impacts of a repository on such ... affected unit of local government and its residents.”) (emphasis added). The participation of Inyo County as an affected unit of local government will help ensure that sufficient research is done of the impact of a Yucca Mountain repository on Inyo County groundwater and that such research is not ignored.

Inyo County also argues that the Secretary’s decision is arbitrary and capricious because it disregards the possibility of radioactive releases for a repository at Yucca Mountain which would contaminate property within Inyo County. In support of its contention that Inyo County would be particularly at risk for such effects, the County notes that it is located only fourteen miles from the site and that over one-fourth of the current study area in the Department of Energy’s Radiological Monitoring Plan is located in Inyo County. This contention also has merit.

In defense of his decision the Secretary argues first that current monitoring efforts in Inyo County are not sufficiently intrusive to warrant affected unit status. However, Inyo County is not claiming current effects from site characterization activities. It claims future effects from actual operation of a repository. Thus, the Secretary’s first argument is beside the point.

The Secretary next argues that radiation effects from an operative repository are too speculative to be relevant and would be mitigated by strategies that the Secretary has already identified. However, this argument flies in the face of the Nuclear Waste Policy Act language, quoted above, that affected unit status is meant to help determine potential environmental impacts of a repository on an area. Affected unit status is meant to give a jurisdiction funds to determine whether any environment impacts will probably occur, whether mitigation strategies of the Department of Energy will be effective, or whether new strategies are needed.

Both counties claim that the Secretary overlooked the fact that rail and highway transportation of nuclear waste through their jurisdictions to a repository at Yucca Mountain is likely. We agree. The Secretary’s only argument in his defense that we have not already considered is that the counties’ concerns are premature because actual transportation of nuclear waste is far off and no final selection of transportation routes has been made. However, it would be self-defeating to provide for review of potential environmental impacts of a repository but to allow that review only after plans have been put in near final form. Counties should have the opportunity to participate in preliminary planning stages, when alternatives are still available. Cf. State of Nevada ex rel. Loux v. Herrington, 777 F.2d 529, 532 n. 2 (9th Cir.1985) (“If Nevada discovers significant flaws in DOE’s findings, DOE could turn its attention to other sites and cut short the expenditure of money, time, and manpower for the evaluation of a site which would later turn out to be unsuitable.”). At this preliminary stage, the counties’ participation can make a meaningful difference not just in how transportation routes are actually operated but also in whether sufficiently safe transportation routes exist to justify operation of a repository at Yucca Mountain and, if so, in which transportation routes will be used.

CONCLUSION

We GRANT the petitions of Esmeralda and Inyo Counties. We VACATE the Secretary’s decision not to designate the counties affected units and REMAND the cases for further proceedings consistent with this opinion.