Bellotti v. United States Nuclear Regulatory Commission

Opinion for the Court filed by Circuit Judge BORK.

Dissenting opinion filed by Circuit Judge J. SKELLY WRIGHT.

BORK, Circuit Judge:

Before us for review is an order of the Nuclear Regulatory Commission (“NRC” or “Commission”) denying a petition by the Attorney General of the Commonwealth of Massachusetts to intervene in an NRC enforcement proceeding. The proceeding modified Boston Edison Company’s license to operate its Pilgrim Nuclear Power Station located in Plymouth, Massachusetts. The Attorney General, Francis X. Bellotti, claims a right of intervention and a hearing under section 189(a) of the Atomic Energy Act, 42 U.S.C. § 2239(a) (1976) (amended by Pub.L. No. 97-415, § 12, 96 Stat. 2067, 2073 (1983)). The crux of the dispute is the Commission’s authority under section 189(a) to define the scope of a proceeding. We conclude the Commission has that authority and that, as the proceeding was defined, Bellotti had no right to intervene.

On January 18, 1982, the NRC’s Office of Inspection and Enforcement issued to Boston Edison an Order Modifying License related to the Pilgrim station. The Order discussed serious deficiencies in Boston Edison’s management of the Pilgrim plant and amended Boston Edison’s license to require development of a plan for reappraisal and improvement of management functions. Concurrently, the NRC imposed civil penalties of $550,000 on the utility. Bellotti petitioned to intervene on February 17, 1982, proposing to address himself to the plant’s continued operation, the adequacy of Boston Edison’s reappraisal plan, the nature of necessary improvements at the plant and the adequacy of Boston Edison’s implementation of required changes. Joint Appendix (“J.A.”) at 32-33. After five months had passed without a Commission response to the petition, Attorney General Bellotti brought suit in the District Court for the District of Columbia to compel intervention. After the Commission issued its July 30, 1982 Order denying intervention, the suit in district court was voluntarily dismissed and Bellotti petitioned this court to review the Order of July 30.

Section 189(a) of the Atomic Energy Act provides:

(1) 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, and in any proceeding for the payment of compensation, an award or royalties under sections 2183/ 2187, 2236(c) or 2238 of this title, 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) (1976) (amended by Pub.L. No. 97-415, § 12, 96 Stat. 2067, 2073 (1983)). Petitioner contends that the statute clearly confers upon him a right of intervention since the section directs the Commission to hear “any person whose interest may. be affected by the proceeding.” Intervention is a right only of those affected by the proceeding; therefore, as the Commission points out, petitioner’s conclusion follows only if the statute also entitles petitioner to define the agenda and substance of the proceeding, since, if' section 189(a) does not do that, then the proceeding as defined by the Commission does not affect any interest of the petitioner. The first question, then, is whether’ petitioner or the Commission has authority to define the scope of the proceeding.

We have no doubt that, as a general matter, such authority must reside in the Commission.¹ To read the statute very broadly so that any proceeding necessarily implicates all issues that might be raised concerning the facility in question would deluge the Commission with intervenors and expand many proceedings into virtually interminable, free-ranging investigations. New formal proceedings would be scheduled, and the Commission’s substantive discretion to decide what is important enough to merit examination would be subverted by a procedural provision requiring the Commission to consider any issue any intervenor might raise. Such a reading of the statute is plainly untenable and cannot be what Congress intended.

This conclusion does not end the controversy, however, because petitioner .contends, in the alternative, that the Order of January 18, 1982, defined the proceeding in a way which clearly makes the Attorney General, as the legal representative of the people of his commonwealth, a “person whose interest may be affected” and hence entitled to intervention and a hearing. According to petitioner, the NRC’s attempt to limit the scope of the proceeding still further — to the question of whether the Order should be sustained — was contrary to the necessary import of the Order. See Brief for Petitioner at 17-19. Only at first glance does this seem a closer question than that already addressed. The Order directs Boston Edison to develop a plan for reappraisal and improvement of management functions. Petitioner claims that the content of this plan is necessarily an issue in the proceeding. Id. at 8. If that language makes the improvement of management the issue in the proceeding, petitioner is probably a person affected. However, the Commission claims to have defined the proceeding more narrowly. The development of the plan of action, according to the Commission, takes place outside the proceeding, so that the Attorney General would be an affected person only if he opposed issuance of the Order, which he does not.²

The Commission’s decision to limit the scope of the proceeding was not arbitrary. That decision was made pursuant to a Commission policy “directing agency resources toward the inspection rather than the adjudication process.” Brief for Respondents at 29; see Public Service Company of Indiana, 11 N.R.C. 438, 441-42 (1980). We have no reason to believe that this allocation of resources is irrational, and the policy through which the Commission has implemented it serves its purpose well. It should be noted that the issues petitioner seeks to litigate as within the scope of the Order — the plant’s continued operation, the adequacy of the reappraisal and its implementation, and the nature of necessary improvements at the plant — would result in a hearing virtually as lengthy and wide-ranging as if intervenors were allowed to specify the relevant issues themselves. Petitioner’s narrower claim turns out not to be so narrow and would place an unworkable burden on formal proceedings. Though petitioner intends no such result, the rule for which he contends is capable of turning focussed regulatory proceedings into amorphous public extravaganzas. Moreover, if at petitioner’s behest we sought to overturn this agency decision on regulatory priorities, it is by no means clear that we would achieve the result petitioner favors. Rather, we would more likely cause the Commission to be more circumspect in its drafting of orders and seek to accomplish some reforms informally. The dissenting opinion complains that such informal negotiations between the Commission staff and licensees are already too common. They would probably become more so if every new safety measure accomplished through license amendment opened the door to a free-wheeling examination of all possible discontents. If so, the net effect would be regulation less visible to the public. Either way, the efficacy of the regulatory process would be lessened.

We are reinforced in this view by an examination of the larger regulatory structure. Petitioner Bellotti is in no sense left without recourse by the NRC’s denial of intervention in the Boston Edison proceeding. Commission regulations provide for public petitions to modify a license, which may lead to license modification proceedings if the Commission finds that appropriate. 10 C.F.R. § 2.206 (1983). Moreover, Commission denials to institute proceedings under section 2.206 are subject to judicial review. Lorion v. NRC, 712 F.2d 1472, 1478-79 (D.C.Cir.1983), reh’g denied, No. 82-1132 (Sept. 22, 1983); County of Rockland v. NRC, 709 F.2d 766 (2d Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 485, 78 L.Ed.2d 681 (1983); Rockford League of Women Voters v. NRC, 679 F.2d 1218 (7th Cir.1982). The issues petitioner seeks to raise through intervention he may seek to raise by this alternative route. It is true that the Commission need not hold a hearing on the section 2.206 request, Lorion, 712 F.2d at 1475, and that the decision whether or not to begin proceedings is reviewable under deferential standards. But, given the fact that members of the public cannot be allowed to litigate before the Commission any and all issues that occur to them without demolishing the regulatory process, it is appropriate that the Commission be reviewed under an “arbitrary and capricious” standard. That ensures that only serious issues need be addressed.

Contrary to the views expressed in the dissenting opinion, our holding does not destroy the role of section 189(a). Indeed, our view of section 189(a), when coupled with the petition procedures under section 2.206, provides the functional equivalent to the dissent’s view of the proper reading of section 189(a). To the degree that there is a difference, it is that our reading provides for more orderly procedures and, perhaps, more rapid implementation of new safeguards. These points may be quickly made.

The Commission’s power to define the scope of a proceeding will lead to the denial of intervention only when the Commission amends a license to require additional or better safety measures. Then, one who, like petitioner Bellotti, wishes to litigate the need for still more safety measures, perhaps including the closing of the facility, will be remitted to section 2.206’s petition procedures. A petition is not a futile gesture, for the Commission may not deny it arbitrarily. If, on the other hand, the Commission proposes to amend a license to remove a restriction upon the licensee, the scope of the proceeding is defined by that proposal and section 189(a) permits public participation to oppose that relaxation. The upshot is that automatic participation at a hearing may be denied only when the Commission is seeking to make a facility’s operation safer. Public participation is automatic with respect to all Commission actions that are potentially harmful to the public health and welfare. Thus, our holding today does not, contrary to the dissent’s belief, “end all public participation with respect to nuclear licensing issues of public concern.” Dissenting op., at 1385.

Indeed, because it recognizes the need to prevent section 189(a) from producing unstructured and almost interminable hearings on any issue some member of the public may wish to litigate, the dissent introduces procedural limitations that would have much the same effect upon public participation as does our decision. The dissent points out that the Commission has authority to structure and control section 189(a) proceedings. This means that issues some member or representative of the public wishes to litigate may be ruled out. Should such a ruling be appealed, the court would surely apply an “arbitrary and capricious” standard, just as it would if the same person appealed from a denial of a petition under section 2.206. The results for public participation would appear to be quite similar if not the same. The difference would be that one system would delay an ongoing proceeding to impose new safety requirements while the view we espouse would not.

In this case petitioner is not affected by the proceeding as the Commission has limited it, and so he is not entitled to intervene pursuant to section 189(a). Accordingly, the decision under review is

Affirmed.

1 . The Commission would have us sustain its position on the basis of BPI v. Atomic Energy Commission, 502 F.2d 424, 428 (D.C.Cir.1974), wherein we held it not unreasonable under section 189(a) "for the Commission to require that the prospective intervenor first specify the basis for his request for a hearing.” BPI provides at best tangential support for the Commission’s position and it certainly does not conclude the issue.

2 . The Order Modifying License provides that the issue at any hearing held pursuant to it shall be ”[w]hether, on the basis of the matters set forth in Sections II and III of this Order, this Order should be sustained.” J.A. at 13. As respondents interpret it, this language limits possible intervenors to those who think the Order should not be sustained, thereby precluding from intervention persons such as petitioner who do not object to the Order but might seek further corrective measures.