Public Citizen v. Nuclear Regulatory Commission and the United States of America, Nuclear Utility Management and Resources Council, Intervenor

affirm an that we cannot it is axiomatic any grounds on

agency’s decision upon acted. than those 80, 87, Chenery, v. e.g., SEC (1943); Res- L.Ed. 626 FCC, Co-op Tele. ervation (D.C.Cir.1987). plain language of the By blurring the (in ambiguous by issuing an part statute regulation) applying its permits, the broadly more than the statute 1804(a) an uncertain gives FAA section failing to scope time find while at same clearly re- party one that was liable the sponsible transportation of for the intended As FAA’s chemicals Bolivia. NL exceeds the imposing liability order Act, grant scope of I would permissible and reverse the review FAA’s decision. CITIZEN, al., Petitioners,

PUBLIC et NUCLEAR REGULATORY COMMIS- States

SION United America, Respondents, Utility Management and Nuclear Council, Resources Intervenor. No. 89-1017. Appeals, States Court of United District Columbia Circuit. Argued March 1990. April Decided 1990. Rehearing En Banc Denied June Glitzenstein,

Eric R. with whom Diane Curran, and Alan B. Mor- David C. Vladeck D.C., brief, rison, Washington, were on the petitioners. Cordes, Jr., Atty., Regu- John F. Nuclear Com’n, latory with whom Par- William C. ler, Counsel, Slaggie, Sp. Gen. E. Leo Coun- sel, Com’n, Regulatory Nuclear Edward Bryson, Attys., Dept, Shawaker and John Justice, brief, respon- were dents. Briggs, H. Jr. and Karla D.

William Smith, Com’n, Attys., Regulatory Nuclear Shilton, Atty., Dept, and David C. of Jus- tice, D.C., Washington, ap- also entered pearances, respondents. Boese,

John T. with whom Marcus A. Rowden, D.C., Washington, was on the brief, for intervenor. WALD, Judge,

Before Chief

EDWARDS, Judges. MIKVA and Circuit

Opinion for the Court filed Chief Judge WALD.

WALD, Judge: Chief question presented Regulatory United States Nuclear Commis- promulgate mandatory sion must instruc- requirements tional train- ing programs of civiliannuclear licensees, or whether the Commission simply “Policy Statement” that issue en- courages, compel, but does licensees to fore, although that meet criteria Statement set training programs create being forth five elements as “essential to Statement. identified 11,- acceptable training programs,” id. at Congress has ordered the Com- hold that mandatorily require it did not train- prescribe criteria to which mission to training programs satisfy licensees’ these Accordingly, ing programs must adhere. although Similarly, Policy elements. the so, failed to do the Commission has since encouraged Statement all licensees to have proceed- for further we remand the case training programs their accredited the ings. Operations, Institute of Nuclear Power the self-regulatory industry’s body, it did not Background I. actually mandatory. make accreditation Mile In an accident at the Three The Commission stated that it would “eval- Pennsylvania nuclear Island possible uate the need for further NRC presidential A commis- the nation. shocked industry action based on the success of inade- subsequently announced sion two-year programs period.” after a Id. at training employees at nuclear quate 11,147. significantly to powerplants contributed 1986, petitioner peti- In Public Citizen posed by plants. the such Keme- risks See binding reg- tioned the to issue Commission Commission, ny Report of the President’s First, regarding training. ulations it asked at Three Mile on the Accident Commission rulemaking respect the NRC for (1979). In enacted Island training, among claiming things Policy 306 of the Nuclear Waste Act of § Policy the Statement was insufficient to [sic], U.S.C. § satisfy obligations the Commission’s under part, vides in relevant petition 306. While its before the Com- Regulatory The Nuclear Commission pending, sought mission was Public Citizen promulgate and directed to authorized review this court of the Commission’s regulations, appropriate or other Com- regulations. failure to issue While the law- guidance, regulatory mission for pending, the suit was Commission denied training qualifications nu- of civilian rulemaking petition. Public Citizen's powerplant operators, supervisors, clear Fed.Reg. 3121 Public did Citizen technicians, appropriate oper- and other denial, per- not seek court review of that regulations ating personnel. Such or haps already pend- because it had a lawsuit guidance shall establish ... instructional ing concerning the Commission’s actions. requirements power- for civilian nuclear however, court, pending dismissed the plant training pro- licensee having action as been filed too late chal- grams. regu- or other Such lenge Policy State- latory guidance promulgated shall be early petition ment and too to be a for pe- the 12-month the Commission within review of the denial Public Citizen’s following January 7, riod 1983[.] rulemaking. Public Citizen (D.C.Cir.1988). NRC, 845 F.2d 1105 Public Regulatory the Nuclear Com- efforts 1986 thus came to Citizen’s “Commission”) (“NRC” purport- mission naught. responsibilities under ed to fulfill its Policy by promulgating the “Commission Then, in the Commission revisited Training Qualification of Statement promised, it re- issue. As Personnel,” Nuclear Power Plant 50 Fed. industry’s satisfy efforts viewed 11,147 (1985) Statement”). Reg. (“Policy Policy training goals outlined State- noted that the indus- ment, they Statement and concluded that were work- try’s self-regulatory efforts had made ing. Accordingly, the decided Commission progress improving training programs. making again to refrain from rules once Accordingly, training, republished made a tem- and instead regarding engage minor porary decision not to in rulemak- with some Statement 46,603 (1988). industry Fed.Reg. ing, the success of amendments. 53 but to monitor action, (collective- two-year period. There- From this programs over a Citizen”) though peti- explicitly, its renewed adher as “Public referred ly substantively reviewable.” ence is Associ review. tioned ICC, ation American Railroads v. (D.C.Cir.1988). have, F.2d II. Timeliness instance, inferred that an has reopened previously decided issue in a the merits of Pub we reach Before (1) proposed where the case challenge, must decide lic Citizen’s change policies, make some in its rules or timely. peti Public Citizen’s it is only comments on new or called for arising under either be viewed tion changed provisions, but at the same time Act of the Hobbs provisions review (3) explained unchanged, republished Act, Nuclear Waste those portions, responded at to least one days, of 60 and 180 deadlines which set previously comment aimed at the decided review of NRC action. respectively, E.P.A., issue. State v. U.S. Ohio of 2342(4), 2344; 42 U.S.C. (D.C.Cir.1988). 28 U.S.C. §§ See F.2d The lan Citizen filed its 10139(c). guage appeared sug Public to State Ohio gest period that the time for review would days publication within for review any meeting start afresh in case the four in Policy Statement but the revised (and, just fortiori, in a factors stated the intervenors claim that the NRC 1, 3, meeting case factors and in not filed within 60 or 180 untimely as agency which the called for comments on promulgation of the NRC’s days of the rule, including unchanged por the whole They Statement in 1985. original tions). Nonetheless, recently more Ameri Public Citizen’s contention accept do E.P.A., can Iron & Steel Institute U.S. temporary first issued Poli the NRC that (D.C.Cir.1989),placed 886 F.2d 390 some 1985, and then in cy Statement general principle. limits on that The court training entire issue and reconsidered ‘reopening’ there said that rule of “[t]he policy perma its interim make to decided bootstrap Ohio v. EPA is not a license for Rather, NRC and intervenors claim nent. procedures by can com made its final and the Commission actually ment on matters other than those decision 1985 not to issue permanent issue, goad agency reply, at an into a and, regulations, made mandatory grounds agency then sue on the poli to that amendments basic only minor re-opened has the issue.” 886 F.2d at 398. actions, they cy. The Commission’s therefore, appears, It the crucial render the earlier decision did not argue, question juncture at this is whether an mandatory regulations subject not to issue issue, agency reopened has in fact an ex- challenge. According to the to new court plicitly implicitly; or the four factors men- intervenors, and the Public Citizen NRC tioned in are indeed State Ohio relevant challenge only the noncontrover can now reopening, evidence of but the court cannot 1988 amendments. sial stop there. It must look to the entire con- rulemaking including text of the all rele- cases, recent this court In several has proposals agency vant and reactions of the problem of whether with an wrestled to an issue determine whether was fact of an existing restatement rule agency’s or reopened. proposing agen- If in rule the rulemaking in a format makes the policy cy language reasonably uses anew, policy challengeable or rule even por- to comment on read as an invitation by barred a statutory otherwise time where explicitly agency propose tions the does not The court has held that where an limit. change, responding to if in to comments actions show agency’s that it has not mere- language uses shows that republished an existing ly rule in order to issue, it did in a renewed fact reconsider it, minor changes propose but has recon- challenge underlying policy rule the rule and keep sidered decided it in Compare will be 886 F.2d at 398 allowed. effect, challenges to the rule in order. are attempt (agency did not make sustained general if the principle explain responded com- old rule and “[T]he [is] anew, reiterating briefly even ments at most opened up issue has reopened) Fed.Reg. March 1987.” 52 prior reasoning; issue not at 3124- American Railroads Association of (4)The Commission’s 1988 statement

ICC, (agency language at 1473 two-year peri- said that evaluation “[t]he ambiguous, proposing because in but 20, 1987,” ended od March that “the attempt rule it had said it would to “har- staff evaluated the results of the INPO decisions, existing monize” a commenter program,” accreditation and that “the compelling who offered a reason to aban- program NRC concludes that ef- presumably don old decision would have 46,604. Fed.Reg. fective.” 53 at heeded; reopened). issue been light statements, of these we cannot but case, present fortunately In the there is Commission, conclude that the re- precise quan- quibble reexamined, no need to about the opened, and reaffirmed its 1985 decision to use exhortation rather tum to show that the of evidence sufficient binding regulations improve than reopened prior NRC decision not to is- powerplant personnel. The evi- training regulations. Though the sue Com- reopening dence of is in stronger fact much mission now claims that it never reexam- required cases, prior than our decision, petition- ined its 1985 and that the merely implicitly Commission did not reex- may challenge only ers therefore the minor choice; amine its former explicitly. it did so amendments made in 1988 to the Commis- This reconsideration makes decision Statement, sion’s 1985 the record subject challenge. to renewed us could not clearer that before be argument, At oral the Commission of- represented 1985 a action why fered a different reason the decision to temporary engage decision not to in rule- issue challengea- should not be standards, making mandatory training ble. The argued that its 1985 that 1988 action reexamined this represented action its final and unreconsid- permanent. choice and made it We cite ered decision on the of not issu- lawfulness just many a here few of the indications ing binding regulations; the 1988 action the wisdom of that deci- only that this is so: reconsidered Thus, sion. even if may (1) The 1985 Statement said that now raise claims directed at the wisdom of the NRC would “refrain from new rule- failing (for mandatory regulations to issue making training the area of for a example, that such action arbitrary period years,” minimum of two and that capricious), they may not claim that possible it would “evaluate the need for contrary action is to law. further NRC action based on the success reject argument. this In the first industry programs two-year after a place, light quoted of its statements period.” 11,147. Fed.Reg. 50 at above, we think the Commission’s charac (2) 1987, peti- after Public Citizen of its terization 1985 actions as a final rulemaking, tioned the NRC for the Com- legality issuing decision on the of not train mission in a stated letter to Public Citi- ing requirements spoke is doubtful. It two-year period “withholding] zen that evaluation then in terms of action ... during period,” a short evaluation a deci “expire” in early Supple- would 1987. hardly legal sion which raises the same Appendix mental question as a final decision not to issue Register In a Federal statement ex- training requirements. But even if we ac plaining the denial of Public Citizen’s cepted premise it had NRC’s that made rulemaking petition, the Commission legality a decision on the final of not issu stated, Commission decided “[t]he [in 1985, ing mandatory regulations back in it promulgating to withhold action on 1985] challenge still would not render the current training qualifications regula- new Environmental De untimely. We held during period.”

tions a short evaluation EPA, (D.C.Cir. Fund v. 852 F.2d 1316 fense — The Commission also that it noted would denied, 1988), U.S.-, cert. S.Ct. 1120, (1989), the entire “revisit issue around 103 L.Ed.2d 183 that depend[s]”), agency action under review the later “necessarily agency’s action an that extent 1025, denied, 444 U.S. t. an earlier of whether question raises” the cer (1980). 62 L.Ed.2d lawful, S.Ct. review of the earlier action was is not time-barred. lawfulness action Furthermore, holding sup our Batavia, 1325; Cities see also Id. at long-standing rule ported by this circuit’s FERC, 672 F.2d 72 n. Naperville, etc. period although statutory review (“While (D.C.Cir.1982) from time within which a permanently limits the be filed after the cannot agency order an agency that an action petitioner may claim run, filing may has statutory period for defective, procedurally a claim might have issues that some be violative of statute action was appeal are so inextrica- in that been raised statutory limitations raised outside a subsequent agency opinion bly linked to a by filing petition for amendment period, case, same aspect of the on another regulations, agency’s or rescission timely may be raised in a issues those petition. challenging the denial of opinion.”) (empha- the second appeal from FLRA, 834 F.2d e.g., NLRB Union v. original). sis (D.C.Cir.1987); Natural Re NRC, F.2d case, agency has reconsidered sources Council In this Defense (D.C.Cir.1981); FCC, 595, 601-02 Getter v. original policy. Such ac and reinstated (D.C.Cir.1979); Func think, necessarily tion, raises the law FCC, 274 F.2d policy, agencies tional Music v. original fulness of (D.C.Cir.1958), denied, cert. duty to insure that everpresent have 50, 4 L.Ed.2d 60 Were we An are lawful. their actions to hold this case that Public Citizen’s that at a time when hardly heard challenge to the lawfulness of the NRC’s considering whether to take a cer it was untimely, could action, steadfastly ig action was Public Citizen it would have tain rulemaking petition and then showing that the ac file a commenter’s nored the raise its claim of unlawfulness when unlawful. Association tion was Cf. Railroads, petition.1 denied the Such 846 F.2d at 1473. Commission American every challenge requirement would be a waste of think that a to law therefore time We believe the timely. one’s and resources.2 fulness is now See National Ass ’n agency law to be that where an reiterates a Publishers v. Greeting Card United Service, 392, way policy n. rule or in such a as to render 607 F.2d 425 Postal States (court (D.C.Cir.1979) may “pri- subject examine to renewed chal policy 59 rule or the validity of on which grounds, action a coor- agency any substantive lenge on protestant, 1. We have that "a said paragraph who could statement came at the end of a review, may have but did not seek clearly not create the procedural drew the distinction between by unilaterally peti basis for a reviewable order tioning challenges, and substantive and which stated repeal regula or amendment of a regulations that "we have scrutinized immune Clark, 740, tion.” State Montana v. 749 F.2d by reviewing from direct review the denial of a (D.C.Cir.1984), denied, 919, 744 cert. 474 U.S. subsequent rulemaking petition which chal- 246, However, L.Ed.2d 255 lenged grounds on demonstrable statement, as a footnote to that we added that invalidity." (emphasis orig- of substantive Id. petitioner challenges "where ... the substan Indeed, inal). although rejected the court rule, validity prior tive of a failure to exercise a untimely petitioners’ procedural challenge opportunity challenge regulation to ordi issue, to the rule at it went on to reach the narily preclude will not review.” Id. at 744 n. 8. petitioners’ merits challenge, of the substantive original). (emphasis in The State Montana 603-06, although challenge equal- id. at was language therefore reflects our well-established ly statutory equally outside the deadline and procedural challenge agency rule that a ac grounds previously peti- based on known to the brought statutory tion must be within the re Therefore, tioners. the NRDCstatement as well period view or be forever barred. clearly applies only procedural challenges. NRC, Natural Resources Council v. Defense (D.C.Cir.1981) general policy has also practice been cited 2. The in federal proposition that "those who have had the cedure is to consolidate related claims between opportunity challenge general parties e.g., rules should two into one action. Fed.R. 13, rules); complain later be (joinder heard to of their invalidi- Civ.P. Mine Workers v. ty Gibbs, grounds 1130, fully on known to them at the time S.Ct. 16 L.Ed.2d However, (1966) (pendent jurisdiction). their issuance.” Id. at 602. While we policy is rule or challenge that the agencies dinate ment that promptly give notice of untimely not be held their final contrary publication, to law will orders service or statutory peri- U.S.C. and the review of a limited Administrative because Procedure provision Act’s person that no od.3 adversely affected a matter un to show effort a last-ditch required published to be in the Federal as claims that timeliness, the Commission Register and not published, so 5 U.S.C. not to decision a renewed suming it made 552(a)(1). Potential cannot be that decision regulations, promulgate expected squirrel through the Commis- 1987, when, in a but not made public sion’s document room in search of pub “made available that was paper papers that might agency reflect final ac- room,” document public in the NRC lic tion.4 at the Commis Respondents Brief for Accordingly, we find petition for re- recommendation a staff approved sion timely. view to be rulemaking. Accord to defer it continue claims, timeli ingly, the Commission III. Merits for review should ness of merits, question the crucial On the the 1987 date. from measured discre us is one of the Commission’s before frivolous. argument borders regulatory phi pursue preferred tion to lati Although an has “considerable The NRC has decided that losophy. triggers determining the event that tude in powerplant way get civilian nuclear best peri judicial review commencement pow- improve training their licensees to od,” Distributors Associated Gas impose mandatory re erplants is not to (D.C.Cir.1984), FERC, 738 F.2d them, upon rather to create quirements but reasonably, Mow it must do so Southland training code” in effect a “model what is Prod States Consumer er Co. United operators, urge and to Commission, 600 F.2d Safety uct code. voluntarily comply with this licensees Cir.1979), (5th bearing mind course, agency is free not Normally, of an reasonably can be “[bjefore any litigant powers if it compulsory to exercise present petition for review of expected to would be suffi simple thinks exhortation rule, put he first must be on fair regulatory mission. cient to achieve question applicable the rule in is notice that question at issue is whether precise The Industry him.” Vehicle Recreational from the this discretion Congress removed 562, (D.C.Cir. EPA, 653 F.2d Ass’n v. by passing 306. NRC § 1981). place do not see how the mere We resolving the difference between agency’s public in ment of a decision interpretations of 306 offered the the § announcement, files, any without other can Commission, ap and the we review, particu running the clock start U.S.A., require- ply laid down in the rules Chevron larly in view of the Hobbs Act’s not, course, Furthermore, ignore jurisdictional question could a bar- the in documents here 4. judicial economy, Finley rier in the name of see anything do not read like a final order. — States, -, 2003, v. United 2010, U.S. SECY-87-121, 109 S.Ct. reprinted Appendix in Joint (1989) (policy 104 L.Ed.2d 593 of Gibbs 69-74, (“J.A.”) approved by the staff document bringing parties does not extend to new into a Commission, the recommends that the Commis- case), economy prop- we think considerations of rulemaking, sion continue defer but also rec- erly reinforce our decision that the NRC's re- ommends that the Commission direct the staff policy necessarily statement of its the raises industry implementation to continue to evaluate lawfulness, policy’s bring issue of the so as to Policy Statement and to revise the unquestioned jurisdiction that issue within our hardly Statement. J.A. 74. This is the stuff of agency’s to review the most recent action. made; indeed, orders are final the Com- may not to that there 3. This is not be some approval mission’s of the staff recommenda- challenge, judicata, other bar to the such as res tions demonstrates that it was still in the estoppel, collateral or failure to exhaust admin- reconsidering cess of Statement. We remedies, and stare decisis make istrative such a ing statutory challenge a doubt whether challenge unlikely to succeed. hold- Our approval of SECY-87-121 would even have been only imposed by relates to the limitations jurisdiction review within our final case, period. review In this no other orders. applies. limitation “regulatory 837, 2778, appropriate other NRDC, tions or 467 U.S. 104 S.Ct. Inc. v. of the term Congress’ use guidance.” First, must de we L.Ed.2d 694 keeps this case in 306 is what “guidance” § directly spo Congress has cide “whether cer- give “guidance” being trivial. To from Id. question at issue.” precise ken to the mean, ordinary parlance, to tainly determining 2781. In at 104 S.Ct. at advice, term is suggestions. The give must look to Congress, we intent of of manda- with the notion not inconsistent issue, at statutory language particular “the is it inconsist- tory regulations, but neither design of the language and well as the hortatory, than a manda- rather ent with whole,” Corp. K Mart v. Car as a statute regime. tory, administrative tier, Inc., 108 S.Ct. section, course, simply The does (1988),and we must 100 L.Ed.2d “regula- requires require “guidance”; it statutory con employ traditional tools However, we do not be- tory guidance.” leg struction, appropriate, including, where “regulatory” clarifies the lieve the modifier De history. v. United States Ohio islative “guidance.” in the word ambiguity Interior, 880 F.2d

partment a well- “regulatory guidance” is not term Indeed, ap- term of art. (D.C.Cir.1989). If the intent of Con established § pears to have been the first section clear, give it effect. 467 must gress is term, States Code to use entire United (“Chevron 842-43, 104 at 2781 S.Ct. U.S. at reveals that computer-assisted search however, one”). If, is si the statute step “regu- the term apart from its use § issue, we ambiguous particular on a lent or appears just two latory guidance” now agency’s interpretation must defer place The first places the Code. reasonable and con if of the statute 2641(a)(1), “findings 15 U.S.C. § statutory purpose. Id. at with the sistent Hazard purpose” section of the Asbestos (“Chevron 844-45, at 2782-83 (AHERA). Emergency Response Act Sec- therefore, two”). by inquir begin, step 2641(a)(1) notes that because of tion Congress made its intent on ing whether regulatory guidance” from “lack of us clear 306. question before § EPA, have not undertaken some schools response problem action to the of asbestos. Language of A. The § requires the Admin- The AHERA therefore promulgate regula- of the EPA to istrator earlier, face, 306, quoted itsOn establishing procedures for determin- tions for NRC sets out four essential conditions present in school ing asbestos is its mandate: compliance with requiring the buildings defining The NRC’s action must take form appropriate response ac- implementation of appropriate or other tions. regulatory guidance; ap- term place in which the The other (2) action must in- The NRC’s establish 1234b(c), of a section pears is in 20 U.S.C. § nu- requirements for civilian structional of Educational Assessment the National licensee train- clear section Improvement Act. The Progress ing programs; ability of the United States with the deals (3) promul- improperly The NRC’s action must be funds education to recover The section by and localities. spent states gated; and misspent funds recovery of provides that promul- The NRC’s action must be mitigating if are reduced there shall be gated January 12 months within of mitigating circum- circumstances; the term only narrowly to include defined stances key phrases pur- for our The two § situations, the state or such as when a few poses “regulatory guidance” and “es- are reasonably relies on locality actually and requirements.” provided by the guidance tablish ... instructional written erroneous 1234b(b)(2). of Education. Department § 1. “Regulatory Guidance" saying that by concludes “[t]he The section Section compel Secretary 306 does not periodically shall review the writ- NRC to promulgate regulations; guidance requires requests ten for submitted under regula- ance,” new the need for to determine is a familiar one. Numerous stat- this section guid- regulatory or other supplementary utes instruct an to establish re- programs.” applicable ance under quirements, always and almost in a context 1234b(c). § requirements that makes clear that instance, mandatory. must be For “reg- concluding distinction between suggests guidance ulatory” provides “other” U.S.C. coal § “[e]ach guidance guidance regulatory provided mine shall suitable fire- provision seems regulations. This by vided fighting equipment.... Secretary The [of decide, on the Secretary to based to tell the require- shall establish minimum Labor] received, guidance requests of for volume type, quality, quantity ments for the point could best be particular equipment.” hardly such One would sur- general regu- of a resolved the issuance language Congress mise from this curing of the the AHERA’s lation. Like Secretary merely wanted the to exhort coal by requiring regulatory guidance” “lack of operators mine minimally to have suitable binding regulations, this the creation of hand; indeed, firefighting equipment on “regula- suggests that provision therefore 861(b) provides pur- U.S.C. § “[t]he suggestion, tory guidance” is not a mere pose subchapter provide of this tois binding regula- in a guidance provided but application immediate mandatory safety tion. Similarly, U.S.C. standards[.]” § However, think these two us- we do not provides Secretary that “[t]he [of State] which, (both of incidental- ages of the term foreign shall language proficiency establish 306) ly, after the enactment of es- came § requirements for members of the Service meaning for the somewhat tablish a clear assigned are to who abroad.... The optional heavily flavor arcane term. Secretary arrange shall appro- State suggests “reg- “guidance” of the word priate language training of members guid- ulatory guidance” could also mean Service in order to in meeting ... -assist is, regulatory agency; that ance from a requirements.” Clearly, the re- the[se] voluntary suggestions very sort of set of met; quirements must be one could not promulgated here. Ac- that the NRC has picture Secretary merely exhorting his only if cordingly, 306 said NRC § regulations or required promulgate necessary own to learn for- subordinates guidance appropriate regulatory con- eign languages. Numerous other exam- training, cerning plant personnel we would See, ples e.g., could be cited. 15 U.S.C. ambiguous hold that it was as Chevron 78o(c)(3)(SEC regulation shall rule or § step matter. one responsibility minimum financial establish requirements dealers); 42 for brokers and Instructional Re- 2. “Establish ... (EPA promulgate regu- U.S.C. 6922 shall § ” quirements establishing standards lations which shall requirements generators establish However, “regulations or oth- apart from regulatory guidance,” waste). appropriate very hazardous uses dif- er another, clearer indication Con- provides language instructing agen- ferent when decrees that the The statute gress’ intent. cy nonmandatory guidance. to establish be, they guidance, whatever 6962(e) (EPA e.g., U.S.C. shall require- instructional “establish ... must prepare guidelines procuring agencies powerplant nuclear licen- for civilian ments prac- which shall “set forth recommended programs” (empha- personnel see purchasing recycled goods). tices” for added). un- “requirements,” The word sis clearly suggests “guidance,” Thus, Congress like the word when commanded the Certainly common mandatory regime. NRC to ... instructional “establish something “requirement” means parlance requirements,” statutory it used a common merely suggested. not compelled, formula and so must have intended to clear, invoke the formula’s well-understood congressional com- important, the More meaning. unlike requirements,” Chaney, Heckler v. mand to “establish Cf. 821, 835, 1649, “regulatory guid- 84 L.Ed.2d give to command already clear: provided that those of the bill makes that Con- (although statute provisions gress to develop commanded the NRC man- its substantive who violate fined,” requirements. datory The remarks also this imprisoned ... “shall strongly suggest are in criminal that we correct commonly found language is reading the ambiguous “regulatory term enforcing does not divest and statutes guidance” meaning as some form of discretion). A man- call of enforcement instruction, datory at least context of regu- that the assumes “requirements” for statute. this community required will to follow lated

training dictates. Arguments C. NRC urges interpret History The NRC that we Legislative B. phrase require- “establish ... instructional supports history also our legislative The light “regulatory ments” in the term of statutory text. Lo- Senator reading of term, guidance.” Since the latter accord- Weicker, stated the author of well § Commission, ing clearly provides to the Regula- Nuclear “require[s] that it that the Commission need not issue manda- the next 12

tory Commission—within tory regulations, “requirements” the term develop regula- to proceed months— firm ordinary meaning. cannot have its We dis- requalifi- proper training and tions however, agree, for two reasons. operators, su- nuclear cation of technicians, appropri- First, pervisors, and other even if we assumed that the term 32,- Cong.Rec. “regulatory guidance” plant personnel.” unambiguously ate re- added). (1982) (emphasis Senator to a set nonmandatory sugges- ferred of tions, to was agree that there we would Weicker went not Commis- immediately “under- the NRC to could satisfy obligations need for sion under regula- by simply issuing suggestions. take the effort establish such § firm [operator] train- guidelines regulatory guidance The issuance of tions and would added), (emphasis satisfy only id. ing programs,” one of the Commission’s four ’ large plant obligations in view of number clear under second § personnel over the unequivocally that would be hired next sentence shows that decade, folly would be to enter “it this whatever regulatory is, period intensive recruitment without guidance must establish instructional outlin- guidelines requirements, nonmandatory sugges- strict these are to be trained.” ing how tions fail do gives this. When added). 32,544 (emphasis orders, Senator its marching Id. at the agency clearly obey them, Weicker’s statements show he all merely must some. compel the NRC to intended the section to The NRC cannot claim to fulfill its obli- mandatory oper- requirements for gations by issuing establish under regulatory training programs. guidance guidance unless regulatory ator requirements. establishes instructional course, single legis of a remarks Of controlling Second, bill regarding a are not as lator we do not believe that term interpretation. e.g., “regulatory guidance” points United unerringly (D.C. nonmandatory suggestions. States v. a set of Rath- McGoff case, however, Cir.1987).5 In this the re er, previously, discussed we find that simply marks Its language ambiguous. usage reinforce what the term itself to be argue give colloquies publication Sen that we should ments the Con- 5. The 32,944 weight gressional Cong.Rec. than statements more Record. See ator Weicker’s receive, usually process, according manager legislator's be single statements House, equivalent surrounding represented "the full the unusual circumstances cause of Inasmuch, ap report." of a conference ever, Id. how- § 306: the section the enactment pended meaning the Nuclear Waste Act on the as we hold that the section session, legislative day and is clear of the since itself and that Senator Weicker’s state- last committee, merely meaning, go no time for it to to the ments unnecessary reinforce that find there was they managers to in the houses of consider should bill’s two usually weight negotiated and estab receive more that accorded text of the section than the submitting player. by key legislative legislative history state- to statements lished a suggests equally other statutes that an by vigorous oversight and an en- backed meaning plausible is some form of manda- policy whereby forcement or- enforceable tory regulatory agency. from a instruction ders or license conditions would issue if course, training qualification when a statute that is entrusted deficiencies were Of promulgating found to exist to to an administrative contains an amount[s] ‘requirements’ as the term used in sec- term, ambiguous generally it is tion 306.” Id. at 30. court, agency, rather than for this to inter- term, pret that within the bounds of reason simply alleged not do see how these consistently the purpose. with statute’s characteristics of the current enforcement case, described, regime, accurately But in this the the even if NRC has taken satis- fy congressional the command to establish impermissible step plucking ambigu- the training “requirements.” The Commission statute, ous term out of its context in the regulation, policy concedes that “unlike a vacuum, interpreting it in a and then twist- ‘binding statement is not a norm’ that is ing meaning unambiguous the of the term immediately enforceable when its terms are interpretation in the statute to fit its argu- violated.” Id. at 31 n. 22. At oral ambiguous going one. This is about statu- ment, the Commission’s counsel conceded tory interpretation backwards. When a further that the failure of a licensee to ambig- statute contains a clear term and an suggestions follow the contained in the Pol- term, ambiguous uous the term must be icy Statement could not itself be the basis interpreted light one, of the clear not against for an enforcement action the licen- vice-versa. see; obliged the Commission would be The in deciding NRC therefore erred that plant show that the licensee’s was unsafe “requirements” the term ambiguous as that term is defined statute and the light reading Thus, of its of the term “regulatory regulations. NRC’s enforceable Rather, guidance.” the that the clear when Commission claims “enforce- command orders or license conditions able would is- that the NRC establish instructional re- training qualification sue if deficiencies quirements suggests ambiguous exist,” it were found to cannot mean that “regulatory guidance” term should be con- sufficiency would mea- be principle strued accordance with the Policy sured Statement. The Com- ejusdem generis: “regulatory guid- since mission, course, always take action general ance” is a term coupled that is against general power a licensee under its specific (“regulations”), one it should powerplants safely oper- to insure that are meaning take its the specific from term. ated, Policy Statement adds noth- but is, regulatory guidance Whatever it must ing arsenal of enforce- to the Commission’s share the quality regulations; crucial powers; Policy ment since the Statement is is, mandatory. it must be rule, Commission,in not an enforceable action, any obliged would be enforcement argues Commission also that its support policy by reference to other Policy Statement establishes what amount just Policy if the authorities Statement requirements, practicali view of the did not exist. Electric See Gas & Pacific ties of the relationship between the NRC FPC, (D.C.Cir.1974). Co. regulated community of nuclear Therefore, while it well be that most licensees. The Commission comply or even all licensees with the claims that its policy “require[s] statement voluntarily, compli- Statement develop personnel licensees to training pro requirement ance is a is to mock word grams or, guidelines they if “requirement.” [meet] contemplated any significant changes or might perhaps argu- The Commission delay, prepared justify their actions ing process issuing whole to the NRC or face NRC enforcement ac Statement, monitoring industry’s tion.” Brief Respondents at 31. The compliance, imposing enforceable con- argues “setting out clear comply, ditions on licensees that do guidelines training programs pol establishing requirements amounts to with- icy statement documents, is, related meaning of 306. That Com- further saying case to the Commission for that it estab- might be mission continuing process by a requirements ceedings opinion. with

lish consistent this case-by-case impositions of includes It is so ordered. particular licensees. If requirements on saying, how- the Commission this is what sure, Suggestions Rehearing En Banc ever, Normally, to be it not do. On will discretion to agency has considerable Judge of A statement Circuit by adjudication rather than establish norms WILLIAMS, Judges SIL joined Circuit Aerospace NLRB v. Bell by rulemaking. BERMAN, and SEN D.H. GINSBURG 267, 294, 1757, 1771, Co., S.Ct. 416 U.S. TELLE, is attached. (1974); Chenery v. SEC 40 L.Ed.2d WILLIAMS, concurring 194, 203, 1575, Judge, Circuit 67 S.Ct. Corp., U.S. (1947). suggestions rehearing Section denial 91 L.Ed. however, Commission directs here a statute en banc: The Court takes regulations regulatory “promulgate” directing “promulgate the Commission to immediately suggests rule- guidance, which regulations [, appropriate or other Commis- adjudication, goes making than rather pur- regulatory guidance]” for various sion guidance poses, something quite differ- produces promulgated “within the 12-month must be ent, completely of lan- shorn the bracketed January This period following” 1983. banc, I guage. rehearing call for en would clearly policy inconsistent deadline and, per- appears unique but the statute requirements process establishing by a of haps more me important, seems to not adjudication. thing case-by-case of beyond agency expertise reach must itself estab- promulgates “regulations” preserve devise most if requirements. State- lish flexibility all of the Commission fails ment to do. and, think, I sought correctly law- believes Finally, and the inter- the Commission agencies Certainly ful. have done so. imposi- argue venor Commission’s Lines, e.g., Motor Boyce Inc. Unit- mandatory requirements will make tion of States, ed safe, industry be- power the nuclear less L.Ed. 367 industry’s self- cause it will choke off the efforts; regard regulatory licensees will requirements a maxi- appro- rather than a minimum level of

mum training. thought Whatever priate we argument, would have the merits of this we disregard authority to the means that no objec- Congress has chosen achieve improved training. The Commission tive WILLIAMS, al., Appellants R. et argument David industry must take this and the not to the Congress, courts.

IV. Conclusion MORDKOFSKY, et al. Harold language history We believe the No. 89-7133. clearly support petitioners' claim actions have not sat- that the Commission’s Appeals, United Court States obligations that section. isfied its under District of Columbia Circuit. hold, one, step under Chevron Congress passing 306 is intent Argued Feb. 1990. clear, must and that the Commission follow April 17, Decided the NRC to it. Because directed requirements mandatory for civilian create

nuclear licensee the Com- programs, because so, to do remand the mission failed has

Case Details

Case Name: Public Citizen v. Nuclear Regulatory Commission and the United States of America, Nuclear Utility Management and Resources Council, Intervenor

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 15, 1990

Citation: 901 F.2d 147

Docket Number: 89-1017

Court Abbreviation: D.C. Cir.