BOWNES, Circuit Judge.
Petitioner, the Commonwealth of Massachusetts, requests that we set aside three actions taken by the respondents, the United States and the United States Nuclear Regulatory Commission (collectively, NRC or Commission), with respect to the operation of Pilgrim Nuclear Power Station (Pilgrim) by the Boston Edison Company (Edison), which is an intervenor in this action. NRC and Edison moved to dismiss the petition on jurisdictional grounds. For the reasons set forth below, we deny the petition; we do not dismiss it on jurisdictional grounds.
In 1972, Edison was issued a license to operate Pilgrim. Because of problems, Pilgrim was shut down voluntarily by Edison in April 1986. The shut down and continued cessation of operation were accomplished without a formal order by the NRC. The NRC required, however, that Edison satisfy it that certain improvements had been made before it would allow the restart of Pilgrim. These improvements covered 47 items involving operations, maintenance and security. In August 1987, the Federal Emergency Management Agency (FEMA) withdrew its finding that Pilgrim's off-site emergency plan
By late 1988, the NRC staff had completed its review of Edison's improvements and recommended that the Commission approve restart. On December 9, 1988, the Commission held a meeting with state and local officials at which the officials stated that restart was inappropriate because of the current state of the emergency plans. The NRC staff reiterated its position that, although the improvements were not complete, there had been sufficient progress in all troubled areas to warrant restart. On December 21, 1988, the Commission voted unanimously to allow restart by a staged power ascension plan under NRC staff oversight.
On December 29, 1988, the NRC denied part of a Commonwealth petition to modify, suspend or revoke Pilgrim's license brought pursuant to 10 C.F.R. §§ 2.202, 2.206.
On January 5, 1989, the NRC granted Edison its third exemption from the requirement under 10 C.F.R. 50 App.E § IV F. 3 that it conduct a biennial full-participation emergency preparedness drill. Edison was exempted from that requirement "provided that such an exercise be conducted within 120 days after the completion of the power ascension program." 54 Fed.Reg. 336, 338 (1989).
On December 21, 1988, the Commonwealth filed a petition in this court seeking review of the NRC's decision to allow Pilgrim to restart. The petition was amended to include NRC's subsequent denial on December 29, 1988 of the Commonwealth's petition to modify, suspend or revoke Pilgrim's license. The Commonwealth has also requested that the NRC's grant of an exemption to Pilgrim from emergency preparedness drills be addressed at this time. Its motion to amend, now pending before this court, to include the emergency drill exemption for review is hereby granted because all of the NRC's actions bear on the same basic issue — emergency plans at Pilgrim. The Commonwealth seeks reversal of the actions by NRC allowing Pilgrim to restart, denying its petition and granting Edison the exemption. It also contends that the 47 modifications required prior to restart and the emergency drill exemption entitled it to a hearing pursuant to 42 U.S.C. § 2239(a) (§ 189(a) of the Atomic Energy Act) and asks that we order such a hearing and suspend the NRC's orders pending the hearing.
On January 11, 1989, we permitted Edison to intervene. On January 24, 1989, NRC and Edison moved to dismiss the petition on four jurisdictional grounds: (1) there was no "final order" under 28 U.S.C. § 2342(4) and 42 U.S.C. § 2239(b); (2) the Commonwealth is not a "party" under 28 U.S.C. § 2344; (3) the NRC's order did not involve the "granting, suspending, revoking or amending" of Pilgrim's license under 42 U.S.C. § 2239(a); and (4) denials of § 2.206 petitions
On February 21, 1989, the Commonwealth moved for an interlocutory injunction to prevent Pilgrim from being operated at more than five percent of full power. On March 7, we denied the motion but ordered an expedited briefing and argument schedule.
We address initially the first two issues raised by the motion to dismiss: finality and the Commonwealth's "party" status. Thereafter, we turn to the issues raised by the petition and incorporate in that discussion the other issues raised by the motion to dismiss.
II. MOTION TO DISMISS
A. Final Order
Review of NRC decisions is governed by the Hobbs Act, 28 U.S.C. § 2342(4).
Mass. PIRG, 852 F.2d at 13; see also Dickinson v. Zech, 846 F.2d 369, 371 (6th Cir.1988) ("an order is final only if it `imposes an obligation, denies a right, or fixes some legal relationship, usually at the consummation of an administrative process.'") (quoting NRDC v. NRC, 680 F.2d 810, 815 (D.C.Cir.1982)).
The December 21, 1988 decision authorizing the restart of Pilgrim was final. The decision was the last action necessary to be taken by the NRC prior to Edison being allowed to restart Pilgrim. Indeed, Pilgrim has already resumed low level operation. Barring some unforeseen event at Pilgrim, the NRC will take no further action. There is thus no ongoing proceeding for judicial review to disrupt. And the decision determined Edison's right to restart Pilgrim. The grant of an exemption from emergency drills is a final order for the same reasons the decision to restart is: there is no ongoing proceeding to disrupt and the exemption determined Edison's right not to conduct the drill. Finally, we have already held that the denial of a § 2.206 petition is a final action. Mass. PIRG, 852 F.2d at 13-14.
B. Commonwealth as a "Party"
NRC and Edison next argue that because the Commonwealth was not a party to the NRC's actions, it cannot be a "party aggrieved by the final order." 28 U.S.C. § 2344.
III. COMMONWEALTH'S RIGHT TO A HEARING
The Commonwealth contends that it was entitled to a hearing pursuant to 42 U.S.C. § 2239(a) before Pilgrim was restarted.
The Commonwealth contends that by requiring Edison to address 47 items and by granting the exemption from emergency drills, NRC amended Edison's license.
The Third Circuit was faced with a similar issue: whether an NRC decision that 155 conditions be met before restart constituted a license amendment requiring a hearing. In re Three Mile Island Alert, Inc., 771 F.2d 720 (3d Cir.1985) (TMI), cert. denied, 475 U.S. 1082, 106 S.Ct. 1460, 89 L.Ed.2d 717 (1986). The court held this was not a license amendment; it reasoned as follows:
Id. at 729 (footnotes omitted); see also San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1314 (D.C.Cir.1984) (SLO) (lifting of a license suspension is not an amendment to the license), reh'g en banc on other grounds, 789 F.2d 26 (D.C.Cir.), cert. denied, 479 U.S. 923, 107 S.Ct. 330, 93 L.Ed.2d 302 (1986). We adopt this reasoning and hold that the imposition of 47 requirements on Edison prior to restart was not a license amendment.
The exemption to the regulation requiring biennial emergency drills raises a different problem because Edison's license requires it to operate in accordance with NRC regulations, one of which calls for holding such drills. The NRC granted the exemption pursuant to 10 C.F.R. § 50.12(a)(2)(v).
We agree with the Commonwealth that the decision to allow Edison to restart Pilgrim was a reinstatement of Edison's license. NRC's and Edison's argument that because there was no formal revocation of Edison's license there could be no reinstatement is not tenable.
Edison, by its voluntary shutdown and continued cessation of operations, made it unnecessary for the NRC to revoke formally its license. The NRC nonetheless stated clearly and consistently that it would not allow Pilgrim to restart until it was satisfied with Edison's improvements.
Holding that the NRC's action was a license reinstatement does not, however, mean that the Commonwealth is entitled to a hearing.
SLO, 751 F.2d at 1314 (footnotes omitted; emphasis in original). We can see no principled reason to distinguish between the lifting of a license suspension and the reinstatement of a license for purposes of § 2239(a). The effects are the same: the licensee may now operate again under its original license; the terms of the license have not been altered. Because reinstatement is not listed as a specific action giving rise to a hearing, no hearing right is created by § 2239(a).
IV. REVIEW OF NRC'S ACTIONS
The NRC's actions with respect to licensing matters are reviewable by this court even when no hearing is mandated. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 737, 105 S.Ct. 1598, 1603, 84 L.Ed.2d 643 (1985) ("We conclude ... that Congress intended to provide for initial court of appeals review of all final orders in licensing proceedings whether or not a hearing before the Commission occurred or could have occurred."). We thus review the three actions contested by the Commonwealth: (1) the restart decision; (2) the exemption from the emergency drill regulation; and (3) the denial of the Commonwealth's § 2.206 petition to modify, suspend or revoke Pilgrim's license. The parties agree that the first two are reviewed under 5 U.S.C. § 706(2)(A), i.e., were the NRC's actions "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The parties also agree that the § 2.206 denial is reviewed under the standard set forth by this court in Mass. PIRG, 852 F.2d 19: did the NRC inexcusably default on its fundamental responsibility to protect the public safety.
A. The Restart Decision
The scope of review of NRC actions is extremely limited.
Public Service Co. of N.H. v. NRC, 582 F.2d 77, 82 (1st Cir.), cert. denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 705 (1978). This review is "at its most deferential" when it involves scientific or technical issues. Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 76 L.Ed.2d 437 (1983). In reviewing the findings made by the NRC, we may not "displace the [NRC's] choice between two fairly conflicting views, even though [we] would justifiably have made a different choice had the matter been before [us] de novo." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). The Third Circuit explicated the standard of review when it reviewed a similar vote to restart a nuclear power plant:
TMI, 771 F.2d at 728; see also Commonwealth of Mass. v. United States, 856 F.2d 378, 382-83 (1st Cir.1988) ("we must uphold the agency's action so long as it is `reasonable and defensible.'") (quoting Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97 & n. 7, 104 S.Ct. 439, 444, & n. 7, 78 L.Ed.2d 195 (1983)).
The Commonwealth contends that the NRC abused its discretion by allowing Pilgrim to restart despite problems with the emergency plans. In particular, it argues that FEMA's conclusion that the plans were inadequate should have been given more weight and that the NRC relied "on mischaracterizations of the record and distorted and hopeful conclusions about the status of emergency planning for the area." Petitioner's Br. at 39. Although the NRC's opinion denying the Commonwealth's § 2.206 petition to modify, suspend or revoke Pilgrim's license had not been issued when the NRC allowed restart, both sides agree that the reasoning set forth in it was the basis for the NRC's conclusions with respect to the restart decision as well as being the basis for its denial of the Commonwealth's § 2.206 petition.
For a plant such as Pilgrim — one in operation before 1981 — the NRC, not FEMA, has the final decision-making responsibility with respect to the adequacy of emergency plans. State of Ohio ex rel. Celebrezze v. NRC, 868 F.2d 810, 815-16 (6th Cir.1989). The NRC must, however, "base its finding on a review of the FEMA findings and determinations ... and on the NRC assessment" of the plans. 10 C.F.R. § 50.54(s)(3). As the Sixth Circuit stated:
The other issue is whether the NRC based its determination on "mischaracterizations" of the record. It is important to note that the NRC did not find that Edison's plans were fully satisfactory. Rather, it found that "substantial progress" had been made and that the "progress is continuing." Boston Edison, 28 N.R.C. at 827. In making its determination, the NRC addressed each point raised by the Commonwealth in its § 2.206 petition and by FEMA in its August 1987 determination.
The Commonwealth's argument that the NRC has "mischaracterized" and "distorted" the record is, in reality, a complaint that the NRC did not give greater weight to evidence provided by state and local officials and drew conclusions from the evidence that were different than the one's the Commonwealth would have wished. This, however, does not make the NRC's action arbitrary or capricious, and it is not for us to reassess the evidence.
Rather than address each of the many points raised by the Commonwealth, we discuss for illustration purposes, one of its most serious claims: that the NRC "base[d] its decision on alleged statements of local officials which were not, in fact, made." Petitioner's Br. at 43. The Commonwealth contends that local officials did not make statements attributed to them by the NRC that "local authorities are sufficiently familiar with the plans and procedures to properly respond and have indicated that they would do so." Petitioner's Br. at 43. In late 1988, the NRC met with local officials including selectmen and civil defense directors. The officials stated that progress had and was being made; they also expressed deep concern over the fact that the plans were in many ways incomplete, were untested and relied on inadequately trained personnel. See, e.g., Testimony of Ms. Thompson, Chairperson of Plymouth Board of Selectmen: "I cannot express too strongly that while Plymouth has come a long way in the planning process, we still have a long way to go."; "To summarize, we are working assiduously, but our radiological planning is far from being complete, and therefore, is not approved at the local level; has had no higher review; and is untested." This is, in effect, what the NRC reported in Boston Edison, 28 N.R.C. at 823: "Although the [civil defense directors] expressed concerns related to the status of the plans and procedures and with the availability of personnel and training, all of the [civil defense directors] expressed the opinion that the state of emergency preparedness is much improved."
The evidence that the Commonwealth highlights in the record indicates that Edison's plans are not perfect and that improvements in many areas are still needed, but that is generally what the NRC found. See, e.g., Boston Edison, 28 N.R.C. at 824: "the staff concludes that there has been substantial progress in offsite emergency preparedness at Pilgrim.... Furthermore, current ongoing efforts are expected to
B. The Exemption From Emergency Drills
The Commonwealth argues that the NRC's granting to Edison of an exemption from the requirement that it hold biennial drills of its emergency plan was arbitrary and capricious. We do not agree. As the Commonwealth acknowledges, the exemption was based in large part on the same considerations as were discussed in Boston Edison. We have already found that NRC's determinations of those considerations not to be arbitrary and capricious. Furthermore, the exemption was also based on the fact that Edison's emergency plans are not yet complete. The NRC agreed with Edison that to hold a drill based on plans which are not completed would be futile and granted Edison a temporary reprieve. But, the NRC, in the same breath, emphasized the need for Edison both to finalize its emergency plans and to conduct a drill with all due speed; the exemption only lasts until 120 days after Edison returns to full operation. The NRC did not act arbitrarily or capriciously in granting the exemption.
C. The Denial of the § 2.206 Petition
Denials of § 2.206 petitions are reviewable by courts of appeals. Lorion, 470 U.S. 729, 105 S.Ct. at 1598. But, such denials are usually solely within the NRC's discretion and our review is extremely limited. Mass. PIRG, 852 F.2d 9. In that case we addressed the issue left opened by Lorion, 470 U.S. at 735 n. 8, 105 S.Ct. at 1602 n. 8, whether denials of § 2.206 petitions were committed to the agency's discretion by law. Id. at 14. We held that § 2.206 denials were "the very sort of agency decisionmaking which [Heckler v.] Chaney [470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)] cited in support of the presumption of immunity from judicial review." Id. at 19. We noted, however, that this holding "does not place the agency above the law." Id. And, that a § 2.206 denial "which `is so extreme as to amount to an abdication of its statutory responsibilities' might be reviewable." Id. (quoting Chaney, 470 U.S. at 833 n. 4, 105 S.Ct. at 1656 n. 4). We would only overturn a § 2.206 denial "`if we were strongly convinced that the Commission was inexcusably defaulting on its fundamental responsibility to protect the public safety from nuclear accidents.'" Id. (quoting Rockford League of Woman Voters v. NRC, 679 F.2d 1218, 1222 (7th Cir.1982)).
The Commonwealth's § 2.206 petition was based, in relevant part, on the deficiencies it and FEMA perceived in Edison's emergency plans. We have already found that the NRC's findings and conclusions on this issue were not arbitrary or capricious. It follows, a fortiori, that the denial of the petition cannot be overturned on the basis of the even more limited review accorded under Mass. PIRG, 852 F.2d 9.
The Commonwealth was not entitled to a hearing before the NRC decided to allow Pilgrim to restart.
The actions taken by the NRC were not arbitrary or capricious.
The NRC's and Edison's motions to dismiss on jurisdictional grounds are denied.
The Commonwealth's motion to amend is granted.
The Commonwealth's petition for review is denied.