TORRUELLA, Chief Judge.
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
The Regulatory Framework
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).
Section 189(a) of the AEA provides that:
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 C.F.R. § 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 C.F.R. § 50.59(a)(2)(ii)), the licensee must apply to the Commission for a license amendment, 10 C.F.R. § 50.59(c), and only then are the statutory hearing rights of § 189a triggered.
The procedures for decommissioning
The Commission has stated that its regulations allow a licensee to conduct certain, limited decommissioning activities prior to obtaining NRC approval:
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).
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).
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.
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.
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.
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:
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.
On June 30, 1993, the Commission issued another SRM reiterating its new decommissioning policy, and stating that it had voted to formally amend 10 C.F.R. § 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.
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."
The next day, CAN filed a petition for agency review under 10 C.F.R. § 2.206,
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.
STANDARD OF REVIEW
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.
While this is a highly deferential standard of review, it is not a rubber stamp; in order to avoid being deemed arbitrary and capricious, an agency decision must be rational. Id.; Puerto Rico Sun Oil Co., 8 F.3d at 77. Moreover, when an administrative agency departs significantly from its own precedent, "it must confront the issue squarely and explain why the departure is reasonable." Dávila-Bardales v. INS, 27 F.3d 1, 5 (1st Cir.1994). This is not to say that agencies must forever adhere to their precedents; agencies may "refine, reformulate and even reverse their precedents in the light of new insights and changed circumstances." Id. See also Rust v. Sullivan, 500 U.S. 173, 186-87, 111 S.Ct. 1759, 1768-69, 114 L.Ed.2d 233 (1991). An agency changing its course must, however, supply a reasoned analysis for the change. Motor Vehicle Mfrs. Ass'n, 463 U.S. at 42, 103 S.Ct. at 2866; Puerto Rico Sun Oil Co., 8 F.3d at 77. With these principles in mind, we turn to the merits of CAN's petition.
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
The NRC's Change In Policy
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.
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.
The prior Commission policy regarding decommissioning, embodied in 10 C.F.R. § 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.
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,
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.
The Commission's failure to provide any explanation for its seemingly irrational change in policy renders its new policy arbitrary and capricious, and not in accordance with 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.
Petitioner's NEPA Arguments
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.
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 setaside
Regardless of the label the Commission places on its decision to release the necessary funds to YAEC and "advise" the licensee to go ahead with its CRP, it was effectively, even explicitly, permitting YAEC to decommission the facility. An agency cannot skirt NEPA or other statutory commands by essentially exempting a licensee from regulatory compliance, and then simply labelling its decision "mere oversight" rather than a major federal action. To do so is manifestly arbitrary and capricious.
We note that the Commission's arguments on this issue are implicitly predicated on the assumed validity of its new interpretative policy. As we have explained, however, the Commission has failed to provide any rational explanation for this policy, thus rendering it arbitrary and capricious. The Commission therefore cannot rely on its new policy as a basis for its decision that NEPA compliance was unnecessary prior to decommissioning at Yankee NPS. Accordingly, we find that the Commission's action in allowing YAEC to complete 90% of the decommissioning at Yankee NPS prior to NEPA compliance lacked any rational basis, and was thus arbitrary and capricious. We remand this issue to the Commission for actions in accordance with this holding.
Petitioner's Remaining Arguments
Petitioner's Fifth Amendment Arguments
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.
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.
Petitioner's Atomic Energy Act Arguments
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).
The Commission counters that its so-called "approval" of the CRP cannot be deemed a license "amendment" proceeding since the language requiring NRC approval for major structural changes was never expressly incorporated into YAEC's license.
We reject the Commission's claim that its abrupt policy change in 1993, to the extent it substantially enlarged the authority of an extant licensee (YAEC) retroactively, nonetheless did not entitle CAN to the requested section 189(a) hearing. As the Commission itself concedes, by its nature a license is presumptively an exclusive — not an inclusive — regulatory device. See Brief for Respondent at 5 ("Th[e] license describes the facility and the authorized activities that the operator may conduct under the license. If the holder of the licensee (sic) ... wishes to modify the facility or to take actions that are not specifically authorized under the license, the licensee may need to seek a change or `amendment' to the terms of the license.") (emphasis added). The sophistical suggestion that the decommissioning plan procedures were never formally incorporated into YAEC's POL license ignores licensing realities. Licenses customarily delineate the types of regulated conduct in which the licensee may engage. Regulated conduct which is neither delineated, nor reasonably encompassed within delineated categories of authorized conduct, presumptively remains unlicensed. YAEC's original license did not authorize it to implement major-component dismantling of the type undertaken in the CRP.
Thus, if section 189(a) is to serve its intended purpose, surely it contemplates that parties in interest be afforded a meaningful opportunity to request a hearing before the Commission retroactively reinvents the terms of an extant license by voiding its
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)).
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.
Then, in 1993, the Commission, by ambiguous flat, 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 C.F.R. § 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.
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.
For the foregoing reasons, we grant CAN's petition for review in part, and remand to the Commission for proceedings consistent with this opinion.
Id. at 19 (emphasis in original).