ELR Citation: ELR 21224
No(s). 89-1017 (D.C. Cir. Apr 17, 1990)

The court holds that the U.S. Nuclear Regulatory Commission (NRC) failed to comply with §306 of the Nuclear Waste Policy Act of 1982 (NWPA) in issuing a policy statement containing nonmandatory elements for powerplant licensee training programs. NWPA §306 directs the NRC to promulgate "regulations, or other appropriate Commission regulatory guidance . . . which shall establish . . . instructional requirements for civilian nuclear power-plant licensee personnel training programs." The court first holds that petitioner citizen organization's challenge to the NRC's response to the Act is timely. The court concludes that in 1988 the NRC reopened, reexamined, and reaffirmed its 1985 decision. The court holds that the NRC's issuance of the policy statement in 1985 represented a temporary decision not to engage in rulemaking on mandatory training standards, and that its 1988 reconsideration of that decision reexamined this choice and made it permanent. The court notes that even if the NRC had made a final decision on the legality of not issuing mandatory regulations in 1985, this would not render the petitioner's challenge untimely, because the Agency's reconsideration and reinstatement of its original policy necessarily raised the lawfulness of the original policy. Finally, the court notes that if it had decided that the petitioner's challenge to the lawfulness of the NRC's action was untimely, the petitioner could have filed a petition for rulemaking and then raised its claim of unlawfulness when the NRC denied the petition.

Turning to the merits, the court holds that NWPA §306 requires the NRC to issue mandatory training guidelines. Applying the U.S. Supreme Court's holding that the courts must give effect to a clear expression of congressional intent, set forth in Chevron U.S.A., Inc. v. NRDC, 14 ELR 20507, the court holds that although the phrase "regulatory guidance" is ambiguous, the word "requirements" in §306 clearly suggests a mandatory regime. Numerous statutes instruct an agency to establish requirements, almost always in a context that makes clear that the requirements must be mandatory. Thus, when Congress commanded the NRC to "establish . . . instructional requirements," it used a common statutory formula and so must have intended to invoke the formula's clear, well understood meaning. The court holds that the Act's legislative history also supports this reading.

Counsel for Petitioners
Eric R. Glitzenstein
Harmon, Curran & Tousley
2001 S St. NW, Ste. 430, Washington DC 20009
(202) 328-3500

Counsel for Respondents
Edward Shawaker, John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Intervenor
John T. Boese
Fried, Frank, Harris, Shriver & Jacobson
1001 Pennsylvania Ave. NW, Ste. 800, Washington DC 20004
(202) 639-7000

Before WALD, Chief Judge, and MIKVA and EDWARDS, Circuit Judges.