UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


ENVIROCARE UT INC

v.

NRC


98-1426a

D.C. Cir. 1999


*	*	*


Randolph, Circuit Judge: Federal agencies may, and  sometimes do,
permit persons to intervene in administrative  proceedings even though
these persons would not have stand- ing to challenge the agency's
final action in federal court.  Agencies, of course, are not
constrained by Article III of the  Constitution; nor are they governed
by judicially-created  standing doctrines restricting access to the
federal courts.  The criteria for establishing "administrative
standing" there- fore may permissibly be less demanding than the
criteria for  "judicial standing." See, e.g., Pittsburgh & W.Va. Ry.
v.  United States, 281 U.S. 479, 486 (1930); Alexander Sprunt &  Son,
Inc. v. United States, 281 U.S. 249, 255 (1930); Henry J.  Friendly,
Federal Jurisdiction: A General View 118 (1973).1




__________

n 1 As Judge Friendly observed:


The need for a "case or controversy" to seek judicial review but  not
to intervene in an administrative hearing; the differences  between
statutes and agency rules controlling intervention and  statutes
controlling judicial review; and the differing charac- ters of
administrative and judicial proceedings--all of these  negate any
general rule linking a person's standing to seek  judicial review to
the fact that he has been allowed to intervene  before the agency.


Is the converse true? May an agency refuse to grant a  hearing to
persons who would satisfy the criteria for judicial  standing and
refuse to allow them to intervene in administra- tive proceedings?
This is the ultimate question posed in  these consolidated petitions
for judicial review of two orders  of the Nuclear Regulatory
Commission refusing to grant  Envirocare of Utah, Inc.'s requests for
a hearing and for  intervention in licensing proceedings.


I


Envirocare was the first commercial facility in the nation  the
Commission licensed to dispose of certain radioactive  byproduct
material from offsite sources.2 The Commission  had licensed other
companies to dispose of such radioactive  waste, but only if the waste
was produced onsite. In the late  1990s, the Commission granted the
applications of two such  companies for amended licenses to allow them
to dispose of  radioactive waste received from other sites.
International  Uranium (USA) Corporation's facility in Utah became li-
censed to receive and dispose of approximately 25,000 dry  tons of
waste still remaining from the Manhattan Project and  currently stored
in New York State. Quivira Mining Compa- ny's facility in New Mexico,
some 500 miles from Envirocare's  operation, also became licensed to
dispose of specified  amounts of such material from offsite sources.


In both licensing proceedings before the Atomic Safety and  Licensing
Board, Envirocare requested a hearing and sought  leave to intervene
to oppose the amendment. Envirocare's  basic complaint was "that the
license amendment permits [the  company] to become a general
commercial facility like Envi- rocare, but that the NRC did not
require [the company] to  meet the same regulatory standards the
agency imposed upon  Envirocare when Envirocare sought its license to




__________

n Id. (citing 3 Kenneth Culp Davis, Administrative Law Treatise  s
22.08, at 241 (1958)).


2 The material consists of waste resulting from "the extraction or 
concentration of uranium or thorium from any ore processed pri- marily
for its source material content." 42 U.S.C. s 2014(e)(2).


commercial disposal facility for" radioactive waste. Quivira  Mining
Co., 48 N.R.C. 1, 4 (1998). The Licensing Board  rejected Envirocare's
requests for a hearing and for leave to  intervene in both cases, and
in separate opinions several  months apart, the Commission affirmed.


With respect to the proceedings to amend Quivira's license,  the
Commission ruled that Envirocare did not come within  the following
"standing" provision in the Atomic Energy Act:  when the Commission
institutes a proceeding for the granting  or amending of a license,
"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.  s
2239(a)(1)(A). In determining whether Envirocare pos- sessed the
requisite "interest" under this provision, the Com- mission looked to
"current judicial concepts of standing."  Quivira Mining Co., 48
N.R.C. at 6. Envirocare alleged  economic injury, claiming that the
less stringent application of  regulations to Quivira placed
Envirocare at a competitive  disadvantage. This allegation was
sufficient, the Commission  held, to meet the injury-in-fact
requirements of constitutional  standing. On the question of
prudential standing, however,  the Commission determined that
"Envirocare's purely com- petitive interests, unrelated to any
radiological harm to itself,  do not bring it within the zone of
interests of the AEA for the  purpose of policing the license


With respect to International Uranium's license, the Com- mission
agreed with the Licensing Board that the case was  "on all fours" with
Quivira. International Uranium Corp.,  48 N.R.C. 259, 261 (1998). As
in that case, Envirocare's  injury from International Uranium's
competition was not  within the Atomic Energy Act's zone of interests.
In addi- tion, the Commission made explicit its view that judicial 
standing doctrines were not controlling in the administrative  context
and that its duty was to interpret the "interest[s]"  Congress
intended to recognize in s 2239(a)(1)(A): "Our un- derstanding of the
AEA requires us to insist that a competi- tor's pecuniary aim of
imposing additional regulatory restric-


tions or burdens on fellow market participants does not fall  within
those 'interests' that trigger a right to hearing and  intervention
under [s 2239(a)(1)(A)]." International Urani- um Corp., 48 N.R.C. at
264.


II


Envirocare spends all of its time arguing that in light of  decisions
of the Supreme Court and of this court, its status as  a competitor
satisfies the "zone of interests" test for standing,  as the test was
formulated in Association of Data Processing  Service Organizations v.
Camp, 397 U.S. 150 (1970), and as it  was refined in National Credit
Union Administration v.  First National Bank & Trust Co., 522 U.S. 479
(1998). We  shall assume that Envirocare is correct. It does not
follow  that the Commission erred in refusing the company's motions 
for a hearing and for leave to intervene, at least in regard to 
International Uranium's license amendment. The Commis- sion rightly
pointed out, in International Uranium and in  Quivira, that it is not
an Article III court and thus is not  bound to follow the law of
standing derived from the "case or  controversy" requirement. See
Lujan v. Defenders of Wild- life, 504 U.S. 555, 561 (1992).
Judicially-devised prudential  standing requirements, of which the
"zone of interests" test is  one, are also inapplicable to an
administrative agency acting  within the jurisdiction Congress
assigned to it. The doctrine  of prudential standing, like that
derived from the Constitu- tion, rests on considerations "about the
proper--and properly  limited--role of the courts in a democratic


Whether the Commission erred in excluding Envirocare  from
participating in International Uranium's licensing pro- ceeding
therefore turns not on judicial decisions dealing with  standing to
sue, but on familiar principles of administrative  law regarding an
agency's interpretation of the statutes it  alone administers. See
Chevron U.S.A. Inc. v. Natural Re- sources Defense Council, Inc., 467
U.S. 837, 842 (1984). The  governing provision--42 U.S.C. s
2239(a)(1)(A)--requires the  Commission to hold a hearing "on the


whose interest may be affected by the proceeding" and to  allow such a
person to intervene.3 The term "interest" is not  defined in the Act
and it is scarcely self-defining. It could  mean merely an academic or
organizational interest in a  problem or subject, as in Sierra Club v.
Morton, 405 U.S. 727,  738-40 (1972). Or an interest in avoiding
economic harm or  in gaining an economic benefit from agency action
directed at  others. See Association of Data Processing Serv. Orgs.,
397  U.S. at 154. Or an "interest" in "aesthetic, conservational  and
recreational values." Id. Or all of these. But whatever  the judicial
mind thinks of today as an "interest" affected by a  proceeding is not
necessarily what Congress meant when it  enacted this provision in
1954. At the time, judicial notions of  standing were considerably
more restrictive than they are  now. The Supreme Court had put it this
way: a private  party could challenge federal government action in
federal  court only if the party had a legally protected interest,
that is,  "one of property, one arising out of contract, one protected
 against tortious invasion or one founded on a statute which 




__________

n 3 Although it appears that the Administrative Procedure Act  applies
to the Nuclear Regulatory Commission, see 42 U.S.C.  s 2231,
Envirocare has not invoked the APA's administrative stand- ing
provision, which reads: "So far as the orderly conduct of public 
business permits, an interested person may appear before an agen- cy
or its responsible employees for the presentation, adjustment, or 
determination of an issue, request or controversy in a proceeding."  5


Commentators have noted that the role of s 555(b) is unclear and  very
few courts have attempted to delineate its scope. See 3  Kenneth Culp
Davis & Richard J. Pierce, Jr., Administrative Law  Treatise s 16.10,
at 63-65 (3d ed. 1994). One scholar, relying on  the prefatory
language of the provision, argues that s 555(b) does  not create "an
absolute, or even a conditional, right to be a party."  David L.
Shapiro, Some Thoughts on Intervention Before Courts,  Agencies, and
Arbitrators, 81 Harv. L. Rev. 721, 766 (1968). We  express no view on
whether s 555(b) would bring about a result  different than the one
reached by the Commission in its Interna- tional Uranium opinion
interpreting s 2239(a)(1)(A). See infra  note 7.


confers a privilege." Tennessee Elec. Power Co. v. TVA, 306  U.S. 118,
137-38 (1939); see also Stephen G. Breyer &  Richard B. Stewart,
Administrative Law and Regulatory  Policy: Problems, Text, and Cases
1195-96 (2d ed. 1985).  Thus, traders in one market were not "parties
in interest"  entitled to sue for an injunction against a railroad's
extending  its track to a competitive market. L. Singer & Sons v.
Union  Pac. R.R., 311 U.S. 295 (1940). On the other hand, some 
Supreme Court opinions pointed in the opposite direction,  recognizing
judicial standing for competitors who would suf- fer economic injury
from agency action. An example is FCC  v. Sanders Brothers Radio
Station, 309 U.S. 470 (1940).  Another is The Chicago Junction Case,
264 U.S. 258 (1924).  How agencies were then treating standing
questions is un- clear. According to one report, they were limiting
the right  to a hearing "to those directly subject to administrative 
controls, exactions or sanctions," Breyer & Stewart, supra,  at 1186.
Even after Sanders Brothers, the FCC did not  recognize "economic
injury" as "sufficient to secure a hearing  or to intervene in a
hearing on a competitor's license applica- tion." Ronald A. Cass &
Colin S. Diver, Administrative Law:  Cases and Materials 714 (1987)
(citing Voice of Cullman, 14  F.C.C. 770 (1950)). It was not until the
late 1950s that some  decisions of this court began expanding the
category of  persons entitled to participate in agency proceedings on
the  theory that anyone who had standing to seek judicial review 
should have administrative standing. See, e.g., National Wel- fare
Rights Org. v. Finch, 429 F.2d 725, 732-33 (D.C. Cir.  1970); Office
of Communication of United Church of Christ  v. FCC, 359 F.2d 994,
1000-06 (D.C. Cir. 1966); Virginia  Petroleum Jobbers Ass'n v. FPC,
265 F.2d 364 (D.C. Cir.  1959).4 (We will have more to say about these




__________

n 4 We are not sure that Martin-Trigona v. Federal Reserve Bd.,  509
F.2d 363 (D.C. Cir. 1975), is such a case. While the court  stated
that the tests for judicial standing and administrative stand- ing
would be treated as identical "[f]or purposes of this case," id. at 
366, this appears to have been a decisional device. The court's 
holding was that petitioner had alleged no injury in fact and 


Because we cannot be confident of what kinds of interests  the 1954
Congress meant to recognize in s 2239(a)(1)(A)-- because, in other
words, the statute is ambiguous--the Com- mission's interpretation of
this provision must be sustained if  it is reasonable. See Chevron,
467 U.S. at 843. We think it  is. For one thing, excluding competitors
who allege only  economic injury from the class of persons entitled to
inter- vene in licensing proceedings is consistent with the Atomic 
Energy Act. The Act meant to increase private competition  in the
industry, not limit it. Before its passage in 1954, the  federal
government completely controlled nuclear energy.  Through the Act,
Congress sought to foster a private nuclear  industry for peaceful
purposes. In order to ensure that  private industry would not
undermine nuclear safety, the Act  created an agency--what is today
the Nuclear Regulatory  Commission--to regulate the private sector.
See generally  Pacific Gas & Elec. v. Energy Resources Comm'n, 461
U.S.  190 (1983). One of the Commission's statutory duties is 
authorizing the transfer and receipt of radioactive byproduct 
material. See 42 U.S.C. s 2111. The statute describes the 
Commission's responsibility in this area as follows: "The  Commission
shall insure that the management of any byprod- uct material ... is
carried out in such a manner as the  Commission deems appropriate to
protect the public health  and safety and the environment from
radiological and non- radiological hazards associated with the
processing and with  the possession and transfer of such material...."


Nothing in this provision, or in the rest of the Act, indicates  that
the license requirement was intended to protect market  participants
from new entrants. Envirocare points to the  Act's policy statement
which mentions "strengthen[ing] free  competition in private
enterprise." Petitioner's Initial Brief  at 25 (citing 42 U.S.C. s
2011). This statement refers to the  Act's goal of creating a private
nuclear energy industry.  Allowing new competitors to enter the market




__________

n therefore did not have standing of any sort. Id. at 367; see also id.
 at 366 n.10.


competition. Permitting current license holders to initiate  hearings
for the purpose of imposing burdens on potential  competitors does the
opposite. See Lars Noah, Sham Peti- tioning as a Threat to the
Integrity of the Regulatory Pro- cess, 74 N.C. L. Rev. 1 (1995).


In rendering its interpretation of s 2239(a)(1)(A), the Com- mission
also properly took account of regulatory burdens on  the agency. It
wrote: "Competitors, though, whose only  'interest' is lost business
opportunities, could readily burden  our adjudicatory process with
open-ended allegations de- signed not to advance public health and
safety but as a  dilatory tactic to interfere with and impose costs
upon a  competitor. Such an abuse of our hearing process would 
significantly divert limited agency resources, which ought to  be
squarely--genuinely--focused upon health and safety con- cerns."
International Uranium, 48 N.R.C. at 265. The  Commission's concerns
are not limited to byproduct disposal  licenses. Those are only one of
the many types of licenses  the Commission grants. Within the
Commission's authority  are licenses for the distribution of special
nuclear material,  see 42 U.S.C. s 2073, for the transfer and
distribution of  nuclear source material, see id. ss 2092, 2093, for
commercial  uses of nuclear material, see id. s 2133, and for medical 
therapy that uses nuclear material, see id. s 2134(a).


For these reasons, the view the Commission expressed in  its
International Uranium opinion--that competitors assert- ing economic
injury do not demonstrate the type of interest  necessary under s
2239(a)(1)(A)--is a permissible construc- tion of the statute.5 And it
appears to be a construction the  Commission has adhered to for some
time. See Virginia  Elec. & Power Co., 4 N.R.C. 98, 105-06 (1976). The
Commis- sion stated that it has long been its practice to deny




__________

n 5 The Commission's interpretation does not leave competitors  without
any opportunity to make their views known in another's  licensing
proceeding. As the Commission pointed out, any person  is allowed to
participate in the written petition process, see 10  C.F.R. s 2.206,
and competitors can participate in ongoing adjudica- tions as amici.
See International Uranium, 48 N.R.C. at 265-66.


for a hearing under s 2239(a)(1)(A) when the petitioner al- leged only
economic injury. See International Uranium, 48  N.R.C. at 265.
Envirocare has cited nothing to the contrary.  In any event, even if
the Commission's refusal to follow the  developing law of judicial
standing had been a departure from  its usual practice, it gave
adequate reasons for changing  course.


We mentioned earlier several decisions of this court indicat- ing that
agencies should allow administrative standing to  those who can meet
judicial standing requirements: National  Welfare Rights Organization
v. Finch, 429 F.2d 725, 732  (D.C. Cir. 1970); Office of Communication
of United Church  of Christ v. FCC, 359 F.2d 994, 1000-06 (D.C. Cir.
1966);  Virginia Petroleum Jobbers Association v. FPC, 265 F.2d 364 
(D.C. Cir. 1959).6 None of these cases interpreted the admin-
istrative standing provision of the Atomic Energy Act. All  were
decided before Chevron and for that reason alone cannot  control our
decision today. Furthermore, despite some broad  language in Office of
Communication about administrative  standing, the agency there equated
standing to appear before  it with standing to obtain judicial review
and so the court had  no occasion to examine whether the two concepts
might be  distinct. See 359 F.2d at 1000 n.8. In National Welfare 
Rights no statute gave individuals standing to intervene in  agency
proceedings to cut off federal grants-in-aid to states  under the
Social Security Act. Regardless of the agency's  view that only states
could participate in the administrative  proceedings, which is what
the statute said, the court ordered  the agency to follow principles
of judicial standing in order to  "perfect[ ] the right to review."
429 F.2d at 737. This mode  of decisionmaking is contrary to the
Supreme Court's later  decision in Vermont Yankee prohibiting the
judiciary from  imposing procedures on an agency when a statute does
not  require them. See Vermont Yankee Nuclear Power Corp. v.  Natural
Resources Defense Council, Inc., 435 U.S. 519, 543-




__________

n 6 At least one member of this court questioned these decisions  even
before Chevron. See Koniag, Inc., Village of Uyak v. Andrus,  580 F.2d
601, 613 & n.5 (D.C. Cir. 1978) (Bazelon, J., concurring).


49 (1978). As to Virginia Petroleum Jobbers, the court there  equated
standing to intervene in agency proceedings with  standing to seek
judicial review on the basis that "the right to  appeal from an order
presupposes participation in the pro- ceedings which led to it," 265
F.2d at 368, a proposition that  has since been vigorously disputed.
See Louis L. Jaffe,  Judicial Control of Administrative Action 524-25
(1965);  Louis L. Jaffe, Judicial Review of Procedural Decisions and 
the Philco Cases: Plus Ca Change?, 50 Geo. L.J. 661, 669  (1960). In
any event, as we have said, all of these cases were  pre-Chevron.
Judged by current law, none gave sufficient  weight to the agency's
interpretation of the statute governing  intervention in its
administrative proceedings.7


This brings us to the Commission's order in Quivira. The  Commission in
that case appeared to reject Envirocare's  petition entirely on the
basis of its reading of judicial standing  doctrine. The opinion did
not purport to rest on the interpre- tation of s 2239(a)(1)(A) it
expressed a few months later in  the International Uranium case. The
Commission did, how- ever, give notice that although it "customarily
follows judicial  concepts of standing, we are not bound to do so
given that we  are not an Article III court." Quivira, 48 N.R.C. at 6
n.2.  Whether in Quivira the Commission correctly analyzed the 
Supreme Court's National Credit Union decision regarding 




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n 7 Our post-Chevron opinion in Nichols v. Board of Trustees of the 
Asbestos Workers Local 24 Pension Plan, 835 F.2d 881, 896 (D.C.  Cir.
1987), did state: "Because a party entitled to judicial review of 
agency action clearly qualifies as an 'interested person' who normal-
ly may intervene in administrative proceedings, we hold that [peti-
tioner] possessed such status under [s 555(b) of the APA] when he 
requested permission to participate in the proceedings under re-
view." Whether the meaning of "interested person" in s 555(b)  was
contested is unclear (see id. at 897-98), nor are we certain what  the
court meant by the qualifier "normally" in the quoted sentence.  At
any rate, when it comes to statutes administered by several  different
agencies--statutes, that is, like the APA and unlike the  standing
provision of the Atomic Energy Act--courts do not defer  to any one
agency's particular interpretation. See Tax Analysts v.  IRS, 117 F.3d
607, 613 (D.C. Cir. 1997).


the "zone-of-interest" test or our opinion in Hazardous Waste 
Treatment Council v. EPA, 861 F.2d 277 (D.C. Cir. 1988), or  any of
the other judicial opinions it discussed, is an issue we  do not
decide. If we did decide the question and if we  concluded that the
Commission's analysis was incorrect, we  would set aside its order and
remand the case. On remand,  the Commission could--and undoubtedly
would--simply cite  our holding in the International Uranium case and
again  deny Envirocare's request for a hearing and for leave to 
intervene. When "there is not the slightest uncertainty as to  the
outcome of a proceeding" on remand, courts can affirm an  agency
decision on grounds other than those provided in the  agency decision.
NLRB v. Wyman-Gordon, 394 U.S. 759,  766 n.6 (1969); see also Pharma,
Inc. v. Shalala, 62 F.3d  1484, 1489 (D.C. Cir. 1995). As Judge
Friendly explained,  reversal and remand is "necessary only when the
reviewing  court concludes that there is a significant chance that but
for  the error the agency might have reached a different result.  In
the absence of such a possibility, affirmance entails neither  an
improper judicial invasion of the administrative province  nor a
dispensation of the agency from its normal responsibili- ty." Henry J.
Friendly, Chenery Revisited: Reflections on  Reversal and Remand of
Administrative Orders, 1969 Duke  L.J. 199, 211. With respect to the
Quivira case, concerns  about judicial intrusion and agency abdication
are especially  unwarranted. It is the Commission's reasoning, in
Interna- tional Uranium, that we accept as the ground upon which to 


The petitions for judicial review are denied.