ML20062N004
| ML20062N004 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 08/17/1982 |
| From: | Bielawski A COMMONWEALTH EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8208200276 | |
| Download: ML20062N004 (17) | |
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.- 00CHETED 4; US!.PC UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION '82 ASD 19 P2:18,
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In The Matter of )
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COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-454 OL
) 50-455 OL
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(Byron Nuclear Power Station, )
Units 1 & 2) )
COMMONWEALTH EDISON COMPANY'S RESPONSE TO DAARE/ SAFE'S 2.758 PETITIONS Commonwealth Edison Company (" Edison") hereby responds to " Petition of DAARE/ SAFE For Waiver of or Excep-tion to Financial Qualifications Regulations" ("DAARE/ SAFE FQ Petition") and " Petition of DAARE/ SAFE For Waiver of or Exception to Need For Power and Alternative Energy Source Regulations 10 CFR SS 51.23 (e) and 51. 53 (c) " ("DAARE/ SAFE NFP Petition") both dated July 30, 1982, and related motions which seek to compel the NRC Staff to supplement or revise its Final Environmental Statement and its Safety Evaluation 1/
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Report. DAARE/ SAFE's FQ Petition requests that the Licensing Board certify to the Commission the question of 1/ See " Motion of DAARE/ SAFE to Compel Supplement to or Revision of Final Environmental Statement" and " Motion
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of DAARE/ SAFE to Compel Supplement to or Revision of Safety Evaluation Report", both dated August 3,'1982.
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whether newly enacted regulations which eliminate the re-quirement of financial qualifications review of electric utilities in operating license proceedings should be waived in this proceeding. DAARE/ SAFE's NFP Petition seeks certi-fication of the question of waiver of Commission regulations precluding litigation of need for power and alternative energy sources issues in operating license proceedings. For the reasons stated below, DAARE/ SAFE's petitions and associ-ated motions should be denied.
A. BACKGROUND In large measure, the matters raised in the DAARE/
SAFE petitions have previously been addressed and resolved by the Licensing Board. Indeed, most of the information relied upon by DAARE/ SAFE in support of its FQ Petition, and all of the information presented in support of its NFP Petition is information which was presented by the Rockford League of Women Voters (" League") in its recent S 2.758 2/
petitions.- The Board has determined that the Ieague's petitions failed to set forth a prima facie showing of special circumstances such that application of the regula-tions in question would not serve the purposes for which the regulations were adopted. See " Memorandum and Order",
August 2, 1982 and " Memorandum and Order", August 5, 1982. 3 l
-2/ See " Petition of Rockford League of Women Voters for j Waiver of an Exception to Financial Qualifications l Regulations" and " Petition of Rockford League of Women !
Voters for Waiver of an Exception to Need for Power '
and Alternative Energy Source Regulations," both dated July 6, 1982. >
t The Board's decision that the League failed to make the showing required by S 2.758 is equally applicable to DAARE/
SAFE's Petitions.
DAARE/ SAFE advances several arguments which were not presented by the League, and, through its FQ Petition, DAARE/ SAFE presents certain additional information not previously identified by the League. In view of the Board decisions denying the League's petitions, this response will be confined to the new arguments and additional information contained in DAARE/ SAFE's petitions.
B. DAARE/ SAFE'S FQ PETITION FAILS TO ESTABLISH A CAUSAL CONNECTION BETWEEN EDISON'S ALLEGED FINANCIAL DIFFICULTIES AND THE PUBLIC HEALTH AND SAFETY DAARE/ SAFE'S FQ Petition identifies three additional matters which are asserted to justify a waiver of the Commission's regulations prohibiting contentions bearing on financial qualifications issues. First, DAARE/ SAFE sub-mitted an affidavit of Mr. Albert T. Howard containing allega-tions regarding the activities of the heating, ventilating and air conditioning contractor for Edison's recently licensed LaSalle Nuclear Power Station. Second, DAARE/ SAFE has provided certain NRC Staff inspection reports pertaining to investigations of work performed at Byron. Finally, l DAARE/ SAFE presents a legal argument which asserts that the f
NRC should be barred from applying the regulations which preclude financial review of utilities in operating license proceedings because of certain representations made during
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l the course of a proceeding before the Seventh Circuit Court of Appeals. DAARE/FAFE's position with respect to each of l these items is equally without merit.
DAARE/ SAFE's FQ Petition devotes considerable attention to Quality Assurance and Quality Control ("QA/
QC") problems and allegations relative to Edison's LaSalle facility. Even if the circumstances at the LaSalle facility were relevant to the circumstances at the Byron facility, there is no evidence of any connection between Edison's financial qualifications and threats to the public health and l
safety. DAARE/ SAFE asserts that the affidavit of Mr. Albert T.
Howard (Exhibit V to the DAARE/ SAFE FQ Petition) " details the relationship between Edison's financial needs to expedite and resulting inadequate QA/QC." DAARE/ SAFE FQ Petition, at
- 7. Ilowever, nowhere in that 27-page affidavit is Applicant's financial situation even mentioned by Mr. Howard. DAARE/ SAFE also presents a letter relative to the LaSalle facility dated November 2, 1981, from Edison to a contractor expressing the urgent need for certain information.
(Exhibit W to the DAARE/
l SAFE FQ Exhibit). Again, this letter evidences nothing with respect to Edison's financial qualifications nor any threat to the public health and safety from the Byron facility, let alone any link between the two.-3/ '.
In specific regard to the Byron facility DAARE/ SAFE alleges that Edison's " Financial need to press the plant into service has led to serious and persistant QA/QC breakdowns".
! 3/ On August 13, 1982 the NRC issued a full power operating I
license for the LaSalle Station. Under the terms of the I
license, Edison is restricted from operating above 50%
of full power until after the completion of an independent review of the HVAC system.
i
i DAARE/ SAFE FQ Petition, at 11. DAARE/ SAFE presents a series of NRC documents relative to QA/QC at Byron (Exhibits 0 - T to the DAARE/ SAFE FQ Petition). These documents simply reflect the fact that during the course of construction various QA/QC noncompliances were discovered, as is likely with any major nuclear plant construction project. Nowhere '
do these documents discuss Edison's financial situation, nor is the inference that the noncompliances reported in these documents are related to Edison's financial condition l in any way supported. Clearly, DAARE/ SAFE has failed to
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make the requisite showing of special circumstances.
DAARE/ SAFE's legal argument which purports to establish a special circumstance is premised on a recent decision of U.S. Court of Appeals for the Seventh Circuit which refused to compel the commission to initiate a S 2.206 proceeding to review Edison's construction permit for Byron I as requested by the League. Rockford League of Women Voters
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- v. NRC 679 F.2d 1218 (7th Cir., 1982). DAARE/ SAFE argues
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that the Seventh Circuit relied on NRC Staff representations :
4/ We note that to the extent DAARE/ SAFE believes these documents to have a bearing on Edison's qualifications to operate Byron safely, they should more properly have I been presented in connection with DAARE/ SAFE's re-l sponse to pending summary disposition motions regarding DAARE/ SAFE contention 1. DAARE/ SAFE should not be permittea to raise what are in effect QA/QC matters under the guise of financial qualifications contentions.
-5/ The decision cited by DAARE/ SAFE was subsequently amended by the Seventh Circuit following the readmission of the ,
League in this proceeding. The amended decision does :
not appear to have a bearing on DAARE/ SAFE's argument.
However, for the Board's information, we attach a copy of the Amended Opinion and the Court's explanation of the reasons underlying its decision to amend.
that the issue of financial qualifications would be liti- i gated in the present operating license proceeding. . DAARE/
SAFE's argument is transparent and patently false. Contrary to DAARE/ SAFE's assertion, the Seventh Circuit decision was not conditioned on the understanding that financial qualifica-tions issue would be litigated. Indeed, prior to oral argu-ment the newly promulgated Commission's regulations on financial qualification review were provided to the Court, and these regulations were specifically discussed during the ,
course of oral argument.
Moreover, it is clear that the decision was based upon the fact that the League had an opportunity to partici-pate in the Byron operating license proceedings, and as a l party to that proceeding it could raise matters it believed relevant to the safe operation of the Byron plant. As such, the Court reasoned that the NRC was not obliged to commence a second proceeding under 10 CFR S 2.206 to consider matters related to the safe operation of Byron. Quite obviously, the Seventh Circuit's decision cannot be read to require that the NRC disregard its regulations governing the conduct of operating license proceedings, so as to permit the League (or in this case DAARE/ SAFE) to litigate issues which are not appropriate for adjudication in such proceedings. In short, the representations made and the decision reached in the Seventh Circuit proceeding cannot possibly provide a basis l for waiving the regulations barring admission of financial qualifications contentions.
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C. DAARE/ SAFE'S NFP PETITION FAILS TO IDENTIFY ANY ADDITIONAL INFORMATION As DAARE/ SAFE admits at page 2 of its NFP Petition, it does not have any information, in addition to the informa-tion submitted by the League, in support of its position that special circumstances exist which mandate certifying to the Commission the question of whether the provisions contained in SS 51.23 (e) and 51.53 (c) should be waived in this proceeding. Information relied upon by DAARE/ SAFE con-cerning demand projections, conservation and cogeneration and nonoperation of Byron has already been determined not to establish a prima facie showing of special circumstances.
DAARE/ SAFE does present one argument not raised by the League, which, in essence, asserts that the regula-tions in question violate the National Environmental Policy Act, Council or Environmental Quality regulations, and judicial decisions interpreting these provisions. Simply put, this Board is required to implement the Commission's regulations; it may not decide whether the regulations were lawfully promulgated. Thus, DAARE/ SAFE's argument is wholly irrelevant.
CONCLUSION i
For all of the foregoing reasons, DAARE/ SAFE's Petitions seeking a waiver of or exception to the Commission's regulations which preclude litigation of financial qualifica- l tions, need for power and alternative energy sources in this
r proceeding, and its Motions that the NRC Staff supplement its FES and SER to incorporate purported new information bearing on these issues should be denied.
Respectfyl s, tted
, j s-Ond df the Atto eps for Commonwealth ison Company Dated: August 17, 1982 -
Michael I. Miller Alan P. Bielawski ISHAM, LINCOLN & BEALE Three First National Plaza Chicago, IL 60602 (312) 55P-7500 Joseph Gallo ISHAM, LINCOLN & BEALE 1120 Connecticut Avenue, N.W.
Suite 840 Washington, D.C. 20036 (202) 833-9730 e
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CERTIFICATE OF SERVICE The undersigned, one of the attorneys for Common-wealth Edison Company, certifies that on this date he filed two copies (plus the original) of the attached pleading with the Secretary of the Nuclear Regulatory Commission and served a copy of the same on each of the persons at the addresses .
shown on the attached service list in the manner indicated.
Date: August 17, 1982
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' Ala M Bielawski i
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SERVICE LIST COMMONWEALTH EDISON COMPANY -- Byron Station.
Docket Nos. 50-454 and 50-455
- Morton B. Margulies, Esq.
- Atomic Safety and Licensing Administrative Judge and Chairman Appeal Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- Secretary Attn: Chief, Docketing and '
- Dr. Richard F. Cole Service Section Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 *Ms. Betty Johnson 1907 Stratford Lane
Rockford, Illinois 61107 cAtomic Safety and Licensing Board Panel *Dr. Bruce von Zellen U.S. Nuclear Regulatory Commission Department of Biological Sciences Washington, D.C. 20555 Northern Illinois University DeKalb, Illinois 60115
- Chief Hearing Counsel Office of the Executive
- Joseph Gallo, Esq.
Legal Director Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission Suite 840 Washington, D.C. 20555 1120 Connecticut Ave., N.W.
Washington, D.C. 20036 (Dr. A Dixon Callihan Union Carbide Corporation ***Douglass W. Cassel, Jr.
P.O. Box Y Jane whicher Oak Ridge, Tennessee 37830 BPI Suite 1300
- *Mr . Steven C. Goldberg 109 N. Dearborn Ms. Mitzi A. Young Chicago, IL 60602 Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- Via U.S. Mail
- Via Express Mail
- Via Messenger'
hitch States Eaurt of Appeals For the Seventh Circuit Chicago, Dlinob 6@H4
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I Before {
l Hon. WILLIAM J. BAUER, Circuit Judge i Hon. FLOYD R. GIBSON, Senior Judoe*
- Hon. nicHARD A. POSNER. Circuit Judce i
ROCKFORD LEAGUE OF WOMEN VOTERS, Petitioner' vf an Order of the bh). 81-1772 VL n e a es Nyclear Regulatory Commission.
UNITED STATES NUCLEAR REGULATORY ,
COMMISSION, Respondent.
COMMONWEALTH EDISON COMPANY, Intervenor-Respondent.
ON PETITION FOR REHEARING 1
The League has asked for rehearing in this cases and while there is nothing in its petition that causes us to doubt the soundness of our original decision, the petition raises'a factual question that requ. ires a brief comment. Noting that l the League had been expelled from a parallel proceeding before
! the Nuclear Regulatory Commission for misconduct during the l discovery stage of that proceeding, we said: "It is hard to resist the suspicion that what the League is really trying to do in this case is to circumvent the order expelling it from" that proceeding, "by making the Commission initiate a parallel proceeding to which the League would be a party notwithstanding its earlier default. We will not force the Commission to let the League escape the Commission's discovery sanctions in this roundabout fashion." The League has reminded us that, as we had stated earlier in the opinion, the present. proceeding was initiated before the League's expulsion from the earlier proceeding; moreover, the League has submitted in its petition
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- Of the Eighth Circuit.
No. 81-1772 Page 2 for rehearing a detailed chronology which indicates that the prasent proceeding was initiated, and an appeal taken to this '
court from the adverse ruling of the Director of Nuclear Reactor Regulation, before the dispute arose out of which the expulsion order emerged. We therefore retract the conjecture ,
that what the League was trying to do by initiating the present proceeding was to circumvent the expulsion order. ,
That conjecture was, however, an aside; it was not an essential part of our holding. It seemed to us a plausible explanation of the League's curious conduct in initiating a second proceeding on safety while the first proceeding was in progress. i Now we are at a loss to understand why the League wanted a second proceeding, unless it is just to tie the Commission in procedural knots.
At all events, since our original decision was rendered, the Commission's Atomic Safety and Licensing Appeal Board has come down with its decision on the League's appeal from its expulsion from the licensing proceeding. Commonwealth Edison Co., ALAB-678 (June 17, 1982). While finding the League guilty of misconduct, the Board decided that expulsion was too harsh a sanction in the circumstances, and it has ordered the League reinstated as a party to the licensing proceeding. So the League will have an opportunity to present its safety contentions to the Commission, notwithstanding our decision that the Commission was not required to initiate a second, duplicative proceeding on safety at the League's behest.
The petition for rehearing is denied except to the extent indicated above. An amended version of our original opinion--amended to reflect the discussion in this order--is attached hereto, and we direct that it be substituted for the original opinion. "
SO ORDERED.
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ARGUED APRIL 12,1582-DECIDED JUNE 3,1982 4.: .'.. (;
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- a Before BAUER, Circuit Judge, GIBSON, Senior Circuit ..
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'.h.[ , POSNER, Circuit Judge. This is a petition to review ad-i: ministrative agency inaction: the refusal of the Nuclear .
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- wealth Edison Company's permit to construct a nuclear
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The permit was granted in 1975 after the NRC staff cW had reviewed, and a hearing had been conducted pursu- , Q:
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i ent to 42 U.S.C. 6 2239(a) on, Commonwealth Edison's U.S.C. $ 2236(a). A regulation promulgated by the Com-
! plans for the Byron plant, in order to make sure that mission delegates the Commission's authority under this "the proposed facility can be constructed and operated section, so far as is relevant to this case, to the Director et the proposed location without undue risk to the of Nuclear Reactor Regulation.10 C.F.R. 6 2.202. An-i health and safety of the public." 10 C.F.R. $ 50.35(a). '
other regulation provides that "Any person may file a 1
The issuance of a construction permit is the first step in request for the Director of Nuclear Reactor Regulation the two-step process prescribed by 42 U.S.C. $ 2235 for . . . to institute a proceeding pursuant to 6 2.202. . . ."
, the b,eensmg of nuclear power plants. The second is the i
granting of the actual operating license for the facility. f 2.206(a). If the Director decides not to institute such a Even if a construction permit has been issued-even if proceeding, he is required to advise the requesting party of his decision in writing, giving "the reasons construction has been completed-the Commission may therefor." $ 2.206(b). The Commission may on its own 1
not issue an operating license unless it "has found that
- the final design provides reasonable assurance that the motion review the Director's decision for abuse of dis-
- cretion, but it will not entertain any petition or request t health and safety of the public will not be endangered for such review. f 2.206(c).
j by o,peration of the facility in accordance, with the i
requirements of the l, cense and the [ Commission's] regu- The league's request that the Director institute a pro-
- 1;tions . . . . 10 C.F.R. I 50.35(c). ceeding to revoke the construction permit for the Byron j plant was filed in November 1980, when construction In 1978, with completion of the Byron plant in (dis- was 50 percent complete. The League alleged that a i
tant) sight, Commonwealth Edison applied for an oper- number of issues concerning safe operation of the plant i cling license. A proceeding on that application is in had not been resolved at the construction-permit stage;
} progress, with hearings scheduled to begin this August. that some of these had not even been recognized as Among the intervenors in the licensing proceeding was issues until the nuclear accident at Three Mile Island, the Rockford League of Women Voters. (Rockford is Pennsylvania in 1979, which occurred after the con-1.
about 17 miles from the construction site.) The League struction permit had been issued for the Byron plant; was expelled from the proceeding because of its willful and that Commonwealth Edison did not have enough cnd persistent refusal to com money to solve the safety problems that the League had i Just the other day, however, the ply Commission's with discoveryAtomic orders, identified. In May 1981 the Director denied the league's i
Safety and Licensing Appeal Board held that, while the request to institute a revocation proceedmg. He stated Imague was indeed guilty of serious misconduct, expul. that all of the issues raised by th,e League were being or sion was too harsh a remedy in the circumstances; and would be considered in the pending proceeding on Com-the Board has ordered the League reinstated as a party monwealth Edison's application for an operating license,
! to the licensing proceeding. Commanuvalth Edison Co., and he rejected the league's suggestion that considera-ALAB-678 (June 17,1982). tion of these issues would be prejudiced by the inves ment that Commonwealth Edison would have sunk ,t- m
' Before its expulsion from the licensing proceeding the the construction of the plant by the time the Commis-IAague had requested the Commissions Director of sion was ready to act on its application for an operating Nuclear Reactor Regulation to institute a separate pro- license, or by the alleged inability of Commonwealth ceeding to revoke Commonwealth Edison's construction Edison to spend more money on safety. The Director's permit. The Commission may revoke a license-defined denial of the league's request became final in August in 42 U.S.C.
- for any reason that $ 2235 to have would include a construction justified the Commission permit- 1981 when the Commission declined to review his action.
. in refusing to issue the license in the first place. 42 2 - - - _ .. - - - . _ _ - - - . . _
I i 4 No. 81-1772 No. 81-1772 5 We consider first, sua sponte, whether the Director's action in refusing to initiate a proceeding to revoke the the courts of appeals were not addressed. In Porter a
' construction permit for the Byron plant is reviewable in County (and possibly in Illinois v. NRC as well, though this court-as assumed, without discussion, in Illinois v. one cannot tell from the opinion in that case) the peti-tioner was a party to an ongoing proceeding before the NRC, 591 F.2d 12 (7th Cir.1979), and Porter County -
Commission. The petition for a new proceeding could i
Chap. of haak Walton League of America, Inc. v. NRC, therefore be construed as a petition for a hearing on 606 F.2d 1363 (D.C. Cir.1979)-or in the district court. safety in the ongoing proceeding, and there is a hint in The Judicial Code 28 U.S.C. 5 2342(4), gives the federal
- courts of appeals exclusive jurisdiction to enforce those Porter County that this is the true basis of the court of crders of the NRC that are made reviewable by 42 appeals' jurisdiction. See 606 F.2d at 1370. The peti-U.S.C. 5 2239; and since no other statute gives the tioner in the present case was still a, party to the licens-courts of appeals jurisdiction to review orders of the ing proceeding when it asked the Director of Nuclear 4
NRC besides 28 U.S.C. $ 2342(4), which is limited by its Reactor Regulation to initiate a proceeding to revoke i terms to orders made reviewable by 42 U.S.C. Commonwealth Edison's construction permit, but as we i only those orders are reviewable in these cour$ts. 2239, have said it is emphatic that what it wants is a brand-See new proceeding rather than an additional hearing in the 1 Citizensfor a Safe Environment v. AEC,489 F.2d 1018, 1020 (3d Cir.1973); Honicker v. Hendrie, 465 F. Supp. licensing proceeding. Cf. Gage v. AEC, 479 F.2d 1214, 414, 418-19 (M.D. Tenn.1979). Section 2239(b) in turn, 1218 (D.C. Cir.1973).
I makes reviewable "Any final order entered in any pro- A. ruh.ng th,at the courts of appeals lack j.urisdiction to ceeding of the kind specified in" section 2239(a). The review the Director's refusal to mitiate a revocation pro-proceedings specified in that section, so far as is rele- cedir.g would not leave the petitioner remediless. The vnnt to this case, are ?roceedings for granting and re- League could still bring suit m district court under 28 l voking licenses, incluc ing construction permits.
U.S.C. f 1331, the general federal-question jur At least on a literal reading of section 2239 b the tional statute, see haak Walton League of Amers,isdic- en v.
l Director's action in denying the petitioner's req (ue),st to Schlesinger, 337 F. Supp. 287, 291-92 (D.D.C.1971);
initiate a revocation proceeding was not an order, final Gage v. Commonwealth Edison Co., 356 F. Supp. 80. 84 er otherwise, in a section 2239 proceeding; it was a re- (N.D. Ill.1972); Gage v. ARC, supra, 479 F.2d at 1222, fusal to initiate such a proceedmg; and while the peti- and perhaps under other statutes such as 28 U.S.C.
tiener could in the licensing proceeding to which it was 5 1337 (acts regulating commerce ,as well. The district i
once a party have, if it had remained a party, sought a court is arguably the more approp)r,iate venue for a pro-j clay of construction, an immediate hearing on safety ceeding to review informal agency action, of which questions, or other relief the denial of which might agency inaction is a conspicuous example. In deciding perhaps-be deemed a final order in a section *2239 .
not to initiate a proceeding to revoke the Byron con-i proceeding, it did none of these things. The league is struction permit, the Director of Nuclear Reactor Regu-
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- emphatic that what it wants is a brand-new proceeding lation naturally did not compile the kind of formal wholly separate from the pending licensing proceeding. record that is the usual predicate for reviewing agency action in the courts of appeals. To decide whether he The distinction between the entry of an order in an abused his discretion it might be necessar.y to reconstruct ongoing proceeding and the refusal to launch a new pro. the mformal record on which he based his decision. The ceeding was recognized in both Illinois v. NRC, supra, district courts are better sm,ted to perform that task 591 F.2d at 14 n.3, and Porter County, supra,606 F.2d than the courts of appeals. See Susquehanna VaIIcy Al-at 1368, though the implications for the jurisdiction of liance v. Three , Mile Island Nuclear Reactor, 619 F.2d 231, 241 (3d Cir.1980).
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No. 81-1772 No. 81-1772 7 l But despite all this we have concluded, primarily on i
the authority of Natural Resources Defense Council, Inc. Commission, by the district court, by the court of l v. NRC, 606 F.2d 1261,1265 (D.C. Cir.1979), that the . appeals, and by the Supreme Court. This is too much. '
courts of appeals rather than the district courts have See Investment Co. Inst. v. Board of Gors. of Fed. Res.
exclusive jurisdiction to review refusals to initiate sec- Sys., 551 F.2d 1270,1278-80 (D.C. Cir.1977); Currie &
i tion 2239 proceedings. In NRDC the Commission had Goodman, Judicial Review of Federal Administratine i
refuse ~d the petitioner's request to institute certain li- Action: Quest for the Optimum Forum, 75 Colum. L.
I censing proceedings, believing it lacked jurisdiction. l. Rev.1,16-19 (1975). The court of appeals' lack of fact-Th2 court of appeals held that this refusal was a final finding capacity can be got round in other ways. See ord:r in a sectm.4 2239 proceeding because "a licensing Intestment Co. Inst., supra, at 1280 and n.9; Currie &
jurisdictional determination is a necessary first step in Goodman, supra, at 41-53. Even if we were somewhat inclined as an original matter to come out the other cny proceeding for the granting of a license." Similarly, i a determination under 10 C.F.R. f 2.206 to initiate a way, we much prefer where possible to avoid creating a '
i license-revocation proceeding is a necessary first step in conflict among circuits. We therefore interpret " pro-
- that proceeding. ceeding" in section 2239(b) as encompassing the infor-mal proceeding that is commenced by the request to the i One might be able to distinguish NRDC from this Director of Nuclear Reactor Regulation to institute a i
case, pointing out that the court prefaced its holding f rmal revocation proceeding.
with the words "In the circumstances of this case," 606 F.2d at 1265, and noting the court's emphasis on the Another jurisdictional question in this case is the peti-fact that it had "an administrative record on which to tioner's standing R maintain this action. The standing '
l base our review," id., which as we have said could be a of an organization is derivative of it: members' stand-problem in a discretionary agency inaction case such as ing, see Sierra Club v. Morton, 405 U.S. 727,739 (1972),
i this. But jurisdictional lines ought whenever possible to so we must consider whether members of the Rockford
! be clear, so that litigants know what court they can pro- League of Women Voters would have had standing to ceed in: it would not do to distinguish between jurisdic- complain about the Director's action if they had filed tional and discretionary refusals to act for purposes of this petition personally. They would have if they could 1
allocating jurisdiction between the courts of appeals and show a threat of physical illness or injury. The Leagu,e's
- the district courts, request to the Director to initiate a permit-revocation proceeding alleged, plausibly enough given the proxim-The District of Columbia Circuit's holding in NRDC ity of Rockfo ridmittedly does some violence to the language of 42 the League ,rd hve tonear the construction site, the site of the that members,of Byron Station -
I U.S.C. $ 2239(b), but not so much, we think, as cannot near enough we should think to be endangered should be justified by the benefits to judicial economy from the Byron plant be unsafe. This does not qui,te answer
', confining judicial review of NRC determinations to the the standmg question, because until the plant is actually I
courts of appeals. Whenever the district courts have li ensed there cannot be any danger to the mhabitants of
'urisdiction to review agency action, it means that any- Rockford. But the League fur j y aggrieved by that action is entitled to two succes- safety problems that it raised m,the,r alleges to its request that theif Di-th,e l
i siva judicial reviews of it-first in the district court and rector are not solved before constructi,on is, completed then, on appeal, in the court of appeals. This in turn j they will never be solved-the Commission will be sta,m-
! implies five tiers of potential judicial or quasi-judicial peded ,into granting a license regardless. This allegation
!' review of the petitioner's request in this case: by the is sufficient to confer standing, and we come at last to Director of Nuclear Reactor Regulation, by the full the nerits. ,
I--_..., _ . - - , _ , - , . , _ , . - _ -. - . - - , . _ . . _ . - . . . _ . , , . _ - . - , _ - - - . _ . _ . - . . _ _ . . _ _ ,
1 8 No. 81-1772 f No. 81-1772 9 In turning down the League's request that he institute Having put aside any question whether the Commis-I.
a proceeding to revoke Commonwealth Edison's con- . sion violated a statute, regulation, or other rule, we have struction wrmit, the Director of Nuclear Reactor Regu- now to consider the scope of judicial review of pure
' lation via ated no statute or regulation. See lilinois v. agency inaction-that is, agency refusal to exercise a NRC, supra,591 F.2d at 14; Porter County, supra,606 power which is not also a duty. See Stewart & Sunstein, F.2d at 1367-69. The statute, 42 U.S.C. I 2236(a), per- Public Programs and Private Rights, 95 Harv. L Rev.
mits but does not direct the NRC to revoke a license or 1193. 1197, 1205-06, 1284-89 (1982).
- permit, and the implementing regulations are ikewi rmissiv,e rathe,r than manda, tory. The only ing ihe The Supreme Court has reminded us in another con-irector is req text that the scope of judicial review of agency inaction j
tute a revocat,uired to do is, if he decides not to ins :-
ion proceeding, to notify the requesting is very limited. See Dunlop v. Bachou' ski,421 U.S. 560
- party m writing of his decision and of the reasons g9r 572-73 (1975). Our own decision in Rlinois v. NRC,'
it-which he did. su ra,591 F.2d at 16, a case much like this one, states
! that it is confined to " extremely compelling circum-But the league argues that in decisions reviewing the stances." To similar effect see Porter County, supra,606 Director's exercise of his discretion to institute or de- F.2d at 1369-70. Government agencies have limited cline to institute revocation proceedings the Commission resources to perform their appointed tasks. The courts has created, in common law fashion, an implicit rule as cannot tell them how to allocate those resources so as to
! to when such proceedings should be instituted, a rule get the most value out of them. That calls for a man-i that it violated in this case. We do not understand the agerial judgment. The Byron Station is not the only force of this argument. If the Commission has the power nuclear power plant under construction or in operation l (and we do not doubt that it has) to create rules by the that the Nuclear Regulatory Commission has to worry
- common law process of case by case inclusion and exclu- about. The Commission is in the midst of one proceeding
! sion, it must also have the power to modify those rules dealing with the Byron plant, the licensing proceeding, in the same way, and its refusal to disturb the Direc-i in which the safety issues that trouble the League will -
i tor's decision in this case, if inconsistent with its previ- be considered and in which hearings are about to start
! ous common law rule, may be taken to modify it. But in in which the Imague, as a result of its recent reinstate-cny event the only two rules we are able to find in the ment, can still participate if it wants. We cannot~say decisions that have been cited to us do not suggest that that the Commission must launch another proceeding on "
the Director violated any common law rule of the Com- the same issues at the same time-which is what the mission. One rule, obviously inapplicable to this case, is League wants us to say-rather than use the adjudica-i that the Director must initiate a section 2.202 proceed- tory resources that would be consumed in such 'a pro-
- ing when substantial health or safety issues arise after P ceeding somewhere else in its regulatory domain. -
nuclear facility has ne into operation. See Consoli-
, dated Edison Co., 2,g.R.C.173,176 (1975). The et r The League argues that it is too late to address safety i
is that be should not mitiate such a proceedmg wh,en the issues at the operating-license stage. By then the plant I safety issues that it would address are bemg considered is complete, or nearly so; billions of dollars may have m another proceeding, as they are here. See Pacific Gas been sunk in its construction; the Commission would
& Elec. Co.,13 N.R.C. 443 (1981). If this is a valid rule' never insist on costly safety modifications-let alone re-it , puts the Imague right out of court; but since the Com-quire that the plant be rebuilt from scratch because its mission does not rely on it, we shall not either. fundamental design was unsafe-especially where, as here, the utility is c.lleged to be financially shaky. This
, argument would have more force in a case where con-
10 No. 81-1772 No. 81-1772 11 struction was in its early stages. But the Byron plant is The petition for review is now 80 to 90 percent completed. If there is the mo-mentum the Imague fears, it is by this time irreversible. DENIED.
But even if the Byron plant were further from comple-
! tion than it is, we doubt that we would find the League's A true Copy:
I argument for our intervening to compel the Commission l to conduct a second, parallel proceeding impressive. In Teste:
i polite but unmistakaale innuendo the Imague accuses the Commission of being the tool of the utility. It refuses
- to accept the Commission's assurance, founded on sta-tute and regulation, that it will not grant an o wrating Clerk of the United States Court of j license for an unsafe plant no matter how muc 1 money Appeals for the Setenth Cirruit 4
has been irrevocably sunk in its construction or how financially distressed the utility is. If the Imague is right in its insinuation that the Commission is a captive Cf Commonwealth Edison there is very little this court can do. If the Com niasion will not honestly ccasider the safety issues raised by the Imague in the hearings on Commonwealth Edison's app'ication for an oprating i license that are due to begin this August it wi:I not do so in hearings on a permit-revocation proceeding or-dered by us that realistically could not begin till later.-
The nuclear accident at Three Mile Island in 1979, much emphasized in the League's submissions, has caused justifiable anxiety about the safety of nuclear l power plants. The Commission points to many steps that j at has taken in the wake of the accident to assure their
- safety. The Imague argues that these steps are inade-
. quate. We are not a ceinpetent forum to resolve this dis-
, pute, which is technical in nature. Our job is to assure '
i that the Commission complits with the specific statutes i' and regulations applicable to its regulatory activities. It -
has done so here. Beyond that our power to review an agency's decision not to initiate a proceeding. is ex-tremely limited. We would exercise it only if we were ,
strongly convinced that the Commission was inexcusa-bly defaulting on its fundamental responsibility to pro-tect the public safety icom nuclear accidents. Given the '
pendency of the licensing proceeding, we are not so con-vinced in this case.
USCA 6730-Midwest Law Printing Co., Inc., Chicago-7-6-82-400
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