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' October-4, 1990-4r i
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Ms. Constance L. Dupre, Clerk l
United States court of Appeals' for the District of Columbia Circuit Roon 5423, United States Courthouse-333 Constitution Avenue, N.W.
Washington, D.C.
20001-2866 Re:
Nuclear Information & Resource Service, et al. v.
l United States Nuclear Reaulatory Commission, et al.,
No. 89-1381
Dear Ms. Dupre:
Enclosed for filing in the above-captioned case is an original and four copies of "Information Requested By The Court During
-Oral Argument".
Please have-your office stamp the enclosed' copy of this letter to indicate date of filing and return it to this office at your earliest convenience.
Thank you for your cooperation.
Sincerely,-
$2N f PC Steven F. Crockett Attorney Office of the General Counsel In dup.
Enclosures:
Information Raquested by i
the Court (5) cc:
Counsel of Record and Counsel for Amici l
9408170079 940629 PDR COMMS NRCC CDRRESPONDENCE PDR
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i UNITED STATES COURT OF APPEALS 1
FOR THE DISTRICT OF COLUMBIA CIRCUIT t
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NUCLEAR INFORMATION AND RESOURCE SERVICE,-
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2lI AL.a.,
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Petitioners,
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No.'89-1381
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UNITED STATES NUCLEAR REGULATORY-COMMISSION
)
l and the UNITED STATES'OF AMERICA,
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)
Respondents.
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i INFORMATION REQUESTED BY THE COURT DURING ORAL ARGUMENT I
On September 26, 1990, during' oral argument in the case captioned above, the undersigned counsel for.the Respondents i
stated that, despite the ruling in Massachusetts Public Interest i
i Research Groun. Inc. v. NRC, 852 F.2d 9 (1st Cir. 1988) i
("MassPIRG"), and similar cases holding NRC denials of "2.206"-
I petitions presumptively unreviewable, the NRC had declined to I
argue in a recent case in the Fifth Circuit that the agency's denial of the particular "2.206" petition at issue in that case was unreviewable.
During the oral argument on September 26, counsel for the Respondents was able to provide only the names of the parties in the litigation in the Fifth Circuit.
This Court therefore directed counsel to provide the Court and counsel for the other parties with more information on the' litigation in the Fifth Circuit.
That information is provided below and in the attachments hereto.
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m' As counsel for the Respondents stated during oral argument, the title of the litigation in the'Fifth Circuit was citizens Concerned Ahput Nuclear Power. Inc., v.
U.S.
Nuclear Reaulatory Commission, No. 88-4161.
The NRC order at issue in the case was affirmed on January 13, 1989, in an unpublished eer curiae opinion and order, both of which are attached (Attachment 1).
Because the January 13 Opinion does not discuss the issue of whether NRC denials of 2'.206 petitions are judicially reviewable, we have also attached the pages from the NRC's brief in Citizens Concerned in which the NRC stated why the NRC was not arguing I
that the denial of the particular 2.206 petition at issue there was unreviewable (Attachment 2).
At the request of the Petitioners in the present case, we l
have also attached the pleadings in which the NRC argued the unreviewability of the denials of the 2.206 petitions at issue in MassPIRG (Attachment 3) and Arnow v. NRC, 868 F.2d 223 (7th Cir.
1989) (Attachment 4).
Arnow joined MassPIRG and this Court's decision in Safe Enerav Coalition v. NRC, 866 F.2d 1473 (D.C.
Cir. 1989), in holding that denials of 2.206 petitions are presumptively unreviewable.
The NRC's argument that the denial of the 2.206 petition at issue in Safe Enerav was unreviewable l
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appears on pp. 16-26 of the NRC's brief filed with this Court in that case.
Respectfully submitted, STEVEN F.
CROCKETT Attorney Office of the General Counsel Washington, D.C.
20555 (301) 492-1600 Dated:
October 4, 1990 l
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l CERTIFICATE OF SERVICE l
I hereby certify that copies of the foregoing "Information I
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Requested By The Court During Oral Argument" were served on the f'ollowing parties and' amici curlae by"first. class mail this 4th
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day of October 1990:
i Eric R. Glitzenstein Marcus A. Rowden Dean R. Tousley P. David Richardson Harmon,'Curren & Tousley Michael A. Waldman 2001 S Street, N.W.
Fried, Frank, Harris Washington, D.C.
20009 Shriver & Jacobsen i
Suite 800 James P. Ricchio 1001 Pennsylvania Ave., N.W.
Nuclear Information and Washington,.D.C.
20004-2503 Resource Service 1424 16th Street, N.W.
Dorothy Thompson Suite 601 Suite 310 l
Washington, D.C.
20036 13900 Northwest Passage Marina Del Ray, CA 90292 l
Robert Guild Energy Research Foundation-l 537 Harden Street l
Columbia, South Carolina 29205 j
l N
STEVEN F. CROCKETT Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 (301) 492-1600-e
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88-4161 t
CITIKERS N ABOUT NUCLEAR POTTER, IEC.,
Petitioner, versas U. S. BUCLEAR NEGUIATORY COpetISSION, Respondent.
Petition for Review of an Order of the U. S. Noclear Regulatory Commission (42 U.S.C. 5 2239 s 29 U.S.C. 5 2342 to 2349)
(January 13, 1959)
Before POLITZ and JOLLY, Circuit Judges, and EUlrTER*, District Judge.
s.
'l PER CURIAM **
This matter is before the court on a petition to review an I
l order of the United States Nuclear Regulatory Commission. After l
l considering the briefs and oral arguments of ew=====1, and
- District Judge of the Western District of Louisians,. sitting by designation.
3
- Iacal Rule 47.5 provides:
"The publication of opinions that j
have no precedential value and merely decide particular cases on j
the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion i
should not be published.
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pertinent parts of the record, and being convinced that there has I
been no demanatration that the Director's Decisica for the Woclear Regulatory e - Ission, rendered December' 13, 1987 is arbitrary, capricloos, the result of an abuse of diseration, or otherwise not in accordance with inw, 42 U.S.C. 5 2239; 5 U.S.C.
5 70s, the petition for review is DENIED.
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1 MRIstERApuns Enttebefatts Gmtri of Appals Estro FOR THE PIPTH CIRCUIT yj3g No. 88-4161 MEN smW N.R.C. No. 42 U.S.C. 5 2239 a 29 U.S.C. 5 2342 to 2349 i
l CITIIENS CONCERNED AEUT j
NUCLEAR POWER, INC.,
Petitioner, versus U.S. NUCLEAR REGULATORY COMMISSION, Respondent.
Petition for Review of an Order of the U.S. Nuclear Regulatory Commission i
Before POLIT?. and JOLLY, Circuit Judge, and HUNTER *, District Judge.
f JUDGMENT This cause came on to be heard on the petition of citizens Concerned About Nuclear Power, Inc. for review of an order of the U.S. Nuclear Regulatory Commission.
ON CONSIDERATION WHEREOF, It is now here ordered and adjudged l
by this Court that the petition for review in this cause is denied.
IT IS FURTHER ORDERED that petitioner pay to respondent the costs on appeal, to be taxed by the Clerk of this Court.
January 13, 1989 i
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ISSUED AS MANDATE: FEB I Y
- District Jud designation. ge of the Mastern District of Louisiana, sitting by
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f CITIEENS CONCERIED ABOUT socLEAR POWER, zmC.,
Petitioner, versus l
U. S. EDCLEAR NEGUIATORY CosetISSIDE, mespo dent.
i Petition for Baview of an Order of the f
U. S. Eaclear Regulatory Commission (42 U.S.c. 5 2239 s 29 U.S.C. 5 2342 to 2349)
(January 13, 1989) l Before POLITE and JOLLY, Circuit Judges, and EmrTER*, District Judge.
's PER CURIAMa**
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This matter is before the court on a petition to review an i
I order of the United States Ecclear Regulatory Commission. After considering the briefs and oral arguments of counsel, and j
- District Judge of the Western District of Imuisiana,. sitting by i
designation.
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- Iocal Role 47.5 prwides:
"The publication of opinions that
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bare no precedential vaine and merely decide particular cases on j
the basis of well-settled principles of Inw imposes needless expense on the public and bordens on the legal profession."
j Pursuant to that Bale, the court has determined that this opinion j
should not be published.
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pertinent parts of the record, and being convinced that there has been no h atration that the Director's Decision for the unclear Esgulatory Commission, rendered December 13, 1987 is arbitrary, capricious, the result of an abuse of discretion, or otherwise not in accordance with inw, 42 U.S.C. 5 2239; 5 U.S.C.
5 706, the petition for review is DENIED.
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No. 88-4161 MEN
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EKsw N.R.C. No. 42 U.S.C. 5 2239 & 29 U.S.C. 5 2342 to 2349 CITIZENS CONCERNED AIDUT NUCLEAR POWER, INC.,
Petitioner, l
Versus U.S. NUCLEAR REGULATORY COMMISSION, Respondent.
Petition for Review of an Order of the U.S. Nuclear Regulatory Comission Before POLITr. and JOLLY, circuit Judge, and HUNTER *, District Judga.
JUDGHENT e
This cause came on to be heard on the petition of citizens Concerned About Nuclear Power, Inc. for review of an order of the U.S. Nuclear Regulatory Comission.
ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this court that the petition for review in this cause is denied.
IT IS FURTHER ORDERED that petitioner pay to respondent the costs on appeal, to be taxed by the Clerk of this Court.
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January 13, 1989 1
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ISSUED AS MANDATE: FEB 6 2
- District Judge of the Western District of Louisiana, sitting by designation.
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ATTACHMENT 2 (From NRC Brief in Citizens Concerned About Nuclear Power v. NRC, No.
i 88-4161, Fifth Circuit.)
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a ARGUMENT l
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The Standard Of Review Of The NRC Actions i
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In reviewing this case the Court must defer to the I
agency's judgment unless the action being complained of is l
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" arbitrary, capricious, an abuse of discretion. or otherwise not in accordance with law."
5 U.S.C. 'S 706 (2) (A).
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This standard is particularly deferential with regard to i
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the NRC.
In the Atcenic Energy Act Congress enacted a statutory l
scheme that is " virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in i
achieving the statutory objectives."
Detroit Edison Co. v. NRC, f
a 630 F.2d 450, 453 (6th Cir.1980), quotinct Siewol v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968).
- See, e.g., Carstens v. NRC, 742 F.2d 1546, 1551 (D.C. Cir. 1984), cert. denied,.471 U.S. 1136 (1985);
i Three Mile Island Alert, Inc. v. NRC, 774 F.2d 720., 727-28 (3d l
Cir. 1985), cert. denied sub nom. Aamodt v. NRC, 475 U.S. 1082 (1986).18 l
l'The court of Appeals for the First Circuit has held that a l~
Director's denial of a request for enforcement action pursuant to
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i 10 C.F.R. S 2.206 is unreviewable.
Massachusetts Public Interest Research Group, Inc. v. NRC, 852 F.2d 9 (1st Cir. 1988)
("MassPIRG"), citing Reckler v. Chanev, 470 U.S. 821 (1985).
Although the order the petitioners are challenging appears in the i
form of a Director's denial of a 2.206 petition, we believe the case is distinguishable from Mass PIRG, and we do not argue that
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this decision is unreviewable.
The order found unreviewable in 4
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Mass PIRG denied a request for Commission enforcement action (FOOTNOTE CONTINUED ON NEXT PAGE) i j.
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The Cossaission's Treatment Of Petitioner's
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Motion To Reopen The Closed Record Of A Terminated Adjudicat'ry Proceeding Nas A o
Sound Exercise Of Agency Discretion And violated No Rights Of Petitioner l
A.
The Comunission's Determination That CCANP's New Evidence Failed.To Raise.A. Substantial Issue Narranting A New Nearing Nas Clearly Correct CCANP's Motion failed, understandably enough, to show how alleged intimidating conduct by certain Region IV managers at the Comanche Peak nuclear power plant after the fall of 1985 could have tainted the 1982 and 1984 NRC. staff testimony before the Licensing Board regarding the South Texas nuclear power plante
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l Thus the Director's conclusion that CCANP's Motion " simply speculate [d] as to the applicability of the statements made before Congress concerning Comanche Peak to the South Texas proceeding" and amounted to mere " conjecture fal1[ing] far short of the l
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(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) against the holder of a' reactor operating license.
The petitioner's request in the present' case was not specifically for enforcement action against the holder of an NRC license but rather for further proceedings prior to the issuance of a license.
In effect, it was a request that the NRC deny a license or at least delay issuing it.
Denial of that request constitutid a step in the process toward the final agency decision issuing the full I
power operating license for South Texas.
Pursuant to Sections 189(a) and. (b) of the Atomic Energy Act, a decision to issue an operating license is reviewable upon a timely-filed petition.
Thus, because the Director's decision was part of an NRC decision to issue an. operating license, it is not per 3,unreviewable even though it took the form of a 2.206 denial.
See Mass PIRG, 852 F.2d at 18, n.12.
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~t M.QMh, ;.d.pggg.s ':. N g UNITED STP.TMC iw;RT OF APPEALS FOR THE FIRST CIRCUIT ~
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MASSACHUSETTS PUBLIC INTEREST
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RESEARCH GROUP, g al.,
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Petitioners,
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v.
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No.
87-1865
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9 UNITED STATES NUCLEAR
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h REGULATORY. COMMISSION, et al.,-
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a RESPONDENTS' MOTION TO DISHISS
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Petitioners, the Massachusetts Public Interest Research D
SM Group (*MASSPIRG') and several-others,I have petitioned this Court 4
to review a decision of the Nuclear Regulatory Commission (*NRC' N
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- * ' Commission *) to deny a request for enforcement action 1
contained in a petition submitted to the agency under 10 C.F.R.
S 2.206 (198?).
The United States of America 2 and the, United States Huclear Regulatory Commission (hereinafter collectively f
referred to as ' respondents") move to dieniss the instant petition for review on the ground that the refusal by the nuclear 3.
P.egulatory Commission to take discretionary enforcement action is i
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2 1
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MI 1Pilgrim Alliance, Plymouth County Nuclear Information
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Committee, Inc., Pilliam B. Golden, Barbara A. Hildt, and Frank
[p; M. Bynes.
M+Z 2While the United States was not named as a party, it must
-3 be one in this action.
See 28 U.S.C. 5 2344; Fed. R. App. P.
K 15(a).
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,.r-unreviewable under th-Supreme Court's decision in Reckler v.
Chaney, 470 U.S. 821 (1985).
STATUTORY, REGULATORY AND FACTUAL BACKGROUND A.
Requests For NRC' Enforcement Action Under the Atomic Energy Act of 1954, 42 U.S.C. $ 2011 et, seq., and the Energy Reorganization Act of 1974, 42 U.S.C.
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5 5801 et seq., the NRC has broad authority to license and
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y; regulate the cons.truction and op.eration. of nuclear. power.pla.nts.>.,,,
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developed a detailed regulatory framework for.the administrative
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Processing and adjudication of applications related to -
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,-<y construction per.mits and operating. lice,4.:.
see generally,i
, r, i.<v nses.e, 9-Vermont Yankee Nuclear Power corp. v.~ flatural Resources Defense
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6 council, Inc., 435 U.S. 519, 526-27 (1978).
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After a permit or license is issued, the licensee -
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remains subject to continuing URC review and oversight which
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ensures compliance with Commission requirements and continued 7
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protection of the public health and safety. The NRC has a ' wide
Q, range of enforcement remedies with which to accomplish these
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letters confirming voluntary commitments by licensees,
.. /6'. + r noticesofviolation,civilpenaltiesf,a,ndordersmodifying,.
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suspending, or revoking the licenses themselves. See generally, y
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Actions,' 1'O C.F.R. Part 2, Appendix C (1987).
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The commission's regulation found,at 10 C.F.R. 5 2.206 l
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(1987) is the key to understanding the procedural posture of this j
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case.
i Section 2.206 provides that members of the general public
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can request the !!RC to suspend, revoke or modify a license or i
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take any other appropriate enforcement action. A 2.206 petition must specify not only the relief requested, but also *... set I
j forth the facts that constitute the basis for such request."
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10 C.F.R. $ 2.206(a).
see, e.g., Philadelphia Electric Company y
(Limerick Generating Station, Units 1 and 2), DD-85-11, 22 !!RC t
149, 154 (1985); Philadelphia Electric Companu (Linerick 4
Generating station, Units 1 and 2), DD-82-13, 16 NRC 2115, 2121,
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n.12 (1982) (citing cases). The petitioner may direct the request to one of several specified NRC staff officials, j
including the Director of the NRC's Office of Nuclear Reactor Regulation, the official who ruled on the 2.206 request filed by
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the petitioners in this case.
l If the Director of the reviewing oYfice finds-merit in i
the request for enforcement action, he or she may institute a l
proceeding under 10 C.F.R. 5 2.202 (1987) and issue an ords-f directing the licensee to show cause why the NRC should not take the enforcement action requested by the petition. A 2.202 order h
lists the alleged regulatory violations or other facts that are t'
grounds for the proposed enforcement actions informs the licensee N
i that it must file an answer in which the licensee can request a-(
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e hearings specifies the issues that will be considered in any such
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p hearings and states the effective date of the proposed order, f
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l which under certain circumstant n can be made immediately i
l effective.
If the licensee demands a hearing, the Director l
iasues an order designating the time and place of a hearing.
After the hearing (assuming one is sought), the Director g,
determines the appropriate enforcement action and the NRC staff 1
carries out his directions.
see generally, Consolidated Edison Company of New York (Indian Point, Units 1, 2 and 3), CLI 75-8, 2 !!RC 173,176 (1975).
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f If, on the other hand, the Director determines that no I
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j show cause proceeding is warranted, he,must notify the person who i
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e,s submitted the 2.206 request for enforcement action of that l
l decision in writing, providing a statement of reasons for that decision.
While the regulations specifically provide that the i
i Commission will not entertain appeals from the Director's j
decision, see 10 C.F.R. 5 2.206(c)(2) (1967),~the Commission l
undertakes a sua sponte review of each,and every denial of a 3
2.206 petition to ensure that the Director has not abused his t,, '
discretion.
10 C.F.R. ! 2.206(c)(1) (1987).
See generally,
.;b Nuclear Regulatory comnission (Licensees Authorized to Possess or i
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M Transport Strategic Quantities of Special Nuclear Materials),
CLI-77-3, 5 !!RC 16,19-20 (1977); consolidated Edison Company of j
l New York (Indian Point, Units 1, 2 and 3), CLI-75-8, 2 NRC 173, l
j 175-76 (1975).
If the Commission does not act to reverse or nodify the Director's decision within twenty-five (25) days, it becomes final agency action.
10 C.F.R. 5 2.206(c)(1) (1987).
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Jurisdiction to revie [2.206 denials, if they are reviewable at all, see Argument, infra, lies exclusively in the f
United states Courts of Appeals.
22 U.S.C. 5 2342(4); 42 U.S.c.
j 5 2239(b): Florida rower s_ Licht Co. v. Lorion, 470 U.s. 729 (1985).
i h
Y B.
Petitioners' Request For flRC Enforcement Action I
On July 15, 1986, the petitioners filed a section 2.206 j
request with the Commission.
Petitioners requested the
.9 Connission to order licensee Boston Edison Conpany ('5ECO*) to show cause why the Pilgrim I Nuclear Power station (* Pilgrim *)
I should not remain shut down or have its operating license suspended. The bases for petitioners' request were numerous alleged deficiencies:
(1) in the facility's containment 4
structure;3 (2) in the Pilgrim radiological emergency response f
plan 4 and (3) in BECO management.
The pe'titioners alleged that 3A reactor containment is one part of a structured, tiered 5
approach to public safety known as defense in depth. Defense in depth is the use of multiple levels of assurance and safety to minimize risk to the public.
The primary level of assurance is the precise des 2gn and construction of the plant, with insistence on the use of conser vative assumptions in both design,-and 1
construction criteria. The containment itself is a concrete and 1
steel enclosure cospletely surrounding the reactor so as to j
p;otect against postulated radioactive releases from hypothetical ij accidents up to and including najor. ruptures of reactor coolant piping.
4 Another part of defense in depth is the NRC's requirement for emergency preparedness on the part of licensees and state and IFootnote continued 1 f
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N these deficiencies, as described in the 2.206 request, demonstrated an absence of the reasonable assurance of safe 5
operation required by NRC regulations.
In an August 21, 1987 'Interin Decision,' the Director of Nuclear Reactor Regulation ('NRR') denied in part and granted in part the petitioners' request for continued shutdown of the plant, explaining the decision in detail.
Denied outright were Ej petitioners' arguments for shutdown on the ground that the K
Pilgrim containment is inadequate.
Petitioners cited three major areas of concern as to the containnent -- issues identified
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between 1972 and 198G but allegedly not re' solved, issues raised by the accident at chernobyl, and issues raised by recent studies i
concerning the vulnerability of the type of containment
(* Mark I') used at Pilgrim.
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The Director acknowledged that Pilgrim's containment is n
not invulnerable, but noted that the questions raised in 1972 had i
l been answered by the agency as long ago as k970, and trist others 5
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raised afterwards were resolved via generic programs.
Chernobyl, the Director concluded, has been studied by the NRC and found not to have undercut safety conclusions concerning Pilgrim.
The Director also rejected the third basis for allegations of a
inadequacy of the Pilgrim containment, namely recent st'udies
$'o da J
r E
m
[ Footnote Continued]
34$
local aut'horities.
For example, the NRC requires the provision of resources and the capability to notify promptly the public within ten miles of a plant of a serious accident.
g h
i
h O
O concluding that in some very unlikely accident scenarios the Mark I containment might be likely to fail.
Recognizing the large uncertainties surrounding the conclusions of the studies, but more importantly recognizing both the extremely low probability of 'evere accidents at Pilgrim and the overall low s
risk to the public, the Director rejected this argument.
Moreover, he noted, there are ongoing generic and plant-specific programs, including some at Pilgrim, to reduce these uncertainties and to improve containment performance,
?q ft As to the management issues raised by petitioners, the i
i Director deferred decision pending his assessment of BECO proposals for improvements to be implemented prior to restart.
Finally, the Director rejected petitionerr' proffered 2
g emergency planning arguments for continued shutdown or for E
license suspension, noting the Federal Emergency Management M
Agency's (' FEMA *) conclusion that none of the arguments was O
]
valid, most of them being identical to issues raised by'MASSPIRG in 1983, and evaluated by FEMA and the NRC at that time.
However, he noted that FEMA had found several deficiencies in offsite radiological emergency preparedness that, he concluded, should be considered prior to a Commission decision to permit
- mur, Pilgris restart.
5 The NRC bases its finding of reasonable assurance of adequate safety in part on review of FEMA assessments of offsite emergency preparedness for NRC-licensed activities.
j t
(
r s
'Y '
.ilud
O O
ARGUMENT The Commission's Refusal To Institute Discretionary Enforcement Proceedings At Petitioners'. Request la Not Judicially Reviewable.
.In Beckler v. Chaney, 470 U.S. 821 (1985), the supreme Court established a presumption that an agency's refusal to exercase its enforcement authority is not judicially reviewable, but rather is action committed to agency discretion by law, h
In a case decided the same day as Heckler, the Supreme Court held that jurisdiction to review denials of requests for 4a 44 NRC enforcement action, if reviewable at ayl, lay in the y
appropriate United States Court of Appeals, and not in a United States District Court.
Florida Power & Light Co. v. Lorion, j
470 U.S. 729 (1985).
However, the Lorion Court specifically noted the question of whether NRC refusals to take enforcement action are unreviewable, stating that the "1ssue is open to the YJ Court of Appeals on remand should the Commiksion choose to press 34 it.'
Osa remand, the D.C. Circuit found that it could easily affirm the Commission on the merits, and so declined to reach the reviewability issue.
Lorion v. Nuclear Regulatory Comminsion, 785 F.2d 1038, 1041 (D.C. Cir. 1986).
However, the Court of
~
2 i
6470 U.S. at 735, n.8.
in Lorion that NRC refusals to take enforcement action areJustice Stevens, dissenting, a unreviewable.
470 U.S. at 746-52. A
\\,
_J
0 0
Appsals. *doubtled] that on the facts, the !!RC's discretion is restricted by the Atonic Energy Act.'
785 F.2d at 1040.
As noted by the Supreme Court as a whole in Lorien and as specifically advocated by Justice Stevens, the rationale for the presumption established in Heckler fully applies to NRC refusals to take enforcement action under Section 2.206, and Congress has taken no action that can fairly be interpreted as rebutting that presumption.
fu A.
Fa Presunption of Unreviewability Established In
'EE orcement Action In This Case.c.eckler Applies To The Commission's
{
Heckler has created a high barrier to judicial review
..~
of agency refusals to take enforcenent action by finding them j
Presumptively unreviewable.
In Neckler, the Supreme Court held that the Food and Drug Administration's (*FDA') refusal to exercise its enforcement authority was not judicially reviewable.
The Court found that 5 U.S.C. 5 701(a')(2), which provides that judicial review is unavailable where " agency action is committed to agency discretion by law,' precludes judicial review if the agency's governing statute is drawn in such a way that a court is without a meaningful standard against which to judge the agency's sur exercise of discretion.
470 U.S. at $30. The Reckler Court explained that its holding was ' attributable in no small part to d
the general unsuitability for judicial review of agency' decisions to refuse enforcement,' because such refusals involve a complicated balancing of a number of factors which are peculiarly s
l j
...?:..
4,.
4-
. :..,.,~ c ;.c :. nc.- 42 ir : 1. :.
.;c;
-5 within !the agency's] expertise.
470 U.S. at 831-32. Among the factors listed were allacation of resources, likelihood of success, and overall policy.
Id.
?
Moreover, the rationale for the presumption is as
{
compelling in this instance as it was in Reekler. The courts have long noted that the Commissiort's regulatory scheme is
}
" virtually unique in the degree to which broad responsibility is y
e reposed in the administering agency, free of close prescription
)
in its charter as to how it shall proceed in achieving the h1 statutory objectives.' siegel v. Atomic Energy commission, 400 f
F.2d 778, 783 (D.C. Cir. 1968), quoted with approval g Three 5
4 Mile Island Alert v. Nuclear Regulatory Commission, 771 F,2d 720, R
727 (3d Cir. 1985)s Detroit Edison co. v. Nuclear Requ1 story Commission, 630 F.2d 450, 453 (6th Cir. 1980): Westinghouse Electric Corp. v. Nuclear Regulatory Commission, 598 F.2d 759, f
771 (3d Cir. 1979).
The Commission sets its priorities and policies and
(
allocates its resources to ensure that there is reasonable assurance of safe operation at all nuclear power plants.
As c
relevant here, the Commission's determination of what safety e
f issues should be pursued and how they should be pursued is based 4
on both an evaluation of the significance of those issues and on i
the availability and best use of its limited resources. This
" managerial judgment
- is exactly the type of factor peculiarly
{
within the agency's expertise which compelled the j
nonreviewability finding in Reckler.
Accordingly, like the FDA's l
10 i
O
/
A O
O i
i decision in Neckler, the NRC's refusal to take enforcement action "2
is, and should be, an action presumptively unsuitable for judicial review.7 fs B.
The provisions Of The Atomic Energy Act Do Hot Rebut s
i The Presumption Of Unrevievability.
39 The Heckler Court held that challengers of agency h
dec2sions may rebut the presumption of unreviewability where the
[
governing statute has provided guidelines for the agency to T
7t follow in exercising its enforcement powers.
470 U.S. at 833.
{
However, the Heckler Court found no such guidelines in the FDA's governing statute, the Food, Drug, and Cosmetic Act (*FDCA*).
af The relevant provisions of the Atomic Energy Act are markedly
)
similar to the extent that both are largely written in the 2
i 1angange of permission and discretion.
?J The Neckler Court li summarized the relevant provisions of the FDCA as follows:
T To enforce the various substantive prohibitions contained in 3
the FDCA, the Act provides for injunct' ions, 21 U.S.C. S 332, 5
3 Since the issue of nonreviewability of HRC refusals to take enforcement action was not raised before Neckler, the fact that courts reviewed section 2.206 denials prior to Heckler does not Q
demonstrate that 2.206 denials should continue to be reviewed a
after Heckler.
i Even if those pre-Heckler decisions found that Jun there were sufficient standards to make 2'.206 denial decisions 2
reviewable, the issue after Neckler is whether those standards
-g are sufficient to rebut the ) resumption of nonreviewatiility.
Moreover, the fact that a court has reviewed an agency decision f
without addressing nonrevievability should have no precedential 4
impact on the reviewability question. See generally, Falkowski-j
- v. Equal Employment Opportunity Commission, 764 F.2d 907, 910-11 g
1 (D.C. Cir. 1985) (reversing prior decision on reviewability in e
vaev of Meckler).
j g
3 k [
1.
criminal sanctions, 55 333 and 135, and seizure of any offending food, drug, or cosmetic article, 5 334. The Act's general provision of enforcement, 5 372, provides only that
- !t]he Secretar investigations.y is authorized to conduct examinations and 5 372 gives.no indication of when an injunction should be sought, and 5 334, providing for seizures is framed in the permissivo--the offending food, drug or c,osmetic *shall be liable to be proceeded against.'
The section on crininal sanctions states baldly that any person who violates the Act's substantive prohibitions
'shall be imprisoned.... or fined.'
470 U.S. at 835 (emphasis in original).
The language in the relevant provisions of the Atomic Energy Act essentially tracks the language in the FDCA.
Section 161(c) of the Atomic Energy Act authorizes the Commission to
'make such studies and investigations, obtain such information, and hold such meetings or hearings as the commission may deem necessary or proper to assist it an exercising any authority provided in this chapter, or in the administration or enforcement of this chapter....' 42 U.S.C. 5 2201(c) (emphasis added).
Section 161(1) similarly authorizes the conmission to
- prescribe such regulations or orders as it deems necessary... to govern any activity authorized pursuant to this chapter.' 42 U.S.C.
5 2201(1) (emphasis added). And see, 42 U.S.C. 5 2201(b) and (o).
Section 232, which provides for injunctions, states that
'tw]henever in the iudgment of the commission any person has engaged or is about to engage in any acts or practices which constituteorwillconstituteaviolationofanyprohisionof this chapter, or any regulation or order issued thereunder, the Attorney General... may make application to the appropriate court for an order enjoining such acts or practices....'
q - _ - -
g-
...-m I
~
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42 U.S.C. 5 2280 (emphasis added).
The section on license revocation, section 186, provides'th'at '[ajny license may be revoked for any material false ststement... or because of conditions... which would warrant the Commission to refuse to grant a license on an original application....' 42 U.S.C.
.a 5 2236(n) (emphasis added).
11one of these general provisions, all of which are framed in the permissive, provides any guidance on how the agency as to exercise its enforcement discretion, auch less requires the exercise of Commission enforcement authority in a particular
- 2 Clearly, under the rationale of Heckler, these Atomic case.
i 4
Energy Act provisions do not evidence a Congressional intent to 4
W rebut the presumption of nonreviewability that acconpanies agency t.
l refusal to take enforcement action.
{
The f.*RC Has Not Rebutted The Presumption Of lY C.
unrevievability in the atomie enerov xet U
j t i
1 The Heckler Court left open the pos,sibility that agency f l regulations might rebut the presumption as well.
470 U.S. at l
836.
This Court has not yet reached that question, although the
[
District of Columbia Circuit has very recently decided that I
binding agency regulations or even informal policy statements can age j 'i rebut the presumption of nonreviewability. Center for Auto 1
! J safety v. Dole, Mo. 86-5436 (Sept. 8, 1987) (regulations); Padula
- by
- y. Webster, 822 F.2d 97, 100 (1987) (informal policy statements 4
.g that significantly restrain agency discretion).
Assuming arquendo that requirements in agency regulations can create ' law 4
t 13 1
i to apply" that could rebut the presumption of unreviewability, the NRC has promulgated no such regulation. The petitioners filed this action under 10 C.F.R. $ 2.206, which does not specify
~',
any standards for the Director either to observe or to satisfy in reaching his decision. Instead, as the seventh Circuit recognized when reviewing a 2.206 denial, *[t]he only thing the j
Director is required to do, if he decides not to institute [the i
?!
requested enforcement action), is to notify the requesting party
}
in writing of his decision and of the reasons for it -- which he 3
?
did."
Rockford League of Women Voters v. NRC, 679 F.2d 1218, i
1222 (7th Cir. 1982). Thus, the absence of an NRC regulation that provides a meaningful standard of review distinguishes this l
case fron Center for Auto safety, suora.8 f
The NRC does have internal guidance by which the Commissioners, who are ultimately responsible for public health and cafety and who therefore ultimately exercise the agency's discretion, may review Directors' decisions for technical
.J completeness and compliance with NRC policy guidelines.
See consolidated Edison Co. (Indian Point, Units 1, 2, and 3),
CLI-75-8, 2 HRC 173, 175-76 (1975). This guidance requires a Director to institute an enforcement proceeding if there is a Icenter for Auto safety erroneously asserts in dictum that the NRC has rules which require it to institute enforcement action in certain cases.
Id.
slip op, at 31.
What the Court is referring to is not the NR Fs formal rules, but the Commission's internal guidance discussed immediately below. -
x O
O substantial health or safety issue and to explain why no such proceeding is being initiated if that is his conclusion.
The phrase " substantial health and safety problem' is a term of art within the Commission, because it is the
- 1anguage reserved as a trigger for action rather than a description of the severity of the concern.
... The Commission's precedents make it clear that it is not obligated to take enforcement action 'whenever lit]
receivels information adverse to the integ nuclear po)wer safety or safeguard systems.*gity of existing Mor6over, an agency practice of explaining its decisions doaJ not create binding requirements on how the agency must exercise its discretion.10 Neither does it' provide a court with *1aw to apply' which rebuts the Heckler presumption of unreviewability. As Justice Stevens pointed out, a ' lengthy record... does not raake the agency's inaction here any more
(
reviewable than if [the enforcement] request had been rejected in a one-paragraph letter sent by return mail.*11 8
Lorion v. NRC, 785 F.2d 1038, 1041 fcitations omitted)
(D.C. Cir. 1966).
While the D.C. Circuit concluded that the NRC's substantial safety issue standard is a " trigger for action i
rather than a description of the severity of th, concern,' the court appears to have drawn the opposite conclusion about the Department of Transportation's ' reasonable possibility of a defect" standard in center for Auto Safety v. Dole, supra.
1DThere is, for example, no regulation or caselaw that dictates when the Director is to find that there is a substantial any safety issue.
11 (Stesens, J.,
dissenting). Florida Power & Light v. M rfon, 470 U.S. 675, 751 (1985)
Similarly, the use by an agency of a reason that a court might view 6s " reviewable" does not make.an otherwise unreviewable action reviewable, see I.C.C. v.
Brotherhood of Locomotive Engineers, 55 U.S.L.W. 4770, 4774 IFootnote Continued]
[ _.
,3
.w-
-CONCLUSION There is no rational basis for distinguishing the commission's denial of petitioners' enforcement request from the FDA's denial in Neckler. Both involve decisions not to take enforcement action and both involve statutes and regulatory provisions that are framed in permissive language that fatis to rebut the presumption of unreviewability which accompanies an agency's decision not to take enforcement action.
In short, on the basis of the Supreme Court's decision in Neckler, this Court should find that the Commission's refusal to take enforcement action is not judicially reviewable.
Accordingly, the petition should be dismissed.
Respectfully submitted, A
a LAURA E. FROSSARD /~ ~
WILLIAME.BRIGf,8gJ Attorney Solicitor Appellate Section
- Land and !!atural Resources Division U.S. Department of Justice Washington, DC 20530 KICHAEIT B. BLUME Senior Attorney Office of the General Counsel 1
Commission U.S. Nuclear Regulatory Washington, DC 20555 (202) 634-1493 Dated:
10/27/87
[ Footnote Continued)
(June 9, 1987) (No.85-792).
See _also, Rockford Leaeue, supra, 678 F.2d at 1222 (Commission is not bound by internal guidance on how it will review requests for enforcement action)....
CERTIFICATE OF SERVICE 2
.t;.
W :. _...
I I hereby certify that on this 27th day of October, 1987, copies of the foregoing ' Respondents' Motion To Dismiss' 1
were mailed, postage prepaid to:
1 Wi?1iam S. Abbott, Esq.
3 Simonds, Winslow, Willis & Abbott i
50 Congress St.
5 Boston, MA 02109 y
R. K. Gad III, Esq.
a Ropes & Gray
(
225 Franklin Street Boston, MA 02110 t
V Ceorge B. Dean, Esq.
Assistant Attorney General Public Protection Bureau Office of the Attorney General
^
one Ashburton Place - Floor 19 i
Boston, MA 02108-1698 1
MICHAEL B. BLUME 1
Senior Attorney office of the General Counsel U.S. Nuclear Regulatory Commiission i
Washington, D.C. 20555 a
M a
9 A
t
ds
~
w UNITED STP.TMC w 3RT OF APPEALS FOR THE FIRST CIRCUIT
)
MASSACHUSETTS PUBLIC INTEREST 1
RESEARCH GROUP, el d.,
)
)
Petitioners,
)
)
,A v.
)
No.
87-1865 2.?
)
h"3 UNITED STATES NUCLIAR
)
REGULATORY.COMl'.ISSION, et al.,'
)
)
CA.
y Respondents.
)
[h
)
-s
?;
w RESPOffDENTS' MOTION TO DISMISS h,
6.'
Petitioners, the Massachusetts Public Interest Research D
W Group ("MASSPIRG') and several others,1 have petitioned this Court to review a decision of the Nuclear Regulatory Commission ('NRC' ffd i
or " Commission") to deny a request for enforcement action Td
$4 contained in a petition submitted to the agency under 10 C.F.R.
e*
5 2.206 (1987).
The United States of America 2 and the. United States Nuclear Regulatory Commission (hereinafter collectively referred to as " respondents *) move to dicniss the instant 3-g petition for review on the ground that the refusal by the Nuclear Regulatory Commission to takre discretionary enforcement action is b
-9 78,.
1 ff:
Pilgriz Alliance, Plymouth County Nuclear Information
- "t A
Committee, Inc., Pilliam B. Golden, Barbara A. Hildt, and Frank T-M. Bynes.
}ff'-
2
+
\\
While the United States was not named as a party, it must Fj l
be one in this action.
See 28 U.S.C. 5 2344 Fed. R. App. P.
4 15(a).
y 4
~
[
9k 8l
unreviewable under the Supreme court's decision in Meckler v.
Chaney, 470 U.S. 821 (1985).
STATUTORY, REGULATORY AND FACTUAL BACKGROUND A.
Requests For NRC Enforcement Action Under the Atomic Energy Act of 1954, 42 U.S.C. 5 2011 et seq., and the Energy Reorganization Act of 1974, 42 U.S.C.
O 5 5801 et seq., the NRC has broad authority to license and f-7
. AY'.Q -
~
,. ~Y t.;
regulate the cons.truction and operation of nuclear. power. plants.1
. */
',5 In keeping with:this statutory authoI hation, the agency.has -
my ms.
m r.;:
developed a detailed regulatory framework ~for.the administrative
'h.
L.
g..
-...c~.,
er a.
.e.
processing and adjudication of applications related to -
.. r. v.y
.., 1.&e-
.i.
ar, v
.s y
construction per.mits and ope.m... rating.li.c,.,..enses.s See generally,
.3 a. /4
.y Vermont Yankee Nuclear Power Corp. v.'ffat'ral Resources Defense u
- l. 3 coeneil, Inc., 435 U.S. 519, 526-27 (1978).
).'
r
- ,i
+. ;*:,
After a permit or license is issued, the licensee
. p.jt p.
f, remains subject to continuing NRC review and oversight which
".' -ft e:
, 't J.;
ensures compliance with Commission req...uirements and continued
--Yr.
. ~. 4; *; :s;;.
protection of the public health and safety. The NRC has a' wide
'.'. 9, range of enforcement remedies with which to accomplish these goals:
letters confirming voluntary commitments by licensees,
.. ci:.
notices of violation, civ11'penaltie %.
'.? '
v'.
s, and orders modifying, Q..,.;.
1 suspending, or revoking the licenses themselves.
See cenerally, y
[
' General Statement of Policy.and Pr,ocedure for NRC Enforcement Nl-s
'(-
..;f.;.
Actions,' l'0 C.F.R. Part 2, Appendix C (1987).
(.
.,'jj;l g.:
.n, y,:; 2.;..
7, n.. m.
=.
.}_g.
- }.c.-Q.g.gg. y.,'.
Jcy
- g. ;>.
.. g n..
l,. k.@ y
. G,:: % 4.S c.. Q:_N5 f.:..
z :...
- 5. N!Y.f ?:
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- !$f(
5.Ib h.h W '??'
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d.
The Commission's regulation found at 10 C.F.R. 5 2.206 k'
(1987) is the key to understanding the procedural posture of this
[d C-I',..
case.
y.
Section 2.206 provides that members of the general public G
3 [.
b.' -
can request the URC to suspend, revoke or modify a license or e'
{. -
take any other appropriate enforcement action. A 2.206 petition l
must specify not only the relief requested, but also '... set forth the facts that constitute the basis for such request."
10 C.F.R. 5 2.206(a).
see, e.g., Philadelphia Electric company y
(Limerick Generating Station, Units 1 and 2), DD-85-11, 22 NRC 149, 154 (1985): Philadelphia Electric Company (Linerick Generating Station, Units 1 and 2), DD-82-13, 16 NRC 2115, 2121, n.12 (1982) (citing cases). The petitioner may direct the request to one of several specified NRC staff officials,
..g including the Director of the NRC's Office of Nuclear Reactor Regulation, the official who ruled on the 2.206 request filed by 4
the petitioners in this case.
i If the Director of the reviewing oYfice finds merit in the request for enforcement action, he or she may institute a proceeding under 10 C.F.R. 5 2.202 (1987) and issue an ords-directing the licensee to show cause why the NRC should not take the enforcement action requested by the petition.
A 2.202 order
.g lists the alleged regulatory violations or other facts that are On'
't grounds for the proposed enforcement actions informs the licensee
+
that it sust file an answer in which the licensee can request s
4 l
l hearings specifies the issues that will be considered in any such t
E.
..Yl.
hearing; and states the effective date of the proposed order, 2,
p fe:
l h
g,- l
^
r.. w. :...,,
>$ i :.
't.
?
. - t
?
which under certain circumstances can be made immediately effective.
If the licensee demands a hearing, the Director issues an ordet designating the time and place of a hearing.
After the hearing (assuming one is sought), the Director determines the appropriate enforcement action and the NRC staff carries out his directions.
See generally, Consolidated Edison Company of New York (Indian Point, Units 1, 2 and 3), CLI 75-8, 2 !!RC 173,176 (1975).
If, on the other hand, the Director determines that no i
show cause proceeding is warranted, he,must notify the person who submitted the 2.206 request for enforcement action of that s
l decision in writing, providing a statement of reasons for that decision.
While the regulations specifically provide that the I
(
Commission will not entertain appeals from the Director's decision, see 10 C.F.R. S 2.206(c)(2) (1987), the Commission l
undertakes a sua sponte review of each,and every denial of a 2.206 petition to ensure that the Director has not abused his
}
discretion.
10 C.F.R. ! 2.206(c)(1) (1987).
See generally, Nuclear Regulatory Comnission (Licensees Authorized to Possess or Transport Strategic Quantities of Special Nuclear Materials),
CLI-77-3, 5 !!RC 16,19-20 (1977); Consolidated Edison company of (IndianPoint, Units 1,2and3),CLI*f5I,2NRC173, New York 175-76 (1975).
If the Commission does not act to reverse or modify the Director's decision within twenty-five (25) daye, it l
i becomes final agency action.
10 C.F.R. $ 2.206(c)(1) (1987).
l ;
.;l ; ;}.
- - f :]: " -".,E F ~i f :i ' =
7 ' :-- f.': f ~ D. W. *.'- N % S W N '
I' ;
Jurisdiction to review 2.206 denials, if they are reviewable at all, see Argument, infra, lies exclusively in the United States Courts of Appeals.
28 U.S.C. 5 2342(4); 42 U.S.C.
{
$ 2239(b): Plorida Power s Licht Co. v. Lorion, 470 U.S. 729 g
(1985).
5i e
s B.
Petitioners' Request For fiRC Enforcement Action i
e On July 15, 1986, the petitioners filed a section 2.206 j
i request with the Commission.
Petitioners requested the
[
connission to order licensee Boston Edison Company ("BEco') to show cause why the Pilgrim I Nuclear Power station (* Pilgrim")
)
should not remain shut down or have its operating license suspended.
The bases for petitioners' request were numerous
}
alleged deficiencies:
(1) in the facility's containment j
structure;3 (2) in the Pilgrim radiological emergency response f
Plan 4 and (3) in BEco managenent.
The petitioners alleged that 3A reactor containment is one part of a structured, tiered I
approach to public safety known as defense in depth.
Defense in i
depth is the use of multiple levels of assurance and safety to minimize risk to the public. The primary level of assurance is i
the precise design and construction of the plant, with insistence on the use of conservative assumptions in both design and construction criteria. The containment itself is a concrete and steel enclosure completely surrounding the reactor so as to p;otect against postulated radioactive releases from hypothetical f.
accidents up to and including major. ruptures of reactor coolant
=
piping.
'i 4
~
Another part of defense in depth is the NRC's requirement
[,
for emergency preparedness on the part of licensees and state and
[ Footnote Continued) y 2
=,
W these deficiencies, as described in the 2.206 request, "b
Q demonstrated an absence of the reasonable assurance of safe R$
operation required by NRC regulations.
fc
-j In an August 21, 1987 " Interim Decision,' the Dzrector S
s]
of Nuclear Reactor Regulation ('URR") denied in part and granted in part the petitioners' request for continued shutdown of the 2g plant, explaining the decision in detail. Denied outright were D
petitioners' arguments *or shutdown on the ground that the 7s Pilgrim containment is inadequate.
Petitioners cited three major rf areas of concern as to the containment -- issues identified 9
between 1972 and 198G but allegedly not re' solved, issues raised Y4 by the accident at chernobyl, and issues raised by recent studies MW 4
concerning the vulnerability of the type of containment 9
(' Mark I') used at Pilgrim.
a h
The Director acknowledged that Pilgrim's containment is
]E invulnerable, but noted that the questions raised in 1972 had not O
been answered by the agency as long ago as 1970, and tliat others m_
]
raised afterwards were resolved via generic programs.
2 Chernobyl, the Director concluded, has been studied by the NRC and found not j
to hr.ve undercut safety conclusions concerning Pilgrim.
The Director also rejected the third basis for allegations of 3
inadequacy of the Pilgrim containment, namely recent st'udies 29
[ Footnote Continued]
5 k
b local authorities.
For example, the NRC requires the provision of resources and the capability to notify promptly the public f,
within ten miles of a plant of a serious accident, gs2 1
h
b O
9 concluding that in some very unlikely accident scenarios the Mark I containment might be likely to fail.
Recognizing the large uncertainties surrounding the conclusions of the studies, but more importantly recognizing both the extremely low probability of severe accidents at Pilgrim and the overall low risk to the public, the D1' rector rejected this argument.
Moreover, he noted, there are ongoing generic and plant-specific M
programs, including some at Pilgrim, to reduce these uncertainties and to improve containment performance.
g fi; As to the management issues raised by petitioners, the C*
i Director deferred decision pending his assessment of BECO proposals for improvements to be implemented prior to restart.
Finally, the Director rejected petitionerr' proffered 16 g
emergency planning arguments for continued shutdown or for E
license suspension, noting the Federal Emergency Management Agency's (* FEMA *) conclusion that none of the arguments was valid, most of them being identical to issuch raised by MASSPIRG in 1983, and evaluated by FEMA and the NRC at that time.
f However, he noted that FEMA had found several deficiencies in 4
offsite radiological emergency preparedness that, he concluded, i
should be considered prior to a Commission decision to permit nut Pilgrim restart.
~-
5 The NRC bases its finding of reasonable assurance of adequate safety in part on review of FEMA assessments of offsite emergency preparedness for NRC-licensed activities.
]
f I
9 R
O O
ARGUMENT The Commission's Refusal To Institute Discretionary Enforcement Proceedings At Petitioners'. Request Is Not Judicially Reviewable.
.In Heckler v. Chaney, 470 U.S. 821 (1985), the Supreme Court established a presumption that an agency's refusal to exercise its enforcement authority is not judicially reviewable, kk but rather is action committed to agency discretion by law.
In a case decided the same day as Heckler, the Supreme jurisdiction to review denials of requests for hN court held that 4it NRC enforcement action, if reviewable at a17, lay in the
- 4, appropriate United States Court of Appeals, and not in a United States District Court.
Florida Power & Light Co. v. Lorion, 5
4 470 U.S. 729 (1985).
However, the Lorion Court specifically
,3 noted the question of whether NRC refusals to take enforcement action are unreviewable, stating that the ' issue is open to the Court of Appeals on remand should the Commission choose to press it.' '
On remand, the D.C. Circuit found that it could easily affirm the Commission on the merits, and so declined to reach the reviewability issue.
Lorion v. true3 ear peculatory Comninsi_on, a
785 F.2d 1038, 1041 (D.C. Cir. 1986).
However, the Court of
.e
/
- 470 U.S. at 735, n.8.
f.
in Lorion that NRC refusals to take enforcement action ageJustice Stevens, dissenting, unreviewable.
470 U.S. at 746-52.
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'. / ~ ', '- n.. E[ [ [ b.h My.I O
O Appeals. *doubtled] that on the facts, the NRC's discretion is restricted by the Atomic Energy Act."
785 F.2d at 1040.
As noted by the Supreme Court as a whole in Lorfon and as specifically advocated by Justice Stevens, the rationale for the presumption established in Heckler fully applies to NRC refusals to take enforcement action under Section 2.206, and Congress has taken no action that can fairly be interpreted as rebutting that presumption.
s.4 A.
The Presumption Of Unreviewability Established In Heckler Applies To The Commission's Refusal To Take Enforcement Action In This case.
{
Heckler has created a high barrier to judicial review of agency refusals to take enforcement action by finding them
{
presumptively unreviewable.
In Heckler, the Supreme Court held that the Food and Drug Administration's (*FDA*) refusal to exercise its enforcement authority was not judicially reviewable.
The Court found that 5 U.s.C. 5 701(a')(2), which provides that judicial review is unavailable where
- agency action is committed to agency discretion by law," precludes judicial review if the
,{
agency's governing statute is drawn in such a way that a court is without a meaningful standard against which to judge the agency's sur exercise of discretion.
470 U.S. at 830.
The Heckler Court explained that its holding was ' attributable in no small part to i
the general unsuitability for judicial review of agency' decisions to refuse enforcement," because such refusals involve a complicated balancing of a number of factors which are peculiarly g
s '
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s within Ithe agency's) expertise.
470 U.S. at 831-32. Among the i
factors listed were allscation of resources, likelihood of j
success, and overall policy.
Id.
Moreover, the rationale for the presumption is as f
8 compelling in this instance as it was in Neckler. The courts j
have long noted that the Commission's regulatory scheme is
)
?
" virtually unique in the degree to which broad responsibility is g
e reposed in the administering agency, free of close prescription
)
in its charter as to how it shall proceed in achieving the h1 statutory objectives.' Siegel v. Atomic Eneroy Commission, 400 ei F.2d 778, 783 (D.C. Cir. 1968), quoted with approval in Three Y
Mile Island Alert v. Nuclear Requiator1 Commission, 771 F.2d 720, t
727 (3d Cir. 1985); Detroit Edison Co. v. Nuclear Regulatory i
Commission, 630 F.2d 450, 453 (6th Cir, 1980) Westinghouse Electric Corp, v. Nuclear Regulatory Commission, 598 F.2d 759, f.
771 (3d Cir. 1979).
I The Commission sets its prioritiep and policies and f
allocates its resources to ensure that there is reasonable N
'i assurance of safe operation at all nuclear power plants. As relevant here, the Commission's determination of what safety
_j issues should be pursued and how they should be pursued is based f;
on both an evaluation of the significance of those issues and on i
the availability and best use of its limited resources. This
- sanagerial judgment" is exactly the type of factor peculiarly within the agency's expertise which compelled the j
nonreviewability finding in Heckler.
Accordingly, like the FDA's
[
7 decision in Heckler, the NRC's refusal to take enforcement action is, and should be, an action presumptively unsuitable for judicial review.7 4
s B.
The Provisions Of The Atomic Energy Act Do Not Rebut The Presumption Of Unreviewability.
$p k
The Heckler Court held that challengers of agency dec2sions may rebut the presumption of unreviewsbility where the governing statute has provided guidelines for the agency to
}I follow in exercising its enforcement powers.
470 U.S. at 833.
2 fl However, the Heckler Court found no such guidelines in the FDA's k
governing statute, the Food, Drug, and Cosmetic Act ("FDCA').
The relevant provisions of the Atomic Energy Act are markedly
.]
similar to the extent that both are largely written in the
$)
language of permission and discretion.
k The Heckler Court 1
summarized the relevant provisions of the FDCA as follows:
s To enforce the various substantive prohibitions contained in the FDCA, the Act provides for injunct' ions, 21 U.S.C. 5 332, y
)i t
Since the issue of nonteviewability of HRC refusals to take
[r enforcement action was not raised before Heckler, the fact that courts reviewed section 2.206 denials prior to Heckler does not C
demonstrate that 2.206 denials should continue to be reviewed after Heckler.
A Even if those pre-Heckler decisions found that Jae there were sufficient standards to make 2.206 denial decisions
?
reviewable, the issue after Heckler is whether those standards j
are sufficient to rebut the presumption of nonteviewatiility.
Moreover, the fact that a court has reviewed an agency decision p(
without addressing nonreviewability should have no precedential impact on the reviewability question.
See generally, Falkowski j
j
- v. Equal Employment Opportunity Commission, 764 F.2d 907, 910-11 g
(D.C. Cir, 1985) (reversing praor decision on reviewability in
?
vsew of Heckler).
y r
$a lr N {
l
O O
criminal sanctions, 55 333 and 335, and seizure of any offending food, drug, or cosmetic article, 5 334 The Act's general prov1sion of enforcement, 5 372, provides only that
- !t]he Secretary is authorized to conduct examinations and investigations....' 5 372 gives no indication of when an injunction should be sought, and 5 334, providing for seizures, is framed in the permissive--the c! fending food, drug or cosmetic *shall be liable to be proceeded against.'
The section on criminal sanctions states baldly that any person who violates the Act's substantive prohibitions
- shall be imprisoned-... or fined.'
l 470 U.S. at 835 (emphasis in original).
The language in the relevant provisions of the Atomic Energy Act essentially tracks the language in the FDCA.
Section 161(c) of the Atomic Energy Act authorizes the Commission to "make such studies and investigations, obtain such inforsation, and hold such meetings or hearings as the Commission may deem necessary or proper to assist it in exercising any authority provided in this chapter, or in the administration or enforcement of this chapter...."
42 U.S.C. 5 2201(c) (emphasis added).
Section 161(1) similarly authorizes the Corunisalon to " prescribe such regulations or orders as it deems necessary...
to govern any activity authorized pursuant to this chapter."
42 U.S.C.
5 2201(1) (emphasis added).
And see, 42 U.S.C. 5 2201(b) and (o).
Section 232, which provides for injunctions, states that
'iv)henever in the iudgment of the Commission any person has engaged or is about to engage in any acts or practices which constituteorwillconstituteaviolationofanyproh[sionof this chapter, or any regulation or order issued thereunder, the Attorney General... may make application to the appropriate court for an order enjoining such acts or practices...."
v,~~.
I O
O 42 U.S.C. 5 2280 (emphasis added).
The section on license revocation, section 186, provides that *(a]ny license may be revoked for any material false statement... or because of conditions... which would warrant the Commission to refuse to grant a license on an original application....'
42 U.S.C.
..e_
5 2236(c) (emphasis added).
!!one of these general provisions, all of which are framed in the permissive, provides any guidance on how the agency as to exercise its enforcement discretion, much less requires the 1
exercise of Commission enforcement authority in a particular j
case.
Clearly, under the rationale of Heckler, these Atomic Energy Act provisions do not evidence a Congressional intent to rebut the presumption of nonreviewability that accompanies agency l %
I refusal to take enforcement action.
{
c.
The 1:RC Has Not Rebutted The Presumption Of Unreviewability In the Atomic Energy Act
}
If The Heckler Court left open the pos,sibility that agency I
regulations might rebut the presumption as well.
470 U.S. at 836. This Court has not yet reached that question, although the
' {
District of Columbia circuit has very recently decided that l E binding agency regulations or even informal policy statements can i
aur rebut the presumption of nonrevievability. center for Auto safety v. Dole, No. 86-5436 (Sept. 8, 1987) (regulations);Padula J
- v. Webster, 822 F.2d 97, 100 (1987) (informal policy statements that significantly restrain agency discretion).
Assuming h
arquendo that requirements in agency regulations can create ' law 1
r l t B.
.- c 2
0 9
to apply
- that could rebut the presumption of unreviewability, the NRC has promulgated no such regulation. The petitioners filed this action under 10 C.F.R. $ 2.206, which does not specify any standards for the Director either to observe or to satisfy in reaching his decision.
Instead, as the Seventh Circuit recognized when reviewing a 2.206 denial, "[t]he only thing the Director is required to do, if he decides not to institute [the requested enforcement action], is to notify the requesting party in writing of his decision and of the reasons for it -- which he f5 did."
Rockford League of Women Voters v. NRC, 679 F.2d 1218, t
1222 (7th Cir. 1982).
Thus, the absence of an NRC regulation that provides a meaningful standard of review distinguishes this case from center for Auto safety, suora.8 The NRC does have internal guidance by which the commissioners, who are ultimately responsible for public health and safety and who therefore ultimately exercise the agency's discretion, may review Directors' decisions for technical completeness and compliance with NRC polich' guidelines.
See Consolidated Edison Co. (Indian Point, Units 1, 2, and 3),
[
CLI-75-8, 2 NRC 173, 175-76 (1975).
This guidance requires a Director to institute an enforcement proceed 4.ng if there is a Scenter for Auto safety erroneously asserts in dictum that the NRC has rules which require it to institute enforcement.
action in certain cases.
Id.
Slip OP. at 31.
What the Court is referring to is not the NRETs formal rules, but the Commission's internal guidance discussed immediately below..
e
substantial health or safety issue and to explain why no such proceeding is being initiated if that is his conclusion.
The phrase " substantial health and safety problem' is a term of art within the Commission, because it is the
- 1anguage reserved as a trigger for action rather than a description of the severity of the concern.
... The Commission's precedents make it clear that it is not obligated to take enforcement action 'whenever lit]
nuclear po]wer safety or safeguard systems.'gity of existing receive [s information adverse to the integ Morsover, an agency practice of explaining its decisions dotJ not create binding requirements on how the agency must exercise its discretion.10 Heither does it' provide a court with *1aw to apply
- which rebuts the Heckler presumption of f
unreviewability.
As Justice Stevens pointed out, a " lengthy record... does not make the agency's inaction here any more reviewable than if Ithe enforcement) request had been rejected in a one-paragraph letter sent by return mail.*II I
Lorien v. NRC, 785 F.2d 1038, 1041 fcitations omitted)
(D.C. Cir. 1986). While the D.C. Circuit concluded that the NRC's substantial safety issue standard is a " trigger for action rather than a description of the severity of th, concern,' the court appears to have drawn the opposite conclusion about the Department of Transportation's " reasonable possibility of a defect" standard in center for Auto safety v. Dole, supra.
10There is, for example, no regulation or caselaw that dictates when the Director is to find that there is a substantial
. aus safety issue.
11 (Stevens, J.,
dissenting). Florida Power & Light v. '. orion, 470 U.S. 675, 751 (1985)
Similarly the use by an agency of a reason that a court might view as 'rev,iewable" does not make.an otherwise unreviewable action reviewable.
See I.C.C. v.
Brotherhood of Locomotive Engineers, 55 U.S.L.W.
4770, 4774 IFootnote Continued)
I e
77,
3 b
~
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. W 9
i 4'
-CONCLUSION There is no rational basis for distinguishing the i
Commission's denial of petitioners' enforcement regcest from the
' FDA's denial in Heckler.
Both involve decisions not to take 1
enforcement action and both involve statutes and regulatory j
provisions that are framed in permissive language that fails to rebut the presumption of unreviewability which secompanies an i
agency's decision not to take enforcement action.
In short, on the basis of the Supreme Court's decision in Heckler, this Court g
should find that the Commission's refusal to take enforcement t
action is not judicially reviewable.
L Accordingly, the petition should be dismissed.
Respectfully submitted, A
l LAURA E. FROSSARD /~
WILLIAM H. BRIG g J Attorney Solicitor Appellate Section l
Land and Natural Resources Division l
U.S. Department of Justice Washington, DC 20530
/
KICHAEIT B. BLUP.E Senior Attorney
{
Office of the General Counsel 4
Commission l
U.S. Nuclear Regulatory i
Washington, DC 20555 (202) 634-1493 d
Dated:
10/27/87 4
l i
[ Footnote Continued]
i 4
(June 9, 1987) (No.85-792).
See also, Rockford Leaoue, sopra, 678 F.2d at 1222 (Commission is not bound by internal guidance on how it will review requests for enforcement action). l
j
<ijt i
h CERTIFICATE OF SERVICE
.g I hereby certify that on this 27th day of October, IC87, copies of the foregoing ' Respondents' Motion To Dismiss' were mailed, postage prepaid tos j
william s. Abbott, Esq.
4 Simonds, Winslow,
{
Willis & Abbott l
50 Congress St.
4 j
Boston, MA 02109 j
R. K. Gad III, Esq.
Ropes & Gray 225 Franklin Street i
Boston, MA 02110 George B. Dean, Esq.
i Assistant Attorney General Public Protection Bureau Office of the Attorney General One Ashburton Place - Floor 19 Boston, MA 02108-1698 A
MICHACL B. BLUME
^
Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20557 m
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4 ATTACHMENT 4 i
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WITED STATES COURT OF APPEALS FOR THE SE'IENTE. CIRCUIT C
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CITIZENS OF ILLI110!S,
)
i
)
Petitioner,
.)
3
)
v.
)
No.
87-1732
)
UNITED STATES NUCLEAR
)
REGEATORY COMP.ISSION, g al,., - )
)
I Respondents.'
)
+
)
RESPONDENTS' MOTION TO DISMISS The organization known as the citizens of Illinois
(' petitioner') has petitioned this Court to review a decision of the Nuclear Regulatory Commission ('NRC' or ' Commission *)
to deny a recnest for enforcement. action contained in a petition subraitted to the agency under 10 C.F.R. 5 2.206' (1967).
The
{
l United States of America and the United States Nuclear Regulatory commission (hereinnfter collectively, referred to as
' respondents *) nove to dismiss the instant petition.for review on the ground that the refusal by the Nuclear Regulatory Commission to take iiscretionary enforcement action is unreviewable under i
theSupremeCourt'sdecisioninBecklerv.Chaney,[470..U.,S.821, 105S.Ct."1bi9,C5L.Ed2d714(19$5).
~
.ll i
STATUTORY, REGULATORY AND FACTUAL BACKGROUND A.
Requests For NRC Enforcement Action 1
Under the Atomic Energy Act of.1954, 42 U.S.C. 5 2011 ei segt, and the Energy. Reorganization Act of 1974, 42 U.S.C.
S 5801 et seq., the NRC has. broad authority to license and j
regulate the construction and operation of nuclear power plants,
)
In keeping with this statutory authorization, the agency has developed a detailed regulatory framework for the administrative processing and adjudication of applications related to construction permits and operating licenses.
See generally Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense j
Council, Inc.,.435 U.S. 519, 526-27 (1978).
After a permit or license is issued, the licensee remains subject to continuing NRC review and oversight which ensures compliance with Commission requirements and continued protectionofthepublichealthandsafhdy.
The NRC has a wide range of enforcement remedies with which to accomplish these goals: letters confirming voluntary commitments by licensees, notices of violation, civil penalties, and orders modifying, suspending, or revoking the licenses themselves.
See generally,
~ -
' General Statement of Policy and Procedure for NRC Enforc'ement Actions," 10 C.F.R. Part 2, App. C.
(1987).
The Commission's regulation found at 10 C.F.R. S 2.206 (1987), is the key to understanding the pr9cedural posturn of this case.
Section 2.206 provides that members of the general M
M
i h
i public chn request the NRC to suspend, revoke or modify a license or take any other approprfcte enforcement action.
A 2.206 petition must not only specify the relief requested but also '...
j set forth the facts that constitute the basis for such request.'
- See, e.g., Philadelphia Electric company (Limerick Generating Station, Units.1 and 2), DD-85-11, 22' NRC 149, 154 (1985); Philadelphia Electric Company (Limerick Generating Station, Unita 1 and 2), DD-82-13, 16 NRC 2115, 2121, i
n.12 (1982) (citing cases).
The petitioner may direct the request to one of several specified NRC staff officials, including the Director of the NRC's' Office of Nuclear' Reactor Regulation, the official who ruled on the 2.206 request filed by the petitioners in this case.
If the Director of the reviewing office finds merit in the request for enforcement action, he or she may institute a proceeding under 10 C.F.R. 2.202 (1987) and issue an order directing the licensee to show cause why-the NRC should not take the enforcement action requested by the petition. -A 2.202 order lists the alleged regulatory violations or other facts that are grounds for the proposed enforcement actiont informs the licensee that it must file an answer in which the licensee. pan request a hearingt specifies the issues that will be considered in any such hearings and states the effective date of the proposed order-which under certain circumstances can be made immediately effective.
If the licensee demands a hearing, the Director issues an order designating the time and place of a hearing.
t.
1 After the hearing (assuming one is sought), the Director determines the appropriate enforcement action and the NRC staff carries out his directions.
See generally, consolidated Edison Company of New York (Indian Point, Units 1, 2 and 3), CLI-75-8,
,2 NRC 173,-176 (1975).
i If, on the othhr hand, the Director determines that no -
show cause proceeding is warranted, he'aust notify the person requesting the 2.20G enforcement action of that decision in i
writing, providing a statement of reasons for that decision.
l While the regulations specifically provide that the Commission i
will not entertain appeals from the Director's decision or other i
related petitions from disappointed requesters, see 10 C.F.R. 2.206(c)(2)(1987), the Commission undertakes a sua sponte review of each and every denial of a 2.206 petition to ensure that the Director has not abused his discretion.
(1987).
See generally, Nuclear Regulatory-Commission (Licensees Authorized to Possess or Transport Strategic Quantities of Special !!uclear Materials), CLI-77-3, 5 NRC 16,19-20 (1977)
Consolidated Edison Company of New York (Indian Point, Units 1, 2 and 3), CLI-75-8, 2 NRC 173, 175-76 (1975).
If the commission does not act to reverse or modify the Director's de, cision within twenty-five(25) days,itbecomesfinalagencyachi~on."~1'OC.F.R.
2.206(c)(1) (1987).
Jurisdiction to review 2.206 denials, if they are reviewable.at all, see Argument, infra, lies exclusively in the United States Courts of Appeals.
28 U.S.C. 5 2342(4); 42 U.S.C.
_4
I
$ 2239(b); Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985).
B.
Petitioners' Request For NRC Enforcement' Action On August 13, 1986, the petitioners _ filed a petition with the commission pursuant to Section 2.206.
The petition requested that the commission take emergency enforcement action I
by immediately suspending the operating licenses of the three I
named facilities owned and operated by Commonwealth Edison i
company (' CECO') and any o,ther similarly situated. facilities due to alleged inadequacies in the containment integrated leak rate test ('CILRT*) practices.
The petitioners alleged that CECO's testing practices were not in compliance with the commission's regulations governing this testing which are found in 10 C.F.R. Part 50, Appendix J, because, inter alia, the CECO testing programs used deficient computer programs which allowed the improper substitution of data.
On October 22, 1986, the Director of Huclear Reactor i
Regulation ('NRR*) denied the Petitioners' request for emergency enforcement action but informed the group that he would refer the petition to the NRC Staff for its review and he woild take such enforcement action as as was necessary within a reasonable time, i
On February 10, 1987, the Director of NRR denied the petitioners' Section 2.206 request in a written, published opinion.
In the e
Matter of Commonwealth Edison Company (Zion Station, Unit 1)
(Byron Nuclear Power Station, Unit 1) (LaSalle County Station,
(
= -:
z.z
^
!L Unit 1) and All Light-Water Reactors, DD-87-02, which is reported at 25 NRC.121 (1987).
Essentially, the Director of NRR found that the allegations contained in the instant petition fell into three (3) broad categories: (1) allegat' ions regarding theLgeneral industry methodology associated with CILRTs, (2) allegations concerning the, validity of specific CILRTs performed at the Zion Nuclear P
j Power Station, Unit 1, during 1982 and 1984, and (3) allegations i
related to specific computer programs employed by CECO in j
conducting CILRTs for the Zion, Byron, and LaSalle Units in i
l general.
The Director found that the majority of these claims had been presented to him in previous petitions by the same individuals, including Dr. Einovy V. Reyiblatt, who prepared the instant petition.
See, e 3... commonwealth Edison Ccapany (Eion 2
Nuclear Power Station, Unit 1) and All Light-Water Reactors, f
DD-85-10, 22 NRC 143 (1905); Commonwealth Edison Company (Eion Nuclear Power Station, Unit 1), DD-85-2, 21 NRC 2'70 (1985);
Commonwealth Edison Company (LaSalle County Station, Unit I and
]
t
- 2) and All Light-Water Reactors, DD-84-6, 19 NRC 891 (1984).
For example, the Director found that he had addressed Dr. Reytblatt's allegations regarding CILRT practices in general in DD-84-6 and that he had considered specific allegations regarding the adequacy of the CILRT program at the Zion facility in both DD-85-2 and DD-85-10.
Therefore, after reviewing the history of both those allegations and his prior decisions, and e.
' '.. ~ _
r f
noting that the instant petition did not offer any new evidence-in-support of those allegatic.'s, the Director dismissed those claims as repetitive.
Turning to the third group of allegations regarding the allegedly deficient computer programs used in the three named CECO facilities, the Director found that computer codes to which the Petitioners objected had Jegitimate uses, 25 NRC at 125, that a CILRT may properly discard certain data on specific occasions in accordance with accepted engineering practices, 25 NRC at 126, that the exhibits offered by the Petitioners in support of their claims actually demonstrated on their face that they do not support the Petitioners' claims, 25 NRC at 126-27, and that in general the petitioners had not substantiated any specific claims raised in the petition.
Therefore, the Director dismissed the petition and declined to take the enforcement action sought by the Petitioners.
25 NEC at 127.
The instant action ensued.
.c
.~.
- e e -
F 3RGUMENT -
The Commission's Refusal To Institute Discretionary I
~
Enforcement Proceedings At Petitioner's Request Is Not Judicially Reviewable.
In Beckler v. Chaney, 470 U.S. 821 (1985), the Supreme l
Court established a presumption that an agency's refusal to exercise its enforcement authority is not judicially reviewable, l
but rather is agency action committed to agency discretion by law.
In a case decided the same day as Heckler, the Supreme Court held that jurisdiction to review denials of requests for HRC enforcement action, if reviewable at all, lay in the appropriate United States Court of Appeals as opposed to a United States District Court.
Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985).
However, the Lorion court,specifically noted the question of whether NRC refusgls to take enforcement action are unreviewable, stating that the ' issue is open to the Court of Appeals on remand should the Commission choose to press it.' 470 U.S. at 735, n.8.1 On remand, the D.C. Circuit found that it coulti easily affirm the Commission on the merits, and so declined to rekch Mae reviewability issue.
Lorion v. Nuclear Regulatory Commission, 785 F.2d 1038, 1041 (D.C. Cir. f9I6).
Justice Stevens argued in Lor _ ion tha% NRC refushls to take enforcement action are unreviewable.
470 U.S. at 746-52 (Stevens, J.,
dissenting).
-g_
.i However, the Court of Appeals ' doubt [ed] that on the facts, the
)
NRC's discretion is restricted by the Atomic Energy Act.'
785 F.2d at 1040.
I As noted by the Supreme Court as a whole in Lorion and specifically advocated by_ Justice Stevens, the rationale for the presumption established in Heckler. fully. applies to NRC refusals to take enforcement action under Section 2.206, and Congress has taken no action that can fairly be interpreted as rebutting that presumption.
A.
The Presumption Of Unreviewability Established In Heckler Applies To The Commission's Refusal To Take Enforcement Action In This Case.
Heckler has created a high barrier to judicial review of agency refusals to take enforcement action by finding them presumptively unreviewable.
In Heckler, the' Supreme Court held that the Food and Drug Administration's ('FDA*). refusal to ex'ercise its enforcenent authority was nsot judicially reviewable.
The Court found that 5 U.S.C. 5 701(a)(2), which provides that judicial review is unavailable where ' agency action is committed to agency discretion by law,' precludes judicial review if the agency's governing statute is drawn in such a way,that a court is without a meaningful standard against which to judge thi* agency's exercise of discretion.
470 U.S. at 830.
The Heckler Court
~..
explained that its holding was ' attributable in no small part to the genera ~1 unsuitability for judicial rev$ew of agency decisions to refuse enforcement,' because such refusals involve a G -
- q complicated balancing of a number of factors which are peculiarly within [the agency's) expertise.
470 U.S. atL831-32.
Among the factors listed were allocation of resources, likelihood of success,andoveraklpolicy.
Id.
Moreover, the rationale'for the presumption is as 1
compelling in this instance as it was in Beckler.
American i
courts have long noted that the Commission's regulatory scheme is l
1
" virtually unique in the degree tc which broad responsibility is reposed in the administering agency, free of close prescription i
in its charter as to how it shall proceed in achieving the i
statutory objectives."
Three Mile Island Alert v. Nuclear Regulatory Commission, 771 F.2d 720, 727 (3d'Cir. 1985); Detroit Edison Co. v. 11uclear Regulatory Commission, 630 F.2d 450, 453 (6th Cir. 1980); Westinghouse Electric Corp. v. Nuclear Regulatory Commission, 598 F.2d 759, 771 (3d Cir. 1979), all quoting siegal v. Atomic Energy Commission, 400 F.2d 778, 783 (D.C. Cir. 1968).
The commission sets its priorities and policies and allocates its resources to ensure that there are reasonable assurances of safe operation at all nuclear power plants.
As relevant here, the Commission's determination of what safety issues should be pursued, and how they should be puriutd is based on both an evaluation of the significance of those issues.and on the availability and best use of its limited resources.
The Commission'has also determined that section 2.206 petitions should not be used to avoid an existing forum such as an ongoing
.. - - = = =
public hearing in which the issues may be more logically-and P
efficiently presented.
See, Rockford League of Women Voters v.
Nuclear Regulatory Commission, 679 F.2d 1218, 1222 (7th Cir.
1982).
This " managerial judgment
- is exactly the type of factor peculiarly within the agency,'s expertise which compelled the nonreviewability. finding in Heckler.
Accordingly, like the FDA's decision in Heckler, the NRC's refusal to take enforcement action is, and should be, an action presumptively unsuitable for judicial review.2 B.
Congress Has Not Rebutted The Presumption of Unreviewability In The Atonic Energy Act.
The Heckler Court held that challengers of agency decisions may rebut the presumption of unreviewabi2ity where the governing statute has provided guidelines for.the agency to follow in exercising its enforcement powers.
470 U.S. at 833.
However, the Heckler Court found no such' guidelines in the FDA's governing statute, the Food, Drug, and Cosmetic Act ("FDCA").
2Since the issue of nonreviewability of NRC refusals to take enforcement action was not raised before Heckler,..the fact that courts have reviewed prior.Section 2.206 denials does not demonstrate that 2.206 denials are reviewable.
Even if..those decisions had found that there were sufficient standards'to make the decisions reviewable, the issue after Heckler is whether those standards are sufficient to rebut the presumption of nonreviewability.
Moreover, the fact that a court has reviewed an agency. decision without addressing nonreviewability should have no pr~ecedential impact-on the reviewability question.
See generally Falkowski v. Equal Employment Opportunity Commission, 764 F.2d 907, 910-11 (D.C. Cir. 1985) (reversing prior decision on reviewability in view of Heckler).
f The relevant provisions of the Atomic Energy Act are markedly similar to the extent that both are for the most part, written in the language of permission and discretion.- The Heckler Court summarized the relevant provisions of the FDCA as follows:
To enforce the various'sub'stantive prohibitions contained the.FDCA, the Act provides for injunctions, 21 U.S.C. 5 332, criminal sanctions, 55 333 and 335, and seizure of any offending food, drug, or cosmetic article, 5 334.
The Act's general provision of enforcement, 5 372, provides only that "(t]he secretary is authorized to conduct examinations and investigations...."
S 372 gives no indication of when an injunction should be sought, and 5 334, providing for' seizures, is framed in the permissive--the offending food, drug or cosmetic *shall be liable to be proceeded against.'
The section on criminal sanctions states baldly that any person who violates the Act's substantive prohibitions "shall be imprisoned... or fined."
470 U.S. at 835 (emphasis in original).
The language in the relevant provisions of the Atomic Energy Act essentially tracks the language in th'e FDCA.
section 161(c) of the Atomic Energy Act authoriz'es the. Commission to "make such studies and investigations, obtain such information, and hold such meetings or hearings as the commission may deem necessary or proper to assist it in exercising any authority provided in this chapter, or in the administration.or enforcement of this chapter....*
42 U.S.C. 5 2201(c) (empha$fs.agded).
Section 161(i) similarly authorizes the commission to " prescribe such regulations or orders as it deems necessary (3) to govern any activity authorized pursuant to this chapter.'
42 U.S.C. 5 2201(i) (emphasis added).
see'also 42 U.S.C.
5 2201(b) and (0).
section 232, which provides for injunctions,
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states that 'lw1henever in the judgment of the Commission any I
a person has engaged or is about to engage in any acts or practices i
{
which constitute or will constitute a violation of any provision 3
)
of this chapter, or any regulation or order issued thereunder,
)
the Attorney General... may make application to the appropriate j
court for an order enjoining such acts or practices...."
i j
42 U.S.C. $ 2280 (emphasis added).
The section on revocation, 1
j section 186, provides that "[a]ny license may be revoked for any material false statement... or because of conditions... which 2
1 would warrant the Commission to refuse to grant a license on an l
1 original application.
42 U.S.C. 5 2236(a) (emphasis added).
None of these general provisions, all of which are 1
1
)
framed in the permissive, provides any guidance on how the. agency 1
l is to exercise its enforcement discretion, much less requires the exercise of Commission enforcement authority in.a particular i
case.
Clearly, under the rationale of Reckler, these Atomic l
Energy Act provisions do not evidence a Congression'al intent to 1
rebut the presumption of nonreviewability that accompanies agency refusal to take enforcement action.3 i
i'
~._
~
k 3The Supreme Court in Heckler left open the question.of 1
"whether an agency's own rules might under certain circumstances provide courts with adequate guidelines for informed judicial
~
1 review of decisions not to enforce.
470 U.S. at 836.
No
]
NRC rules ' exist which restrict this agency's authority to refuse to take enforcement action; nor has the NRQ created regulatory 1
j guidelines on the exercise of its enforcement authority which j
even arguably rebut the presumption of unreviewability.
a CONCLUSION 3.
There is no rational basis for distinguishing the
~
Commission's denia1 oE~p'e~titio~ner's enforcement request from the FDA's denial in Eeckler.
Both involve decisions not to take enforcement action and both involve statutes and regulatory Provisions that are framed in permissive language that fails to rebut the presumption of unreviewability which accompanies an agency's decision not to take enforcement action.
In short, on i
the basis of the supreme Court's decision in Heckler, this Court l
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should find that the Commission's refusal to take enforcement action-is not judicially reviewable.
Accordingly, the petition should be dismissed.
Respectfully submitted,
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n<
ises?
ANNE ALMY f ep*
WILLIAM H. BRIG gr.
/
Attorney solicitor Appellate Section l
Land and Natural Resources
/
a d(occt Division i
i U.S. Department of Justice M
l Washington, DC 20530 E. LEO SLAGGIE gg Deputy Solicitor V
idW
~AttorneyCHARLT.SE.MULf%S Office of the C neral Counsel Consission U.S. Nuclear Regulatory Washington, DC 20555 (202) 634-3224 s.
Dated:
dba;'As. $,/ffy a*
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~- '
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CERTIFICATE OF SERVICE E
j.
I hereby certify'that 'on this';jl day'of August, 1987, copies of the forgoing ' Respondents Motion To Dismiss was mailed, postage prepaid-to:
John L. stainthorp, Esq.
343 S. Dearborn St.f1607' Chicago, Illinois 60604 i
l Peter Thornton, Esq.
Isham, Lincoln & Beale~
Three First National Plaza suite 5200 Chicago, Illinois 60602 Anne Alcy, Esq.
l Appellate Section Lands and Natural Resources Div.
l Room 2339 Main Justice Building United States Department of Justice Washington, D.C. 20530 i
/
h' j b 'b, CHA%ES E. MU}LIJS Attorney l
Office of the G neral Counsel U.S. Nuclear Re ulatory Connission Washington, D.C. 20555 I
d' e*
M l
9 9
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1 3
1 3
3_
UNITED STATES COURT'OF APPEALS FOR THE SEVENTH CIRCUIT i
).....
CITIZENS OF ILLINOIS,
)
i
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Petitioner,
)
)
v.
)
No.
87-1732
.)
i UNITED STATES NUCLEAR
)
REGULATORY COMMISSION, g M.e
)
)
j Respondents.
)
t
)
4 RESPONSE TO PETITIONERS' SEPTEMBER 3 MOTION AND MOTION FOR LEAVE TO FILE REPLY TO PETITIONERS' RESPONSE l
The respondents received the petitioners' September 3, I
1 1987 " Motion to Have Brief Considered as Response to Respondent's i
s Motion" on September 15, 1987.
The respondents do not object to the appropriate section of the petitioners' brief being J
j considered as their response to the motion to dismiss.
The i
j respondents also move for leave to file the attached legal j
memorandum in reply to the petitioners'iresponse..
Respectfullysubmittpd,
.l j
WILLIAM L. BR:
,J.
Solicit 1
Akk a i
E. LE SLAGGIE 3
De uf Solicito i
j CBARLES.E. p)(LINS j
Attorney Office of thp General Counsel Nuclear Regulatory Commission i
Washington, D.C.
20555 i
(202) 634-3224 Dated:
September 17, 1987 1
~ _ _ _
-n
_.z :::
UNITED STATES COURT OF APPEALS POR THE SEVENTH CIRCUIT
)
CITIZENS OF ILLINOIS,
)
)
Petitioner,
)
I
)
No.
87-1732 v.
)
UNITED STATES NUCLEAR
)
REGULATORY COMMISSION, et al.,
)
)
i Respondents.
)
I 1
RESPONDENTS' REPLY TO PETITIONERS' RESPONSE TO RESPONDENTS' MOTION TO DISf:!SS In their response to the respondents' notion to dismiss, the petitioners concede that an agency's decision not to i
l take enforcement action is presumptively unreviewable.
5 U.S.C.
701(a)(2).
Heckler v. Chaney, 470 U.S. 821, 832-33 (1985).
See i
Pet. Br. at 13-14.
In order to overcome the Chaney presumption, 1
the petitioners must demonstrate that Congress intended judicial review of NRC decisions not to take enfobcement action.
- See, e.g., Heckler v. Chaney, 470 U.S. at 832-33, 838.
The main thrust of petitioners' argument appears to be i
that the Chaney presumption of unreviewability does not apply to i
i this situation because, unlike the Food and Drug Administration l
("FDA') denial held unreviewable in Chaney, the NRC investigated
~
Dr. Reytblatt's complaint and found it lacking in merit..This argument -- that an agency's refusal to take enforcement action becomes reviewable if the agency has made an investigation and a l
i a
j decision on the merits -- flies in the face of logic and has not l
been accepted by the various Courts of Appeals which have ruled
on the issue.
Nothing in Chaney indicates that the question of reviewability turns on whether the agency may or may not have conducted an investigation or-the status of that agency's investigation.
Clementson v. Brock, 806 F.2d 1402 (9th Cir. 1986), is directly on goint regarding the significance, or lack thereof, of an investigation to the question of unreviewable discretion.
In that case, an individn'al alleged that he had been discharged in violation of his rights under the Vietnam Era Veterans' Readjustment Act of 1972 (*VEVRA') and that the Secretary of Labor had failed to enforce the statute.
806 F.2d at 1403.
The Court specifically noted that Clementson filed a complaint with the Office of Federal Contract Compliance Programs ('OFCCP'), the appropriate office for enforcing violations of VEVRA, that the regional OFCCP office had investigated Clementson's claims, and that the appropriate official had found the claims lacking in merit.
806 F.2d at 1404.
The Ninth Cittuit determined that the
~
i OFCCP was required to take ' appropriate action' after its investigation, but that neither the regulations nor the statute itself defined ' appropriate action' or gave any factors for the OFCCP to follow or for a reviewing court to consider.
Therefore, the Court agreed with the Secretary that there was 'no. law to i
apply' and that the decision not to take action was immune from judicial review.
806 F.2d at 1404-05.
Clearly, the fact that
~~
the appropriate officials had investigated the clais had t
absolutely no impact on the Ninth Circuit's decision to hold that the Secretary had the unreviewable discretion whether to initiate 2
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l enforcement action on behalf of the claimant.
See also 'Harmon-Cove condominium ~ Association 'v. Marsh, 815 F.2d 949, 953-53 (3d
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Cir. 1987); Brown v. Housing Aut'hority of City of'McRae, 784 F.2d 1533 (11th Cir. 1986); Rush v'. Macy's, New York, Inc., 775 F.2d 1554, 1558 (11th Cir. 1985); Railway Labor Executives Association
- v. Dole, 760 F.2d 1021,1024-25 (9th' ~Cir. '1985).' '
In their response the petitioners rely mainly on two cases, Northern Indiana Public Service Company v. FERC, 782 F.2d 730 (7th Cir. 1986) and Heterochemical Corporation v. FDA, 644 F. Supp. 271 (E.D.N.Y. 1986), as examples of a court taking review of an agency refusal to take enforcement action.
Both cases are inapposite.
In Northern Indiana, this Court reversed a FERC decision not to investigate possible price manipulation by regulated gas companies.
That case clearly falls under Footnote four of Chaney, which 7,eminded agencies that Chaney did not address or excuse an abdication of their statutory duties.
470 U.S. at 833 n.4.
In the present case, there is no. basis for alleging any
- abdication".
The petitioners concede -- and even argue as noted above -- that the NRC has conducted an investigation and published its results.
The petitioners do not agree with those results, but their disagreement does not create reviewability.
Beterochemical involves a review of Section 336. of the i
Food, Drug and Cosmetic Act ('FDCA') which was considered in Chaney, 470 U.S. at 837.
The District Court found not only that i
the FDA had violated the notice requirements in its own regulations but also that the FDA admitted that a violation had e
3
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occurred and had refused to do anything about it.
In this case, the NRC has complied with all procedural requirements and has specifically found that no violation exists.
The chaney Court left open the possibility that agency regulations might rebut the presumption as well.
470 U.S. at 836.
This Court has not yet reached that question, see, e.c.,
Cardoza v. CFTC, 768 F.2d 1542, 1549-50 (7th Cir. 1985), although the District of Columbia circuit has very recently decided'that binding agency regulations can rebut the presumption of nonreviewability.
Center for Auto Safety v. Dole, No. 86-5436 (D.C. Cir. Sept. 8. 1987).
Assuming arguendo that requirements in agency regulations can create ' law to apply
- that could rebut the presumption of unreviewability, the NRC has promulgated no such regulation.
The petitioners filed this action under 10 C.F.R. S 2.206 which does not specify any standards which the Director will either observe or meet in reaching his decision.
Instead, as this court has recognized when previou' sly reviewing a 2.206 denial, "[t]he only thing the Director is required to do is, if he decides not to institute [the requested enforcement action), to notify the requesting party in writing of his decision and of the reasons for -- which he did.'
Rockford League of Women voters v. NRC, 679 F.2d 1218, 1222 (7th Cir.
1982).
Thus, the absence of a NRC regulation that provides a meaningful 4
I i
standard of review distinguishes this case from Center for Auto l
e i,
Safety, supra.
f In sum, overcoming the presumption against review turns f
not on whether the agency has investigated the request for j
enforcement action, but rather on the words of the agency's organic statute, or, perhaps, language in the agency's i
regulations creating a meaningful standard by which ta review an s
agency's decision not to take enforcement action.
In the instant
]
case, the appropriate agency officials have completed their investigation.and determined that the requested enforcement l
action is not necessary.
Neither the NRC's organic statutes, the a
Atomic Energy Act and the Energy Reorganization Act of 1974, nor
}
the controlling regulation provide any guidelines for determining what factors the responsible official shall consider, and as a i
result, a reviewing court has no guidelines to review such a
]
decision.
i
)
The NRC does have internal gui' dance by which the i
Commissioners, who are ultimately responsible for public health i
and safety and who therefore ultimately exercise the agency's discretion, may review the Director's decisions for technical completeness and compliance with their own policy, guidelines.
See Consolidated Edison Co. (Indian Point, Units 1, 2,*end 3),
~.,
Cent'er for Auto Safety erroneously asserts in dictum that the NRC has rules which require it to institute enforcement action in certain cases.
Id.
Slip Op. at 31.
What the Court is referring to is not the NRC s formal rules but the Commission's T
internal guidance discussed infra.
5
CLI-75-8, 2 NRC 173, 175-76 (1975).
This guidance requires a Director-to institute an enforcement proceeding if there is a substantial health or safety issue and to explain why no such proceeding is being initiated if that is his conclusion.
The phase " substantial health and safety problem' is 'a term of art within the commission, because it is the language reserved as a trigger for action rather than.a description of the severity of the concern."
Lorian v. NRC, 785 F.2d 1038, 1041 l
(D.C. Cir. 1986).
'The commission's precedents make it clear that it is not obligated to take enforcement action 'whenever we receive information adverse to the integrity of existing nuclear power safety or safeguard systems.
Id. (Citations omitted).
Moreover, an agency practice of explaining its decisions does not create binding requirements on how the agency must exercise its discretion.
Neither does it provide a court with " law to apply' which rebuts the chaney presumption of unreviewability.
As Justice Stevens point 64 out, a " lengthy Yecord.... does not make the agency's inaction tere any more reviewable than if (the enforcement) request had been rejected in a one-paragraph letter sent by return mail.'
Florida Power & Light v. Lorion, 470 U.S.
675, 751 (1985)(Stevens, J., dissenting).
See also, Rockford League, supra, 678 F.2d at 1222 (Commission is not bound by internal guidance on how it will review requests for enfo.rcement action):
Brock v. Cathedral Bluffs shale 011 Co., 796 F.2d 533, 538-39 (D.C. Cir. 1986) (informal agency guidelines which have e
not been formally published in the Federal Register or the Code j
6
. = _
c of Federal Regulations do not bind the agency or rebut the Chaney presumption of unreviewability).
In view of the foregoing authorities, tnis Court should grant the respondents' ' Notion to Dismiss
- and dismiss the case with prejudice.
Respectfully submitted, l
WILLIAM H. BRIQG
~
l Solicitor
)
l L
E. LEO SLAGGIE (,y'('
Deputy S icitot
/
V A)h,/,.c %e e
m, f !"8M8"""'8 Office of the G eral Counsel Nuclear Regulat y Commission Washington, D.C.
20555 (202) 634LS224 Dated:
September 27, 1987 1
5 7
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^^^
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CERTIFICATE OF SERVICE i
I hereby certify that on September 17, 1987, a copy l
of the foregoing " Respondents' Reply to Petitioner's Response to Respondents' Motion to Dismiss' and " Response to Petitioners' September 3 Motion and Motion for Leave to File l
Reply to Petitioners' Response
- was served on the following by Placing same in first ciasc mail, postage prepaid:
Anne Almy, Esq.
Appellate Section Lands and Natural Resources Div.
Room 2339 Main Justice Building U.S. Department of Justice Washington, D.C. 20530 John L. Stainthorp, Esq.
343 S. Dearborn 41607.
Chicago, IL 60604 Peter Thornton, Esq.
Isham, Lincoln and Beale i
Three First National Plaza suite 5200 Chicago, IL 60602 C8ARLES E./M LLINS Attorney Office of thi General Counsel U.S. Nuclear Regulatory Commission Washington, 1.C. 20555 (202) 634-32 24 c
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