ML20195F929
| ML20195F929 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 01/28/1987 |
| From: | Jordan E NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| To: | Krimm R Federal Emergency Management Agency |
| Shared Package | |
| ML20154D739 | List: |
| References | |
| FOIA-88-198 2.206, NUDOCS 8702030158 | |
| Download: ML20195F929 (240) | |
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4 January 28, 1987 I
j MEMORAhDUM FOR: Richard W. Krim i Assistant Associate Director l Office of Natural and Technological Hazards Programs Federal Erergency Management Agency FROM: Edaard L. Jordan, Director i Divisien of Emergency Precaredness and Engineering Response Office of Inspection and Enforcerent 1
, SUBJFCT:
PILGd!N 10 CFR 2.206 PETITION I
An August 11, l')S6 eereranden frc.n David B. Matthews of m/ sta'f to Robert S.
Wilkerson Pilgrin nuclear of your pcwer staff forwarded a petition to prohibit the restart of the plant.
l FEMA wculd provide support in preparing a final response to this pe On January 14, 1987 FEMA staff infernd us. of a possible delay in providing their evaluation based on the receipt of additional information submitted by the Co.rcrwealth of Massachusetts.
date for Pilgrin has been delayed. We have recently determinec that the restart j
1 that you will rica provide your restense to the bEC by 31, MarchAs 1987. discus ed wit
) Origtel tigmd W j Shele:a A. 3;hearta l (c.ard L. Jordan, Direetcr Oivision of Eu rgency Preparedness and Engineering Respense Office of Inspectien and Enforcert nt i Centut: Gerald I. Strondl Il 4L'.4E70 Distribution. {
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, UNITED STATES COURT OF APPEALS FOR THE 2
FIRST CIRCUIT
)
MASSACHUSETTS PUBLIC INTEREST RESEARCH )
GROUP, INC. et al., )
)
Pe'.itioners, )
i v. ) No. 87-1865
)
UNITED STATES m LVAR REGULATORY )
i COMMISSIns, ) ,
) I 1 Respondent. )
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1 MEMORANDUM OF FL n "IONER i IN OPPOSITION 70 ha..ONDENT'S -
j AND 50STON EDISON COMPANY'S i MOTIONS TO DISMISS i
4
] Introduction :
Petitioner seeks judicial review of a final agency action of q the United States and the United States Nuclear Regulatory l j Commission (collectively, "Respondent"), which final action denied ;
j Petitior.er's request that an order be issued to the Boston Edison Company ("Boston Edison") to show cause as to why the Pilgrim I l Nuclear Power Station ("Pilgrim") should not remain closed, or (
l why its license to operate Pilgrim should not be suspended, {
i modified or revoked. This request was contained in a petition i !
! ("Petition") filed by Peti *ioner with Respondent pursuant to 10 i
] C.F.R. 5 2.206 on July 15, 1986. The Petition contained three 1 sections detailing serious deficiencies in (1) Boston Edison's i
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. l canagement of Pilgrim, (ii) emergency response planning for Pilgrim, and (iii) inherent design flaws in Pilgrim's containment structure, respectively. I i
10 C.F.R. 5 2.206 (hereinafter "2.206") provides in pertinent ;
part as follows:
i
"(a) Any person may file a request for the Director of Nuclear '
Reactor Regulation, Director of Nuclear Material Safety and Safeguards, Director, Office of Inspection and Enforcement, as appropriate, to institute a proceeding pursuant to S.
2.202 to modify, suspend or revoke a license, or for such other action as may be proper...The requests shall specify the action requested and set forth the facts that constitute the basis for the request.
(b) Within a reasonable time after a request pursuant to paragraph (a) of this section has been received, the Director of Nuclear Reactor Regulation, Director of Nuclear Material Safety and Safeguards, Director, Office of Inspection and Enforcement, as appropriate, shall either institute the requested proceeding in accordance with this subpart or shall advise the person who made the request in writing that ,
no proceeding will be instituted, in whole or in part, with respect to his request, and the reasons therefor.
(c)(1) Director's decisions under this section will be filed with the Office o' the Secretary. Within twenty-five (25) days after the date of the Director's decision under this section that no proceeding will be instituted or other action taken in whole or in part, the Commission may on its own !
motion review that decision, in whole or in part, to determine if the Director has abused his discretion. This review power ;
does not limit in any way either the Commission's supervisory power over delegated staff action or the Commission's power to consult with the staff on a formal or informal basis regarding institution of proceedings under this section.
(c)(2) No petition or other request for Commission review of a Director's decision under this section will be entertained by the Commission."
i Respondent denied Petitioner's request for enforcement action contained in sections (ii) and (iii) of the above-described Petition in a decision ("Decision") issued on August 21, 1987. This denial 2
became final agency action on September 15, 1987.
Subject-Matter Jurisdiction Contrary to assertions contained in Boston Edison's Memorandum in Support of Respondent's Motion to Dismiss, it has been conclusively settled that subject-matter jurisdiciton for review of United States Nuclear Regulatory Commission ("NRC") denials of 2.206 citizen petitions is vested in the United States courts of appeals.
Addressing this issue squarely in Florida Power & Light Co. v.
Lorica, 470 U.S. 729 (1985) the Supreme Court held:
Whether initial subject matter jurisdiction lies initially in the courts of appeals must of course be governed by the intent of Congress and not by any views we may have about sound policy [ citation omitted). In these cases, the indication of legislative intent we have been able to discern suggest that Congress intended to locate initial subject-matter jurisdiction in the courts of appeals. This choice is in harmony with Congress' choice of Hobbs Act review for Commission licensing proceedings in S 2039(b) and is consistent with basic principles respecting the allocation of judicial review of agency action. We therefore hold that 42 U.S.C. S 2239 vests in the courts of appeals initial subject-matter jurisdiction over Commission orders denying S 2.206 citizen petitions. Id., at 746.
A question not raised by the parties nor addressed by the Court in Lorion is whether "under the APA, 5 U.S.C. 5701(a)(2),
Coramission denials of 2.206 petitions are instances of presumptively unreviewable agency action... committed to agency discretion by law because they involve the exercise of enforcement discretion." Id.,
at 735, n.8.
Final Agency Action Under the Administrative Procedure Act ("APA"), 5 U.S.C.
3
et seq., any person "adversely affected or aggrieved" by agency action (s. 702), including a "failure to act", is entitled to judicial review thereof as long as the action is "final agency action for which there is no other adequate remedy in a court" ($.
704). Both Respondent and Boston Edison rely heavily upon the holding in S,ierra Club v. U.S. Nuclear Regulatory Commission, 825 F.2d 1356 (9th Cir. 1987) to support their assertion that the Decision issued by Respondent on August 21, 1987 is not a final agency action made reviewable by 42 U.S.C. 5 2399. However, a careful reading of this opinion reveals no support for Respondent's and Boston Edison's claim. The facts of Sierra are as follows. On November 21, 1984 the NRC issued an order allowing the restart of a nuclear reactor. On December 7,, 1984 the petitioners filed with the NRC a request for (1) a hearing on the November 21 order, (2) a stay of the November 21 order, and (3) a request that its petition be heard no later than December 12. On December 10 the NRC issued an order denying request (3), ordering an expedited briefing schedule, and not ruling on requests (1) and (2). On January 3, 1985 petitioners sought appellate review of the November 21 and 1
December 10 NRC orders. The court dismissed petitioner's appeal ;
of the November 21 order, stating "(b]ecause petitioners were not parties to the proceeding culminating in the November 21 Order, 1 they cannot obtain direct appellate review of that order." Id.,
l at 1361. The court also dismissed petitioner's appeal of the December 10 order, stating:
The December 10 order was procedural in nature and merely j denied the request for an immediate decision and 4
ordered expedited briefing. Petitioners accepted that order and fully complied with it - filing an "extensive reply containing numerons factual allegations and extensive legal argument" [ citation omitted). The Commission gave the opposing litigants until January 9, 1985 to respond to petitioner's allegation. The Commission properly took jurisdiction of the matter, and was in the process of deciding these issues when, without awaiting the Commission's decision, petitioners sought from this court a ruling on the identical issues it raised before the c ommission. Id. at 1362-1362.
It it clear that Petitioner in the instant case was a party to the proceeding culminating in Respondent's Decision issued on August 21, 1987. Further, unlike petitioners jn Sierra, the issues presented to this court for review have already received final disposition from Respondent.
Contrary to assertions raised by Boston Edison, Western Union telegraph Co. v. FCC, 773 F.2d 375 (D.C. Cir. 1985) offers no support for the proposition that the Decision in the instant case is not final for 28 U.S,C. S 2344 purposes. The facts of Western Union reveal that the FCC adopted an order on March 1, 1985 and
)
released it to the public on March 8, 1985. The order was published in the Federal Register on March 21, 1985. AT&T filed a petition for review of the order on March 15, 1985, six days prior to its publication in the Federal Register. In holding that it lacked jurisdiction, the court stated:
Our jurisdiction to review this order is defined by 28 U.S.C. S 2344, which provides that the petition for review must be filed within sixty days of ' entry' of the order. FCC orders like that at issue here are deemed to be entered for purposes of S 2344 on 'the date upon which the Commission gives public notice of the order,'
(47 U.S.C.5405). An FCC regulation defining the time of public notice of agency action provides that, with respect to orders of this type, public notice occurc at '3 P.M. !
Eastern Time on the day after...the date of publication in the FEDERAL REGISTER.' 47 C.F.R.51.4(b). Id.,
~~ at l 376.
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In the instant case we have an unambiguous regulation (10 C.F.R. S 2.206(c)) which establishes the point in time at which Recpondent's Decision becomes final. Respondent's Notice of Issuance of Interim Director's Decision, directed to the Federal Register and dated August 21, 1987 (attached hereto as Exhibit A), provides in pertinent part as follows:
A copy of the Decision will be filed with the Secretary for the Commisison's review in accordance with 10 CPR S 2.206(c). As provided in this regulation, the Decision will constitute the final action of the Commission twenty-five (25) days after issuance, unless the Commission, on its own motion, institutes review of the Decision within that time period. [ emphasis added]
As the Commission did not institute review of the Decision within the twenty-five day time period specified in its regulations, the Decision became final agency, action on Septamber 15, 1987.
This, in turn, triggered the sixty-day period for filing a petition to review with the appropriate court of appeals as specified in 29 U.S.C. S 2344.
tPA Section 701(a)(2)
"Committed to Agency Discretion By Law" Preclusion of Judicial Review The Court has held that before any review of a final agency action may be had under the APA, "
...a party must first clear the hurdle of [APA) section 701(a)." Heckler v. Chaney, 4 7 0 ') . S . 821, 828 (1985).
APA section 701(a)(1) precludes judicial review of a9ancy action to the extent that statutes explicitly preclude such review.
Section 701(a)(2) precludes judicial review to the exte.t that 6
"agency action is committed to agency discretion by law." In their Motions to Dismiss, both Respondent and Boston Edison. urge this court to hold that Respondent's denials of 2.206 citizen petitions are agency actions committed to agency discretion by law, and thus unreviewable pursuant to APA section 701(a)(2).
Denials of 2.206 Petitions Are Not Agency Actions Committed to Agency Discretion By Law In Heckler, the Court was faced with interpreting APA section 701(a)(2) in the context of an agency [ Food and Drug Administration) denial of a request to institute an enforcement action. The Court held that where the controlling statute is drawn so broadly that a court would have no meaningful standard against which to judge an agency's exercise of discretion, 'the "presumption is that agency ,
review is not available." Id., at 831. The Court, however, went ,
on to emphasize that "the decision [of an agency not to institute enforcement action) is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers."
Id., at 833. Both Respondent and Boston Edison place great emphasis in their Motions to Dismiss in the assertion that the relevant portions of the Atomic Energy Act neither "provide guidance on how the agency is to exercise its enforcement discretion," (Respondent's Motion to Dismiss, p.13) nor makes "the initiation of enforcement l
- proceedings" mandatory in any class of case (Memorandum of Boston Edison Company in Support of Its Motion to Dismiss, p.10). These arguments are non-dispositive, however, as the Court in Heckler lef t open the question as to "whether an agency's rules might J
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under certain circumstances provide courts with adequate guidelines for informed judicial review of decisions not to enforce..." Id.,
at 836. While this question is one of first impression for this court, the District of Columbia circuit has recently stated that binding egency regulations, policios, and rules may provide an examining court with "law to apply" in such a case, and thus rebut the presumption of unreviewability established in Heckler. See, Padula v. Webster, 822 F.2d 97 (D.C. Cir. , 1987); Center for Auto Safety v. Dole, 828 F.2d 799 (D.C. Cir., 1987).
The United States Nuclear Regulatory Commission Has Established Binding Limits on Agency Discretion To Dismiss 2.206 Petitions In Padula, the court was faced with an agency's (F.B.I.)
refusal to hire an applicant because she was a homosexual. The court denied the applicant's claim that various statements contained in recruitment letters circulated among _aw schools amounted to a binding limit on agency discretion. In its opinion, the court stated: l It is well settled that an agency, even one that enjoys broad discretion, must adhere to voluntarily adopted, binding policies that limit its discretion ; citations omitted). In determining whether an agency's statements constitute "binding norms" we traditionally look to the present effect of the agency's pronouncements. Statements that are merely prospective, imposing no rights or obligationr on the respective parties, will not be treated as binding norms (citation omitted)... As a general rule, an agency pronouncement is transformed into a binding norm if so intended by the agency [ citation omitted), and agency intent in turn, is "ascertained by an examination of the statement's language, the context, and any available j
extrinsic evidence" (citation omitted). Id., at 100, 8
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Unlike the non-binding statements contained in the recruitment letters of Padula, Respondent has promulgated "binding norms" which impose obligations and restraints on its exercise of discretion in denying 2.206 citizen petitions.
In consolidated Edison Co. (Indian Point, Units 1, 2, and 3),
CLI-75-8, 2 NRC 173 (1975), the Commission itself established the following limits on a Director's exercise of discretion in denying a 2.206 petition:
Review of the Director's decision is particularly important in cases such as this one, where a petition has been denied -
- absent review, there will be no further proceedings within the Commission...[W]e believe the question whether the Director has abused his discretion in denying a request for a show cause order to embody the following elements: (1) who cher the statement of reasons given permits rational undars:anding '
" of the basis for his decision; (2) whether the Director has correctly understood the governing law; (3) whether all 1:ecessary l
factors have been considered, and extraneous factors excluded, from the decisions (4) whether inquiry appropriate to the facts asserted has been made, and (5) whether the Director's i decision is demonstrably untenable on the basis of all information l available to him. Such review is similar to the review that would be accorded the Director's decision by a court, were immediate judicial review obtained, while preserving the Commission's necessary policy control. Id., at 175.
It is a well established principle of administrative law that while an agency is free to depart from past rulings and practices, it must provide a reasoned explanation for any failure to adhere to its own precedents. See e.g., National Black Media Coalition
- v. F.C.C., 775 F.2d 342 (D.C. Cir. 1985) (agency wishing to depart l
from consistent precedent must provide principled explanation for i
its change of direction); Altmark Corp. v. F.A.A., ~58 F.2d 685 i
(D.C. Cir.1985)' (agency must provide a reasoned explanation 1 for any failure to adhere to its own precedents); United Mun.
a l 9 l
1 Distributors Group v. F.E.R.C., 732 P.2d 202 (D.C. Cir., 1984)
(agency must conform to its prior practice and decisions or ex, lain l
the reason for its departure from such precedent); Distrigias of Massachusetts Corp. v. F.E.R.C., 737 F.2d 1208 (1st Cir. 1984)
(agenvy is free to interpret, supplement, revise and depart from previously existing rule, provided that it offers adequate explanation);
Bosma v. U.S. Dept. of Agriculture, 754 F.2d 804 (9th Cir. 1984) j (agency may not depart arbitrarily from its own announced policy).
As respondent has neither overruled Consolidated Edison, supra, i nor given any explanation as to why the policy therein should not l
be adhered to in the instant case, the five elements listed therein i clearly impose a "significant restraint" on agency discretion and serve to provide this court with."adequate guidelines for informed 1
judicial review" of Respondent's denial of the Petition.
l A broader restraint on agency discretion was established by the Respondent in In Re Petition For Emergency Action, CLI-78-6, 7 l NRC 400 (1978), stating:
, The Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011, et. seq., and the Energy Reorganization Act of 1974, 42 U.S.C.
5801, et. seq., impose on the Commission the responsibility for administering procedure for, inter alia, nuclear power reactors. In large part the licensing procedure is devoted to assuring that the health and safety of the public is adequately protected. [ citation omitted). Thus the Commission has stated that "...public safety is first, last, and a permanent consideration in any decision on the issuance of a construction permit or a license to operate a nuclear faellity."
(citation omitted). The Commission must have "reasonable assurance" that public health and safety are not endangered by its licensing actions. The Commission's res does not cease with the issuance of a license.If, ponsibility in the Commission's judgement, the public health and safety so requires, the Commission may take action to revoke, suspend or modify licenses, impose civil penalties, or issue cease and desist orders. Id., at 404.
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Even .nore persuasive is the opinion in Center For Auto Safety
- v. Dole. The court in Dele held that a National Highway Transportation Safety Administration regulation (49 C.F.R. 5552.8), providing that the agency will grant a petition if it finds that there is a "reasonable possibility" of a safety related defect, was suf ficient to rebut the presumption of non-reviewability established in Heckler.
Importantly, the court found precedent for this holding in its decision in Lorion, on remand from the Supreme Court, stating:
Lorion involved an NRC decision denying a citizen petition for enforcement. Under its own rules, the NRC is required to grant the petition if the evidence presents a "substantial...
safety issue" concerning the design of a reactor [ citations i omitted). This administrative standard corresponds to the "reasonable possibility" standard in NHTSA's regulation.
Thus, in both cases, the agency's decision to grant or deny j the citizen petition for enforcement turns on whether the l
evidence in the administrative record demonstrates a significant threat to public safety. The Lorion case produced opinions from the Supreme Court and our own circuit. The question presented to the Supreme Court...was whether jurisdiction to review the NRC decision (denying a 2.206 petition) resided exclusively in the court of appeals... But in order to decide this question, the Supreme Court had to consider the nature of the judicial review that it expected would take place... And indeed this court on remand performed precisely the kind of judicial review expected by the Supreme Court opinion. Our review was appropriately deferential, but we examined the administrative record, referred to by the Supreme Court, to determine whether it supported the NRC's determination that the citizen's petition presented no "substantial safety issue" (citation omitted). Together, the Supreme Court opinion in Lorion and the subsequent Lorion decision in our own circuit, establish a strong precedent in favor of normal APA record review in this case. Both Lorion and this case involve publi safety issues of great import.
One concerna the design of a nuclear reactor; the other, the design of an automotive transmission. But the basic factual issue set up for review is the same: does the product's design in fact contain a defect that may cause widespread injuries, and perhaps fatalities? Indeed, the public safety issues in both cases were deemed sufficiently important by both agencies as to require in their own regulations that safety be the sole consideration in deciding i
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i enforcement petitions. While this court cannot, and should not, second-guess the agency's safety determinations, this court can and should assure that the agency has some factual I support for those safety determinations. Making sure that the agency's stated reason for denying an enforcement petition is in truth the lack of a "substantial safety issue" guarantees that the responsible agency has given at least a minimum !
amount of consideration to the citizens whose safety Congress i has entrusted to the agency. Id. at 814. [ Footnotes omitted]. !
i The language quoted above, ignored by Boston Edison and l dismissed in a footnote by Respondent as erroneous dictum in their Motions to Dismiss, should be viewed by this court as weighty I authority for the proposition that denials of 2.206 petitions are !
l reviewable. As found in the D.C. Circuit, Respondent has provided this court with adequate guidelines for informed judicial review l
of its denial of the Petition. These guidelines may be found in Respondent's decisions in Consolidated Edison ar.d In Re Petition For Emergency Action, and in the D.C. Circuit's opinions in Lorion and Dole, all as described above.
Conclusion For the foregoing reasons, this court should deny Respondent's and Boston Edison's Motions to Dismiss and proceed to hear and adjudicate this appeal on its merits.
By its attorney, l
_ 2 William S. Abbott Simonds, Winslow, Willis & Abbott 50 Congress Street Boston, MA 02109 (617) 523-5520 i
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/nt3 l UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT i
I MASSACHUSETTS PUBLIC INTEREST )
l RESEARCH GROUP, et al., )
)
Petitioners )
- v. ) Docket No. 87-1865
)
UNITED STATES NUCLEAR )
REGULATORY COMMISSION, et al., )
)
Respondents )
)
COMMONWEALTH OF MASSACHUSETTS' MEMORANDUM OF POINTS AND AUTHORITIES IN ANSWER TO THE MOTIONS OF RESPONDENTS NRC, ET AL.
_A_N D INTERVENOR BOSTON EDISON TO DISMISS PETITION FOR RE'IEW I. Introduction The Pilgrim Nuclear Power Station ("Pilgrim"), located in Plymouth, Massachusetts and operated by the Boston Edison Company, has long been plagued by operational and other problems which have received much public attention. The pirit ,
its management, and the provisions for emergency action have all been criticized by state, local and federal officials as well as private citizens and groups. On July 15,'1986, a group of private citizens, elected officials, and public interest l
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groups filed a request with the Nuclear Regulatory Commission seeking the initiation of enforcement action for Pilgrim.
Portions of this request were denied in a decision issued August 21, 1987.
This Petition for Review of that decision Was filed on October 1, 1987. !
On October 27, 1987, Respondents, the United States Nuclear Regulatory Commission ("NRC") and the United States of America (hereinaf ter collectively referred to "the NRC") filed a motion to dismiss this Petition for Review. On November 5, 1987, Intervenor, the Boston Edison Company ("BECo") filed a separate motion to dismiss. Both motions assert that the instat.c petition should be dismissed on the ground that under the i
Supreme Court's decision in tha case of Heckler v. Chaney, 470 U.S. 821 (1985), NRC decisions to not take enforcement action are not reviewable under Section 701(a)(2) of the i Administrative Procedure Act. NRC Motion at 1-2: BECo Motion at 2-3, 5.1/ BEco's motion makes another argrument as well, that the NRC action of which review is sought is not a final ac*. ion. 9ECo Motion at 3, 1 6.
I 1/ In this memorandum, reference to the Motion to Dismisr of the NRC et al. Will be in the form:
~ "NRC Motion at .
l Reference ~to the Motion to Dismiss and to the Memorandum in i support of the Motion of the Boston Edison Company will be in the forms: "SECo Motion at __,, 1 __" and "BEco Memo at __."
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A. The GoAJon Section 2.206 Request The Section 2.206 request for the initiation of enforcement proceedings that is the subject of the instant petition for review was filed on July 15, 1986 by William Golden, et al. and styled "Petition for Show Cause Concerning Pilgrim I Nuclear Power Station" ("Golden Petition"). The request for NRC enforcement action was premised upon three grounds:
s deficiencies in the management by BEco of the Pilgrim plant, deficiencies in the planning and the state of emergency preparedness for an accident at the Pilgrim plant, and deficiencies in the design of the reactor containment structure at the Pilgrim plant. E7ston Edison Company (Pilgrim Nuclear Power Station), DD-87-14, __ NRC __ (1997) attached to Petitioners' Petition for Review as Exhibit A. Included in the Golden Petition were the factuhl basis for each of the asserted grounds for enforcement action. See id. at 8 5 11 and 15. The petition requested that the NRC take three actions: (1) issue an order to show cause why Pilgrim should not be ordered shut down or have its license suspended pending resolution of the issues raised in the petition; (2) issue an order requiring BECo to submit a feasibility study concerning structural modifications to Pilgrim's reactor containment structure; and (3) hold a public hearing to address the issues raised in the petition.
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B. The NRC's "Interim Director's Decision" In an "Interim Director's Decision,"1 dated August 21, 1987, the Director of the NRC's Office of Nuclear Reactor Regulation, Dr. Thomas E. Murley, denied the Golden Petition's request for enforcement action with respect to the alleged emergency planning / preparedness and the reactor containment design deficiencies. On both of these grounds, the Director concluded that "the information identified in the Petition dos; not warrant the initiation of the requested proceedings , . .
00-87-14, __ NRC __ (Slip at 35). In a notice served with the Interim Director's Decision and later published in the Federal i
Register, it was stated that pursuant to Section 2.206(c) of the Commisaion's regulations, t'he decision became final on Septenber 14, 1987) (25 days after August 21, 1987). 52 Fed.
Reg. 32, 363 (August 27, 1987).
Of particular importance to this Petition for Review, the decision to deny the requested initiation of enforcement proceedings with respect to emergency / planning issues was expressly premised upon a review of those issues by the Federal 2/ Pursuant to 10 C.F.R. S 2.206, requests for the institution i
of enforcement action are filed with the Director of the appropriate NRC Office. That Director makes a determination
" i whether or not to grant the request and, if the decision is to dony the request, issues a "Director's Decision." An "Interim Director's Decision," as that term is used by the NRC refers to a final decision on part, but not all of a request for enforcement action.
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. l Em rgency Management Agency ("FEMA")A!. "On the basis that 1
FEMA's analysis of the Petition's specific issues did not '
sustain the contentions, this portion of Petitioners' request is denied." DD-87-14, NRC (Slip at 14). Importantly, the Interim Director's Decision included the following observation:
This denial notwithstanding, the Commission acknowledges that FEMA agrees with the general thrust of some of the conclusions of the Petition for reasons cited in FEMA's Self-Initiated Review and Interim Finding dated August 4, 1987. Based on this latter report, FEMA has concluded tht offsite radiological emergency planning and preparedness for Massachusetts are inacequate to protect the public health and safety in the event of an -
accident at the Pilgrim Nuclear Power Station.
Id.
The Interim Director's Decision did not state whether tha so-called "FEMA Self-Initiated heview and Interim Finding" was considered in the denial of the request for enforcement action, nor whether it found the deficiencies identified by FEMA to be I different for those identified in the Golden Petition.
C. The_NRC's Enfore lnt Framework i
Under the Atomic Energy Act of 1954, 42 U.S.C. 2011 et l seq., and the Energy Reorganization Act of 1974, 42 U.S.C.
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i 5801 et seq._, the NRC is authorized to take a range of 1/ Pursuant to a Memorandum of Understanding between FEMA and l
the NRC, FEMA takes the lead role in evaluating the offsite '
emergency planning and preparedness for NRC licensees. See 45 Fed. Reg. 58,847 (1980).
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enforcement actions against licensees for "noncompliance with" or "violations.of" its regulations.(cite to explain quote marks)
Under this authority, the NRC has promulgated a "General Statement of Policy and Procedure for NRC Enforcement Actions"
("Statement of Enforcement Policy") as well as a set of enforcement procedure regulations. See 10 C.F.R. Part 2, Appendix C: 10 C.F.R. Subpart B.
- The enforcement policy of the PRC provides for a variety of enforcement actions, ranging from notices to shutdown orders and imprisonment. At stated, the policy is designed to achieve strict compliance with NRC regulations. It requires that enforcement action be taken for violations in all but the most exceptional cases. In the "Introduction and Purpose" section of the Statement of Enforcement
- Policy, a strict enforcement policy is articulated:
Consistent with the purpose of this program, prompt and vigorous enforcement action will be taken when dealing with licensees or vendors who i do not achieve the necessary meticulous attention to detail and the high standard of compliance which the NRC expects. It is the commission's intent that sanctions should be {
designed to ensure that a licensee or vendor i does not deliberately profit from vioistions of SRC requirements. Each enforcement action is dependent on the circumstances of the case and requires the exercise of discretion after consideration of these policies and procedures.
In no case, however, will licensees who cannot achieve and maintain adequars levels of protection be permitted to conduct licensed activities.
10 C.F.R. Part 2, Appendix C, Section I (emphasis adddd). In more specific terms, the Statement of Policy indicates that, 1
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"[w]ith very limited exceptions, whenever a violation of NR" requirements is identified, enforcement action is taken."
10 C.F.R. Part 2, Appendix C, Section V.
In Subpart B of 10 C.F.R. Part 2, the Commission's regulations set forth the procedures.to be used in the exercise of the NRC's enforcement authority. Section 2.201 governs the provision of written notices of violations, Section 2.202 governs the issuance of orders to show cause, Sectior 2.204 governs the issuance of orders modifying licenses, and Section 2.205 governs the imposition of civil penalties.
Section 2.206 addresses the filing and treatment of 4
requests for the initiation of enforcement action by the NRC.
10 C.F.R. 2.206. Subsection (a) of Section 2.206 provides j that:
Any person may file a request for [the Director of the appropriate NRC Office] . . . to institute a proceeding pursuant to 2.202 to modify, suspend or revoke a license, or for such other action as may be proper. . . . The request shall specify the action re-quested and set forch for the the facts that constitute the basis request.
' i i
subsection (b) requires that within a "reasonable time" the l Director "shall either institute the requested proceeding in accordance with this subpart or shall advise the person. . . in !
i i
writing that no proceeding will be instituted . . . and the i
i reasons therefor." Director's denials of Section 2.206 i requests are reviewable by the commission to provide an opportunity for internal review of the Director's exercise of i
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discretion prior to any review by a co t. Consolidated Edison .
l Comenny of New York, Inc. (Indian Point, Units 1, 2, and 3) ;
CLI-75-8, 2 NRC 173, 175-76 (1975). The Commission has addressed the question of the appropriate standard of review: >
t we believe the question whether the Director has abused his discretion in denyir.g a request for a show cause order to embody the following
- elements
(1) whether the statement of reasons given permits rational understanding of the basis for his decisions (2) whether the Director has correctly understgod governing law, regulations, and l policysi/
(3) whether all necessary factors have been considered, and extraneous factors excluded,
, from the decision; (4) whether inquiry appgopriate to the facts asserted has been mades and I (5) whether the Director's decision is demonstrably untenable on the basis of all information available to him.5/
4/ In an application of the second element, the Commission 1
indicated that Section 2.202 of its regulations requires the I issuance of a show cause order if the Director concludes
' "substantial health or safety issues (havel been raised."
Consolidated Edison Company of New York, Inc. (Indian Point, 1
Units 1, 2 and 3) CLI-75-8, 2 NRC 173, 176 (1975).
5/ The Commission's description of this standard in a I subsequent context:
decision is particularly noteworthy in the instant "The Indian Point standard of review is similar
~
i to the review that would be accorded the i
Director's decision by a court. 2 NRC at 175.
See Dunlop v. Bachowski, 421 U.S. 560, 568-576 j
(1975); Citizens to Preserve overton Park, Inc.
v t Volpe, 401 U.S.
4 402, 416 (1971)." Licensees Authorized to Possess or Transport Strateate I Quaatities of Special Nuclear Materials, CL1-77-3, 5 NRC 16, 20 n. 6 (1977).
8-
Id. While the Commission does not now entertain petitions for review of Director's denials --
in 1977, the Commission decided that it would no longer entertain petitions for review of Director's denials under Section 2.206, but retained "the power to review Director's denials sua sponte" 42 Fed. Reg.
36239 (Jcly 14. IS77) --
Director's Decisions frequently
- ortain cofetence to the so-called "_ Indian Point" standard as yto: dMing the basta for a decision. See e.g., Philadechia 1
t Electstp,Coppanv_) Limerick Generating Station, Units 1 and 2), '
85-00-11, 22 NRC 149, 152-153 (1985); (Washington Public Power Supply System (dPPSS Nuclear Project No. 2), DD-84-7, 19 NRC h
699, 923 (1984)(citation to Indian Point decision as support for the proposition that: "The standard to be applied in determining whether to issue a show-cause order is whether substantial health or safety issues have been raised.").
III. Argument
- A. A Denial By The NRC Of A Request For The Institution '
Of Enforcement Action Is Reviewable By This Court.
i This Court has jurisdiction to review final orders entered by the NRC in license related proceedings. 42 U.S.C. 2239(b) i and 28 U.S.C. 2342(4) (1982); Florida Power & Light Co. v.
Lorion, 470 U.S. 729 (1985). This jurisdiction is subject to 4
provisions of Section 10 of the Administrative Procedure Act, which provides a right of judicial review of agency actions except where: "(1) statutes preclude judicini reviews or (2) agency action is committed to agency discretion by law."
i
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5 U.S.C. 701 (1982). Although the Supreme Court in Heckler v.
Chaney, 470 U.S. 821 (1985), held that agency enforcement decisions are subject to a rebuttable presumption that they are "committed to agency discretion by law" and, thus, not subject to judicial review, as is discussed below, the Chaney presumption is rebutted in the case of NRC enforcement decisions and, as a result, NRC decisions to deny a request for enforcement action are not "committed to agency discretion by ,
Itw" and are reviewable by this Court.k!
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- 1. The Heckler v. Chaney Decision Chaney involved the assertion by death row prisoners of a right to judicial review of the Food and Drug Administration's decision to decline to take enf*rcement o action with respect to i the use of certain drugs for haman executions. The prisoners claimed that such use was "the unapproved use of an approved drug and constituted a violation of the (Food and Drug) Act's prohibitions against misbranding." 470 U.S. at 823-24 (footnote and quotations omitted). The Court of Appeals for the District of Columbia circuit had held that judicial review 1/ There is no question here of whether there is a statutory preclusion of judicial review of NRC decisions to deny requests for enforcement action. Such preclusions are found only where there is a " showing of ' clear and convincing' evidence of a !
i
. . . legislative intent to restrict access to judicial review."
Heckler v. Chaney, 470 U.S. 821, 830 (1985) (quoting from citizens to Preserve Overton Park v. Volpe, 401, U.S. 402, 410 (1971). No such evidence exists in the Atomic Energy Act and neither of the .*.ovants have asserted that Congress has explicitly precluded review.
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was availaole. Chaney v. Heckler, 718 F.2d 1174 (D.C.'Cir. ,
1983). This holding was based on a three step analysis: (1)'
that all agency actions are presumed to.be reviewables (2) that ,
l the "committed to agency discretion by law" provision of 70)(a)(2) should bar judicial review only'where the substantive ,
l l statute left the courts with no law to apply; and (3) that a i
d Food and Drug Administration ("FDA") policy statement, which was found to be a rule and binding on the FDA, provided the law i
to apply in judging.how the agency should exercise it !
enforcement discretion. 470 U.S. at 825-27.
] The Supreme Court reversed. . Reasoning that agency !
decisions to not take enforcement action have traditionally r
i i ;
i been committed to agency discretion and that Congress did not i
intend to alter this tradition in the enactment of the APA, the Court held that such decisions are presumptively unreviewable.
470 U.S. at 83233. The Court emphasized, however, that this t
presumption may be rabuttled where it is shown that Congress i j
nas limited an agency's discretion. In the circumstances of the chaney case, the Court held that the Court of Appeals had 3
erred in holding that the presumption of reviewability should I i
be applied to an agency's decision to not take enforcement.
1 470 U.S. at 430-35. Applying instead the presumption of i
unreviewability, the Court found that neither the language of
!i the Food and Drug Act nor the FDA's implementation of the Act i
l provided the "courts with ade';uate guidelines for informed l j I
' judicial review of decisions not to enforce" and, thus, did not 1
1 1
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overcome the presumption that the FDA's decision to not take enforcement action was unreviewable. 470 U.S. at 835-37.
The Court ~ concluded that the terms of the enforcement provisions of the Food Drug Act "commit complete discretions to the Secretary to decide how and when they should be exercised."
470 U.S. at 835. It rejected arguments that indicia of a !
Congressional intent to limit the FDA's enforcement discretion could be found in the Food and Drug Act's prohibition of "misoranding" or in an explicit provision that allowed the Secretary to not prosecute "minor violations" in certain circumstances. Id. at 836-37. Further, the Court rejected the Appeals Court's reliancc upon an FDA policy statement as a ,
source of "law to apply" in judicial review of enforcement decisions. The Court left "to'one side the problem of whether an agency's rules might under some circumstances provide courts with adequate guidelines for informed judicial review of j decisions not to enforce." Hie <ler v. Chancy, 470 U.S. at 836, i
As characterized by the Court, the policy statement was "vague" 1
, and not a "properly adopted agency rule." 11. at 836. More 1 l
l importantly, however, the court concluded that the policy l
1 statement only purported to obligate the agency to take !
investigative, not enforcement actions and that any force it might have as a meaningful constraint on enforcement action was
- overcume by a properly adopted agency rule on judicial review
) which expressly asserted unreviewable discreation in 1
enforcement decisions. Id.
i
- 2. NRC Enforcement Decisions Are Subject To Judicial Review Secause They Are Not "Committed To Agency Discretion by Law.",
The issue of whether or not the NRC's enforcement decisions are committed to agency discretion by law is one of Congressional intent. As the Court explained in Chaney:
"Ln establishing this presumption in the APA, Congress did not set agencies free to disregard 1
legislative direction in the statutory scheme that the agency administers. Congress may limit an agency's exercise of enfocement power if it wishes, either by setting substantive priorities, f or by otheraise circumscribing an agency's power to discriminate among' issues or cases it will 6
pursue. How to determine among issues or cases it will pursue. How to determine when Congress has done so is the question left open by Overton Park." l 470 U.S. st 833. Thus, to determine whether Congress intended 2
to place judicially reviewable limits on the enforcement discretion of the NRC, it is necessary to resort to the J
customary methods of ascertaining Congressional intent:
statutory language, legislative history, long-standing agency interpretations, and contemporaneous judicial constructions acquiesced in by Congress. Although the question of whether
! Congress intended that judicial review be available for i l
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i agency denials of enforcement request has'not been addressed directly by the courts since the decision in Chaney,M it is clear that both BECo and the NRC have it wrong and that.t.he i weight of authority rebuts the presumption that Congress intended that such decisions be unreviewable. t i
Perhaps the most compelling indicia of Congressional interest is the fact that judicial review of HRC enforcement I
", c decisions in 1982 when it considered and enacted the so-called f "Sholly" amendment. M This Congressional acquiescence in the '
face of judicial decisions allowing judicial review of NRC 3
3 4
enforcement decisions 1g,3, Illinois v. NRC, 591 F.2d 12 (7th '
i i
Cir. 1979); Porter County Chapter of the Izack Walton League of '
j 1 America, Inc. v. NRC, 606 F.2d 1363 (D.C.Cir. 1979)("We do not ;
i understand the Commission to... Claim unfettered discretion j
under the Act to choose not to I l
4 7/ In Florida Power & Light Co. v. Lorion, 470 U.S.729, 735.n. 1
- i i 8 (1985), a decision rendered the same day as Chaney, the Court ;
(with Justice Stevens dissenting on this point) specifically l 1 eft this issue undecided and the Court of Appeals expressly I i
did not decide the issue in i*1 decision on romand in Lorien.
1 785 F.2d 1039, 1040 (D.C. Civ. 1986). J,gg,Eddleman v. NRC, 825
! F.2d 40 (4th Civ. 1987) ( pos t ,qhg,c,,y, decision wi t hou t any j discussion of reviewability providing judicial review of NMC denial of a section 2.206 request.
i t
1/ The so-called "Sho11y" amendment is legislation enacted in 1982 in response to a decision by the Court of Apppeal for the District of Columbic Circuit in which it was held that if a
requested, a public hearing must be held before any. license i
amendment
' could be arroved.
l denied, 651 F.2d 792 re)m,1g,Sholly v. NRC, anded g ineht 651, g P.L. F.2d 700,97-415 459 i . . 1984 (1984). The amendment added subjection 2 to 42 1
U.S.C. $ 2239 and thereby exempled most amendments f rom the l
] requirement of a prior hearing. Public No.97-415, 5 12, 96 stat. 2073 codified at 42 U.S.C. $ 2239 (2)(1984 Supp.) itg, l 1982 U.S. Cong, and Admin. News p. 3592.
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- l inscitute proceedings" 606 F.2d at 1368) should be sufficient to overcome the presumption of unreviewability. To paraphrase the court in a post-Chaney decision, "the congressional intent necessary to overcome the presumption may also be inferred from s
contemporaneous judicial construction (allowing) review and the congressional acquiescence in it..." Bowen v. Michigan Academy of ramily Physicians, U.S. , 106 Sap.Ct. 2133, 2137 n.
4 (1986).
Moreover, the expert agency cherged with implementing and administering the Atomic Energy Act the NRC itself has long recognized that its enforcement decisions are not wholly committed to its discretion. It has interpreted the Atomic 4
- Energy Act to place limits on its enforcement discretion as sell as on its discretion to deny requests to institute enforcement proceedings. Indeed, on more than one occasion, the NRC has articulated the limits on its discretion and indicated that its compliance with those limits is a proper l subject of judicial review.
Consolidated Edison Crq any of New l York (Indian Point, Units 1, 2, and 3), CLI-75-8, 2 NRC 173, 1
! 175 (1975)("Such review is similar to the review that would be secorded the Direse.t's decision by a court, were immediate judicial review obtained .
. W2 believe it more appropriate
! that the Commission speak to these issues first . . . ").
i Accord Licensees Authorized to Possess or Transport Strategic l Quantities of Special Nuclear Materials, CLI-77-3, 5 NRC 16, 20
- n. 6 (1977) ("The Indian Point standard is similar to the
{
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review that would be accorded the Director's decision by a court."). These pronouncements and the review guidelines set forth therein leave no doubt but that the NRC interpreted the Atomic Energy Act to allow judicial review of decisions denying requests for enforcement action. Such pronouncements are to be accorded "great deference" and "should be followed unless there are compelling indications that (they) are wrong." , Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (.1969).
Further, dere this Court to reject these two very compelling indicia of Congressional intent, both the NRC's statement of enforcement policy as well as its unreversed decisional law discussed shows should be held to supply i
"adequate guidelines for informed judicial review. Although l
the issue was left "to one side" by the Court in Chanqr, 470 U.S. at B36, tne Court of Appeals for the District of Columbia circuit has held that agency rules can supply the "law to apply" so as to allow judicial review of agency decisions to not take enforcement action. Center for Auto safety v. Dole, 828 F./2d 799 (C.D. Cir. 1987). There, the court held that a i
National Highway Transportation Safety Administration ("NHTSA")
regulation could supply law to apply where the regulation stated that the agency would grant petitions for investigative i proceedings it NHTSA found: "a reasonable possibility that the i i
order requested in the petition will be issued at the j conclusion of the appropriate proceeding." id. 828 F.2d at 801 Notably neither the NRC not BEco. have argued that this court
)
) should not adopt the building the the Center for Auto Safety i
i Case.
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The NRC's enforcement policy provides that "enforcement action will be taken" in specified circumstances and that "with very limited exceptions... enforcement action is taken" when violations of HRC requirements are ideutified. 10 C.F.R. Part 2, Appendix C, Sections I and V (emphasis added). The Golden Petition alleged that emergency planning / preparedness for Pilgrim was inadequate, a violation of NRC regulations. See 10 C.F.R. 5 50.54(s). Thus, the NRC's denial of that portion of the Golden Petition raises a reviewable question of whether the NRC complied with its own enforcement policy, both with respect to whether a violation should have been found and with respect to whether enforcement action should have been taken. The j NAC's statements concerning the so-called FEMA Self Initiated Review raised real and reviewable questions about whether it should have both found a violation of NRC requirements and granted the request for enforeement action.
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! The NRC's review "Interim is sought Director's Final Decision" For Purposes for which of Review I I
I BEco. argues that "(ilnsofar as the ' Interim Director's t
Decision deferred taking action on the petition for the l initiation of enforcement action proceedings, it is manifestly not final. Mtco Memo at 13. It then asserts that "to this l
extent the "Interim Disrectcr's Decision" is not reviewable" and that "as to this portion of the decision below, the Petition for Review must be dismissd." Id. If by this 1
T
argument BEco. is asserting that the Director's Decision to defer action on the allegation of managarial deficiencies is not now reviewaole by this court, it is not neccessary to address the argument. Review of that portion of the NRC's action is not being sought here. If, instead, BECo is asserting that no review of the Diredtor's Decision may be had because action was deferred on one portion of the Golden
- Petition, Massachusotts submits that BECo is incorrect. As to i
the request for enforcement action relating to the Pilgrim 4
reactor containment and emergency planning / preparedness, the NRC has taken final action. 52 Fed. Reg. 32,363 (August 27, 1987). The NRC has had notice of its action published in the Federal Register and nas by its own admission, "9fven its last word on the matter." Sierra Club v. NRC, 825 F.2d 1356, 1362 l (9th Cir. 1987) (quotations omitted).
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] IV CONCLUSION WHEREFORE, For all of the foregoing reasons, the Conmonwealth of Massachusetts respectfully submits that the motions to l dismiss of the NRC and BECo. are witho, merit and should be denied. !
3 Respectfully submitted, JAMES M. SHANNON --
i ATTORNEY GE '
1 By: _
'4 .
Teorge*5. Dern Da Assistant Attorney General Department of the Attorney General One Ashburton Place, 19th Flocr a
Boston, MA 02108 (617) 727-1093 Dated: November 17, 1997 !
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
)
MASSACHUSETTS PUBLIC INTEREST )
RESEARCH GROUP, et al., )
)
Petitionsrs )
- v. ) Docket No. 87-1865
)
UNITED STATES NUCLEAR )
REGULATORY COMMISSION, et al., )
)
Respondents )
)
CERTIFICATE OF SERVICE I, George B. Dean, hereby certify that on November 17, 1987, I made service of the within Commonwealth of Massachusetts' fienorandun ot' Points and Authorities in Answer to the Motions of Respondents NRC, et al. and Intervenor Boston Edison to Dismiss Petition for Review, by mailing copies thereof, postage psepaid, by first class mail, to:
Lando W. Zech, Jr., Chairman Laura E. Forssard, Esq. I U.S. Nuclear Regulatory Comm. Appellate Section '
1717 H Street Land and Natural Resources Div.
washington, DC 20555 U.S. Department of Justices i Washington, DC 20530 William S. Abbot, Esq. William H. Briggs, Jr.
Simonds, Winslow, Michael B. Blume Willis & Abbot U.S. Nuclear Regulatory Comm.
50 Congress Street Office of the General Counsel Boston, MA 02109 1717 H Street Washington, DC 20555
)
. ~ ;
R.K. Gad III, Esq.
Ropes & Gray 225 Franklin Street Boston, MA 02110 m x-GeorgeFB. Deun Assistant Attorney General Department of the Attorney General !
One Ashburton Place, 19th Floor .
Boston, MA 02108 !
i (617) 727-1083 i
i j Dated: tiovember 17, 1987 4
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. - _ _ _ _ - . - - - - _ _-. , - , . . _ _ , _ - . - - . . , - , 4 -,--...,..-r- a
- O UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
)
MASSACHUSETTS PUBLIC INTEREST )
RESEARCH GROUP, et al., )
)
Petitioners )
)
- v. ) Docket No. 87-1865
)
UNITED STATES NUCLEAR )
REGULATORY COMMISSION, et al., )
)
Respondents )
)
COMMONdEALTH OF MASSACHUSETTS' MEMORANDUM OF POINTS AND AUTHORITIES IN ANSWER TO THE MOTIONS OF RESPONDENTS NRC. ET AL.
AND INTERVENOR BOSTON EDISON TO DISMISS PETITION FOR REVIr.W I. Introduction The Pilgrim Nuclear Power Station ("Pilgrim"), located in Plymouth, Massachusetts and operated by the Boston Edison Company, has long been plagued by operational and other problems which have received much public attention. The plant, its management, and the provisions for emergency action have all been criticized by state, local and federal officials as well as private citizens and groups. On July 15, 1986, a group of private citizens, elected officials, and public interest e/s
groups filed a request with the Nuclear Regulatory Commission seeking the initiation of enforcement action for Pilgrim.
Portions of this request were denied in a decision issued August 21, 1987 This Peticion for Review of that decision was
, filed on October 1,1987.
On October 27, 1987, Respondents, the United States Nuclear p Regulatory Commission ("NRC") and the United States of America l (hereinafter collectively referred to "the NRC") filed a motion to dismiss this Petition for Review. On Novembe r 5,1987, 1
Intervenor, the Boston Edison Company ("BECo") filed a separate '
t i motion to dismiss. Both motions assert that the instant !
1 petition should be dismissed on the ground that under the -
Supreme Court's decision in the case of Heckler v. Chaney, 470 1
U.S. 821 (1985), NRC decisions to not take enforcement action ~
are not reviewable under Section 701(a)(2) of the Administrative Orocedure Act. NRC Motion at 1-2; BECo Motion at 2-3, 1 5.1/
BEco's motion makes another argument as well,
! that the NRC action of which review is sought is not a final i
] action. BEco Hotion at 3, 1 6. l i
1/ In this momorandum, reference to the Motion to Dismiss of the NRC et al. will be in the form: "N".C Motion at
~
Reference to the Motion to Dismiss and to the Memoranium in Support of the Motion of the Boston Edison company will be in the forms: "BEco Motion at __, 1 __" and "BEco Memo at __."
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II. The Facts A. The Golden Section 2.206 Request The Section 2.206 request for the initiation of enforcement proceedings that is the subject of the instant petition for review was filed on July 15, 1986 by William Golden, et al. and styled "Petition for Show Cause Concerning Pilgrim I Nuclear Power Station" ("Golden Petition"). The request for NRC enforcement action was premised upon three grounds:
deficiencies in the management by BECo of the Pilgrim plant, deficiencies in the planning and the state of emergency preparedness for an accident at the Pilgrim plant, and deficiencies in the design of the reactor containment structure at the Pilgrim plant. Boston Edison Comnany (Pilgrim Nuclea Poder Station), DD-87-14, __ NRC __ (1987) (Slip at 1-2)
(attached to Petitioners' Petition for Review as Exhibit A).
Included in the Golden Petition were the factual basis for each of the asserted grounds for enforcement action. See id, at 8, 11 and 15. The petition requested that the NRC take three actions: (1) issue an order to show cause why Pilgrim should not be ordered shut down or have its license suspended pending resolution of the issues raised in the petitiour (2) i'aue an order requiring BEco to submit a feasibility study concerning structural modifications to Pilgrim's reactor containment structures and (3) hold a public hearing to address the issues j raised in ths petition. Id.
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B. The NRC's "Interim Direqr.or's Decision" In an "Interim Director's Decision,"1/ dated August 21, -
1987, the Director of the NRC's Office of Nuclear Reactor Regulation, Dr. Thomas E. Nurley, denied the Golden Petition's i
request for enforcement action with respect to the alleged emergency planning / preparedness and the reactor containment j design deficiencies. On both of these grounds, the Director '
concluded that "the information identified in the Petition does e
not warrant the initiation of the requested proceedings . . . "
00-87-14, __ NRC __ (Slip at 35). In a notice served with the Interim Director's Decision and later published in the Federal Register, it was stated that pursuant to Section 2.206(c) of the Commission's regulations, the decision became final on September 14, 1987 (25 days after August 21, 1987). 52 Fed.
Reg. 32,363 (August 27, 1987).
Of particular importance to this Petition for Review, the decision to deny the requested initiation of enforcement proceedings with respect to emergency planning / preparedness issue.* was expressly premised upon a review of those issues by 2/ Pursuant to 10 C.F.R. 5 2.206, requests for the institution of enf orcement action are filed with the Director of the appropriate NRC Office. That Director makes a determination i
l whether or not to grant the request and, if the decision is to deny the request, issues a "Director's Decision." An "Interim Director's Decision," as that term is used by the NRC, refers to a final decision on part, but not all of a request for enforcement action.
the Federal Emergency Management Agency ("FEMA")1!: "On the basis that FE!!A's analysis of the Petition's specific issues did not sustain the contentions, this portion of Petitioners' request is denied." DD-87-14, __ NRC __ (Slip at 14).
Importantly, the Interim Director's Decision included the '
following observation:
This denial notwithstanding, the Commission acknowledges that FEMA agrees with the general thrust of some of the conclusions of the Petition for reasons cited in FEMA's Self-Initiated Review and Interim Finding dated August 4, 1987. Based on this latter report, FEMA has concluded tht offsite radiological emergency planning and preparedness for Massachusetts are inadequate to protect the public health and safety in the event of an accident at the Pilgrim Nuclear Power Station.
Id.
The Interim Director's Decision did not state whether the so-called "FEMA Self-Initiated Review and Interim Finding" was considered in the denial of the request for enforcement action, not whether it 'ound the deficiencies identified by FEMA to be I
different from those identified in the Golden Petition.
C. The NRC's Enforcement Framework I
4 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. 5 ,
5801 et seq., the NRC is authorized to take a range of i
3/ Pursuant to a tiemorandum of Understanding between FEMA anc 4
the NRC, FEMA takes the lead role in evaluating the offsite emergency planning and preparedness for NRC licensees. See 45 Fed. Reg 58,847 (1980). ,
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i enforcement actions agai'nst licensees for "noncompliance with" or "violations of" its regulations. Under this authority, the NRC has promulgated a "General Statement of Policy and Procedure for NRC Enforcement Actions" ("Statement of Enforcement Policy") as well as a set of enforcement procedure regulations. See 10 C.F.R. Part 2, Appendix C 10 C.F.R. !
Part 2, Subpr.rt B. t The enforcement policy of the NRC provides for a variety of enforcement actions, ranging from notices to shutdown orders and imprisonment. As stated, the policy is designed to achieve strict compliance with NRC regulations. It requires that 4
enforcement action be taken for violations in all but the most 4
exceptional cases. In the "Introduction and Purpose" section of the Statement of Enforcement Policy, s strict enforcement ,
policy is articulated: '
Consistent with the purpose of this program, prompt and vigorous enforcement action will be t i
taken when dealing with licensees or vendors who ;
i do not achieve the necessary meticulous attention to detail and the high standard of i
compliance which the NRC expects. It is the !
Commission's intent that sanctions should be 4
6esigned to ensure that a licensee or vendor .
t does not deliberately profit fron violations of l HRC requirements. Each enforcement action is dependent on the circumstances of the case and requires the exercise of discretion after ;
i consideration o^. these policies and procedures.
In no case, however, will licensees who cannot l i
achieve and maintain adequate levels of !
protection be permitted to conduct licensed
- activities.
10 C.F.R. Part 2, Appendix C, Section I (emphasis added). !n more specific terms, the Statement of Policy indicates that, d
, _ _ . . . . . . - - _ ~ _ _- - - ---_- -- - .. , ,
"(w]ith very limited exceptions, whenever a violation of NRC ,
requirements is identified, enforcement action is taken."
10 C.F.R. Part 2, Appendix C, Section V.
In Subpart B of 10 C.F.R. Part 2, the Commission's regulations set forth the procedures to be used in the exercise of the NRC's enforcement authority. Section 2.201 governs the -
provision of written notices of violations, Section 2.202 governs the issuance of c:ders to show cause, Section 2.204 gove ns the issuhnce of orders modifying licenses, and Section 2.205 noverns the imposition of civil penalties. i section 2.206 addresses the filing and treatment of i requests for the initiation of enforcement action by the NRC.
i 10 C.F.R. 5 2.206. Subsection (a) of Section 2.206 provides i that: <
l i Any person may file a request for (the Director i
of tne appropriate NRC Office) .. . to 1 j institute a proceeding pursuant to $ 2.202 to i modify, suspend or revoke a license, or for such l l
other action as may be proper. ... The 4
request shall specify the action requested and ,
j set forth the facts that constitute the basis for the request.
I i subsection (b) requires that within a "reasonable tame" the 1 l
Director "shall either institute the requested proceeding in l accordance with this subpart or shall advise the person. . . in I i
writing that no proceeding will be instituted . . . and the i reasons therefor." Director's denials of Section 2.206 l
j requests are reviewable by the Commission to provide an '
opportunity for internal review of the Director's exercise of '
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- 7- 1 a
discretion prior to any review by a court. Consolidated Edison Company of New York, Inc. (Indian Point, Units 1, 2, and 3)
CLI-75-8, 2 NRC 173, 175-76 (1975). The Commission has addressed the question of the appropriate standard of review:
we believe the question whether the Director has abused his discretion in denying a request for a show cause order to embody the following elements:
(1) whether the statement of reasons given permits rational understanding of the basis for his decisions (2) whether the Director has correctly understood governing lav, regulations, and policyli/
(3) whether all necessary factors have been considered, and extraneous factors excluded, from the decisions (4) whether inquiry appropriate to tne facts asserted has been mader and (5) whether the Director's decision is demonstrably untenable on the basis of all information available to him.1/
4/ In an application of the second element, the Connission Indir sted that Section 2.202 of its recillations requires the issuance of a show cause order if the Director concludes "substantial health or safety issues (havel been raised."
Consolidated Edison Company of New York, Inc. (Indian Point, t Units 1, 2 and 3) CLI-75-8, 2 NRC 173, 176 (1975).
5/ The Commission's description of this standard in a subsequent decision is particularly notewortny in the instant context:
l "The Indian Point standard of review is similar to the review tnat would be accorded the Director's decision by a court. 2 NRC at 175.
see Dunlop v. Bachowski, 421 U.S. 560, 568-576 i j
(1975); Citizens to Preserve overton Park, Inc. j
- v. Volpe, 401 U.S. 402, 416 (1971)."
Licen. sees Authorized to Possess or Trnnsport Strategic Quantities of special Nuclear Materials, CLI-77-3, 5 NRC 16, 20 n. 6 (1977)."
I J
Id. While the Commission does not now entertain petitions for review of Director's denials -- in 1977, the Commissio, decided that it would no longer entertain petitions for review of Director's denials under Section 2.206, but retained "the power to review Director's denials sua sponte" 42 Fed. Reg.
35239 (July 14, 1977) --
Director's Decisions frequently-4 contain reference to the so-called "Indian Point" standard as providing the basis for a decision. See e.g., Philadephia i
Electric Company (Limerick Generating Station, Units 1 and 2!,
85-00-11, 2 2 NRC 14 9, 152-153 (1985): Washington Public Power Supply System (WPPSS Nuclear Project No. 2), DD-84-7, if NRC 899, 923 (1984)(citation to Indian Point decision as support f or the proposition that: "The standard to be applied in i determining whether to issue a sh;w-cause order is whether substantial health or safety issues have been raised.").
III. Argument l
A. A Denial By The NRC Of A Request For The Institution Of Enforcement Action Is Reviewable By This Couri. l This Court has jurisdiction to review final orders entered i by the NRC in license related proceedings. 42 U.S.C. $ 2239(b) and 28 U.S.C. 5 2342(4) (1982): Florida Power & Light Co. v.
i Lorion, 470 U.S. 729 (1985). This jurisdiction is subject to provisions of Section 10 of 'he Ad.ninistrative Procedure Act, which provides a right of judicial review of agency actions
- exc ept where
- "(1) 1 statutes preclude judicial reviews or (2) agency action is committed to agency discretion by law."
I
5 U.S.C. S 701 (1982). Although the Supreme Court in Heckler v 3 Chaney, 470 U.S. 821 (1985), held that agency enforcement decisions are subject to a rebuttable presumption that they are "committed to agency discretion by law" and, thus, not subject to judicial review, as is discussed below, the Chaner presumption is rebutted in the case of NRC enforcement
- decisions and, as a result, NRC decisions to deny a request for enforcement action are not "committed to agency discretion by law" and are reviewable by this Court.5/
- 1. The Heckler v. Chaney Decision Chaney involved the e-*2rtion by death row prisoners of a i right to judicial review of the Food and Drug Administration's decision to decline to ttke enforcement action with respect to the use of certain drugs for human executions. The prisoners '
i
! l claimed that such use was "the unapproved use of an approved drug and constituted a violation of the (Food and Drug) Act's i prohibitions against misbranding." 470 U.S. at 823-24 l l
. (f ootnote and quotetions omitted), The Court of Appeals for j
the District af Columbia circuit had held that judicial review !
1 6/ There is no question here of whether there is a statutory preclosion of judicial review of NRC decisions to deny requests [
- for enforcement action. Such preclusions are found only where there is a " showing of ' clear and convincing' evidence of a t
. . . legislative inte :t to restrict access to judicial review." ,
i Heckler v. Chaney, 470 U.S. 821, 830 (1985) (quoting from l Citizens to Preserve Overton Park v. Volpe, 401, U.S. 402, 410 ;
i (1971). No such evidence exists in the Atomic Energy Act and
! neither of the Movants have asserted that Congress has j explicitly precluded review.
J j
10 -
was available. Chaney v. Heckler, 718 F.2d 1174 (D.C. Cir.
1983). This holding was based on a three step analysis: (1) that all agency actions are presumed to be reviewables (2) that the "committed to agency discretion by law" provision of 701(a)(2) should bar judicial review only where the substantive statute left the courts with no law to apply; and (3) that a Food and Drug Administration ("FDA") policy statement, which was found to be a rule and binding on the FDA, provided the law to apply in judging how the agency should exercise its enforcement d i s c r e '. i o n . 470 U.S. at 825-27 The Supreme Court reversed. Reasoning that agency decisions to not take enforcement action have traditionally been committed to agency discretion and that Congress did not intend to alter this tradition in the enactment of the APA, the court held that such decisions are presumptively unreviewable.
470 U.S. at 832-33. The Court emphasized, however, that this presumption may be rebutted where it is shown that Congress has limited an agency's discretion.
In the circumstances of the chaney case, the court held that the Court of Appeals had erred in holding that the preauaption of reviewability should be applied to an agency's decision to not take enforcement. 470 U.S. at 830-35. Applying instead the presumption of unreviewability, the Court found that neither the language of the Food and Drug Act nor the FDA's implementation of the Act provided the "courts with adequate guidelines for infermed l
judicial review of decisions not to enforce" and, thus, did not 1
overcome the presumption that the FDA's decision to not take enforcement action was unreviewable. 470 U.S. at 835-37.
The court concluded that the terms of the enforcement provisions of the Food Drug Act "commit complete discretion to the Secretary to decide how and when they should be exercised."
470 U.S. at 835. It rejected arguments that indicia of a Congressional intent to limit the FDA's enforcement discretion could be found in the Food and Drug Act's prohibition of "misbranding" or in an explicit provision that allowed the Secretary to not prosecute "minor violations" in certain circumstances, 1d. at 836-37. Further, the Court rejected the Court of Appeals reliance upon an FDA policy statement as a soarce of "law to apply" in judicial review of enforcement I
decisions. The Court left "to one side the problem of whether sn agency's rules might under some circumstances provide courts with adequate guidelines for informed judicial review of decisions not to enforce." Heckler v. Chaney, 470 U.S. at 836.
As characterized by the Court, the policy statement was "vague" and not a "properly adopted agency rule." id, at 836. More importantly, however, the Court concluded that the policy statement only purported to obligate the agency to take investigative, not enforcement actions and that any force it might have as a meaningful constraint on enforcement action was overcore by a properly adopted agency rule on judicial review '
1 which expressly asserted unreviewable discretion in enforcement decisions, id.
f e e
- 2. NRC Enforcement Decisions Are Subject To i
Judicial Reviev Because They Are Not "Committed To Aaency Discretion By Law."
The issue of whether or not the NRC's enforcement decisions are committed to agency discretion by law is one of Congressional intent. As the court explained in chaney:
"In establishing this presumption in the APA, Congress did not set agencies free to disregard '
j l legislative direction in the statutory scheme that the agency administers. Congress may limit '
j an agency's exercise of enfocement power if it j
wishes, either by setting substantive priorities,
- or by otherwise circumscribing an agency's power to discriminate among issu6e or cases it will pursue. How to determine when Congress has done so is the question lef t open by overton Park." ,
l A
i 470 U.S. at 833. Thus, to determine whether Congress intended to place judicially reviewable limits on the enforcement i i
- discretion of the NRC, it is necessary to resort to the custonary methods of ascertaining Congressional intents i i
statutory language, legislative history, long-standing agency interpretations, and contemporaneous judicial constructions acquiesced in by Congress. Although the questien of whether Congress intended that judicial review be available for NRC
' f denials of enforcement requests has not been addressed directly t i
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by the courts since the decision in Chaney,1/ it is clear that both BEco and the NRC have it wrong and that the weight of authority rebuts the presumption that Congress intended that such decisions be unreviewable.
Porhaps the most compelling indicia of Congressional intent 4
is the fact that Congress did not take any action to restrict judicial review of HRC enforcement decisions in 1982 when it considered and enacted the so-called "Sholly" amendment.8/
This Congressional acquiescence in the face of judicial decisions allowing judicial review of NRC enforcement 1
decisions, see Illino,is_v. NRC, 531 F.2d 12 (7th Cir. 1979);
Porter County Chapter of the Izack Walton League of America, Inc. v. URC, 606 r.2d 1363 (D.C.Cir.1979)("We do not l
understend the Commission to... claim unfettered discretion t ,
L 7/ In Florida Power & Light Co. v. Lorton, 470 U.S.729, 735 n.
8 (1985), a decision rendered the same day as Chaney, the Court (with Justice Stevens dissenting on this point) specifically i left this issue undecided and the Court of Appeals expressly i
did 785 T.2ddecide not 1038, the1040issue (D.C.inCiv.
its decision 1986). But on remand in Lorien.
see Eddleman v. NRC, t
l 825 T.2d 40 (4th Cir. 1987) (post ,Chaney dectsien without any discussion of reviewability providing judicial review of NRC i
denial of a Section 2.206 request).
8/ The so-called "Sholly" amendment is legislation enacted in T982 in response to a decision by the Court of Apppeal for the District of Colunbic Circuit in which it was held that if 3 requested, a public hearing must be held before any license !
amendment could be approved. See Shelly v. NRC, 651, F.2d 780, l
' r e h 's d e n i e d , 6 51 F . 2 d 19 2 ( D. C'.Ti r . 19 8 2 ) , remanded in light of P.L.97-415 459 U.S. 1984 (1984). The amendment aided subsection 2 to 42 U.S.C. S 2239 and thereby exempted most l amendments from the requirement of a prior hearing. Public No. I 97-415, 5 12, 96 Stat. 2073 codified at 42 U.S.C. 5 2239 (2)(1984 Supp.) See 1982 U.S. Cong, and Admin. News p.
3592. l l
1 l 14 -
i
. _ - _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ \
1 ,
l under che Act to choose not to institute proceedings" 606 F.2d ;
at 1368), should be sufficient to overcome the presumption of !
unreviewability. To paraphrase the Court in a post-Chaney ~
i decision, "the congressional intent necessary to ove cene the
(
presumption may also be inferred from contemporaneous judicial construction [ allowing) review and the congressior.a1 4
4 acquiescence in it..." Bowen v. Michigan Academy of Family Physicians , _
U . S . _, 106 Sup.Ct.. 2133, 2137 n. 4 (1986).
I Mortover, the expert agency charged with implementing and 1
administering the Atomic Energy Act, the flRC itself has long i i i recognized that its enforcement decisions are not wholly '
committed to its discretion. It has interpreted the Atomic j
i Energy Act to place limits on its enforcement discretion as l
well as on its discretion to deny requests to instituto i j enforcement proceedings. Indeed, on more than one cecasion, :
t j
the NRC has articulated the limits on its discretion and
<l {
indicated that its compliance with those limits is a proper -
)
j subject of judicial review.
- Consolidated Edison, Company of New York (Indian Point, Units 1, 2, and 3), CLI-75-8, 2 NRC 173, l 1 175 (1915)("Such review is similar to the review that would be l l
1 accorded the Director's decision by a court, were immediate
$udicial review obtained .
. . We believe it more appropriate j that the Commission speak to these issues first . .. "):
j Licensees Authorized to Possess or Transport Strategic guantities of Special Nuclear Materials, CLI-77-3, 5 NRC 16, 20
- n. 4 (1977) ("The Indian Point standard is similar to the
)
J i
2 l
. i
. . j i
review that would be accorded the Director'*.- decision by a !
court."). These pronouncements and the review guidelines set forth therein leave no doubt but that the NRC-interpreted the !
Atomic Energy Act to allow judicial review of decisions denying j requests for enforcement action, such pronouncements are to be i
accorded "great deference" and "should be followed unless there i are compelling indications that [they) are wrong." Red Lion Broadcastine Co. v. FCC, 395 U.S. 367, 361 (1969).
Further, were this Court to reject these two very f compelling indicia of Congressional intent, both the NRC's Statement of Enforcement Policy as well as its unreversed f decisional law discussed above should be held to supply t "adequate guidelines for informed judicial review. Although i j
the issue was left "to one side" by the Court in Chaney, 470 I U.S. at 836, the Court of Appeals for the District of Columbia I Circuit han held that agency rules can supply the "law to '
apply" so as to allow judicial review of agency decisions to f
not take enforcement action. Center for Auto Sat'ety v. Dole, h 828 r.2d 799 (D.C. Cir.1987). There, the court held that a National Highway Transportation Safety Administration ("NMTSA")
regulation could supply the law to apply where the regulation [
t l stated that the agency would grant petitions for investigative !
proceedings if HMTSA foundt "a reasonable possibility that the order requested in the petition will be issued at the i conclusion of the appropriate proceeding." Ld. d 828 F.2d at 801 Notably neither the NRC not BEco have argued that this court should not adopt the holding of the Center for Auto safety Case.
i
i . .
I The NRC's Statement of Enforcement Policy provides that l "enforcement action will b_e,taktn" in specified circumstances e i
\
- and that "with very limited exceptions... enforcement action is '
t taken" when vietations of NRC requirements are identified. 10 C.F.R. Part 2, Appendix C, Sections I and V (emphasis added), i l
l The Golden Petition alleged that emergency j planning / preparedness for Pilgrim was inadequate, a violation
]
3 of NRC regulations. je,e_ 10 C.F.R. $ 50.54(s). Thus, the NRC's ;
- denial of that portion of the Golden Petition raises a 1 l i
reviewable question of whether the NRC complied with its own l enforcement policy, both with respect to whether a violation !
I should have been found and with respect to whether enforcement !
j action should have been taken. The llRC's statements concerning 5 l I
' the so-called FEMA Self Initiated Review raise real and I b
) reviewable questions about whether it should have both found a f'
I l violation of NRC requirements end granted the request for l i
1 enforecrent action.
1 I
l l B. The NRC's "Interim Director's Decision" for which review in sought Final For Purposes of Review I j l BEco. argues that "tilnsofar as the ' Interim Director's t i
1 Decision deferred taking action on the petition for the !
l
- initiation of enforcement action proceedings, it is manifestly !
j BEco Memo at 13.
i not final." It then asserts that "to this i i
extent the Interim Director's Decision is not reviewable" and
{
J that "as to this portion of the decision below, the Petition f or Review must be dismissei." Jd. (quotation marks omitted),
i i
- f by this argument BEco is asserting that the Direttor's ;
decision to defer action on the allegations of managerial
) L i !
E_______---___-_-_-_--------------------- '
deficiencies is not now reviewable by this court, it is not neccessary to address the argument. Review of that portion of !
the NRC's action is not being sought bere. If, instead, 9ECo is asserting that no review of the Director's Decision may be i had because action was deferred on one portion of the Golden Petition, Massachusetts submits that BEco is incorrect. As to !
the request for enforcement action relating to the Pilgrim !
reactor containment and emergency planning / preparedness, the NRC has taken final action. 52 Fed. Reg. 32,363 (August 27, '
1987). The NRC has had notice of its action published in the Federal Register and has by its own admission, "given its last word on the matter." Sierra Club V. NRC, 825 F.2d 1356, 1362 (9th Cir. 1987) (quotations marks omitted).
IV CONCLUSION I
WHEREFCRI, For all of the foregoing reasons, the Co nonwealth of Massachusetts respectfully submits that the motions to dismiss of the NRC and BEco are without merit and should be denied. i Respectfully submitted, j
JAMES M. SHANN N ATTORNE -CT.
.s'
,e '
\
woro % .7J ' ~
Assistant Attorney General Department of the Attorney General One Ashburton Place,19th Floor Boston, MA 02108 (617) 727-1083 Dated: November 23, 1987 1
18 -
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UNITED STATES COURT OF APPEA'.S FOP. THE r!RST CIRCUIT I !
MASSACHUSETTS PUBLIC INTEREST )
, RESEARCH GPCUP, et al., )
)
Petitioners )
1
- v. ) Docket No. 67-1865 ,
)
UNITED STATES NUCLEAP ) !
PEGULATORY COMMISSION, ei al., )
t
)
l Pespondents )
)
! l CERT!r!CATE cr SERV!CE ;
i I, George B. Dean, hereby certify that on November 23, i
'961, I made service of the within (1) Motion for Leave to File j
an Una thorized Docunent with attached Errata Sheets for the i Corronwealth of Massachusetts' Memorandum of Points and ;
i I
i Aatherittes .n Answer to the Motions of Respondants, NRC el al. f and Intervener Doston Edison to Dismiss Petition for Review, .
(
l l 4 a r.t (2) Corrected Commonwealth of Massachusetts' Memorandum of ;
i l,
potnts and Authorities in Answer to the Motions of Respondents i l
- *
- RC, et al. and Intervenor Boston Edison to Dismiss Petition for Review, by mailing copies thereof, postage prepaid, by a
! first class mail, tot '
Lando W. tech, Jr. , Cha i rm.an Laura E. Forssard, Esq.
! U.S. Nuclear Regulatory Comm. Appellate Section f
1711 H Street Land and Natural Resources Div.
Washington, DC 20555 j U.S. Department of Justice .
Washington, DC 20530 !
William S. Abbott, Esq. William H. Briggs, Jr.
Simonds, Winslow, Michael B. Slume Willis & Abbott U.S. Nuclear Regulatory Comm. !
} 50 Congress Street l 1 Boston, MA 02109 Office of the General Counsel ;
1717 H Street Washington, DC 20555
}
i
l l
R.K. Gad III, Esq.
Ropes & Gray 1
' 225 Franklin Street Soston, MA 02110 ,
" * ~ ' ' ' ' " '
- .- /
L
/, - ./ ./
i s- -
"Gkotgr s. Dean Assistant Attorney General Department of the Attorney General l
One Ashburton Place, 19th Floor !
Boston, MA 02108 (617) 727-1083 L Dated: !!cvember 23, 1987 '
f t
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2- u l l i
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Ull:tTB TTATES COURT OF APPEALS FOR THE FIRST CIRCUIT
)
!!ASSACHUSETTS PUBLIC !!!TEREST )
RESEARCH GROUP, et al., )
)
Petitioners, )
)
- v. ) lio . 87-1865
)
UllITED STATES !!UCLEAR )
REGULATORY COM!!!SSIO!1, et al., )
)
Respondente. )
l )
l R E S PO!!.S E NTS ' MOTIO!: TO DIS!!!SS Petitionere, the MasFachusetts Public Interest Research Group ('MASSPIRG') and several others,1 have petitioned this Court to reviev a decision of the fluelear negulatory Commission (*!!RC*
or 'Cennission') to deny a request for enforcement action I contained in a petition subnitted to the agency under 10 C.F.R.
5 : 206 (19E'). The United States of America 2 and the United States !!uelear Regulatory Conntssion (hereinaf ter collectively I
referred to as ' respondents *) nove to dieniss the instant l petition for review on the ground that the refusal by the !!uelear Degulatory Connission to take dtseretionary enforcement action is I
Pilgrim Alliance, Plymouth County tiuelear Information Committee, Inc., Pilliam B. Golden, Barbara A. Hildt, and Frank M. Hynes.
2 While the United States was not naned at a party, it nust be one in this action. See 2B U.S.C. $ 2344 Ted. R. App. P.
15(a).
C/$
l ,
unreviewable under the Supreme Court's decision in Heckler v.
- Chaney, 470 U.S. 821 (1985).
1 STATUTORY, RECUT.ATORY AND FACTUAL BACKGROUt3D i t
i A. Requests Foi NRC Enforcement Action l
l 1
Under the Atomic Energy Act of 1954, 42 U.S.C. 5 2011 e_t, t s e q . , and the Energy Reorganization Act of 1974, 42 U.S.C. !
5 5801 it seq., the NRC has broad authority to license and ,
regulate the conctruction and operation of nuclear power plants.
- In keeping with this statutory authorization, the agency has !
t developed a detailed regulatory framework for the administrative l
processing and adjudication of applications related to construction pernits and operatin,g licenses. m generally, {
Vermont Yankee !!uelear Power Corp. v. ttatural Resources Defense [
i Counell, Inc., 435 U.S. 514, 526-27 (1978).
l After a permit or license is issued, the licensee i remains subject to continuing I:P.C review and oversight which i ensures conpliance with Connission raquirements and continued r protection of the public health and safety. The NRC has a wide range of enforcement remedies with which to accomplish these '
goals letters confirning voluntary commitments by licensees, l notices of violation, civil penalties, and orders modifying, suspending, or revoking the licenses themselves. See genera 1 Q ,
' General Statement of Policy and Procedure for NRC Enforcement Act ions ,' 10 C.F.P., pa rt 2, Appendix C (198') . j 1
l
)
r
i l The Commission't regulation foJnd at 10 C.F.R. $ 2.206 (1987) is the key to understanding the procedural posture of this l case. Section 2.206 provides that members of the general public can request the NRC to suspend, revoke or modify a license or take any other appropriate enforcement action. A 2.206 petition must spectfy not only the relief requested, but also *... set
] forth the facts that constitute the basis for such request.'
l 10 C.F.R. $ 2.206(a). See, e.g., Philadelphia Electric company (Linerick Generating Station, Units 1 and 2), DD-85-11, 22 URC 149, 154 (1985); Philadelphia rieetric companis (Limerick Generating Station, Units 1 and 21, DD-8.7-13, 16 NRC 2115, 2121, l n.12 (1982) (citing cases). The petitioner may direct tre l d
request to one of several specified NRC staff officials, ;
including the Director of the NRC % s Office of Nuclear Reactor 1
i Regulation, the official who ruled on the 2.206 request filed by :
J' the petitioners in this case, l
! If the Director of the reviewing office finds merit in i
l the request for enforcenent action, he or she may institute a
) proceeding under 10 C.F.R. $ 2.202 (1987) and issue an order !
i i
directing the licensee to show cause why the NRC should not take 1 l the enforcement action requeste by the petition. A 2.202 order i
j lists the alleged regulatory violations or other facts that are I
crounds for the propoced enforcenent action informs the incensee l that it must file an answer in which the licensee can request a i
l hearing; specifies the assues that will be considered in any such J i
l hearings and states the effective date of the proposed order, ;
} l I
I
E 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. f i After the hearing (assuming one is sought), the Director l
determines the appropriate enforcement action and the NRC staff l carries out his directions. See generally, consolidated Edison company of tiew 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 show cause proceeding is warranted, he must notify the person who submitted the 2.206 request for enforcement action of that f
decision in writing, providing a statement of reasons for that !
t decision. While the regulations specifically provide that the l l
Commissio: will not entertain app *eals from the Director's i decision, see 10 C.F.R. 5 2.206(c)(2) (1967), the Commission
(
undertakes a sua sponte review of each and every denial of a l 2.200 petitten to ensure that the Director has not abused his discretion. 10 C.F.R. ! 2.206(c)(1) (1987), see generally, 1:uelear Reculatory Connission (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 New York (Indian Point, Units 1, 2 and 3), CLI 75-8, 2 NRC 173, j 175-76 (1975). If the Connission does not act to reverse or I
rsodify the Director's decision within twenty-five (25) dayc e it becomes final agency action. 10 C . i' . R . 5 2.20((c)(1) (1967).
4
Jitrisdiction to review 2.206 denials, if they are reviewable at all, see Argument, infra, lies exclusively in the United States Courts of Appeals. 2C U.S.C. 5 2342(4); 42 U.S.C. !
$ 2239(b); Florida rever & Light Co. v. Lorion, 470 U.S. 729 (1985). ,
t I
S. Petitioners' Request l !!RC Enforcenent Action I on July 15, 1986, the petitioners filed a section 2.206
- request with the conntasion. Petitioners requested the
- Connission to order lie *'asee Doston Edison Conpany ('5ECO') to shov cause why the Pilgrim I Duclear Power Station ('Pilgrin')
i should not remain shut down or have its operating license !
J suspended. The bases for petitio,ners' request were numerous [
I alleged deficiencies: (1) in the facility's containnent !
structure;3 (2) in the P11 grin radiological energency terponse 4
l plenr and (3) in Brco managenent. The petitioners alleged that i
3 A reactor containment is one part of a structured, tiered 3 approach to public safety known as defense in depth. Defense in i
depth as the use of multiple levels of assurance and safety to '
. mininite risk to the public. The primary level of assurance is
) the precise design and construction of the plant, with insistence 1
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 protect against postulated radioacti7 releases from hypothetical accidents up to and including major ruptures of reactor coolant j piping.
I 4 Another part of defence in depth is the NRC's requirert.ent for emergency preparedness on the part of Itcensees and state and (Footnote Continued) 1 l
5 i
these deficiencies, as described in the 2.206 tequest, demonstrated an absence of the reasonable assurance of safe operation required by URC 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 petitioners' arguments for shutdown on the ground that the Pilgrim containment is inadequate. Petitioners cited three major areas of concern as to the containment -- issues identified between 1972 and 198G but allegedly not resolved, issues raised by the accident at Cnernobyl, and issues raised by recent studies concerning the vulnerability of the type of containment
("Mark I') used at Pilgrin
- The Director acknowledged that Pilgrim's containment is not invulnerable, but noted that the questions raised in 1972 had been answered by the agency as long ago as 1970, and that others raised afterwards were reso.tved via generic programs. Chernobyl, the Director concluded, has been studied by the NRC and found not to have undercut safety conclusione concerning Pilgrim. The Director also rejected the third basis for allegations of inadequacy of the Pilgrim containment, namely recent studies
[ Footnote Continue 6]
local authorities. For example, the NRC requires the provision of rasources and the capability to notify pronptly the public within ten miles of a plant of a serious accident.
concluding that in some very unlikely accident reenarios 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 rish to the public, the Director rejected this argument.
Moreover, he noted, there are ongoing generic and plant-specific programs, including scme at Pilgrim, to reduce these uncertainties and to improve containment performance.
As to the management issues raised by petitioners, the Director deferred decision pending his assessment of BECO proposals for improvements to be implemented prior to restart.
Finally, the Director rejected petitioners' proffered emergency planning arguments for continued shutdown or for license suspension, noting the Federal Emergency Management Agency's (* FEMA *) conclusion that none of the arguments was valid, most of them being identical to issues raised by MASSPIRG in 1983, c..J evaluated by FEMA and the NRC at that tine.5 However, he notea that FEMA had found ssveral deficiencies in offsite radiological emergency preparedness that, he concluded, should be considered prior to a Commission decision to permit i Pilgrim restart.
I l
5 The NRC bases its finding of reasonable assurance of adequate safety in part on review of FE!!A assessments of offsite emergency preparedness for tiRC-licensed activities.
)
7
ARGUMENT The Commission's Refusal Co Institute Discretionary Enforcement Proceedings At Petitioners' Request Is Not Judicially Reviewable. _
In Heckler v. Chaney, 470 U.S. 821 (1985), the Suprene Court established a presumption that an agency's refusal to evercise its enforcement authority is not judicially reviewable, but rather is action commit- .. 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 NRC enforcement action, if reviewable at all, lay in the appropriate United States Court of Appeals, and not in a United States District Court. Florida Pover & Light Co. v. Lorion, 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 "issue is open to the Court of Appeals on renand should the Commission choose to press 6
it., On remand, the D.C. Circuit found that it could easily I
affirm the commission on the merits, and so declined to reach the l l
r e'.fiewability issue . Lorion v. Nuclear Regulatory Commission, 785 F.2d 1038, 1041 (D.C. Cir. 1986). However, the Court of l l
6 470 U.S. at 735, n.8. Justice Stevens, dissenting, argued in Lorion that NRC refusals to take enforcement action are unreviewable. 470 U.S. at 746-52.
I
.,ppeals "doubt [ed] 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 es a whole in Lorion 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.
A. The Pre unption 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 enforcenent action by finding them presumptively unreviewable. In He'ckler, 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. S 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 neaningful standard against which to judge the 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 general unsuitability for judicial review of agency decistons to refuse enforcement," because such refusals involve a I l
complicated balancing of a number of factors which are peculiarly l l
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.S.
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within [the agoney's) expertise. 470 U.S. at 831-32. Among the factors listed were allocation 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 H,eckler. The courts have long noted that the Commission's regulatory scheme is
' virtually unique in the degree to which broad responsibility is reposed in the administering agency, free of close prescription in its charter a& to how it shall proceed in achieving the l
statut.ory objectives . " Siegel v. Atomic Energy Commission, 400 F.2d 778, 783 (D.C. Cir. 1968), quoted with approval in Three P.ile Island Alert v. Nuclear, Regulatory Commission, 771 F.2d 720, 727 (3d Cir. 1985); Detroit Edison Co. v. Nuclear Regulatory commission, 630 F.2d 450, 453 (6th Cir. 1930); Westinghouse Electric Corp. v. Nuclear Regulatory Commission, 598 F.2d 759, 771 (3d Cir. 1979).
The Commission sets its priorities and policies and allocates its reseurces to ensure that there is reasonable assurance 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 pursued is based on both an evaluation of the significance of those issues and on the availability and bitst use of its limited resources. This l
' managerial judgment" is exactly the type of factor peculiarly 4
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.
B. The Provisions Of The Atomic Energy Act Do Not Rebut The Presumption Of Unreviewahility.
The Heckler Court held that challengers of agency decisions may rebut the presumptien of unreviewability where the governing statute has provideu guidelines for the agency to fellow 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').
The relevant provisions of the Atomic Energy Act are markedly sinilar to the extent that both are largely written in the language of permission and discretion. The Heckler Court summarized the relevant provisions of the FDCA as follows:
To enforce the various substantive prohibitions contained in
?he FDCA, the Act provides for injunctions, 21 U.S.C. S 332, 7
Since the issue of nonteviewability of NRC refusnis to take enforcement action was not raised before Heckler, the fact that courts reviewed section 2.206 denials prior to Heckler does not demonstrate that 2.206 denials should continue to be reviewed af ter Fe:kler. Even if those pre-Heckler decisions found that there Uire sufficient standards to make 2'.206 denial decisions reviewaile, the issue af ter Heckler is whether thoaa standards are suf t4.clent to rebut the presumption of nonreviewability.
Moreover, the fact that a court has reviewed an agency decision without addressing nonreviewability should have no precedential impact on the reviewability question. See generally, Falkowski
- v. Equal Employment Opportunity Commiscion, 764 F.2d 907, 910-11 (D.C. Cir. 1985) (reversing prior decision on reviewability in
, view of Heckler).
criminal sanctions, SS 333 and 335, and seizure of any offending food, drug, or cosmetic article, S 334. The Act's general provision of enforcement, S 372, provides only that
"[t]he Secretary is authorized to conduct examinations and investigations. ..." S 372 giver 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 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 in exercising any authority provided in this chapter, or in tn'e administration or enforcement of this chapter. ...' 42 U.S.C. i 2201(c) (enphasis 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. S 2201(b) and (o). Section 232, which provides for injunctions, states that
"[w]henever in the judgment of the_ Commission any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of 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 practicos. ..."
42 U.S.C. S 2280 (emphasis added). The section on license revocation, section 186, provides that '{alny license may be revoked for any material false statement ... or because of cond!.tions ... which would warrant the Commission to refuse to grant a license on an original application. ...
41 U.S.C.
S 2236(c) (emphasis added).
None of these general provisions, all of which are framed in the permissive, provides any guidance on how the agency is to exercise its enforcement discretion, much less requires the exercise of Commission enforcement authority in a particular case. Clearly, under the ationale of Heckler, these Atonic Energy Act provisions do not evidence a Congressional intent to rebut the presumption of nonteviewability that acconpanies agency refusal to take enforcement action.
C. The NRC Has Not Rebutted The Presumption Of Unreviewability In the Atomic Energy Act The Heckler Court left open the possibility that agency regulations might rebut tae 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 binding agency regulations or even informal policy statements can rebut the presumption of nonreviewability. Center for Auto ;
safety v. Dole, No. 86-5436 (Sept. 8, 1987) (regulations); Padula
- v. Webster, 822 F.2d 97, 100 (1987) (informal policy statements that significantly restrain agency discretion). Assuming i
arcuendo that requiremeats in agency regulations can create "law i
i l
1
to apply" that could rebut the presumption of unrevievability, the NRC has promulgated no such regulatien. The petitioners filed this action under 10 C.F.R. S 2.206, which doos 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 did." Rockford League of Women Voters v. NRC, 679 F.2d 1218, 1222 (7th Cir. 1982). Thus, the absence of an NRC regulation that provides a meaningful standard of review distinguishes this case fron center for Auto Safety, supra.8 The NRC does have internal guidance by which the commissioners, who are ultimately responsible for public health and cafety and who therefore ultinately exercise the agency's discretion, may review Directors' decisions for technical completeness and compliance with MRC policy guidelines. See Consolidated Edison Co. (Indian Point, Units 1, 2, and 3),
CLI-75-8, 2 MRC 173, 175-76 (1975). This guidance requires a Director to institute an enforcenent proceeding if there is a i
8 Center 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 I referring to is not the NRCT s formal rules, but the Commission's internal guidance discussed immediately below.
I i
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 language 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 [it]
receive!s) information adverse to the integ nuclear power safety or safeguard systems."gity of existing Moreover, an agency practice of explaining its decisions does not create binding requirements on how the agency must exeru4se its discretion.10 Neither does it provide a court with "law to apply
- which rebuts the Heckler presumption of unreviewability. As Justice Stevens pointed out, a "lengthy record ... does not make the agency's inaction here any more reviewable than if [the enforceme t) request had been rejected in a one-paragraph letter sent by return mail.'11 9
Lorion v. MRC, 765 F.2d 1038, 1041 (citations 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 the concern," the court appears to have drawn the opposite conclusion about the Department of Transportation's "reasonable possibility of a l defect" standard in Center for Auto Safety v. Dole, supra.
10 There is, for example, no regulation or caselaw that !
dictates when the Director is to find that there is a substantial safety issue.
11 Florida Power & Light v. L3rion, 470 U.S. 675, 751 (1985)
(Stevens, J., dissenting). Similarly, the use by an agency of a reason that a court might view as "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
[ Footnote Continued) )
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CONCLUSION There is no rational basis for distinguishing the Commission's denial of petitioners' enforcement request from the PDA's denial in Heckler. 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 the basis of the Supreme Court's decision in Heckler, 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
~
') m LAURA E. FROSSARD /' WILLI A!! H. BRIG 38g J 4 Attorney Solicitor Appellate Section Land and Natural Resources '
Division U.S. Department of Justice Washington, DC 20530 _
KICHAEL'B. BLUME Senior Attorney Office of the General Counsel Commission U.S. Nuclear Regulatory Washington, DC 20555 (202) 634-1493 Dated: 10/27/87 4
[ Footnote Continued)
(June 9, 1987) (No.85-792). See also, Rockford League, supra, 676 F.2d at 1222 (Connission is not boun3 by internal guidance on how it will review requests for enforcement action).
l
l CERTIFICATE OF SERVICE I hereby certify that on this 27th day of October, 1987, copies of the foregoing "Respondents' Motion To Dismiss" were mailed, postage prepaid to:
William S. Abbott, Esq.
Simonds, Winslow, Willis & Abbott 50 Congress St.
Boston, MA 02109 R. K. Gad III, Esq.
Ropes & Gray 225 Franklin Street Boston, MA 02110 George B. Dean, Esq.
Assistant Attorney General Public Protection Bureau office of the Attorney General One Ashburton Place - Floor 19 Boston, MA 02108-1698 MICHAEL B. BLUME Senior Attorney ,
Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i
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(El50-293)~ from RRI 7/31 notification on 7/31 of the following personnel ,
changes:
V
-- G. C. Andoqnini (Nuclear Operations !!anager) has resigned ef fective 8/31/80. 11is replacement has I not been specified.
I f -- P. J. McGuire (Station ttanager) has been assigned l to INP0 effective 9/1/80.
f -- R. Machon (Assistant Station Manager) has bcen assigned as Acting Station ttanager effective approximately 8/18/80.
-- A change in the Nuclear Operations Department organization is expected which will include the. I establishment of a second Assistant Station Manager
, (new nnd Hnni - j l
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Unit 2 of water from the -45 foot elevation of the auxiliary (Dn 50-336) buildine have been processed through the clea-liquid radwaste system. Decontamination of the
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e
-.-- - - _ - - - - - - - - - - - - ~-~n - -, -,--- -4
b THw COMMONWEALTH OF M ACOACHb4ETTO
- 4 5
- DEPARTMENT OF THE ATTORNEY GENERAL
' Ir 4
JOHN W. McCoMMACK STATE OFFICE SulLDING
,/I ONE ASHOURTON PLACE. BOSTON 021ot 1698 JAMES M. SHANNoN ATTOAsetT 480st RAL March 14, 1988 Mr. Francis P. Seigliano, Clerk U.S. Court of Appeals for the First Circuit U.S. Post Office and Court House Boston, MA 02109 Re: Massachusetts Public Interest Research Group et al. V.
United States Nuclear Regulatory Commission, E U. ,
Dear Mr. Scigliano:
Enclosed for filing in the above-referenced docket, please find the ' JOINT REPLY BRIEF OF PETITIONER MASSPIRG ET AL. AND INTERVENOR COMMotMEALTH OF MASSACHUSETTS."
3 Thank you for your attention in this matter.
Very ,tru.i. eers, f .- ..
~
G e oTg e B . Wn..e -
Assistant Attorney General ,
Nuclear Safety Unit ,
GBD/ds I Enclosures l
l l l
1 d
P. /9
J u d 9 7h UNITED STATES COURT OF APPEALS foi* the FIRST CIRCUIT
)
MASSACHUSETTS PUBLIC INTEREST )
RESEARCH GROUP, et al., )
)
Petitioners )
)
- v. ) No. 87-1865
) i UNITED STATES NUCLEAR )
REGULATORY COMMISSION, et al., )
)
Respondents. )
)
i l
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PETITION FOR REVIEW OF A DECISION OF THE ,
NUCLEAR REGULATORY COMMISSION l JOINT REPLY BRIEF OF PETITIONER MASSPIRG ET AL.
AND INTERVENOR COMMONWEALTH OF MASSACHUSETTS l
i i MassPIRG ET AL James M. Shannon
, Attorney General Commonwealth of Massachusetts l William Abbott, Esquire George B. Dean <
Sinunds, Winslow, Willis Assistant Attorney General l
& Abbott Department of the Attorney i 50 Congress Street General Boston, Massachusetts 02109 One Ashburton Place (617) 523-552. Boston, Masuachusetts 02108 (617) 727-1083 Dated: March 14, 1988
- i
TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY
OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. THE NEW AGUMENTS OF THE NRC AND BECo THAT THE DIRECTOR'S DECISION SHOULD NOT BE REVIEWED ARE WITHOUT MERIT . . . . . . . . . . . . . 4 A. The Director Did Not Act In Response To The Golden Petition . . . . . . . . . . . 5 i B. There Are Substantial Legal And Practical Differences In The Consequences Of The Initiation Of A Section 2.202 Proceeding And Of The Informal Action Purportedly Taken By The Director Here . . . . . . . . . . . . . . 5 C. There Are Standards Against Which To Review The Director's Decision To Not Institute A Section 2.202 Proceeding . . 11 D. MiscellaneousPoInts. . . . . . . . . . . 12
- 1. Pragmatic Considerations . . . . . . 12
- 2. K.W. Thompson Tool Co., Inc. v.
UniteB States . . . . . . . . . . . . 13 II.
THE ARGUMENTS OF THE NRC AND BECo IN SUPPORT OF THE DIRECTOR'S DECISION ARE WITHOUT MERIT . 15 A. The Golden Petition's Contentions Concerning Evacuation Planning For School, Special Needs And Transport !
Dependent Populations Were Sustained By !
The Findings Of FEMA's Self-Initiated Review Which Were Part Of The Administrative Record . . . . . . . . . . 15 B. Viewed In The Correct Context, The Director's Denial Of Enforcement Action On The Emergency Planning Allegations Of The Golden Petition Is Plainly Erroneous . 17
! CONCLUSION
. . . . . . . . . . . . . . . . . . . . . . . . . . . 20 i
1
1
. l TABLE OF AUTHORITIES CASES:
Judicial Bellotti v. NRC, 725 U.S. 1380 (D.C.Cir. 1983) . . . 7, 9, 10 Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) . . .
7-10 K.W. Thompson Tool Co., Inc. v. United States, No. 87-1536 (1st Cir. Jan. 14, 1988)
. . . . . . . . . . . . . . . . . 13 Lorion v. NRC, 712 U.S. 1472 (D.C.Cir. 1983) '
. . . . . . . . 8 Lorion v. NRC, 785 F.2d 1038 (D.C.Cir. 1986) . . . . . . . 12 f
Public Service Company of New Hampshire v. NRC, 582 F.2d 77 (1st Cir. 1978) . . . . . . . . . . . . . . . . . . . . . 12 Rockford League of Woman Voters v. NRC, 679 F.2d 1218 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . 12 Seacoast Anti-Pollution L6_gue v.* NRC, 690 F.2d 1025 (D.C.
Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . 6 Administrative Boston Edison Company (Pilgrim Nuclear Power Station), CLI-82-16, 16 NRC 44 (1982) aff'd Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . 9 Consolidated Edison Company (Indian Point Units 1 and 2),
87-13, 26 HRC 53 (1987) DD- (
. . . . . . . . . . . . . . . . . 12 Consolidated Edison Company of New York, Inc. (Indian Point, Units 1, 2, and 3) CLI-75-8, 2 NRC 173 (1975) . . 11, 12, 18 l
Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1) CLI-87-7, 7 NRC 429 (1978) . . . . . . 12 I
I
. 1
. STATUTES:
l 42 U.S.C. 2239(a)(1) . . . . . . . . . . . . . . . . 5-6, 13 42 U.S.C. 2239(b) . . . . . . . . . . . . . . . . . . . .8 REGULATIONS: >
10 C.F.R. 2.202 . . . . . . . . . . . . . . . . 11, 12, 18 10 C.F.R. 2.202(c) . . . . . . . . . . . . . . . . .. . .7 10 C.F.R. 2.206 . . . . . . . . . . . . . . . . . . passim OTHER:
44 Fed. Reg. 75,169 (1979) . . . . . . . . . . . . . . . . 18
! S. Rep. No. 113, 97th Cong., 1st sess. 14 (1981) . . . . . 13 Sutherland, Statutory Constructiop (4th Ed.1987) . . . . 12
,I 4
i 4
)
f l l l
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i i
UNITED STATES COURT OF APPEALS for the FIRST CIRCUIT i
)
MASSACHUSETTS PUBLIC INTEREST )
RESEARCH GROUP, et al,., )
)
Petitioners )
)
- v. ) No. 87-1865 I l
)
UNITED STATES NUCLEAR ) <
REGULATORY COMMISSION, et al., )
)
Respondents. )
)
t PETITION FOR REVIEW OF A DECISION OF THE NUCLEAR REGULATORY COMMISSION JOINT REPLY BRIEF OF PETITIONER MASSPIRG ET AL.
AND INTERVENOR COMMONWEALTH OF MASSACHUSETTS INTRODUCTION 1
This Joint Reply Brief of Petitioners, MassPIRG et al.
, ('MassPIRG'), and Intervenor, Commonwealth of Massachusetts
("the Commonwealth'), is filed in response to briefs filed by the U.S. Nuclear Regulatory Commission ('NRC') and by the 1
Boston Edison Company (*BECo').1 MassPRIG and the l 4 ,
commonwealth have reviewed these filings and continue to adhere to the positions set forth in their earlier pleadings.
In this Reply, MassPIRG and the Commonwealth respond to a limited number of the arguments and assertions made by the NRC and BECo. These responses are seen as necessary to assist this Court in the resolution of the issues raised by this Petition For Review. The lack of a response to the other arguments and assertions by the NRC and BECo thould, thus, not be read or interpreted as agreement with or acquiesense in those arguments or assertions.
SUMMARY
OF ARGUMENT In this Reply, MassPIRG and the Commonwealth demonstrate i the lack of merit of some of the arguments and assertions made by the NRC and BECo.
i The NRC action complained of did result in injury to the Petitioners as the Director f ailed to i initiate enforcement action (p. 5) and thereby prevented the l
Petitioners and other interested persons from obtaining a hearing on the safety of the Pilgrim plant (pp. 5-11). The are standards against which to evaluate the Director's action (pp.11-12) and in light of the f act that the 10 C.F.R.
2.206 process is the only avenue available to the public to i
- 1. Reference will in the followingherein forms: to the briefs of the NRC and BECo at __. NRC Brief at __ and BECo Brief 2
l
l participate in decisions involving licensee nuclear plants, !
judicial review of HRC decisions on such petitions is necessary (pp. 12-13). The new decision cited by BECo does i i
not address the issue posed here (pp.13-14). l The arguments of HRC and BECo concerning the Director'a i
decision on the emergency planning allegations of the Golden Petition are premised upon a mischaracterization of FEMA's 1 i
analysis (pp. 15-17). The Director's decision, when viewed in k light of applicable NRC standards and FEMA's uncontroverted findings, is patently erroneous and .thould be reversed (pp.
17-18). l'
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ARGUMENT I.
THE NEW AGUMENTS OF THE NRC AND BECo THAT THE DIRECTOR'S DECISION SHOULD NOT BE REVIEWED ARE WITHOUT MERIT In their briefs, the NRC and BEco set forth a variety of new or reworked arguments asserting that this Court should not review the Director's Decision on the Golden Petition. The NRC asserts that the Director did take action in response to the Golden Petition 2 and that, ' insofar as MassPIRG is concerned, there is no practical difference between informal i
agency action and a formal agency license suspension and order to show cause.' Thus, it argues, review is unavailable because 'there are absolutely rio sdandards by which a court 9
can review' an agency's choice of enforcement actions. NRC '
Brief at 31-32. BECo, on the other hand, asserts that in light of the continuing enforement oversight of the NRC, review of a denial of a section 2.206 petition does not make sense and, thus, suggests that such denials should be regarded 2.
It is not, in fact, clear whether the NRC is asserting that the informal action which it claims was taken by the Director Golden Petition.was or was not taken in response to the FEMA's self-initia ted reviewCompare ...
NRC Brief at 18 ('in response to ;
"granted the petition') with NRC Brief atat3136("the not
')~and (theNRC Director has taken the precise kind of enforcement action which i
MassPIRG would prefer').
For its part, BEco appears to take thw position that the Director See BEco Brief at 36.('In short, has not yet taken any action.
Its respanse to the FEMA Self-Initiated Reportthe Commission ... ').
has deferred any event, as is discussed above, the action, In i
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the Director Golden took cannot be held to be in response to theif any, which Petition.
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t as non-final. and not reviewed. BECo Brief at 24, n. 49, 27 and 36-37. Further, BECo references a recent Federal Tort Claims Act decision by this Court as somehow providing support for its claim that NRC decisions on section 2.206 petitions are not subject to judicial review. 's is shown below, each of i these arguments is without merit.
A. The Director Did Not Act In Response To The Golden Petition I
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Section 2.206 of the Commission's regulations specifies I
unambiguously that there are two and only two actions that the >
Director can take in response to such a petition: .
institute the requested proceeding in accordance with this subpart (B) or ... advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to his request, and the reasons therefor.
10 C.F.R. 2.206(b). Here, the Director quite clearly did not institute a proceeding but rather advised that no i t
proceeding would be instituted.
(
B. There Are Substantial Legal And
! Practical Differences In The Consequences Of The Initiation Of A Section 2.202 Proceeding And Of The Informal Action Purportedly Taken By The Director Here I
i Assuming for the sake of argument that informal enf orcement action taken by the NRC on its own motion is l
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somehow relevant te the reviewability of the denial of the I colden Petition,3 the NRC has mischaracterized the differences between the informal action which the Director purportedly took and the institution of a proceeding in response to a section 2.206 petition. I There is a substantial legal and l
practical difference in the consequences that flow from a i formal enforcement action initiated in response to a section l l
2.206 Petie. ion and informal action of the type that the NRC l has taken here. Had the Director instituted a ' proceeding in accordance with' Subpart B of the Commission's regulations, MassPIRG, the other petitioners, and any other ' person whose i interest may be affected' would, pu,rsuant to 42 U.S.C.
4 2239(a)(1), have had a right to a hearing upon request.4
- 3. If such action is relevant, it must be because it might provide sorte rational for the Director's decision. The l Petitioners and the Commonwealth submit, however, that where the action is as intangible as that taken here -- the Director has said that the plant will in notthe beintroduction to a notice allowed to restart untilof denial l
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- emergency preparedness issues are dealt with to the NRC's '
satisfaction * -- such action is of no relevance. It is devoid of any substance. In contrast to cases where Commission initiated actions were relevant as providing an i
alternative forum, with defined procedure and an opportunity (
see Seacoast Anti-Pollution League
- forNRC,
- v. participation, 690 P.2d 105 _e.St.,
10 3 (D.C. Cir. 1982)(denial of 2.20G 3
petition not arbitrary where alleged safety issues will later -
be available for litigation in hearings on operating license),
the so-es11ed ' action
- here references no alternative forum, no defined procedure, and no opportunity for participation by [
the Petitioners or anyone other than the NRC and the licensee.
j
- 4. 'In any proceeding under this chapter, for the J granting, suspending, revoking, or amending of any license ...
the Commission shall grant a hearing to any person whose 1
interest may be affected by the proceeding....' l (continued...) g 6
i
Notably, without any explanation or reference to authority, the NRC asserts in a footnote that only BEco could request 4 hearing. HRC Brief at 32, n. 18. Although we are left to speculate on the reasoning underlying the NRC's assertion, the clear language of 42 U.S.C. 2239(a)(1) leaves i
little doubt but that this assertion is premised upon a view either that an enforcement proceeding instituted in response to a section 2.206 petition is not a ' proceeding' within the terms of 42 U.S.C. 2239(a)(1) or thet BECo is the only
' person whose inte;est may be affected by [such a) proceeding.*5 Whatever the NRC's reasoning may be, the assertion is incorrect. The plain Aeaching of the Court's decision in Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985), is that action taken in response to a section 2 206 petition is action taken in a 42 U.S.C. 2239(a)(1)
- proceeding.' Further, the U.S. Court of Appeals for the District of Columbia Circuit in Bellotti v. NRC, 725 U.S. 1380 i
( D . C . Ci r . 19 8 3 ) , indicated that a sect. ion 2.206 proceeding is '
the appropriate vehicle for a person seeking to litigate the 4(... continued) 42 U.S.C. 2239(a)(1) (1982 ed).
- 5. 10 C.F.R. 2.202(c) providet that if demanded by the licensee, a hearing will be held on a show cause order.
Thus, the NRC may reason that a preceeding instituted pursuant to a show cause order is not a ' proceeding' within the terms of 42 U.S.C. 2239(a)(1) and that the only right to a hearing is that of the licensee pursuant to 10 C.F.R.
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need for more stringent enforcement action against a licensee than that imposed by the NRC.
In Lorion, the Court reversed a decision by the U.S.
Court of Appeals for the District of Columbia Circuit holding that it lacked initial subject matter jurisdiction under 42 U.S.C. 2239(b)6 to review an order denying a section 2.206 petition. The lower court's decision was premised upon a conclusion that such was not an order issued in a ' proceeding
- 4 as that term is used in the hearing provisions of 42 U.S.C.
2239(a)(1).7 The Court's holding in Lorion - "that 42 U.S.C.
2239 vests in the courts of appeals initial subject-matter jurisdiction over commission orders denying 2.206 citizen petitions' 470 U.S. at 746 -- was premised upon the opposite conclusion: that commission actions on section 2.206 4
petitions were taken in proceedings within the meaning of 42 6 l U.S.C. 2239(a)(1) because Congress intended the courts of 1
appeals to have initial subject-matter jurisdiction over such l determinations and that in enacting 42 U.S.C. 2239(a)(1)
I
- 6. "Any final order entered in any proceeding of the kind specified in subsection (a) above shall be Jubject to
~
l judicial review in the manner prescribed in the Act of December 29, 1950, as amended (ch. 1189, 64 Stat. 1129), and 4
i to the provisions of section 10 of the Administrative Procedure Act, as amended.' i i
42 U.S.C. 2239(b) (1982 ed. ) (emphasis added).
1 '
- 7. See Lorion v. NRC, 712 U.S. 1472, 1474 (D.C.Cir.
1983)(*ve may review the Commission's final order in this I
case, denying petitioner's request under 10 C.F.R. 2.206, only if the order was entered in the kind of ' proceeding' specified in (2 U.S.C. 2239(a]').
8 4
Congress intended "to provide for a hearing in the types of proceedings in which initial court of appeals review would take place.'8 470 U.S. at 737-740.
In Bellotti, the NRC had denied a motion by the Massachusetts Attorney General to intervene in an NRC initiated enforcement action on the grounds that he was not a
' person whose interest may be affected by the proceeding.'
j The Attorney General had sought to intervene on questions concerning the continued operation of Pilgrim and the adequacy of the proposed enforcement action, but the NRC had defined the scope of the proceeding such that the only issues were,
'whether the facts as stated in the,[show cause) order are true and whether the remedy selected is supported by those facts.' Boston Edison Company (Pilgrim Nuclear Power Station), CLI-82-16,16 NRC 44, 45 (1982) aff'd Bellotti v.
NRC, supra. Referencing the avenue of a 10 C.F.R.
2.206 petition as the appropriate means to raise issues beyond those i 8. The decision in Lorion raises an interesting question of whether the NRC is required under 42 U.S.C.
2239 to hold hearings if requested by a party who files a 10 I.
C.F.R. 2.206 petition. The Court specifically refrained f rom expressing an opinion on this question. Florida Power &
Light Co. v. Lorion, 470 U.S. 729, 742, n. 10 (1985). While there is authority in other contexts that NRC may condition t
the hearing rights granted in 42 U.S.C. 2239(a)(1), see id.
other than in the Lorion case, this issue has been addresse3 ,
by the Supreme Cou t and has never been addressed by this Court.
Review, As it isthe not issus was not addressed herein. raised in the Petition For 9
1
raised by the NRC,9 the court affirmed the NRC on the grounds that it had the authority to limit the scope of its self-initiated enforcement proceedings so as to preclude 'from intervention person. . . . who do not object to the Order but 4
might seek further corrective measures." 725 F.2d at 1382, n.
2 and accompanying text. The clear import of the Bellotti 3 decision, then, is that those who wish a full formal proceeding are to employ the 10 C.F.R. 2.206 process.
Indeed, the Court in Lorion noted that *(t]he 2.206 petition is but the first step in a process that will, if not terminated for any reason, culminate in a full formal proceeding under 42 U.S.C. 2239(a)(1)" 470 U.S. at 745, n.
)
4 11 (emphasis added). As the initiator of any formal 'ae't ion '
resulting f rom such a request, a section 2.206 petitioner would, by necessity, be an interested person whose interest could be affected by the outcome of the proceeding and who would have a right to a hearing upon request.
- 9. In marked contrast to its position here, the NRC, in a passage of its brief only recently discovered by the Commonwealth, represented to the court in Bellotti that "a final agency decision with regard to la section 2.206] ~
request would be subject to judicial review in the courts of appeals." Brief for Respondents, Decembet, 1982 at 30 (emphasis added) . The D.C. Circuit's decision itself was, in turn, predicated on a view that a 2.206 petition 'is not a futile gesture, for the Commission may not deny it arbitrarily
- as ' Commission denials to institute proceedings under section 2.206 are subject to judicial review.'
Bellotti v. NRC, 7 25 F.2d 1380,1382-1383 (D.C.Cir.1983) .
10 m
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j C. There Are Standards Against Which To Review The Director's Decision To Not Institute A Section 2.202 Proceeding i
l l The most compelling reason why the NRC's new argument i must fail is that notwithstanding the above referenced defects i in the argument, there are standards against which to assess ,
l !
the propriety of a Director's determination on which i j enforcement action to take in a given circumstance. The 2
)
Commission has interpreted section 2.202 of its regulations to !
require the issuance of a show cause order if the Director i
concludes that ' substantial health or safety issues (have) l l
, been raised.' See Consolidated Edison Company of New York,
. l 3 Inc. (Indian Point, Units 1, 2, and 3) CLI-75-8, 2 NRC 173, '
l 176 (1975) Commonwealth of Massachusetts' Memorandum of J
Points and Authorit'ies In Answer To ThE Motions Of Respondents NRC et al. And Intervenor Boston EdiGon To Dismiss Petition f j For Review, at 8, n. 4. This Standard has not been disavowed i l by the commission and, thus, is binding upon it. See i I
I t Memorandum Of Petitioner In Opposition To Respondent's And l
l Joston Edison company's Motion To Dismiss, at 8-10 and cases i
! cited therein. It provides this Court with a standard against i
which to review the NRC's action, a standard which Congress
- itself can be said to have approved.10 l
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] 10. While implicit Congressional ratification of agency j interpretations is not normally on as strong footing as it is i
for those of the judiciary, as this Court has observed, 'in
) (continued...) ;
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__. _-_ ._ - _ _ .= - .. _.
D. Miscellaneous Points
- 1. Pragmatic Considerations i BEco argues that in light of the continuing regulatory j oversight exercised by the NRC, denials of enforcement requests are inherently non-fir.al and that * [a] compelling argument can be made, on a pragmatic level, that review [of the Director's decision on the Golden Petition) at this time ,
! would not make sense.' BEco Brief at 27. See also Id. at 36-l 37 The Petitioners and the Commonwealth submit that this argument seeks only to farther shield decisions concerning the i nuclear industry from public inptt ,and participation and flies j in the face of an expressed Congressional intent that the NRC 10(... continued) i l the case of the Commission, inaction by Cs igress (regarding
) its administrative actions) has been read as 'de facto acquiescence in and ratification of the Commission's licensing 4
)' procedure by Congress. Public Service Company of New Hampshire v. NRC, 582 F.2d 77, 53 (1st Cir. 1975). Implicit ;
l ratification is particularly compelling here where the ' common 1
law rule of the Commission' adopted in th9 consolidated Edison ;
case has frequently been relied upon by the Commission, the l
, Directors, and the courts. E.g., Northern Indiana Public 4
Service Company (Bailly Generating Station, Nuclear-1) CL'I-4 57-7, 7 NRC 429 (1978): Consolidtted Edison company (Indian i Point Units 1 and ?,), DD-87-13, 26 NRC 53, 69-70 (1987)('This 1
is the standard that I have applied...'); Lorion v. NRC, 785 I
F. 2d 1038,1041-1042 (D.C.Cir. 1986) Rockford League of Woman
- Voters v. NRC, 679 F.2d 1218, 1222 (7th Cir. 1952). Thus, it i fair to presume, particularly in light of the 1983 amendment i
l to 42 U.S.C. 2239(a) that did not address judicial review of NRC denials of enforcement requests, that Congress has 4
ratified or adopted the Consolidated Edison common law rule i
concerning the issuance of show :ause orders under 10 C.F.R.
2.202. See Sutherland, Statutory Construction 48.10 (4th j Ed. 1987).
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- preserve for the public a meaningful right to part'cipate in I l
decisions regarding the commercial use of nuclear power.' i S. Rep. No.113, 97 th Cong. ,1st Sess .1 l (1981). The 10 ,
C.F.R. 2.206 process is the only avenue availcble to those outside the NRC who wish to have input and to participate in 4
the decisions being made about existing nuclear plants,11 and the availability of judicial review is a necessary part of insuring that recourae to this process is more than a futile gesture.
- 2. F.W. Thompson Tool Co., Inc. v. United States In its Brief, BECo makes three references to this
! Court's recent decision in the case of K.W. Thompson Tool Co.,
Inc. v. United States, No. 87-1536 (1st Cir. Jan. 14, 1988),
j to support its argument that NRC denials of enforcement requests are committed to the unfettered discretion of the 4 {
agency. BECo Brief at 13, 28, 37.
] It does not. The decision involved the question of whether the institution of criminal
! proceedings by the Environmental Protection Agency in a
- federal court is within the discretionary function exception to the Federal Tort Claims Act. Id. The applicability of an explicit exception in a statutory tort liability scheme to the l affirmative exercise of the most powerful and guarded of the '
i
- 11. Pursuant to 42 U.S.C. 2239(a), interested persons may request a hearing whenever the NRC or a licensee seeks to
' amend, suspend, modify or revoke a license, but in the absense of such an action initiated by either the NRC or a licensee, the public has no means other a 10 C.F.R. 2.206 petition to raise safety concerns.
13 i
tools of the oxocutive has no b0aring whatsoever on the question of whether judicial review can be had of an administrative decision to deny action within f.ts area of exclusive control.
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l II.
THE ARGUMENTS OF THE NRC AND BECo IN SUPPORT OF THE DIRECTOR'S DECISION ARE WITHOUT MERIT On brief, the NRC and BECo each offer three part arguments to the effect that the Director was not arbitrary, capricious or abusing his discretion when he denied the Golden Petition in the face of FEMA's findings that various aspects of the state of emergency planning and preparedness at Pilgrim were inadequate.
While the NRC and BECo take different toutes, their arguments both reduce to the following: that this Court should af firm the Director's denial of the Golden Petition because the findings reported in FEMA's Self-Initiated Review had nothing to do with the issues raised in the Golden Petition or, if those FEMA findings were relevant.
4 to the Golden Petition, that the Court should nonetheless affirm the Director's Decision because his response to those findings was appropriate. As is discussed below, in all of i
their various incarnations, these arguments are without merit.
A. The Golden Petition's Contentions Concerning Evacuation Planning For School, Special Needs 4
i And Transport Dependent Populations Were ;
Sustained By The Findings Of FEMA's Self-Initiated Review Which Were Part Of The Administrative Record FEHA's own report on the Golden Petition belies the i
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_ _ _ _ , . _ , . _ . _ _ _ . . . - - ' - - - ~ ' '
I assertions of the NRC and BECo12 that the ' petition argued one set of deficiencies, which FEMA found not to exist, while FEMA itself found a quite different set of deficiencies.' NRC Brief at 35. As set out in the notes below, FEMA's July 29, 1987 report itself referenced the Self-Initiated Keview for FEMA's current view on four of the emergency planning deficiencies alleged in the Golden Petition (1) inadequate emergency plans for the physically
(! sable, nursing home residents, school children, hospital patients, campers, inmates of correctional facilities, or people without automobiles 13 (2) the lack of contractual Agreements with
- 12. BECo approached this question in a somewhat different fashion, asserting that "no quarrel with the disposition of the issues raised in the Golden Petition' was i manifested quarrel is within the
'theCommonwealth Brief present state of theand that the Petitioners' Commission's evolving and ison-final position on other off-site emergency planning issues (discussed in a separate FEMA report). SECo Brief at 32 (emphasis in original). Preceding from that I premise, BECo argues that the Director's resolution of the issues raised in the Golden Petition was correct, id at 33-35, and that the Commission's response to the findings of FEMA's Self-Initiated Review is not properly before this fourt because that action is not final and is, in any event, )
' unrelated' to the Golden Petition. Id. at 35-36. Although BECo avoids overt mischaracterization7 its assertions and arguments have the same premise that of the NRC: that the FEMA Self-Initiated in the Golgen Review did not address the issues raised Petition.
- 13. ' FEMA, therefore, concludes that the petition does not provide information sufficient to sustain its contention, On the other hand, FEMA, in its self-initiated review has j analyzed information of its own that speaks to the issues 1 raised.' FEMA Petition , Report at 24 ( RA 16 5 4 ) . l l
16 l
transportation prcviders for tho provision of transp3rt to transport dependent populations 14 (3) the lack of training for drivers with roles in the '
evacuation plans and the failure to inform those drivers of such roles;15 (4) the lack of coordination, prioritization and s
t i commitment on the part of the commonwealth and local governments in planning and maintaining a state of i readiness for an accident at the Pilgrim plant.16 !
i In each instance, the findings of the Self-Initiated Review i agreed wtih the allegations made in the Golden Petition. See t FEMA Self-Initiated Review and Interim Finding at 16, 35, 40, 46-47 (RA at 1578,1597,1602,1608-1609) .
4 B. Viewed In The Correct Context, The Director's Denial of Enforcement Action
! on The Emergency Planning Allegations Of a The Golden Petition Is Plainly Erroneous k
The NRC's unambiguous standard concerning the t t I i
circumstances in which a show cause order must be issued i 14.
updated information.See, Self-Initiated Review and Interim Finding for
15.
'On the other hand, FEMA, in its self-initiated i review has analyzed information that speaks to the issues I raised in' the Golden Petition. FEMA Petition Report at 30 (RA at 1560).
i 16.
i updated information.See, self-Initiated Review and Interim Finding for 1673). 'This subject FEMA Petition Re) ort at 43 (RA at Review at pp. 37-44.
3 17 l
1 4
together with the clear determination of the merits of the Golden Petition's emergency planning allegations in the 3
findings of the FEMA Self-Initiated Review, makes plain the l gratuitous nature of the arguments of the NRC and BECo in suppott of the Director's decision to deny of enforcement i
action. Contrary to their assertions, under the Commission's
- o l interpretation of 10 C.F.R. 2.202, 2.206, the Director was l
bound by a well defined standards to make an inquiry ,
appropriate to the issues, to resolve the questions before him in a manner supported by the administrative record, to provide i
a rational explanation for his decision, and to issue a show
- cause order if he identified a substantial safety question.
consolidated Edison Compnay of New York (Indian Point Nuclear i
! Station, Units 1, 2, and 3) CLI-75-8, 2 NRC 173,175-176 (1975). Further, he faced not a finding on some other, i unrelated issues, but rather a finding by the expert federal 1 agency that the precise emergency planning deficiencies :
)
, identified in the Golden Petition did exist and had resulted
)
! in the withdrawal of FEMA's approval of the Pilgrim plans. l
! 1
! The NRC itself has found adequate off-site emergency planning is essential to the protection of the public health and safety, see 44 Fed. Reg. 75, 169 (1979), and, thus, the Golden Petition plainly identified a "substantial health and safety issue.' Given the complete lack of any explanation by the Director that revealed that he was aware that the FEMA
- findings sustained the petition's allegations, it would appear I
i 18 l
that the Director failed to follow up on FEMA's own references to its current views, much less make independent inquiry into -
whether FEMA's current view on the Golden Petition's l allegation's had changed from that formed nine months earlier, I and was unaware of FEMA's current assessment of those allegations. It is hnrd to imagine a decision more arbitrary, 1
j capricious, and an abuse of discretion other than one where d
]
the Director had been aware of the current FEMA assessment but ,
]
denied the request on the grounds that the current assessment
! was in a document with the wrong cover.
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CONCLUSION I WHEREFORE, for all of the forgoing reasons, the
, Commonwealth submits that this Court should remand the NRC l
decision and order the NRC to 4
- 1. initiate formal enforcement action pursuant to 10 C.F.R. 2.202 with respect to the issue of emergency preparedness at Pilgrim, and i
l
- 2. to consider all of the evidence on the issue of the safety of Pilgrim's reactor containment structure and to either initiate the requested enforcement action or provide a complete explanation of the reasons for a decision to withhold
! such action.
RESPECTFULLY SUBMITTED, I
I James M. Shannon i Attorney General NassPIRC et al. Commonwealth of Massachusetts ;
3 YY William Abbott, Esquire %7 tin 4f Drun
,, s =
i simonds, Winslow, Willis Assistant Attorney General r i
6 Abbott Department of The Attorney l 50 Congress Street General Boston, Massachusetts 02109 One Ashburton Place j (617) 523-552. Boston, Massachusetts 02108 (617) 727-1083 l
s Dated: March 14, 1988 l 1 1
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TIT 1.E 43-THE PUBl.!C HEALTH AND WELIAJtt Page 114 02239 8 Iths Hearinsi sne jud6elal revlee trnendment to an operating !!eertse involves no signifleant haaArds corunderation. (11) critetta taxi) la any proceeding under this chapten'. for protiding or, in emergency situations, dia.
for the granting, suspendtris, revoLitig, or pmattig tith prior notke and retaonable oppor.
trnending of kny Ucense or construction permit, tutkity for public cortment on triy such deter.
or application to trarnafer control. ud in Erly mttkation thlch criteria shall take trito account proceeding for the laeuence or modification of the entsency of the need for the amendment in.
rules and regulations dealing tith the activities volved, and (Ull procedures for consultation on of 11eensees, and tri arny proceeding for the pay. my such determination with the State in ment of compertsation, an stard or royalties which the facility inwohed la located.
under settlotts 3103. 2187. 2336tc) or 2334 of (b) Any final order entered in arty proceeding this title. the Commisalon shall grant a hearing of the kind specified in suboection (a) of this upon the request of any person those interest settlen shall be subject to judletal reviem> in the may be affected by the proceedtns, ud shall muiner prescribed in chapter 164 of title 34, adrnit any such person as a party to such pro. End to the provtalons of chapter 1 of title S.
coeding. The Commtasjon shall hold a heartrig titer thirty days' nottet ud publication once tri ( Aug.1.1944. ch.134. I 189. as added Aug. 30, the Federal Register,on each application under 1984. ch.1013. I1. 64 Stat. 968. and amended sectiorn 2133 or 3134(b) of this title for a con. Sept. 3.1987. Pub. L 88 364. l T.11 Stal 879.
struction permit for a ftetitty, and on any appil. Aug. 29.1943. Pub. L 87 418. I 3.14 Stat. 409, cation under section 2134(t) of this title for a Jart. 4.1943. Pub. L 91-418. I 13(a). 94 Stat.
construction permit for a testirig incility. In 3073.5 ,
cases ahere such a cortstruction permAt haa .
been Lasued fouestng the holding of such a l
hearittg. the Commtasion may,in the theence of
) a request therefor by afty perton whose interest may be affected. Lasue ar. operating Incense or an amendtnent to a construction permit or Ern amendment to an operattrtg licenae tithout a hetitas, but upon thirty days' notice and publi.
cation once in the Federal Restster of its tritent to do so. The Commtaston may dtapertse tith 4
such thirty days' notice and publication with
, respect to any bppucation f or an amendment to a construction permit or an amendment to an *
- operttttts beense upon a determination by the
- Commtaaton that the troendment Lavolves no sigtu! leant hasards tonaderstion.
(2x A) The Commiasion may taeue brid make l tmmediately effective my Emerndment to an op.
ersting theense, upon a determtrtatton by the
'J Corumton that such traendment involves no i
sisTClearnt hasards cortsiderattort. nott1th.
standmg the sendency before the Commtaslon f of a requeet for a heartng frota triy pettort.
Such amendraent may be tasued and made tm.
mediately e!!ective in adianet of the holdirts ,
and completten of ariy required hearing. In de.
termining under this section ahether such !
tmendinent involves no signifleant hasards con.
4 sideration. the Commission shall consult eith
} the State tri wh6ch the f act11ty traolved la locat.
j ed. In bli other respects such amendment shall meet the reestrements of this chapter.
2 (B) Tine r*==$=wn shall periodacally (but
' not less fregsently than onct every thirty days) -
publish souse of any amendenenta lasued. or proposed to be lansed. as provided trn subpart.
l sTnph ( A1. Each seek nottet shall include til amendments u oc proposed to be imued, since the date of publication of the last such penodt; nottre. Such notice shall, with respect '
I to each tragedeneed er proposed amerndsment it) identif y the fact 11ty insched; ud tu) protide a
- Set slesertption of euch Emendment. Nothing in this subsortnen shall be construed to delay the effective date of arny troendment.
(C) The C-W shall duttng the ninety.
I say pertod leucwing the effecthe date of this I
parsgTaph. promulgate regulations establtshing sti standards Ier determtrting thether any i
e
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UNITED STATES COURT OF APPEALS FOR TI.E FIRST CIRCUIT MASSACHUSETTS PUBLIC INTEREST )
RESEARCH GROUP, et al., )
) '
Petitioner, )
) <
V. ) No. 87-1865
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UNITED STATES NUCLEAR REGULATORY )
COMMISSION, et al., )
)
Respondent. ) ;
)
CERTIFICATE OF SERVICE i
I, George B. Dean, Hereby certify that on March 14, 1988, I made service of the foregoing ' JOINT REPLY,.BRIEF OF PETITIONER MASSPIRG ET AL. AND INTERVENOR COMMONWEALTH OF MASSACHUSETTS' by mailing copies thereof, postage prepaid, by first class mail, to:
h William S. Abbott R. R. Gad III, Es q'.t i r e l Simonds, Winslow, Ropes & Gray j Willis & Abbott 225 Franklin Street i 50 Congress Street Boston, MA 02110 Boston, MA 02109 7
William S. Stowe Laura E. Frossard 1 Boston Edison Company Appellate Section '
800 Boylston Street Land and Natural Resources Division Boston, MA 02199 U.S. Department of Justice Washington, DC 20530 1 l
William R. Briggs, Jr. l Steven F. Crockett U.S. Nuclear Regulatory Commission * , _
Office of the General Counsel 1717 H Street *,~
Washington, DC 20555 , , , _ , , , _ _ , , , , ,
- 2. & i. Detti Assistant Attorney General Department of the Attorney General i i
DATED: March 14, 1968 l
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT s
)
MASSACHUSETTS PUBLIC INTEREST )
RESEARCH GROUP, et al., )
)
, Petittoners )
)
- v. ) No. 87-1865
.. )
I . UNITED STATES NUCLEAR )
i REGULATORY COMMISSION, 3t al., )
)
Respondents. )
_)
PETITION FOR REVIEW OF A DECISION OF THE NUCLEAR REGULATORY COMMISSION BRIEF OF INTERVENOR COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON, ATTORNEY GENERAL
,.. George B. Dean Assistant Attorney General One Ashburton Place Boston Massachusetts (6171 727-1083 l
! Dated: January 11, 1988 !
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TABLE OF CONTENTS I. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 1 II. STATEMENT OF THE FACTS . . , . . . . . . . . . . . . . 4 A. The NRC Regulatory Scheme . . . . . . . . . . . . . 4
- 8. Pilgrim Nuclear Power Station . . . . . . . . . . 8 C. The 2.206 Petition . . . . . . . . . . . . . . . 10 D. FEMA's Analysis Of Pilgrim Emergency
- , Planning / Preparedness . . . . . . . . . 12 1
, E. The "Interim Director's Decision" . . . . . . . . 16 III. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . 20 IV. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW . . . . . 21 V.
SUMMARY
OF ARGUMENT . . . . . . . . . . . . . . . . . . .2 VI. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . 24 A. The NRC's Dental Of The Request To Initiate Enforcement Proceedings With Respect To Pilgrim l Emcegency Planning and Preparedness Was Arbitrary, Capricious, An Abuse Of Discretion, And Otherwise
] Not In Accordance With Law . . . . . . . . . . . . 24 1 i B. The NRC's Denial Of The Request To Initiate '
Enforcement Proceedings With Respect To Pilgrim's Reactor Containment's Safety Was Arbitrary, Caprictous, An Abuse Of Discretion, And Otherwise Not In Accordance Hath Law . . . . . . . . . . . .
) 1
. 29 !
- C. The NRC's "Interim Director's Decision" Is A Final Agency Actton Subject To Judicial Review Und9r The Administrative Procedure Act . . . . . . . . . . . 30 VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 34 P
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,. TABLE OF AUTHORITIES JUDICIAL DECISIONS:
Bellotti v. NRC, 725 F,1d 1380 (D.C.Ctr. 1983) . . . . . . 9, 33 Center for Auto Safety v. Dole, 828 F.2d 799 (D.C.cir 1987) . 25 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 4'2 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 County of Rockland v. NRC, 709 F.2d 766 (2nd Cir.) cert. dented 464 U.S. 993 (1983) . . . . . . . . . . . . . . 26, 27, 28,29,32 In Re Three Mile Island Alert, Inc., 771 F.2d 720 (3rd Cir. 1985) . . . . . . . . . . . . . . .. . . . . . . . 27 Lorton v. NRC, 785 F.2d 1038 (D.C.Ctr. 1986) . . . . . 20, 24, 30 Motor Vehicle Manufacturers Assn. v. State Farm Mutual Insurance Co., 463 U.S. 29 (1983)
. . . . . . . . . . . . . . . . . 24, 27 Natural Resources Defence Council v. NRC, 680 F.2d 810 (D.C.cir.
1982) . . . . . . . . . . . . . . . . . . .. . . . . . . 32, 33 Oystershell Alliance v. NRC, 800 F.2d 1201 (D.C.cir. 1986) 27, 28 Port of Boston Marine Terminal Association v. Redertakttebolaget Transatlantic, 400 U.S. 62 (1970) . . . . . . . . 23, 31, 32, 33 ,
Sterra Club v. NRC, 825 F.2d 1356 (9th Cir. 1987) . . . . . . 32 Union of Concerned Scientists v. NRC, 824 F.2d 108 (D.C.Ctr. '
1987) . . . . . . . . . . . . . . . . . . . .. . . . . . . . 4 United States v. Nixon, 418 U.S. 683 (1974) .. . . . . . . . 25 ADMINISTRATIVE DECISIONS: -
i Boston Edison Company (Pilgrim Nuclear Power Statton) LBP-72-25, 5 AEC 103, aff'd ALAB-83, 5 AEC 354 (1972) . . . . . . . . . 8 .
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Consolidated Edison Company (Indtan Point Units 1, 2, and 3) CLI-75-173 (1975) . . . . . . . . . . . . . . . .. . . . . . 28, 30 l Consolidated Edison Company (Indtan Point, Units 2 and 3) CLI--
82-38, 16 HRC 1698 (1982) . . . . . . . . . .. . . . . . 28, 29 i
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STATUTES:
5 U.S.C. 704 . . . . . . . . . . . . . . . . . . . . . . 21, 31 5 U.S.C. 706(1). . . . . . . . . . . . . . . . .. . . . . . 25 5 U.S.C. 706(2)(A) . . . . . . . . . . . . . . . . . . . . . 20 ;
. 28 U.S.C. 2342 . . . . . . . . . . . . . . . . .. . . . . . 1 42 U.S.C. 2011 . . . . . . . . . . . . . . . . . .. . . . . 4
. 42 U.S.C. 2131 . . . . . . . . . . . . . . . .. . . . . . . 4 42 U.S.C. 2133 . . . . . . . . . . . . . . . . .. . . . . 4, 5 42 U.S.C. 2232(a) . . . . . . . . . . . . . . . . . . . 5, 22 42 U.S.C. 2236 . . . . . . . . . . . . . . . . .. . . . . . 5 42 U.S.C. 2237 . . . . . . . . . . . . . . . .. . . . . . . 5 42 U.S.C. 2271 . . . . . . . . . . . . . . . . ... . . . . 5 42 U.S.C. 2282 . . . . . . . , . . . . . . . . . .. . . . . .- 5 REGULATIONS:
10 C.F.R. 2.206 . . . . . . . . . . . . . . . . . . 2, 16, 22 10 C.F.R. 2.206(a) . . . . . . . . . . . . . .. .. . . . 10 10 C.F.R. 50.47(a) . . . . . . . . . . . . . .... . . . . 8 10 C.F.R. 50.47(a)(2) . . . . . . . . . . . . ... . . 7, 26 10 C.F.R. 50.54(q) . . . . . . . . . . . . . .... . . . . 8 10 C.F.R. 50.54(s)(2)(11) . . . . . . . . . .. . . 5, 8, 27 10 C.F.R. 50.54(s)(3) . . . . . . . . . . . 7, 22, 24, 25, 26 44 C.F.R. 350.7(d) . . . . . . . . . . . . . . . . . . . . . 7 44 C.F.R. 350.9 . . . . . . . . . . . . . . . ... . . . . 7 44 C.F.R. Part 350 . . . . . . . . . . . . . . . ... . . . . 7 MISCELLANEOUS AUTHORITIES:
c 1980 Memorandum of Understanding Between NRC and FEMA To Accomplish a Prompt Improvement in Radtological Emergency Planning and Preparedness, 45 Fed. Reg. 5847, 5848 (1980) . . . 7 1985 Memorandum of Understanding Between NRC and FEMA Relating to Radiological Emergency Planning and Preparedness, 50 Fed. Reg. '
15,465 (1985) . . . . . . . . . . . . . . . . . . . . . 6, 7, 25 Emergency Planning Around U.S. Nuclear Power Plants, House Report
. No.96-413, 96th Cong., 1st Sess. (1979) . . . . . . . . . . . 6 I and III Three Mlle Island: A Report to the Commissioners and the Public, U.S. Nuclear Regulatory Commission Special Inquiry Group (1980) . . . . . . . . . . . . . . . . . . . . . . . . . 6 l
Notice of Proposed NRC Rule Making, 44 Fed. Reg. 75,167 (1979) .
6 President's Commission on the Accident at Three Mile Island -- .
The Need for Change: The Legacy of TMI (1979) . . . . . . . . 5 S. Rep. No. 1699, 83rd Cong., 2d Sess. 2 (1954) . . . . . . . . 4 ;
i Staff Report to the President's Commission on the Accident at Three Mile Island -- Emergency preparedness, Emergency Response
] (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 i
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT t 1
i ,
) (
MASSACHUSETTS PUBLIC INTEREST )
RESEARCH GROUP, it al., ) ;
)
! Pettttoners )
. - (
) j
- v. ) No. 87-1865 i
) t
, UNITED STATES NUCLEAR )
- REGULATORY COMMISSION, et al., )
)
Respondents. )
- )
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PETITION FOR REVIEW.0F A DECISION OF THE NUCLEAR REGULATORY COMMISSION t l'
BRIEF OF INTERVENOR COMMONWEALTH OF MASSACHUSETTS t-1 I
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) I. STATEMENT OF THE CASE l This Petition for Review was filed on October 1, 1987 l pursuant to the Hobbs Act, 28 U .S.C. 2342. Revtew is sought of I
the August 21, 1987 denial by the U.S. Nuclear Regulatory j Commtssion ("NRC") of a petitton filed by Petitioners, f Massachusetts Public Interest Research Group, Inc., et al. !
j
("MassParg"), seeking the initiation of NRC enforcement action i {
i against the Boston Edtson Company ("BECo") with respect to the operation and condition of the Ptigram Nuclear Power Station
- 1
)
' ("PilgriO" of the "Plant") . (1)
("Commonwealth") The Commonwealth of Massach Orders of this Court datedctober October 21 and on October 27 and November 5, 30, 1987.(21 respectively. the NRC moved to dismtss the petition on the grounds that NRC d ectatons not to take enforcement action are not subject t
- dtsmiss the Commonwealth as a party on theo judtetal revi grounds that the Commonwealth had not partictpated below .
BEco filed a separate motton to dismiss thOn November 5, unreviewability. e appeal on grounds of The Commonwealth and MassPirg have filed separate responses to each of these motions .
pending before this court. The motions are By an Order of thts Court dated Dectmb er 28, 1987, the Parties were directed to address "Whether the August 21, 1987 owing thequestion:
foll agency d of the three grounds petitioners ratsed, butecision, which d a thtrd assue (alleged management deftetenete s
) reserved de as a ftnal agency 1.
Petttton" refer 1986 pursuant to to the petttion filed w thAs Goldenused heretn 10 C.F.R. 2.206 i
"MassPhrg Petition" refer to the Pet The term "Appeal" andthe NRC o Court.
2.
itton for Review before the On October 19, 2.206 request with the NRC.1987, the Tht Commonwealth ftled a .10
. C.F R !
i be stmilar to those soughtof enforcement proceedings that, request sought the anttaatton an the Golden Petitton.in many maternal res i While the i
health and safetygrounds for concludtng e same three that Pa many reached respects, an the Jart report B par,ticularly in the teltance upothe in base which are discussed n the conclusions i infra at pp. 12-16and the FEMA "Self-Insttated Review 2
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decaston which should be reviewed by this court at this time in advance of the agency's determination of the management assue."
3 Pursuant to this Court's order dated December 8,1987, the Commonwealth submits this brief on the mertts.
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- II. STATEMENT OF THE FACTS A. The NRC Regulatory Scheme (
With the enactment of the Atomte Energy Act of 1954, Congress for the ftrat time authort?.ed private commercial
! production and uttitration of nuclear matertal. 42 U.S.C. 2011 1
- . ej g g.(as amended). Recognizing that nuclear technology ;
4
"' pose [dl grave threats to the very existence of '
cavaltratton'..., Congress imposed an expanstve and stringent scheme by which the government would regulate every aspect of the new industry." Union of Concerned Setentists v. NRC, 824 F.2d !
l 108, 115 (D.C.Cir. 1987) quoting S. Rep. No. 1699, 83rd Cong., 2d I
j Sess 2 (1954). Congress has charged the NRC with the -
t i
responsiblitty of assuring that the possession and use of nuclear !
j fuel will "provide adequate protection to the health and safety [
of the pubite."(3) Union of concerned setentists v. NRC, supra, j An NRC permit is required for the construction of a nuclear )
power plant and an NRC operktang license is required for the I
' (
j l operatton of a plant. 42 U.S.C. 2131 and 2133. NRC permits
(
and licenses as well as the continued operatton of nuclear power f
- 3. Under the Atomte Energy Act of 1954, the Atomic Energy Commission ("AEC") was charged with the responsablity to both l promote and regulate civtlian use of nuclear energy By 1974, !
l however, Congress recogntzed that a confitet exited between the l two roles. In the Energy Reorganizatton Act of 1974, Congress )
divided the agency's responstbtitttes. The role of promotor was
' assigned to what is now the Department of Energy and the role of i regulator was assigned to the newly created NRC. The intent was i to provide a strong regulator. P.L.93-438, 88 Stat. 1233 ;
4 (1974), codifted at 42 U.S.C. 5914 ej seq.
4 '
q
4 E
l plants are conditioned upon conformance with rules or regulations l l adopted by the NRC to meet its statutory obligation to protect ;
the public health and safety. 42 U.S.C. 2133(a) and 2232(a).
The NRC ts empowered to enforce its rules and regulations and has at its issposal a variety of enforcement tools: the authority to revoke, suspend or modify li. censes, the authority to impose civil
', penalttes, and the authortty to issue cease and desist orders.
4 2 U .S.C. 2236, 2237, 2271, and 2282. See generally S. Rep.
No.91-553, 91st Cong., 1st Sess., reprinted Lq U.S. code Cong. &
i Ad. News 1607 (1969). -
Among the condtttons imposed upon Itcensees by the NRC to f 1
protect the public health and safety are those related to '
emergency planning and preparedness.[4] The NRC's current i emergency planning rules are an outgrowth of the lessons learned !
from the 1979 accident at the Three Mile Island nuetear station.
Numerous government studtes and hearings were conducted of the causes and response to that accident. Mased on those studtes and i
its own analysts, the NRC reconsidered the role o' emergency ;
preparedness an ensuring the protection of the pubite health and i l
safety and, in December, 1979, issued proposed regulattons.[5] I i
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l 4. For convenience of exposition, the terns "emergency !
planning" and "emergency preparedness" are used interchangeably l herean and are intended to reference the requirement of an NRC rule that the state of emergency preparedness at a nuclear power "provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency."
- 5. See generally President's Commission on the Acetdent at Three Mile Island -- The Need for Change: The tegacy of TMI (continued...)
5
s The NRC provided the following rattonale for the regulatory change The proposed rule is predicated on the commisston's l constdered judgement in the aftermath of the accident at Three Male Island that safe siting and design-engineered features alone do not optianze protection of the public health and safety. Before the acendent it was thought that adequate siting in accordance with existing staff guidance coupled with the defense-in-depth approach to deeign would be the primary pubite protection. Emergency planning was concetved as a secondary but addittonal measure to be exercised in the
, uniskely event that an accident would happen. The 1 Commission's perspective was severely altered by the unexpected sequence of events that occurred at Three Mtle Island. The acetdent showed clearly that the i
protection provided by siting and engineered safety features must be bolstered by the ability to take protective measures during the course of an accident.
J
... A conclusion the Commission draws from this is that l in carrying out its statutory mandate to protect the public health and safety, the Commission must be an a nosition to know that__off-site governmental plans have [
,een reviewed and found adequate. l 44 red. Reg. 75,169 (1979).
l On December 7, 1979, Prestdent carter, acttng on the same ,
- reports, directed that the Federal Emergency Management Agency
("rEMA") "assume the lead responsability for all offsite nuclear !
' t emergency planning and response." 50 red. Reg. 15,465 l (1985)(Notice of Revtsed Memorandum of Understanding Between FEMA '
and NRC). FEKA was and as the rederal agency with expertence in emergency planning. Its experttse was necessary to augment the 5(... continued) '
i (1979); Staff Report to the President's Commission on the Acendent at Three Mile Island -- Emergency Preparedness, i Emergency
~
Response (1979); I and !!I Three Mile Island: A Report !
to the Commisstoners and the Pubite, U.S. Nuclear Regulatory l Commtsston Special Inquary Group (1980); Emergency Planning
' Around U.S. Nuclear Power Plants, House Report No.96-413, 96th '
Cong., 1st Sess. (1979). i 6
i
o NRC's technical capabiltties which did not included adequate expertence or expertise in emergency planning. This directive resulted in a January 20, 1980 Memorandum of Understandtng
("MOU") between the NRC and the FEMA which, in pertinent part, provided that FEMA was to "take the lead in eff-stte emergency planning and review and assess State and local emergency p. ant for adequacy." 45 Fed. Reg. 5847, 3848 (1980). Although it as the product of two revisions, the current MOU continues to provide that the FEMA will take the lead role an assessing i
offsite (ssate and local governtent) planning for a radtological i emergency and provides that the NRC wt11 take the lead role in assesstng the a6equacy of onsite (licensee) emergency planntng.[6] 50 Fed. Reg. 15,467 See also 10 C.F.R.
50.47(a)(2) and 50.54(s)(3)(setting forth the same allocation of responstbtitty). I The regulations adopted by the NT.C in the aftermath of the l
accident at Three Male Island provade that "no operating license l
l
' 6. Pursuant to the Memorandum of Understanding. FEMA has '
adopted regulattons that set forth cetterta and processes by which it provides formal approval of offsite radtologtcal emergency response plans. 44 C.F.R. Part 350. Emergency response plans are assessed for adequacy and de erminatsons are made as to the state of preparedness for their }taplementation.
In addition to requitang exeresses and drills of the plans (44 c.F.R. 350.9), the FEMA regulattons require a wrttten stat 6 ment by the Covernor of the state or his destgnee that the state and !
local plans together are, "in the optnton of the state, adequate to protect the pubite health and safety of tts cittgens itvang :
within the emergency planning zones [for which approval ts sought) ... by provtding reasonable assurance that State and l local governments can and intend to effect appropriate protective j measures C.F.R.
offsite an the event of a radtological emergency. 44 350.7(d). {,
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.. y will be issued unless a finding is mcde by NRC that there is reasonable assurance that adequate protective measures can and 11 be taken in the event of a radiological emstgency." 10 C.F.R. 50.47(a). For nuclear power plants (such as Pilgrim) which already had operating licenses on the effective date of the new regulations and for all other plants after an operating license has initially been gear.ted, the NRC regulations require licensees to maintain adequate emergency response plans. 10 C.F.R. 50.54(q). The regulations further provide that:
If after April 1, 1981, the NRC finds that the state of emergency preparedness does not provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency
... and if the deficiencies ... are not corrected within four months of that finding, the commtssion will determine whether the reactor shall be shut down until such deficiencies are remedied or whether other enforcement action is appropriate. In determining whether a shutdown or other enforcement order is appropriate, the Commission shall take into account, :
among other factors, whether the licensee can ,
demonstrate to the Commission's satisfaction that the '
deficiencies in the plan are not significant for the plant in question, or that adequate interim compensating actions have been or will be taken promptly, or that that there are other compelling !
reasons for continued operation.
10 C.F.R. GO.54(s)(2)(ti). I B. Pilgrim NJclear Power Station The Pilgrim Huclear Power Station is owned by a group of !
i electric utilities and is operated by BEco pursuant to an operating licence granted by the NRC in 1972. See Boston Edison Company (Pilgrim Nuclear Power Station) LBP-72-25, 5 AEC 103, aff'd ALAB-83, 5 AEC 354 (1972). The plant has an approximate 8
l
' net capacity of 687 megawatts and is powarcd by c General Id. 5 AEC at 107.
Electric Mark I nuclear reactor. ings, Pilgrim has long been plagued by operational shortcom d civil having accumulated a h!. story of regulatory violations an (tabulation of Pilgrim's penalties. See_ RA at 1002-09 Among the more significant enforcement enforcement history).
events, the, NRC issued an Order Modifying License to BECo on false January 18, 1982 as a result of BEco's submission of or was h
information and delay in notifying the NRC when t e err imposed a civil penalty on That same day, the NRC discovered. at that time the largest penalty BEco in the amount of $550,000, See Bellotti v. NRC, 725 P.2d 1380, ever assessed by the NRC.
1381 (D .C .C t e . 19 8 3 ) . first Radiological Emergency Response Plans for Pilgrim were 16, 1981, in response submitted to the NRC and the FEMA on June d on August 19, to the new NRC emergency prep nedness rule adopte These plans 1980. (RA at 1564)(FEMA Self-Initiated Review).
In a review of i were reviewed and an exercise was held in 1982. d an the plans and the results of the exercise, FEMA issue 1 "Interim Finding" in September, 1982, that concluded that the RA at 446.
plans and the state of preparedness were adequate.
before FEMA did note that certain remedial actions were necessary icaue an approval of the plans and state of it could Id.
In the ensuing years, FEMA sought, without preparedness. d success, to secure further actions with respect to the plans an As a consequence of this lack of preparedness. RA at 1564-70.
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progress, FEMA instituted a "Self-Initiated Review" of the plans and the state of preparedness and, as is discussed infra at pp.
12-16, concluded that the plans and state of preparedness were inadequate.[7]
C. The 2.206 Petition ,
. The 2.206 Petition whose denial is the subject of this Appeal was filed on July 15, 1980 with the NRC's Director of Nuclear Reactor Regulation. The Petition conformed to the requirements of 10 C.F.R. 2.206(a) and specified the action requested as follows:
The action requested is that an order be issued to the Boston Edison Company to show cause as to why the Pilgrim I Nuclear Power Station Station (sic)
("Pilgram) should not remain closed and or have its operating license suspended by (the] NRC unless and until that time at which the licensee demonstrates conclusively to the NRC and the public: ( 1. ) that its management is no longer hampered by the deficiencies noted by the petitioners herein; (2) that the Radiological Emergency Response Plan fully complies with 10 C.F.R. 50.47 and 10 C.F.R. 50.57, (and) is given high organizational priority and sufficient funding by the licensee, the Federal Emergency Management Agency (FEMA), the Massachusetts civil :
Defense Agency (MCDA) and local governments; and (3) that the inherent design flaws noted by petitioners herein which render Pilgrim I's containment structure i
extremely vulnerable in most accident scenarios have I been overcome to the extent that the public health and safety will be assured.
4 t
- 7. The commonwealth had earlier reached the same I conclusion. See n. 11, infra.
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(RA at 957).(8) The Petition set forth the bases for the requested action in three separate "parts."
With respect to the allegation that BEco's management of the Plant is deficient and that "its continuing operation of the Pilgrim plant poses an extremely serious and unacceptable health and safety threat to the citizens of the Commonwealth," RA at
, 960), the Petition set forth bases for concluding that BECo has managerial deficiencies in eleven specific areas of plant I
operations and a general inability to correct those deficiencies.
RA at 961-79.
As bases for the request for the initiation of enforcement action in regard to emergency planning and preparedness, the Petition set forth the following: (1) inadequacies in the provision of advance public information regarding emergency actions (RA at 983-84), (2) inadequacies in the systems for notification to the public of an accident ( RA a t 984), (3) deficiencies in the evacuation plans, including unrealistic evacuation time estimates (9), the lack of workable plans for, I
- 8. The reference to the NRC's emergency preparedness regulations contains an' apparent typographical error. Instead of 10 C.P.R. 50.57, the correct citation is to 10 C.F.R. 50.54, the regulation specifying conditions incorporated in every licence, including emergency preparedness requirements, see pp.
7-8, supra.
- 9. Evacuation Time Estimates ("ETE's") are a key decisicamaking tool in an emergency. Incorrect and, in particular, overoptomistic ETE's could in the event of an !
accident cause decisionmakers to select evacuation when other protective responses such as sheltering would better protect the 1
I public. See generally RA at 26 (Manual of Proctective Action Guides). '
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s special needs and transport dependent populations, and the failure to ensure that the resources necessary to effect an evacuation will be available (RA at 984-85), (4) inadequacios in the medical facilities available to treat victims of radiological contamination (RA at 985-86), (5) inadequacies in the size of the emergency planning zone ("EPZ") (RA at 986-87), and (6)
Inadequacies in the level of coordination among and the priority given to emergency planning and preparedness by BECo, federal, state, and local governments (RA at 987-89).
As bases for the request for the initiation of enforcement action in regard to Pilgrim's reactor containment structure, the Petition set forth the following: (1) that internal NRC analysis indicated that General, Electric Mark I pressure-suppression reactor containment systems, such as that at Pilgrim, were vulnerable to failure in certain circumstances (RA at 989-93); and (2) that der.onstrated shortcomings in the NRC's analytical technique for assessing vulnerability to severe accidents ressit in a ter.dency to underestimate the probability of such accidents. (RA at 993-94). The Petition then asserted that, "in the sobering light of the Chernobyl disaster," the e
recognized vulnerability of Pilgrim's reactor containment structure "is threatening public health and safety within the region." (RA at 987-89)
D. FEMA's Analysis Of Pilgrim Emergency Planning / Preparedness 12 i .- - - - - - - - - - -
As discussed above, supra at pp. 6-7, pursuant to a Presidential Directive and the MOU between FEMA and the NRC, FEMA takes the lead role in reviewing offsite emergency plans and the state of emergency preparedness for the purpose of determining their adequacy. Thus, the NRC forwarded the emergency preparedness portions of the enforcement request to FEMA on August 4, 1986 and on August 11, 1986, requested that FEMA review the issues presented therein. Slip at 12-13 (RA at 1693-94).
FEMA, in turn, sought information and comments f rom the Commonwealth, BECo, and other parties that may have been in i possession of information useful to its review. FEMA Self-Initiated Review and Interim Finding, TAB II, pp. 2-3 (RA bt 1632-33).[10) i BEco submitted comments to' FEMA under cover of a letter ,
dated October 29, 1986, FEMA SER, TAB II, p. 2 (RA at 1632), and in an oral communication, the commonwealth "indicated that it had no comments on the (Pletition." Id. Under cover of a letter dated December 22, 1986, however, Charles Barry, Secretary of the !
- 10. The reference to "Self-Initiated Review and Interim
, Finding" is to a FEMA report wath a cover beartr,g its insignia and the title given above. Two other FEMA reports ("FEMA
, COMMENTS on The Report To The Governor On Emergency Preparedness s For An Accident At The Pilgrim Nuclear Power Station" and "Analysis of Emergency Preparedness Issues At Pilgrim Nuclear i Power Station Raised In A Petition To The NRC Deted July 15, 1986") are attached to the report at TA8s I and II, respectively.
Supporting documentation is attached at Appendices 1 through 7.
This material is included in the Record Appendix at 1559-679.
- For conventence of reference, citation to the FEMA Self-Initiated Review and Interim Findtag will be in the form
- "FEMA SER, p.
(RA at )." Citation to the attached reports ant documentation 4
will be in the form ' FEMA SER, 'AB _, p . _ ( RA a t )" or "FEMA SER, APP. _, p. (RA at )" as appropriate.
13
Massachusetts Executive Office of Public Safety, submitted to FEMA for review a document entitled: "Report to the Governor on Emergency Preparedness for an Accident at the Pilgrim Nuclear Power Station."[ll) Id. In January, 1987, Secretary Barry submitted another document for review: a report prepared for BECo by the Impell Corporation entitled, "Evaluation of Offsite
. Emergency Preparedness in the Area Surrounding the Pilgrim Nuclear Power Station." S11r at 13. (RA at 1691)(12).
Simultaneous with the initiation of the NRC requested review, FEMA determined that it would conduct a review of emergency preparedness for the Pilgrim plant and informed the Commonwealth of this decision in a letter dated September 5, 1986. FEMA SER, p. 8 (RA at 1570). On January 14, 1987, FEMA, informed the NRC that requests to review the reports submitted by BECo and the Commonwealth might delay its review of the issues raised in the Petition. Slip at 13 (RA at 1694). In a memorandum dated March 31, 1987, FEMA confirmed an agreement with the NRC that, F E MA (would) respond to the NRC's request for an evaluation of the offsite emergency planning and l emergency preparedness issues raised in the petition in a consolidated fashion which will address the issues
- 11. On the basis of thorough review of the Pilgrim radiological emergency response plans and of the state of preparedness, the Massachusetts Executive Secretary for Public
, Safety concluded that there was not a reasonable assurance that adequate protective measures could and would be taken in the event of an accident at Pilgrim. RA at 1039.
- 12. Boston Reference Edison Company herein to the NRC decision below, T(Pilgrim Nuclear (1987), will be in the form, " Sli p a t __ ( RA a t )."
14 1
l
, raised in the 2.206 petition, the two reports that OPS
[ Massachusetts Executive Office of Public Safety] has requested FEMA to review (the Barry and Impell reports), FEMA's self-initiated review, and other relevant available information.
RA, p. 1395.
On August 6, 1987, FEMA forwarded the consolidated evaluation -- the FEMA SER -- to the NRC. In its consolidated evaluation, FEMA concluded:
that the Massachusetts plan is inadequate to protect the health and safety of the public in the event of an accident at the Pilgrim Nuclear Power Station and cannot be implemented until the inadequacies noted in the Self-Initiated Review and Interim Finding are corrected.
FEMA SER, p. 49 (RA at 1611). In particular, FEMA found that the following six deficiencies required it to withdraw its 1982 "Interim Finding" that the state of emergency preparedness was adequate to protect the public health and safety:
- 1. the lack of evacuation plans for public and private schools and daycare centers:
- 2. the lack of a reception center for people evacuating to the north:
- 3. the lack of identifiable public shelters for the beach population;
- 4. the inadequacy of the planning for the evacuation of the special needs population; i
- 5. the inadequacy of the planning for the evacuation of the transport dependent population
- 6. the overall lack of progress in planning and apparent diminution in emergency preparedness.
FEMA SER, pp. 1-2 (RA at 1563).
i Notwithstanding this finding of inadequacy, in an attachment to the F_EMA SER dated July 29, 1987 and entitled, "Analysts of 15 i
i
Emergency Preparedness Issues At Pilgrim Nuclear Power Station Raised In A Petition To The NRC Dated July 15, 1986," FEMA stated that, (itslanalysis of the seven alleged deficiencies in off-site emergency planning indicates that the informatten in the petition did not sustain the contentions based
- on the state of the record at the time the petition was reviewed...
. FEMA SER, TAB II, p. 4 (RA at 1634). The FEMA was careful to note that, for the reasons given in the main report, it was in agreement with the general thrust of some of the issues raised in the Petition, but stated that its analysis of the issues raised in the Petition did not consider all of information then available. It referenced the main report for its current conclusions . Id. In particular, although FEMA concluded that at the time the Petition was reviewed it did not sustain the assertion that emergency preparedness with respect to special needs and transport dependent populations was inadequate, it quallfred that conclusion by reference to its finding of inadequacy repor':ed in the main report. FEMA SER, TAB II, pp.
24, 25, 29~30 (RA at 1654, 1655, 1659-60). Similarly, FEMA qualified it conclusion that the Petition did not sustain its assertion concerning a lacx of coordination and prioritization with a reference to its finding in the main report. Id. pp. 43,
- 45. (RA at 1673, 1675)
E. The "Interim Director's Decision' 16
On August 21, 1987, Regulation issued ar. "Interim Director'the NRC's D 2.206" which addressed the s Decision Under 10 C.F.R.
2.206 request flied by MassPirg and which is the subject matter of the Petition fo the decision, r Review. In the NRC denied the request for the initiation of '
enfor7ement proceedings "in regard to the (Pilgrim) radiological emergency response plan" and "in regard to the cont i
~
issues." slip at 35-36 (RA at 1715-16). a nment It stated that "(a) final Director's Decision regarding management issues cannot be rendered until the management deftciencies have bee n suitably addressed by the Itcensee and the staff completes s it assessment."
Id. at 11 (RA at 1692). It, on the request thus, deferred ruling to management for the initiation of enforcement action regard in issues, stating th,at that portion of the M assPirg ,
petition would "be addressed in a subsequent fin l d id.[13] a ecision."
The rationale given by the NRC for its Augu t s , 1987 decinion to deny the request for the initiation of with regard to the radiological emergency plans was as actionenforcem follows:
the seven issues in offsite emergency each of ng raised planniIn information in the Petition did not sustain e thein Petitionerc'
_the time (latecontentions 1986) when compared to th
-~ the Petition was revtewed.e record ...
~
at 13.
t the August As 21,is1987 discussed at greater length at pp ;
decision by the NRC was .
, infra, the request that enforcement proceedings bits final deciston on ~
{
to emergency planning and reactor safetysues. ise initiated with regard {
17 1
.--,e . --
On the basis that FEMA's analysis of the Petition's specific issues did not sustain the contentions, this portion of the Petitioners' request is dented.
Id. at 14 (RA at 1695)(emphasis supplied). The NRC did acknowledge that FEMA had agreed with "the general thrust of some of the conclusions of the petition" and that FEMA's own "Self-Initiated Review," issued on August 4, 1987, had found offsite planning and preparedness for Pilgrim to be inadequate, but it
- did not indicate what, if any, weight it gave to these FEMA conclusions in its decision to deny the request for the initiation of enforcement proceedings. Instead, it stated that "the emergency planning issues identified by FEMA are matters of serious concern" and that "(t]he determination whether to restart the Pilgrim plant will involve, in necessary part, consideration of the resolution of emergency planning issues identified by FEMA." As regards the reactor containment safety issues, the NRC concluded
- j the Petitioners have not presented sufficient evidence to indicate that the Ptigrim Station should not operate while risk-reduction improvements are being considered.
That is, there is not suf ficient evidence of either design flaws at Pilgrim or high risk to warrant a Show Cause Order for the plant to remain closed or to suspend the operating Itcense.
Id. at 34 (RA at 1714). This conclusion was premised upon findings that: 1. all of the reactor containment issues raised in the internal NRC analysis relied upon in the Petition had been resolved, Id. at 21-26 (RA at 1702-07); 2. design differences i
between the Chernobyl reactor and those in the United States
! (particularly Ptigrim) indicate that Pilgrim is not vulnerable to 18 I
r i
' l the type of accident that occurred'at the Che.rnobyl reactor M . I at 26-29 (RA at 1707-1710); and 3. that the results of various studies confirm the "overall conclusion of low severe accident i risk at the Pilgrim utility" M . at 32 (RA at 1713). !
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l III. STANDARD OF REVIEW
\
The standard of review against which the NRC's Interim Director's Decision is to be assessed is the standard set forth l in Section 706(2)(A) of the Administrative Procedure Act. Lorton
, v. NRC, 785 F.2d 1038, 1042 (D.C.cir. 1986)("The NRC's denial of' a request for a show cause order will be upheld as long as all the necessary factors were considered, and provided that the i
statement of reasons given permits a rational understanding of the basis for the decision." (emphasis in original and quotes omitted)). The NRC's action is to be upheld only if the Court 1 1
finds that it was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.
706(2)(A). Although the NRC's "decision is entitled to a l
presumption of regularity .... that presumFtton is not to shield (its) action from a thorough, probing, in-depth review."
4 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402.
415 (1971). The Court must determine "whether the decision was based on a consideration of the relevant factors and whether i
there has been a clear error of judgement." Id. 401 U.S. at 416.
1 1
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s IV. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW A. Whether The NRC's Refusal To Initiate Enforcement Action With Respect To The State Of Emergency Planning And Preparedness For An Accident At Pilgrim Was Arbitrary, Capricious, Or An Abuse Of Discretion Where FEMA Had Found Such Planning And Preparedness To Be Inadequate And The NRC Did Not Explain Why, Notwithstanding The FEMA Finding, It Did Not Believe That Enforcement Action Was Necessary B. Whether The NRC's Refusal To Initiate Enforcement Action With Respect To The Adequacy Of The Pilgrim Reactor Containment i
Structure Was Arbitrary, Capricious, Or An Abuse Of Discretion Where The NRC Failed To Address Material Evidence And Provided No Explanation Of Its Co'nsideration, If Any, Of The Evidence C .
Whether An "Interim Decision" By The NRC !
Denying The Initiation Of Enforcement Action i
With Respect To Emergency Planning And Reactor Safety Issues Is A Final Action For i Purposes Of 5 U.S.C. 704 Where The NRC l Deferred Action On Whether To Initiate Enforcement Action With Respect To A Third '
Issue, Adequate Management D. Whether A Decision By The NRC To Deny A Request To Initiate Enforcement Action Filed Pursuant To The NRC's Regulations Is Subject To Judicial Review
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V.
SUMMARY
OF ARGUMENT The NRC is required by law to assure that the state of emergency planning at nuclear power plants "will ... provide adequate protection to the health and safety of the public," 42 U.S.C. 2232(a), and under its own regulations, the NRC is required to weigh the findings of FEMA in any finding it makes with respect the adequacy of offsite emergency planning. 10 C.F.R. 50.54(s)(3). In its refusal to 1 ittate the requested enforcement action with respect to the inadequate state of emergency planning as requested by MassPirg, the NRC gave no weight to the finding by FEMA, the federal agency with the acknowledged expertise in such matters, that the state of emergency planning for Pilgrim was not adequate to provide a reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency at
[ pilgrim. Nor did it explain its action. Thus, the NRC's refusal to initiate enforcement action with respect to the inadequacies i
in the state of emergency planning / preparedness at Pilgrim was
, arbitrary, capricious, and an abuse of discretion.
Further, the 2.206 Petition ratsed issues concerning the adequacy of the NRC's assessment of the risks posed by pilgrim's reactor. It set forth evidence in support of its conclusion that t
the NRC had underestimated the risks posed by pilgrim and that the plant should be shut down pending remedial modifications.
1 The NRC did not address this evidence in its decision and, thus, no determination can be made whether or not Hi NRC constdered 4
22
the evidence. The NRC is, however, required to provide an expanation that would allow such a determination. Its failure to i
do was arbitrary, capricious, and an abuse of discretion, j The NRC's "Interim Director's Decision" is a final action t
for purposes of the Administrative procedure Act. Agency actions l
are to be considered "final" for purposes of judicial review when i
. "the process of administrative decisionmaking has reached a stage i where judicial review will not disrupt the orderly process of l adjudication and ... legal consequences will flow from the agency action." Port of Boston Marine Terminal Association v.
Reder1aktiebolaget Transatlantic, 400 U.S. 62, 71 (1970). In its own words, the NRC has declared its action with respect to the request for enforcement action on the subjects of emergency l i
planning / preparedness and reactor safety to be final. The NRC I t
will not give any further consideration to Masspirg's request for
{
enforcement action on these subjects. Substantial legal consequences adverse to the interests of MassPirg and the Commonwealth flow from the NRC's decision and judicial review is 1
now necessary to protect those interests.
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s VI. ARGUMENT A. The NRC's Denial Of The Request To Initiate Enforcement Proceedings With Respect To P11 grin Emergency Planning and Preparedness Was Arbitrary, Capricious, An Abuse Of Discretion, And Otherwisa- not In Accordance With Law The NRC's decision to deny MassPirg's request to init.iate enforcement proceedings in regard to emergency planning and preparedness for an accident a Pilgrim should be reversed. An administrative agency is required to base its actions on a 1
consideration of all of the relevant factors and to provide an explanation of its dectstons which include a "rational connection betweer. the facts found and the chotees made." Motor Vehicle Manufacturers Assn. v. State Farm Mutual Insurance Co., 463 U.S.
29, 43 (1983)(quotations omAtted); Lorion v. NRC, 785 F.2d 1038, 1042 (D.C.Cir. 1986)("an agency has a duty to consider all the evidence, and to explain its decision fully"). In its decision, the NRC did neither. Although clearly required to base its findings as to the adequacy of offsite emergency preparedness on the "findings and determinations" of FEMA, 10 C.F.R.
50.54(s)(3), the NRC arbitrarily gave no consideration to FEMA's August 4, 1987 finding that the state of offsite emergency preparedness for Pilgrim was inadequate. It acknowledged the existence of the FEMA finding, but arbitrarily did not consider it in its decision on the enforcement request. No explanation was given for the f ailure to consider the FEMA finding and there is no connection, rational or otherwise, between the FEMA finding 4
l 24
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that planning and preparedness are inadequate and the NRC's decision to withhold enforcement action. As such, the NRC's decision was arbitrary, capricious and an abuse of discretion.
The Court should reverse the NRC and order it to institute the requested enforcement proceeding with respect to the state of emergency planning and preparedness at Ptigrim.(14] 5 U.S.C.
706(1)("reviewing court shall -- (1) compel agency action unlawfully withheld or unreasonably delayed").
The requirement that the NRC give consideration to the findings of the expert federal agency, FEMA, in reaching determinations with respect to the adequacy of emergency planning and preparedness is embodied in the agency's own regulations. 10 C.F.R. 50.54(s)(3). It has the force of law. United States v.
Nixon, 418 U.S. 683, 695 (1974); Center for Auto safety v. Dole, 828 F.2d 799, 803 (D.C.Cir 1987). The NRC promulgated this regulation because it believed that assuring adequate emergency preparedness was essential to its fulfillment of its statutory mandate: the protection of the public health and safety. 45 l
Fed. Reg. 55,403, 55,404 (1980)("adequate emergency preparedness I is an essential aspect in the protection of the public health and safety"). The requirement is also incorporated in the Memorandum l of Understanding entered into by the NRC and FEMA in response to a Presidential Directive. Memorandum of Understanding, II
- 14. At the very least, the Court should remand the matter to the NRC with instructions to explain why such proceedings are not necessary to protect the public health and safety in irght of the FEMA findings.
1 25 i l l
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("the NRC responsibilities for radiological emergency preparedness are: ... 3. To review the FEMA findings and determinations as to whether offsite plans are adequate and can be implemented.").
In determining whether the state of emergency preparedness for a plant is adequate, Section 50.54(s)(3) of the NRC's regulations provides that:
The NRC will base its findings on a review of the FEMA findings and determinations as to whether State and local emergency plans are adequate and capable of being implemented, and on the NRC assessment as to whether the licensee's emergency plans are adequate and capable of being implemented. ...
10 C.F.R. 50.54(s)(3). Although the NRC does have i
decisionmaking authority on the question of whether the state of emergency preparedness for a pl' ant is adequate or requires enforcement action, it must review FEMA's findings and determinations in its exercise of this authority.(15) County of Rockland v. NRC, 709 F.2d 766, 770 (2nd Cir.) cert. denied 464 U.S. 993 (1983).
That the NRC did not consider, much less base its decision
, upon, FEMA's August 4, 1987 finding of inadequacy is plain from the terms of the decision. The decision to deny MassPirg's request was explicitly made on one basis: that in it's July 29, l
1987 report on the issues raised in the Petition, FEMA had "found that the information in the Petition did not sustain the i
- 15. Indeed, in NRC licensing proceedings, "a FEMA finding
- will constitute a rebuttable presumption on questions of adequacy l and implementation capability." 10 c.F.R. 50.47(a)(2)(emphasis supplied).
! 26 i
4
Petitioners' contentions when compared to the record at the time (late 1986] the Petition was reviewed." Slip at 14 (RA at 1695)(emphasis and bracketed material added). FEMA's August 4 report and finding are referenced and the NRC alluded to an intention to give consideration to the FEMA finding of inadequacy at some time in the future, but the NRC's decision on the
, MassPirg request was made "notwithstanding" this information.
Id.
This failure of the NRC to consider the August 7, 1987 FEMA finding of inadequacy in its decision on MassPirg's request for enforcement action should not be countenanced by this Court. The NRC had an obligation to consider all relevant information in the administrative record. Oystershell Alliance v. NRC, 800 F.2d 1201, 1204-05 (D.C.cir. 1986); in Re Three Mile Island Alert, Inc., 771 F.2d 720, 732 (3rd Cir. 1985).
The fact that FEMA devoted it attention to its own "Self-Initiated Review" and did not consider information obtained after November, 1986 in its analysis of the issues raised in the Petition does not excuse the NRC's failure to consider all of the a
i Information it had available when it made its decision. FEMA had ,
earlier explained how it intended to proceed in its review of the emergency planning issues for Pilgrim. RA at 1395. The NRC had I i
the authority to resolve the issues presented in the Petition and in the exercise of that authority it was required to consider all
. of the information available. That information included FEMA's agreement with the "general thrust" of the basis for the Petttton 27 1
a and its finding of inadequacy based upon information considered in its "Self-Initiated Review." Slip at 14 (RA at 1695).
While there is precedent to the effect that the NRC is not strictly bound by "FEMA findings and determinations" and that it may, after consideration of specified factors, determine that, notwithstanding a FEMA finding of inadequacy, no enforcement
, action is necessary, this precedent does not suggest, much less hold, that the NRC need not consider FEMA findings. County of Rockland v. NRC, supra, 709 F.2d at 775-77. The NRC is, as any 1 other agency, required to "examine the relevant data and articulate a rational connection between the facts found and the choices made." Motor Vehteles Manufacturers Assn v. State Farm Mutual Insurance, supra; Oystershell Alliance v. NRC, supra;.
The NRC decision involved in _C_ounty of Rockland v. NRC, supra, is illustrative of the required decisionmaking process:
consideration of the relevant factors and information and an ,
explanation of the chotees made. See Consolidated Edison Company (Indian Point, Units 1 and 2), CLI-82-38, 16 N.R.C. 1698 (1982). l There, after careful consideration and weighing of the factors i
I i
prescribed in 10 C.F.R'. 50.54(s)(2)(11) - "the relative significance of the deftetencies, whether adequate interim compensating measures have been or will be taken promptly and I
whether there are additional compelling reasons for continued operation" - , the NRC reviewed the FEMA findings (16) and 1
J
- 16. It should be noted that the FEMA findings involved in l the Rockland County case were much more optimistic than those i (continued...) l 4
28 '
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" oncluded "that, on balance, no enforcement action should be taken at that time." County of Rockland v. NRC, supra, 709 F.2d at 776-777. In those circumstances, the Second Circuit held that the NRC did not act arbitrarily, capriciously, not in accordance with law or abuse its discretion by declining to initiate enforcement action notwithstanding a FEMA finding of inadequacy. Id. Those circumstances are not present here. The NRC, here, arbitrarily ignored the best expert information available to it on a central aspect of the MassPirg Petition and on an issue essential to its statutory mandate to assure the pubite health and safety. As such, the decision was arbitrary, capricious, an abuse of discretion and contrary to law. It should be reversed, l B. The NRC's Denial Of The Request To Initiate Enforcement Proceedings With Respect To Pilgrim's Reactor Containment's Safety Was Arbitrary, Capricious, An Abuse Of Discretion, And Otherwise Not In Accordance With Law The NRC's decision to withhold the initiation of enforcement action in regard to the safety of Pilgrim's reactor containment structure should be remanded. The NRC did not consider all of j the relevant evidence nor did it provide an explanation of its decision that permits "a rattonal understanding of the basis for 1
4 16(... continued) l involved here. As stated by the NRC, "FEMA has concluded that i the remedial actions that have been accomplished and those scheduled in'the next few months constitute offstte plans that will be feasible and capable of implementation." Consolidated Edison Company (Indian Point, Units 2 and 3) CLI--82-38,16 NRC 1698, 1702 (1982). No such optimism ts present in the cresent FEMA evaluation.
29 l
A the decision." Lorion v. NRC, supra, 786 F.2d at 1042. (quoting from consolidated Edison Company (Indian Point Units 1, 2, and 3)
CLI-75-173, 175 (1975), in a description of the requirements for a valid NRC decision to deny a 10 C.F.R. 2.206 request). The decision makes no reference to the evidence set forth in the Petition that, as applied by the NRC, the analytical technique of
, probablistic risk assessment tends to produce underestimates of the risks of a severe accident and, therefore, that the threat to the public posed by the Pilgrim plant has been underestimated.
Compare RA at 992-94 (Pet'ition) with RA at 1711-13(NRC Decision).
Instead, the decision concludes without explanation that the results of certain studies "support our overall conclusion of low 4
severe accident risk at the Pilgrim utility." Slip at 32 (RA at 1713). There is no indication of whether the NRC considered the evidence in the Petition. It cannot be determined from the decision whether the NRC considered the evidence, but found
- either that it was not credible or that it was insufficient to 4
cast doubt on its assessment of the risk of a severe accident at i Pilgrim and, derivatively, on its assessment of the necessity of I
enforcement action, or whether it did not consider the evidence at all. The NRC was, however, required to provide an explanation l for its decision that would allow such determinations to be made.
Its failure to do so requires that its decision be remanded for an adequate explanation.
C. The NRC's "Interin Director's Decision" Is A Final Agency Action Subject To Judicial Review Under The Administrative Procedure Act 30 ;
A
a As interpreted by the courts, the "final agency action" requirement of the Administrative Procedure Act is satisfied where the agency's decisionmaking process has progressed to the point where judicial review will not disrupt that process and "legal consequences will flow from the agency action." Port of Boston Marine Terminal Association v. Rederijktiebolaget Transatlantic, 400 U.S. 62, 71 (1970). Applying this analytical framework to the NRC's "Interim Director's Decision," it is manifest that that decision constitutes a "final agency action" within the meaning of Section 704 of the Administrative Procedure Act. 5 U.S.C. 704.
The NRC has given its final word on the question of whether to grant the request for the initiation of enforcement action on either or both the emergency preparedness and the reactor safety issues. It declined to initiate the requested enforcement action with respect to either of these issues in an order which, under the NRC's interpretation of its regulations, became a "final action of the Commission" when the commission did not institute a re 4ew of that decision within twenty five days of its filing with the NRC's Office of the Secretary. ( RA a t 1681). Its notice of the decision lea'es no doubt but that with respect to the Petition these issues will not be addressed again:
The Director of the Office of Nuclear Reactor Regulation has determined that the Petition, with the exception of the Itcense management issue, should be denied. ... That portion of the Petition concerning licensee management will be addressed in a subsequent response, ld.
31
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- i It does not matter that as part of its statutory '!
responsibility the NRC is required to give continuing consideration to the adequacy of emergency preparedness and plant design and may, at some future date, consider the initiation of enforcement action on its own initiative in regard to these issues. County of Rockland v. NRC, supra, 709 F.2d at 775
. ("Otherwise, the Commission potentially could insulate itself from appellate review simply by labeling a decision as ' interim' or subject to reexamination." 709 F.2d at 775, n. 12). The i
question is whether the NRC's decisionmaking has reached a stage where judicial review will not interfere in the adjudicatory proct:s and where legal consequences flow from its action. Port of Boston, supra.
Here, the NRC's decisionmaking process has crossed that threshold. The decision to deny the request to initiate enforcement action in regard to emergency preparedness and/or reactor safety was one on the merits. It was not, as in Sierra club v. HRC, 825 F.2d 1356 (9th Cir.1987)(scheduling of hearing l and briefing) and Natural Resources Defense Council v. NRC, 680 r
F.2d 810, 815-817 (D.C.? t r.198 2)(imposition of alternative, l "legislative" procedures), a procedural order. Judtetal review
, of the NRC's decision on emergency planning and reactor will not e'
interfere with the NRC's consideration of the request for the ,
i 1
^ initiation of enforcement action in regard to management issues '
i !
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o since the NRC did not consider them to be interdependent in its earlier decision.(17]
Moreover, as regards the request for the inattation of enforcement action with respect to emergency preparedness and reactor safety matters, the NRC decisionmaking process has been
. completed. There will be no further development of the record or i '
decisionmaking with respect to these issues. Thus, there will be no benefit to the Court as a result of a deferral of judicial review and no waste of judicial resources as a result of a
multiple, fragmented appeals on the same subject. Cf. Natural Resources Defense Council v. NRC, supra.
As regards the second prong of the analysis prescribed in Por_t of Boston, supra, substantial and tangible legal l consequences do flow from the N'RC's decision. The NRC has a .
I decided that it will not institute, at the Petitioners' request, enforcement proceedings with repect to emergency planning and reactor safety issues. The Petitioners thus have no access to a hearing. Bellotti V. NRC, 725 F.2d 1380 (D.C.Ctr. 1983).
i
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- 17. The commonwealth submits, however, that the issues ;
raised concerning the adequacy of BECo's management of Pilgrim add great weight to the emergency planning and reactor safety j i issues. Considered in the Inght of the questions regarding BEco's management, the case for enforcement action on the these two matters is more compelling. Emergency planning for a poorly managed and possibly unsafe reactor is of even greater importance to protecting the pubite. The decision to separate l
the issues may itself have been arbitrary. I 33 i
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VI. CONCLUSION WHEREFORE, for all of the forgoing reasons, the Commonwealth submits that this court should remand the NRC decision and order the NRC to:
, 1. Initiate enforcement action with respect to the issue of l emergency preparedness at Pilgrim, and
- 2. to consider all of the evidence on the issue of the safety of Pilgrim's reactor containment structure and to either initiate the requested enforcement action or provide a complete explanation of the reasons for a decision to withhold such j action.
i RCSPECTFULLY SUBMITTED, James M. Shannon l Attorney General of Massachusetts '
' ",Zwige %. M
' Assistant Attorney General Department of the Attorney General '
One Ashburton Place ;
4 Boston, Massachusetts 02108 l I (617) 727-1033 ;
1 l
1 Datedt January 11, 1988 1
J 34 4
t
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT II
)
MASSACHUSETTS PUBLIC INTEREST )
RESEARCH GROUP, et al., )
)
Petitioners )
)
- v. ) No. 07-1865
)
UNITED STATES NUCLEAR )
, REGULATORY COMMISSION, et al., ) l
)
Respondents. )
)
l PETITION FOR REVIEW OF A DECISION OF THE
! NUCLEAR REGULATORY COMMISSION i
STATEMENT OF PETITIONERS MASSPIRG ET AL.
In the interest of economy of both party and judicial resources,
?ettttoners MassPleg et al. join in the foregoing Brief of Intervenor CommonwealtE oT Massachusetts and adopt the arguments made and positions taken herein as their own.
i l
- hL J. /k.iY &&
William S. Abbott '~
/
Simonds, Winslow, Willis & Abbott ,
50 Congress Street .
Boston, Massachusetts 02109
) (617) 523-5520 J l
)s i
1 Dated: January 11, 1988 1
I i
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{ 704, Actions revieweble Agency action made reviewable by statute and Anal agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the Anal agency action. Except as otherwise expressiy required by statute, agency action otherwise Anal is Anal for the purposes of this section whether or not there has been prescrited or determined an tpplication for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requirss by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.
(Sept. 6,1966 P. L 89 554, i 1, 80 Stat. 392.)
{706. Scope of review To the extent necessary to decision and . si presented, the reviewing coun shall decide all relevant questions ." sa, tr.' pret constitutional and statutory provisions, and determine t' m anin,t or a pplicability of the terms of an agency action. The reviewing court shall (1) compel agency action unlawfully withh:!d or unreasonably delayed; and (2) hold unlawful and set aside agency action. Andings, and conclusions found to be-(A) arbitrary, capricious, an abua of discrc: ion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity:
(C) in excess of statutory juritdiction, authonty, or limitations, er 1 short of statutory right; 1 (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections )
556 and $57 of this title (5 USCS (( $$6 and $57} or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwerranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court, t i
In making the foregoing determinations, the court shall review the whole l
record or those parts of it cited by a party, and due account shall be taken of the rule cf prejudicial error. :
(Sept. 6,1966, P. L 89 554, i 1, 80 Stat. 393.) !
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0 2.308 Orderse ebew onese.
(d The Exechute Director for oper. '
ations during an emergemey as deter.
mined by the EDO. and Director of
- , , Nuclear Rosetor Regulauen. Director g _of Nuclear Material Safety and aste-hfs.Enforcement,Director. and Office Director.of Inspection Offlee I Administrauon as appropriate may I Wutute a proceeding to moduy. aus.
- d
,$er.medon or revoke as mayabelicense proper byor for such serv. ,
y on the licensee an order to show
use
<t) Allege which will:
the violadone with which i e
the ucensee is charged. or the poteo. l
. gauf hasardous conditions or other g,gge deemed to be suff*clent ground got the proposed actiorg is)Frovide that the ueensee may fue e
a written answer to the order under oath or affirmauon within twenty (30) ;
days of its date, or such other time as i anay be specified in the order. '
(3) Inform the lle*aaae of his right, within twenty (30) days of that date of the order, or such other time as may be specified in the order, to demand a hearingt t4) Spectly the lasues; and (3) state the effocuve date of the ;
order. 4 (t) A utensee may respond to an order to show cause by fulns a written {
answer under oath or affirmation. The ,
answer shall specifleauy admit or deny each sDestuen or cha.rge made in the order to show cause, and may set forth L~
the matlere of fmet and law on whach the ucensee rolles. The answer may desmand a hearing (c)1f the answer demands a hearing, the t'==tamaan wiu lasue sa order W "a* the tisas and place of bearing.
(d) An maswer or supulauen saay coasset to the entry of an order la substantially the foria proposed in the s orest to show eause.
(e) The esament of the innamaan to the entry of an order shad ocasutute a waiver by the lleensee of a heartas.
fladtnes of feet nad ecoelusions of law, and et au right le seek e==iaanma l
' ' and Juecial review or to sectest the I
/
- -- M&tdKy of the order in any foruna. '
' The order shau have the saane force
, and effect as at, orcee saade after heartas by a presiding offleer er the Counmisslea. .
3 u) when the asseuuv Darwier for Opnstaces, durtas na eme.vener as L. ;
estertabled by the EDO. er the Dtree.
ter of Nue3 ear Renesce Regulausa. Di.
'"ter of Nuclear Material Safety and Safeguards. Director. Off$t e of Inspec.
uon and Enfortement an. appropriate, finds that the pubile health, safety, or interest so requirse or that the viola.
tion is willful, the order to show cause '
may provide, for stated rescona, that the proposed action be teenpor1Lrily ef.
fective pending f.@er order.
(It FR 377. J62L 13. IN3. ma amerseed at at FR lelta. Soot,. 11.1943, 43 FR IH44. Apr.
II.1918. 43 FR 3240. Jan 17,1HC) i
1 j gtJe6 Regesete fee ades mader this amb. th'3 section has been received the Dt.
,,,,, rector of Nuclear Reactor Regulation. l
'.' "phg,'r 3 P "
N ar "" 8"I d8 ' I
lauen, Moctor of Meer Material spection and Enforcement, as appro.
Safety add Safeguards. Di m tor
- priate shall either lastitute the re.
Office of Inspection and Enforcement. Quested proceeding in accorde.ce with i as appropriate, to institute a proceed. this subpart or shall advise the person ins pursuant to 13.303 to modify. sus. who made the request in writing that !
pend or revoke a Ucense. or for such no p6 will k Mtuud in t other action as anay be proper. Such a whole or in part, with respect to his request shall be addressed to the Dt. "9, he, m .
rector of Nuclear Reactor Regulation. , r his Director of Nuclear Material Safety section Mth the ON of and Safeguards her. Ofnoe of In. the Secretar7. Within twenty five (38) e spection and Mmement as appro. days after the date of the Director's
, , ptiste and shall be fuod either: (1) 3F decision under this sect 4on that no ry to the M Ue Docuanent proceeding will be instituted or other l Room at 1717 R Street NW., Washing. action taken in whole or in part. the tea. D.C or (3) by mall or telegraan Commisalon snay on its own motion e nedressed to the Director of Nuclear review that decision, in whole or la Reactor Regulatlon. Director of Nucle
- part, to deternalne if the Director has at Material Safety and Safeguards. DI. abused his tiseretion. M review teetor. Office of Inspection and En* Mwer does not Hamit la my way either i otteenent, as appropriate. UA. Nucle' the Coaunission's supervisory power q ar Regulatory Coenatisaloa. Wash!ng. over delegsted staff acticew or the Conunission's power to consult with
% aC. M66. M mtuesta shall '
the staff on a formal or informal basis 1 L f ha constitute t$e " * ' 1 un this sects l l
N t le time after n l t'9uest pursuant to paragraph (a) of' C mm on review o e de-cialon under this section will be enter.
tained by the Comunission.
g) i l
- n. rn im . . .. m .a an.ca.o. a. a FR M940. July it. 1971; 48 FR flee 8. Nov.
l 6.19003 '
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Filed: December 1.19s'.
UNITED STATES COURT OF APPEALS for the FIRST CIRCUIT
)
MASSACHUSETTS PUBLIC INTEREST RESEARCH )
GROUP, INC. et al., )
)
Petitioners. )
) No. 87-1865
- v. )
)
UNITED STATES NUCLEAR REGULATORY )
COMMISSION, )
)
Respondent. )
i REPLY 51Eh10RANDUM OF INTERVENOR BOSTON EDISON COMPANY TO RESPONSES TO MOTION TO DISMISS Pending before the Court is a "Petition for Review' seeking judicial review of the declination of the United States Nut . t at Regulatory Commission (*NRC") to commence formal enforcement proceedings with respect to one of its licensees, Boston Edison Company. Both NRC and, upon allowance of its motion to inter-vene, Boston Edison Company have moved to dismiss the ' Petition for Review' on the ground that the agency action in question is not reviewable. Both the petitioners (hereinafter *MassPIRG') and the intersenor The Commonwealth of Massachusetts (' Common-wealth *) have responded to the motions to dismiss, each contending that the agency action is reviewable on account of an assortment of NRC pronouncements that, it is contended, serve to renounce, at least in part, the discretion conferred upon the NRC by Congress.
Boston Edison Company respectfully submits that these responses fail to demonstrate that the agency action in question is reviewable !
and, therefore, that the motions to dismiss should be allowed l l
- 1. INTRODUCTION j Upon the motions to dismiss and responses thereto, three questions are presented: 1 1
d.//1
- 1. Does MassPIRG contend that so much of DD 87141 as deferred action on so-much of the "Golden Petition *8 as raised the so-called "management issues
- is now before flee Court, and, if so, is it properly before the Court?
- 2. Can agency pronouncements that neithet mirror provi-sions in the agency's substantive statute nor amount to formally promulgated regulations effect the sort of prescriptiert of otherwise unfettered agency enforcement discretion requisite to reviewability of enforcement action denials under Neckler v. Chaney, 470 U.S.
821 (1985)?
- 3. Do the agency pronouncements up>n which Maa:PIRO and the Commonwealth rely supply the required curtailment of agency discretion (assuming any agency action could overcome the pre-sumption of non reviewability)?
II. THE "MANAGEMENT ISSUES" PORTION OF DD 37-14.
The Golden Petition premised its demand for NRC enforcement action on three grounds, denominated approximately as the ' con-tainment issues," the 'off-site emergency planning issues" and the
' management issues.' As to the first two grounds, the requested enforcement action was denied by DD 14. As to the third ground, however, DD-87-14 announced the deferral of any agency action pending the obtaining by tMe Director of additional informa-tion.8 The "Petition for Review' filed in this Court recognizes no distinction among these three aspects of the Golden Petition.4 If, as the literal language denotes, it is intended to bring the deferral 3
The agency action of which re view is sought is formally entitled Soston Edison Co. (Pilgrim Nuclear Power Station), DD 87-14, 26 NRC (August 21, 1987). The 'DD* issuance number signifies that it is a "Director's Denial
- of a petition for enforce-ment action laid under 10 C.F.R. I 2.206. By NRC convention, it is referred to by its issuance number.
'The request to the agency for enforces, ant action was submitsed by one William B. Golden et al., and has come to be referred to as the "Golden Petition.'
- DD-87-14, Slip Opinion 35.
- The "Petition for Review' filed in this matter asserts (first paragraph) simply that the petitioners 'hereby petition the Court for review of the final order of the UNITED STATES NUCLEAR REGULATORY COMMISSION entered on August 21, 1987 . . ,
which order denied Petitioners' request made pursuant to 10 C.F.R.
2.206(a) . . .
- 2 t _ _ _ _ _ _ _ _ _ _ _
of the ' management issues
- before the Court, the ' Petition for Review' would be, at least pro tanto, manifestly premature. This is the paint made in Point 6 of the ' Motion to Dismiss' filed by Boston Edison Company and amplified by Point lil(C) of the
' Memorandum of Boston Edison Company in Support of its Motion to Dismiss.*8 For its part, the Commonwealth is prep red to concede that the "management issues
- portion of DD-87-14 is not properly before this Court ' If that is so,7 then of course there is no contest, 1 i
MassPIRG, however, continues in its responses to ignore the differences between the three aspects of the Golden Petition and .
the different treatment afforded them by DD 87-14. Given this limitation, nothing contained in the section of the MassflAG Aesponse entitled "Final Agency Action responds to the conten-tion made by Boston Edison Company -- neither does the MassPIRG response disclaim any attempt to advance the "management issues" -
portion of DD-87-14 for judicial review in this Court at this time.
Since the ' management issues' portion of DD 87-14 is mani-festly not final, and given that the facial scope of the ' Petition for Review" includes that portion, it is in order for this Court to dismiss so much of the ' Petition for Review" as includes the
' management issues
- portion of DD 87-14.
'Both filed November 5,1987.
- Commonwealth of Massachusetts' Memorandum of Poinu and !
Authorities in Answer to the Motions of Respondents NRC, et al. :
and intervenor Boston Edison to Dismiss Petition for Review' I (hereinafter cited to the corrected version filed November 23, 1987 i as ' Commonwealth Aesponse') at 18: ' Review of that portion of the i NRC's action is not being sought here,' '
fit is not clear whether the Commonwealth purports to be l interpreting the ' Petition for Review" (in which case it cites no portion thereo' and, as noted above, its interpretation, thoesh sensible, is at odds with the words contained therein) or whether the Commonwealth in essence proposes to stipulate that the
' Petition for Review" doesn't mean what it literally says (in which case the only problem is that, not beint the proponent of the
' Petition for Review,' the Commonwealth has no power to stipulate away any aspect of it).
Memorandum of Petitioner in Opposition to Respondent's and Boston Edison Company's Motions ta Dismiss" (hereinafter ' Moss-PIRG Response').
- MassPIAG Arsponse at 3 6.
J r
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I Ill. REVIEWABILITY OF AGENCY ENFORCEMENT ACTION SHOULD NOT DEPEND UPON OR BE AFFECTED BY AGENCY
) PRONOUNCEMENTS !
} As both MassPIRG and the Commonwealth recognize, the issue ,
d governing the reviewability of agency denials of enforcement action ,
following Chanty is whether 'the substantlyt statute has provided ;
t guidelines for the agency to follow in exercising its enforcement i powers.* 30 This is essential, for, as they concede, the ultimate
, issue is whether
- Congress has limited sa agency's discretion.*H That, at core, the issue is one of legislative latent is underscored by this passage from Chancy: ;
'[l)n establishing this presumption in the APA [agalast [
reviewability), Congress did not set agencies free to <
l disregard legislative direction in the statutory scheme j that the agency administers. Congress may limit an '
agency's exercise of enforcement power if it wishes, !
either by setting substantive priorities, or by otherwise circumscribing an agency's power to discriminate among issues or cases it will pursue."
5 470 U.S. at 333 (emphasis added).H The overall pattern perceived E j by the Chanty Court is simple: in one statute (the APA) Congress >
l declared a general rule of non reviewability which is to prevail !
) except where Congress has ordained a special exception la the particular statute in question.
So viewed, the notion that an agency might, by its o w n ;
j pronouncements, alter the situation decreed by Congress, and in !
- I effect legally circumscribe its own discretion in a fashion contrary ;
! to that ordained by Congress, is at best suspect. Indeed, apart :
! from the concept of ' legislative regulations * -- i.e., agency action !
- to ' fill in the blanks' in a statute such that, once filled, the filled- l in material has the force of law equally with a statute . the !
notion that the agency itself might alter discretionary lines drawn i i by Coasress is contrary to the entire construct of administrative i law. Where, as here, neither MassPIRG nor the Commonwealth l j esen claim any statutory basis for reviewability or any basis in a l 1 formally promulgated NRC regulation, the issue should end.
Nonetheless, each attempts to persuade this Court that the Congressionally-imposed presumption of non-reviewability has been j overcome by lesser NRC pronouncements. For the efficacy of such l l'MassPIAG Atsponst at 7, quoting Chaney, 470 U.S. at 333
) (emphasis added).
1 HCommonwealth Atsponst at 11 (emphasis addeo).
l t 1 1 nQuoted by the Commonwealth Atsponse at l'o.
l l
e pronouncements, each relles on the opinions of the Court of Appeals for the D.C. Circuit in Padula v. Webster, 322 F.2d 97 (D.C.
Cir.1987), and Center for Auto Safety v. Dole, 828 F.2d 799 (D.C.
Cir. 1987). Padula may be rather quickly laid to one side: that case did not involve the reviewability of a denial of agency enforcement action and it did not find an agency pronouncement adequate to constitute a binding agency limitation (at issue for other reasons). Necessarily, therefore, Padula does not stand for the proposition that agenc that Congress has withheld.1y pronouncements can create reviewability i Center for Auto Safety is more on point, but, we submit, wrongly decided.34 As the Court in that case noted, the governing statute was entirely permissive. 428 F.2d at 801. However, the ,
Court held that by a duly promulgated formal regulation, the 1
agency in question had made commencer ent of the specific petitioned for enforcement action mandatory in the event of the 1 existence of an objectively determinable "fact.' /d. at 803. Indeed, ,
j the Court held it to be (and to be "undisputed," 14. at 401) that: '
- (49 C.F.R.] { 552.8 itself rules out consideration of other discretionary facters like 'whether agency re-4 j 88Padula, though arising in a different context, does reveal the proper reluctance with which a Court will even consider l
holding informal agency pronouncements to amount to self-imposed l abdications of delegated discretion I 'Fronouncements that impose no significant restraints on j
the agency's discretion are not regarded as binding norms. As a general rule, an agency pronouncement is
! transformed into a binding norm if so intended by the agency. . . . [A}sency intent, in turn, is ' ascertained by an examination of the statement's language, the context, i and any available extrinsic evidence.
822 F.2d at 100, citing Doc v. Nampton, 566 F.2d 265, 281 (D.C.
3 Cir. 1977). As will be seen, permissive statements, predictive l statements, qualified statements and statements intended to signify I agency predilection in the case of agency-directed initiative fall l short of creating "binding norms.'
i j
3*The Commonwealth Response contains the assertion that i
- [n)otably neither the NRC nor BECo have argued that this court )
- should not adopt the holding of the Center the Auto Safety Case.'
/d. at 16. If intended to assert a prior concession by Boston
, Edison Company of the rectitude of the Center for Auto Safety analytical approach, the assertion is false: Boston Edison Company J
l pointed out in its ' Memorandum" (at par,e 12 n.14) that "[a)ssuming i Center for Auto Safety to be faithfut to Chaney, it sids the pre-sent petitioners naught . . . ." This is hardly the asserted concession.
]
I
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I sources are best spent on this violation or another' or i
'whether the particulat enforcement action requested best fits the agency's overall policies."
828 F.2d at 803. Given this, the Court held, the policy behind Chanty was no longer operativa, and a reviewing Court was both empowered and obligated to resiew not only the stated basis for the agency action but also the adequacy of the underlying record to support that action."
In assessing the fidelity of Center for Auto Safety to the Chanty construct, one must consider this: What would the Court l of Appeals for the D.C. Circuit have written had the agency in that case not issued the regulation upon which the Court of Appeals hung its decisional hat? Necessarily, the Court of Appeals would j have denied reviewability, noting (as required by Chancy) that '
Congress has declared a presumptive non-reviewability, that Congress has not overcome this non reviewability in that particular case by anything contained in that particular statute, and, there-fore, that review of the challenged action in that case was therefore contrary to Congressional intent. The latent of Congress is not changed by a subsequent agency pronouncement."
i .
HThe Court of Appeals in Center for Auto Sa/ tty arrived at this conclusion by considering the result had CongNss itself in-cluded the mandatory prescription the Court found in the agency's regulations: "Indeed, if the ' reasonable possibility' standard had appeared in the Motor Vehicle Safety Act itself, there could be no i
doubt that it provided a ' judicially manageable' review standard."
1 718 F.2d at 803. More to the point: had Congress itself enacted such a provision, it would have been clear that Congress intended to withhold from this agency the more usual discretion the exis-tence of which signifies a correlative Congresshnal intention to commit the enforcement decision to the agency (and thus to pre-clude judicial review) -- the key in either case being the intent of Congress. The manifest fact, however, is that Congress did not in-clude this provision in the governing traffic statute and there is thus no basis for concluding that Contress intended that agency's enforcement decisions to be treated differently than it intends l agency enforcement decisions to be treated generally (perforce the l presumption in the APA). '
l 161t is settled law . . . that 'an agency cannot create through !
its implementing regulations a right of review withheld by the I underlying statute." Center /or Auto Safety v. Dolt, 828 F.2d 799, 819 (Bork, J., dissenting) (quoting Harrison v. Bowen. 815 F.2d l 1505,1517 (D.C. Cir.1987).
- 1
IV. THE NRC PRONOUNCEMENTS UPON WHICH MASSPIRG AND THE COMMONWEALTH RELY DO NOT BIND NRC'S ENFORCE-MENT DISCRETION AND THEREFORE DO NOT SUFFICE TO CONVERT ITS ENFORCEMENT INITIATION DECISIONS INTO REVIEWABLE ORDERS Between them, MassPIRG and the Commonwealth rely upon a number of NRC pronouncements for their contention that NRC has sufficiently renounced its Congressionally-conferred alscreticn as to make its decisioes reviewable. None of these pronouncemeats .. a formally promulgated regulation, all are taken out of context.
Moreover, nothing to which either MassPIRG or the Commonwealth points even vaguely hints at a Commission determination to limit its own enforcement discretion. Nor is the record silent the '
Commission has demonstrated that it regards the ability to make enforcement decisions based on nMtters of
- policy" -- including such factors as employment of resowces and regulatory efficien-cy -- both highly important and jealcutly guarded. Even conceding i the analytical correctness of an approach such as that employed in Center for Auto Safety, therefore, the case for its app!!cability to the NRC has not been made and cannot be made.
A. THE INDIAN POINT DECISION NEITHER PURPORTS NOR EFFECTS ANY CONSTRICTION OF NRC DISCRETION.
Both MassPIRG and the Corhmonwealth point to the Comrnis-sion's decision in Consolidated Edison Co. (Indian Point. Units I, 2 and 3), CLI-75-3, 2 NRC 173 (1975).17 There, disposing of an appeal (which the Commission no longer permits)l' from the denial by one of its Directors of a citizen petition for the commencereent j of enforcement action, the Commission took the opportunity to announce some of the standards it employs for reviewing such
- actions. Presumably there is nothing but praise due the Comreis-sion for having such standards or for revealing them to the pubic; neither, however, signifies a Commission determination to limit either its enforcement discretion or that of its subordinste
- officials. This is confirmed by the factors enumerstad
- after those j that one would always espect, the Commission articulates such
! inherently discretionary items as 'whether inquiry appropriate to the facts asserted has been made' and 'whether the Director's i
- decision is demonstrably untenable on the basis of all information l available to him.' 2 NRC at 175. Moreover, the Commission notes j carefully with its next breath that these factors are applied taking i into account 'the Commission's necessary policy control" Id. Such policy items, of course, include questions of resource allocation, i MassPIRG Response at 9-l0; Commonwechh Response at 7 9, 15-16, 1
l'See 10 C.F.R. I 2.206(cX2), as amended by 42 Fed. Reg. !
36,240 (July 14,1977). l l
l 1
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I probability of success, and efficiency of alternative actions, all as '
the very same Commission articulated in a slightly different but closely related context in Boston Edison Co. (Pilgrim Nuclear Power l Station), CLI 82-16,16 NRC 44 (1982), a/fd sub nom. Bellotti v. 1 NRC,723 F.2d 1380 (D.C. Cir.1983):
- [The Commission) believe(s) that public health and safety is best served by concentrating inspection and i enforcement reaources on actual field inspections and related scientifid and engineering work, as opposed to the conduct of legal proceedings. This consideration ,
calls for a policy that encourages licensees to consent :
to, rather than ito) contest, enforcement actions. Such a policy would ba thwarted if licensees which consented to enforcement actions were routinely subjected to formal proceedingt possibly leading to more severe or different enforcement actions. Rather than to consent and risk a hearing on whether more drastic relief was called for, licensees would, to protect their own inter-ests, call for a hearing on each enforcement order to i ensure that the possibility of less severe a: tion would also be :onsidtted. The end result would be a major '
diversion of agency resources from project inspections and engineering investigations to the conduct of hear-ings.*1' Plainly the Commission in Cl.1-75-8 Intended nothing in its words to effect a constriction of its discretion. Given that none of the factors enumerated by the Commission in that decision would, in any given case, compel the allowance of a 2.206 petition, plus that the factors enumerated by the Commissien were explicitly non-exclusive, nothing in its words even purport any curtailment of
, enforcement discretion, much less the
- ruling out* of discretionary factors found in Crnter for Auto Sa/ety or even the 'significant restraints
- required to meet the Padula test.** Finally, given that, I'la CLI 82-16 the issue was whether, once the Commission '
j has commenced enforcement action on its own initiative, the scope of any ensuing hearings is limited to the enforcement action i proposed by the agency or extends beyond to suggestions of more i drastic sanctions. After holding that it has the power to define ;
the limits of the proceeding (on which ruling it was affirmed by !
the Court of Appeals), the Commission employs the quoted language to explain why it exercises this power as it does.
- The Commonwealth essays an argument to the effect that section 2.202 of the Commission's regulations requires the grant of :
a section 2.206 petition under certain circumstances. Common-
) wealth Response at 8 n.4. A review of section 2.202 reveals that it, like the Commission's statutory grants and all of its regulatory ,
pronouncements, is entirely permissikt. The citation to section l I
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as this as well as numerous other courts have previously recog-nized, Congress intended by its enactment of the Atomic Energy Act a "regulatory scheme [that] 'is virtually unique in the degree to which broad responsibility is reposed in the administering ,
agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objective,"38 surely some less vague, more explicit Commission action will be required before a Court will lightly usume that Congress's regulatory scheme has been tinkered with. As a basis for reversing the presumption of non reviewability, CLI-75-8 is way short of the mark.
B. THE "PETITION FOR EMERGENCY ACTION" DECISION EFFECTS NO ABANDONMENT OF NRC DISCRETION.
MassPIRO next pays fleeting attention to the pronouncements of the Commission in a policy statement issued in Petition for Emergency Action, CLI-73 6, 7 NRC 400 (1978). Little more ;
attention is required to see that this pronouncement does not even approach the sort of discretion limitation that might rebut the presumption of non reviewability. At issue was the rather extra-ordinary request that, among other things, the Commission shut down all or2oing licensing proceediligs, suspend all outstanding construction permits and operating licenses, and order the im- t 2.202 in CLI-75-8 (2 NRC at 174), apparently intended to denote l the reference to an ' order to show caus# as one particular type of
' enforcement device -- and the type of device that would have been j appropriate had the director concluded that the matters asserted in the 2.206 petition in that instance warranted further enforcement ,
action, has apparently been misinterpreted by the Commonwealth as :
referring to some non-discretior,ary duty imposed upon the agency ,
by its regulation. l L
Elsewhere, the Commonwealth adverts briefly to 10 C.F.R.
i 50.54(s). Commonwealth Response at 17. If it is intended by i this reference to suggest that that regulation constrains the Com- l mission's enforcement discretion, then the words of the regulation !
l quickly rebut the assertion: 'lln the circumstance described there- l
, in.] the Commission will determine whether the teactor shall be shut down until such deficiencies are remedied or whether other l enforcement action is appropriate." 10 C.F.R. I 50.54(sX2Xil). The Commission has held that section 50.54 does not mandate any particular enforcement action, Consolidated Edison Company of New York (Indian Point, Unit 2), CLI 83-16,17 NRC 1006 (1933), as has the only Court that to our knowledge has considered the question, County of Rockland v. NRC, 709 F.2d 766, 771, 775-76 (2d Cir.
1983).
Public Service Company of New Hampshire v. NRC, 582 F.2d 77, 82 (1st Cir.1978), quoting Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir.1968).
i 9-l
mediate shut down of all operating reactors. The Commission began its response with a review of its enforcement powers, which is the language that MassPIRO has quoted. Neither the context nor the permissive language used suggests that the Commission had even the remotest notion of constricting its enforcement discretion by i
this pronouncement.88 To call CLI-78 6 'la) broader restraint on agency discretion.ss is to see what doesn't exist.
i C. APPENDIX C DOES NOT LIMIT COMMISSION DISCRE- !
TION.
Finally, the Commonwealth points to 10 C.F.R., Part 2, i Appendix C as assertedly rendering the initiation of enforcement proceedings mandatory in some undescribed set of cases.s4 A j
review of Appendix C belies the apertion.
Appendix C is not a regulation. It is, rather, a statement of policy issued to "explain
- how the Commission employs its resources I and exercises its enforcement powers 8' In the main, the Policy i l
Statement explains what is contained in the procedural regulations, manifesting an application strictly to Staff-initiated enforcement. !
l Nothing addresses the conditions under which a 2.206 petition will I be granted or denied -- or the procedure to be followed on 2.206 l petition review -- for 2.206 p:titions are neither mentioned nor
- within the scope of the Policy Statement. Without exception, the (
) Policy Statement describes NRC, authority in the inclusive and !
- permissive senses; contrary to the assertions of the Commonwealth, j l
l H*lf, in the Commission's Judgment. the public health end -
safety so requires, the Commission may take action to revoke, sus-j pend or modify licenses, impose civil penalties, or issue cease and .
< desisi orders." 7 NRC at 404 (emphases added). '
H hfassPIRG Response at 10.
l
Commonwealth Response at 17.
! l 8'*The following statement of general policy and procedure !
explains the enforcement policy and procedures of the U.S. Nuclear ll Regulatory Commission and its staff in laitiating enforcement actions, and of presiding officers, the Atomic Safety and Licensing Appeal Boards, and the Commission in reviewing these actions.' i IGeneral Statement of Policy and Procedure for NRC Enforcement Actions.10 C.F.R. Part 2, Appendix C.
seSee (d., section ll(B) ("Procedural Framework'), which refers exclusively to Staff-initiated Notices of Violation and Orders to
- Show Cause, and makes not a single mention of citizen petitions
~
under 10 C.F.R. I 2.206.
l.
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l nothing in the Policy Stattenent can fairly be read is an abdication of enforcement discretion in any given situation.87 Y. MISCELLANEOUS POINTS.
The petitioners round out their attempt to demonstrate that which doesn't exist with an assortment of miscellaneous points that are also urged to be sufficient to warrant this Court's abandonment of the presumption of non-reviewability of NRC enforcement '
declinations. None is.
A. THE LORION DECISIONS ARE NOT AUTHORITY FOR THE REVIEWABILITY OF NRC ENFORCEMENT DECI-SiONS.
MassPIRG relies on Lorion to support its contentions before this Court. As noted in Boston Edison Company's initial "Memoran-
! dum," Lorion involved a decision of the Supreme Court holding that, if NRC enforcement declinations are reviewable at all, they are reviewable in the Courts of Appeals as opposed to the District
, Courts. The Court, however, did not decide that 2.206 denials are i appealable at all; rather, noting its Chanty decision of the same
! date, the Court remanded the matter to the Court of Appeals for the D.C. Circuit for a consideration of reviewability rel non. On remand, the Court of the Appeals eschewed discharging this man-date in favor of simply affirming. the NRC's decision on the basis i that, If reviewable, the agency action clearly required affirmance. ;
Neither opinion determined the issue now before this Court; both, rather, explicitly avoided it.88 in this Court, nonetheless, MassPIRG strains to find in the remand opinion in Lorion authority for the proposition that the
, Chanty result does not appiv to NRC. MassPIRG strings together j portions of language drawn from the opinion in Center for Auto i
1 8?
Apparently the Commonwealth reads a statement primarily addressed to licensees to the effect that "enforcement action will l
be taken whenever the Commission determines it to be appropriate
- as somehow satisfying the
- mandatory action" prescription found by the Center for Auto Safety Court to be an adequate substitute for a Congressional restriction on presumptively unfettered agency enforcement discretion. Such a reading can be accomplished only by verbal legerdemain.
8'Indeed, the only apparently controversial issue in Lorion at the Supreme Court was whether a remand to the Court of Appeals 1 wu necessary in view of the clear applicability of the Chanty principles to NRC, an agency that has traditionally marked the extreme of agency's enjoying wide discretion. See 470 U.S. at 752 (Mr. Justice Stevens, dissenting).
I 1
l Sa/ery -- dealing with a different topic 88 -- as for some reason l
' weighty authority for the proposition that denials of 2.206 petitions are reviewable *80 -- a proposition so unlikely as to border on the absurd givtn that Lorlon expressly prescinded from so hold-i ing.ss B. THE 'SHOLLY AMENDMENT' HISTORY HAS NOTHING TO DO WITH THE ISSUE NOW BEFORE THIS COURT.
The Commonwealth tosses in an argument that is truly interutable. Referring to the enactment of the so-called "Sholly Amendments' by Congress in 1932, which were designed to reverse the effect of a decision of the Court of Appeals for the D.C.
Circuit requiring a public hearing on demand prior to the elfective-ness of any NRC operating license amendment, the Commonwealth contends that "[p}erhaps the most compelling indicia of Congres-sional interest is the fact that Congress did not take any action to estrict judicial review of NRC enforcement decisions in 1932 when it considered and enacted the so-called 'Sholly' amendment.**8 The Sholly Amendments had nothing to do with the reviewability of NRC denials of 2.206 petitions, and no Court had thentofore ever 88After determining the order in question in that case to be reviewable at all, the Court in Center for Auto Safety next con-sidered the nature of the review. Its opinion is divided into three major headingt ' Introduction,' ' Availability of Judicial Re vie w,"
l and 'The Scope of Judicial Review in this Case." All of the lan- !
guage quoted by MassPIRG comes from the last section.
1 "MassPIRG Response at Il-12.
1 83 Apart from the improbability that the Court of Appeals for the D.C. Circuit would refer to its prior decision as standing for a proposition that its prior decision expressly did not decide, it is even less likely that the Court would do so in the section of the later opinion that follows the section in which it considers the ;
issue in question. What actually happened in Lorlon on remand is '
that, though passing on the issue, the Court of Appeals observed I that it ' doubt (ed] that on the facts . . . the NRC's [ enforcement) l discretion is restricted by the Atomic Energy Act." 785 F.2d at 1040. Thus, while Lorion did not decide the point now at issue, its predilections on it were quite the reverse of the impression MassPIRG attempts to create. MassPIRG's use of the D.C. Circuit's remsad opinion is, we respectfully submit, equally unfair to that as to this Court, 8'Commonwechh Response at 14.
1
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. ruled such petitions to be reviewable.88 Manifestly, therefore, Congress cannot nr:e evinced "acquiescence
- in rulings that were not made, nor dess it manifest "acquiescence" even to real rulings by unrelated sts.utory enactments. The thrust of this argument is as elusive as, ';itimately, it is illusory.84 Conclusion We start, as we have been directed to, with the presumption that NRC decisions declining to initiate formal enforcement pro-ceedings requested in 2.206 petitions are not reviewable in this Court. in an effort to rebut this presumption, which requires a demonstration that NRC possesses less than the ordinary agency s:As noted in Boston Edison Company's initial ' Memorandum,"
no contention that such denials were not reviewable had been pre-sented to a court prior to Chanty. In neither of the cases referred to by the Commonwealth (Illinois F. 88C. 591 F.2d 12 (7th Cir.1979), and Porter County Chapter, etc. F. NRC. 606 F.2d 1363 (D.C. Cir.1979)) was the issue even raised, much less decided.
84The credibility of this argument is not, we respectfully I submit, enhanced by the Commonwealth's oblique reference to t #owen v. Michigan Academy of Fansfly Physicians, U.S. ,
i 106 S. Ct. 2133 (June 9,1986). , Bowen is a reasonably garden-
- variety action for judicial review of agency regulations, which
, regulations were eventually held by both the district court and the i Court of Appeals to be "obvious [ly) inconsisten[t] with the plain
! language cf the Medicare statute" and "irrational and [} invalid". ,
! 106 S. Ct. at 2135. Seeking reversal, the agency contended that
! ' Congress has forbidden judicial review of all questions affecting the amount of benefits payable under Part B cf the Medicare pro-l gram." Id. In the course of rejecting this contention, the Court took note of the presumption of reviewability (the case had liter-l ally nothing to do with Chanty-type issues), and the Court noted axiomatically that "[slubject to constitutional constraints, Congress
, can, of course, make exceptions to the historic practice whereby courts review agency action." 14. at 2137. Continuing: The pre- '
i sumption of judicial review is, after all, a presumption, and 'like all presumptions used in laterpreting statutes, may be overcome b y,'
], inter alia, ' specific language or specific legislative hi4 tory that is a i reliable indicter ; of congressional late nt,' or a specific congres-4 sional intest to preclude judicial review that is fairly discernible" in the detail of the legislative scheme.' 14. Finally, the Court added by way of footnote that le&lstative intent might also be
!
- inferred from contemporaneous judicial construction barring review 1 and the congressional acquiescence in it,' id at 2137 n.d. citing LudecAt v. Workins, 335 U.S. 160 (1948). How the recitation of these axioms of statutory construction are supposed to be helpful in the context of the present issue is not explained by the Commonwealth.
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enforcement discretion, the petitioners unleash a volley of miscel.
laneous arguments, none of which relies upon anything said or done by Congress. Individually, none of the item's relied upon demon-strates anything remotely close to the required aViribute. More-over, the entirety of the petitioners effort ignores the fundarnental characteristic of the NRC as an agency, namely more rather than less discretion -- a point that makes the effort on which the petitioners are engaged so futile as to have moved one justice of the Supreme Court to urge a dispositive pronouncement notwith-standing that the issue had not been briefed by the parties.
For the reasons set forth herein and in Boston Edison Company's Memorandum in Suppcet of its Motion to Dismiss, the
' Petition for Review' in this matter snould be dismissed.
Res full itt :
M N
- h n ; ;.' i e" N N Ropes & Gray !
225 Frank!in Street i Boston, Massachusetts 02110 i
T41ephone: 617-423 6100 if j William S. Stowe/ / i Boston Edison Company 800 Boylston Street .
4 Boston, Massachusetts j Telephone: 617-424-2544 Attorneys for Boston Edison Company f Deted: November ,1987, j
l 4
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i Certificate of Service I, Robert K. Oad 111, being a member of the bar of this Court, do hereby certify that I served the within ' REPLY MEMORANDUM OF INTERVENOR BOSTON EDISON COMPANY TO RESPONSES TO MOTION TO DISMISS,' by mailing copies thereof, postage pre- ,
paid, as follows: !
l Laura E. Frossard, Attorney William H. Briggs, Esquire ,
i Appellate Section Michael B. Blume, Esquire Lands and Nstural Resources Office of the General Division Counsel U.S. Department of Justice U.S. Nuclear Resulatory Washington, D.C. 20530 Commission Washington, D.C. 20555 ,
William S. Abbott, Esquire Oeorge B. Dean, Esquire Simonds, Winslow Willis A Assistant Attorney Genertl Abbott Office of the Attorney l 50 Congress Street Oeneral '
i Boston, Massachusetts 02109 One Asburton Place Boston, Massachusetts 02108 r i ;
j this l day of December,1987 . L i
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R. K. Oad fl 'N h
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_-_.______._j
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2 Ropto G GRAY l 225 FRANKLIN STREET l I
BOSTON, MASSACHUSETTS O2110 i.,. 0 i08=ct (610 40 6100 ,,,,,,,,,,,,,,,,
30 atesistor PLata tttta avutte 6405's 8086ee40s ese a006 tot at' SICOnet tie t ti. or = l p e 0VI,* t h C t, e L 0 4 9 0 3 ttsts ownste slig73 acets seat tse *alulattem.SC 1003' l (404 Sti 4400 ttttCO*itel itiF144 3+4 3 t? * '4 rts 43 8 + f 64: '8081489"400 l tt4tC0pite i40s) 541 09:0 settaisatio nag ititi 43 3 segg it 6tt0*it e '4 08) 489"e49 l
Movember 5, 1987 l
I Francis P. Scigliano, Esquire "
Clerk United States Court of Appeals for the First Circuit '
Room 1606 Post office and Courthouse ,
Boston, Massachusetts 02109 l Ret Massachusetts Public Interest Research Groun et al. v. liRC. 1st Cir. No. 87-1865
Dear Sirt ,
In accordance with Fed. R. App. P. 27 and lat Cir. Local Rule 27.1, we transmit herewith the original and four copies of "Motion to Dismiss" and "Memorandum of Boston Edison Company in Support of Its Motion to Dismiss," and request that you kindly file the same with the papers in this matter.
lVery ly yours B
N'
( 3 R. X. Gad III RKG/ajp Enclosures cc Service List t
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t UNITED STATES COURT OF APPEALE for the FIRST CIRCUIT
)
MASSACHUSETIS PUBLIC INTEREST RESEARCH )
GROUP, INC. et al. )
)
Petitioner, )
) No. 87-1865
- v. )
)
UNITED STATES NUCLEAR REGULATORY ) !
COMMISSION, )
)
Rescondent. )
)
MOTION TO DISMISS Boston Edison Company ("Boston Edison") moves pursuant to Fed. R. App. P. 27 that the "Petition for Review" in this i matter be dismissed for want of jurisdiction to entertain it and because it is otherwise unrevievable as a matter of law. !
In support of this motion, Boston Edison says as follows: ;
- 1. This petition seeks judicial review by this Court i l
of an "Interim Director's Decision" issued on August 21, 1987, by the Director of Nuclear Reactor Regulation. Boston Edison company (Pilgrim Nuclear Power Station), DD-87-14, 26 NRC (8/21/87). In that decision, the Director denied in part (and deferred in part) a request for agency enforcement action contained in a certain petition submitted to the NRC under 10 C.F.R. I 2,206.
- 2. Jurir ' ntion tu boar this mattar has been laid by
the petitioner in the Hobbs Act, 28 U.S.C. I 2342. That i
statute extends only to "all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42 (of the United States code)."
- 3. Section 189 of the Atomic Energy Act, 42 U.S.C.
, i 2239, provides that:
"Any final order entered in any proceeding of !
the kind specified in subsection a. above (any ;
proceeding under this Act, for the granting, suspending, revoking, or amending of any 1;, cense or
, construction permit, or application to transfer control, and in any proceeding for the issuance or
- modification of rules and regulations dealing with the activities of licenses) shall be subject to
{
judicial review in the manner prescribed in the Act ,
of December 29, 1950, as amended, and to the j provisions of section 10 of the Administrative l Procedure Act, as amended."
J j Similarly, section 181 of the Atomic Energy Act (42 U.S.C.
5 2231), provides that "The provisions of the Administrative i 1
j Procedure Act . . . shall apply to all agency action taken l i
under this Act. . ..
- 4. Section 10(a) (2) of the Administrative Procedure Act l j
I (5 U.S.C. 5 701(a)(2)) provides that judicial review is not
! available in respect of "agency action (that) is cosmitted to 1
i 3
agency discretion by law." '
i ;
- 5. An agency's decision not to commence enforcement l
l action is presumptively unreviewable under section 701(a)(2) l of the Adsinistrative Procedure Act. Heckler v. Chanev, 470 l i U.S. 821, 831 (1985). That presumption may be overcome only where the agency's statute demonstrates an intention by l congress to circumscribe the agency's enforcement discretion, i
I i
under administrable standards. Id. at 833. The Atomic Energy Act contains no such demonstration. Consequently, l
this is a matter not reviewable under section 189 of the Atomic Energy Act and therefore this court lacks jurisdiction to hea:t it under the Hobbs Act (28 U.S.C. I 2342).
- 6. In addition, insofar as the petition for ,
enfort:ement was deferred, the "Interin Director's Decision" j is not final, and hence would not be reviewable even if this I Court otherwise had jurisdiction to review the denial of 1 petitions for agency enforcement under 10 C.F.R. I 2.206.
i sierra club v. HRC, 825 T.2d 1356 (9th Cir., August 21, 1987).
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i WHEREFORZ Boston Edison moves this Court to determine that the Nuclear Regulatory Commission's decision not to i commence enforcement action is unreviewable as a matter of law and, as a result, this Court lacks jurisdiction to l entertain this purported appeal. Accordingly, the "Petition for Review" aust be dismissed.
j By att
- I .
i i
() k i K.K.GS James 3. W vy M
l i Ropes & Gray 225 Franklin Street l Boston, Massachusetts 02110 l j Telephone 617-423-6100
.e Atfy ,
William S. Stowd // :
i Boston Edison Company j i 800 Boylston street .
I Boston, Massachusetts !
Talephonet 617-424-2544 l
] Dated: November 5, 1987. ,
e i I
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I l 4 t I I l i i ;
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i Y
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. . - . _ . - _ _ . _ . - _ , _ _ . _ _ . _ _ _ _ . _ . . _ - _ _ _ _ . - _ . _ _ _ , _ . _ , _ . . - _ _ . . - _ _ . . _ _ . . ~ . - _ _ _ _ - - - _ . , _ _ _ , , _ . . . - - _ - . _ . . _ , _
certificate of service
- , A, vert K. Gad III, being a member of the bar of this Ccurt, do hereby certify that I served the within "Motion to ,
Dismiss," by mailing copies thereof, postage pre-paid, as ;
follows:
l Laura E. Frossard, Attorney William M. Briggs, Esquire -
j Appellate Section Michael B. Blume, Esquire
' Lands and Natural Resources Office of the General Division Counsel l U.S. Department of Justice U.S. Nuclear Regulatory .
i Washington, D.C. 20530 commission f
]; Washington, D.C. 20555 j William S. Abbott, Esquire George B. Dean, Esquire ,
1 Simonds, Winslow, Willis & Assistant Attorney General !
]
Abbott Of fice of the Attorney I 50 Congress Street General '
4 Boston, Massachusetts 02109 One Asburton Place
, Boston, Massachusetts 02108 i j
this 5th day of November, 1987.
l a 's ;
i n i I I !
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UNITED STATES COURT OF APPEAIA for the i
FIRST CIRCUIT
) '
MASSACHUSETTS PUBLIC INTEREST RESEARCH )
GROUP, INC. et al., ) ,
) i Petitionerg, )
) No. 87-1865 1
- v. , )
)
UNITED STATES NUCLEAR REGULATORY ) !
COMMISSION, )
l
) l 4
Rescendant. ) l
) ) i l !
MEMORANDUM OF D3STON EDISON COMPANY IN SUPPORT OF ITS j MOTION TO DIRMIES I. Introduction.
I] >
3 This petition for review seeks judicial review of an "interim decision" of t.se Director of Nuclear Reactor l Regulation, in which the Director declined to initiate the i l
enforcement action requested in a petition submitted to the ;
i Nuclear Regulatory Commission ("NRC" or the "Commission") I f pursuant to 10 C.F.R. I 2.206. Jurisdiction to hear this matter is claimed by the petition for review to lie in the
]
I Hobbs Act, 28 U.S.C. I 2342, which authorizes this court to review only those final orders of the Commission that are i <
1 made reviewable by the Atomic Energy Act. Because the I i
)
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\ - - - - - - - - - - . - - , . - - - . - -- --
4 l
Director's interim decision is unreviewable as a matter of law under the Atomic Energy Act, this Court is without I subject matter jurisdiction to hear the purported appeal and, i
therefore, the petition for review must be dismissed. ;
. 1 II. The Facts.
{
1 The Atomic Energy Act authorises the Nuclear Regulatory I i
Commission 1 to license the construction and operation of l
l "utilisation facilities,"2 which term includes commercial [
electric power reactors such as Pilgrim Nuclear Power Station I
j ("PNPS") owned by Boston Edison Company ("Boston Edison"). {
a The Act authorizes the NRC to take a range of enforcement
] actions with respect to its licensees, including the revoca- i l tion of licenses pursuant to section 186 of the Act and 1 i
{ modification, revision or suspapsion under section 187 of the i i i Act. See 42 U.S.C. Il 2236, 2237. j 1
Sections 186 and 187 have been implemented by sections i 2.200-2.206 of the Commission's regulations (10 C.F.R.
1 ,
j li 2.200-2.206), which "prescribe () the procedure in cases !
l l l initiated by the staff, or upon a tequest by any person, to l
{ impose requirements by order, or to modity, suspend, or revoke a license, or to take other action as may be proper, ;
b l I
j IThe licensing and regulatory functions of the Atomic l
- Energy Commission were transferred to the NRC by the Energy !
l Reorganization Act of 1974, 42 U.S.C. I 5801 31 333 See l 1 Vermont Yankee Nuclear Power Corn. v. Natural Resources ;
Defense counsil. Inc., 435 U. S. 519, 526 n.2 (1978). j
] 2S ee Atomic Energy Act, i 11(cc), 42 U.S.C. I 2014(cc).
j l 4
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against any person subject to the jurisdiction of the l l
Commission." 10 C.F.R. I 2.200(a). -
l Commendably, the commission has established by regula-tion a procedure for receiving and administering requests l from the public for the initiation of enforcement proceed- f ings, which is contained in 10 C.F.R. I 2.206:
r I
"(a) Any person may file a request for the Director of Nuclear Reactor Regulation, Director of i
- Nucitar Material Safety and Safeguards, Director, ,
l office of Inspection and Enforcement, as ap- l 1 propriate, to institute a proceeding pursuant to 4
5 2.202 to modify, suspend or revoke a license, or for such other action as may be proper. Such a ,
, request shall be addressed to the Director of i i
l Nuclear Reactor Regulation, Director of Nuclear Material Safety and Safeguards, Director, Office of ;
I Inspection and Enforcement, as appropriate, and -
i shall be filed eithers (1) By delivery to the l Public Document Room at 1717 H Street NW. , Washing- -
ton, D.C., or (2) by mail or telegram addressed to
)
- the Director of Nuclear Reactor Regulations !
l I Director of Nuclear Mate Tial Safety and Safeguards, !
! Director, Office of Inspection and Enforcement, as i l
appropriate, U. S. Nuclear Regulatory Commission, Washington, D.C. 20555. The requests shall specify -
the action requested and set forth the facts that (
constitute the basis for the request.
- "(b) Within a reasonable time af ter a request '
l pursuant to paragraph (a) of this section has been }
t received, the Director of Nuclear Reactor Regula- I tion, Director of Nuclear Material Safety and l Safeguards, Director, office of Inspection and !
Enforcesent, as appropriate shall either institute j
the requested proceeding in accordance with this -
1 subpart or shall advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to his request, and the reasons therefor.
i
"(c) (1) Director's decisions under this section will be filed with the of fice of the
! Secretary. Within twenty-five (25) days after the
! date of the Director's decision under this section j that no proceeding will be instituted or other
- action taken in whole or in part, the Commission I
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i l may on its own motisn review that decision, in !
j whole or in part, to determine if the Director has i abused his discretion. This review power does not limit in any way either the Commission's super- :
4 visory power over delegated staff actions or the !
! Commission's power to consult with the staff on a i i formal or informal basis regarding institution of !
i proceedings under this section. '
t "(2) No petition or other request for Commis-l 4
sion review of a Director's decision under this <
) section will be entertained by the Commission."
l
! The request for initiation of agency enforcement that is !
4 the subject of this purported appeal was submitted to the !
j commission explicitly as a 5 2.206 petitlan.3 It sought the initiation of investigatory enforcement action on three grounds. Two of the " -- dealing with specific allegations concerning containt integrity and off-site ener7ency i j planning -- were denied on the ground that tha petition l 1
j failed to make out a case for tiis commencement of enforcement !
proceedings. DD-s7-14, slip opinion at 3.4 The third l
3S ee "Petition for show Cause Concerning Pilgria I Huclear Power station," submitted by William S. Golden et al. i under date of July 15, 1986, at 1 (hereinafter the "Golden Petition"). I 4
Insofar as the request for enforcement action against
! PHPs wac based on containment integrity, it was found by ths !
Director to involve a generic issue of which the agency was fully aware, which the agency has generically concluded does not present a serious safety issue, and which the petitioner =
j apparently failed to understand. DD-87-14, Slip Opinion at 15-34. Insofar as the request was founded upon off-site l emergency planning issues, it was found by the Director (based en an assessment of the contentions of the petition
, performed for NRC by the Federal Emergency Management Agency) i to be unsupported and based upon misinterpretations of or i
challenges to commission regulations. DD-87-14, Slip Opinion
{ at 14 and Attachment A As to these two aspects tiie repent for enforcement was denied. See the letter of Thomas E.
Murley, Director, office of Nuclear Reactor Regulation, to l
l 1 I
l l
ground -- dealing with so-called "management issues" -- was deferred:
"For the reasona discussed above, a decision cannot be made at this time regarding the manage-ment issues. This portion of the Petition will be addressed in a subsequent response."
DD-B M , Slip Opinion at 35.
It is this partial denial of the initiation of ad-ministrative enforcement proceedings that the petitioners seek to have reviewed by this court.
i l
l William B. Golden, dated August 21, 1987 (attached to the l Petition for Review as Exhibit A): "The staff has concluded I its evaluation of the information contained in the Petition concerning items (2) and (3) and for the reasons stated in the enclosed (DD-87-14), your Petition, with the exception of the management issue, him been denied." (Emphasis added.)
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ARGUMENT III. THIS COURT LACKS JURISDICTION TO REVIEW THE DIRECTOR'S "INTERIM DECISION."
A. Two Requisites of Jurisdiction to Review are that the Order of Which Review is Sought be Final and Not Involve a Matter Committed to Acency Discretion by Law.
The on)y basis cited in the "Petition for Review" for jurisdiction over it is the Hobbs Act, 28 U.S.C. I 2342.
That act extends this Court's jurisdiction only to "final :
1 orders" of the Commission "made reviewable by section 2239 of j title 42 (of the United States Code)." Section 189 of the Atomic Energy Act (the 42 U.S.C. I 2239 referred to) makes reviewable "(ajny final order entered" in specific types of proceedings and subject to "the provisions of section 10 of the Administrative Procedure Ac,t, as amended."
Section 10 of the Administrative Procedure Act5 now appears as 5 U.S.C. 5 701. It extends a general right of judicial review of final agency actions, subject to two bars: l "the extent that - (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law."
Therefore, amongst other requirements, in order to establish jurisdiction over the subject petition, the petitioners must demonstrate, inter alls, that DD-87-14 is a "final order" and that it does not involve "agency action that is committed to agency discretion by law." Because the petitioners cannot Soriginally enacted as section 10 of Chapter 324 of the Act of June 11,1946, 60 Stat. 243.
make the requisite showings on either of these points, jurisdiction does not lie.6 B. This Court Lacks Jurisdiction to Review Denials of NRC Enforcement Action.
- 1. The Denial of Enforcement Action is Presumptively Unreviewable "Agency Action Committed to Agency Discre-tion by Law."
For a long time it was assumed that the denial of a petition for enforcement action submitted under 10 C.F.R.
$ 2.206 was reviewable in the Courts of Appeals. That accepted proposittu. was first called into question by the Court of Appeals for the District of Columbia circuit in Lorion v. NEG, 712 F.2d 1472 (D.C. Cir. 1983), which eventu-ally held that jurisdiction did not lie under the Hobbs Act or, therefore, in the Courts of Appeals 7 ,
However, held the D.C. Circuit, jurisdiction must lie somewhere: if it is not in the Courts of Appeals, then it must be in the District Courts. 712 F.2d at 1479. The Supreme Court reversed.
Florida Power & Licht Co. v. Lorion, 470 U.S. 7 '. 9 (1985).
6 An intellectually interesting -- but not outcomo determinative -- question is whether the "committed to agency discretion by law" bar to reviewability is a substantive bar or a jurisdictional bar. Because it arises out of the APA, which has generally been held not to be jurisdictional, ?.he bar is most likely a suostantive bar in most situations.
Where, as here, however, the APA bar has been incorporated by reference into the jurisdictional statute, it would appear to be a jurisdictional bar.
7The D.C. Circuit held that the holding by the Commis-sion of a public hearing was definitionally essential to the existence of a "proceeding," and that, in the abserice of a "proceeding" (for want of a hoaring), jurisdiction was not conferred by the Hobbs Act.
l The Court held that the intention of Congress was that the Court of Appeals was the forum of initial jurisdiction for all appealable orders of the Commission -- that is, 11 5 2.206 denials are reviewable at all, they are reviewable in the Courts of Appeals, not the District Courts. The "ourt expressly reserved on the issue (not raised by the parties) of whether i 2.206 denials were reviewable at all. 470 U.S. l at 735 n.8.8 On the same day, the Court rendered Heckler v. Chanev, 470 U.S. 821 (1985). Chaney involved an attempt at judicial review of the declination of the Secretary of Health, Education and Welfare, through the Food and Drug Administra-tion, to commence enforcement action in response to a citizen petition. The District Court had held that the denial of enforcement action is not reviewable at all; the Court of Appeals for the District of Columbia circuit reversed; and i l
the Supreme Court reversed again. Starting from the proposi- i tion that, as is the case with NRC issuances,9 availability of review is dependent upon the terms of the Administrative Procedire Act, the Court noted that "before any review at all l 8 Though the Court sent the matter back to the Court of Appeals for consideration of the application of Chanev to the denial of i 2.206 petitions, id. , the Court of Appeals determined on remand to proceed directly to the merita, in view of the clear lack of merit in the appeal given the broad discretion of the Commission. 785 F.2d 1038 (1986). The Court of Appeals noted, however, that it "doubt (ed) that on the facts . . . the NRC's (enforcement) discretion is l restricted by the Atomic Energy Act." 14. at 1040. l 9Albeit for different reasons. j l
l l
may be had, a party must first clear the hurdle of (5 U.S.C.)
5 701(a)." 470 U.S. at 828 (emphasis added). Subsection 701(a)(2), the court held, renders presumptively unreviewable agency denials of enforcement:
"(ojur conclusion (is) that an agency's de-cision not to take enforcement action should be presumed immune from judicial review under 5 701(a) (2) . For good reasons, such a decision has traditionally been ' committed to agency discre-tion,' and we believe that the Congress enacting the APA did not intend to alter that tradition."
470 U.S. at 832. Therefore, per Chanev, the Director's decision not to take enforcement action in this case is "presumed [to be) immune from judicial review" as a matter of law.
- 2. The Atomic Energy Act and the Commission's Regulations Contain Nothing sufficient to Rebut, but Rather confirm, the Presumption that the Commission's Enforcement Discretion is Unconstrained by Mandatory Standards.
The "presumption" of unreviewability is not irrebut-table, but it controls in the absence of special limitations placed by Congress upon the discretion of the agency in undertaking the initiation of enforcement proceedings:
"(T]he presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers. Thus, in establishing this presumption in the APA, Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers. Congress may limit an agency's exercise of enforcement powers if it wishes, either by setting substantive priori-ties, or by otherwise circumscribing an agency's power to discriminate among issues or cases it will pursue."
470 U.S. at 832-33 (footnote omitted).
. l Taking first those sections of the Atomic Energy Act that provide for enforcement, section 186 (42 U.S.C. 5 2236) states:
"Any license may be revoked . . . because of conditions revealed by such application or state-ment of fact or any report, record, or inspection or othe'* means which would warrant the commisrion to refuse to grant a license on an original application . . . or for violation of, or failure to observe any of the terms and provisions of this chapter or of any regulation of the Commission."
(Emphasis added.) Similarly, section 187 of the Act (42 U.S.C. I 2237) provides:
"The terma and conditions of all licenses shall be subioct 12 amendment, rvvision, or modifi-cation, by reason of amendments of this chapter or by reason of rules and regulations issued in accor-dance witn the terms of this chapter."
(Emphasis added.) Nothing in the Atomic Energy Act makes the initiation of enforcement proceedings by the NRC mandatory in any c. ass of cases.
Likewise with the regulations promulgated under the authority of these statutory provisions (10 C.F.R. 55 2.200- ,
l 2.206): there is nothing that makes the initiation of I enforcement proceedings by the commission mandatory in any class of cases.10 10Section 2.206, quoted in full suora, requires that, '
after receipt of a request, the appropriate Director (1) either institute the requested proceeding or deny the request, (ii) in the case of the latter, advise the re-quester, and (iii) in the case of the latter, state his reasons. There is neither contention nor room for contention that these requirements were not tulfilled in this case. The regulation requires nothing more.
I i
l Nor is the Atomic Energy Act simply a Congressional enactment devoid of any overt pronouncements of mandatory 1 Commission enforcement. To the contrary, the Act has been
)
held over the years to confer the widest permissible discre-tionary latitude upon the Commission. This court has itself observed that the Atomic Energy "Act's regulatory scheme 'is !
virtually unique in the degree to which broad responsibility is reposed in the administering agency, free of close i
prescription in its charter as to how it shall proceed in achieving the statutory objective.'"ll The Atomic Energy Act 1 l
is simply bereft of any indication either that there is a l l
class of cases where the undertaking of enforcement action is i
mandatory or that there is a class of cases in which the I exercise of NRC's prosecutorial discretion is subject to ,
defined criteria such as would permit a Court to find enforcement mandatory in a given set of circumstances. See 470 U.S. at 835-37.12 As in Chaney, therefore, one must "conclude that the presumption that agency decisions not to institute proceedings are unreviewable under 5 701(a)(2) of the APA is not overcome by the enforcement provisions of the 1
11P ublic Service Comnany cf New Hamnshire v. HEG, 582 F.2d 77, 82 (1st Cir. 1978), quoting Sieaal v. AEG, 400 F.2d 778, 783 (D.C. Cir. 1968).
12 Nor anywhere in the "Petition for Review" is any claim made of a upacial circumstance under which the grant of the 5 2.206 petition was mandatory under the Atomic Energy Act.
Likewise, nowhere in the 5 2.206 petition submitted to the Commission did the petitioners claim that the granting of the enforcement action requested was mandate,ry.
(Atomic Energy Act). The (Commission's) decision not to take enforcement actions requested by (petitioners) is therefore not subject to judicial review under the APA."13 The petition for review, therefore, must be dismissed.14 13 Paraphrasing 470 U.S. at 837-38. See also Florida Power & Liaht Co. v. Lorion, 470 U.S. 729, 752 (1985) (Mr.
Justice Stevens, dissenting from the remand to the Court of Appeals): "Only (a) construction (of the jurisdictional statutes to preclude judicial review of the denial of 5 2.206 pet'tions does justice to the plain meaning of the relevant jurisdict:onal statutes, to the Commission's regulations, and to settled principles of administrative law."
14The court of Appeals for the District of Columbia circuit had occasion to revisit Chanov in Center for Auto ERIAfdg v. Dela, F.2d (D.C. Cir. September 8, 1987).
There, the Court found a denial of a request to reopen an enforcement proceeding reviewable, on the basis that, although the governing statute contained no restraint on the agency's enforcement discretion, the agency itself, by the promulgation of a regulation interpreted by the Court as making the commencement of enforcement mandatory in the event of a given technical finding, had so constrained its own discretion that it could not consider even such matters as likelihood of success or allocation of resources. This, the Court of Appeals held, was suf ficient to overcome the presumption of unreviewability and subject the agency's technical finding to judicial review. Assuming Center (gx ,
Auto Safety to be faithful to Chaney, it aids the present l petitioners naught, since the Commission's regulation (10 l C.F.R. $ 2.206, quoted in full supra) effects no like self-imposed abdication of enforcement discretion.
We are aware of no post-Chanov opinions of this Court dealing with attempts at judicial review of agency declina-tions to commence enforcement action. This court did address l Chaney in NAACP v. Secretary of Hous. and Urban Dev., 017 )
F. 2d 149 (1st Cir. 1987) , but that case is of little precedential guidance here given (1) that it did not involve denials of enforcement action (but, rather, monetary grant decisions), (ii) that it did not involve a request for judicial review of specific agency actions (see 817 F.2d at 158-59), and (iii) that it involved a statute in which a
. clear Congressional limitation had been placed on agency j action (see 817 F.2d at 151, referring to 29 U.S.C.
5 3608(e)(5)). And most importantly, unlike the situation in NAACP, undertaking review of NRC declinations to initiate l
1 1
l C. Insofar as the "Interim Director's Decision" Deferred Taking Action on the Request for l Enforcement, Review is Barred Because the "Interim Director's Decision" is not Final. l l
The requirement that Commission action of which judicial review is sought be final is found in all three of the Atomic Energy Act, the Administrative Procedure Act and the Hobbs Act. Insofar as the "Interim Director's Decision" deferred taking action on the petition for the initiation of enforce- !
ment proceedings,15 it is manifestly not final. Therefore, l
to this extent the "Interim Director's Decision" is not j reviewable and would not be reviewable even if final 5 2.206 !
decisions were reviewable. E.g., Sierra Club v. HEg, 825 i F.2d 1356, 1362-63 (9th Cir. 1987); Western Union Telecraoh j
- 92. v . ECC , 77 3 F . 2 d 3 7 5, 378 (,D . C . Cir. 1985). Consequent-ly, as to this portion of tha decision below, the Petition for Review must be dismissed. )
l I
l l
1 enforcement proceedinga can neither be said to favor a Congressionally highlighted interest nor to have only a negligible effect on the Commission's "ability to carry out J its basic statutory missions." (817 F.2d at 159.) See 1 Breyer, "Marmont Ymphg3 and the Courts' Role in the Nuclear i Energy Controversy," 01 Harv. L. Rev. 1833, 1834-40 (1978). l l
15See DD-87-li, Slip Opinion at 35.
l
Conclusion For the foregoing reasons, the "Petition for Review" should be dismissed.
yi tto ya
.[ ,-
+ +n R/ K. Gad 4 N James B. Levy Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 Telephone: 617-423-6100 William S. Stowe Boston Edison Company 800 Boylston Street Boston, Massachusetts
' Telephone: 617-424-2544 Dated: November 5, 1987.
Certificate of Service I, Robert K. Gad III, being a member of the bar of this Court, do hereby certify that I served the within "Memorandum of Boston Edison Company in Support of its Motion to Dis-miss," by mailing copies thereof, postage pre-paid, as follows:
Laura E. Frossard, Attorney William H. Briggs, Esquire
, Appellate section Michael B. Blume, Esquire Lands and Natural Resources Office of the General Division Counsel U.S. Department of Justice U.S. Nuclear Regulatory Washington, D.C. 20530 Commission Washington, D.C. 20555 William S. Abbott, Esquire George B. Dean, Esquire Simonds, Winslow, Willis & Assistant Attorney General Abbott Office of the Attorney 50 Congress Street General Boston, Massachusetts 02109 One Asburten Place Boston, Massachusetts 02108 this 5th day of November, 1987.
N t _ - _ _
/
6
a -
o UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 87-1865 MASSACHUSETTS PUBLIC INTEREST RESEARCH GROUP, INC., g d.,
Petitioners, and COMMONWEALTH OF MASSACHUSETTS Intervenor-Petitioner, v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents, and
.< BOSTON EDISON COMPANY Intervenor-Respondent.
l ON APPEAL FRCH A DENIAL OF A PETITION FOR ENFORCEMENT BRIEF FOR RESPONDENTS WILLIAM C. PARLER LAURA E. FROSSA RD General Counsel Attorney Land and Natural WILLIAM H. BRIGGS, JR. Resources Division Solicitor U.S. Department of l Justice l E. LEO SLAGGIE , Washington, D.C. 20530 Deputy Solicitor STEVEN F. CRCCKETT ROCHELLE M. GUNNER {
I Attorneys U.S. Nuclear Regulatory {
l Commission Washington, D.C. 20555 March 1, 1988 I
TABLE OF CONTENTS Page TABLE OF AUTHORITIES.................................... iii STATEMENT OF ISSUES..................................... 1 STATEMENT OF THE CASE............................... , 3 I. Nature Of The case............................ 3 II. Statutory And Regulatory Background........... 4 A. Requests For Enforcement Action.......... 4 B. Offsite Emergency Planning............... 7 C. Containment.............................. *9 III. MassPIRG's 2.206 Petition..................... 11
, A. The Emergency Plan Issues................ 12 B. Containment..'............................ 13 IV. The Director's Interim Decision............... 14 A. Emergency Planning....................... 16 B, dhe Mark I Containment Issue............. 18 SU MMARY OF A RGUMEh"r . . . . . . . . . . . . . . .'. . . . . . . . . . . . . . . . . . . . . . 25 ARGUMENT................................................ 27 I. This Petition Seeks Review Of Final Agency Action........................................ 27 II. The NRC's Refusal To Institute Discretionary Enforcement Proceedings At Petitioners' Request Is Not Judicially Reviewable. . . . . . . . . . 30 III. The Director Properly Resolved MassPIRG's 2.206 Petition On Emergency Planning And Containment Matters........................... 32
. A. The Standard Of Review Of The Commission's Denial Of Enforcement
, Action Is Highly Deferential............. 32 i
,,____---n_ , _ _ _ , _ _ _ , . - _ _ . . _ , , . _ . , -
,,,,_.,.,._n.,-,.,,,
- . .,--, ,, ,y__--
Page B. The Director's Action On MassPIRC's Emergency Planning Concerns Was Reasonable and Entirel FEMA's Findings.......y Consistent with
. . . . . . . . . . . . . . . . . . . 34 C. The Director's Denial Of The Containment Allegations Raised In MassPIRG's 2.206 Petition Was Reasonable And Adequately Dealt With All Allegations Raised By The Petitioner............................... 38 CONCLUSION.............................................. 45 0
O 4
l l
l 1
l l
11
TABLE OF AUTHORITIES CASES _
Page Judicial Decisions Baltimore Gas & Electric Company v. Natural Resources Defense Council, Inc., 462 U.S. 87 (1983)............................................. 33, 39 Citizens for a Safe Environment v. Atomic Energy Commission, 489 F.2d 1018 (3d Cir. 1974)........... 28 County of Rockland v. NRC, 709 F.2d 766 (2d Cir.
1983)............................................,.. 33 Eddleman v. Nuclear Regulatory Commission, 825 '
F.2d 46 (4th Cir. 1987)............................ 6 Florida Power & Light Co. v. Lorion, et al., 740 U.S. 729 (1985).................................... 6 Heckler v. Chanet,~470 U.S. 821 (1985)............. passim Illinois v. Nuclear Regulatory Commission, 591 F.2d 12 (7th Cir. 1979)............................ 6
. Lorion v. NRC, 785 F.2d 1038 (1986)..............,. 40 Ohio Citizens for Responsible Energy, Inc. v. NRC, 903 F.2d 258 (6th Cir. 1986), cert. denied,
~
U.S. , 107 S.Ct. 1893 ( 19 6 7 ) . . . . . . . . . . . . . . . . . . . . 28 Port of Boston Marine, Terminal Association v.
Federiaktiebolaget Transatlantic, 400 U.S. 62 (1970)............................................. 27 Porter County Chapter of the Izaak Walton League of America, Inc., v. Nuclear Regulatory Commission, 606 F.2d 1363 (D.C. Cir. 1979)..................... 6, 33 Public Service Co. of New Hampshiro v. NRC, 582 F.2d 77 (1st Cir. 1978)............................. 33 Rockford Leaoue of Women Voters v. Muclear Regulatory Commission, 679 F.2d 1218 (7th Cir.
1962).............................................. 33
, Siegel v. Atomic Energy Commission, 400 F.2d 778 (D.C. Cir. 1968)...................................
. 33 iii l
Page Thermal Ecology Must Bo Preserved v. Atomic Energy Commission, 433 F.2d 524 (D.C. Cir. 1970).......... 28 Three Mile Island Alert v. Nuclear Regulatory Commission, 771 F.2d 720 (3d Cir. 1985), cert.
~ denied, 475 U.S. 1082 (1986), reh. den., U.S.
(1986), 106 S.Ct. 2909........................ 32 Vermont Yankee Nuclear Iower Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519
't1978)............................................. 4, 40 Administrative Cases >
Boston Edison Company (Pilgrim Nuclear Power Station), Interim Director's Decision Under 10 C.F.R. 5 2.206, DD-87-14, 26 NRC 87 (1987)......... passim Boston Edisor, Company (Pilgrim Nuclear Power Station), DD-84-5, 19 NRC 542 (Interim Decision),
and DD-84-15, 20 NRC 157 (1984).................... 16 Consolidated Edison Co. (Indian Point Units 1, 2, ,
and 3) , CLI-75-13, 2 NRC 173 (1975)................ 40 STATUTES i 5U.S.C.S706(2)(A).................................... 32 2 8 U . S . C . S 2 3 4 2 ( 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _. . . . . 6 42 U.S.C. S 2011 et seq................................. 4 42U.S.C.S2239(b)........................,............ 6 42 U.S.C. S 5801 et seq................................. 4 REGULATIONS 10 C. ,.R. S 2.202....................................... 5 ll 10 C . F . R . S 2 . 2 0 2 ( f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5 10 C.F.R. S 2.206 ...................................... passim 10 C . F . R . S 2 . 2 0 6 ( a ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, iv I
Prae 10 C.F.R. S 2 . 2 0 6 ( c ) ( 1 ) . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 6 10 C . F . R . 5 2 . 2 0 6 ( c ) ( 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 10 C.F.R. Part 2, Appendix C.... 3 ...................... 4 10 C.F.R. S 50.47....................................... 7 10 C . F . R . 5 5 0 . 5 4 ( s ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 'l 10 C.F.R. Part 50, Appendix E........................... 7 10 C.F.R. 'S 51.95....................................... 14 10 C.F.R. Part 73.......,............................... 43 FEDERAL REGISTER NOTICES 45 Fed. Reg. 55,407 (1980).............................. 8
. 45 Fed. Reg. 58,847 (1980).............................. 8
- 50 Fed. Reg. 15,485 (1985).................'............. 8 50 Fed. Reg. 32,138 (1985).............................. 10 TECHNICAL DOCUMENTS
' WA SH-14 00 (NUREG-7 5 / 014 ) , Reactor Safety Study: An Assessment of Accident Risks in U.S. Commercial Nuclear Power Plant s , October 19 75. . . . . . . . . . . . . . . . . . . . 19, 43
]
NUREG-0474, A Technical Update on Pressure Suppresolon i Type Containments in Use in U.S. Light Water Reactor l Nuclear Power Plant s , July 1978. . . . . . . . . . . . . . . . . . . . . . 19 l
NUREG-1150, Reactor Risk Reference Document, Draf t for l 1
C omme n t , Feb ru a ry 19 8 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pessim l
NUPEG/CR-4594, Estimated Safety Sigtiificance of Generic Issue 61, June 1986................................... 23 NUREG-C654, FEMA-REP-1, Rev.1, "Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power P1 ants."........................................ 7 V l l
Page FEMA Report, Analysis of Emergency Preparedness Issues at Pilgrim Nuclear Power Station Raised in a Petition to the NRC Dated July 15, 1986, July 29, 1987......... passim FEMA Report, Self-Initiated Review and Interim Finding for the Pilgrim Nuclear Power Station, August 4, 1987, passim MISCELLAITEOUS Letter from Secretary Chilk to Sen. Golden, September 24, 1987.................................... 14 Letter from Dr. Hana'uer to Commissioner Hendrie, June 10, 1978......................................... 19 e
I h
+
vi
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
)
MASSACHUSETTS PUBLIC INTEREST )
RESEARCH GROUP, INC., g g., )
)
Petitioners, )
)
and )
)
COMMONWEALTH OF MASSACHUSETTS, )
)
Intervenor- )
Petitioner,
)
)
- v. ) No. 87-1865
)
I'NITED STATES NUCLEAR )
PEGULATORY COMMISSION and the )
. UNITED STATES OF AMERICA, )
-) !
Respondents, ) '
- )
and )
)
BOSTON EDISON COMPANY, )
)
Intervenor- )
Respondent. )
,_ )
l BRIEF FOR RESPONDFNTS l l
l STATEMENT,.# ISSUES '
- 1. Whether an NRC Director's decision not to take enforcement action requested by a member of the public under 10 C.F.R. S 2.206 is final agency action reviewable by this Court where the Director ruled that some of the grounds alleged by the i
m -, _.
2.206 petition were insufficient to justify the. requested action but deferred ruling on the sufficiency of the other grounds.
- 2. Whether the Director's decision not to take the discretionary enforcement action requested by the 2.206 petition is unreviewable as a matter of law.
- 3. Assuming arquende that some denials of requests for enforcement action are judicially reviewable, whether the Director's decision to select a dif ferent enforcement action than the one requested by the 2.206 petition is unreviewable as a matter of law.
- 4. Assuming arguendo that denials of requests for
. enforcement action are judicially reviewable, whether the Director's decision to deny the 2.206 petition's request for formal enforcement action was reas'onable and fully in accordance with law, where that action was based on findings by the Federal Emergency Management Agency that the 2.206 petition failed to sustain its cent,entions, and where the Director decided to keep Pilgrim shut down until emergency planning issues were resolved l to the NRC's satisfaction.
- 5. Assuming arouendo that denials of requests for enforcement action are judicially reviewable, whether the Director's denial was reasonable and fully in accordance with law, where the Director fully and fairly responded to the 2.206 petitioner's principal arguments about the containment structure l at Pilgrim, but did not explicitly respond to purported evidence which was inadequately presented and irrelevant to the petition's principal arguments.
2
' STATEMENT OF THE CAS'E I. Nature of the Case In this litigation the petitioners, Massachusetts Public Interest Research Group, Inc., other organizations, and !
certain individuals ("MassPIRG"), seek review of a decision by the Nuclear Regulatory Commission ("the Commission" or "the NRC")
in part granting, in part denying, a petition to the Commission i
to take enforcement action against the Boston Edison Company i
("Edison") for'its operation of the PilgrLm Nuclear Power Station
("Pilgrim") . Edison shut the Pilgrim Station down on April 12, j l
, 1986, some months before the petition for enforcement action was filed. The NRC will not permit Edison to restart Pilgrim until certain deficiencies in management and emergency planning have ,
i been resolved to the satisfaction of the NRC. f On review, MassPIRG argues that the Court should order the NRC either to initiate formal enforcement action or else to provide a more complete explanation of its decision not to take
{
such action.1 The Ccmmission's response to MassPIRG's 2.206 petition was reasonable and was fully explained. MassPIRG's i petition to this Court should be denied. l l
J 1
0n January 4, 1988 MassPIRG filed a motion requesting c
permission to join in the brief written by the l
intervenor-petitioner, the Commonwealth of Massachusetts, 3
\ . l i i
II. Statutory And Regulatory Background A. Requests For 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.
5 5801 et seq., the NRC has broad authority to license and regulate the construction and operation of nuclear power plants.
Under this statutory authority, the agency has developed a detailed regulatory framework for the administrative processing ,
and adjudication of applications for construction' permits and operating licenses. See generally, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 526-27 (1978).
After receiving a permit or a license, the permittee or licensee remains subject to continuing NRC review and oversight aimed at ensuring the continued protection of the public health and safety through compliance with the Commission's requirements.
The NRC has a wide range of enforcement remedies with which to accomplish this goal, such as, for example, letters confirming commitments by licensees, notices of violation, civil penalties, and orders modifying, suspending, or revoking licenses. See generally "General Statement of Policy and Procedure for NRC Enforcement Actions," ("Policy Statement on Enforcement") 10 C.F.R. Part 2, App. C. "Ordinarily, a licensed activity is not suspended . .. for f ailure to comply with requirements where such 4
failure is not willful and adequate corrective action has been ,
taken." Policy Statement on Enforcement ,Section V.C. (2) (e) .
In addition, and central to understanding the procedural posture of this case, the agency has provided in 10 C.F.R. S 2.206 that members of the general public can request, as the petitioners in this litigation did, that the NRC modify, suspend, or revoke a license, or take other enforcement action.
A 2.206 petition must specify not only the relief requested, but also "... set forth the facts that constitute the basis for such request." 10 C.F.R. S 2.206 (a) . The petitioner may address the request to one of several NRC staf f Office Directors. The
, Director of the NRC's Office of Nuclear Reactor Regulation received the 2.206 petition in this case.
If the Director of the reviewing of fice finds merit in the request for enforcement action, he or she may select the appropriate action to take from the wide range of enforcement options identified above. One such option is ordering the licensee under 10 C.F.R. S 2.202 to show cause why the NRC should not "institute a proceedina to modify, suspend, or revoke a license or for such other action as may be proper." A 2.202 order chiefly lists the alleged regulatory violations or other facts that are grounds for the proposed enforcement action, informs the licensee that it must file an answer to the allegations,. and infor.3s the licensee that it may request a hearing on the allegations. Under certain circumstances, the enforcement action may be taken immediately. 10 C.F.R.
S 2.20 2 (f) .- .
5
If, on the other hand, the Director determines that no show cause proceeding is warranted, he must notify the person who submitted the 2.206 request of that decision in writing, and provide a written statement of reasons for that decision. While the regulations specifically provide that the Commission will not entertain appeals from th) Director's decision, see 10 C.F.R.
S 2.206 (c) (2), the Commission undertakes a sua sponte review of each and every denial of a 2.206 petition to ensu're that the Director has not , abused his discretion. 10 C.F.R. S 2.206 (c) (1) .
If the commission does not act 'to reverse or modify the Director's decision within 25 days, it becomes final agency action. Id.
The filing of a 2.206 petition does not require the NRC to hold formal evidentiary hearings en the issues raised by the ,
petition. Illinois v. Nuclear Regulatory Commission, 591 F.2d l
12, 14 (7th Cir. 1979); Porter County Chapter of the Izaak Walton t League of America, Inc., v. Nuclear Regulatory commission, 606 F.2d 1363 (D.C. Cir. 1979); Eddleman v. Nuclear Regulatory Commission, 825 F.2d 46, 48 (4th Cir. 1987). See also Florida Power & Light Co. v. Lorion, et al._,
470 U.S. 729 (1985).
Jurisdiction to review 2.206 denials, if they are .
reviewable at all, see Argument I below, lies exclusively in the United States Courts of Appeals. 28 U.S.C. $ 2342(4); 42 U.S.C.
$ 2239(b): Florida Power & Light Co.'v. Lorion,.470 U.S. 729 1 (1985).
6
I B". Offsite Emergency Planning ,
l l
MassPIRG's claims in th.is case in part involve the commission's emergency planning regulations, set forth in 10 C.F.R. S 50.47, 10 C.F.R. S 50. 54 (s) , and 10 C.F.R. Part 50, Appendix E. These regulations provide a comprehensive framework for protection of the public in the event of a serious radiological emergency.2 The regulatory framework contemplates the submission, review, and approval of "onsite" and "offsite" emergency plans.
The "onsite" plans are submitted by a licensee, and are reviewed and approved by the NRC 6taff. Onsite plans provide for correction or control of the emergency condition, for protection of persons who are onsite, and for, the licensee's recommending to governmental authorities measures to protect the public health.
See 10 C.F.R. Part 50, App. E. No aspect of the Pilgrim onsite plan is at issue here.
The "offsite" plans, aspects of which are at issue here, are usually developed by the appropriate state and local of ficials with the assistance of the licensee. Offsito plans of ten rely in part on organizations, equipment, and f acilities 2
Guidance on the regulatory requirements is provided in NOREG-0654, FEMA-REP-1, Rev.1, "Criteria for Preparation and i Evaluation of Radiological Emergency Response Plans and-Preparedness in Support of Nuclear Power Plants." NUREG-0654 was prepared and published jointly by the FPC and the Federal Emergency Managenent Agency ("FFPA") . This guidance, however, does not have the force of regulations.
1 7 l l
l
which are also available for use under an overall state or federal response plan for emergencies stemming from a number of different natural and man-made causes. The offsite plans for a nuclear facility must identify the primary responsibilities for emergency response and assign these responsibilities to the appropriate licensee or governmental organizations. The adequacy of these plans at a given nuclear facility is evaluated jointly by the N.tC and the Federal Emer'gency Management Agency ("FEMA") .
45 Fed. Aeg. 55,402, 55,406 (1980).
The'NRC and FEMA have executed a Memorandum of Understanding ("MOU") in order to allocate and coordinate their
. respective responsibilities for reviewing offsite plans. See 45 Fed. Reg. 58,847 (1980); see also 50 Fed. Reg. 15,485 (1985) 4 (revised MOU). Under the MOU, FE$A takes the lead in of f site emergency planning. It reviews offsite emergency plans and makes findings and determinations on whether they are adequate and can be implemented. See 50 Fed. F.eg. 15,486 (1985). Under the MOU, the NRC (1) assesses a licensee's onsite emergency plans, (2) l verifies that those onsite plans are adequately implemented, (3) reviews FEMA's findings and determinations on whether the of f site 1
plans are adequate and can be implemented, and (4) retains final authority to decide whether the overall state of emergency proparedness is adequate or whether there are shortcomings serious enough to warrant enforcement action. See 50 Fed. Reg.
15,487 (1985).
i e
i h
i
C. Containment ,
Every nuclear power plant licensed in the United States must have a protective shell around the reactor, the cooling i
systems, and related systems. This shell, usually made of steel or steel-reinforced concrete, is known as a "containment", and is designed to "contain" radioactive material which might be released from the reactor during an accident.
In a nuclear power plant,.the principal sources of 1
protection of public health and safety are good design, construction, and operstion. Good design requires the ability to withstand certain kinds of accidents, which are thus known as "design basis accidents". These are detailed in the NRC's Standard Review Plan, which is used to evaluate the design of each nuclear power plant. Design basis accidents represent a wide spectrum of plant problems, some which micht be expected to occur in the lifetime of a plant (such as a failure of its power systems) , and others which are considered to be very unlikely (such as major ruptures of piping systems) . A plant designed to cope with these accidents incorporates moltiple and backup safety systems to protect the reactor should the principal operating l equipment fail. l l
Design standards for containment provide a degree of protection even beyond the protection provided by the multiple safety systems which protect the reactor. All containments, including the "Mark I" design at pilgrim, must be able to 9 l
withstand certain highl'y unlikely events. For example, nuclear ,
power plants are designed to withstand earthquakes, yet the containment must be able to cope with the simultaneous occurrence of an earthquake and a rupture of maj'< reactor coolant system piping. Moreover, even though ther a v a multiple and backup systems to keep the reactor cool, the containment is designed on the assumption that these safety systems may fail and that, as a j result, fission products may be released from the reactor core.
However, containments are not required to be designed against extremely low probability "severe" accidents. Such ccidents entail great damage to the reactor core and releases of large amounts of fission products. "Policy Statement on' Severe Reactor Accidents Regarding Future Designs and Existing Plants",
50 Fed. Reg. 32,138 (1985), 1 RA 921.
Nonetheless, while not originally designed to protect acainst some severe accidents, reactor containments, the Mark I included, can provide censiderable protection to public health and safety by reducing radiological releases from such accidents.
t The results of research indicate that most containments can ir fact withstand much more pressure than they were designed to withstand, and that they would very likely retain much, if not most, of the radioactive raterial which could be released f rom the reactor core in a severe accident. Boston Edison Co.
1 3
All referenees to the Record A will take the form, "tvolume number)ppendix submitted RA (page number by(s) MassPIRG
]" .
t 10
.._ _ _= _ - - - ~ __ - _ . . . - _ . _ __
. j (Pilgrim Nuclear Generating Station), Director's Decision, DD-87-14, 26 NRC 87, 98 (1987).
j -
III. MassPIRG's 2.206 Petition on July 15, 1986, some months after Edison shut Pilgrim down, MassPIRG and other organizations and individuals not I
involved in this litigation ("the 2.206 petitioners") petitioned the Commission under 10 C.F.R. $ 2.206 to order Edison to show ,
cause why Pilgrim "should not remain closed and or have its i
operating license suspended by NRC unless and until that time at which the licensee demonstrates conclusively to the NRC and the l public".that the deficiencies the 2.206 petitioners alleged had i
. been corrected. The deficiencies , alleged were in management, I
amargency planning, and containment design. The 2.206 1 petitioners asserted that at least in the aggregate, these deficiencies required that the requested relief be granted, f
2.206 Petition at 1-2, 38-39, 2 RA 957-58, 995-96. Only the emergency planning and containment issues are presently before this Court.4 i
4 l The management problems which the 2.206 petition listed were, as the 2.206 petitioners noted, well-documented in various NRC inspection reports, which constituted the bases of the 2.206 a
petition's claims concerning ranagement. See 2.206 Petition at 5-23, 2 RA 961-79. The 2.206 petition said that, "(al s such, (the problems) are not presented as specific violations whose past or ongoing presence at Pilgrim in themselves snould warrant a plant shutdown; indeed, some are being dealt with by the licensee under close NRC scrutiny." Id. at 4, 2 RA 960.
Nonetheless, the 2.206 petitioners concluded that the problems i
(Footnote Continued)
I 11
, . . , . -,._-- ._..-. , _ . . , - . _ . - _ _ - . , , . , _ . . . _ , . _ _ . _ _ _ , , ----.,,,.n-_,,,-,,,,,,.e n __, , - - - - ~ . - , _ -
A. The Emergency Plan Issues ,
The 2.206 petition alleged several deficiencies in the emergency plans for Pilgrim (1) inadequate or nonexistent .
advance inrormation to the public; (2) inadequate notification to the public during an accident; (3) inadequate evacuation plans, in particular, (i) unrealistically low evacuation time estimates, (ii) unworkablo plans for evacuating the physically disabled, nursing home residents, school children, hospital patiento, campers, inmates of correctional facilities, and people without automobiles, (iii) lack of agreements with, and training for, transportation providers, and (iv) rou.tes inadequate to handle i
the volume of evacuation traffic; (4) inadequate medical -
. facilities for treatment of victims of radiation, and no :
provision for distribution of radioprotective drugs; and (5) an emergency planning zone which is tco small. Id. at 25-30, 2 RA
) at 981-87. Finally, the 2.206 petition argued generally that i federal, state, cnd local governments were giving emergency '
planning a low priority and were not sufficiently coordinated in j I
their efforts. Id. at 30-32, 2 RA 987-89.
l l
i I i i l (Footnote Continued)
, were "symptomatic of the long history of Boston Edison's incompetence es the manager of a nuc1sar f acility. . . . Thus, its a
continuing operation of the PJ37 rim Plant poses an extremely 1 serious and unacceptable hea' ..t and safety threat to the citizens
+
of the Commonwealth." Id.
l l
l 12 l
~
B. The containment Issues The 2.206 petition also alleged design deficiencies in the General Electric "Mark I" containment at Pilgrim. The 2.206 petition argued principally that containments like Pilgrim's perform poorly in severe accidents, and that, "in the sobering light of the Chernobyl disaster," id. at 37, 2 RA 994, this poor performance should be of special concern. Referring to concerns raised in a 1972 internal Atomic Energy Commission memorandum, see id. at 32-35, 2 RA 989-92, the 2.206 petition also charged that the Mark I could not even cope well with design basis .
accidents.
The 2.206 petition claimed that the NRC permitted.
J '
plants with Mark I containments to continue to operate on the basis of quantitative techniques for assessing risk, called PRAs
. (for "probabilistic risk analyses"). The 2.206 petitioners ,
further asserted, with little explanation or support, that these PRAs do not take into account various important accident l scenarios and containment f ailurt modes, many of which are l
! particularly relevant to Mark I containments. Id. at 36-37, 2 RA
)'
993-94 On appeal, MassPIRG raises only one containment-related )
i issue, namely, that the Director did not explicitly answer the 2.206 petition's charge that P?.As do not consider several accident sequences particularly relevant to the Mark I containment.
The 2.206 petition requested that the NRC require Edison to prepare a "feasibility study on all possible structural l
13 i
i
modifications" to the containment before the NRC approved any particular modification of the containment. Id. at 39, 2 RA at 996 (emphases added). The petition did not state why such a study should be done, whether the "feasibility" that the 2.206 petisione;s wanted studied had economic as well as twchnical dimensions, or whether the petitioners had any particular structural modifications in mind.5 .
IV. The Director's Interim Decision On August 21, 1987, the Director of the NRC's Office of Nuclear Reactor Regulation issued a written decision, Boston Edison Company (Pilgrim Nuclear Power Station), Interim Director's Decision Under 10 C.F.B. $ 2.206 ("Director's Decision"), DD-87-14, 26 NRC 87 (1987).6 In that Decision, the
, Director granted the petition "to the extent Petitioners are J
- 5 The 2.206 petition also requested that the NRC, "prior to J
making a decision pursuant to issuing an operating license suspension, schedule a comprehensive public hearing to address the issues raised by the petitioners herein. Such a hearing
, should address other related issues, including but not limited to 4
Pilgrim's relationship to present and future regional energy
, needs." 2.206 Petition at 39, 2 RA 996 The question of whether there is a need for the power a plant produces is generally settled during NRC review of the application for permission to construct the plant. See, e.g., 10 C.F.R. S 51.95. The 2.206 petition contained no evidence on the region's present or future energy needs. The 2.206 petition did not say what "other related issues" should be addressed at the hearing it requested.
- 6 The Director's Decision became final agency action on i September 15, 1987, after the Commission declined to take sua l sponte review. Letter from Secretary Chilk to Commonwealth Senator Golden, September 24, 1987, 2 RA 1777.
1 14
requesting that Pilgrim remain shut down until the NRC is '
satisfied that management and emergency preparedness issues are l
dealt with to the Commission's satisfaction." Director's '
Decision, 26 NRC at 89. He deferred decision on whether the ;
j management issues raised by the 2.206 petitioners warranted an l order to show cause.7 I However, the Director denied the 2.206 petition's j request that the NRC require Edison to show cause why its Pilgrim license should not be suspended until the emergency planning and
{ contairrsnt issues raised in the petition were resolved.8
) MassPIRG's petition to the Court is directed solely to these I denials concerning emergency planning and containment.
I 1
1 -
1 J i i
l !
l 7
! The Director agreed with the 2.206 petitioners "that !
significant management deficiencies have existed at Pilgrim t
{ Station." 26 NFC at 93. The Director described the steps the !
licensee and the NRC were taking to correct those deficiencies. i i
see id. at 92-93. However, the Director deferred a complete ;
i ruling on the management issues raised by the 2.206 petition, j
- "until the management defi'ciencies have been suitably addressed by the Licensee and the Staff completes its assessment."
Id. at i 93. The deferred ruling will also be the natural place to l l consider the 2.206 petitions claim that , even if the alleced j
] deficiencies do not, taken separately, justify initiating a show j cause proceeding, all the deficiencies, taken in the aggregate, l i
i do justify such action. '
I {
The Director also denied the 2.206 petition's request that a "feasibility" study be done of "all possible structural i modifications" of the Mark I containment at Pilgrim. He noted j that, "(alt the present time, neither the licenses, nor the 3 staff, nor the Petitionars have identified any structural
] modifications to the Pilgrim containment that would be warranted by severe accident considerations." 26 NEC at 106
]
1 i
i 15 l I
A. Errergency Planning The Director based his decisions regarding emergency planning issues entirely on two FEMA reviews submitted to the NRC on August 6, 1987.
The first of the two reviews, largely completed on Vecember 20, 1986, analyzed the' issues raised in the July 15, 1986 2.206 petition, and was performed at the request of the NRC.
Director's Decision, Attachment A at 1, 4, 2 RA 1719,1722 The analysis was prepared by FEMA Region I with the assistance of the Argonne National Laboratory. Id. at 3, 2 PA 1721.
FEMA reported that "(inlost of the issues raised in the 1986 petition are essentially identical to issues raised in a 1 petition submitted to the NRC in 1983 by MASSPIRG, and to issues previously examined by NRC and FEMA. Based on a previous.
analysis by FDiA, the NRC denied the 1983 MASSPIRG Petition on i February 27, 1984." Id. at 4, 2 RA 1722. See Boston Edison l Company (Pilgrim Nuclear Power Station) , DD-84-5,19 NRC 542 (19P4) (Interim Decision), and DD-84-15, 20 NRC 157 (1984).
Proceeding through the 1986 2.206 petition allegation by j allegation, see id. at 5-48, 2 RA 1723-1764, FEMA concluded th~at "the information in the petition did not sustain the contentions based on the state of the record at the time the petition was reviewed ..."9 Id. at 4, 2 RA 1722.
I MassPIRG is not challenging these FEMA conclusions in this litigation.
16
Citing FEMA's analysis of the 2.206 petition as his basis, the Director denied the 2.206 petition's request that the NRC issue a show cause order to Edison. 26 NRC at 95.
4 -
The second of FEMA's two reviews analyzed a different set of issues involving the offsite plans, issues which FEMA had first become aware of during a series of meetings with the Commonwealth and local communities in the Spring of ';86, before -
the 2.206 petitioners had submitted their petition to the NRC.
FEMA Self-Initiated Review, August 4, 1987 at 7, 2 RA 1569. On the basis of information gathered in those meetings and later, FEMA embarked on a self-initiated review of the overall state of I emergency preparedness at Pilgrim. Id. at 7-8, 2 RA 1569-70.
FFMA completed its malf-initiated review on August 4, 1987 and submitted it to the NRC on August'6, 1987.10
! As a result of its self-initiated review, FEMA concluded that the Massachusetts plan is inadequate to protect the h9alth
~
and safety of the public in the event of an accident it the
) Pilgrim Nuclear Power Plant and cannot be implementeG until
! the inadequacies noted in this self-Initiated Review and 4 Interim Finding are corrected. ... FF.MA will continue to
, work with, and provide technical assistance to, the 1 Commonwealth of Massachusetts in its effort to fulfill its
- responsibility to develop a radiological emergency response j plan to protect the health and safety of its citizens, i
10 FEMA's review of the issues raised by the 2.206 petition j was an attachment to its self-initiated review. See FEMA Self-Initiated Review, Tab II, 2 RA 1627-79.
4 17 l .
FEMA Self-Initiated Review at 49, 2 RA at 1611.
In response to FEMA's self-initiated review, the Director concluded that "the emergency planning issues identified by TEMA are a matter of serious concern. The determination whether to restart the Pilgrim plant will involve, in necessary part, consideration of the resolution of emergency planning issues identified by FEMA." 26 NRC at 95. The Director I
therefore concluded that, "to the extent Petitioners are requesting that Pilgrim remain shut down until . . . emergency preparedness issues are dealt with to the Commission's satisfaction, the Petition is granted." Id.
, at 89.
I B. The Mark I containment issue The heart of the 2.206 petition's assertions concerning 1
the Mark I containment was that "the high probability that i Pilgrim's GE Mark I containment structure will not withstand j i
, l l
11 l FEMA identified six areas of major concern, most of them j having to do with evacuation (1) a lack of evacuation plans for
- public and private schools, and daycare centers; (2) a lack of a i reception center for people evacuating to the norths (3) a lack j
of identifiable public shelters for the beach population (4) inadequate planning for the evacuation of the special needs {
l population; (5) inadequate planning for the transportation dependent populations and (6) an overall lack of progress in
! planning and an apparent diminut Aon in emergency preparedness.
l FEMA Self-Initiated Review at 10-11, 2 RA 1572-73; 26 NRC at 95. l l
i FEMA's specific concerns were, for the most part, different from {
t MassPIRG's specific concerns. !
l I
i 18 ,
i l t
. , . , , .....,.,.-..--_-_.,,_,_,m,,--__._ _ _ _ _ . . . . - - , _ . - . - _ _ . . _ _ _ _ . . _ .
1 l
~
various severe accident scenarios is a very serious factor threatening public health and safety within the region." 2.206 Petition at 38, 2 RA 995.12 The basis for the 2.206 petition's assertion that there
)
was a high proba'aility that the Mark I would fail in a severe accident was an estimate by the NRC that the Mark I containment i 12 The Mark I takes a less brute force approach to containment than do many other designs. Rather than simply ,
holding the released pressure in a large volume bounded by walls ;
- ' which can withstand very high pressures, the Mark I first
"suppresses" the pressure by passing it through a large pool of l water. Director's Decision, Attachment B, at 1, 2 RA 1766. Thus i
. the Mark I can be smaller than other containments and its walls I can be built to withstand less pressure. l As reported in 59ction III.B above, the 2.206 petition also I i
alleged that the design of the Mark I is inadequate even for l design-basis accidents. As evidence f'or this claim, the 2.206 petition resurrected Mark I issues raised in 1972 by Dr. Hanauer of the AEC. These issuer,, like the petitioner's emergency planning issues, were based largely on matters resolved long before the 2.206 petition was filed. The 2.206 petition cited a 1 1972 internal Atomic Energy Commission memorandum by Dr. Stephen l Hanauer, see 2.206 Petition at 32-35, in which Dr. Hanauer
] of f ered, as "an idea to kick around", see cover memorandum to l Hanauer 1977 Memorandum, 1 RA 8, the adoption of a policy of "discouraging further use" of the Mark I containeetit design. See Hanauer 1972 Hemorandum at 1, 3 RA 9. The suggested policy weiill not have applied to the more than a dozen plants then operating J
with Mark I containments. The concerns Dr. Hanauer raised were resolved by the staf f in NUREG-0474, "A Technical Update on l Pressure Suppression Type Containments in Use in.U.S. Light Water
! Reactor Nuclear Power Plants", July 1978, 1 RA 230, and later l
! staf f generic issues programs. Dr. Hanauer himself later
- concluded that, ". .. while we may yearn .for . . . greater l
simplicity ... , the problems of . . . pressure suppression containments (like the Mark Il are solvable, in my opinion, and the design safe, therefore licensable." Director's Decision, 26 NRC at 100, quoting June 20, 1978 Memorandum from Hanauer to 1
Commissioner Hendrie at 2,1 RA 229. See 26 NRC at 99-102 see also Director's Decision, Attachment C, 2 RA 1769-75 (NUREG-WT4 l
! summary of staff actions on Dr. Hanauer's concerns) .
l 1 1
i 19
)
l l
, i had anywhere from a 10% to a 90% chance of failing in a severe l accident. See 2.206 Petition at 38, quoting NRC of ficial citing WASH-1400 (NUREG-75/014), "Reactor Safety Studyt An Assessment of Accident Risks in U.S. Commercial Nuclear Power Plants",
October 1975.
In response, the Director explained that a decision whether ts permit a plant to operate cannot be based only on an estimate of the probability of containment failure but instead must evaluate the overall risk to public health and safety:
The evaluation of severe accident vulnerability involves three distinct evaluations. First, the probability of an accident involving core damage. Second, the likelihood of cohtainment failure and third, an assessment ,
, of the radiological consequences and public doses resulting
) . from the accident. All three issues must be considered in '
l making a determination on the magnitude of severe accident risk and what actions should b adently be taken to reduce those risks.
Director's Decision, 26 NRC at 104. The Director then proceeded to set out the results of each of the three evaluations.
. The draf t results of NURIG 1150 ("Reactor Risk Reference 4
Docurent" (2 vols.) , Draf t for Comment, February 19871 l present the most recent program, whose intent is to accurately reflect. the severe accident risk at a number of l
! US nuclear power plants, and also to properly reflect the 1
areas of uncertainty.' This study included an evaluation for Peach Bottan, a plant quite similar to' Pilgrim in reactor i
desion and containment (Peach Bottom has a Mark I containment). The study presented the estimated mean l frequency of core damage to be approximately one chance in i 100,000 per year of operation.
I Id.
l l In reporting NURIG-1150's estimates for the second of i
the three elements which must go into an evaluation of severe 20 1
) .
)
=
{ accident risk, the probability of containment failure, the i l Director emphasized the uncertainty of the calculation, and the
- efforts the Commission was making to resolve that uncertainty.
- Draft NUREG 1150 also investigated the probability of early
- containment failure following a core melt. This study l concluded that our ability to accurately predict the
- response of a Mark I containment was limited for situations ,
i where it was subjected to the harsh temperature and pressure l j conditions following a core melt accident. As stated l l earlier, the report indicate'd that containment f ailure l
- probability (for these extremely unlikely events) could likely rance fzon 10 to 90 perca'.tt.
l J These uncertaintist are currently the subject of .
A research efforts to better prediwt the behavior of i l containments during severe accidents, so that a more i j complete risk perspective can be aseembled for guiding our
, regulatory activities. However, it is important that these ,
j uncertainties be properly characterized. They are not ;
- . identified deficiencies in the BWR [ Boiling Water Reactor) '
! Mark I containments, which have been demonstrated to satisfy i their design performance requirements . . . . Rather, these l uncertainties are areas whict} guide our research i investigations, whose goals are to provide improved
{ understanding o'f very unlikely risk situations at nuclear power facilities. l Id. at 104-05.13 -
l 4
13 It is important to understand that the 10 to 90% is a ranae_ of estimates for Mark I containment f ailure, and that the width of this range demonstrates the degree of uncertainty in the 1
calculation. The 904 estimate is in the upper 5% of the many estimates which make up this range. See 1 NUREG-1150 at 4-12, finure 4.2 Also, these are estimates not of catastrophic
{ failure, but simply of som breach of containment intecrity, however small.
]
1 The 2.206 petition also asserted that, "(iln the sobering
] light of the Chernobyl disaster, the issue of the inadequacy of the GE pressure-suppression containment has been raised again."
2.206 Peti. tion at 37, 2 PA 994. The central thrust of the Director's response to this claim was that the accident at chernobyl did not change the NRC's assessment of how the Mark I would perform under severe accident conditions. The Director (Footnote Continued) 1
_ _ _ _ _ _ _ _ _ _ _ _ __ _ m
e As noted in Section III.B above, the 2.206 petition alleged with little specificity that the NRC's techniques of risk assessment underestimated risk because they did not take into account several accidents and accident sequences relevant to the performance of the Mark I. The 2.206 for the most part simply i listed these accidents and accident sequences, only partially )
identifying them.14 The petition described only one accident in -
any detail.15 In his Decision, the Director addressed directly (Footnote Continued) listed aspects of the accident at Chernobyl which were necessary I conditions of that accident but which are not present in U.S.
reactors, such as, for example, a tendeticy to sudden increases in
, power under certain circumstances, a slow acting safety control rod system, and graphite moderation. The Director concluded that "the steam explosion in the reactor core (at Chernobyl], which ruptured the reactor core and surrounding building, was caused by a nuclear physics design vulnerability specifically prevented by j the Pilgrim design." See 26 NRC at 102-03. -
14 For eyample, the 2.206 petition has the following description of something it alleges is not taken into consideration in the NRC's PRAs: "A third type of scenario ...
involves station blackout sequences . . . ." There follows a list I i
' of other accidents: " ... interfacing loss of coolant accident '
. . . sequences, Mark I/II sequences with exploding hydrogen in de-inerted containment, reactor vessel rupture, main steam isolation valve . . . leakage, and steam explosions . . . " 2.206 1
, Petition at 36-37, 2 RA 993-94. The agency of course knows, for instance, what a steam explosion is, but there is more than one kind of steam explosion of relevance to reactor safety, and there i
are many accident sequences involving such explosions; and many
- such sequences are in f act considered in PRAs.
15 The 7.206 petition said of this accident: "For instance, i the safety / relief valves (SAVs) to limit reactor pressure
]
discharging to the suppression pool are located on the ma.inbysteam i l
lines inside the drywell. If a discharge line passing through
, the air space above the suppression pool were to break in the wet 6 -
well space following a stuck-open SRV in that line, ' steam would bypass the suppression
- pool and rapidly pressurize the containment ' ... . 2.206 Petition at 36, 2 RA 993 (citation omitted).
l 22
)
^
1 1 .
1
- that one accident and noted that this issue had been resolved to the staff's satisfaction in NUREG/CR-4594, "Estimated Safety i t
Significance of Generic Issue 61," June 1986. Director's
! Decision, 26 NRC at 101-102 Rather than address these remaining
)
i accidents one at a time, the Director assumed, as did the 2.206 l
l petitioners, that the probability that the Mark I would fail in a ;
severe accident' might be high.16 !
t Finally, the Director turned to the third element of !
) the evaluation of severe accident risk, the assessment of the i
consequences of a severe accident. Here, he emphasized again !
that despite containment "failure" -- that is, some, perhaps
] .
quite small, breach in containment integrity -- the Mark I :
- L i
containment would still provide a considerable amount of (
, I protection to the public in the event of a severe accident. Most t l
a isnportant, he concluded, the risk of a severe accident at Filgrim was low. .
I Even allowing the large uncertainties which result in s. !
high upper value for containment failure, the NUREG 1150 l i study estimated that the probability of a large reactor i
accident that results in 1 or rore early fatalities ranged l from 1 in one million to 1 in one billion. Civen a severe I
l l accident, the probabilities of very high radiatien exposure !
and the distances over which they would occur were also estimated to be reasonably small. The risk levels for Pilgrim would of course depend on its actual core melt j
probability, containment behavior, the local der.ography, and I
could vary somewhat from the results presented in NUREG 1150 The results of this and related studies do, however,
),
i 1 16
' Moreover, all of the accident's described by the 2.206 i
petition as being particularly relevant to the Mark I's performance in a severe accident are in fact taken into account by the NK's techniques of risk assessment. Sje, Argument III.C i below, i
I .
j 23 1
4
~
4 support our overall conclusion of low severe accident risk at the Pilgrim utility. One contributing factor is ... that the massive reactor containment structure may retain considerable radioactive material following a core melt even if its pressure boundary is failed. In this regard, containment failures include cracks or other phenomena that result in loss of pressure integrity that can result in leaks but should not be viewed solely as catastrophic failure of the containment structure. Plateout and deposition of material ,within containments, even though there may be leakage, also increase the time available to i implement effective evacuation activities.
Director's Decision, 26 NRC at 105.
- The Director reported that there are continuing efforts i
- to detennine whether there are undue severe accident vulnerabilities at any plant. In particular, he said that a
plant-specific studies under the "Individual Plant Examination" l
program would begin soon. Id. at 105. He noted also that Edison
, was considering certain modifications to enhance the Pilgrim f
containment. Id. at 105-06 The NRC staf f is now reviewing these risk-reduction modifications "to ensure that they do i
) represent ove,rall safety irprovements and that they have no l
) !
overall adverse safety impact on existing systems." Id. He l
'1 added that the NRC "does not view any of these modifications as necessary before the plant restarts." Id.
j The Director concluded that the Petitioners have not presented sufficient evidence to
! indicate that the Pilgrim Station should not operate while risk-reduction improvements are being considered. That is, j
there is not sufficient evidence o,f either design flaws at Pilgrim or high risk to warrant a Show Cause Order for the plant to remain closed or to suspend the operating license, l
Therefore, this portion of Petitioners' request is denied.
I
] Id. at 106 l
! 24 1
.-_-_---v,_.-- -_m,,,,-,__.y _,._-----,-_,---r
__ ___-- , .-,_-_--__,___,_-.,.__.___.-.y --. .-y _ _ - ,
l
SUMMARY
OF ARGUMENT I
The Director's Decision was final agency action even though he deferred ruling on management issues: The Director's denial of certain relief has resulted in legal consequences to MassPIRG; moreover, judicial review of the Decision will not j ,
disrupt the agency's decision-making on the remaining issues.
A refusal by the NRC to institute discretionary, I I
formal, enforcement proceedings at the request of a member of the public is not subject to judicial review. Heckler v. Chaney, 470 U.S. 821 (1985). Even if Heckler does not bar all judicial review of an agency's refusal to take discretionary enforcement action, it certainly should bar review where, as here, an agency
. has selected one of several legitimate enforcement tools. .
If the Court decides that the NRC's decision not to 1 institute formal enforcement action is judicially reviewable, l then the Court's intervention is limited to extremely compelling ;
circumstances. Moreover, when reviewing decisi6ns that involve complex regulatory matters which are within the NRC's area of ,
special expertise and at the frontiers of science, a reviewing court must generally be at its most deferential.
l The Director's action on MassPIRG's emergency planning contentions was reasonable and entirely consistent with findings by FD'A, the lead agency for review of of fsite emergency planning for nuclear power reactors. Citing FD!A's conclusion that the information in the 2.206 petition did not sustain MassPIRG's contentions, the Director denied the 2.206 petition's request,for l
25 l
institution of enforcement proceedings. However, citing FEMA's 1
conclusion that the off site plan was inadequate in respects other i
than those alleged in the 2.206 petition, the Director also l granted the 2.206 petition to the extent that it was asking that Pilgrim remain shut down until emergency preparedness issues were i
resolved to the NRC's satisfaction. Thus, MassPIRG's argument
, that the NRC ignored FEMA's findings is without basis. Neither i has MassPIRG offered any basis for preferring a show cause order ;
I to the action the Director took on FEMA's negative findings. .
i Finally, in rejecting MassPIRG's claim that "the high probability that Pilgrim's . . . containment structure will not withstand various severe accident scenarios ... threaten (s) i public health and saf ety . . .", the Director responded fully and j f airly by demonstrating that the overall risk of a severe l 1
) accident at Pilgrim was acceptably low. On appeal,!!assPIRC [
i '
j complains that the Director did not consider certain "evidence" 1 '
l r
that the NRC's quantitative techniques of risk assessment '
4 underestimate the probability that the bark I containment might
{ fail in a severe accident. Mcwever, rather than dispute the
. probability figures that MassPIBG put forward, the Director l
focussed on HassPIRG's claim that these figures threatened public l health and safety. Moreover, the "evidence" was little more than l
l a list of incompletely identified accidents which MassPIRG 1
i claimed PRAs do not take into account. The Director was not l
j obliged to respond to such "evidence". Besides, as nearly as the NRC can determine which accidents MassPIRG was referring to, they are in fact taken into account in the NRC's PRAs.
]
l 26 i
I ;
o ARGUMENT I. This Petition Seeks Review Of Final Agency Action.
This court has asked sua sponts "(w]hether the :
August 21, 1987 agency decision, which decided two of the three grounds petitioners raised, but reserved decision on a third 1
issue (alleged management deficiencies) is a final egancy !
decision which should be reviewed by this court at this time in [
advance of the agency's determination of the management issue." .
Order of Decerber 28, 1987. We believe the answer to the Court's question is yes.
, As MassPIRG correctly points out, the Director's decisions on the separate emergency planning and containment issues meet the test of finality shich has been established by f
the Supreme Court. Pet. Drief at 31. See Port of Boston Marine Terminal Association v. Rederisktiebola get Transatlantic, 400 U.S. 62, 71 (1970) (in determining finality of an agency decision i i
the appellate court should consider "whether the process of '
1 administrative decision-making has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action"). The two issues resolved by the Director have legal ccnsequences and present entirely segregable factual claims whose judicial consideration will not disrupt'any on-going agency proceeding. Thus, if petitioners had submitted separate 2.206 requests to shutdown l Pilgrim on amergency planning and containment grounds, the 27 1
Commission's refusal to grant those requests would have constituted final agency action for purposes of an appeal.
These principles do not fully resolve the finality question presented in this case, however, because petitioners submitted only one 2.206 petition, and that petition raised not
! only the emergency planning and containment matters on which the agency has tak'n e final action, but also managsment concerns which have not yet been finally disposed of by the agency. Thus, this case raises the question of whether the NRC's failure to resolve every issue presented in a 2.206 petition precludes a finding of l final agency action on those issues which it has resolved. This novel question was not discussed by MassPIRG in its Brief, nor has it been directly addressed by any judicial authority.
It is clear that had this case involved an order issued i
in a licensing proceeding in which the Commission decided some l but not all of the issues before it, there would be no final l agency action for purposes of an appeal. The counts have ,
I repeatedly held that, in a licensing proceeding, the final agency i) action necessary to bestow Hobbs Act jurisdiction is the grant or
! denial of the license. Ohio Citizens for Responrible Energy, l
} Inc. v. NRC, 803 F.2d 258 (6th Cir.1986) , cert. denied, 107 S.Ct. 1893 (1987); citizens for a safe Environment v. Atomic j Energy Commission, 489 F.2d 1018 (3d Cir. 1974): Thermal Ecology 1
1 Must Be Preserved v. Atomic Energy Commission, 433 F.2d 524 (D.C.
Cir. 19 70) .
i i
The order at issue in this case, however, is I
distinguishable from a similar order which might be issued in a I .
I J 28 t
i licensing proceeding. A licensing proceeding results in a single agency action, the grant or denial of a license, which occurs only at the end of the proceeding. Thus, although the Commission may reject some of the objections to a proposed license in an interim licensing decision, no decision resulting in legal l consequences to an opponent of the lice ~nsing occurs until the I commission issues a decision granting the license.
In the context of a 2.206 petition, however, the legal j -
consequences flowing from such a decision are dif,ferent. Here
'l J the petitioner is asking the agency for different relief, i.e.,' (
l 4
for a shutdown of the f acility for a specific reason. When that '
. request is denied, legal consequences flow to the petitioner j because the agency has finally acted on the concern prosented and refused to take the requested action for the requested reason.
j The f act that there are other issues presented by the petitioner j which may later result in a shutdown of the facility does not in any way detract from the fact that the agency's refusal to act l results in legal consequences to the petitioner, i.e., final l denial of a request for relief.
I i Finally, unlike the situati.on presented in a licensing 1
l proceeding, there are no considerations of judicial economy in a ,
1
, 2.206 case which would militate against a finding of finality. A Cormission decision for petitioners on the management issues will l
not in any way moot the necessity for an appeal on the two issues involved in this case. Were the Comission to determine in the on-going administrative proceeding that Pilgrim should remain
) shut down due to insuffielent confidence in its managemwnt team, 1
i 29 1
I'
1 i this deficiency could be addressed and corrected by Boston Edison
) and the plant could then be restarted. In order for petitioners !
I to preservc their claim that the plant should not operate until ,
) l i emergency preparedness and containment issues are also addressed
)
j and resolved to their satisfaction, they must in any event file i an appeal of the NRC's decision on those grounds at the i conclusion of the administrative proceeding.
j For this reason, a i t
favorable decision for petitioners on the management issues will l 6
! not in any way moot the necessity *for an appeal on the emergency !
1 j preparedness and containment issues,17 j
l For all of the reasons discussed above, the a
Cossaission's August 21, 1987 order is a final appealable order i within the terms of the Nobbs Act, 28 U.S.C. $ 2344. I l
l II. The NRC's Refusal To Institute Discretionary Enforcement t
} Proceedings At Petitioners' Request Is Not Judicially I t
! Reviewable. '
1 In our October 27, 1987 Motion to Dismiss, we made it clear that Neckler v. Chaney, 470 U.5. 821 (1965), precludes 1
judicial review of the NRC's refusal to take discretionary i
1 3
i l
17 l Permitting this appeal to go forward at this time also [
j makes good sense from a practical standpoint. At the present
~
time the Pilgrim nuclear facility is shut down. If the
, Commission erred in any respect in its decision on the emergency preparedness and containment issues, judicial review now rather than later may enable the Commission to achieve a timely correction of any such errors so that the plant's present shutdown need not he unnecessarily prolonged. .
30
i enforcement action. 'Rather than repeat the arguments set forth 1 -
l in detail in those earlier filed papers, we incorporate those i
arguments into this brief by reference.
In addition to the arguments raised in these filings, there is a secondary, less sweeping, Heckler v. Chaney argument
] that certainly intercepts one claim which petitioners raise.
MassPIRG appears to complain, in part, that the NRC has not taken the precise kind of enforcement action which MassPIRG would prefer. Pet. Brief at n.14 and, accompanying text. Thus, while the NRC has refused to allow the Pilgrim plant to restart until certain emergency planning concerns identified by FEMA's self-initiated review have been dealt with to the NRC's satisfaction, MassPIRG appears to argue that a license suspension and the institution of a formal show cause proceeding should have been the enforcement tools which the NRC should have employed to correct the emergency planning deficiencies that TEMA identified.
. See Argument III.E, below. Even if Heckler v. Chaney does not bar all judicial attacks en an agency's refusal to take discretionary enforceewnt action, it certainly should bar an attack on the agency's selection of one among several lugitimate unforcement tools, such a decision is generally unsuitable for judicial review, because it is up to the sole discretion of the agency to determine the enforcement vehicle which best achieves the agency's objectives, exploits the strength of the agency's case, and makes the most efficient use of the agency's resources.
, 470 U.S. at 831-32. Moreover, there are absolutely no standards by which a court can review such an agency 31
i j
enforcement determination.II i
i i III. The Director Properly Resolved MassPIRG's 2.206 Petition On
- Emergency Planning And Containment Matters. ,
A. The standard Of Review Of The Commission's Denial of l
!' Enforcemerit Action Is Highly Deferential. l f
I i l If, contrary to our argument against reviewability, see j Argument II above, the Court decides that the PRC's decision not :
1 ;
] to institute enforcement action is judicially reviewable, then it ,
must determine whether the decision denying the petitioners' j 2.206 request is "arbitrary and capricious, an abuse of I
i 4 .
discretion, or otherwise not in accordance with law." 5 U.S.C.
I l ,
5 706 (2) (A) . Three Mile Island Alert v. Nuclear Regulatory commissinn, 771 F.2d 720 (3d Cir.1985) , cert. denied', 475 U.S.
i 1082 (1986), reh. den., U.S. (1986), 306 C.Ct. 2909.
I '
j 1
If the denial of a 2.206 requent is reviewable at all,
) a Court's intervention is "confined to extremely compelling l
1 l
! II In this case the Director's decision not to institute l formal enforcement proceedings conserves agency resources while l
i assuring that the ettergency planning problems identified by FF.MA are satisfactorily addressed. Moreover, insofar as Mase??,RG is concerned, there is no practical difference between infoxmal J
agency action and a formal agency license suspension and order to show cause. In neither case is there automatically a hearing in 1
which the public has a right to participates to the contrary, i
' unless Boston Edison requests a hearing there will be none in either case. Thus, even had the NRC taken formal enforcerent .
l
' , action to suspend Boston Edison's license, the practical result !
would have been precisely what has happened herc -- no restart would be possible until improvements in Pilgrim's er:ergency l ,
planning acceptable to the NRC are accomplished and no hearing would have been held unless Boston Edison had requested one.
l
- 32 i
) _. . - __ _ - _ - _ _ _ - ---
circumstances." Rockford League of Women Voters v. Nuclear Regulatory Commission, 679 F.2d 1218,1222 (7th Cir. 1982). As the Second Circuit explained in County of Rockland v. NRC, 709 F.2d 766 (2d Cir. 1983), "our review is deferential because the Commission and its staff have special expertise and a wide range of experiences in nuclear power plant operation and safety." The D.C. Circuit has similarly held that in denying a 2.206 request, the agency "has substantial discretion to decline to initiate proceedings b,ased upon this review, at least where, as here, [it]
, gives reasons denying or deferring a hearing." Porter County Chapter v. Nuclear Regulatory Commission, 606 F.2d 1363,1369 1
, (D.C. Cir.1979) .
Furthermore, when reviewing decisions that involve I
complex regulatory matters which a're 'within (the NRCis] area of special expertise, at the frontiers of science ... as opposed to
] simple findings of f act, a reviewing court must generally be at i J
4 its most deferential.' Daltimore ces & Electric Ccmpany v.
ratural Resources Defense Council, Inc., 462 U.S. 87, 103 (1983).
]
1 Moreover, the NRC's regulatory schene is "virtually unique in the l
degree to which broad responsibility is reposed in the 1
I i
administrative agency, free of close prescription in its charter j as to how it shall proceed in achieving the statutory l objectives.* Public Service Co. of New Hampshire v. NRC, 582 I F.2d 77, 82 (1st Cir. 1978), quoting Siegal v. Atomic Energy Commission, 400 F.2d 778, 763 (D.C. Cir. 1968).
l 1
i l
l 33 i ;
i l
i
.I B. The Director's Action on MassPIRG's Emergency Planning l Concerns Was Reasonable And Entirely Consistent With PEMA's Findings. >
) As recounted in the Statement of the case above, the i Director relied entirely on FEMA's findings in resolving the r
amargency planning concerns raised by.the 2.206 petition. l
! i In its review of the 2.206 petition, FEMA found that ;
]l '
d most of the issues had already been censidered by FEMA and the NRC in reviewing an earlier 2.206 petition from MassPIRG.
3 .
{ Moreover, it concluded that "the information in the petition did ;
l not sustain the contentions based on the state of the record at I the time the petition was reviewed ... 2" FEMA Review of 2.206 '
l
petition, the Director denied the,2.206 petition's request for a f i show cause order. 26 NRC at 93-95. l l
1 1
At the same time that it issued its report rejecting !
the emergency planning allegations raised in the 2.206 petition, f
FEMA also issued a toport which discussed different emergency {
planning concerns which had been uncovered as a result of a FEMA (
t self-initiated review of the overall state of amergency l preparedness at Pilgrim. 1 In this report FEMA concluded that "the L Massachusetts plan is inadequate to protect the health and safet'y 1
of the public in the event of an accident at ... Pilgrim ... ."
l l
TEMA Self-Initiated Review at 49, 2 RA at 1611. Citing this l 1
l latter report, the Director granted the 2.206 petition, "to the I
j extent that Petitioners are requesting that Pilgrim remain shut
! down until ... emergency, preparedness issues are dealt with to 1
i
] 34 1
, the Commission's satisfaction." 26 NRC at 89; see also id. at 95 (decision whether to permit Pilgrim to restart will necessarily ;
involve consideration of issues identified by FEMA).
l PassPIRG argues that "(t]he NRC ... arbitrarily ignored the best expert information available ... on an issue essential I
to its statutory mandate to assure the public health and safety."
! Pet. Brief at 29. MassPIRG reaches this wholly erroneous
,' conclusion by attempting to' make it seem as if the results of.
FEMA's self-initiated review were based on the evidence presented i in its 2.206 petition, and by asserting that the Director j improperly disregarded the results of the self-initiated review a
j . altogether in denying that petition. Thus MassPIRG asserts that "the NRC arbitrarily gave no consideration to FEMA's August 4, I 1987 finding (the self-initiated review finding] that the state of offsite emergency preparedness for Pilgrim was inadequate. It l
i acknowledged the existence of the FEltA finding, but arbitrarily i
' 1 j did not censider it in its decision on the enforcement request." 1 i
] Pet. Brief at 24.
! There are two central flaws to MassPIRC's argument. ;
1 f
i First, the Director did not ignore any FEMA finding when he ruled I
on the 2.20,6 petition. That petition argued one set of i deficiencies, which FEMA found not to exist, while FEPA itself 1
found a quite different set of deficiencies. See Statement of j the Case III. A and n.ll. Thus, FEMA's deficiency findings were J
not made on the basis of the evidence presented in MassPIRG's 2.206 petition. The Director could and did reasonably reject 1
l -
. . )
l that evidence without in any way contradicting FEMA's conclusion '
about the condition of emergency planning at Pilgrim.
MassPIRG tries to overcome this disjunction between the deficiencies alleged by the 2.206 petition (and rejected by the Director) and the deficiencies found by FEMA by arguing that the Director, in ruling on the petition, should have taken into account the fact that FEMA's review of the petition agreed with "the general thrust" of the 2.206 petition's claims about i
- emergency planning. Id. at 27-28, citing FEMA Review of 2.206
, Petition at 4, 2 RA 1634 (emphases added). This assertion, however, runs into the second deficiency with MassPIRG's claim.
1
, In fact, the Director certainly did take into account
! TEMA's agreement with the "general thrust" of the 2.206 petition because he granted the petition "to the extent that Petitioners are requesting that Pilgrim remain shut down until ... amargency I
preparedness issues are dealt with to the Commission's satisfaction." 26 NBC at 89: see also id. at 95, 106-07 '
1 MassPIPG cannot bring itself to acknowledge that, on the basis of f l
FEMA's negative findings, the Director in part granted the 2.206 petition, at least to the extent that the petition was calling l
j for add!sg emergency planning issues to the li,st of issues that l 1
had to be addressed before restart. Indeed, in its brief, l {
l l
i -
i 1
1 -
J l
l 36 1
MassPIRG cannot even bring itself to mention that the plant is ,
shut down.II Thus, even if the results of FEMA's 'self-initiated review were relevant to a decision on whether enforcement action is justified, MassPIRG has, in effect, prevailed on such a claim.
The NFC will not permit Pilgrim to restart until the emergency ;
planning concerns identified in the FE!!A self-initiated review are dealt with satisfactorily. -
To the extent that MassPIRC may be arguing that the URC t
j-should have taken more formal, or different, enforcement action j than it has taken, such as suspension of a license or issuance of i
, a formal show cause order, Pet. Brief at 25, n.14, it has offered i
! no basis for overturning the Commission's selection of the t 1
l enforcement action which it felt appropriate. Contrary to the
- impression left by the MassPIRG, the NRC is not forced to choose between doing nothing and suspending a license or issuing a show cause order. In this instance, rather than issue a formal order :
to the licensee to show cause, the NRC has chosen not to permit i Pilgrim to be restarted until the issues raised by TEMA are l 1,
l'Had the Director taken no action at all in the face of TEMA's negative findings, MassPIRG might have grounds to make such a sweeping statement as that "the NRC... arbitrarily ignored j the best expert information available ... ", P6t. Brief at 29, but the proper instrument for ecmplaint would not have been its brief but rather another 2.206 petition to the Commission,
! arguing that the issues raised by TEMA required action. The j -
Commonwealth has, in f act, filed a 2.206 petition calling for i formal enforcement action on the basis of, among other things, TEMA's negative findings. Id. at 2 That petition has not been l
acted on by the NFC and is not before this court. l
)
j 37 l l
l
. I resolved to the setisfaction of the NRC. This is an entirely appropriate and legally permissible kay for the NRC to exercise )
its enforcement authority; moreover, it yields precisely the same 1
result as the petitioners' suggested formal enforcement action.
See n.18, above.20 4
] C. The Director's Denial of The Containment Allsgations .
Raised In MassPIRG's 2.206 Petition Was Reasonable And !
i Adequately Dealt With All Allegations Raised By The t j _etitioner.
P 1
! P.c Direc*,or responded fully and fairly in rejecting i
1 MassPIRG's claim that "the high probability that Pilgrim's GE i 4
j . Mark I containment structure will not withstand various severe !
e accident scenarios is a very serious factor threatening public i
i '
1 health and safety ... .* 2.206 Petition at 38, 2 PA 9953 see i also id. at 5, 39, 2 RA 961, 996. After setting out the basis of l
the NRC's requirements for containment design, he showed that, !
contrary to MassPIRG's claims, the Mark I could nors than l
adequately cope with design basis accidents. He then i
4 demonstrated that there was no basis to MassPIRG's claims that (
i the Chernobyl accident should somehow alter the NRC's estimates I
'l of how the Mark I would perform f.n a severe accident. Most 4
important, he showed that although there was considerable !
a ,
i u certainty about how the Mark I might perform in a severe ;
l !
20 j Zn addition to failing on the merits, petitionsrs' attempt to impose a different enforcement option on the URC runs squarely :
1 into Heckler v. Chaney. See Argument II above.
- li
)
38 }
- 's o ,
accident, the overall risk of a severe accident at Pilgrim was acceptably low, and the risk of a life-threatening severe accident at Pilgrim was even' orders of magnitude lower. 26 NRC
. at 104-105. He indicated that the NRC continues to study Mark I !
containment issues tut concluded that the 2.206 petition provided no basis for initia0ing a show cause proceeding on concainment issues at this time. Id. at 105-06. The Director's decision was based on an applicarion of his expert technical judgment to the facts presented on the record and was adequately explained. Such a decision is clearly antitled to this court's deference and should be affirmed.21 Baltimore Gas & Electric Co. v. NRDC, 462 U.S. at 103.
MassPIRG in fact seeks review of only a single aspect of the Director's long and detail &d response on containment 1
issues. MassPIRG asserts that the Director's Decision is l
~
unlawful and must be remanded to the NRC because it makes no reference to certain evidence which MassPIRG allegos suggests <
that "the analytical technique of probabilistic risk assessment tends to produce underect imates of the risks of a severe accident and, therefore, that the threat to the public posed by the Pilgrim plant has been underestimated (,l" Pet. Brief at 30.
21 If MassPIRG or any other person has technical objectic 9 to the Director's reasoning or new information that might af t .
any ongoing technical controversy regarding containment safety, they are of course free to submit their views and materials to the Director for his further consideration, perhaps even in the form of another 2.206 petition.
t 39
According to MassPIRG, the NRC failed to consider all the relevant evidence and failed to provide a statement of reasons that permits "a rational understanding of the basis for the decision". Id. at 29-30, citing Lorion v. NRC, 785 F.2d 1038, 1042 (1986), quoting Consolidated Edison Co. (Indian Point Units 1, 2, and 3) , CLI-75-13, 2 NRC 173,175 ( . f 5) .
We believe that any fair reading of the Director's decision will show that it was both rational and readily understood. On turning to the "evidence" in the 2.206 petition wht:h Ha~ssPIRG says the Director ignored, one finds that it is nothing more than a plain list, two paragraphs long, of accidents and accident sequences, all but one of them very poorly identified, which the'2.206 petition summarily claimed were relevant to the P. ark I's performance and were not taken into account by the NPC's PRAs. 2.206 Petition at 36-37, 2 RA 993-94, nn. 14 and 15 above (examples from the list) . The significance of such "evidence" was not explained in the petition, nor is it in any way obvious. The Director was not obliged to respond to it. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. at 553-54 (agency proceedings not a game in which to make cryptic and obscure references to mattero that "ought to be considered" and then to seek to have agency determination vacated on ground that agency failed to consider such m6tters). However, as noted -
in the Statement of the Case IV.B above, the Director in fact addressed the one accident sequence which the 2.206 petition described in any detail.
40 l
l
Apparently, the 2.206 petitioners cited these accident sequences, which MassPIRG now emphasizes, for the first time, in its argument to this Court, in order to show that the actual risk of containment failure at Pilgrim is on the high end of the range of the NRC's estimates of such failure. If so, the irrelevance of this material is clear because the particular figures which the NRC has put forward as measures of the probability that the Mark I might fail in a severe accident were not a n'atter of dispute between the 2.206 petitioners and the Director. The 2.206 petitioners quoted with approval figures drawn from NRC sources, see 2.206 Petition at 38, 2 RA 995, and the Director explicitly acknowledged the figures. Director's Decision, 26 NRC at 104.
1 Pether than dispute the' figures,.the Director proceeded I straight t "he principal containment issue raised by the 2.206 petition, which was "the high probability that Pilgrim's GE Mark l
I containment structure will not withstand varicus severe ,
i accident scenarioc ...." 2.206 Petition at 38, 2 R'. 995. The Director observed that, even assuming this point, the petition overlooked other important factors -- such as the extremely low probability of an accident that would challenge the containment.
The Director concluded that, when these factors were properly considered, the risk of a health-threatening severe accident at Pilgrim proved to be acceptably low. See Director's Decision, 26 NFC at 105.
In fact, the accidents and accident sequences merely listed by the 2.206 petitioners have been fully considered by the 41
l NRC, most of them in PRA's. Thus the 2.206 petitioners were not 4
bringing to light significant new information never before weighed by the agency. Indeed, all of the accidents described by the 2.206 petition as being particularly relevant to the Mark I's performance in a severe accident, see 2.206 petition at 36-37, 2 RA at 993-994, a.14 above, are actually incorporated into the quantitative rish 3ssessments of the Mark I set out in the publicly a'tailable draf t of NUREG-1150, the reactor risk reference document the Director so often cited in his treatment of the containment issues raised by the 2.206 petition.22 MassPIRG may not like the way in which the accidents listed in
, the 2.206 petition are incorporated into the NRC's PRAs, or it may wish that some different version.of a particular sequence were incorporated, but the 2.206 petition can hardly be said to have squarely presented such questions.23 l 1
l 22 The following portions, in particular, of draft NUREC-1150 show which accidents and accident sequences the agency has l incorporated into its quantitative risk assessments of the performance of the Mark I (as installed at Peach Bottom): 1 NURIG-1150, $$ 3.5 (core damage frequency), 4.5 (containment failure), 7.5 (severe accident rick); 2 NUREG-1150, Appendix E (Peach Bottom results, esp. Table E.2, "Questions Poced by Event Tree" for containment). The fullest possible identification of these accidents and accident sequences can be obtained by consulting the third reference listed at the conclusion ci l Appendix E, a study Sandia National Laboratories did of I containment performance under severe accidents.
23.For instance, the 2.206 petition says, "a third type of scenario .. . involves station blackout sequences. . ." 2.206 ,
l Petition at 37, 2 RA 994.
(Station Llackout is the loss of all '
ac power, caused by loss of offsite power and subsequent failure l
, of the, diesel generators.) As NUREG-1150 abundantly shows, the l (Footnote Continued) l 42
l l
l If MassPIRG believes that the NRC's consideration of these accidents and accident sequences has been somehow deficient, MassPIRG can file with the agency a petition which states its evidence on PRAs fully and makes a technical case.
In sum, not only did the Director's Decision explicitly and fully consider every factor fairly presented and necessary to the resolution of the 2.206 petitioners' argument on containment, the NRC has also given full consideration even to the matters no more than imolicitly raised in the 2.206 petition, whether (Footnote Continued)
NRC's assessment of the ri.sk at the Mark I plant studied in NUREG-1150 considered several station blackout sequences.
Indeed, the NRC concluded that the principal contributor to thL a
chance of core damage at Peach Bottom was station blackout. See 1 NUREG-1150, F 3.5 at 3o36 to 3-38.
However, a few of the factors listed by the 2.206 petition, the factors not directly relevant to the calculation of the l probability or containment failure, are not directly considered !
in the NBC's PRAs. For example, the NRC's PRAs do not explicitly I consider earthquakes or sabotage. The probability of sabotage, '
in particular, is not susceptible to quantitative treatment. See !
1 NUREG-1150, S 2.1 at 2-1. However, the NRC has considered the impact of external events, such as earthquakes, on its quantitative risk assessments, see, e.g., the quantitative results in the pioneering WAS9-1400, 1:UREG-75 /014 , "Reactor Safety Study" (the predecessor to NUREG-1150) , Main Report S 5.4, at 66-68 tearthquake-induced accidents should not contribute significantly to reactor accident risk), and the NUREG-1150 results will eventually be enlarged to explicitly include the impact of external events. 1 NUREG-1150, S 11.4, at 11-5 to 11-6. Moreover, the NRC's requirements on external events, sabotage, and other matters not presently considered in PRAs, are extensive and rigorous. See, e.g., the large body of regulations governing physical protection of plants and materials, 10 C.F.R. )
Part 73 and Appendices. Adequately low probabilities as I
calculated by PRAs, taken in conjunction with demonstrated !
compliance with such regulations as govern matters not yet incorporated into PRAs, provide a solid ground on which to base a '
judgment that a given plant is safe to operate.
i 43
l relevant to the petitioners' ultimate claims o,n. containment or I
not. The Director's Decision on containment issues is thus neither arbitrary nor capricious, and should therefore be affirred.
l O
e G
I e
G
& 4 g 1
l .
44
i 1
CONCLUSION i
For the reasons give.n above, the Director's Decision !
should'be affirmed.
Respectfully submitted, 6
WILLIAM C. PARLER y
- d4' (' $4 LAURA E. FROSSARD MW
/
G General Counsel Attorney
' l Land and Natural 4, f[ Resources Division t -- .'. U.S. Department of WILLIAM !!. BBIG I, JR. Justice So ici,or Washington, D.C. 20530
&O AV " c E. LEO SLAGGIE
. Deputy Solicitor /
NM
- ( ,
STEVEN F. CROCKETT f( lY. f4'hv24)r (
ROCHELLE M. Gtmt!ER .
Attorneys U.S. Nucicar Regulatory Commission Washington, D.C. 20555 Dated: Parch 1, 1988 l
, of I I I I
- i i
,f .)
l 45 1 1 l l
~
..'o ,
, CERTIFICATE OF SERVICE ,
l I, Steven F. Crockett, hereby cert.ify that service of the foregoing March 1, 1988 "Brief for Respondents" was made by mailing two copies thereof, postage prepaid, by first class mail, tot i William S. Abbott, Esquire Simonds, Winslow, Millis & Abbott 50 Congress Street Boston, MA 02109 -
R. K. Gad III, Esquire Ropes & Gray 225 Franklin Street Boston, MA 02110 1
' George B. Dean, Esquire 1 Assistant Attorney General Department of the Attorney General one Ashburton Place - 19th Floor Boston, MA 02108-1698 l
l l
)h STEVEN F. CPCCKETT I Attorney U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (202) 634-1465 i.
t s' .
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o R O P E.Sg4 G n Av 225 FRANKLIN STREET BOSTON, MASSACHUSETTS O2110
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'barch1, 1988 Francis P. Scigliano, Esquire Clerk United States court of Appeals for the First Circuit Room 1606 Post Office and Courthouse Boston, Massachusetts 02109 Re: Massachusetts Public Interest Research ,
Groue et al. v. NRC.'Ist Cir. No. 87-1865 '
N{
Dear Sir:
- 3 In accordance with the provisions of Local Rule h.2 and the Order of Court entered February 17, 1988, we transmit herewith ten copies of the "Brief of the Intervenor Boston Edison Co." in the above-entitled matter. Two copies of this l brief have been served upon eagh of the parties separately represented herein, by copy he eof.
Very truly yours, !
I l
f R. K. Gad III
,)
RKG/ajp e Enclosures ).
3
' cc w/encls. (2): j ,
j Stephen Crockett, Esquire -'
George B. rean, Esquire 4 0
-) Laura E. Trossart, Esquire
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- William S. Abbott, Esquire f
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1 TABLE OF CONTENTS t Page ISSUES PRESENTED FOR REYlEW . . . . . . . . . . . . . . . . I STATEM ENT OF THE CASE . . . . . . . . . . . . . . . . . . . , 2 A. Prior Proceedings. . . . . . . . . . . . . . . . . . . . . . 2 B. The Facts. ........................ 3 SUMM ARY OF ARGUM ENT . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT............................ 9
- 1. THIS COURT LACKS JURISDICTION TO REVIEP.HE DIRECTOR'S
'INTE RIM DECISION.* . . . . . . . . . . . . . . . . . . . . . 9 A. Two Requisites of Jurisdiction to Review are that the Order of Which Review is Sought be Final and Not Involve a Matter Committed to Agency Discretion by Law. .. ... 9 B. This Court Lacks Jurisdiction to Review Denials of NRC E n force me nt Action. . . . . . . . . . . . . . . . . . . . . 10
- 1. The Denial of Enforcement Action is Presumptively Unreviewable ' Agency Action Committed to Ager.cy Discretion by Law." ................. 10
- 2. The Atomic Energy Act and the Commission's Regula-tions Contain Nothing Sufficient to Rebut, but Rather They Confirm, the Presumption that the Commission's Enforcement Discretion is Unconstrained by Mandatory Standards. . . .. ................. 11
- 3. In Their Jurisdictional Responses. Neither MassPIRG nor the Commonwealth have Overcome the Presumption of Unre vie wability. . . . . . . . . . . . . . . . . . . . 13
- a. Reviewability of Agency Enforcement Action Should Not Depend Upon or Be Affected by Agency Pronouncements. .............,.. 14
- b. The Commission Pronouncements Upon Which MassPIRO and the Commonwealth Rely Do not Bind the Commission's Enforcement Discretion and Therefore do not Suffice to Convert its Enforce.
ment Initiation Decisions into Reviewable Orders. . 17
r T
(1) The Indian Point Decision Neither Purports nor Effects Any Constriction of Commission Discretion. . . . . . . . . . . . . . . . . . 17 (2) The Petition for Emergency Action Decision Effects no Abandonment of Commission Disc re tio n. . . . . . . . . . . . . . . . . . 19 (3) Appendix C Does Not Limit Commission Disc re tio n. . . . . . . . . . . . . . . . . 20
- c. Miscellaneous Points. .......... .... 21 (1) The Lorion Decisions are not Authority for the Reviewability of Commission Enforcement Decisions. . . . . . . . . . . . . . . . . . 21 (2) The "Sholly Amendment
- History has Nothing to Do with the issue Now Before This Court. 22 C. Insofar as the "Interim Director's Decision
- Deferred Taking Act'en on the Request for Enforcement, Review is Barred i
Becau?e the "Interim Director's Decision' is not Final. . . . . 23 D. Finality on Account of the Ceferred ' Management Issues.* . 23
- 11. IF REYlEWABLE,THE
- DIRECTOR'S DECISION'SHOULD BE AF-FIRMED............................ 28 A. The Standard of Review.. ................. 28 B. There is No Bads for Reversal of the ' Containment issues
- Portion of DD-8 7- 14. . . . . . . . . . . . . . . . . . . . 29 C. There is No Basit for Reversal of *Off-Site Emergency Planning issues' Portion of DD 87 5- ... ...... 32
- 1. The Disposition of the Golden Petition was Correct. .. 33
- 2. The Commission's Response to the FEMA Self-Initiated Report Should not be Considered on this Appeal Because it is Both Non Final and Outside cf the Scope of the i 2.206 Petition; if Reviewed. This Aspect of DD 87-14 Should Nonetheless be Affirmed. . . . . . . . . . . . 35
. li .
TABLE OF AUTHORITIES Page(s)
CASES:
Judicial:
AppleYard's Motor Transportation Co., Inc., v.
ICC, 592 F.2d 8 (1st Cir.1979) . . . . . . . . . . . . . . . . . 29 Daltimore Gas & Electric Co. v. NRDC, 462 U.S. 87 (198 3) . . . . . . . . . . . . . . . . . . . . . . . 32 Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc.,419 U.S. 281 (1974),
reh's denitd, 420 U.S. 956 (1975) . . . . . . . . . . . . . . . . 29 Center for Auto Safety v. Dole, 828 F.2d 199 (D.C. Cir.1987) . . . . . . . . . . . . . 15 18, 21, 22 Citizens for a Safe Environment v. AEC, 489 F.2d 1018 (3d Cir.1974) ..................25 i
Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402 (1971) . . . . . . . . . . . . . . . . . . . 28 l County of Rockland v. NRC, ,
709 F.2d 766 (2d Cir.198 3) . . . . . . . . . . . . . . . . . 19,25 I Doe v. Hampton, 566 F.2d 265 (D.C. Cir.1977) . . . . . . . . . . . . 15 Ecolo8y Action v. AEC,492 F.2d 998 (2d Cir.1974) .........25 Florida Power & Light Co. v. Lorion, 470 U.S. 729 (198 5) . . . . . . . . . . . . . . . . . . . . 10, 13, 21 Heckler v. Chaney, 470 U.S. 821 (1985). . . 3, 10 16, 21, 23, 24, 26, 28, 37 i
Honicker v. NRC,590 F.2d 1207 (D.C. Cir.1978),
cert. denitd,441 U.S. 906 (1979) . . . . . . . . . . . . . . 24,2) I 1
tilinois v. NRC, 591 F.2d 12 (7th Cir.1979). . . . . . . . . . . . . . 23 ll l
K. W. Thompson Tool Co., Inc. v. U.S.,
i i No. 871536 (1st Cir. Jan. 14, 19 8 8). . . . . . . . . . . . . 13,28,37 l 1
l 1
l
- iii -
1
Lorion v. NRC,712 F.2d 1472 (D.C. Cir.1983),
rev'd sub nom. Florida Power & Light Co. v.
Lorion. 470 U.S. 729 (l985), on remand sub nom.
Lorion v. NAC 785 F.2d 1038 (D.C. Cir.1985) . . . . . . . . . 10,21 Lorion v. NRC, 785 F.2d 1038 (D.C. Cir.1986) . . . . . . . 10,21,22,32 NAACP v. Secretary of Housing and Urban Development,817 F.2d 149 (1 st Cir. 198 7) . . . . . . . . . . . . . . . . . . . . . . . . . 13 Natural Resources Defense Council v. EPA, 824 F.2d 1258 (1st Cir.1987) . . . . . . . . . . . . . . . . . . 32 Natural Resources Defense Council v. NRC, 680 F.2d 810 (D.C. Cir.1982) . . . . . . . . . . . . . . . . . 24,25 Padula v. Webster, 822 F.2d 97 (D.C. Cir.1987) ................. 15,18
- Porter County Chapter, etc. v. NRC, 606 F.2d 1363 (D.C. Cir.1979) .................23
' Public Service Company of New Hampshire v. NRC, 582 F.2d 77 (1st Cir.1978) . :........ ...... 12,19 Quinonez Loper v. The Coco Lagoon Development Corp., 731 F.2d I (1st Cir.1984) . . . . . . . . . 32,36 Rockford League of Women Voters v. NRC, 2
679 F.2d 1218 (7th Cir.1982) . . . . . . . . . . . . . . . 26,29,37 Seacoast Anti Pollution League v. NRC, 690 F.2d 1025 (D.C. Cir.1982) .................26 Siegel v. AEC, 400 F.2d 778 (D.C. Cir.1968) . . . . . . . . . . . . 12, '49 Sierra Club v. NRC,825 F.2d 1356 (9th Cir.1987) ..........23 Thermal Ecology Must Be Preserved v. AEC, 433 F.2d 524 (D.C. Cir.1970) . . . . . . . . . . . . . . . . . . 25 Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir.1974) .................. 4 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,435 U. S. $19 (1978) ............ 2 8
. iv .
l Western Union Telegraph Co. v. FCC, l 773 F.2d 375 (D.C. Cir.198 5) . . . . . . . . . . . . . . . . . .
23 Administrative: :
Boston Edison Co. (Pilgrim Nuclear Power Station),
CLI-82-16,16 NRC 44 (1982), s//'d sub nom.
Belloni v. NAC,725 F.2d 1380 (D.C. Cir.1983) . . . . . . . 18,36 Boston Edison Co. (Pilgrim Nuclear Power Station),
ALAB 83, 5 AEC 354 (1972) . . . . . . . . . . . . . . . . . . . 4 Conso! Mated Edison Co. (Indian Polat, Utfu 1,2 and 3). CLI-75 8, 2 NAC 173 (1975) ...................... 17 19 Consolidated Edison Company of New York (Indian Point, Unit 2), CLI-83-16, 17 NRC 1006 (1983) . . . . . . . . . . . . . . . . . . . . 19,37
~
Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Units I and 2),
ALAB-301,2 NRC 853 (1975) .................26 Petition for Emergency Action, CLI-7'3-6, 7 NRC 400 (1978) ...................... 19,20 Toledo Edison Co. (Davis-Besse Nuclear Power 4
Station), AL AB-300, 2 NRC 752 (1975) . . . . . . . . . . . . . 26 STATUTES:
Federal:
5 U.S.C. ) 701 . .. . . . . . . . . . . . . . . .. . . . 9,11,13,28
$ US.C. I 706( 2 X a ) . . . . . . . . . . . . . . . . . . . . . . . . . 28 28 US.C. I 2342 ......................... 9,24 l 4
2 9 U S.C. I 360 8(e X 5) . . . . . . . . . . . . . . . . . . . . . . . . 13 a
42 US.C. I 2 014(cci . . . . . . . . . . . . . . . . . . . . . . . . . . 3 .
l 42 US.C. I 2236 ( A E A i 186) . . . . . . . . . . . . . . . . . . . 4. 11 l l
. -v.
I
- _ _ _ . _- . _ _ _ . - - = -
42 U.S.C. I 2237 ( A E A i 187) . . . . . . . . . . . . . . . . . . 4,12 42 U.S.C. I 2239 ( A EA i 189) . . . . . . . . . . . . . . . . . . . . . 9 42 U.S.C. I 5801 et seg. . . . . . . . . . . . . . . . . . . . . . . . 2 State:
St. 19 50, c h. 6 3 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 St.1979, ch. 796, i 2A ........................ 5
(
REGULATIONS:
- 10 C.F.R. Il 2.200 2.206 . . . . . . . . . . . . . . . . . . . . . . 4, 12 10 C.F.R. I 2.200(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1 10 C.F.R. I 2.2 06 . . . . . . . . . . . . . . . . . 4, 5. 10, 12, 13, 17-26 10 C.F.R. I 50.54(s) . . . . . . . . . . . . . . . . . . . . . . . . . 19 10 C.F.R. I 50.54(sX2Xil) .....: ................19 i
10 C.F.R. I 50.54( sX 3) . . . . . . . . . . . . . . . . . . . . . . . . 35 i 10 C.F.R., Part 2. A ppe ndix C . . . . . . . . . . . . . . . . . . . . 20 SECONDARY MATERIALS:
Breyer,' Vermont Yanket and the Courts' Role in the Nuclear Ener8y Controversy,'
91 Harv. L. Rev. 18 33 (1978) . . . . . . . . . . . . . . . . . . 13 4
1 1
l I, 1 I'
i
- Y) =
i UNITED STATES COURT OF APPEALS for the FIRST CIRCUIT No. 87-1865 MASSACHUSETTS PUBLIC INTEREST RESEARCH GROUP INC. et al.,
Petitioners, v.
UNITED STATES NUCLEAR REOULATORY COMMISSION et al.,
Respondents.
On Appeal from the Denial of a Petition fot Enforcement Under 10 C.F.R. I 2.206 BRIEF OF THE INTERVENOR BOSTON EDISON COMPANY ISSUES PRESENTED FOR REVIEW
- 1. Does the Commission's deferral of one of the three grounds asserted for enforcement action render the rejection of the other two grounds sufficiently non final as to preclude review that would otherwise be available?
l
- 2. Can agency pronouncements that neither mirror provisions in the '
agency's substantive statute not amount to formally promulgated regulations effect the sort of prescription of otherwise unfettered agency enforcement discretion requisite to reviewability of enforcement action denials under Heckter v, Chaney, 470 U.S. 821 (1985)7
] 3. Do the agency pronotncements upon which MassPIRO and the 1 , Commonwealth rely supply the required curtailment of agency discretion in f l l
l
O this case (assuming any agency action eculd overcome the presumption of non-reviewability)?
- 4. If it is reviewable at all, was the denial of a request for enforcement in this case "arbitrary, capricious or an abuse of discretion?"
- 5. If the petitioners contend that the portion of DD 87-14 that deferred action on so much of the
- Golden l'etition' as raised the so-called
' management issues
- is now before the Court, is that portion not so clearly non-final as to not be reviewable at this time in any event?
STATEMENT OF THE CASE A. Prior Proceedlags.
This is a proceeding seeking judicial review of the denial, ia part, of a citisen's petition for the initiation of agency enforcement proceedings. The request for enforcement was submitted to the Commissioni by William B.
Golden et al.8 on July 15, 1986. With respect to one aspect of the eetition,
, dealing with certain so-called "off-site emergency planning
- issues, the Commission sought the views of the Federal Emergency Management Agency3 on August it,1986; on July 29, 1937 FEMA reported to the Commission that the contentions of the Golden Petition were not sustained.' On August 21, 1
The licensing and regulatory functions of the Atomic Energy Commis-sien were transferred to the Nuclear Regulatory Commission by the Energy Reorganization Act of 1974, 42 U.S.C. I 5:01 et seg. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council. Inc. 435 U. S.
519, 526 n.2 (1978). Hereinafter we refer to the ' Commission
- without distinction between the two agencies.
8 Hereinafter the request to the Commission for enforcement is referred to ns the ' Golden Petition.'
8 The Commission bases its licensing decisions insofar as they involve
'off-site" emergency planning issues upon the review of state and local government elans performed by FEMA, though the Commission has not dele-sated the decision-making function to FEMA: 'In any NRC licensing proceeding, a FEMA finding will constitute a rebuttable presumption on questions of adequacy and implementation capability." 10 CFk 65 50.47(a),
50.54(s)(3). A Memorandura of Understanding between the agencies co-ordinates this FEMA assistance function. See 50 Fed. Reg. 15,465 (1985).
- FEMA, Analysis of Emergency Preparedness issues at Pilgrim Nuclear Power Station Raised in a Petition to the NRC Dated July 15. 1986 (7/29/37).
R.1717 65.
i 2-
1987, the Director of the Commission's Office of Nuclear Reactor Regulation denied the Golden Petition in part and deferred action on it in part.' On October 1,1987, MassPIRG et al. filed a ' Petition for Review'* in this Court.
Before this Court, the initial parties were the petitioners and the United States Nuclear Regulatory Commission. Subsequently, this Court permitted Boston Edison Company, the owner of the facility in respect of which enforcement was sought, to intervene in opposition to the MassPIAG Petition, and it permitted the Attorney General of the Commonwealth to intervene in support of it. Thereafter, certain of the original petitioners withdrew from this proceeding and the remaining petitioners opted to join in
{ the Commonwealth's brief in lieu of filing their own.
l By separate motions, both the Commission and Boston Edison Company have moved to dismiss the Massf/AG Petition on the ground that, following
- tekler v. Chancy 470 U.S. 821 (1985), the Commission's denial of enforce-ment is not reviewable. On December 28, 1987, the Court deferred this I jurisdictional question to the merits panel, instructing the parties to brief an additional question of jurisdiction as well.7 It is in this posture that the matter comes now before this Court.
B. The Facts.
l The Atomic Energy Act authorizes the Commission to license the construction and operation of "utilization facilities,*8 which term includes I commercial electric power reactors such as Pilgrim Nuclear Power Station '
(' Pilgrim') owned by Boston Edison Company (* Boston Edison *). Acting S
The agency action of which review is sought is formally entitled Boston Edison Co. (Pilgrim Nuclear Power Station), DD 87-14,26 NRC (August 21,1987). R.1681-1716. The 'DD' is:uance number signifies that it is a ' Director's Decision
- disposing of a petition for enforcement action laid under 10 C.F.R. I 2.206. By Commission convention, it is referred to by its issuance number.
8 !
Hereinafter the petition for review in this Court is referred to as the
- MassPIRG Petition.'
Nhether the August 21, 1987 agency decision, which decided two of the three grounds petitioner raised, but reserved decision on a third issue '
(alleged management deficiencies) is a final agency decision which should be reviewed by this court at this time in advance of the agency's determination I of the management issue.' Order of Court, December 28,1987
'See Atomic Energy Act, { ll(cc),42 U.S.C. I 2014(cc).
3
RoPts & GRAY 225 FRANKLIN STRCCT BOSTON, MASSACHUSCTTS O2fl0
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March 1, 1988 Francis P. Scigliano, Esquire clerk United states Court of Appeals for the First Circuit Room 1606 Post Office and Courthouse Boston, Massachusetts 02109 Re:
Massachusetts Public Interest Research Grour_et al. v. NRC. 1st Cir. No. 87-1865
Dear Sir:
In accordance with the provisions of Local Rule 30.2 and the Order of Court entered February 17, 1988, we transmit herewith ten copies of the "Brief of the Intervenor Boston Edison Co." in the above-entitled matter. Two copies of this brief have been represented served herein, by copy uponhereof.
each of the parties separately Very truly yours, R. K. Gad III RKG/ajp Enclosures cc v/encls. (2):
Stephen crockett, Esquire j ;
George B. Dean, Esquire i Laura E. Froasart, Esquire i William S. Abbott, Esquire I l
i 6
a / .
under this authority, the Commission issued an operating license for Pilgrim in 1972, see Boston Edison Co. (Pilgrim Nuclear Power Station) ALAB 33,5 AEC 354 (1972), and its decision was affirmed on direct appeal, see Union of Concerned Scientists v. AEC. 499 F.2d 1069 (D.C. Cir.1974). The Act also authorizes the NRC to take a range of enforcement actions with respect to its licensees, including the revocation of licenses pursuant to section 186 of i the Act and modification, revision or suspension of licenses under section '
137 of the Act. See 42 U.S.C. Il 2236, 2237.
Sections 136 and 187 have been implemented by sections 2.200 2.206 of the Commission's regulations (10 C.F.R. (( 2.200-2.206), which
- prescribe ()
the procedure in cases initiated by the staff, or upon a request by any l person, to impose requiremenu by oider, or to modify, suspend, or revoke a licerue, or to take other action as may be proper against any person subject to the jurisdiction of the Commission." 10 C.F.R. I 2.200(a).
l Commendably, the Commission has established by regulation a procedure for receiving and administering requests from the public for the initiation of j
enforcement proceedings, which is contained in 10 C.F.R. I 2.206.
1
- *(a) Any person may file a request for the Director of Nuclear Reactor Regulation, Director of Nuclear Material Safety and Safeguards, Director, Office of Inspection and Enforcement, as
' appropriate, to institute a proceeding nursuant to i 2.202 to modify, suspend or revoke a ligense, or for such other action as may be proper. Such a request shall be addressed to the Director -
of Nuclear Reactor Regulation, Director of Nuclear Material Safety and Safeguards, Director Office of Inspection and Enforcement, as appropriate, and shall be filed either. (1) By delivery to the Public Document Room at 1717 H Street NW., Wuhington, D.C., or (2) by mail or telegram addressed to the Director of Nuclear Reactor Regulation, Director of Nuclear Material Safety and Safeguards, Director Office of Inspection and Enforcement, u appropriate, U.
S. Nuclear Regulatory Commission, Wuhington, D.C. 20555. The requesu shall specify the action requested and set forth the facts that constitute the basis for the request.
l
- (b) Within a reasonable time after a request pursuant to paragraph (a) of this section has been received, the Director of I l
Nuclear Reactor Regulation, Director of Nuclear Material Safety and Safeguards Director, Office of Inspection and Enforcement, as appropriate shall either institute the requested proceeding in 4
accordance with this subpart or shall advise the persen who made 4
the request in writing that no proceeding will be instituted in whole or in part, with respect to his request, and the reasons therefor.
i 4.
l
. . _ . . , _ . _ , , - . _ , , _ _ _ . . , ,_______m__ - _ . - _ _ _ _ . , - - - , , , . _ _ _ . , , . _ . . _ . _ - -
- (c)(1) Director's decisions under this section will be filed with the Office of the Secretary. Within twenty five (25) days after the date of the Director's decision under this section that no proceeding will be instituted or other action taken in whole or in part, the Commission may on its own motion review that decision, in whole or in part, to determine if the Director has abused his discretion. This review power does not limit in any way either the Commission's supervisory power over delegated staff actions or the Commission's power to consult with the staff on a formal or informal basis regarding institution of proceedings under this section.
- (2) No petition or other request for Commission review of a Director's decision under this section will be entertained by the Commission.'
i The request for initiation of agency enforcemen' that is the subject of this appeal was submitted to the Commission explicitly as a { 2.206 petition.
A. 957. See also Commonwechh frie/ at 10. It sought the initiation of investigatory enforcement action on three grounds. The first ground, commonly referred to as involving the ' management issues,' was premised on the recitation of a collection of supposed "events' all of which were previously known to the Commission; indeed, on this issue the Golden
' Ptrition advanced only materials from the Commission's own dockets, including prior inspection reports and prior enforcement activities. A. 5 25.
The second ground, referred to as involving "off-site emergency planning issues,' asserted sia very specific alleged deficiencies in off-site emergency planning,' together with (as required by section 2.206) the factual basis on which the petitioners relied. A. 25-32. The third ground, referred to as involving ' containment integrity issues,' reverted to a recitation of ancient technical issues and concerns long known to and previously considered by the Commission. A. 32 38.
As to the first ground, the request for enforcement was deferred:
'For the reasons discussed above, a decision cannot be made at this time regarding the management issues. This portion of the Petition will be addressed in a subsequent response."
1
'It is worth noting that in NRC parlance, emergency planning require-ments fall into two categories: the 'on site' activities, which are the ,
l responsibility of the licensee or applicant for a license, and the "off site
- I activities, which in the normal course are the responsibility of the state and local gosernmental officials (in Massachusetts, perforce St.1950, ch. 639, as l amended by St.1979, ch 796, i 2A of state officials). All of the alleged defects set forth in the Golden refillon related to asserted deficiencies or
, failures of state action (as opposed to Boston Edison Company action). )
-5
)
\
l
l g
l l
1 I
DD-87-14. Slip Opinion at 35; A.1715. As to the two latter grounds, the Golden Petition was denied on the ground that the petition failed to make out a cue for the commencement of enforcement proceedings. DD 87-14, Slip Opinion at 35-36; A.171516. Specifically, insofar as the request for ;
enforcement action against Pilgrim was based on containment integrity, it 1 was found by the Director to involve a generic issue of which the agency '
was fully aware, which the agency hu generically concluded does not !
present a serious safety issue, and which the petitioners apparently failed to l understand. DD-87-/4, Slip Opinion at 15-34; A.1696-1715.10 Insofar as the request was founded upon off site emergency planning issues, it was found i by the Director (based on an assessment of the contentions of the petition performed for NRC by FEMA to be unsupported and based (at least in part) upon misinterpretations of or challenges to Commission regulations. DD 87-
- The Commission at the same time noted that the issue of containment integrity wu the subject of ongoing evaluations, both generic and plant specific:
'While we believe that severe accident risks are low at operating nuclear pianu, our goal is to pursue additional activities to achieve even lower levels of public risk. To assure that our !
risk conclusions are applicable to all operating uniu, a number of programs are going forward to assess severe accident likelihood and consequences. These programs include plant specific studies
)
to determine any severe accident vulnerabilities, both from the perspective of accident frequencies and from containment perfor-mance following a core melt. Any problems will be dealt with if identified, This program is known as the individual plant saamin-ation (IPE) program which is espected to commence later this year. These and related programs will be conducted to provide {
i further assessments of severe accidents on a plant specific basis, so that appropriately low risk levels can be maintained.'
l g DD 8714 at 32; A.1713.
14, Slip Opinion at 14 and Attachment A; A. 1695, 1717-65.11 As to these two aspects the request for enforcement was denied. A. 1688, 1715.
On April 12, 1986, Pilgrim was taken off line and shut down because of certain equipment problems. R. 1637. It remained in a shut down status at the time DD-87-It was rendered. Id.
SUMMARY
OF ARGUMENT An agency's denial of a request for enforcement action is not review-able. In/ra at 9-22. Such denials have been rendered presumptively un-reviewable by Congress. Infra at 9-11. The presumption is rebuttable where Congress has intended the enforcement actions of a particular agency to be confined to a set of finite criteria, against which the decisions may be reviewed, but Congress has not manifested any such intent in the case of the Commission. In/ra at 11-13. Contrary to the appellants' arguments, agency pronouncements are not sufficiant to rebut the presumption of 11 At the same time, the Commission noted that, while the allegati%s of the Colden Petition had not been sustained. FEMA analysis of other off-site emergency planning issues revealed potential deficiencies of which the Commission would ultimately take cognizance:
'In summary, while this portior) of Petitioners' request is denied, the emergency planning issues identified by FEMA are a matter of serious concern. The determination whether to restart the Pilgrim l plant will involve, in necessary part, consideration of the resolu- j tion of emergency planning issues identified by FEMA."
DD 8714 at 15; R.1696.
Though not directly relevant to any of the legal issues before this Court, it should be understood that the responsibilities of FEMA extend far beyond advising the Commission as to the adequacy of off-site emergency pisnning for licensing purposes, and FEMA studies and evaluates emergency preparedness at a level of detail neither required nor accepted by the Commission for licensing. FEMA employs tripartite definitions of dt//ciency l (something that blocks the adequacy finding), creas requ/r/ng corrterive j action (something that, although its correction is required, is not considered, l by itself, to adversely impact public health and safety), and areas recom-mended for imprortment (problem areas observed during an exercise that are not considered to adversely impact public health and safety). ' Arras requir-ing corrective action' and ' areas recommended for improvement
- are not potential NRC licensing issues; neither is the whole set of ' deficiencies.'
(See, e.g.. A. 1674 75.) There is, therefore, no one to one correlation between any FEMA dissatisfaction with the performance of state and local t governmental officials and the 'licenseability' of a power plant.
, i
reviewability, infra at 1416, and, even were that otherwise, the agency pronouncements upon which the appellants' rely in this case would be insuf-ficient because they reflect in no sense an intention by the Commission to cede any of its discretion. Infra at 17-21. The appellants' contentions that the D.C. Circuit has previously held Commission enforcement declisations reviewable (in Lorion on remand) and that Congress implicitly reversed the pre'umption of unreviewability at the time of the so-called Sholly Amend-me its are without merit. In/ro at 21-23.
Insofar t. the Commission's decision (DD-37-14) deferred one of the three requests for enforcement action, it is not "final' and is therefore not reviewable in any event. Infra at 23. However, this deferral does not, by itself, strip the remaining aspects of that decision of whatever entitlement to review, if any, they might have had. Infra at 23 27.
If reviewed, the Commission's declination of enforcement action here should be affirmed. /n/ra at 23-37 The standard is one vf extreme defer-ence. In/ra at 23-29. The ' containment issues
- aspect of the Commission's decision, based on highly technical matters at the frontiers of science, is rational, reasonable and fully explained; and no more is required upon review. Infra at 29-32. The Commission's declination to commence enforce-ment action upon those 'off tite emergency planning
- issues raised by the request below was based upon the like recommendation of the Federal
- Emergency Management Ageny, whose decision is similarly rational, reason- r able fully explained; indeed, the appellants make so substantive attempt to 5 contend otherwise. In/ra at 32-35.* Insofar as the appellants seek this Court's review of the Commission's declination to commence enforcement action in respect of other 'off site emergency planning issues
- raised in a report by FEMA (as to which the Commission deferred action), this Court should decline review on grounds of standing and finality. In/ra at 35-36.
Regardless, the Commission decision to defer enforcement consideration of those other issues makes eminently practical sense under the prevailing circumstances and requires affirmance (if reviewed). In/ra at 36-37.
i
ARGUMENT I. THIS COURT LACKS JURISDICTION TO REVIEW THE DIRECTOR'S
' INTERIM DECISION."
A. Two Requisites of Jurlsdiction to Review are that the Order of Which Review is Sought be Fleal and Not Istolte a Matter Coremitted to Agency Discrellom by Law.
The only basis for jurisdiction cited in the Afassf/AG Petition is the Hobbs Act, 28 U.S.C. l 2342. That act extends this Court's jurisdiction only to ' final orders' of the Commission "made reviewable by section 2139 of title 42 (of the United States Code)." Section 189 of the Atomic Energy Act (the 42 U.S.C. I 2239 referred to) makes reviewable *[alny final order entered
- its specific types of proceedings and subject to 'the provisions of section 10 of the Administrative Procedure Act, u amended."
Section 10 Of the Administrative Procedure Actl3 now appears u 5 U.S.C.I701. It extends a general right of judicial review of final agency actions, subject to two bars: 'the extent that - (1) statutes preclude judicial review; or (2) agency action is committed to agency discreti on by law."
Therefore, amongst other requirements, in order to establish jurisdiction over
, the subject petition, the petitioners must demonstrate that DD.87-14 is a
' final order' and that it does not involve ' agency action that is committed to agency discretion by law." Because the petitioners cannot make the requisite showings on either of these points, DD-87-14 is not subject to judicial review.18 l
12 Originally enacted u section 10 of Chapter 324 of the Act of June 11,1944,60 Stat. 243, 18 Aa intellectually interesting -- but not outcome determinative --
question is whether the ' committed to agency discretion by law' bar to i reviewability is a substantive bar or a jurisdictional bar. Because it arises out of the APA, which hu generally been held not to be jurisdictional, the bar is most likely a substantive bar in most situations. Where, u here, however, the APA bar hu been incorporated by reference into the jurisdic-tional statute, it would appear to be a jurisdictional bar, i
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B. This Court Lacks Jurisdiction to Re,lew Deslats of NRC Enforcement Action, i
- 1. The Deslal of Enforcement Action is Presumptively Unreviewable "Agency Action Committed to Agency l Discrellos by Law."
For a long time it was assumed that the denial of a petition for ;
enforcement action submitted under 10 C.F.R. I 2.206 was reviewable in the l Courts of Appeals. That accepted proposition was first enlled into question i by the Court of Appeals for the District of Columbia Circuit in Lorlon v. '
NAC,712 F.2d 1472 (D.C. Cir.1933), which eventually held that jurisdiction did not lie under the Hobbs Act or, therefore, in the Couru of Appeals.l4 However, held the D.C. Circuit, jurisdiction must lie somewhere: if it is not in the Couru of Appeals, then it must be in the District Couru. 712 F.2d at 1419. The Supreme Court reversed. Florida Power & Light Co. v. Lorton, l 470 U.S. 729 (1985). The Court held it to be the intention of Congress that i the Court of Appcals is the forum of initial jurisdiction for all appealable '
orders of the Commission -- that is, // I 2.206 denials are reviewable at all, they are reviewable in the Couru of Appeals, not the District Couru. The '
. Court expressly reserved on the issue (not raised by the part:ts) of whether i 2.206 denials were reviewable at all. 470 U.S. at 735 n.8. 8 On the same day, the Court rendered Heckler v. Chaney, 470 U.S. 821 (1985). Chaney involved an attempt at judicial review of the declination of the Secretary of Health, Education and Welfare, through the Food and Drug Administration, to commence enforcement action in response to a citizen 1 petition. The !?istfi ct Court had held the denial of enforcement action to be not reviewable at all; the Court of Appeals for the District of Columbia Circuit reversed; and the Supreme Court reversed again. Starting from the proposition that, as is the cue with Commission issuances,l' availability of l'The O.C. Circuit held that the holding by the Commission of a public nearing was definitionally essential to the existence of a ' proceeding,' and that, in the absence of a ' proceeding" (for want of a hearing), jurisdiction wu not conferred by the Hobbt Act. {
j 18 l Though the Court sent the matter back to the Court of Appeals for '
consideration of the application of Chaney to the denial of l 2.206 petitions, id., the Court of Appeah determined on remand to proceed directly to the merits, in view of the clear lack of merit in the appeal given the broad i i
discretion of the Commission. Lorion v. NAC. 785 F.2d 1038 (D. C Cir. '
1986). The Court of Appeah noted, however, that it ' doubt (ed) that on the facu . . , the NRC's (enforcement) discretion is restricted by the Atomic
) Energy Act.' 14. at 1040. ,
I l'Albeit for different reasons.
review is dependent upon the terrns of the Administrative Procedure Act, the Court noted that "before any review at all may be had, a party must first clear the hurdle of [5 U.S.C.] I 701(a)? 470 U.S. at 823 (emphasis added).
Subsection 701(aX2), the Court held, renders presumptively unreviewable agency denials of enforcement
"[O)ur conclusion [is] that an agency's decision not to take enforcement action should be presumed imrr.une from judicial review under i 701(aX2). For good reasons, such a decision has traditionally been ' committed to agency discretion,' and we believe that the Congress enacting the APA did not intend to alter that tradition.'
470 U.S. at 832. Therefore, per Chaney, the Director's decision not to take enforcement action in this case is ' presumed (to be) immune from judicial review' as a matter of law.
- 2. The Atomic Energy Act and the Commission's Regula-tio'is Contain Nothing Suffielent to Rebut, but Rather They Confirm, the Presumption that the Commission's ,
Enforcement Discretion is Unconstralsed by Mandatory '
Standards.
. The ' presumption' of unreviewability is not irrebuttable, but it controls ,
in the absence of special limitations.placed by Congress upon the enforce-j ment discretion of a particular agency:
"[T]he presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers. Thus, in establishing this presumption in the APA, Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers.
Congress may limit an agency's exercise of enforcement powers if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency's power to discriminate among issues or case. it will pursue.'
470 U.S. at 832-33 (footnote omitted). Congress has imposed no such l limita' ions on the Comtnission, j
1 j
Taking first those sections of the Atomic Energy Act that provide for j enforcement, section 186 (42 U.S.C. I 2236) states: !
l l 'Any license may be revoked . . . becava of conditions l
{ revealed by such applicathn or statement of fact or any report, I reccrd, or inspection or other means which would warrant the Commission to refuse to grant a license on an original applica-IWn , , . or for violation of, or failure to observe any of the
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terms 'id provisions of this chapter or of any regulation of the Commis:8o n."
(Emphasis added.) Similarly, section 187 of the Act (42 U.S.C. I 2237) provides:
me terms and conditions of all licenses shall be subject to amendment, revision, or modification, by reason of amendments of this chapter or by reason of rules and regulations issusd in accor-dance with the terms of this chapter."
(Emphasis adaed.) These provisions are entirely permissive. Nothing in the Atomic Energy Act makes the initiation of enforcement proceedings by the Commission mandatory in any class of cases.
Likewise with the regulations promulgafod under the authority of these statutory provisiom (10 C.F.R. Il 2.200 2.206): there is nothing that makes the initiation of eni.: cement proceedings by the Commission mandatory in any class of cases."
. Nor is the Atomic Energy Act simply a Congressional enactment devoid cf any osert pronouncements of mandatory Commission enforcement. To the contrary, the Act has been held over the years to be the implementation of
, a Congressional purpose to confer the widest permissible discretionary latitude upon the Commission. This Court has itself observed that the Ato.aic Energy "Act's regulatory scheme 'is virtually unique in the degree to
! which broad responsibility is reposed in the administering agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objective.'*H lt would be an abject negation of this Icng recog-nited :haracter of the Act to hold that the 8.nercise of the Commission's prosecutorial discretion is subject to defined criteria tuch as wculd permit a Court to find enforcement mandatory in a given set of circumstances. See 470 U.S. at 835-37." As in Chaney, therefore, one must
- conclude that the i
USection 2.206, quoted in full supra, requires that, after receipt of a request, the appropriate Director (i) either institute the requested proceeding or deny the request, (ii) in the case cf the latter, advise the requester, and (iii) in the case of the latter, state his reasons. There is neither contention.
net room for contention that these requirements were not fulfilled in this case. The regulation requires nothing more.
H
!ublic Service Company of New Hampshire v. NRC, 582 F.2d 17, 82 (1st Cir.1978), quoting Siegel v. AEC,400 F.2d 778,783 (D.C. Cir.1%8),
i "Nowhere in the i 2.206 petition submitted to the Commission did the petitioners claim that the granting of the enforcement action requested was
, mandatory.
)
d
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presumption that agency decisions not to institute proceedings are up.eview-able under i 701(aX2) of the APA is not overcome by the enforcement provisions of the [ Atomic Energy Act). The [ Commission's] decision not to take enforcement actions reqdested by [ petitioners) is therefore not subject to judicial review under the AFA.*88 The petition for review, therefore, must be dismissed.81
- 3. In Their Jurisdicteonal Resposses, Neither MasePIRG ser the Commonwealth have Overcome the Presumption of Usteviewability, The appellanu have not in their brict set forth any argument on the oestion of reviewability. We presume that each relies on its earlier filings, the petitioners' ' Memorandum of Petitioner in Opposition to Respondent's i
t and Boston Edison Company's Motions to Dismiss' filed November $.1987, (hereinafter AfassP/RG Responst) and the Commcnwealth's 'Commo'swealth of Massachusetts' Memorandum of Points and Authorities in Answer to the Motions of Respondenu NRC, et al. and intervenor Soston Edison to Dismiss 8'Paraphruing 470 U.S. at 837 38. See also Florida Power d Li ths Co.
- v. Lorion, 410 U.S. 729, 752 (1985) (Mr. Justice Stevens, dissenting from the remand to the Court of Appeals): "Only (a) construction [of the jurisdic-tional statutes to preclude judicial review of the denial of i 2.206 petitions]
does justice to the plain meaning of. the relevant jurisdictional statutes, to the Comtnission's regulations, and to settled principles of administrative law."
81We are aware of no post Chanty opinions of this Court dealing with attempu at judicial review of agency declinations to commence enforcement action. This Court did addres Chanty in NAACP r. Secretary of Nousins and Urban Developmtat, 817 F.2d 149 (1st Cir.1987), but that cue is of little precedential guidance here given (i) that it did not involve denials of enforcement actio's (but, rather, monetary grant decisions), (iij that it did not involve a request for judicial review of specific agency actions (see 817 F.2d at 158 59), and (iii) that it involved a statute in which a clear Con-gressional limitation And been plactd on agency action (see 817 F.2d at 151, referring to 42 U.S.C. I 3608(eX5)). And most importantly, unlike the situation in NAACP, undertaking review of NRC declinations to initiatt enforcement proceedings can neither be said to favor a Congressionally high-lighted interest nor te have only a negligible effect on the Commissiots
' ability to carry out ic, basic statutor) missions.* (817 F.2d at 159.) See Breyer, ' Vermont Yanate and the Courts' Role in the Nuclear Energy Controsersy,' 91 Harv. I., Rev. 1833, 1834-40 (1978).
la a different context, this Court recently noted that ' decisions concerning when, whether and whom to prosecute
- have traditionally been found to fall within an agency's discretion. K. W. Thompson Tool Co.. Inc.
- v. U.L No. 87-1536, Slip Op. at 18 (1st Cir. Jan. 14, 1988).
Petition for Review' filed November 5,1987 (hereinafter Commonwealth Responst). While conceding that the issue is one of Congressional intent, and relying upon no statute to reverse the crewmption of unreviewability as applied to i 2.206 denials, the appellants t.untend: (i) that the presumption can be revened by pronouncements of the agency itself; (ii) that the Commission has by its pronouncements sufficiar;tly renounced its esforcement discretion as to make its enforcement decisions reviewable; and (iii) that tSe Court of Appeals for the District of Columbia Circuit has so held in the case of the Commission. These arguments fall to demonstrate that the presump-tion of unreviewability does not apply to Commission declinations to commence enforcement action. This petition for review should therefore be denied.
- a. Reviewability of Agency Enforcement Action Should Not Depend Upon or Be Aflected by Agency Pronouncements.
As both MassPIRG and the Commonwealth recognize, the issue govern-ing the reviewability of agency denials of enforcement action following Chanty is whether 'the substantive statust has provided guidelines for the i
agency to follow in exercising its enforcement powers.'88 This is essential,
' for, as they concede, the ultimate issue is whether ' Congress has limited an agency's discretion.'88 That, at core, the issue is cae of legislatise intent is underscored by this passage from Chancy:
'[l}n establishing this presumption in the APA [against reviewabil-(
ity), Congress did not set agencies free to disregard legislative J oitection in the statutory scheme that the agency administers.
Congress may limit an agency's exercise of enforcement power if t it wishes, either by setting substantive priorities, or by otherwise
' circumscribing an agency's power tc discriminate among issues or cases it will pursue."
l 470 U.S. at 833 (emphasis added).84 l
So viewed, the notion that an agency might, by its own pronounce-ments, alter the situation decreed by Congress, and in effect legally cir-cumscribe its own discretion in a fashion contrary to that ordained by
! Congress, is at best suspect. Indeed, possibly apart from the concept of j
true
- legislative regulations * -- i.e., agency action to ' fill in the blanks
- in a a
statute wch that, once filled, the filled in material has the force of law '
88Afas PIAG Atsponse at 7, quoting Chanty, 470 U.S. at 833 (emphasis added).
88 Commonwealth Response at 11 (emphasis added).
, 8' Quoted 'vy the Commonstalth Response at 13.
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i equally with a statute - the notion that the agency itself might alter
) discretionary lines drawn by Congress is contrary to the entire construct of administrative law. Where, as here, neither MassPIRO nor the Common-
] wealth even claim any statutory basis for reviewability, the issue should end, .
Nonetheless, each attempts to persuade this Court that the Congres. !
- sionally imposed presumption of non-reviewability has been overcome by l
, lesar NRC 5,ronouncements. For the efficocy of such pronouncements, each
- relies on the opinions of the Court of Appeals for the D.C. Circuit in Padula i i v. Webster, 822 F.2d 97 (D C. Cir.1987), and Center /er Awe Safety a. Delt, ,
{ 828 F.2d 799 (D.C. Cir.1987). padula may be rather quickly laid to one side: i that case aid not involve the reviewability of a denial of agency enforcement t i
action and 12 did not find an agency proncuncement adequate to constitute a binding agency limitation (at issu:# for other reasons). Necessarily, there- !
i fore, padula does not stand for the proposition that agency pronouncements can create reviewability that Congress has withheld.88 I
j Cratar for Awo Sa/ tty is more on point (though not sufficient to t 1
1 establish reviewsNiity in the case of Commission enforcement declinations). l but, we submit, wrongly decided 8' As the Court in that case acted, the soserning statute was entirely permissive. 828 F.2d at 801. However, the
/ Court held that by a duly promulgated formal regulation, the agency in ,
i
' i 8'padula, though arising in a different context, does teveal the proper i reluctance with which a Court will even consider holding agency pronounce-
}p ments to amount to self imposed aboications of delegated discretion: '
I
' Pronouncements that impose no significant restraints on the -
agency's discretion are not regarded as binding norms. As a general rule, an agency pronouncement is transformed into a (
t
' binding norm if su intended by the agency. . . . [A)sency intent, ;
t la turn, is ' ascertained by an enemination of the statement's '
language, the content, and any available extrinsic evidence. I e
! 822 Fad at 100, citing Dot v. #ampton, 566 F.2d 265,281 (D.C. Cir.1977). i As will be seen, permissive statements, predictive statements, qualified !
$ statements and statements intended to signify agency predilection in the case 1 l of agency-directed initiative fall short of creating ' binding norms.' i i
8 8*The Commonweatr4 Atsponse contalas the assertion that 'talotably meither the NRC nor BECo. have argued that this court should not adopt the l
holdies of the Crater the Awo Sa/ tty Case
- 14. at 16. If intended to j
' assert a prior concession by Boston Edison Compar.y of the rectitude of the ,
Crater .for Awe afety analytical approach, the assertion is false: Boston j
Edison Company pointed out in its prior ' Memorandum * (at page 12 n.14) that 'la)seming Center for Auto Sa/ tty to be faithful to Chaney, it aids the
{' present petitioners naught . . . .* This is hardly the as erted concession, j :
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question had made commencement of the specific petitioned-for enforcement action mandatory in the event of the e;tistence of an objectively deter-minable ' fact.' Id. at 403. Indeed, the Court held it to be (and to be 'un-disputed," 14. at 801) thac
'p9 C.F.R.] I 552.8 itself rules out consideration of other dliere-tionary fae: ors like 'whether agency resources are best spent on this violation or another' or 'whether the partkular enforcement action requested best fits the agency's overall policies."
828 F.2d at 803. Given this, the Court held, the policy behind Chaney was no longer operative, and a reviewing Court was both empowered and obligated to review not only the stated basis for the agency action 'out etso ile adequny of the underlying record to support that action.8f In assessing the fidelity of Center for Auto Sa/ tty to the CAcaty construct, one must consider this: What would the Court of Appeals for the D.C. Circuit have written had the agency in that case not promulgated the regulation upon which the Court of Appeals hung iu decisional hat?
Necessarily, the Court of Appeals would have denied u viewability, noting (as required by Chancy) that Congress has declared a presumptive non review-ability, that Congress has not overcome this rion reviewability in that particular case by anything contained in that particular statute, and, there-fore, that review of the challenged action in that case was taerefore contrary tu Congressional intent. The intent of Congress is not changed by a subs 2quent agency pronc. 9 cement.88 1
87 The Court of Appeals in Center for Auto Sa/ tty arrived at this conclusion by considering the result had Congress itself included the man-datory prescription the Court found in the agency's regu!ations: 'Indeed, if the 'reasonnele possibility' standard had anpeared in the Motor Vehicle Safety Act itself, there could be no doubt that it provided a 'judiciall) ,
manageable' review standard.' 323 F.2d at 803. More to the point had i
Congress itself enacted such a provision, it would have been clear that Congress intended to withhold from this agency the more usual discretion 1 the existence of which signifies a correlative Congressional intention to '
commit the enforcement decision to the agency (and thus to preclude judicial review) -- the key in either case being the intent of Congress. The manifest fact, however, is that Congress did not include this provision in the goverains traffic statute and there is thus no basis for concluding that Coagress intended that agency's enforcement cecisions t.o be treated 4
differently than it intends agency enforcement decisions to be treated generally (perforce the presumption in the APA).
8**lt is settled law . . . that 'an agency cannot create through its implementing regulations a right of review withheld by the underlying statute." Ctattr for Awo Safety v. Dole, 828 F.2d 799, 819 (Bork, J.,
- l6 - l l
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- b. The Commission Pronouncements Upon Which MassPIRG and the Com.
monwealth Rely Do not Bind the Commission's Enforcement Discretion and Therefore do not Suffice to Convert its Enforcement initiation Decisions into Reviewable Orders.
Between them. MassPIRG and the Commonwealth rely upon a number of Commission pronouncements for their contention that the Commission has sufficiently renounced its Congressionally-conferred discretion as to make its enforcemer. declinations reviewable. None of these pronouncements is a ,
formally promulgated regulation; all are taken out of context. Moreover, !
nothing to which either MassPIRG or the Commonwealth points even vaguely hints at a Commission determination to limit its own enforcement discretion.
Nor is the record silent the Commission has demonstrated that it regards the ability to make enforcement decisions based on matters of ' policy" --
including such factors as employmcnt of resources and regulatory efficien-cy -- both highly important and Niously guarded. Even conceding the analytical correctness of an approach och as thst employed in Center for Auto Safety, therefore, the case for its applicability to the Commission has l not been made and cannot be made.
l i
(1) The indian Pcint Decision Neither Purports nor Effects Any Con.
striction of Commission Discretion.
Both Ma sPIRG snd the Cominonwealth point to the Commission's decision in Consolidated Edison Co. (Indian Point, Units I,2 and 3), Cl.I g, 2 NRC 173 (1975)." There, disposing of an appeal to it (which the Commission no longer permits)** from the denial by one of its Directors of a j citisen petition for the comrnencement of enforcement action, the Commis.
1 sion took the opportunity to announce some of the standards it employs for '
reviewing such actions. Presumably it is laudable for the Commission to have such stardards and to reveal them to the public; neither, however, i
d signifies a Commission determination to limit either its enforcement discre-tion or that of lu subordinate officials. This is confirmed by the factors enumerated: after those that one would always expect, the Commission l articulates such inherently discretiontry items as *whether ifcity appropri- !
ate to the facts asserted has been made* and 'whether the Director's decision is demonstrably untenable on the basis of all information available to him.' 2 NRC at 175. Moreover, the Commission notes carefully with its dissenting)(quoting Harrison v. Bowen 815 F.2d 1505,1517 (D.C. Cir.1937).
'* Mass!tRG Response at 9-10; Commonwealth Response at 7-9, 15-16.
1 8*See 10 C.F.R. ! 2.204cX2), as amended by 42 Fed. Reg. 36.240 (July l 14, 1977), The Commission does, however, review all Director's Denials sua
\
sponte.
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l next breath that these factors are applied taking into account 'the Commis-sion's necessary policy con'rol.* 14. Such policy consideration, of course, include questions of resource allocation, probability of success, and efficiency l' of alternative actions, all as the Commission articulated in a slightly l different but closely related context in 80ston Jdison Co. (Pilgrim Nuclear
- Power Station), CL1-82-16,16 NRC 44 (1982), s//*d su6 nom. Selletti v. NAC, 725 F.2d 1380 (D.C. Cir.1983): l i
- [The Commission) believe(s) that public health and safety is best '
i served by concentrating inspection and enforcement resources on
' actual field inspections and related scientific and engineering work, as opposed to the conduct of legal proceedings. This r consideration calls for a policy that encoursges licensees to !
consent to, rathe* than [to) contest, enforcement actions. Such a-policy would be thwarted if !!censees which consented to enforce-4 ment actions were routMely subjected to formal proceedings possibly leading to mcse severe or different enforcement actions. !
! Rather than to consent and risk a hearing on whether more i j
' drastic relief was called for, licensees would, to protect their own ;
interests, call for a hearing on each enforcement order to ensure !
i .
that the possibility of less severe action would also be considered, i
' The end result would be a major diversion of agency resources t from project irspections and engineering investigations to the i conduct of hearings..st ;
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Plainly the Commission in Cl.!-75 8 intended nothing in its words to effect a j ;
constriction of its discretion. Given that none of the factors enumerated by :
the Commission in that decision would, in any given case, compel the allowance of a 2.206 petition, plus that the factors enumersted by the [
Commission were explicitly non-etelusive, nothing in its words even purport i l I
any curtailment of enforcement discretion, much less the
- ruling out* of ,
discretionary factors found in Crnter for Auto Safety or even the 'sig- l nificant restraints
- required to meet the Padula test.88 Finally, given that, 811n CL182-16 the issue was whether, once the Commission has com-menced enforcement action on its own initiative, the scope of any ensuing hearings is limited to the enforcement action proposed by the agency os i
- entends beyond to suggestions of more drastic sanctions. After holding that I it has the power to define the limits of the proceeding (on which ruling it was affirmed by the Court of Appeals), the Commission employs the quoted
] language to esplain why it exercises this rower as it does.
1 8'The Commonwealth essays an argument to the effect that section 2.202 of the Commission's regulations requires the grant of a section 2.206 I
j petition under certain circumstances. Commonwealth Aesponse at 8 nA. A I ,
review of section 2.202 reveals that it, like the Commission's statutory grants and all of its regulatory pronouncements, is entirely permissive. The 3
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I as this as well as numerous other courts have previously recognized, i
- Congress intended by its enactment of the Atomic Energy Act a 'resulatory scheme [that] 'is virtually unique in the degree to which broad responsibility is reposed in the administering agency, free of close prescription la its !
I charter as to how it shall proceed in achievias the seestory objective. as ;
surely some less vague, more explicit Commission action will be required :
i before a Court will lightly assume that Congress's regulatory scheme has l 3
been tinkered with As a basis for reversing the presumption of non review- !
i ability, CLI 75 8 is way short of the mark. '
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(2) The Petition for Emergency Action Decision Effects no A6endon- ,
l ment of Commission Discretion, i
- MassPIRG seat pays fleeting attention to the pronouncements of the I
Commission in a policy statement issued in Petition for Emerfency Action,
' CLI 78 4, 7 NRC 400 (1978). Little more attention is required to see that this pronouncement does not even approach the sort of discretion limitation i l that might rebut the presumption of non-reviewability. At issue was the 4 rather entraordinary request that, among other things, the Commission shut ;
i down all ongoing licensing proceedings, suspend all outstanding construction i
permits and operating licenses, and order the immediate shut-down of all operating reactors. The Commission began its resronse with a review of its enforcement powers, which is the language that MassPIRO has quoted.
i .
1 citation to section 2.202 in CLI-75 3 (2 NRC at 176), apparently intended to i
denote the reference to an ' order to show cause* as one particular type of 4
enforcement device -- and the type of device that would have been ap- {
i ;
prop.la'e had the directrir concluded that the matters asserted in the 2.206 ,
) petit on :n that instance warranted further enforcement action -- has appar- i ently been misinterpreted by the Commonwealth as referring to some non-discretionary duty imposed upon the agency by its regulation. l I
Elsewhere, the Commonwealth adverts briefly to 10 C.F.R. I 50.54(s). !
j Commonwealth Response at 17. If it is intended by this reference to suggest l that regulation constrains the Commission's enforcement discretion, then the l words of the regulation quickly rebut the assertion: 'lla the circurnstance
}
described therein ] the Commission will determine whether the reactor shall l J
be shut down until such deficiencies are rem *Gd or whether other enforce- l mest action is appropriate.' 10 C.F.R. I So.54(sX2Xil). The Commission has j held that sectkwi 50.54 does not mandate any particular enforce meat action,
- j Censolidered Edison Company of New York (Indian Point, Ur.it 2), CLI 83 16, 6 j
17 NRC 1006 (1983), as has the only Court that to our knowledge has '
consklerod the question, County of AccAland v. NRC. 709 F.2d 766,771,175-l l.
76 (2d Cir. IM3). l
- Public Service Company of New Hampshire v. NRC, 582 F.2d 71, 82 (1st Cir.1978), quoting Siefel v. AEC, 400 F.2d 778, 783 (D.C. Cir.1968).
4 i
1 l
't
)
Neither the context nor the permissive language used suggests that the Commission had even the remotest notion of constricting lu enforcement discretion hy this pronouncement.H To call CLI-78-6 "[a] broader restraint on agency oncretion*H is to see what doesn't exist.
(3) Appendix C Does Not Limit Commission Discretion.
Finally, the Commonwealth po nts to 10 C.F.R., Part 2. Appendiz C as assertedly rendering the initiation of enfcreement proceedings mandatory in some undescribed set of cases.88 A review of Appendiz C belies the asser-tion.
Appendia C is not a regalation, it is, rather, a statement of policy issued to 'enr!ain' how the Commission employs its resources and exercises its enforcement powers." In the main, the Policy Statement explains what is contained it. the procedural regulations, manifesting an applicition strictly to Staff initiated enforcement. Nothing addresses the conditions under which a 2.206 petition will be granted or denied -- or the procedure to be followed on 2.206 petition review -- for 2.206 petitions are neither mentioned nor within the scope of the Policy Statement.as Without except'.on, the Policy '
Statement describes Commission's authority in the inclusive and permr.sive senses; contrary to the assertions of the Commonwealth, aething in the l
4 861 f, in the Commission's judgment. the public health and safe;y so requires, the Commission may take action to revoke, suspend or modify licenses, impose civil penalties, or issue cease and desist orders.* 7 NRC at 404 (emphases added).
88 hfassPIRG Restc.sse at 10.
' ~ommonwealth Response at IT.
87'The following statement of general policy and procedure explains the !
enforcement policy and procedures of the U.S. Nuclear Regulatory Commis-
- clon and its staff in initiatint enforcement actions, and of presiding officers, t
^
)
the Atomic Safety and Licensing Appeal Boards, tnd the Commission in reviewing these actions.' General Statement of Policy and Procedure for NAC Enforcement Actions 10 C.F.R. Part 2. Appsndia C.
88 1ce 14., section ll(B) (' Procedural Framework *), which refers ex-clusively to Staff-initiated Notices of Violation and Orders to Show Cause, j and makes not a single mention of citizen petitions under 10 C.F.R. I 2.206.
1 I
1
.'. J -
4 i
1 4
l Policy Statement can fairly be read is an abdication of enforcement discre-tion in any given situation.
- c. Miscellaneous Points, i t
The petitioners round out their attempt to demonstrate that which i doesn't esist with an assortment of miscellaneous points that are also urged i to be sufficient to warrant this Court's abandonment of thS presumption of i
non reviewsbility of Commission enforcement declinations. None is.
i (1) The Lorion Decisions are not Authority for the Reviewability of Commission Enforcemens Declitons. ;
MassPIRG relies on Lorion to support its contentions before this Court.
As noted above, Lorlon involved a decision of the Supreme Court holding [
that, // NRC enforcement declinations are reviewable at all, they are i reviewable in the Couru of Appeals as opposed to the District Courts. The Court, however, did not decide that i 2.206 denials are appealable at all; rather, ac, ting its Chaney decision of the same date, the Court remanded the matter to the Court of Appeals for the D.C. Circuit for a consideration of i reviewability vel nom. On remand, the Court of Appeals eschewed dischers-
) ing this mandate in favor of simply affirming the Commission's decision on the basis that, if reviewable, the agency action clearly required affirmance.**
i Neither opinion determir.ed the issue now before this Court; both, rather, esplicitly avoided it.il -
j la this Court, nonetheless, MassPIRO strains to find la what it
) contends to be the D.C. Circult's later description of its own remand opinion :
- in Lorien authority for the proposition that the Chaney result does not apply I ;
to the Commission. MassPIRG strings together portiorts of language drawn ,
l !
H j
8'Apparently the Commonwealth reads a statement primarily addressed I
)
to licensees to the effect that ' enforcement action will be take. whenever the Commissios determines it to be appropriate
- as somehow satisfying the
{ ' mandatory action' prescription found by the Center for Auto Safety Court j
to be na adequate substi; ate for a Congressional restriction on presumptively ;
j vafettered agency enforcement discretion. S'ich a reading can be accom-pliabed only by verbal legedemain. l
{
- Larian v. NAC,145 F.2d 1038,1040 (1936). '
'lladeed, the only apparently controversial issue in Lorion at the supreme Coert was whether, notwithstanding that the issue had not been briefed or argued, a remand to the Court of Appeals was necessary in view of the clear applicability of the Chaney principle
- to the Commission, an I
agency that has traditionally marked the extreme of agency's enjoying wide
- discretion. See 4 0 U.S. at 752 (Mr. Justice Stevens, dissenting).
l 1
)
I l 1 .
i from the opinion in Center for Awo Safety -- dealing with a different topic" - as for some reason
- weighty authority for the proposition that denials of 2.206 petitions are reviewable 43 -- a reliance so unwarranted as to border on the frivolous given that Lcrion empressly prescinded from so holding.**
(2) The 'Sholly Amendment
- History has Nothing to Do with the inut Now Before This Court.
The Comrnonwealth tosses in a final argument that is truly lascrutable.
Referring te the enactment of the so-called *$ holly Amendments' by Congress in 1982, which were designed to reverse the effect of a decision of the Court of Appeals for the D.C. Circuit requiring a public hearing on demand prior to the effectiveness of any Commission operating license amendment, the Commonwealth contends that *1p}erhaps tne most compelling indicia of Congressional interest is the fact that Congress did not take any action to restrict judicial review of NRC enforcement decisions in 1982 when it considered and enacted the so-called 'Sholly' amendment.'" The $ holly Amendments had nothing to do with the reviewability of Commission denials cf i 2.206 petitions, and no Court had theretofore ever ruled such petitions 48 After determining the order in question in that case to be reviewable at all, the Court in Center for Auto. So/ tty next considered the nature of the review, its opinion is divided into three major headings: "Introduction,' ;
- Availability of Judicial Review," and 'The Scope of Judicial Review in this Case.' All of the language Quoted by MassPIRG comes from the last section.
48 MassPIRG Responst at Il-12.
44 Apart from the improbability that the Court of Appeals for the D.C. ;
Circuit would refer to its prior decision as standing for a proposition that its prior decision expressly did not decide, it is even less likely that the Court would do so in the section of the later opinica that follows the section in which it considers the issue in question. What actually happened ;
in Lorios on remand is that, though passing on the issue, the Court of '
Appeals obser"ed that it *dnubt(ed) that on the facts , . . the NRC's lenforceasent) discretion is restricted by the Atomic Energy Act.' 785 F.2d l at 1040. Thus, while Lorios did not decide the point now at issue, its predilections on it were quite the reserse of the impression MassPIRG attempts to create. Mas:PIRG's use of the D.C. Circuit's remand opinion is, we respectfully submit, equally unfair to that and to this Court.
- Commonwealth Response a*.14.
1
to be reviewable.** Manifestly, therefore, Congress cannot have evinceo ;
' acquiescence
- in rulings that were not made, nor does Congress manifest
' acquiescence
- even to real rulings by unrelated statutory enactments. The thrust of this argument is as elusive as, ultimately, it is illusory.
1 C. lesofar as the 'leteries Director's Decisles' Deferred Takles '
- Actles on the Request for Enforcement, Revlaw le Barred Because the 'leterim Director's Deelslee" is set Fleal.
The requirement that Commission action of which judicial review is ,
sought be final is found in all three of the Atomic Energy Act, the Ad-ministrative Procedure Act and the Hobbs Act. Insofar as the ' Interim Director's Decision" deferred taxing action on the petition for the initiation of enforcement proceedings,47 it la manifes'.ly not final. Therefore, to this extent the ' Interim Director's Decision
- is not reviewable and would not be reviewable even if final i 2.206 decisions were reviewable. E.g., Sierra Club
- v. NAC,825 F.2d 1356,1362 63 (9th Cir.1987); Western Union Teltgraph Co.
I v. TCC,773 F.2d 375, 378 (D.C. Cir.1985). Consequently, as to this portion t 1 of the decision below, the Petition for Review must be dismissed.*8 :
]
D. Floality en Account of the Deferred "Management Issues."
The Colden petition sought enforcement action on three essentially 1
unrelated grounds. DD 87-14 denied enforcement as to two of the grounds i and deferred disposition relating to. the third ground. Ware it a court
[
j judgment, therefore, DD 87-14 would be clearly interlocutory and not 1
- 8 As noted above, no contention that such denlats are per se unreview-i able had been presented to a court prior to Chancy. In neither of the cases !
1 referred to by the Commonwealth (Illinois v. NAC. 591 F.2d 12 (7th Cir.
1979), and Porter County Chapter, etc. v. NAC, 606 F.2d 1363 (D.C. Cir. I 1979)) wu the issue even raised, much less decided.
l i See DD-37 14, A.1715.
- One has difficulty determining whether the petitioners continue to l
- contend the so called ' management issues' aspect of DD 87-14 to be i
presently appealable. The initial
- Petition for Review" in this Court d purported to apply to the entirety of the Colden Petition. Likewise, while i
the Commonwealth appeared in its prior response on jurisdiction to ack-newledge that the ' management issues
- are not presently ripe for appellate consideration (even if reviewable at all), Commonwealth Atsponst at 18
(' Review of that portion of the NRC's action is not being sought here'),
, MassPIRG continued to ignore the disparate treatment afforded the several parts of the Colden Petition by DD 87-14, thus leaving its position in-scrutable, la the joint ' merits
- brief, written by the Commonwealth, the issue does not appear to be addressed directly.
) l i
i l
!- l immediately appealable. Fed. R. Civ. P. 54(b). While the respondents have (i) moved to dismiss the entire appeal on the ground that Commission declinations of enforcement action are not reviewable at all and (ii) moved to dismiss so much of the appeal as purported to seek review of the deferral of the so-called ' management issues,' they have not urged dismianal of the appeal on the ground that DD 87-14 is non-final in iu entirety,
! That question, rather, is raised by this Court's Order of December 28, ;
1987, in which the parties were asked to brief the question-
'Whether the August 21, 1937 agency decision, which decided two of the three grounds petitioner raised, but reserved decision on a third issue (alleged management deficiencies) is a final agency decision which should be reviewed by this court at this time in t advance of the agency's determination of the management issce? ,
(Emphasis added.) Interpreting the italicized language to refer only to the i' issue of finality, and not also to subsume the Chaney question, Boston d
Edison Company believes that DD-87-14 is not rendered wholly non final by ,
t -
the deferral of the ' management issues,' and that, were i 2.206 denials '
reviewable at all, so much of DD-87-/d as denied enforcement would be reviewable at this time. i We ply a sea lacking easily discerned aids to navigation. While the j
HFebs Act imposes finality as a jurisdictional predicate to reviewability, it does not define it. Nor does either the Hobbs Act or the Atomic Energy !
Act emulate the helpful absolute of Fed. R. Civ. P. 54(b). One is therefore remitted to general principles of administrative law." <
i, Finality for purposes of judicial review under 28 UIC. I 2342 has been held to display two attributes. First, the order in question must ' impose ()
1 an obligation, [ deny) a right, or fix[] some legal relationship, usually at the j consummation of an administrative process? Natural Aesources De/tnse Council v. NAC,680 F.2d 810,815 (D.C. Cir.1982), quating Nonicler v. NAC, "We note, however, that most of the general principles derive from ;
cases invciving orders that are inherently reviewable -- at some time; that is, where the only issue was finality. Applying this law to denials of enforcement action is at best an approximate fit, since, regardless of its prior disposition of a i 2.206 petition, the Commission always retains the authority to initiate enforcement action should it become convinced that such action is warranted by the facts, the law and relevant agency policy considerations. Thus, in one sense denials of i 2.206 petitions are incapable of ever achieving true ' finality? This, however, demonstrates why they are 1
not reviewable at all; it tends to beg the question posed by this Court's Order of December 28, 1987
{ '
i l
1 I
w 590 F.2d 1207,1209 (D.C. Cir.1978), cert. denied, 441 U.S. 906 (1979).50 Second, the order must represent the ' final' agency position on whatever it accomplishes, that is, it must not be subject to internal agency reconsidera-tion, including intra agency appeal. 14., 680 F.2d at 816, citing Ecology Action v. AEC, 492 F.2d 998,1001 (2d Cir. 1974); Citizens for a Sa/t Environment v. AEC,489 F.2d 1018,1022 (3d Cir.1974); s'd Thermal Ecology Afust #t Preserved v. AEC, 433 F.2d 524, 526 (D.C. Car.1970). But see County of Rockland v. NAC, 709 F.2d 766, 775 (2d Cir.1983) ("The fact that the Commission may reexamine its decision at a later d:te does not detract from the final nature of the December decision?).
DD 87-14 clearly denies the request for the laitiation of the particular formal enforcement action sought by the petitioners to considtr the par-ticular issues raised by the Colden fat / tion on containment integrity and off site emergency planning, it manifests the final, non tentative decision of the Staff not to initiate show cause proceedings on the containment integrity claims raised in the Colden retition, which the Staff views to bt generic to Mark I designs, under continuing generic consideration, and not implicating a serious safety question because of its limitation to beyond design basis events." The decision manifests the no leu final, non-tentative decision of the Staff not to initiate show cause proceedings on those particular off-site emergency planning claims raised in the Golden
- Petition, which the Staff and FEMA have concluded lack merit at ad-vanced." Both sets of claims were examined on their merits. Precisely such a denial of a requested formal proceeding has been that upon which the
- onicker filed a petition for the immediate shut down of all nuclear reactors.
The Commission wrote and told her that it would consider the issues she raised expeditiously, and in view of that fact, was declining immediately to shut down all reactors. Honicker appealed. The Court of Appeals took the position that the request for immedhte relief was outside the ambit of i 2.206, that all the petitioner had a right to do was to file a i 2.206 petition, and that treated as such her letter had not yet been acted upon by the Commission and was, therefore, not yet final.
58 tt is, at least, as final and non tentatise as an enforcement decision can achiese. The Commission always has the power to initiate enforcement action os cr'ntainment issues, should its views change on account of new information.
As is noted in DD.87-14, the Commission's continulas regula-sory research on containment issues is presently in progress. DD 8714 at 31-32, A.1712 13.
"DD 87-14 is not final, nor does it purport to be, with respect to the additional off site emergency planning issues raised by FEMA outside of the scope of the issues raised in the Golden Petition and found wanting by FEMA. As to those issues, DD 87-14 reflects the Commission's deferral of action pending the development of further information.
Couru of Appeals have hung their jurisdictional hau in the pre Chancy days. Stocoast Anti Pollution Ltatut v. NAC,690 F.2d 1025,1028 (D.C. Cir.
1982); Rock /ord Leasus of Women Peters v. NAC, 679 F.2d 1218,1221 (7th Cir.1982). Since there is nothing in DD-8714 that holds out any present !
hope for a formal proceeding on either the particular containment integrity issues or the particular off-site emergency planning issues advanced by the Colden fatillon, these two aspects of DD-87-14 would appear to meet the first test of ' finality.'
Likewise, DD 87-14 purports on its face to be the last thing the Director is going to say on those particular issues in response to the Colden Petition ss and the time within which the Commission might have exercised iu sua sponte review authority has expired. 10 C.F.R. l 2.206(c). Were this a matter subject to intra agency appeals, all appellate tribunals would have ,
lost jurisdiction to reconsider the matter, as would the Director (analogizing l i him to a Licensing Board) himself. DD 87-14 therefore appears to meet the !
j second test of finality as well'4 !
58 As noted above, traditional principles of ' finality
- assessment do not adapt readily to the context of enforcement orders. If, at the time Boston Edison Company signifies its intention to restart Pilgrim, the Commission is of the view that restart is not appropriate on account of containment issues 1
or off site emergency planning issues (or any other issues), the initiation of enforcement proceedings is likely. ft is, therefore, not inconceivable that there might someday be initiated proceedings very similar to those sought by the Golden Petition (though hopefully on more meaningful issues); were such to happen, our *last thing the Director is going to say* characterization in text might appear a tid hasty. Nonetheless, should such eventuality ensue, it will be neither in response to or on account of the Colden retition or the facts asserted therein, and in that sense DD 8714 is the final response to that petition.
i 54NRC recognizes
- practical
- rule of finality for purposes of its internal processing. 'The test of ' finality' for appeal purposes before the agency (as in the courts) is essentially a practical one. As a general matter, a licensing board's action is final for appellate purposes where it either disposes of at least a major segment of the case or terminate's a party's right te participate . . . .* Toledo Edison Co. (Davis Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 758 (1975). Partial initial decisions which do not yet authoriae construction activity are still significant and therefore appealable as of right. Nouston Lightint d Power Co. (Allens Creek Nuclear Generating Station, Units I and 2), ALAB 301,2 NRC 853,854 (1975). While this precept is not directly applicable to i 2.206 denials, since they are
! categorically exempt from intra agency appeal, the principle suggests that were DD 87-14 a ' Partial Initial Decision
- disposing on their merits of a set (fewer than all) of pending licensing case contentions, it would be appealable within the agency and would lead to administrative finality without atten-y y --- -- , ,--.
,---y- ,. - - - -
, .- -,m- ,, ,-,-w , , , , , a---ep-~ ^
The fact remains that the Commission is continuing lu regulatory oversight into matters in the same general areas as those raind by the Goldes retition. A compelling argument can be made, on a pragmatic level, that review at this time would not make sense, end, therefore, DD 87-14 '
should be regarded as non-final. Given the inherently non final nature of enforcement denlais." such an argument makes eminent practical sense. it has nothing to do with the deferral of the "management lasues,' however.
Beston Edison Company does not contend that, merely because of the *
' management issues
- deferral DD 87-/d lacks the finality requisite to the review of otherwise reviewable orders.
t l
I dance upon disposition of the ' management *-bued request.
. "See note 49, supra.
l l
l l
l l
i
. l i
II. IF RLYlEWABLE, THE ' DIRECTOR'S DECISION
- SHOULD BE AF. '
FIRMED.
A. The Standard of Review.
As shown above, the denial of a petition for enforcement action submitted under 10 C.F.R. I 2.206 is the type of agency action made ,
unreviewable by section 10 of the APA. 5 U.S.C. I 701. Where, as here, i section 10, has been incorporated by reference into the jurisdictional statute, in this case the Hobbs Act, it probably serves as a jurisdictional bar (as opposed to merely a substantive bar) to review.** It is, regardless, a bar; as Chaney noted: "[t]his Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to na agency's absolute discretion.' 470 U.S. at 831 (emphasis added). See also K. W.
Thompson Tool Co.. v. U.S., No 87-1536, Slip Opinion at 18 (1st Cir. Jan.14, l 1988)
Nevertheless, the netitioners urge this Court to review the Commission's
! decision in accordance with the ' arbitrary, capricious, and abuse of discre-tion
- standard found in Section 10(e) of the APA. $ U.S.C. i 706(2)(a).
' They tely upon Citi ens to Preserve Overton Park. Inc. v. Volpe, 401 U.S.
402 (1971) " omitting to note that the Supreme Court has held Overton Park ,
inapplicable to denials of enforcement action:
'Overton Park did not involve an agency's refusal to take re-quested enforcement action, it involved an affirmative act of approval under a statute that set clear guidelines for determining when such approval should be given. Refusals to take enforcement steps generally involve precisely the opposite situation, and in that situation we think the presumption is that judicial review is not available.'
Chaney,470 U.S. at 831.
i i
With this background, it is not so easy to prescind from the question
} of reviewability. Nonetheless, even were DD-87-14 a reviewable order, the !
standard to which it is reviewed is one highly deferential to the agency. As I the Supreme Court has stressed:
l
'Under the ' arbitrary and capricious' standard the scope of review i is a narrow one. A reviewing court must ' consider whether the decision was based on a consideration of the relevant factors and i
% note 13. supra.
"Commonwechh 3rief at 20, quoting Overton Park,401 U.S. at 415.
J
- 2-1 j
i
whether there has been a clear error of Judgment . . . .*
Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. The agency must articulate a ' rational connection between the facu found and the choice made."
Bowman Transportation. Inc. v. Arkansca-Best Freight System. Inc., 419 U.S. j 281, 285 (1974) (emphasis added) (citations omitted), reh's denied, 420 U.S.
956 (1915); AppleYard's Motor Transportation Co.. Inc. v. ICC, $92 F.2d 8,10 ;
(1st Cir.1979). Nor does the standard contemplate judicial recalculation of matters of agency regulatory policy. Aockford League of Women Voters v.
NAC. 679 F.2d 1218,1222 (7th Cir.1982).
Petitioners have neither legal not factual support for their contention that the Commission's dechion represents 'a clest error of judgment
- or that it failed to ' articulate a rational connection between the facts found and the choice made.' The record clearly demonstrates that the Commission con-sidered each of the issues raised in the petition and thoroughly explained why none of them supported the request for enforcement action. The record ;
a'*o reveals an agency action that makes eminent practical sense. Accord-ingly,if reviewable, DD 87 lf must be affirmed. !
B. There is No Batis for Revirtsal of the "Contalement Issues
- Portlos of DD-87-14.
Petitioners' request for enforcement action was predicated, in part, on alleged design flaws in Pilgrim's General Electric Mark I containment structure. The petition described three areas of concern: 1) alleged design flaws noted by Dr. S. H. Hanauer in the early 1970's, 2) the ability of the containment structure to withstand severe accidents, and 3) concerns raised in the wake of the Chernobyl accident. The Commission found the first two matters to have been previously assessec a,J judged not to warrant enforce-ment action (even by Dr. Hanauer) and the third to be factually without predicate.
With respect to the first of these, the Colden retition relied on an AEC laternal memorandum prepared by Dr. Hanauer la 1972 that questioned the ability of the Mark I containment structure to withstand an accident involving a large loss of coolant, in D0-87-14. the Commission found that Dr. Hanauer's concerns had already been addressed in an NRC staff report l
entitled 'NUREG-0474: A Technical Update on Pressure Suppression Type Ccatainments in Use in U.S. Light Water Reactor Nuclear Power Plants.' l 5
After an extensive review of that report, the Commission concluded:
- 'NUREG 0474 summarizes NRC staff actions related to each of the seven concerns identified in Dr. Hannuer's memorandum of l
l
September 20, 1972. . . . Each statement of concern was followed by a response that reflected the NRC evaluation. In each case, the response showed that the NRC no longer considered the concern an unresolved safety issue."
DD 87-/4 at 23; A.1704.68 Insofar as the petition raised other containment structure lasues not discuued in the Hanauer memorandum, the Commission found that these were
! based on pre.1973 correspondence and "that all of these issues have been ,
addressed in NUREG 0474.* DD 87 /4 at 23; A.1703.
Regarding petitioners' contention that Pilgrim's centainment structure is unable to withstand severe accidents and that the NRC has been guilty of underestimating the risk of such accidents, the Commission noted that it had i
recently completed a study, NUREG-IISO, discussing those very issues. That study, the Conmission found, was intended:
'to accurately reflect the severe accident risk at a number of US nuclear power plants, and also to properly reflect the areas of uncertainty. . . . This study concluded that our ability to accurately predict the response of a Mark I containment was i
' limited to situations where it was subjected to the harsh tempera-ture and pressure conditions following a core melt accident. As stated earlier, the report indicates that containment failure probability (for those extremely unlikely events)lHI could likely range from 10 to 90%.
1
'These uncertainties are currently the subject of research efforts that better predict the behavior of containments during sesere !
'l !
saFurthermore, the Comriission noted that althougn the issues raised in I
Dr. Hanauer's memorandum dated from 1972, the NRC's response reflected its i under1tanding of the issues as of 1973. In addition, the Commission noted that by the time NUREG 0474 was issued, Dr. Hanauer had changed his position and agreed that 'the problems of both ' dry' and pressure suppression ;
containments are solvable and, in my opinion, the design safe, and therefore licensable.' DD 87 /4 at 22; A.1703.
i NUREG-il50 estimated that the probability of containment failure is approsimately one chance in 100.000 per year of operation for a plant similar la design to Pilgrim. In addition, it estimated that a severe accident i
resulting in one or more prompt fatalities is in the vicinity of I la 1,000,000 to I in 1,000,000.000 per year. This Court may take judicial notice that,
' were risks of such infinitesimal proportions a bar to the employment of
' tichnology, no airplanes would take off, no automobiles would traverse the highways, and no elevators would rescue us from the labor of climbing stairs.
l 1
i f
i
accidents, so that a more complete risk perspective can be -
assembled for guiding our regulatory activities. . . . l
'While we believe that severe accident risks are low at operstles
' nuclear plants, our goel is to pursue additional activities to schieve even lower levels of public risk. To assure that our risk conclusions are applicable to all operating units, a number of
, programs are going forward to assess severe accident likelihood ;
and consequences. These programs include plant specific studies to determine any severe accident vulnerabilities, both from the l perspective of accident frequencies and from containment perfor- ;
j mance following a core melt. Any problems will be dealt with if identified. This program is known as the individual plant examla-i ation (IPE) program which la espected to commence later this year. These and related programs will be conducted to provide further assessments of severe accidents on a plant specific basis, j so that appropriately low risk levels can be maintained.' :
DD 8714 at 30-32; A. at 1711-13.88 1
As far as the containment structure's ability to withstand such an i accident, the Commission found that the Golden Petition relied solely on the criticisms in the Hanauer memorandum which it had assessed and rejected in .
NUREG 0474 In any event, the licensee had already taken steps to enhance '
I the integrity of the containment structure even though 'the NRC [didn'il 4
view any of these modifications as necessary before the plant restarts." DD-8714 at 33; A.1714 Finally, the Colden Petition alleged that the adequacy of the Filstita containment structure required re eaamination in light of the Chernobyl accident. However, the Commission noted that a special task force had been i formed following the Chernobyl accident to study its causes. The results of
! that study were published in a report, NUREG 1250, prepared in collaboration i
i with other U.S. agencies and independent groups. Based on NUREG 1250, as well as the Commission's own study, NUREG-1251, the Commission found j that
(
I ,
'It]he Cherncbyl accident was initiated by serious operator '
violations of safety procedures. However the ensuing reactor '
,i ,
1 i
- l i
The petitioners claim that 'tDD-37-14] makes no reference to i evidence set forth in the petition that . . . . Compare RA at 992 94 1 1 (Petition) with RA at 1711-13 (NRC Decision).* Commonwealth's #rief at 30.
The assertion is erroneous. At pages 23 25 A.1704 06, DD 87-14 deals with j
j -
precisely the ' evidence' referred to and shows why, based on subsequent events, it no longer warrants regulatory concern.
I -
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damage resulted from basic design featutes... which are specifically prohibited in US reactors."
DD 87-14 at 27-28; A. at 1708 09. Given these importanc differences, the Commission concluded thtt the concerns expressed in the petition regarding the likelihood of a Chernobyl type accident at Pilgrim were 'without merit.' l DD-87-14 at 29; A. at 1710.
Despite the Commission's exhaustive review of each of the containment structure issues raised in the Colden Petition and its detailed explanation as ,
to why none of them could support the requested enfortiment action, the '
petitioners press this Court to accept its argument that the Court must -
4 vacate the Commission's decision because it did not ' adequately explain ( )
the facts and Isolicies upon which it relied." Natural Assources Dc/tast Council v. EPA, 424 F.2d 1258,1267 (1st Cir.1987). To prevail, petitioners
'must show the (Commission's] determination to be arbitrary, capricious, and an abuse of discretion []; in essence they must seek to show that, in light of the factual circumstances, the [ Commission's) decision was unreasonable.'
i Quinont:-Lope: r. The Coco Latoon Destlopment Corp.,131 F.2d I, 2 (1st Cir. 1984). Moreover, the appellants ignore the point th .t. 'Couru are :
required to give their highest level of deference to decisions involving novel '
1 questions at the ' frontiers of science." Lorion v. NAL '15 F.2d 1033,1043 ,
(D.C. Cir.1986), citing Saltimore Gas d Electric Co. v. NADC. 462 U.S. 37, 103 (1983).
Nothing in the record suggests that the Commission's decision w1s
' unreasonable.' To the contrary, the record clearly demonstrates that 3 enforcement action was not warranted given the evidence offered in the i petition, indeed, it would have been manifestly unreasonable for the i Commission to have initiated enforcement proceedings based on the contain.
ment structure issues advanced in the petition since it had already examined each of these claims, several times in some instanets.
1 Accordingly, petitioners have not demonstrated that the Commission's I declination to take enforcement action with respect to containment structure d
issues was ' arbitrary, capricious or an abuse of discretion" even if that decision is otherwise reviewable, ,
! C.
4 There la No Basis for Reversal of the 'Off Site Essergemey Planoles issues
- Porties of DD 87 14.
l Petitioners purport to seek an order compelling the Commission to initiate enforcement proceedings based on the emergency preparedness issues i set forth in the Golden Petition. Their brief, however, manifests no quarrel :
with the disposition of the issues raised 'n the Golden Petition. Rather, !
that of which they complain is the present state of the Commission's
] evolving and non final position on other off site emergency planning issues l 4
(discuued in a separate FEMA report). Since these other matters are not i 1
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proptrly before this Court, and not something of which the present petition-ers have, by virtue of the denial of the Golden Petition, acquired standing to complain, these arguments should be dismissed. in any event, the a'
Commission's rnposse to these other matters is not only clearly within the t scope of permissible agency discretion, but also eminently sound.
- 1. The Disposittee of the Goldes Petitles was Corrut.
Pursuant to its Memorandum of Understanding with FEMA,81 the Commission forwarded that portion of the Golden Petition dealing with off.
1 site emergency planning issues to FEMA on August it,1936, for its review. 1 FEMA subsequently notified the Commission that it had already begun its l
' own study of the state of emergency preparedness at Pilgrim and was planning to submit 9 report discussing those findings, the issues raised by the petition, as well as other miscellaneous emergency planning issues.
1 4
On August 6,1947, FEMA transmitted two reports to NRC, one entitled i
- Self Initiated Review and Interim Finding for the Pilgrim Nuclear Power Station, Plymouth, MA: August 4,1987' ('Sel/-Initiated Arport'), and the t
other entitled ' Analysis of Emergency Preparedness issues at Pilgrim Nuclear
' Power Station Raised in a Petition to the NRC Dated July 15,1986* (July 29,1981) (' Petition Afrort'). In the latter report FEMA examined the
( , specific issues raised in the Golden Petition and concluded:
l
' 'Most of the issues raised in 'the 1986 petition are essentially l l identical to issues raised in a petition submitted to the NRC in 1983 by MASSPIRO, and to issues previously examined by NRC and i '
FEMA. Based on a previous analysis by FEMA, the NRC denied the 1983 MASSPIRG petition on February 27, 1984, 1
' FEMA reviemed this new petition in light of the state of the i record at the time of its submittal and information available to FEMA as of November,1986. Our review was largely completed Q by December 20, 1986.
! FEMA dealt with later information 1
including FEMA staff analysis of public and interagency meetists, and the Barry Repot'l'81i n its self-initiated review. It should be noted, howeser, that, while FEMA's analysis of the seven alleged deficiencias in off-site emergency planning indicates that the information in the petition did not sustain the contentions based i on the state of the record at the time the petition was reviewed. I
., FEMA agrees with the general thrust of some of the conclusions
'l$ee note 3. supra.
I '8 A report prepared by the Massachuretts Secretary of Public Safety l j
discussing the Commonwealth's plan to protect the public in the Pilgrim emergency planning none.
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i of the petition for the reasons cited in lu self-initiated review and interim finding dated July 29, 1931.* t Petition Atport at 4.
As FEMA describes, the Golden Petition raised sia specific conten-tions,# none of which warranted enforcement action: I i
Advance In/ormation. As FEMA observed, all of the assertions made regarding advance information were resurgitations of claims previously made :
and rejected (both by FEMA and the Commission), as to each of which "[n)o ,
substantive new lasues are raiwd by the cutrent petition.* Petition Arport at 5 11. A. 1635-41. FEMA's reasons for rejecting these claims are :
resonable, bued on FEMA's own knowledge of the facts, and wt forth in !
detail.
i Public Altriint System. Once again, FEMA pointed out that each of thete assertions had been previously made and rejected, ar.d that nothing new had been added. Petition Arport at 11-16. R.1641-46. FEMA also pointed out that the petitioners apparently do not undentand some of the technical reports on which they rely (and which FEMA prepared). Id. at 13, i A.1643.
)
i E,acuation Plans. Here FEMA considered and rejected a divene set of
! specific assertions by (i) reference to technical reports and anajyses. (ii) correcting an assertion regarding the substance of prior testimony by a
!, FEMA employee, and (iii) referring to its prior disposition of old allegations ,
as to which the current petitioners had added "In)o substantive new issues." i l Petition Attort at 1130, A.164160. l i
Afedical facilities. As FEMA pointed out, this assertion is dependent l ' upon an assumption of large numbers of ' contaminated injured
- penons, f.e.,
penons who are both contaminated and injured. NRC emergency planning j regulations require no such assumption. Petition Arpt at 31, A.1661.
Plainly, therefore, no buis for enforcement action exisu on this score.
- Se
- t of tat EP2, Here again, the premise of the assertion was in i
I 1 l "The petitionen also criticized the history of performance by the Commonwealth in terms to timely response to criticism, timely submission of information, and failure to remunerate civil defenu volunteers - which is sometimes referred to as a seventh issue. Even if valid, these assertions do not, by themselves, demonstnte a basis for enforcement action against Bosten Edison Company.
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derogation of the applicable regulations. Petition Atport at 34-41, A.1664-71.**
Sased on this analysis, the Commission determined to deny the Golden petition. DD-87-14 at 14; A.1695. Its determination was well reasoned, fully consistent with the recommendations of FEMA, and well within the j realm of permissible agency discretion. Moreover, this aspect of DD 41-/4 is essentially unchallenged on this appeal. The Commission's disposition of the '
4 Colden 7ttilion. therefore, should be affirmed.
- 2. The Commisslee's Besponse le the FEMA Self-Isillated 1 Report Should set be Ceesidered oe Ibis Appeal Beesene '
1 it is Both Neo Fleet ned Outside of the Scope of the I
l 2.204 Petittee; if Reviewed. Thie Aspeet of DD 87-14 Should Nonetheless be Affirmed.
All of the arguments upon which the petitioners rely le seeking
' reversal of the off-site emergency planning aspects of DD 87-14 3o not to '
the Commission's denial of the Colden 7ttition, but rather to the Commis- ,
t - sion's response to the additional matters reported on by FEMA in its Self-l J Initiated Attort. Thus, it is claimed that, perforce 10 C.F.R. l 50.54(sX3),88 i the Commission was obliged to render greater obeisance to the FEMA
- recommendations than assertedly the Commission did, thus rendering its !
i decision ' arbitrary, capricious and an abuse of discretion.'** FEMA, however, found the Golden retition to be without merit. What the petition-i ers are actually seeking this Court to reverse is the Commission's deferral of ,
i any enforcement action in respect of the matters raised in the FEMA Self-(nitiated Arport. i
! i 1 The Commission's response to the FEMA St//-Initiaird Arport.however, t is not something properly before this Court. In the first instance, unlike !
And see Long Island Lif Ating Co. (Shoreham Nuclear Power Station,
[
Unit I),CLI 87-12,26 NRC _ . CCH Nuc. Reg. Rptr. par 31,037 (November l l 5,1987)(EPZ expans*4n not to be predicated on supposed safety concerns).
t i
"T)at regulation provider "The NRC will base its finding on a revww l
of the FEMA findings and determinations as to whether State and local )
- emergency plans are adequate and capable of being implemented, and on the '
NRC assessment as to whether the licensee's emergency plans are adequata ar,d capable of being implemented. Nothing in this paragraph shall be construed as limiting the authority of the Commission to take action under any other regulation or authority of the Coramission or at any time other than that specified in this paragraph.'
i
) "Petitioners concede, as they must, that the Commiulon is not bound j by FEMA's recommendations. Ccmmonwealtit Brit / at 28.
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.., o the disposition of the Coldra relation, the Commission's response to the Self-Initiaird Atport is manifestly not final. Taking into account the fact that Pilgrim Station is not presently at power, together with its knowledge of ongoing efforts by the Commonwealth and the municipalities involved to improve their emergency preparedness," the Commission stated in DD 47 /d that 'the Commission will consider, among other issues, corrective actions regarding emergency planning issues identified by FEMA before permitting the restart of the Pilgrim Plant." DD-47-/d at 35; A. at 1715. In short, the Comm'.ssion has deferred its response to the FEMA Self Init/aled Aeport, and in this respect its action is no more final than its deferral of the so-called
' management issues.'
Second, the standing of the petitioners in this Court is limited to the scope of what was presented to the Commission by, and what action the Commission took in respect of, the Golden retition. Section 2.206 requires a petitioner enforcement action to ' set forth the facts that constitute the basis for the request.' Where that has been done, and where the Commis-sion's action on the petition is either affirmed or not challenged, that is the end of a p;oceeding for judicial review of a i 2.206 petition. Esen assuming i 2.206 dentals to be otherwise appealable, an appeal from such a denial is act a vehl$ for seeking judicial supervision of other, procedurally unrelated agency actio tt that merely happened to occur at about the same time.
Finally, if the Comminion's preliminary response to the FEMA StI/-
Initiated Arport is properly before this Court, it must be affirmed. What the Commission has been tresented with in the FEMA document is a series of assertions that, if sustained, misAt warrant enforcement action. That action, howeser, would be limited, at the most. to requiring the unit to be taken down from power pending rectification of the emergency planning inadequacies. Here, the unit is not at power, the state and local officists are engaged in upgrading the status of emergency planning, the responsible federal agencies are monitoring progress closely, and the results of all these efforts are not yet known. Particularly given the important and legitimate policy considerations articulated by the Commission in CLI 8216,ee together with the fact that, as this Court has held, the reasonableness of the Commission's action must be esaluated "in light of the factual circum.
stances.' Quinone: Lorts, 731 F.2d at 2, there is nothing arbitrary, capt-icious or ' unreasonable
- in deferring any action until the results of all of the present activities is known. To force the Commission to take a defini-tive position at this time . the essence of what the appellants urge this "As is noted abose, all of the inadequacies noted by FEMA relate to the performance by the Commonwealth or its municipalities of their duties in respect of off site emergency planning.
- See supra at note 31.
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Court to do -- would be an act of practical futility, a waste of agency resources, and a disposition quite inconsistent with NRC regulations."
la Aock/ord League of Women Voten v. NAC. 679 F.2d 1218 (7th Cir.
1982), the Court declined to review an NRC decision not to take enforcement action la part because the Court was unwilling to second guess the agency's reuons for doing so. That Court's rationale has an equally compelling i application here:
1 4
- Government agencies have limited resources to perform their
! appointed tasks. The couru cannot tell them how to allocate those resources to as to get the most value out of them. . . . We cannot say that the Commission must launch another proceeding on the same issues at the same time .. whkh is what the
" [ petitioners) want us to say .. rather than use the adjudicatory resources that would be consumed in such a proceeding somewhere else in its regulatory domain."
t 679 F.2d at 1222. See also # teller v. Chaney, 470 U.S. 821, 831 (1985)
(agency is in best position to evaluate most effective use of its resources);
K. W. Thompson Tool Co., Inc. v. U.S. No. 37-1536, Slip Op. at 18 (Court j ' mould be engaging in judicial 'second guessing,' as well as trespassing upon an esecutive function, were we to interfere with the prosecutorial decision.
making process.').
1 Accordingly, petitioners cannot demonstrate that the Commission's
] decision not to initiate enforcement proceedings with respect to emergency i
planning issues was ' arbitrary, capricicus or an abuse of discretion" even if j that decision was otherwise reviewable.
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- The sub siltatio argument of the appellants is that, given any 1 deficiency in off site emergency planning, suspension of operation is '
i mandatory. Prescinding from whether the premise la true, the conclusion is d
a direct coattsdiction of the Commission's regulat;ons. Section 50.54(sXii) of (
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10 C.F.R. provides that, where the off site emergency planning minima for 4
licensing is not met for an operating facility, the facility has a period of time withis which to attempt rectification while continuing to operste. Esen thereafter, it is a matter of Commission discretion whether suspension of j
operating authority or some other remedy is appropriate. See Consolidased Edison Co. of New York (Indian Point. Unit No. 2), Cl.l.83 16,17 NRC 1006 1
(1983).
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i CONCLUSION For the foregoins reasons, the ' Petition for Review
- should be dis.
missed, and, if the petition is not dismissed, then the decision below should be affirmed.
Respectfully submitted, ;
I -
1 ;
4 t R. K. God lit James B. Levy -
Ropes & Otty 225 Frankila Streek '
Boston, Massachusetts 02110 j
(617) 42).6100 4 i William $. Stowe !
Sotton Edian Company 1 1
800 Boylston Street j
1 Boston, Massach'ssetts 02199 Attorneys for Roston Edison Company '
] Dated: March 1,1988, l
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I (b) Any final order entered in any proceeding of the kind specified in subsection (a) above shall be subject to judicial review in the manner prescribed in the Act of December 29, 1950, as amended (ch. 1189, 64 Stat.
1129), and to the provisions of section 10 of the Administrative Procedure Act, as amended, -
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, Castro BWRt for $e T 2 'R,bo*ME, b, TEM' ment h:.s decidcd6n "a p oc for reGectio6" Use ' cif this .B bed gh
.. ,r' availability of thd nuclear plants is havys "oes' ~ oc 2k du a.,,, a:as :lealf 6sts '..'
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.m o tubs 4d mr.r a.h2s . . . 'y IMUD SEEKS OT iER PO% ,
ER 11tilitySOURC.
Diaript (SMUD) ise'A.N.
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considering DhAcH.bhc0Y IN t a ..~ -
The Sacramento Municipal d ~og30 g (p -
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California utiliths in an effort to reduce its zeliance on 14 Rancho $4co o.AW19,n:@ef, ,1kg nuclear ",~ .;
other crgsnizatiDns,ine!udin Duke Power.ht seuin r some of Rancho Sec j; tam m. . - .
y
"... A SMUD spokesman sai the utility hopea to parchase up to.40d megawam.s at 43 p, g h. '
kilowatt.hout er less. If the qurchase propcdals that SMJD is sen ' to stilites stagwide
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enough interest. the utility upgM consider rpising the capacity soug t.De offetisas j . l[ {
board's directije that the utility reduce its rpliance on Rincho Seco whichbeen shut tof.,4 , L g.
Apr - ,W.' I ber 1985 and now has a Jansary 1988 restart date. The orective a p sparked MUD'ppo .g to W, s buyer for all of a share of th'e 916.MW PKR. ,
. , .. . , , , , J. . : ,n yin tb ,
Duke Pow br Co. apparently is interested in beying 1.anpho j S , accordir g to the S ing all o ' the plant a pertec6ge W e' of it. Represestatises of the two utilities la)ve meet Duke- hichopera three sia w thry: times, man. He w
- Babcock & Wilcox reactorlat Oconee-id the only interestelparp ited the that has L Soneer, the spokesman said the ta% have been pfehminary the arp: negare not don stage.' ee or font other organiiations also have expressed ipterest in the p! ant. acc rding to th rpokes Ae:ordin .
.n rsnge from/"g to atoDuke outright purchase, a leasing Po,u er tospokesman, arrangemer.t an tions in the prelim rating agrde me.tt, Dukemeetings is e;pploring t coctract work to doing nothing." He sa:d that'no one optko is a clear fAo, ite this time, Th board dire,s.ars is xth ' :.
cussin them and will decide' any opt $on should be peraung one, Duke w
'a ,'he sajd.Under 'ther le.uing agreement r me Rancho Seco's .-Ebine Ni
'asAiagron ..;. g so
' ) ,p .= , d 8PONENTS WANT PILGRIM KEPT SHUT OVER FAULTY STATE EMERGENCYPL)N .
The evacuation plans drawn op by Massachusetts of6cials for the 10-mile emergency planning tone (EPZ) around the Pilgrim plant are "not adequate to protect the health and safety of the poblic."secord.
ing to a recently. released study by the Federal Emergency Management Agency (FEMA). 5evefal towns in the EPZ are :rging the state to 6te a lawsuit to try to nop ?ilgrim from operating wtule che plans are inadequate. '
In the August 4 report, the federal agency faulted state olticials for "numerous problems" with plans for evacuating the iJ2,000 people in Pdgrim's EPZ within 8.2 boats and blarned the problims on "a lack state ; of vita coordinadon con 6dence" that sebetween state's evac: W1s of governmerd. "The report concluded that FF.MA "can no longer an ples would work. In response, of6cials of Kingston ad Duxbury, two of the 6ve towns within the EPZ, and local Pilgrim opponents have asked Oov. .
- 4.U:'
Michael Dukikis to 6te suit to block restart of Pdgrim, which has been closed for 15 months
- for refuel-ins and a $30-million upgrading ofits Mark ic>ctaarnent (Inside NRC,11 , ., May,.,,m 9)
Boston Edison, owner of the 670 MW General Electric BWR, hopes ;o tsstart the re'actcr in late e, September. "We are working mth the state and towns to improve the nplans," said a Bonon Edtson spoMmsn, "but the offs;te plus are t responsibility of the Ccemoawealth of)Am^useus."c./
NRC controls the operating bcease, and the major pecedent fcr the Massachusens amtvm does oct
- indicate NRC will take an, immediate action to stop operation. FEMA idAnti6ed aWW1 deWt>s in local governments' plans, including one county's refusal to participece n!together,in early 1982.r around New Yort's Indian Point stanon, in the heavily populated New York City suburbs. NRQ po , ng mveral occasions thre4traed to close the. plant if planning weie not improved, incloding issuing a 120-day waming at one point, tmt the comraission relased, in a crucial 3-2 vote in June 1983, loclose th plant ever the de6cicocles (Inside NRC,13 June '43,1). Only one commissioner-Thomas Roberts, ,
who voted co the prevailing side-is still oc the ocunmission, tant his newer colleagues ars.comt rni fricadlier to the industry shan their gehus... eN. i,r. ..,.c, .mo, c, lac .bau.w u dr.rutam.q.
.5-e .g
'ns FEMA Pilgrim hudy identlSed sin de6clencies in thistate'itvsenation pleasi 6 a talk a7 .'.
s'completelist of all day care cente t ard private scbcols within the EPZt a lack bof a re decoGaminadon ~ center for the 60,000 people that wn!! c acuate to the north of the plant: tack of tMy./ .
'speci.5c evreustjeen plans for he 20,000 people living on the bexhes of the Sve towns within the'EPZ: a I lack of a list of pnysically' disabled mcple within the EPZ and ricciac plans to transport Omn inihc i event of an emergency;incornplete plans for stilizing public transportation during an eveccation; and "overall lack of progress in planning and appareni dimunition in emergency' preparedness." The stud WC' TONIC $ WEEK d Aogda 2a,19f7 S
- _ _ - _ . - _