ML20205E204
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UNITED ST ATES
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NUCLEAR REGULATORY COMMISSION WASHINGTON. D C. 206SS
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!!ovember 5,1987 i
Francis P. Scigliano, Clerk U. S. Court of Appeals t
for the First Circuit 1606 J. W. McCormack Post Office j
and Courthouse Building Boston, Massachucetts 02109 i
SUBJECT:
Massachusetts Public Interest Research Group, et i
l al.
- v. United States Nuclear Regulatory Eomm,ission, i
et al., No. 87-1865 l
Dear Mr. Scigliano J
Enclosed are the original and three copies of "Respondents' Motion to Dismiss the Commonwealth of Massachusetts' in the above-captioned case.
Please have your office stamp the enclosed copy of this letter indicating the date of filing and return it to me at I
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your earliest convenience.
Thank you for your cooperation.
i Sincerely, 1
'W:_^
Michael B. Blume t
Senior Attorney l
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office of the General Counsel i
J In dup.
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Enclosure:
1.
Motion (4) l cc:
Counsel of record I
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030926 I
g g -190 I
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UlWTED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
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MASSACHUSETTL PUBLIC INTEREST
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RESEARCH GROUP, et al.,
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l Petitioners,
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l v.
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No.
87-1865 l
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UllITED STATES tiUCLEAR
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REGULATORY COMMISSIO!!, et al.,
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Respondents.
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RESPONDENTS' MOTIO!! TO DISMISS THE COMM0!! WEALTH OF M,'.SSACHUSETTS Respondents !!uclear Regulatory Commission (*!!RC' or 1
' Commission *) and the United States hereby respectfully request this Court to dismiss the Commonwealth of Massachusetts as a party to this proceeding.2 The Petition for Review submitted by petitioners Massachusetts Public Interact Research Group ('MASSPIRG') and 3
several others seeks judicial review of an August 21, 1987 NRC t
i 1Wh11e the United States was not named as a party, it must be one in this action.
See 28 U.S.C. 5 2344; Fed. R. App. P.
15(a).
i 2Also pending before this Court is respondents' Motion to Dismiss the Petition for Review.
3Pilgrim Alliance, Plymouth County Nuclear Information Committee, Inc., William B. Golden, Barbara A. Hildt, and Frank M. Hynes.
s order granting in part and denying in part petitioners' request hat the NRC suspend the operating license for the Pilgrim I Nuclear Power Station, or prevent its restart.
Because the Conionwealth was not a party to tha request for NRC enforcement action, it is not a ' party aggrieved' entitled to be a party to a suit ut. der the Hobbs Act, 28 U.S.C. SS 2341-51.
Thus the Connonwealth should be dismissed.
ARGUME!1T Judicial review of NRC decistores is governed by the provisions of the Hobbs Act, 28 U.S.C. S 2341 et seq.
Section 2344 provides that "[alny partv aggrieved" (emphasis added) by a final ager.cy action may file a petition for revieu in the appropriate court of appealc.
It is well settled that an entity that was not 0 party to a proceeding has no right to natntain an appeal.
Clark & Reid Co. v. United States,, 804 F.2d 3, 5-6 (1st Cir. 1986); Wales Transportation v. ICC, 728 F.2d i
774, 776 n.1 (7th Cir. 1954): Simmons v.
ICC, 71G T.2d 40, 43 t
(D.C. Cir. 1983): American Trucking Assn. v. ICC, 673 F.2d 02, 84 (5th Cir. 1982); cage v. Atomic Energy Commission, 479 F.2d 1214, 1216 n.14 (D.C. Cir. 1973)
Easton Utilities connission v. Atenic 1
Energy Connission, 424 T 2d 847, 853 (D.C. Cir. 1970) (en bsne).
This Circuit and several others have commented on the ' party I
aggrieved" language
'The word ' party' has been defined narrowly for purposes of the (Hobbs Act]; it applies only to those who directly and actually participated in the administrative j ;
proceedings."
Clark & Reid Co. v. United Stat,es, supra, 804 F.2d at 5 (cites omitted).
Accord, Blackstone Valley National B,ank v.
Board of Governors of the Federal Reserve System, 537 T.2d 1146, 1147 (1st Cir. 1976) (identical language in different statute).
Sinilarly, the D.C. Circuit, in a unanimous en banc decision in Easton Utilities, supra, disnissed an appeal filed by a petitioner who, like the commonwealth, had failed to participate in the administrative proceedings:
We have loag and frequently passed upon the limitations of judicial review which we exercise in agency cases involving failure of potential or possible parties to fully exercise, utilize and protect their rights to participate in administrative procedures.
More than thirty years ago, concerned with the problem of what must be done by 'an interested person to act affirnatively to protect hinself*
in agency proceedings, we caid that '[sluch a person should not be entitled to sit back and wait until all interested persons who do so act have been heard, and then complain that he has not been properly treated.
To permit such a person to stand aside and speculate on the outeeme *** end then permit the whole matter to be reopened in his behalf, would create an 1.npossible situation."
- (7]f, having such riotice as it was entitled to have at an earlier stage of the proceeding, it neglected to avail itself of such an oppor tunity, it may thus have foreclosed itself from seeking further relief."
[d. at 851-52, quoting Red River Broadcasting Co. v. Federal Communications Commission, 98 F.2d ?S2, 236-87 (D.C. Cir. 1938).
l Uhtle the Commonwealth has attempted to attain party status in this litigation by intervention rather than by submitting its own petition for review, it still is not a 'perty aggrieved
- within the meani g of the Hobbs Act.
Accordingly, allowing the Commonwealth to be a party by intervention without l
having participated in the administrative proceedings would still be contrary to the principles noted above.4 Moreover, where Congress has intended to permit
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intervention in Hobbs Act cases by interested communities and 4
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other entities who have not participated in admit.istrative proceedings, the Congress has specifically provided such
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authority.
28 U.S.C. 5 2323 (Interstate Commerce Connission j
proceedings); cf., American Trucking Assn, v. Icc, supra, 673 F.2d at 85.
There is no su','h authority pernitting an entity to j
intervene as a party in the Court of Appeals to challenge the l
outcome of an NRC proce'sding in which the entity was not a direct participant.5 i
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4 James Shannon, now the Attorney General of the j
Comnonwealth, was one of those who submitted the 2.236 petition j
for enforcement action to the NRC.
However, he did so as a j
private person, prior to his election as Attorney General.
That j
he did so should not confer standing on the Commonwealth.
l S chat is not to say that the Commonwealth cannot participate in the instant action.
If the Court pernits it to do se, the I
Commonwealth might submit an amicus brief.
Moreover, the Conmonwealth submitted to the NRC on October 15, 1987 a 2.206 request concerning Pilgrim that is quite similar to petitioners'
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July 1986 request that is the basis for the instant proceeding, If the NRC denies the Conmonwealth's request, that denial could d
provide a basis for the Commonwealth to petition for review in its own right.
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CONCLUSION For the reasons set forth above, the Commonwealth should be dismissed from this action.
Respectfully submitted,
/
/'g [ f/,.,'p.
[% ~
J LAURA E.
PROSSARD WILLIAM H. BRIGG*e/Jr.
Attorney Solicitor l
Appellate Section Land and Natural Resources Division U.S. Department of Justice su_
Washington, DC 20530 MICHAEL D. BLUME Senior Attorney Office of the General Counsel Comnission U.S. Nuclear Regulatory i
Washington, DC 20555 I
(202) 634-1493 4
Dated.
11/5/87 i
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CERT 2F2CATE OF SERV 2CE l
I hereby certify that on this 5th day of Novenber, l
l 1907, copies of the foregoing "Respondents' Motion To Dismiss The l
l Commonwealth of Massachusetts' were mailed, postage prepaid to l
Hilliam 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 02106-1698
, f_ :f HICHAEL B. BLuxE Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory commission Washington, D.C. 20555 l
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Ul;IiPB FTATES COUPT OF APPEALS FOR THE FIRST CIRCUIT
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!!ASSACHUSETTS PUBLIC !!!!EREST
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RESEARCH GROUP: et al.,
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Petitioners,
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v.
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!!o.
87-1865
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UllITED STATES !!UCI.E AR
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REGULATORY COMt!ISSIO!!, et al.,
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Pecpondente.
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RESPCf:DE!!TS' I'OTIO!! TO DIS!!!SS
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Petitionere, the Massachusetts Public Interest Research Group ("MASSPIRG') and reveral other.=,1 have petitioned this Court to review a decinton of the fluelear Regulatory Commission ("!!RC' or 'Cennission") to deny a request for enforcement action i
contained in a petition subnitted to the agency under 10 C.T.R.
5 2.206 (198').
The Un..*d States of America' and the United i
States !!uelear Regulatory Connission (hereinaf ter collectively 1
referred to as ' respondents") move to dieniss the instant petitier. f or review on the ground that the refusal by the !!uclear
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Regulatory Connission to take discretionary enforcement action is I Pilgrin Alliance., Plynouth County 11uelear Information 1
Committee, Inc., Pt111am B. Celden, Barbara A. Hildt, and Frank M. Hynes.
I While the United States was not named at a party, it nust l
be one in this action.
See 28 U.S.C.
5 2344: Fed. R. App. P.
15(a).
1 1
unreviewable under the Supreme Court's decision in Heckler v.
Chaney, 470 U.S. 821 (1985).
STATUTORY, REGUT.ATORY AND FACTUAL BACKGROUND A.
Requesta For URC Enforcerent Action Under the Atomic Energy Act of 1954, 4: U.S.C.
S 2011 et seq., and the Energy Reorganization Act of 1974, 4 U.S.C.
5 5801 el seq., the NRC has broad authority to Itcense and regulate the cenctruction and operation of nuclear pouer plants.
in keeping with this statutor:' authori:ation, the agency has developed a detailed reculatory framework for the administrative processing and adjudication of applications related to i
q construction pernits and operating licenses.
See generally, i
Vernent Yhnkee Nuclear Power Corp. v. Matural Resources Defense Council, Inc., 435 U.S. 519, 5?6-07 (1978).
After 1 permit or license is issued, the licensee remains subject to continuing UP.C review and oversight which ensures compliance with Cornissten requirements and continued protection of the public health and safety.
The NRC has a wide range of enforcement rer.edies with which to accomplish these goals:
letters confitning voluntary connitments by licensees, notices of violation, civil penalties, and orders modifying, suspending, or revoking the licenses themselves.
See generally,
' General Statement of Policy and procedure for NRC Enforcement Actionc,' 10 C.P.R. Part 2, Appendix C (198').
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i j-l Che Commission's regulation found at 10 C.F.R. S 2.206 3
(1987) is the key to understanding the procedural posture of this
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case.
Section 2.206 provides that menbers of the general public j
can request the !!RC to suspend, revoke or modify a license or
-l take any other appropttate enforcement action.
A 2.206 petition must specify not only the reitef requested, but also "... set 4
j forth the facts that constitute the basis for such request.*
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10 C.F.R. $ 2.206(a).
- See, e.g.,
Philadelphia Electric Company l
(Limerick Generating Station, Units 1 and 2), DD-85-11, 22 !!PC 149, 154 (1985); Philadelphia Electric Companis (Limerick Gen' eating Station, Units 1 and 2), DD-82-13, 16 NRC 2115, 2321,
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n.12 (1982) (citina cases).
The petitioner may direct the j
request to one of several specified ilRC staff offict',1r, l
including the Dire: tor of the tiRC's Office of fluclear Reactor d
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Regulation, the official who ruled on the 2.206 request filed by the petitionere in this case.
j 2f the Director of the reviewing office finds merit in j
j the request for enforcenent tetton, he or she may institute a l
proceeding under 10 C.F.R. 5 2.202 (1987) and issue an order l
directing the licensee to show cause why the NRC should not take the enforcement action.equested by the petition.
A 2.202 order lists the alleged regulatory violations or other facts that are l
grounds for the proposed enforcenent action; informs the licensee i
i that it muet file an answer in which the Itcensee can request a i
j hea',ings specifies the issues that will be considered in any such i
hearingt and states *,he effective date of the proposed order, i
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which under certain circumstances can be made immediately l
effective.
If the licensee demands a hearing, the Director issues an order designating the time and place of a hearing.
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j After the hearing (assuning one is sought), the Director l
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deternines the appropriate enforcenent action and the 1;RC staff carries out his directions, see generally, consolidated Edison Company of !:ew York (Indian Point, Units 1, 2 and 3), CLI 75-P, i
1 2 !!RC 173,176 (1975 ).
i If, on the other hand, the Director determines that nt
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i show cause proceeding is warranted, he must notify the person who l
F submitted the *:.206 request for enforcement action of that l
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decision in writing, providing a statement of reasons for that i
1 decision.
While the regulations specifically provide that the i
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Commission will not entertain appeals from the Director's i
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decision, sy 10 C.F.R. 5 2.206(c)(2) (1987), the Connission
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undertakes a sua sponte review of each and every denial of a l
j 2.20C petition to ensure that the Director has not abused his
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l discretion.
10 C.F.R. ! 2.206(c)(1) (1987),
see sanerally, j
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!!celear Reculatorv Connission (Licensees Authorized to Ponsess or Transport strategic Quantities of Special Nuclear Materials),
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CLI-77-3, 5 I;RC 16, 19-20 (1977); consolidated Edison Company of i
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j New York (Indian Point, Units 1, 2 and 3), CLI 75-8, 2 NRC 173, i
175-76 (1975).
If the connission does not act to reverse or j
nod 12y the Director's decision within twenty-five (25) dayc, it i
becomes final agency action.
10 C.r.R. 5 2.206(c)(1) (19E7).
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l Jurisdiction to review 2.?06 denials, if they are l
reviewable at all, see Argument, infra, lies exclusively in the United States Courts of Appeals.
2C U.S.C. S 2342(4); 42 U.S.C.
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$ 2239(b); Florida Power & Licht Co. v. Lorion, 470 U.S. 729 (1965).
l B.
Petttioners' Recuest For !:RC Enforcenent Action On July 15, 1986, the petitioners filed a Section 2.206 request with the Connission.
Petitioners requested the Connission to order Itcensee Doston Edison Conpany (*BECO*) to show cause why the Pilgrim I Nuclear Power Station
(' pilgrim')
r should not remain shut down or have its operating license suspended.
The bases for petitioners' request were nunerous alleged deficiencies:
(1) in the facility's containnent structurt;3 (2) in the Pilgrir. radiological energency rerponse plan:4 and (3) in DECO managenent.
The petitioners alleged that 3 A reactor containment is one part of a structured, tiered approach to public safety known as defense in depth.
Defense in depth is the use of multiple levels of assurance and safety to mininize risk to the pubite.
The prinary level of assurance is the precise design and construction of this plant, with insistence on the use of conservative assumptions an both design and construction criteria.
The containment itself is a concrete and steel enclosure completely surrounding the reactor so as to protect against postulated rt.dtoactive releases from hypothetical accidents up to and including major ruptures of reactor coolant piping.
4 Ar.other part of defence in depth is the NRC's requirerent for emergency preparedness on the part of licensees and state and
[ Footnote Continued),
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l these deficiencies, as described in the 2.206 request, demonstrated an absence of the reasonable assurance of safe operation required by URC regulations.
In an August 21, 1967 'Interin Decision," the Director of Nuclear Reactor Pegulation ("URR'l denied in part and granted r
in pert the petitioners' request for continued shutdown of the plant, explaining the decision in detail.
Denied outright were petitioners' argurents for shutdown on the ground that the t
P11 grin containment is inadequate.
Petitionere cited three najor areas of concern as to the containnent -- issues identified between 1972 and 198G but allegedly not resolved, issues raised by the accident at Cher' obyl, and issues raised by recent studies concerning the vulnerability of the type of
-*ainment
(' Mark I') used at P11 grin.
The Director acknowledged that Pilgrin's containnent is not invulnerable, but noted that the questions raised in 1972 had I
been answered by the agency as long ago as 1970, and that others raised afterwards were resolved via generic progranc.
Chernebyl, l
the Director concluded, has been studied by the NRC and found not to have undercut safety conclusions concerninc P11 grin.
The
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Director also rejected the third basis for allegations of f
inadequacy of the Pilgrim containment, nanely recent studier
[ Footnote Contin'tedi f
local authorities.
For example, the NRC requires the provision of reseurces and the capability to notify pronntly the public within ten mile.* of a plant of a serioub acetden*
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s concluding that in some very unlikely accident scenarios the Mark I containment might be likely to fail.
Recogni:ing the large uncertainties surrounding the conclusions of the studies, but note importantly recognt:ing both the extremely low probability of severe accidents at Pilgrin and the overall low l
risk to the public, the Director rejected this argument.
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Moreover, he noted, there are ongoing generic and plant-spectfac i
prograns, including some at P11 grin, to reduce thece j
uncertainties and to improve containment performance, t
As to the nanagement tssues raised by petitioners, i
Director deferred decision pending his assessnent of BECO i
proposals for inprovements to be implemented prior to restart.
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Finally, the Director rejected petitioners' proffered energency planning arguments for continued shutdown or for license suspension, noting the Federal Emergency Management Ageney's (*tEMA*) conclusion that none of the argunents was j
valid, nest of then being identical to issues raised by MASSpIRG in 1983, and evaluated by FEMA and the NRC at that tire.
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However, he noted that FEMA had found several deficienctes in offsite radiological energency preparedness that, he concluded, 1
should be considered prior to a Connission decisten to pe7mit
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Pilgrim restart.
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5 The NRC based its finding of reasonable assurance o' l
adequate safety in part on review of FEMA assessments of offsite t
energency preparedness for NPC-licensed activities.
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ARGUMENT The Commission's Refusal To Institute Discretionary Enforcement Proceedings At Petitioners' Request Is Not Judicially Reviewable.
In Heckler v. Chaney, 470 U.S. 821 (1985), the Supreme Court established a presumprion that an agency's refusal to exercise its enforcement authority is not judicially reviewable, i
but rather is action committed to agency discretion by law.
In a case decided the same day as Heckler, the Supreme Court held that ' uisdiction to review denials of requests for NRC enforcement action, if reviewable at all, lay in the t
appropriate United States Court of Appeals, and not in a United States District Corrt.
Florida Power & Light Co. v. Lorion, l
470 U.S. 729 (1985).
However, the Lorion Court specifically noted the question of whether NRC refusals to take enforcement action are unreviewable, stating that the "1ssue is open to the Court of Appeals on remand 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 reviewability issue.
Lorion v. Nuclear Regulatory Commission, 785 F.2d 1038, 1041 (D.C. Cir. 1986).
However, the Court of I
I 6 470 U.S. at 735, n.8.
Justice Stevens, dissenting, argued in Lorion that NRC refusals to take enforcement action are unreviedable.
470 U.S. at 746-52.
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Appeals "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 as a whole in Lorion and as specifically advocated by Justice Stevens, the rationale for the presumption es'ablished in Heckler fully applies to NRC i
refusals to take enforcement action under Section 2.206, and Congress has taken no action that can fairly be' interpreted as rebutting that presumption.
I A.
The Presumption Of Unreviewability Established In i
Heckler Applies To The Commission's Refusal To Take i
Enforcement Action In This Case, i
Heckler has created a high barrier to judicial review of agency refusals to take enforcenent action by finding them I
presumptively unreviewable.
In Heckler, the Supreme Court held that the Food and Drug Administretion's ("FDA") refusal to I
i exercise its enforcement authority was not judicially reviewable, j
e The Court found that 5 U.S.C.
S 701(a)(2), which provides that i
judicial review is unavailable where "agency action is committed j
to agency discretion by law," precludes judicial review if the j
i 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 decisions
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to refuse enforcement," because such refusals involve a l
conplicated balancing of a number of factors which are peculiarly 4
k i
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within {the agency's) expertise.
470 U.S. at 831-32.-
Among the factors listed were alloc; tion of resources, likelihood of success, and overall policy.
Id.
Moreover, the rationale for the presumption is as I
i compelling in this instance as it was in Heckler.
The courts have long noted that the comr n's regulatory scheme is "virtually unique in the degrec. 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 i
statutory objectives.'
Siegel v. Atomic Energy Commission, 400 F.2d 778, 783 (D.C. Cir. 1968), quoted with approval in Three Mile Island Alert v. Nuclear Regulatory Commission, 771 F.2d 720, 727 (3d Cir. 1985); Detroit Edison Co. v. Nuclear F.agulatory Commission, 630 F.2d 450, 453 (6th Cir. 1980); 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 resources to ensure that there is reasonable assurance of safe operation at all nuclear power plants.
As
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relevant here, the Commission's determination of what safety issues should be pursued and how the'f should be pursued is based on both an evaluation of the significance of those issues and on the availability and best. use of its limited resources.
This
' managerial judgment' is exactly the type of factor peculiarly within the agency's expertise which compelled the nonteviewability finding in Heckler.
Accordingly, like the FDA's i %
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decision in Heckler, the NRC's refusal to take enforcement action l
is, ar.d should be, an action presumptively unsuitable for judicial review.
B.
The Provisions Of The Atomic Energy Act Do Not Rebut The Presunption Of Unreviewahility.
The Heckler Court held that challengers of agency decisions may rebut the presumption of unreviewability where the governing statute has provided guidelines for the agency to follow in exercising its enforcement powers.
470 U.S. at 833.
However, the Heckler Court found no such guidelines in the FDA's governing statute, the Food, Drug, and Cosmetic Act ("FDCA').
The relevant provisions of the Atonic 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 the FDCA, the Act provides for injunctions, 21 U.S.C.
S 332, 7 Since the issue of nonteviewability of NRC refucals to take enforcement action was not raised before Heckler, the fact that courts reviewed section 2.206 denials prict to Heckler dores not demonstrate that 2.206 denials should continue to be reviewed after Heckler.
Even if those pre-Heckler, decisions found that there were sufficient standards to make 2.206 denial decisions reviewable, the issue after Heckler is whether those standards are sufficient to rebut the presumption of nonteviewability.
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 Commission, 764 F.2d 907, 910-11 (D.C. Cir. 1985) (reversing prior decision on reviewability in view of Heckler). ;
crir.nal sanctions, SS 333 and 335, and seizure of any offending food, drug, or cosmetic article, S 334.. The Act's i
general provision of enforcement, S 372, provides only that
"[t]he Secretary is authorized to conduct examinations and investigations.
S 372 gives no indication of when an injunction should be sought, and S 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 635 (emphasis in original).
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The language in th,e 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 cuch information, and hold such meetings or hearings as the Commission may deen t
necessary or proper to assist it in exercising any authority provided in this chapter, or in the administration or enforcement of this chapter...."
42 U.S.C.
S 2201(c) (enphasic added).
Section 161(1) similarly authorizes the conmission to "prescribe i
such regulations or orders as it deems necessary to govern any activity authorized pursuant to this chapter."
42 U.S.C.
S 2201(1) (emphasis added).
And see, 42 U.S.C. S 2201(b) and (o).
Sectior: 232, which provides for injunctions, states that l
"[w]henever in the judgrent of the Comnission any person has engaged or is about to engage in any acts or practices which l
constitute or will constitute a violation of any provision of this chapter, or any regulation or order issued thereunder, the i
Attorney General... nay make application to the appropriate court for an order enjoining such acts or practicos.
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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 conditions which would warrant the.connission to refuse to grant a license on an original app]4:ation....'
42 U.S.C.
S 2236(c) (emphasis added).
None of theso 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 t'
exercise of Commission enforcete:;t authority in a particular case.
Clearly, under the rationale of Heckler, these Atomic j
Energy Act provisions do not evidence a Congressional intent to l
I rebut the presumption of nonreviewability that acconpanies agency refusal to take enforcement action.
C.
The NBC Has Not Rebutted The Presumption of Unreviewability In the Atomic Energy Act l
The Heckler Court left open the possibility that agency regulations might rebut the presumption as well.
470 U.S. at j
836.
This Court has not yet reached that quest!,n, although the i
l District of Columbia Circuit has very recently decided that binding agency regulations or even informal oolicy statenents can i
t rebut the presumption of nonreviewability.
Center for Auto Safety v. Dole, No. 86-5436 (Sept. 8, 1987) (regulations); padula i
- v. Webster, 822 F.2d 97, 100 (1987) (informal policy statements i
that significantly restrain agency discretion).
Assuming i
1 arguendo that requirements in agency regulations can create "law l m
i to apply" that could rebut the presunption of.unreviewability, the NRC has promulgated no such regulation.
The petitioners filed this action under 10 C.F.R.
S 2.206, which does not specify any standards 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 4
Director is required to do, if he decides not to institute (the requested enforcement action], is to notify the requesting party
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vriting of his decicion and of the reasons for it -- which he l
4 cad."
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 I
case fron Center for Auto safety, supra.8 The NRC does have internal guidance by which the commissioners, who are ultimately responsible for pub 1:,c health and cafety and who therefore ultinately exercise the agency's discretion, may review Directors' decisions for technicil 4
i completeness and compliance with NRC policy guidelines.
See I
consolidated Edison Co. (Indian Point, Units 1, 2, and 3),
j CLI-75-8, 2 NRC 173, 175-76 (1975).
This guidance requires a Director to institute an enforcenent proceeding if there is a 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 referring to is not the NRU7s formal rules, but the commission's j
internal guidance discussed immediately below.
i 1
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 problen" 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 connission's precedents make it clear that it is not oblicated to take enforcement action "whenever [it]
receive (s) information adverse to the integ nuclear power safety or safeguard systems."gity of existing Moreove', an agency practice of explaining its decisions does not create binding requirements on how the agency must exercise its discretion.10 Heither 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.f
{the enforcement] request had been rejected in a one-paragraph letter sent by return mail."11 9 Lorion v. MRC, 765 F.2d 1038, 1041 (citations onitted)
(D.C. Cir. 1966).
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 defect" standard in Center for Auto Safety v. Dole, supra.
10There is, for example, no regulation or caselaw that dictates when the Director is to find that there is a substantial safety issue.
11 Florida Power & Light v. Lorion, 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 ar.
otherwise unreviewable action reviewable.
See I.C.C. v.
Brotherhood of Locomotive Engineers, 55 U.S.L.lC-~4770, 4774
[ Footnote Continued]. -
COFCLUSION There is no rational basis for distinguishing the Commission's denial of peti *ioners' enforcement request from the FDA's denial in Heckler.
Both involve decisi0ns not to take enforcement action and both invo4ve 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 Commissior;'s refusal to take enforcement action is not judicially reviewable.
According11, the petition should be dismissed.
Respectfully submitted,
\\
Ja#A 199.
LAURA E.
FROSSARD f'
WILLI A!! H. BRIG 38g/
J;<
j Attornay Solicitor Appellate Section
/
Land and Natural Resources f
Division U.S. Department of Justice Washington, DC 20530
/
KlCHAEL"B. BLU!!E Senior Attorney Office of the General Counsel Commission U.S. Nuclear Regulatory Washington, DC 20555 (202) 634-1493 Dated:
10/27/87
[ Footnote Col.tinued)
(June 9, 1987) (No.85-792).
Rockford Leacue, supra, See also, 3 by internal guidance on 678 F.2d oc 1222 (Conmission is not boun how it will review requests for enforcement action). 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, !!A 02110 l
George B. Dean, Esq.
Assistant Attorney General Public Protection Bureau Office of the Attorney General One Ashburton Place - Floor 19 Boston, itA 02108-1698 4
MICHAEL B.
BLUME Senior Attorney Office of the General Counsel U.S. 11uclear Regulatory Commission Washington, D.C.
20555 J
d
.