State of Ohio ex rel. Celebrezze v. N.R.C.

Decision Date10 March 1989
Docket Number86-4107,Nos. 86-4085,s. 86-4085
Citation868 F.2d 810
Parties, 98 P.U.R.4th 529 STATE OF OHIO, ex rel. Anthony J. CELEBREZZE, Jr., (86-4107); Toledo Coalition for Safe Energy, an association; Susan A. Carter, (86-4085), Petitioners, v. NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, The Toledo Edison Company and Cleveland Electric Illuminating Company, Intervenors.
CourtU.S. Court of Appeals — Sixth Circuit

Terry J. Lodge (argued), Toledo, Ohio, David Northrop and Sharon Sigler, Asst. Attys. Gen., Columbus, Ohio, for petitioners.

Carole F. Kagan (argued), L. Slaggie, James M. Taylor, Director, Office of Inspection & Enforcement, U.S. Nuclear Regulatory Comm., William Briggs, Dick Thornburgh, U.S. Atty. Gen., U.S. Dept. of Justice, Washington, D.C., for respondents.

Jay Silberg (argued), Shaw, Pittman, Potts & Trowbridge, Washington, D.C., for intervenor utilities.

Carole F. Kagan (argued), William Briggs, E. Leo Slaggie, Office of Gen. Counsel, Nuclear Reg. Comm., Washington, D.C., for Nuclear Regulatory Com'n.

Dirk D. Snel, U.S. Dept. of Justice, Washington, D.C., for U.S.

Jay Silberg (argued), Shaw, Pittman, Potts & Trowbridge, Washington, D.C., for Cleveland Elec. Illuminating Co.

Douglas O. Meyer, Ottawa County Pros. Atty., Port Clinton, Ohio, for amicus curiae Ottawa County in support of respondents.

Gary M. Orlow, Toledo, Ohio, for Lucas County in support of respondents.

Before ENGEL, Chief Judge *; BOGGS, Circuit Judge; and HILLMAN, ** Chief District Judge.

ENGEL, Chief Judge.

In October 1986, the Toledo Coalition for Safe Energy and the State of Ohio each petitioned the Nuclear Regulatory Commission [NRC] for a hearing to suspend operation of Davis-Besse Nuclear Power Station [Davis-Besse] due to the alleged inadequacies of that facility's emergency preparedness plan. In November 1986, the Director of the NRC Office of Inspection and Enforcement [Director] denied both petitions. Petitioners now seek our review of the Director's decision to deny a hearing. Since both petitioners raise similar issues, their cases have been consolidated on appeal.

Whether the Director's decision is reviewable at all is a matter of initial uncertainty. The Director asserts that his decision to deny the requested hearing is a determination committed to his sole discretion in enforcing the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A) (1982). Since this issue has not yet been resolved by the Supreme Court, we follow the path taken by the D.C. Circuit in Lorion v. United States Nuclear Regulatory Commission, 785 F.2d 1038 (D.C.Cir.1986), and adopted by our court in Dickinson v. Zech, 846 F.2d 369 (6th Cir.1988), and avoid deciding whether the Director's decision is reviewable by addressing first the easier question of whether the Director's decision was a proper exercise of his discretion. We conclude that petitioners have failed to demonstrate that the Director acted arbitrarily or capriciously in denying their request for further proceedings and affirm the Director's decision.

I. THE FACTS

The Davis-Besse Nuclear Power Station is a commercial nuclear power plant located approximately twenty-five miles east of Toledo, Ohio. In 1971, the Atomic Energy Commission issued a permit authorizing the construction of the facility. Construction was completed and an operating license was issued by the NRC in 1977. Although the facility began commercial operation producing electricity in 1978, the plant was temporarily shut down following a loss of feedwater on June 9, 1985. After reviewing the facility's design, the NRC Commissioners authorized the restart of Davis-Besse on November 21, 1986. In October 1986, both petitioners in this case, The Toledo Coalition for Safe Energy and the State of Ohio, filed petitions with the NRC pursuant to 10 C.F.R. Sec. 2.206 to suspend or terminate the Davis-Besse license and to issue an order prohibiting restart of Davis-Besse.

In their petitions, both parties cited several deficiencies in the emergency plan for Davis-Besse. The most notable of these flaws were that the Federal Emergency Management Agency [FEMA] had not formally approved the emergency plan; that the governor, an original drafter of the plan, had withdrawn his support; that the plan failed to include a portion of Lucas County within the Emergency Planning Zone (EPZ), even though it was within a ten mile radius of the plant; and finally that the NRC had failed to address the problems posed by a resolution of school union members, particularly bus drivers, not to participate in the planning or evacuation in the event of a nuclear disaster. Petitioners also requested that NRC keep Davis-Besse from operating pending resolution of the alleged deficiencies.

On November 19, 1986, the Director of the NRC Office of Inspection and Enforcement denied both petitions based on interim agreements reached with regard to all alleged deficiencies, and based also on FEMA's informal indication that the plan was adequate. The Director's decision became final twenty-five days later when the Commission chose not to review it. See 10 C.F.R. Sec. 2.206(c) (1988). Davis-Besse commenced restart as scheduled. By January 1987, shortly before oral argument, Davis-Besse was in its power ascension phase and operating at 38% of full power.

In November 1986, both petitioners filed petitions for review of the NRC's denial of their petitions and emergency motions to stay restart of Davis-Besse. On December 12, 1986, our court denied petitioners' stay request, but directed the clerk to set an accelerated briefing schedule on the petitions for review. On appeal, petitioners reassert the alleged deficiencies in Davis-Besse's emergency plan and contend that the Director acted arbitrarily and capriciously in refusing to institute the requested show cause proceedings under section 2.206.

II. REVIEWABILITY

The adequacy of safety plans at nuclear power facilities is a serious matter, and the nuclear accidents at Three Mile Island and later at Chernobyl in the Soviet Union bear witness to the importance of adequate emergency preparedness plans. Nevertheless, Congress has recognized the highly technical nature of such regulations and has accordingly circumscribed the power of the courts both to review and to overturn decisions made by the NRC. As the Supreme Court has noted, "the Commission is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential." Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 76 L.Ed.2d 437 (1983) (citations omitted).

Although the Supreme Court has not directly spoken on the power of federal courts to review the NRC Director's determinations under the Atomic Energy Act, the Court did confront a somewhat analogous issue in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). The plaintiffs in Heckler sought review of a Food and Drug Administration [FDA] decision not to take enforcement action with regard to the administration of a death penalty drug, alleging that use of the drug violated various sections of the Food, Drug, and Cosmetic Act [FDCA]. The Court ultimately concluded that since the language of the FDCA provided no "law to apply" in reviewing the limits of the FDA's broad enforcement discretion, the presumption that an agency's refusal to take enforcement action is judicially immune was not rebutted. Id. at 834-38, 105 S.Ct. at 1657-59. "[E]ven where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Id. at 830, 105 S.Ct. at 1655. The Supreme Court has not yet addressed the question presented in this case, however, where the only "law to apply" in reviewing an agency's refusal to take enforcement action is not found in the governing statute, but in the agency's own regulations.

The parties here have argued this reviewability issue at length. Since the issue is indeed complex and since we are without any clear Supreme Court guidelines in resolving it, we follow the lead set by the D.C. Circuit in Lorion v. United States Nuclear Regulatory Commission, 785 F.2d 1038, and consider first the merits of petitioners' claim. See also Dickerson v. Zech, 846 F.2d 369 (6th Cir.1988). Lorion involved a similar challenge to the NRC Director's refusal to institute section 2.206 proceedings. After concluding that the NRC Director had not abused his discretion, the D.C. Circuit found no need to resolve the much knottier reviewability question:

Even though it is a "threshold" question, the court need not plumb the intricacies of this reviewability conundrum in the instant case. The merits of Lorion's underlying claims are sufficiently clear that we can and should avoid the potentially far-reaching questions on the scope of Chaney. The decision to avoid a difficult threshold question and resolve the substantive dispute is not new; both the Supreme Court and this court have used the procedure to restrict cases to their narrowest possible holding, particularly when the threshold question involves important constitutional or public policy issues.

785 F.2d at 1041.

III. THE MERITS
A. The Applicable Statute and Regulations

Congress has established an extensive statutory structure for the review of nuclear power facilities, beginning with the Atomic Energy Act of 1954, 42 U.S.C. Sec. 2011 et seq. (1982), and followed by the amendments in the Energy Reorganization Act of 1974, 42 U.S.C. Sec. 5801 et seq. (1982). Under these statutes, the Nuclear Regulatory Commission is delegated primary authority in regulating the...

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