Arnow v. U.S. Nuclear Regulatory Com'n, No. 87-1732

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore RIPPLE, MANION and KANNE; RIPPLE
Citation868 F.2d 223
Parties, 19 Envtl. L. Rep. 20,550 Jacob ARNOW, Eckhard Festag, David Kraft, Susan Michetti, Patricia Schaffner, and Abe Sklar, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Respondent, and Commonwealth Edison Company, Intervening Respondent.
Decision Date03 February 1989
Docket NumberNo. 87-1732

Page 223

868 F.2d 223
57 USLW 2490, 19 Envtl. L. Rep. 20,550
Jacob ARNOW, Eckhard Festag, David Kraft, Susan Michetti,
Patricia Schaffner, and Abe Sklar, Petitioners,
v.
UNITED STATES NUCLEAR REGULATORY COMMISSION, Respondent,
and
Commonwealth Edison Company, Intervening Respondent.
No. 87-1732.
United States Court of Appeals,
Seventh Circuit.
Argued April 5, 1988.
Decided Feb. 3, 1989. *

Page 225

John L. Stainthorp, Peoples Law Office, Chicago, Ill., for petitioners.

Charles E. Mullins, U.S. Nuclear Regulatory Com'n, Washington, D.C., Philip P. Steptoe, III, Sidley & Austin, Chicago, Ill., for respondent.

Before RIPPLE, MANION and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

The petitioners, various persons residing in Illinois, 1 seek review of a final order of the respondent, the Nuclear Regulatory Commission (NRC), denying their request for issuance of an order to show cause why certain nuclear power plants owned and operated by the intervening respondent, Commonwealth Edison Company (CECo), should not be suspended from operation and retested. The petitioners' primary concern is that the containments of those nuclear power plants might be inadequate to prevent the spread of radioactive material during a nuclear accident. In denying the petition, the Director of the NRC's Office of Nuclear Reactor Regulation (NRR) determined that the concerns of the petitioners were groundless. Because we hold that section 701(a)(2) bars our review, we deny the petition for want of jurisdiction.

I

Background

A. Procedural Posture

The petitioners commenced this action by filing a petition with the NRC on August 30, 1986. The petition, captioned an "Emergency Relief Petition," alleged that deficient leak-rate testing of nuclear containments at CECo nuclear power plants had created an unsafe situation. The petition requested the NRC to issue an order to show cause upon CECo to explain "why the operating license of the Unit 1, Zion Nuclear Power Plant, and same of the Unit 1, LaSalle County Nuclear Power Plant, and

Page 226

same of the Unit 1, Byron Nuclear Power Plant should not be suspended and containment systems thereof be retested in accordance with Appendix J to 10 C.F.R., Part 50." R.D503 at 1. 2

On October 22, 1986, Harold C. Denton, the Director of the NRR, acknowledged receipt of the petition by publishing a notice in the Federal Register. At that time, he denied the petitioners' request for emergency relief, but noted that the NRC would review the petition and would issue a formal ruling within a reasonable time. See Petitioners' App. at 26 (copy of notice filed with the Office of the Federal Register). In a written decision on February 10, 1987, he denied the petition. The Director filed the decision with the office of the Secretary of the NRC. The NRC declined to undertake a discretionary review and therefore the Director's decision became final agency action on March 10, 1987. 3 The petitioners timely filed their petition for review with this court on May 8, 1987. 4 Thereafter, CECo filed a brief as an intervening respondent.

Subsequent to the filing of the petitioners' petition for review, the respondents filed a motion to dismiss the petition for want of jurisdiction. On October 15, 1987, this court issued an order which stated that "respondents' motion to dismiss will be considered with the merits of this appeal by the panel assigned to consider this case." Citizens of Illinois v. NRC, No. 87-1732, order at 2 (7th Cir. Oct. 15, 1987).

B. Facts

The petitioners challenge certain tests conducted by CECo, and approved by the NRC, on the containments of three nuclear power reactors owned and operated by CECo. The containment at a nuclear power plant basically is a large shielding structure that surrounds the nuclear reactor. This shield is designed to contain radioactive material in the event of a nuclear accident. An effective containment therefore ensures that any exposure of the public to radioactive gases will be minimal. To test the effectiveness of a containment, nuclear power plant licensees conduct leak-

Page 227

rate tests. Leak-rate tests are designed to measure how much air might escape under a worst case scenario during a "loss-of-coolant accident." 5 Apparently, no two nuclear reactors have the same leak rate due to various factors such as the containment size, and the configuration, location, meteorological and demographic characteristics of the nuclear plant site. See Respondent's Br. at 7.
II

Opinion of the NRR Director

In addressing the merits of the instant case, the Director of the NRR first characterized the contentions of the petitioners as falling into three categories: "(1) allegations regarding the general methodology associated with CILRTs [containment integrated leak-rate tests], (2) allegations concerning the validity of certain CILRTs performed at the Zion Nuclear Power Station Unit 1, in 1982 and 1984, and (3) allegations related to certain computer programs employed by CECO in conducting CILRTs for the Zion, LaSalle, and Byron units." In Re: Commonwealth Edison Co., 25 N.R.C. 121, 122 (1987). The Director then dismissed the allegations contained in the first two categories by noting that he had addressed the same or similar concerns in previous petitions brought pursuant to 10 C.F.R. Sec. 2.206. He concluded that the concerns raised in the instant petition already had received sufficient consideration from the NRC and therefore he refrained from discussing them further.

The Director then addressed the third category of allegations in the petition--deficiencies in the computer programs used during the CILRTs at the CECo plants. First, the petition alleged that the program options "EDIT DATA" and "DELETE DATA FILED" were included in the test programs "for the express purpose of malicious falsification of the test record." Id. at 125. The Director determined, however, that "the subject options are a necessary part of the program; they literally permit the compilation of bona fide test data." Id. The Director then addressed the second challenge. The petition alleged that the computer program options called "ERASE" or "WIPE" can remove and switch data from CILRTs without leaving a trace that data were deleted or replaced. In dismissing this challenge, the Director concluded:

Such an option has legitimate uses. The option may be used to purge erroneous data from storage, i.e., sensor data that may have become garbled in transmission to storage memory. The option may also be used to clear the storage memory prior to the start of an actual test, and to facilitate the performance of parameter studies using archived data. The petition is incorrect in stating that the program leaves no record that data were deleted. The fact that data have been deleted can be readily ascertained by examining the time intervals between data sets. The time at which a data set is obtained is not altered by the "WIPE" option. Therefore, since data are acquired

Page 228

at prescribed, uniform intervals, missing data sets are easily detected.

Id.

The Director then addressed and summarily dismissed further challenges that the use of these options would result in an illegal amount of data rejection, that the computer programs could be manipulated to reinstate previously discarded data, and that these computer programs impermissibly affected the weighting coefficients used to calculate the containment air mass and average temperature. 6

III

Discussion

Although the District of Columbia Circuit has addressed the merits of a petition for review in this context without first resolving the jurisdictional question, see Lorion v. United States Nuclear Regulatory Comm'n, 785 F.2d 1038 (D.C.Cir.1986), 7 we believe that our colleagues in the First Circuit were correct in Massachusetts Public Interest Group, Inc. v. United States Nuclear Regulatory Commission, 852 F.2d 9, 15 (1st Cir.1988) when they determined that the threshold issue of jurisdiction ought to be resolved before any discussion of the merits.

1. Contentions of the Parties

The NRC contends that, under the Supreme Court's decision in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), its action denying the relief requested by the petitioners is not subject to judicial review. In Chaney, the Supreme Court held that, under the Food, Drug and Cosmetics Act (FDCA), the Food and Drug Administration's (FDA) decision not to investigate a petition by death-row inmates challenging the safety of certain drugs used for human execution was not subject to judicial review. The Court based its holding primarily on the ground that courts would have no law to apply under the FDCA in reviewing the determination of the FDA. Here, the NRC specifically argues that the presumption against judicial review of agency nonenforcement decisions, which the Supreme Court set forth in Chaney, applies to the NRC's decision not to undertake the enforcement proceedings requested by the petition. 8 In the NRC's view, the Atomic Energy Act confers broad and largely undefined discretion on the NRC to effectuate the congressional intent underlying the Act:

None of [the Act's] 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 rationale of Heckler, these Atomic Energy Act provisions do not evidence a Congressional

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intent to rebut the presumption of nonreviewability that accompanies agency refusal to take enforcement action.

Respondents' Motion to Dismiss at 13.

The petitioners contend that Chaney is distinguishable factually because, unlike the FDA, the NRC already had committed its resources to investigate the allegations in the petition. In addition, they submit that the Atomic Energy Act, unlike the FDCA, provides sufficient law for a...

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  • Town of Beverly Shores v. Lujan, Civ. H 89-054.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • May 10, 1989
    ...S.Ct. 814, 821, 28 L.Ed.2d 136 (1971) (citing S.Rep. No. 752, 79 Cong., 1st Sess., 26 (1945); Arnow v. U.S. Nuclear Regulatory Commission, 868 F.2d 223, 230 (7th Cir. 1989). "Review is not to be had if the Statute is drawn so that a court would have no meaningful standard against which to j......
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24 cases
  • Morris v. Mining, No. 07-9505.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 8, 2010
    ...v. Nuclear Regulatory Comm'n, 969 F.2d 1169, 1178 (D.C.Cir. 1992) (noting the same); Arnow v. United States Nuclear Regulatory Comm'n, 868 F.2d 223, 235-36 (7th Cir.1989) (same). For these reasons, the NRC does not appear to have deprived Petitioners of their right to a hearing. B. Whether ......
  • Morris v. U.S. Nuclear Regulatory Commission, No. 07-9505 (10th Cir. 3/8/2010), No. 07-9505.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 8, 2010
    ...v. Nuclear Regulatory Comm'n, 969 F.2d 1169, 1178 (D.C. Cir. 1992) (noting the same); Arnow v. United States Nuclear Regulatory Comm'n, 868 F.2d 223, 235-36 (7th Cir. 1989) For these reasons, the NRC does not appear to have deprived Petitioners of Page 47 their right to a hearing. B. Whethe......
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    • United States
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    • August 15, 1996
    ...to judge the agency's exercise of discretion. Id. at 830, 105 S.Ct. at 1655. See also Arnow v. United States Nuclear Regulatory Comm'n, 868 F.2d 223, 233-34 (7th Cir.1989) (presumption against reviewability can be rebutted only by demonstrating that either statute in question or agency's re......
  • Town of Beverly Shores v. Lujan, Civ. H 89-054.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • May 10, 1989
    ...S.Ct. 814, 821, 28 L.Ed.2d 136 (1971) (citing S.Rep. No. 752, 79 Cong., 1st Sess., 26 (1945); Arnow v. U.S. Nuclear Regulatory Commission, 868 F.2d 223, 230 (7th Cir. 1989). "Review is not to be had if the Statute is drawn so that a court would have no meaningful standard against which to j......
  • Request a trial to view additional results

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