Lorion v. U.S. Nuclear Regulatory Com'n, 82-1132

• Citation: 229 U.S.App.D.C. 440,712 F.2d 1472
• Decision Date: 26 July 1983
• Docket Number: No. 82-1132,82-1132
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Parties: , 229 U.S.App.D.C. 440, 14 Envtl. L. Rep. 20,012 Joette LORION, d/b/a Center for Nuclear Responsibility, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Florida Power & Light Company, Intervenor.

Page 1472

712 F.2d 1472

19 ERC 1730, 229 U.S.App.D.C. 440, 14

Envtl. L. Rep. 20,012

Joette LORION, d/b/a Center for Nuclear Responsibility, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents Florida Power & Light Company, Intervenor.

No. 82-1132.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 18, 1982.

Decided July 26, 1983.

Petition for Review of an Order of the Nuclear Regulatory commission.

Martin H. Hodder, Miami, Fla., for petitioner.

Richard P. Levi, Atty., U.S. Nuclear Regulatory Com'n, Washington, D.C., with whom Leonard Bickwit, Jr., Gen. Counsel, E. Leo Slaggie, Acting Sol., U.S. Nuclear Regulatory Com'n, Peter R. Steenland, Jr., and Martin Green, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents. James A. Fitzgerald, Atty., U.S. Nuclear Regulatory Com'n, and Dirk D. Snel, Atty., Dept. of Justice, Washington, D.C., also entered appearances for respondents.

Harold F. Reis and Steven P. Frantz, Washington, D.C., were on the brief, for intervenor. Norman A. Coll, Miami, Fla., also entered an appearance for intervenor.

Before MIKVA, Circuit Judge, MacKINNON, Senior Circuit Judge, and SWYGERT, ^* Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

This case requires us to measure this court's authority to review directly an agency's refusal to institute regulatory proceedings. Joette Lorion, the petitioner, seeks review of a final decision of the Nuclear Regulatory Commission (NRC or Commission) denying her request that the Commission institute licensing review of Turkey Point Plant Unit Number 4 (Turkey Point), a nuclear reactor located near Miami, Florida. The jurisdictional bases of the petition for review are asserted to be 28 U.S.C. § 2342(4) (1976) and 42 U.S.C. § 2239(b) (1976) which together give this court authority to review directly those final orders of the NRC entered after formal agency proceedings. Because the Commission's decision in this case did not result from such a formal proceeding, however, we must dismiss this case for lack of subject matter jurisdiction.

BACKGROUND

In September 1981, the petitioner wrote the Commission to express her concern that the continued operation of the Turkey Point reactor near her home threatened her safety and the safety of her neighbors. Specifically, the petitioner's letter called attention to the possible leakage of Turkey Point's steam generator tubes and questioned the integrity of the reactor's steel pressure vessel. To address these concerns, the petitioner requested in her letter that the Commission (1) temporarily shut down the reactor for a steam generator inspection and (2) initiate a license review to consider the suspension of Turkey Point's operating license until such time as its operator, Florida Power and Light Company (FP & L), submitted proof of the reactor's safety.

The Commission treated the petitioner's letter as a specific enforcement request under section 2.206 of its rules of practice, 10 C.F.R. § 2.206 (1982), and referred the request to the NRC's Director of Nuclear Reactor Regulation. Section 2.206 provides a means by which any member of the public may request the Director of Regulation to take enforcement action against a NRC licensee. Seven weeks later, however, the Director notified the petitioner that he was denying her request. Among the reasons given were that an inspection of Turkey Point's steam generator tubes had taken place since petitioner had sent her letter (thereby mooting that aspect of her request) and that the ongoing monitoring of the reactor's steam generator tubes and an upcoming study of the reactor's pressure After unsuccessfully urging the Commission to review the Director's decision, the petitioner filed for review in this court. She asks that we set aside the Director's decision as arbitrary and capricious agency action that, in addition, was reached without affording her the benefit of a public hearing; alternatively, the petitioner contends that her letter was merely "advisory" and was not intended as a section 2.206 request. Moreover, the petitioner asserts in her brief that the Commission has failed to prepare an adequate environmental impact statement, as required by the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4361 (1976 & Supp. IV 1980), for repairs made to Turkey Point's steam generators.

vessel integrity were sufficient to protect the public's health and safety.

DISCUSSION

At the outset, it is important to note that our review is limited to the Commission's denial of the petitioner's request under section 2.206 of the NRC's rules of practice. Accordingly, none of the petitioner's NEPA arguments are properly before us. These arguments were not raised by the petitioner in her letter of September 1981 and therefore played no role whatsoever in the agency action that the petitioner asks us to review. See Letter from Joette Lorion to the NRC (Sept. 11, 1981), Joint Appendix (JA) 1-2. This court long has recognized that our normal procedures allow only those contentions subjected to agency scrutiny during the administrative process to be entertained on judicial review. See D.C. Transit System, Inc. v. Washington Area Transit Commission, 466 F.2d 394, 413-14 (D.C.Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 688, 34 L.Ed.2d 673 (1972). We also reject the petitioner's contention that her letter should not have been treated as a section 2.206 request because she had not formally labelled or addressed her letter as a "section 2.206 request" and had intended it to be merely "advisory." In promulgating its rules of practice, the Commission clearly expressed its intent to treat "any" request for the modification, suspension, or revocation of a license as a section 2.206 request, see 39 Fed.Reg. 12,35 3 (1974), and the court may rely upon this contemporaneous explanation of the scope of the agency's rules, see Environmental Defense Fund, Inc. v. EPA, 636 F.2d 1267, 1280 (D.C.Cir.1980). Indeed, it would be a disservice to members of the interested public for the NRC to reject out of hand enforcement requests simply because they were not appropriately labelled and addressed. Thus, properly framed, the petition for review asks us to consider the Commission's treatment of the petitioner's September 1981 letter under 10 C.F.R. § 2.206.

Although the parties have not raised the issue, we nevertheless must determine our jurisdiction to review NRC denials of section 2.206 requests. It is axiomatic that federal courts of appeals are courts of limited jurisdiction "empowered to hear only those cases ... entrusted to them by a jurisdictional grant by the Congress." 13 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3522, at 44 (1975 ed.). Our jurisdiction to review administrative decisions of the NRC is straightforward. Under 28 U.S.C. § 2342(4) (1976), courts of appeals have authority to review "all final orders of the Atomic Energy Commission [now the NRC] made reviewable by section 2239 of title 42." Section 2239 of title 42 provides, in subsection (b), for judicial review in the courts of appeals of "[a]ny final order entered in any proceeding of the kind specified in subsection (a)." 42 U.S.C. § 2239(b). Section 2239 designates, in subsection (a), those formal NRC "proceedings" in which a person may, upon request, demand a hearing. These proceedings include "any proceeding ... for the granting, suspending, revoking, or amending of any license or construction permit ...." 42 U.S.C. § 2239(a). Thus, we may review the Commission's final order in this 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 42 U.S.C. § 2239(a).

A. The Nature of the Section 2.206 Process

To appraise properly the relationship of section 2.206 requests to NRC "proceedings," it is helpful to describe briefly the regulatory framework into which section 2.206 fits. Under section 2.202 of the NRC's rules of practice, the Commission's various staff directors may "institute a proceeding to modify, suspend, or revoke a license ... by serving on the licensee an order to show cause...." 10 C.F.R. § 2.202(a) (1982). A show cause proceeding under section 2.202 constitutes a formal "proceeding" under 42 U.S.C. § 2239(a) and, upon timely demand, the Commission must grant the licensee a hearing. See 10 C.F.R. § 2.202(b)-(c). In 1974, the Commission adopted section 2.206 specifically to provide a mechanism for members of the public to request the Director of Regulation to institute a section 2.202 proceeding:

Any person may file a request for the Director of Regulation 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 requests shall specify the action requested and set forth the facts that constitute the basis for the request.

10 C.F.R. § 2.206(a) (1982); see 39 Fed.Reg. 12,353 (1974).

Although the Commission has interpreted section 2.206 to require issuance of a show cause order when "substantial health or safety issues have been raised," Consolidated Edison Co., 2 N.R.C. 173, 176 (1975), the Commission has never required that this determination be made pursuant to a hearing, see, e.g., Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), 7 N.R.C. 429, 432-33 (1978). Instead, the Director of Regulation has considerable discretion to make whatever unilateral inquiries he or she deems necessary. Provided that this discretion is not abused, the Director "is free to rely on a variety of sources of information, including staff analysis of generic issues, documents issued by other agencies, and the comments of the licensee on the factual allegations." Id. The language of section 2.206 merely requires that...