Massachusetts Public Interest Research Group, Inc. v. U.S. Nuclear Regulatory Com'n

• Decision Date: 03 May 1988
• Docket Number: No. 87-1865,87-1865
• Citation: 852 F.2d 9
• Parties: , 18 Envtl. L. Rep. 21,437 MASSACHUSETTS PUBLIC INTEREST RESEARCH GROUP, INC., et al., Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Respondent, Commonwealth of Massachusetts and Boston Edison Company, Intervenors. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 9

852 F.2d 9

57 USLW 2077, 18 Envtl. L. Rep. 21,437

MASSACHUSETTS PUBLIC INTEREST RESEARCH GROUP, INC., et al., Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Respondent, Commonwealth of Massachusetts and Boston Edison Company, Intervenors.

No. 87-1865.

United States Court of Appeals,

First Circuit.

Heard May 3, 1988.

Decided July 15, 1988.

William Abbott with whom Simonds, Winslow, Willis & Abbott, Boston, Mass., was on brief, for petitioners.

George B. Dean, Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief for intervenor Com. of Mass.

Steven F. Crockett with whom Rochelle M. Gunner, William C. Parler, General Counsel, William H. Briggs, Jr., Sol., E. Leo Slaggie, Deputy Sol., and Laura E. Frossard, Land and Natural Resources Div., Dept. of Justice, Washington, D.C., were on brief for respondent.

R.K. Gad III with whom James B. Levy, Ropes & Gray and William S. Stowe, Boston, Mass., were on brief, for intervenor Boston Edison Co.

Before COFFIN and BOWNES, Circuit Judges, and FUSTE, ^* District judge.

BOWNES, Circuit Judge.

Petitioners in this case seek judicial review of a decision by the Nuclear Regulatory Commission (NRC or Commission) denying their request for specific enforcement action against the Boston Edison Company (Edison) based on its operation of the Pilgrim Nuclear Power Station (Pilgrim). The Massachusetts Public Interest Research Group, Inc. (MassPIRG), in cooperation with other parties, ¹ filed a petition with the NRC pursuant to 10 C.F.R. Sec. 2.202 and 10 C.F.R. Sec. 2.206 requesting that the Commission issue an order to Edison to show cause why Pilgrim should not remain closed ² or have its operating license suspended until it remedied certain deficiencies which allegedly threatened the public health and safety. The petition asserted three grounds for its request: (1) deficiencies in plant management, (2) inadequacies in the offsite emergency response plans, and (3) design flaws in the plant's containment structure. The Director issued an interim decision on August 21, 1987, which became final on September 14, 1987, denying petitioners' request on the emergency preparedness and containment issues and deferring action on the management issue. Petitioners filed for review in this court on October 1, 1987, pursuant to the Hobbs Act, 28 U.S.C. Sec. 2342; Respondent, NRC, and Intervenor, Boston Edison, moved to dismiss for lack of jurisdiction. Both the NRC and Edison argue that the Commission's refusal to take enforcement action is unreviewable under Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).

On December 28, 1987, we issued an order directing the parties to address the following question: "Whether the August 21, 1987 agency decision, which decided two of the three grounds petitioners 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 of the management issue."

In this decision, we address the questions of both finality and judicial reviewability. We hold that the Director's decision constitutes final agency action within the meaning of the applicable jurisdictional statutes. We further hold that given the lack of a meaningful standard of review in either the Atomic Energy Act of 1954, 42 U.S.C. Sec. 2011 et seq., or the NRC regulations, the refusal of the NRC to issue a show cause order against Edison is not subject to judicial review.

I. Statutory Background

Under the Atomic Energy Act of 1954, 42 U.S.C. Sec. 2011 et seq., and the Energy Reorganization Act of 1974, 42 U.S.C. Sec. 5801 et seq., the NRC controls the licensing and regulation of the construction and operation of nuclear power plants. ³ These statutes grant the NRC substantial power to ensure that each nuclear power station complies with applicable health and safety standards. The NRC may choose among various enforcement alternatives to revoke, suspend or modify a license, to impose civil penalties, or to issue a cease and desist order. See "General Statement of Policy and Procedure for NRC Enforcement Actions," 10 C.F.R. Part 2, App. C NRC monitoring of its licensees is supplemented by 10 C.F.R. Sec. 2.206 which provides for public participation in enforcement activity. Under section 2.206, ⁴ any person may file a request with the NRC to institute enforcement action. A section 2.206 petition must specify the relief requested and must state the factual predicate for its request. See 10 C.F.R. Sec. 2.206(a). If the director of the NRC finds merit in the petition, the director then may institute proceedings against the licensee. Such proceedings include, but are not limited to, an order under 10 C.F.R. Sec. 2.202 to show cause why the NRC should not modify, suspend or revoke the license of the power plant. ⁵ If the director finds that the petition lacks merit, she or he must advise the petitioner in writing of both the decision and the underlying rationale. See 10 C.F.R. Sec. 2.206(b). The NRC will not entertain appeals from the director's decision; the Commission may, however, undertake a sua sponte review. Absent review by the NRC, the director's decision becomes final agency action twenty-five days after its issuance. See 10 C.F.R. Sec. 2.206(c)(1).

II. Factual Background

Petitioners in the present case filed a section 2.206 petition on July 15, 1986, requesting the issuance of a show cause order against Boston Edison Company under section 2.202. The petition stated:

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 ("Pilgrim") should not remain closed and or have its operating license suspended by 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. Sec. 50.47 and 10 C.F.R. Sec. 50.57, 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 extremely vulnerable in most accident scenarios have been overcome to the extent that the public health and safety will be assured.

The Director issued a decision on August 21, 1987, which denied petitioners' request to issue a section 2.202 order to show cause. The Director summarized his holding as follows:

Petitioners' request insofar as it relates to the emergency preparedness and containment issues is denied. A final decision with respect to the management issues is deferred. However, to the extent Petitioners are requesting that Pilgrim remain shut down until the NRC is satisfied that management and emergency preparedness issues are dealt with to the Commission's satisfaction, the Petition is granted.

Boston Edison Company (Pilgrim Nuclear Generating Station), 26 NRC 87, 89 (1987) [hereinafter Director's Decision ].

The Director's decision addressed each of the three grounds for enforcement action raised in the petition. Regarding the alleged management deficiencies, the Director noted that significant problems did, in fact, exist. He reasoned, however, that because Pilgrim had been shut down and would not be permitted to restart until the management issues had been resolved to the satisfaction of the NRC, the issuance of a show cause order would not further public health or safety. Id. at 93. He therefore deferred any decision on the management issue until a future date. Id.

The Director's treatment of the emergency preparedness issue relied upon the evaluation of Pilgrim's emergency response plan by the Federal Emergency Management Agency (FEMA). Emergency preparedness refers to both onsite and offsite planning. Onsite plans must be submitted by the licensee and approved by the NRC. See "Emergency Planning and Preparedness for Production and Utilization Facilities," 10 C.F.R. Part 50, App. E. Petitioners have not challenged the onsite plans of Boston Edison. Offsite plans are developed by state and local officials with the help of the licensee. See 10 C.F.R. Secs. 50.47, 50.54(s). NRC and FEMA jointly assess all radiological emergency response plans. See 10 C.F.R. Sec. 50.47(2) (FEMA findings on emergency response plans will constitute rebuttable presumption in NRC review); and 10 C.F.R. Sec. 50.54(s)(3) (same).

FEMA issued two contemporaneous reports evaluating the offsite emergency planning and preparedness of Pilgrim. The first report responded to the allegations of the section 2.206 petition. It examined each of the seven alleged deficiencies in light of the information on record at the time the petition was filed. FEMA found that most of the issues raised were identical to those stated in a 1983 petition submitted by MassPIRG and denied by the NRC after an examination by both itself and FEMA. The first FEMA report concluded that the section 2.206 petition did not sustain its contentions. See "Analysis of Emergency Preparedness Issues at Pilgrim Nuclear Power Station Raised in a Petition to the NRC Dated July 15, 1986" at 4, reprinted in Record Appendix 1717, 1722. The first FEMA report further noted, however, based upon the findings of the second report, that FEMA agreed with "the general thrust of some of the conclusions of the Petition...." The second report, entitled "Self Initiated Review and Interim Findings," reprinted in Record Appendix at 1559 [hereinafter "Self Initiated Review"], involved further analysis of Pilgrim's radiological emergency response plans, including a review of reports submitted by both the Commonwealth of Massachusetts and Boston Edison....