Porter County Chapter of Izaak Walton League of America, Inc. v. Nuclear Regulatory Com'n, Nos. 78-1556

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore LEVENTHAL, ROBB and WILKEY; LEVENTHAL
Parties, 9 Envtl. L. Rep. 20,626 PORTER COUNTY CHAPTER OF the IZAAK WALTON LEAGUE OF AMERICA, INC., et al., Petitioners, v. The NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, Northern Indiana Public Service Co., Intervenor. The PEOPLE OF the STATE OF ILLINOIS, Petitioner, v. The NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, Northern Indiana Public Service Co., Intervenor. The CITY OF GARY, INDIANA, Petitioner, v. The UNITED STATES NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, Northern Indiana Public Service Co., Intervenor. The LAKE MICHIGAN FEDERATION, Petitioner, v. The UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Northern Indiana Public Service Co., Intervenor. to 78-1561.
Decision Date06 September 1979
Docket NumberNos. 78-1556,78-1559

Page 1363

606 F.2d 1363
196 U.S.App.D.C. 456, 9 Envtl. L. Rep. 20,626
PORTER COUNTY CHAPTER OF the IZAAK WALTON LEAGUE OF AMERICA,
INC., et al., Petitioners,
v.
The NUCLEAR REGULATORY COMMISSION and the United States of
America, Respondents,
Northern Indiana Public Service Co., Intervenor.
The PEOPLE OF the STATE OF ILLINOIS, Petitioner,
v.
The NUCLEAR REGULATORY COMMISSION and the United States of
America, Respondents,
Northern Indiana Public Service Co., Intervenor.
The CITY OF GARY, INDIANA, Petitioner,
v.
The UNITED STATES NUCLEAR REGULATORY COMMISSION and the
United States of America, Respondents,
Northern Indiana Public Service Co., Intervenor.
The LAKE MICHIGAN FEDERATION, Petitioner,
v.
The UNITED STATES NUCLEAR REGULATORY COMMISSION and United
States of America, Respondents,
Northern Indiana Public Service Co., Intervenor.
Nos. 78-1556, 78-1559 to 78-1561.
United States Court of Appeals,
District of Columbia Circuit.
Argued June 7, 1979.
Decided Sept. 6, 1979.

Robert J. Vollen, Atty., Chicago, Ill., with whom William J. Scott, Atty. Gen. of the State of Illinois, Robert L. Graham, Atty., Russell R. Eggert, Dean Hansell, Susan N. Sekuler, Asst. Attys. Gen., and Richard L. Robbins, Atty., Chicago, Ill., were on the brief for petitioners.

Peter G. Crane, Atty., U. S. Nuclear Regulatory Commission, Washington, D. C., with whom James L. Kelley, Acting Gen. Counsel, Stephen F. Eilperin, Sol., Anthony C. Liotta, Acting Asst. Atty. Gen., and Nancy Firestone, Atty., Dept. of Justice, Washington, D. C., were on the brief for respondents.

Charles A. Horsky, Atty., Washington, D. C., with whom Maurice Axelrad, Washington, D. C., were on the brief for intervenor Northern Indiana Public Service Company.

Michael I. Swygert, Atty., Chicago, Ill., also entered an appearance for appellant The City of Gary, Indiana in case No. 78-1560.

Before LEVENTHAL, ROBB and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge LEVENTHAL.

LEVENTHAL, Circuit Judge:

These petitions for review filed by environmental and citizen groups and state and local governments 1 bring to this court a challenge to the procedure by which the Nuclear Regulatory Commission (NRC) passes on a request to institute an adjudicatory proceeding to suspend and revoke a permit to construct a nuclear power plant.

The Director of Nuclear Reactor Regulation rejected requests to initiate a proceeding to revoke the construction permit granted to Northern Indiana Public Service Company (NIPSCO, or the Company) for its Bailly Nuclear Generating Facility. The requesting parties filed a petition for review with the Commission. 2 On April 20, 1978, the Commission entered a memorandum and order declining to disturb the Director's determination. Petitioners challenge this order on two grounds. They assert that the Atomic Energy Act of 1954 3 (the Act) requires that the Commission institute a proceeding whenever evidence not available when the construction permit was issued casts serious doubt on the safety of reactor design. They further contend that the discretion whether to institute such a

Page 1366

proceeding may not be lodged in the NRC staff, which participated in the initial construction permit proceedings in favor of the application, as this violates due process as an impermissible combination of functions. Finding the Commission's procedure to comport with statutory and constitutional requirements, we affirm.
I

The Company applied in 1971 for a construction permit for its Bailly facility, to be located on the southern shore of Lake Michigan near Gary, Indiana. 4 Following safety and environmental reviews, the Commission staff took the position in hearings before the Atomic Safety and Licensing Board that the application should be approved. Following favorable Board action, the permit was issued on May 1, 1974.

As of August 31, 1978, the construction of the Bailly facility was less than one percent complete. 5 The issuance of the permit led to litigation in the Seventh Circuit by three petitioners now before this court, with successful requests for stay of construction Pendente lite. 6

In November and December, 1976, shortly after the termination of the Seventh Circuit litigation by the Supreme Court's denial of certiorari, the Requests underlying the present petitions for review were filed with the NRC. They alleged that "new facts, new evidence, and legal developments" occurring since the issuance of the permit now required its revocation. 7 Among these new developments were changes in construction costs, fuel costs, fuel availability, the Company's financial strength and the anticipated need for the power to be generated at Bailly, as well as intervening legislation, court decisions and government reports. The allegation now being highlighted (though it was not prominent in the Requests) is the claim that new evidence raised substantial questions concerning the ability of the General Electric Mark II reactor's containment vessel to withstand the pressures generated in certain types of nuclear accidents. 8 The source material for this contention came from the staff itself,

Page 1367

which, in letters to the Company, had indicated that design problems might be present. The staff had initiated its inquiry when General Electric advised the Commission in 1975 that new tests had raised the concern that it had previously underestimated the forces which might be exerted on its Mark II containment under certain conditions.

The Requests were referred to the Director of Nuclear Reactor Regulation and rejected on April 15, 1977. As to the safety question, the Director noted that the NRC staff was pursuing the matter on a generic basis with General Electric and the utilities which proposed to construct reactors with the Mark II containment. He accepted the staff's conclusion that NIPSCO's response to staff inquiries, which adopted General Electric's responses, were adequate at the construction permit stage. Any unresolved problems could still be considered at the proceedings for operating licenses for Bailly and the other facilities. J.A. at 17-21.

In its April 20, 1978, memorandum the Commission rejected the objection based on the NRC staff's participation as a party adversary to petitioners in the construction permit proceedings. 7 N.R.C. 429 (1979). Because the Director's consideration of the petitions was not an adjudication, the separation-of-function prohibitions of the Administrative Procedure Act (APA) 9 and Commission regulations 10 did not apply. The Commission found petitioners' implicit premise that the staff's position prior to issuance of a construction permit rendered it incapable of impartial regulation following issuance of the permit to be "contradicted by the structure of nuclear regulation established by the Atomic Energy Act and by twenty years experience implementing that statute." The Commission also dismissed claims that the Director's decision was procedurally defective:

Contrary to petitioners' assertions, he is not required to accord presumptive validity to every assertion of fact, irrespective of its degree of substantiation, or to convene an adjudicatory proceeding in order to determine whether an adjudicatory proceeding is warranted. Rather, his role at this preliminary state is to obtain and assess the information he believes necessary to make that determination. Provided he does not abuse his discretion, he 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. Once that inquiry and assessment have been made, the standard to be applied in determining whether to issue a show cause order is . . . whether "substantial health or safety issues (have) been raised. . . . (A) mere dispute over factual issues does not suffice."

Id. at 432-33, Quoting Consolidated Edison Co., 2 N.R.C. 173, 176 (1975). Finding no abuse of discretion, the Commission declined to disturb the Director's ruling.

II

We do not accept petitioners' contention that the Act mandates the institution of proceedings to suspend and revoke the construction permit whenever evidence not available at the initial permit proceedings raises " serious, unresolved safety questions." Pet. Brief at 29.

Page 1368

We do not understand the Commission to deny the basic relevance of safety considerations in deciding whether to institute proceedings, nor to claim unfettered discretion under the Act to choose not to institute proceedings. Rather, the Commission asserts that the nature of the requisite safety showing is shaped by the requirements of the statute and that the determination whether the safety questions raised necessitate initiation lies, in the first instance, within the discretion of the Commission's enforcement arm, the NRC staff.

Petitioners point to two sections of the Act in support of their position. Section 186 of the Act, 11 provides that any license, including a construction permit, may be revoked for reasons "which would warrant the Commission to refuse to grant a license on an original application." The section also makes the formal adjudication procedures of the Administrative Procedure Act applicable to any revocation proceeding. 12 Section 189(a) permits any interested party to demand a hearing in a revocation proceeding. 13 These sections define the substantive standards and the procedures that govern a proceeding once it is begun. They do not define the conditions under which a proceeding must be instituted.

Petitioners also cite certain snippets of legislative history for the proposition that Commission proceedings are to be conducted in the open. 14 That history, however, only explains and fortifies the requirement that such proceedings as are begun shall be formal, public hearings. It does not specify when those proceedings must be initiated.

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25 practice notes
  • Nuclear Regulatory Commission,
    • United States
    • Federal Register April 16, 2001
    • April 16, 2001
    ...only permissibility of informal rulemaking procedures under section 189); Porter County Chapter of the Izaak Walton League v. NRC, 606 F.2d 1363, 1368 (D.C. Cir. 1979) (deciding only NRC's discretion to initiate enforcement proceedings subject to section 189 hearing); City of West Chicago v......
  • Part II
    • United States
    • Federal Register January 14, 2004
    • January 14, 2004
    ...only permissibility of informal rulemaking procedures under section 189); Porter County Chapter of the Izaak Walton League v. NRC, 606 F.2d 1363, 1368 (DC Cir. 1979) (deciding only NRC's discretion to initiate enforcement proceedings subject to Section 189 hearing); City of West Chicago v. ......
  • Practice and procedure: Adjudicatory process changes,
    • United States
    • Federal Register January 14, 2004
    • January 14, 2004
    ...only permissibility of informal rulemaking procedures under section 189); Porter County Chapter of the Izaak Walton League v. NRC, 606 F.2d 1363, 1368 (DC Cir. 1979) (deciding only NRC's discretion to initiate enforcement proceedings subject to Section 189 hearing); City of West Chicago v. ......
  • Gallagher & Ascher Co. v. Simon, No. 81-2244
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 3, 1982
    ...the plaintiffs' position is Porter County Chapter of the Izaak Walton League of America, Inc. v. Nuclear Regulatory Commission, 606 F.2d 1363, 1368 n.12 (D.C.Cir.1979), in which the court interpreted section 558(c) as triggering section 556-557 procedures in license revocation cases: "Secti......
  • Request a trial to view additional results
22 cases
  • Gallagher & Ascher Co. v. Simon, No. 81-2244
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 3, 1982
    ...the plaintiffs' position is Porter County Chapter of the Izaak Walton League of America, Inc. v. Nuclear Regulatory Commission, 606 F.2d 1363, 1368 n.12 (D.C.Cir.1979), in which the court interpreted section 558(c) as triggering section 556-557 procedures in license revocation cases: "Secti......
  • Florida Power Light Company v. Lorion United States Nuclear Regulatory Commission v. Lorion, Nos. 83-703
    • United States
    • United States Supreme Court
    • March 20, 1985
    ...that a § 2.206 petitioner had no right to a hearing, see Porter County Chapter of the Izaak Walton League of America, Inc. v. NRC, 196 U.S.App.D.C. 456, 462, and n. 16, 606 F.2d 1363, 1369, and n. 16 (1979), and because the Commission urged in its brief that " '[u]nless and until granted [L......
  • WWHT, Inc. v. F. C. C., UA-C
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 18, 1981
    ...40, 44, 320 F.2d 762, 766 (1963). 564 F.2d at 479. See also Porter County Chapter v. United States Nuclear Regulatory Comm'n, 606 F.2d 1363, 1369 (D.C.Cir.1979). 20 It is only in the rarest and most compelling of circumstances that this court has acted to overturn an agency judgment not to ......
  • Empresa Cubana Exportadora De Alimentos Y Productos Varios v. United States Dep't of The Treasury, No. 09–5196.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 29, 2011
    ...(collecting cases). Cubaexport cites a footnote to the contrary in Porter County Chapter of the Izaak Walton League, Inc. v. NRC, 606 F.2d 1363, 1368 n. 12 (D.C.Cir.1979). However, even accepting that this footnote applies to the regulatory exception at issue here, that footnote observation......
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