Safe Energy Coalition of Michigan v. U.S. Nuclear Regulatory Com'n, 88-1184

• Decision Date: 03 February 1989
• Docket Number: No. 88-1184,88-1184
• Citation: 866 F.2d 1473
• Parties: , 57 USLW 2458 SAFE ENERGY COALITION OF MICHIGAN, et al., Petitioners, v. U.S. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, The Detroit Edison Company, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1473

866 F.2d 1473

275 U.S.App.D.C. 355, 57 USLW 2458

SAFE ENERGY COALITION OF MICHIGAN, et al., Petitioners, v. U.S. NUCLEAR REGULATORY COMMISSION and United States of

America, Respondents,

The Detroit Edison Company, Intervenor.

No. 88-1184.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 14, 1988.

Decided Feb. 3, 1989.

Robert Guild, with whom Richard E. Condit, Washington, D.C., and Billie P. Garde, Appleton, Wis., were on the brief, for petitioners.

Carolyn F. Evans, Atty., Nuclear Regulatory Com'n, of the bar of the State of Mo., pro hac vice, by special leave of court, with whom William H. Briggs, Jr., Sol., E. Leo Slaggie, Deputy Sol., Nuclear Regulatory Com'n, Peter R. Steenland, Jr. and John T. Stahr, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents.

Thomas A. Baxter and Jay E. Silberg, Washington, D.C., were on the brief, for intervenors.

Before MIKVA, BUCKLEY and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

Petitioners, Safe Energy Coalition of Michigan and Sisters, Servants of the Immaculate Heart of Mary Congregation, seek review of a Nuclear Regulatory Commission order denying their request that the NRC take certain actions with respect to an "employee concern" program established by intervenor, Detroit Edison Company, the licensee of the Fermi-2 nuclear power plant. We conclude that the NRC's refusal to undertake the actions that petitioners requested constitutes an agency enforcement decision unreviewable under Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and we therefore deny the petition for review.

I. BACKGROUND

NRC regulations require that each licensee of a nuclear power plant establish a "quality assurance program" to monitor "all activities affecting the safety-related functions" of the plant. 10 C.F.R. Part 50, App. B ("Appendix B"), Intro. (1988). The provisions of Appendix B governing "corrective action" by the licensee specify that:

Measures shall be established to assure that conditions adverse to quality, such as failures, malfunctions, deficiencies, deviations, defective material and equipment, and nonconformances are promptly identified and corrected. In the case of significant conditions adverse to quality, the measures shall assure that the cause of the condition is determined and corrective action taken to preclude repetition. The identification of the significant condition adverse to quality, the cause of the condition, and the corrective action taken shall be documented and reported to appropriate levels of management.

Id., Criterion XVI. In addition, the licensee must maintain records consisting, at minimum, of: "Operating logs and the results of reviews, inspections, tests, audits, monitoring of work performance, and materials analyses." Id., Criterion XVII. Other NRC regulations, apart from Appendix B, require that certain types of safety-related concerns be reported by the licensee to the NRC. See, e.g., 10 C.F.R. Sec. 50.55(e) (1988) (design and construction defects that could affect safety). Pursuant to these regulations, Detroit Edison established a quality assurance program for the Fermi-2 plant.

Though not required to do so, Detroit Edison also hired an outside consulting firm to establish and operate a separate "employee concern" program, called SAFETEAM, in order to elicit safety concerns from persons involved in plant construction and operation. According to the program director, SAFETEAM "never included the pursuit of corrective or remedial action ... in response to a safety concern. The program is strictly a means of eliciting concerns which are investigated and, if confirmed, referred to the appropriate organization for action."

A. NRC Investigations

Prior to the (in)action under review, the NRC conducted several "routine safety inspection[s]" into the operation of the SAFETEAM program pursuant to its "General Statement of Policy and Procedure for NRC Enforcement Actions," which is directed toward "[e]ncouraging ... the prompt identification and reporting of potential safety problems." 10 C.F.R. Part 2, App. C, I (1988). These investigations each culminated in a report, of which the critical one for present purposes is the October 1985 report of the Regional Inspector. The NRC coordinated its 1985 inspection with Detroit Edison's own review of SAFETEAM. Under this arrangement, the licensee reviewed SAFETEAM's treatment of approximately 67 percent of the "safety-related concerns" identified to the program, and NRC inspectors examined more than 10 percent of the safety concerns, with the result that 8.5 percent were reviewed by both the licensee and the NRC. The NRC report identified "isolated examples" of problems with SAFETEAM: for instance, "[i]nadequate interviews" and "incomplete documentation." The NRC concluded, however, that "[o]verall ... the [safety-related] concerns were adequately addressed" by the program.

B. The Section 2.206 Request

NRC regulations provide that "[a]ny person may file a request to institute a proceeding ... to modify, suspend or revoke a license, or for such other action as may be proper...." 10 C.F.R. Sec. 2.206(a). In response, "the Director of the NRC office with responsibility for the subject matter of the request shall either institute the requested proceeding ... or shall advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to his request, and the reasons therefor." 10 C.F.R. Sec. 2.206(b).

In May 1987, petitioners filed a section 2.206 request, alleging that Detroit Edison had undertaken the SAFETEAM program in order to divert safety concerns from the quality assurance program regulated by Appendix B and to identify "whistleblowers" for retaliation by utility management. Petitioners called upon the NRC to take three specific actions: (1) "take possession of all SAFETEAM files and review the allegations for all potential safety related deficiencies, and make these concerns public"; (2) "require that all SAFETEAM allegations are processed by the utility in accordance with ... Appendix B"; and (3) "require that all utility employees are fully informed about the SAFETEAM program before they make a choice between submitting information to SAFETEAM or the NRC." (Emphasis in original.)

The Director of the Office of Nuclear Reactor Regulation denied petitioners' request. In response to the allegation that Detroit Edison had harassed those who expressed safety concerns to SAFETEAM, the Director noted that petitioners had "provide[d] no specific information to support its claim," even when the NRC asked them to do so. The Director emphasized that "none of the [previous] inspections or the [Office of Investigations' 1985] evaluation [of SAFETEAM] identified deficiencies in the licensee's treatment of safety-related issues with respect to the requirements of ... Appendix B." He added:

While the NRC encourages programs like SAFETEAM, such programs are voluntary and are not required by NRC regulations. The requirements of ... Appendix B, have been and are currently adequately implemented by the Fermi-2 quality assurance program.

Since the Commission itself did not undertake to review this Director's decision within 25 days, 10 C.F.R. Sec. 2.206(c)(1), it became the final action of the agency in December 1987.

II. MOOTNESS

As of June 1988, Detroit Edison had begun to phase out the SAFETEAM program, and we understand that this process has been completed during the pendency of this appeal. The government argues that these events moot petitioners' section 2.206 request and our review of its denial. A case is rendered moot when events so unfold as to preclude the possibility of meaningful relief. Public Media Center v. FCC, 587 F.2d 1322, 1326 (D.C.Cir.1978). An order requiring the NRC to apply Appendix B to SAFETEAM and to inform workers about the comparative merits of SAFETEAM would hardly be meaningful relief, of course, now that the program has been terminated.

Petitioners' request for other relief is still viable, however. Recall that, as part of its October 1985 report, the NRC reviewed only a small sample of the safety-related concerns raised to SAFETEAM, and did not make public any specific problems identified therein. The NRC could still accord petitioners meaningful relief, therefore, with respect to their requests that (1) the agency take possession of the SAFETEAM files, review them all for safety-related concerns, and make such concerns public, and that (2) it require the licensee to reprocess all previously received SAFETEAM allegations pursuant to Appendix B. If petitioners are correct that Appendix B should have been applied to SAFETEAM, the NRC could examine the raw data and interviews contained in the files to determine whether SAFETEAM properly documented, reported, and corrected safety-related concerns in light of Criteria XVI and XVII of Appendix B. Should this review identify any deficiencies in the licensee's performance, the NRC could then compel it to take corrective action on authority of Appendix B. Accordingly, these two of petitioners' three requests present a live controversy regarding the application of Appendix B.

III. REVIEWABILITY

The Administrative Procedure Act provides for judicial review of final agency orders except where "agency action is committed to agency discretion by law." 5 U.S.C. Sec. 701(a)(2). Pursuant to this exception, the Supreme Court, in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), held that an agency's refusal to undertake enforcement action upon request is presumptively unreviewable. The Court has expressly reserved, however, the question whether Chaney applies to our review of the NRC's declination to act on a section 2.206 request. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 735 n. 8, 105 S.Ct....