Petition for Writ of Certiorari — Citizens of Illinois v. United States Nuclear Regulatory Commission

Supreme Court brief1989

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In The

CLERK

JOCEPH F SMANIOL, JR.

SUPREME COURT OF THE UNITED STATES

October Term, 1989

CITIZENS OF ILLINOIS

Petitioners,

UNITED STATES NUCLEAR REGULATORY COMMISSION,

Respondent

COMMONWEALTH EDISON COMPANY,

Intervening Respondent

PETITION FOR WRIT OF CERTIORARI JO

THE UNITED STATES COURT OF

APPEALS FOR THIE SEVENTH CIRCUIT

Mr. JOHN STAINTHORDP, Esq

People’s Law Office

343 S$. Dearborn Sireet

Suite 1607

Chicago, Illinois 60604

312-663-5046

Attorney for Petstioners

QUESTION PRESENTED FOR REVIEW

The question presented is

Whether the Court of Appeals erred in concluding that

it had no jurisdiction to review Respondent’s bare denial

without a technical review, of a petition requesting that en-

forcement actions be taken to ensure the safe operation of

several nuclear power plants, when the denial of the peti-

tion without a technical review was a breach of the agency’s

statutory responsibilities

PARTIES BEFORE THE SEVENTH CIRCUS

Jacob Aronov

Eckhard Festag

David Kraft

Susan Michetts

Patricia Schafluer

‘ "

Abe Sklar

Lomited States Nuclea Regulatory Comission

Commonwealth Ldison Company

-il-

TABLE OF CONTENTS AND AUTHORITIES

Page

Question Presented for Review..... J

List of All Parties before the Seventh Circuit................1

Table of Contents and Authorimes.................-..-. 1

Staternent Pursuant to Rules 21(el)(e)ff)...... | 1]

Statutes and Regulations ivel ved IV

‘tatement of the Case... ..-..-.c:scsss eee

Arguinent...... oO

Cnaelusini nee

Appendix A. Decision of the Court of Appeals for the

Seventh Circuit......:.c¢:s.<scvecsscvecsb tee ee

Appendix B, Citizens of Uhnois’ Petition........... eee

Appendix C. Director's Decision DD-30-2......... fal

Statements Pursuant to Rules 21(d)(e)(f)

The decision of the Court of Appeals for the Seventh

Circuit is reported at --I?.2d- and is attached hereto as Ap-

pendix A

Jurisdiction of this court is mvoked pursuant to this

court's power to review a final decision of a United States

Court of Appeals.

The original decision of the Court of Appeals was dated

February 3, 199, and denied rehearing En Bane

Jurisciction is conferred on this court by 2a USC Sec

1254

STATUTES AND REGULATIONS INVOLVED

28 U.S.C. 92342. Jurisdiction of court of appeals

The court of appeals (other than the United States

Court of Appeal for the Federal Circuit) has exclusive ju-

risdiction to enjoin, set aside, suspend (in whole or in part),

or to determine the validity of-....

(4) all final orders of the Atonue Energy Commission

uiade reviewable by section 2239 of title 42:

42 U.S.C. 92239. Hearings and judicial review

TRANSFER OF FUNCTIONS

The Atomic Energy Commission was abolished and all

functions under this section were transferred to the Nuclear

Regulatory Commission and the Adimimstrator of the En-

ergy Research and Development Administration by sections

5314 and 5841 of this title.

5 U.S.C. F701(a)

(a) This chapter apples. according to the provisions

thereof, except to the extent that--

(J) statutes preelnude judicial review: or

(2) agency action is committed to ageney discretion by

law

10 CFR 92.206

(a) Any person may file a request to institute a proceed.

ig purstiatt to section 2 YOY to miodily, suspend, or revoke

heenuse, or for such other action as may be proper.

(b) Within a reasonable time after a request pursnant to

paragraph (a) of this section has been received, the Director

of the NRC office with responsibility for the subject matter of

the request shall cither institute the requested proceeding in

accordance with this subpart or shall advise the person who

inade request in writing that no proceeding will be instituted

In Whole or in part. with respect to lis request, and the

reasons for the decision

10 CFR Part 50, Appendix J

lL INTRODUCTION

One of the conditions of all oper: — a enses for water-

cooled power reactors as specified in YS0.54(0) as that pre

mary reactor containment shall meet the contamment leak-

age test requirements set forth in this appendix

ee a — ee —

In ~The

SUPREME COURT OF THE UNITED STATES

October Term, 1a8a

————S—=—— ae

CLYIZENS OF ILILINOIS

UNITED STALLS NUCLEAR REGULATOR)

COMMISSION

> o ;

[Re spondernt.

alia

COMMONWEALTH EDISON COMPANY.

On Writ of Certrorart FO the United State:

Court of Appeals for Lhe Seventh Cyrei

—pEnITION FOR WRI IT

OF | FCERTIORARL

To ‘The Honorable William H Relinquist, Cl Jus-

tice. and to the Honorable A ssociate Justices of the Supreme

Court of the United States

The Petitioners. Corwens of Tliots. speetfally pray

that a writ of certiorari issue to revies the judgment ane

order of the United States Court of Appeals for the Seventh

Circuit in this matte

STATEMENT OF THE CASE

This case concerns testing of tightness of containtun

systems of nuclear power plants. The measure of tight nes

the amount of gas, in per cent, that would be released! mit :

fel

the environment in one day from a building containing <

clear Peactor (“containment building” ) under circumstances

imitating a nuclear accident Thus measure is called a

rate.” and the requirements of contamment leak rate testi

)- ‘

have been provided by Appendix J to 10 CER, Part 5

The Petition alleged that several fraudulent and

cient leak rate tests of nuclear containinents were conducted

in Tinois in 1981-83 (Zien, 1981 test; Zion, 1968 test

that an emergency relief petition of Citizens Against: Nu-

clear Power of June 5, 1984, complaining about Zion tes!

resulted in the NRC shut down order of July 16. 190d. |

repair and retesting of the Zion nuclear power plant. Among

other violations, the operator manipulated the test data and

calculations to obtain an acceptable low value of leak rate

The NRC evaluation of the test data revealed that the leak

rate of the Zion containment was unacceptably high

The instrument of the operator's nmampulation was

computer program which contained options for alteration of

the test data for the purpose of calculation of a desirable

value of leak rate. About a third of the data actually used

for calculating the underestimated value of actual leak rate

during the November, 1953, test. was altered

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ARGUMENT

THE DECISION OF THE COURT OF APPEALS

DISMISSING THE PETITION FOR WANT OF JU-

RISDICTION WAS ERRONEOUSIN THATIT FAILED

TO CONSIDER THE PARTICULAR CiCUMSTANCES

OF THE CASEINDICATING GROSS VIOLATIONS

OF STATUTORY OBLIGATIONS, AND FAILED

TO TAKE THE PETITIONERS’ ALLEGATIONS -

AS TRUE IN DETERMINING WHETHER THE

NRC PROPERLY DENIED THE PETITION.

For many years Courts of Appeals routinely reviewed

decisions of the NRC denving enforcement of QJ2.202 peti-

tions. Subsequently, this court in florida Power and Light

Co. v. Lerion, 470 U.S. 729 (1985) questioned whether. in

light, of Ieckler v. Chaney, 470 U.S. 521 (1985) such dect-

sions were reviewable. On remand. in Lorton, 785 F 2d 1058,

1041 (D.C. Cir. 1986) the court reviewed the contents of the

petition without deciding on the question of Jurisdiction

Subsequently, the First Circuit in Massachusetts Public

Interest Group. Inc. v. United States NRC. 852 Fo2d 9. 15

(ist Cir.1988)(hereinafter MuassPING], held that such NRC

decisions were not reviewable. and the Seventh Ciremit. in

this case, agreed

The Achininistrative Procecdure Act provides for reviewa-

bility of all final actions of governinental agencies in general

by appropriate courts with the exception of when an agency

a a

action (or maction) is committed to agency discretion by

law, 5 U.S.C. J701(a). Lhe Supreme Court in Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410

(1971) noted that this “very narrow” exception is applicable

only where agency statutes are drawn so broadly that they

provide no law to apply

In MassPIRG the court held that neither the Atomic

Euergy Act of 1954 nor 10 CFR contain a meaningful stan-

dard for review of NRC nonenforcement decisions related to

the health and safety of the public. However, the saine court,

in the same case explicitly stated:

“The courts may review NRC decisions which

undermine its statutory responsibility to protect

‘the health and safety of the public’,” 852 F.2d 9.

If the latter factor were considered in the present case,

the Seventh Circuit should have reviewed the NRC’s denial!

Ifa containment leak rate determined from test data without

the data manipulations that can be done using the options

of the computer program in question, is, in fact, abnormally

high, then a Chernoby] type disaster may result from a reac-

tor accident. To allow data alteration options means grant-

ing a carte blanche to an operator of a facility for fraudulent

“determination” of any low value for leak rate he might de-

sire, an invitation to fraudulent testing

The court acknowledged in its decision that petitioners

claimed that they provided sufficient law, in the form of reg-

ulations for the court to apply, and that “[T]he NRC failed

to respond to petitioners citations to these regulations.” For

example, 10 CFR Part 50 mandates that a technical review

of emergency relief petitions be done by the Agency. How-

ever, the Agency failed to provide a technical review of this

Petition, and, in defiance of all scientific and engineering

standards of ethics, made knowingly false statements with-

out any attempt to substantiate their claims.

Other courts take allegations of petitioners as true until

4 review establishes the truth. he Seveuth Circuit, low-

ever, claimed that “the NRR investigated the claims raised

in the petition and.... found them to be without merit.

Given the evidence of several deficient leak rate tests.

shutdown of nuclear facilities. changes in testing methodol-

ogy, aud extreme luportance of the matter for public safety

this statement had no basis whatsoever

Symptomatically, the court completely overlooked the

fact that certain options of computer prograins may alter

the data for the purpose of “calculating” knowingly wrong

low values of leak rate, and that such “calculations were

actually used during the Zion, 1953, test Pages 7-8 of the

decision address various issues at length but the issue which

is at the gist of the petition has nowhere been addressed.

CONCLUSION

The decision of the Court of Appeals granted absolute

discretion to the NRC regardless of violations committed

and regardless of the strength of the Petition’s allegations.

This decision abdicated the responsibility of the court

to control agency’s actions, and is foreign to the concept of

the rule of law.

This Court should grant certiorari to resolve conflicts

among the lower courts as to when an agency determination

is revieable, and to correct clear errors by the United States

Court of Appeals for the Seventh Circuit.

Respectfully submitted,

JOUN L. STAINTHORP

$43 5S. Dearborn St.

Suite 1607

Chicago, Ulinois 60604

312-663-5046

Attorney for Petitioners

A-1

In the

United States Court of Appeals

Hor the Seventh Circuit

No. 87-1732

JACOB ARNOW, ECKHARD FESTAG,

DAVID KRAFT, SUSAN MICHETTI,

PATRICIA SCHAFFNER, and ABE SKLAR,

Petitioners,

UNITED STATES NUCLEAR

REGULATORY COMMISSION,

Respondent,

and

COMMONWEALTH EDISON COMPANY,

Intervening Respondent.

Petition for Review of an Order of the

United States Nuclear Regulatory Commission

ARGUED APRIL 5, 1988—DEcIDED FEBRUARY 3, 1989*

* Pursuant to Circuit Rule 40(f), this opinion has been circulated

among all judges of this court in regular active service. No judge

favored a rehearing in banc on the question of this court’s jurisdic-

tion to review nonenforcement decisions of the Nuclear Regulatory

Commission. Judge Cudahy did not participate in the considera-

tion or decision of this case.

ee ae Fe

° 2 ent OO eee Gee ae co

ean

A-2

2 No. 87-1732

Before RIPPLE, MANION, and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. The petitioners, various persons

residing in IIlinois,! seek review of a final order of the

respondent, the Nuclear Regulatory Commission (NRC),

1 The petitioners in this case were captioned ‘“‘Citizens of IlIlinois.”’

However, as the NRC points out in its brief, the ‘petition was

filed by a number of individuals, not by any organization.” Respon-

dent’s Bx. at 3 n.2. The government requests only that the peti-

tioners be listed individually. We note that appeals seeking review

of agency decisions are controlled by Rule 15 of the Federal Rules

of Appellate Procedure. Rule 15 requires that “the petition [for

review] shall specify the parties seeking review and shall designate

the respondent and the order or part thereof to be reviewed.”’

Fed. R. App. P. 15(a). We believe that the petitioners have met

the strictures of Rule 15. Cf. Torres v. Oakland Scavenger Co.,

108 S. Ct. 2405, 2407 (1988) (“failure to name a party in the notice

of appeal is .. . a failure of that party to appeal’’); Fed. R. App.

P. 3(c) (“An appeal shall not be dismissed for informality of form

or title of the notice of appeal.’’). The petition for review filed with

this court states that “the full names of every party or amicus

called collectively as “CITIZENS” or “APPELLANT” is stated

in Exhibit A.” Exhibit A contains the signatures of the ten in-

dividuals who filed the original petition with the NRC. See Fed.

R. App. P. 15(a) (“If two or more persons are entitled to petition

the same court for review of the same order and their interests

are such as to make joinder practicable, they may file a joint peti-

tion for review and may thereafter proceed as a single peti-

tioner.”’). Counsel for the petitioners has informed the court by

affidavit that he represents six of the original petitioners. The four

other original petitioners have not entered an appearance before

this court. See Circuit Rule 12(c). Accordingly, we order, sua

sponte, that the docket entry for this case be altered to list the

names of the six individuals who filed the original petition with

the NRC and are represented by counsel.

We also note that the petition did not name the United States

aS a party respondent. Under the Hobbs Act, 28 U.S.C. § 2344,

the United States “shall be’’ a party. All subsequent pleadings

have been served on the United States, and the government ac-

knowledges that, under Federal Rule of Appellate Frecntuee 15a),

the initial defect is not fatal. See Respondent’s Br. at 2 n.1.; Fed.

R. App. P. 15(a) (‘The United States shall . . . be deemed a re-

spondent if so required by statute, even though not so designated

in the petition.”’).

‘ |

No. 87-1732 A-3 ins 3

denying their request for issuance of an order to show

cause why certain nuclear power plants owned and oper-

ated by the intervening respondent, Commonwealth Edi-

son Company (CECo), should not be suspended from op-

eration and retested. The petitioners’ primary concern is

that the containments of those nuclear power plants might

be inadequate to prevent the spread of radioactive mate-

rial 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(aX2)

bars our review, we deny the petition for want of juris-

diction.

Background

A. Procedural Posture

The petitioners commenced this action by filing a peti-

tion with the NRC on August 30, 1986. The petition, cap-

tioned an ‘‘Emergency Relief Petition,” alleged that defi-

cient 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 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

2 Specifically, the petition alleged that the testing at the CECo

nuclear power plants was defective for five reasons. These five

reasons were stated as follows:

(1) The Zion tests used the incorrect weighting coefficients,

which was confirmed by the failure of the verification test;

(Footnote continued on following page)

a INT pede dine Ae valve’

A-4

4 No. 87-1732

On October 22, 1986, Harold C. Denton, the Director

of the NRR, acknowledged receipt of the petition by pub-

lishing 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 Peti-

tioners’ App. at 26 (copy of notice filed with the Office

of the Federal Register). In a written decision on Feb-

ruary 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 agen-

cy action on March 10, 1987.% The petitioners timely filed

2 continued

(2) The computer programs used by CECo in the tests al-

lowed impermissible deletion and alteration of data recorded

during the test;

(3) Data produced during the Zion 1983 test had in fact been

substantially altered and there existed a possibility of using

these computer programs to diminish the calculated leak rates

for meeting the allowable values;

(4) The tests did not comply with 10 C.F.R. Part 50, App.

J in that a test of the Zion containment system in July-August

1984 was followed by a failing verification test and that the

NRC thereafter allowed an illegal short duration test;

(5) That the gas mass equation used in calculating the leak

rate was inaccurate.

Petitioners’ Br. at 4.

3 A final order of the NRR Director filed with the NRC becomes

final agency action if the NRC does not act to reverse or modify

the Director’s decision within 25 days. 10 C.F.R. § 2.206(cX1)

(1988). Although the NRC’s regulations provide that the NRC’s

review is discretionary, see id., the Sixth Circuit has suggested

that “ijt is apparently the practice of the Commission to review

each denial of a § 2.206 petition to assure that the director has

not abused his discretion.”” Dickinson v. Zech, 846 F.2d 369, 371

_ (6th Cir. 1988).

No. 87-1732 A-5 +)

their petition for review with this court on May 8, 1987.4

Thereafter, CECo filed a brief as an intervening respon-

dent.

Subsequent to the filing of the petitioners’ petition for

review, the respondents filed a motion to dismiss the peti-

tion for want of jurisdiction. On October 15, 1987, this

court issued an order which stated that “respondents’ mo-

tion to dismiss will be considered with the merits of this

appeal by the panel assigned to consider this case.”’ Citi-

zens 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 |

4 The petition for review was prepared and signed by Dr. Zinovy

V. Reytblatt. Dr. Reytblatt also prepared the original brief on be-

half of the petitioners. In an order docketed June 19, 1987, this

court stated that “{aJs far as we know, Reytblatt is not an attor-

ney; accordingly, he may not represent anyone other than himself.

The brief, therefore, is ordered stricken.’’ The order did not ad-

dress, however, the petition for review also signed by Dr. Reyt-

blatt. In a similar context, in an opinion authored by then-Judge

Stevens, we held that ‘“{e]ven if [a] notice was defective because

not signed by a member of the local Bar, such a defect was sure-

ly not jurisdictional. . . . No motion to dismiss the first appeal

having been made in this court, we need not consider the signifi-

cance of the failure to have the notice executed by a member of

the local Bar.” Tryforos v. Icarian Dev. Co., 518 F.2d 1258, 1264

(7th Cir. 1975) (emphasis supplied), cert. denied, 423 U.S. 1091

(1976); cf. Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829, 830-31 (7th

Cir. 1986) (per curiam) (permitting pro se appellant to sign notice

of appeal and litigate her claim even when opposing party made

timely objection to lay advocate filing both notice of appeal and

brief).

6 A-6 No. 87-1732

event of a nuclear accident. An effective containment there-

fore ensures that any exposure of the public to radioactive

gases will be minimal. To test the effectiveness of a con-

tainment, nuclear power plant licensees conduct leak-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.’’> Apparently, no two nuclear

reactors have the same leak rate due to various factors

such as the containment size, and the configuration, loca-

tion, meteorological and demographic characteristics of the

nuclear plant site. See Respondent’s Br. at 7.

5S Appendix J of Part 50 to Title 10 of the Code of Federal Reg-

ulations contains regulations pertaining to how and when the leak-

rate tests should be conducted. As the introduction to Appendix

J states:

One of the conditions of all operating licenses for water-cooled

power reactors as specified in section 50.54(0) is that primary

reactor containments shall meet the containment leakage test

requirements set forth in this appendix. These test require-

ments provide for preoperational and periodic verification by

tests of the leak-tight integrity of the primaiy reactor con-

tainment, and systems and components which penetrate con-

tainment of water-cooled power reactors, and establish the ac-

ceptance criteria for such tests.

10 C.F.R. Part 50, App. J (1988).

Appendix J further provides that leak-rate tests are to be car-

ried out pursuant to industry standards. The standards followed

by CECo were promulgated by the American National Standards

Institute (ANSI) in 1981. ANSI/ANS 56.8-1981. The results of the

leak-rate tests conducted pursuant to the ANSI standards are ex-

pressed as a percentage of the air mass in the containment volume

for a twenty-four hour period. The NRC regulations set forth two

purposes for such testing: first, it ensures that the licensee can

protect the public health and safety in the event of an accident;

and second, it indicates structural weak points where gases could

escape the containment shield in the event of a loss-of-coolant ac-

cident. See generally 10 C.F.R. Part 50, App. J (1988); Respon-

dent’s Br. at 7.

No. 87-1732 —. oe 7

Opinion of the NRR Director

In addressing the merits of the instant case, the Direc-

tor of the NRR first characterized the contentions of the

petitioners es falling into three categories: “(1) allegations

regarding the general methodology associated with CILRTs

[containment integrated leak-rate tests], (2) allegations con-

cerning 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 em-

ployed by CECO in conducting CILRTs for the Zion, La-

Salle, and Byron units.” Jn 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. § 2.206.

He concluded that the concerns raised in the instant peti-

tion already had received sufficient consideration from the

NRC and therefore he refrained from discussing them

further.

The Director then addressed the third category of allega-

tions 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 falsifica-

tion of the test record.’”’ /d. at 125. The Director deter-

mined, however, that ‘‘the subject options are a necessary

part of the program; they literally permit the compilation

of bona fide test data.” Jd. The Director then addressed

the second challenge. The petition alleged that the com-

puter 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 trans-

ial

8 A~8 No. 87-1732

mission 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 peti-

tion 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 ex-

amining 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 ac-

quired 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 re-

sult in an illegal amount of data rejection, that the computer

programs could be manipulated to reinstate previously dis-

carded data, and that these computer programs impermis-

sibly affected the weighting coefficients used to calculate

the containment air mass and average temperature.®

6 The Director succinctly summarized his decision:

The Reytblatt affidavit makes numerous assertions of impro-

priety which appear to evolve from an imprecise understanding

of the functions of certain options typically provided for data

control in leak test computer codes, a misinterpretation on [sic]

the information appearing on printouts of data sets and a mis-

understanding of regulatory requirements in industry guidelines.

In any event, while the Staff does not review and approve

computer codes used in the industry for the leak rate testing

of containment structures, as noted above, NRC inspectors

carefully scrutinize all aspects of such testing and obtain raw

test data for analysis to independently assess the acceptability

of leak rate test results. This has been done for each of the

facilities identified by the Petitioners. NRC inspectors have

observed CILRTs conducted by CECO and analyzed test data,

and have found no evidence of wrongdoing on the part of

CECO. The Staff concludes, therefore, that the Petitioners’

claims have no technical or safety merit.

25 N.R.C. at 127.

No. 87-1732 Ae9 9

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 Inter-

est Group, Inc. v. United States Nuclear Regulatory Com-

mission, 852 F.2d 9, 15 (1st Cir. 1988) when they deter-

mined 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 (1985), its ac-

tion 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 challeng-

ing 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 deter-

mination 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

7 In Dickinson v. Zech, 846 F.2d 369, 372-73 (6th Cir. 1988), the

Sixth Circuit explicitly declined to reach the jurisdictional ques-

tion we address here because the Director had not reached a final

decision with respect to the petitioner. The court held that the

denial of emergency relief did not constitute final action reviewable

by the court of appeals. Nevertheless, the court opined that, if

it had jurisdiction over the emergency order, it would have sus-

tained the action of the Director.

A-10

10 No. 87-1732

undertake the enforcement proceedings requested by the

petition.® In the NRC’s view, the Atomic Energy Act con-

fers 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 Com-

mission enforcement authority in a particular case.

Clearly, under the rationale of Heckler, these Atomic

Energy Act provisions do not evidence a Congressional

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 court of appeals to apply in reviewing a NRC nonen-

forcement decision:

In the Atomic Energy Act Congress clearly put a

premium upon safety and mandated that nuclear power

generation be undertaken with full regard for the health

and safety of the public. The NRC has translated this

concern into practical rules, which, among other things,

mandate that there must be effective containment sys-

tems. There is, therefore, no problem in this case in

determining what law should apply.

Petitioners’ Br. at 17.

8 The intervening respondent, CECo, “‘takes no position on the

question whether the Court has jurisdiction to entertain the Peti-

tion for Review.’’ CECo’s Br. at 8.

No. 87-1732 A-11 11

2. Anarysis

Our jurisdiction to review decisions of the NRC is found

in 28 U.S.C. § 2342(4), a provision of the Administrative

Orders Review Act, referred to commonly as the Hobbs

Act. The Supreme Court explained this provision in Flor-

ida Power & Light Co. v. Lorion, 470 U.S. 729 (1985):

Under 28 U.S.C. § 2342(4), . . . the courts of appeals

have exclusive jurisdiction over petitions seeking re-

view of “all final orders of the Atomic Energy Com-

mission [now the Nuclear Regulatory Commission]

made reviewable by section 2239 of title 42.” Title 42

U.S.C. § 2239(b) provides that the Hobbs Act covers

review of “{alny final order entered in any proceeding

of the kind specified in subsection (a) [of section 2239).”’

Subsection (a) proceedings are those ‘“‘for the granting,

suspending, revoking, or amending of any license.”’ 42

U.S.C. § 2239(a)(1).

Id. at 733. In Lorion, the Supreme Court addressed the

issue of whether this statutory framework confers exclu-

sive subject matter jurisdiction on courts of appeals to

review decisions of the NRC denying petitions made pur-

suant to 10 C.F.R. § 2.206.9 The Supreme Court deter-

® Section 2.206 of Title 10 of the Code of Federal Regulations

provides in relevant part:

(a) Any person may file a request to institute a proceeding

pursuant to section 2.202 to modify, suspend, or revoke a li-

cense, or for such other action as may be proper... .

(b) Within a reasonable time after a request pursuant to

paragraph (a) of this section has been received, the Director

of the NRC office with responsibility for the subject matter

of the request shall either institute the re uested proceeding

in accordance with this subpart or shall advise the person who

made the request in writing that no proceeding will be insti-

tuted in whole or in part, with respect to his request, and the

reasons for the decision.

10 C.F.R. § 2.206 (1988).

12 A-12 No. 87-1732

mined that the provision did so. However, the Court did

not address squarely the issue before us here:!0

[NJo party has argued that under the [Administrative

Procedure Act], 5 U.S.C. § 701(aX2), Commission de-

nials of section 2.206 petitions are instances of pre-

sumptively unreviewable “agency action .. . committed

to agency discretion by law” because they involve

the exercise of enforcement discretion. See Heckler

v. Chaney, [470 U.S. 821] at 828-835 [1985]. Because

the question has been neither briefed nor argued and

is unnecessary to the decision of the issue presented

in this case, we express no Opinion as to its proper

10 Prior to the Supreme Court’s decision in Lorion, this court

reviewed decisions of the NRC denying enforcement of § 2.206

petitions. See City of West Chicago v. NRC, 701 F.2d 632, 653

(7th Cir. 1983); Rockford League of Women Voters v. NRC, 679

F.2d 1218, 1219-21 (7th Cir. 1982). However, in these cases, as in

Lorion, the only jurisdictional issue presented for adjudication was

whether the court of appeals (rather than the district court) had

initial subject matter jurisdiction. The issue of whether review was

permissible at all in light of § 701(aX2) of the Administrative Pro-

cedure Act was not addressed. In Rockford, however, this court

did point to the difficulty inherent in accomplishing the task of

judicial review without ascertainable standards. See 679 F.2d at

1222 (where the Commission has violated no Statute, regulation,

or other rule, the court must review “pure agency inaction—that

is, agency refusal to exercise a power which is not also a duty”’).

See also Illinois v. NRC, 591 F.2d 12, 14-16 (7th Cir. 1979) (opin-

ion does not mention jurisdiction, but notes “broad discretion” be-

stowed by Congress on the NRC).

In addition, a court’s pre-Chaney decision to review an agen-

cy’s nonenforcement decision need not control that court’s post-

Chaney jurisdictional analysis of the same sort of agency decision.

See Falkowski v. EEOC, 764 F.2d 907, 910-11 (D.C. Cir. 1985).

In a pre-Chaney decision, the District of Columbia Circuit rejected

the government’s contention that a Department of Justice deci-

sion was unreviewable. However, upon remand from the Supreme

Court for reconsideration in light of Chaney, the court found the

same Department of Justice decision unreviewable due to the “ab-

sence of any congressional pronouncements cabining the agency’s

discretion.” Falkowski, 764 F.2d at 91].

No. 87-1732 A-13 13

resolution. The issue is open to the Court of Appeals

on remand should the Commission choose to press it.

Id. at 735 n.8.11 We now address and resolve this question.

Under the Administrative Procedure Act (APA), 5 U.S.C.

§§ 551-706, final actions of governmental agencies general-

ly are presumed to be reviewable by the courts. See Citi-

zens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 410 (1971); Abbott Labs. v. Gardner, 387 U.S. 136,

140-41 (1967); see also 5 U.S.C. §§ 702 & 704. However,

section 701(aX2) precludes judicial review when “agency

action is committed to agency discretion by law.” 5 U.S.C.

§ 701(aX2).12 The Supreme Court directly addressed this

exception to the general rule of judicial reviewability in

Overton Park. The Court noted that the provision “‘is a

very narrow exception,” and “that it is applicable in those

rare instances where ‘statutes are drawn in such broad

terms that in-a given case there is no law to apply.’ ”’

Overton Park, 401 U.S. at 410 (quoting S. Rep. No. 752,

79th Cong., 1st Sess., 26 (1945)).

Subsequently, in Heckler v. Chaney, 470 U.S. 821 (1985),

the Supreme Court further explicated the scope of sec-

tion 701(aX(2). In that case, several death-row inmates in

11 Qn remand, the District of Columbia Circuit avoided resolu-

tion of the issue and proceeded to address, and dismiss, the merits

presented by the petitioners. Lorion v. NRC, 785 F.2d 1038, 1041

(D.C. Cir. 1986).

12 Section 701(a) reads:

(a) This chapter appiies, according to the provisions thereof,

except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by

law.

The NRC has not argued that § 701(aX1) is applicable in this

case.

A-14

14 No. 87-1732

Texas and Oklahoma brought suit for review of a denial

by the FDA to exercise its enforcement power to ensure

that states only use drugs that are ‘‘safe and effective”’

for human execution. The FDA had approved the chal-

lenged drugs for certain uses, but not for executions. The

inmates were concerned that the drugs might cause ‘“‘tor-

turous pain,” rather than “produc{ing] death quickly and

without pain.” Chaney v. Heckler, 718 F.2d 1174, 1177

(D.C. Cir. 1983), rev’d, 470 U.S. 821 (1985). In refusing

to investigate the petition, the FDA asserted that (1) it

did not have jurisdiction to regulate state-sanctioned ex-

ecutions involving lethal injections, and (2) it had inherent

agency discretion to refrain from undertaking such an ac-

tivity.

The Supreme Court held that the court of appeals did

not have jurisdiction. Although it noted that the APA pro-

vides a presumption of reviewability of agency actions,

the Court reasoned that, ‘‘before any review at all may

be had, a party must clear the hurdle of § 701(a). That

section provides that the chapter on judicial review ‘ap-

plies, according to the provisions thereof, except to the

extent that—(1) statutes preclude judicial review; or (2)

agency action is committed to agency discretion by law.’ ”’

Chaney, 470 U.S. at 828. In interpreting section 701(aX2),

the Court reasoned:

(R]eview is not to be had if the statute is drawn so

that a court would have no meaningful standard against

which to judge the agency’s exercise of discretion.

In such a case, the statute (‘law’), can be taken to

have ‘committed’ the decisionmaking to the agency’s

judgment absolutely. This construction avoids conflict

with the ‘abuse of discretion’ standard of review in

§ 706—if no judicially manageable standards are avail-

able for judging how and when an agency should ex-

ercise its discretion, then it is impossible to evaluate

agency action for ‘abuse of discretion.’

Id. at 830.

No. 87-1732 A=1> 15

Consequently, the Court held that a refusal to take en-

forcement action by an administrative agency is presump-

tively unreviewable by the courts. Jd. at 831. The Supreme

Court gave several reasons in support of its interpretation

of section 701(aX2): (1) an administrative agency is in the

best position to assess its resources and technical exper-

tise in claims brought under the statutes and regulations

that it is charged to administer; (2) an agency determina-

tion not to enforce its authority, as opposed to exercising

its authority, generally does not infringe upon an individ-

ual’s property right or liberty interest; and (3) the situa-

tion is analogous to the unreviewable decision of a prose-

cutor concerning whether or not to indict an individual.

Despite the presumption of unreviewability, however,

the Court noted that “the presumption may be rebutted

where the substantive statute has provided guidelines for

the agency to follow in exercising its enforcement pow-

ers.” Id. at 832-33. As an example of a situation where

the presumption adequately was rebutted by a petitioner,

the Chaney Court noted the earlier decision in Dunlop

v. Bachowski, 421 U.S. 560 (1975) (dispute under Labor-

Management Reporting and Disclosure Act (LMRDA), 29

U.S.C. § 481 et seg., requesting Secretary of Labor to in-

vestigate and file suit to set aside union election). In sum-

marizing the Dunlop decision, the Chaney Court noted

that ‘the Court of Appeals . . . had found the ‘principle

of absolute prosecutorial discretion’ inapplicable, because

the language of the LMRDA indicated that the Secretary

was required to file suit if certain ‘clearly defined’ fac-

tors were present. The decision, therefore, was not ‘be-

yond the judicial capacity to supervise.’’’!* In contrast

13 Chaney, 470 U.S. at 834. The court of appeals decision cited

by the Chaney Court set forth these “clearly defined factors” as

follows:

{Section} 482(b) of the L-MRDA provides that after investigat-

ing a complaint, [the Secretary] must determine whether there

is probable cause to believe that violations of § 481 have oc-

(Footnote continued on following page)

A-16

16 No. 87-1732

to the LMRDA, the Chaney Court noted that the FDCA’s

general provision for enforcement, 21 U.S.C. § 372,

provides only that “(t]he Secretary is authorized to

conduct examinations and investigations . . .” (empha-

sis added). Unlike the statute at issue in Dunlop,

§ 332 gives no indication of when an injunction should

be sought, and § 334, providing for seizures, is

framed in the permissive—the offending food, drug,

or cosmetic “‘shall be liable to be proceeded against.”

... The Act’s enforcement provisions thus commit

complete discretion to the Secretary to decide how

and when they should be exercised.

Chaney, 470 U.S. at 835.

Most recently, the Supreme Court has held that section

701(aX2) precludes judicial review of personnel termination

decisions by the Director of the Central Intelligence Agen-

cy because the relevant provision of the National Security

Act, 50 U.S.C. § 403(c), “strongly suggests that its imple-

mentation was ‘committed to agency discretion by law.’ ”

Webster v. Doe, 108 S. Ct. 2047, 2052 (1988) (quoting 5

U.S.C. § 701(aX2)). In defining what is meant by the stat-

utory language “committed to agency discretion by law,”

the Court noted that “even when Congress has not affir-

matively precluded judicial oversight, ‘review is not to be

had if the statute is drawn so that a court would have

13 continued

curred affecting the outcome of the election. Where a com-

plaint is meritorious and no settlement has been reached which

would remedy the violations found to exist, the language and

purpose of § 402(b) indicate that Congress intended the Sec-

retary to file suit. Thus, apart from the possibility of settle-

ment, the Secretary’s decision whether to bring suit depends

on a rather straightforward factual determination, and we see

nothing in the nature of that task that places the Secretary’s

decision ‘beyond the judicial capacity to supervise.”

Bachowski v. Brennan, 502 F.2d 79, 88 (3d Cir. 1974) (quoting K.

Davis, Administrative Law Treatise § 28.16 at 984 (1970 Supp.))

(footnotes omitted), rev’d, 421 U.S. 560 (1975).

A-17

No. 87-1732 17

no meaningful standard against which to judge the agen-

cy’s exercise of discretion.’”’ Jd. (quoting Chaney, 470

U.S. at 830).

Cc.

Only one court has addressed squarely!4 the applicability

of section 701(aX2) in the context of a nonenforcement

14 Nevertheless, two courts of appeals, in dictum, have expressed

conflicting impressions concerning the issue of whether there is

law to apply under the Atomic Energy Act in the context of an

NRC decision not to issue an order to show cause under § 2.206.

Compare Dickinson v. Zech, 846 F.2d 369, 372 (6th Cir. 1988) (“We

do note, however, that the fact that the Commission reviews its

director’s denial of petitions for an abuse of discretion may indicate

that there are indeed standards against which a final decision de-

nying the petition may be reviewed by a court. Thus, there may

well be ‘law to apply.’ ’’) with Lorion v. NRC, 785 F.2d 1038, 1040

(D.C. Cir. 1986) (“we doubt that on the facts before us the NRC’s

discretion is restricted by the Atomic Energy Act”). In neither

case, however, did the court resolve the issue.

We are aware that other courts, including our own, have re-

viewed final orders of the NRC after the Supreme Court issued

its opinion in Chaney. However, none of those courts addressed

the question of appellate jurisdiction over a final order of the NRC

in the context of an NRC nonenforcement decision. See, e.g., Cor-

monwealth Edison Co. v. NRC, 830 F.2d 610 (7th Cir. 1987);

Sierra Club v. NRC, 825 F.2d 1356, 1359-60 (9th Cir. 1987); Eddle-

man v. NRC, 825 F.2d 46, 48-49 (4th Cir. 1987); Ohio v. NRC,

814 F.2d 258 (6th Cir.), cert. denied, 107 S. Ct. 1893 (1987).

Finally, we note that courts of appeals, including our own,-in

addressing post-Chaney agency nonenforcement decisions under

other statutes, have not hesitated to find those decisions unreview-

able because Congress provided no law to apply. See, e.g., Andrews

v. Consolidated Rail orp, 831 F.2d 678 (7th Cir. 1987) (holding

nonenforcement decision of Department of Labor unreviewable

under Rehabilitation Act); Bethlehem Steel Corp. v. EPA, 782 F.2d

645, 654-57 (7th Cir. 1986) (holding EPA refusal to conduct a rule-

making proceeding unreviewable under Clean Air Act); Schering

Corp. v. Heckler, 779 F.2d 683, 685-87 (D.C. Cir. 1985) (holdin

nonenforcement decision of FDA unreviewable under FDCA); Rail-

(Footnote continued on following page)

A-18

18 No. 87-1732

decision by the NRC. See Massachusetts Public Interest

Research Group, Inc. v. NRC, 852 F.2d 9 (1st Cir. 1988)

{hereinafter MassPIRG]. In MassPIRG, individuals peti-

tioned the NRC for an order to show cause why a New

England nuclear power plant should not remain closed or

have its license suspended because of various concerns

relating to the health and safety of the public. The NRC

denied the petition and took no enforcement action against

the nuclear facility. Before the First Circuit, the NRC

argued that the court had no jurisdiction to review the

nonenforcement decision because there was insufficient

law to apply. The court agreed. After a thorough review

of the Atomic Energy Act and the regulations and policy

statements of the NRC, the First Circuit held that “given

the lack of a meaningful standard of review in either the

Atomic Energy Act of 1954... or the NRC regulations,

the refusal of the NRC to issue a show cause order against

[Boston] Edison is not subject to judicial review.”’ Jd. at

10.*5

In addressing the same question presented to the First

Circuit, we note that, under the analytical framework pro-

vided by the Supreme Court, our task must commence

with a “careful examination of the statute on which the

claim of agency illegality is based ... .”’ Webster, 108

14 continued

way Labor Executives Ass'n v. Dole, 760 F.2d 1021, 1024-25 (9th

Cir. 1985) (holding nonenforcement decision of Secretary of Trans-

portation unreviewable under various railroad safety acts); Gillis

v. United States Dept. of Health and Human Servs., 759 F.2d 565,

575-78 (6th Cir. 1985) (holding nonenforcement decision of Secretary

= Health and Human Services unreviewable under Hill-Burton

ct).

15 Although the MassPIRG court explained that “{njone of the

parties have argued that the controlling statute, the Atomic

Energy Act, provides a standard within the meaning of Chaney,”

852 F.2d at 15, the court nevertheless addressed the issue, noting

that “the general enforcement provisions of the Act are all framed

in permissive language. They provide no guidance as to how the

agency should exercise its discretion.” /d.

No. 87-1732 A-19 19

S. Ct. at 2052; see Chaney, 470 U.S. at 834; see also Over-

ton Park, 401 U.S. at 411. Here, that statute is the

Atomic Energy Act. After reviewing the Act, the First

Circuit concluded that Congress ‘‘provid[ed] no guidance as

to how the agency should exercise its discretion.” Mass-

PIRG, 852 F.2d at 15. We agree. The Atomic Energy Act

aligns closely with the FDCA, which the Supreme Court

determined in Chaney provides courts with “no law to

apply.” Indeed, its entire scheme vests very wide discre-

tion in the agency. See Public Serv. Co. v. NRC, 582 F.2d

77, 82 (1st Cir.), cert. denied, 439 U.S. 1046 (1978). For

instance, the general enforcement provisions of the Atomic

Energy Act, like the general enforcement provision of the

FDCA, 21 U.S.C. § 372, ‘“‘authorize/fs]’’ the NRC to

“‘make such studies and investigations . . . as the Com-

mission may deem necessary or proper to assist it in [the]

16 We note that the Atomic Energy Act is quite dissimilar from

the LMRDA, which the Supreme Court determined in Dunlop pro-

vides sufficient law for courts to apply. The relevant section of

the LMRDA states:

The Secretary shall investigate such complaint and, if he finds

probable cause to believe that a violation of this subchapter

has occurred and has not been remedied, he shall, within six-

ty days after the filing of such complaint, bring a civil action

Qo the labor organization as an entity in the district court

of the United States in which such labor organization main-

tains its principal office to set aside the invalid election, if any,

and to direct the conduct of an election or hearing and vote

upon the removal of officers under the supervision of the Sec-

retary and in accordance with the provisions of this subchapter

and such rules and regulations as the Secretary may prescribe.

29 U.S.C. § 482(b). Accordingly, while the statute arguably gives

some discretion to the Secretary of Labor (unlike the Atomic

Energy Act, the FDCA, and the National Security Act), the

LMRDA contains some clearly defined factors that a court of ap-

peals can apply upon review. See supra note 11. As the Supreme

Court explicitly has noted, the LMRDA “quite clearly withdr{aws]

discretion from the agency and provide[(s] guidelines for exercise

of its enforcement power.” Heckler v. Chaney, 470 U.S. 821, 834

(19885).

20 A-20 No. 87-1732

... enforcement of this chapter... .” 42 U.S.C. § 2201(c)

(emphasis supplied); cf. 21 U.S.C. § 372 (under the FDCA,

“(t]he Secretary is authorized to conduct examinations and

investigations’) (emphasis supplied). In addition, the NRC

is ‘“‘authorized”’ to “prescribe such regulations or orders

as it may deem necessary .. . to govern any activity

authorized pursuant to this chapter . . . in order to pro-

tect health and to minimize danger to life or property

....’ 42 U.S.C. § 2201(i) (emphasis supplied). Congress

also has ‘authorized’ the NRC to ‘make, promulgate,

issue, rescind, and amend such rules and regulations as

may be necessary to carry out the purposes of this

chapter.’’ 42 U.S.C. § 2201(p) (emphasis supplied).

Likewise, the wording of the section relating to the revo-

cation of licenses, like the provision in the FDCA pro-

viding for seizure of offending substances, 21 U.S.C.

§ 334, is permissive: ‘“‘Any license may be revoked for

any material false statement in the application or any

statement of fact required under section 2232 of this title,

or because of conditions . . . which would warrant the

Commission to refuse to grant a license on an original ap-

plication... .” 42 U.S.C. § 2236(a); see Rockford League

of Women Voters v. NRC, 679 F.2d 1218, 1222 (7th Cir.

1982) (section 2236(a) “‘permits but does not direct the

NRC to revoke a license or permit .. . .”); cf 21 U.S.C.

§ 334 (under the FDCA, “‘{aJny article of food, drug, de-

vice, or cosmetic that is adulterated or misbranded.. .

shall be liable to be proceeded against”’).

Finally, the section providing for injunction proceedings

under the Atomic Energy Act, much like the injunction

provision of the FDCA, 21 U.S.C. § 332, confers broad

discretion upon the NRC. See 42 U.S.C. § 2280

(“[w]henever in the judgment of the Commission any per-

son” has or will violate the Act, the Attorney General

“may” apply for an injunction); cf. 21 U.S.C. § 332 (pro-

A-21

No. 87-1732 21

viding the FDA with no guidance as to when it should

seek an injunction).??

Upon review of “the overall structure of the [Atomic

Energy] Act,” Webster, 108 S. Ct. at 2052, we believe it

is apparent that Congress has entrusted the NRC with

wide, unreviewable discretion in the area of agency en-

forcement. See MassPIRG, 852 F.2d at 15; cf. Webster,

108 S. Ct. at 2052-53 (Congress did not intend for courts

to review personnel termination decisions by the CIA);

Chaney, 470 U.S. at 837-38 (Congress did not intend for

courts to review nonenforcement decisions of the FDA).!®

Accordingly, the presumption against reviewability of

agency nonenforcement decisions is not rebutted here. See

Chaney, 470 U.S. at 832-33. Indeed, as the First Circuit

aptly summarized, “ ‘(t]he Atomic Energy Act of 1954 is

hallmarked by the amount of discretion granted the Com-

mission in working to achieve the statute’s ends. The

Act’s regulatory scheme ‘“‘is virtually unique in the degree

to which broad responsibility is reposed in the administer-

ing agency, free of close prescription in its charter as to

how it shall proceed in achieving the statutory objec-

tive.” ’” MassPIRG, 852 F.2d at 15 (quoting Public Serv.

Co., 582 F.2d at 82 (quoting Siegel v. AEC, 400 F.2d 778,

783 (D.C. Cir. 1968))); accord Illinois v. NRC, 591 F.2d

12, 16 (7th Cir. 1979).

As pointed out by the District of Columbia Circuit in

Lorin v. United States Nuclear Regulatory Commission,

17 Similarly, the National Security Act provision that was at issue

in Webster provides in relevant part, “the Director of Central In-

telligence may, in his discretion, terminate the employment of any

officer or employee of the Agency whenever he shall deem such

termination necessary or advisable in the interests of the United

States ... .” 50 U.S.C. § 403(c) (emphasis supplied).

18 See also Lorion, 470 U.S. at 750-52 (Stevens, J., dissenting)

(Congress did not intend for courts to review nonenforcement deci-

sions of the NRC).

292 A-22 No. 87-1732

785 F.2d 1038 (D.C. Cir. 1986), ‘‘Chaney did not decide

. . Whether non-statutory standards could similarly re-

strict agency discretion; the court ‘[left] to one side the

problem of whether an agency’s rules might under cer-

tain circumstances provide courts with adequate guidelines

for informed judicial review of decisions not to enforce.’ ’’

Id. at 1040 (quoting Chaney, 470 U.S. at 836) (emphasis

in original). Despite this open-ended language, both the

District of Columbia Circuit and the First Circuit subse-

quently have held that agency regulations can ‘“‘provide

a sufficient standard for meaningful review.”’ MassP/RG,

852 F.2d at 16; see Center for Auto Safety v. Dole, 846

F.2d 1582, 1534 (D.C. Cir. 1988) (per curiam); see also

Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987). We

agree with the position articulated by these courts. See

generally Service v. Dulles, 354 U.S. 363, 388 (1957)

(“While it is of course true that under [the applicable

statute] the Secretary was not obliged to impose upon

himself these more rigorous substantive and procedural

standards, . . . having done so he could not, so long as

the Regulations remained unchanged, proceed without re-

gard to them.”’). Consequently, we must determine whether

the regulations promulgated by the NRC provide us with

an appropriate standard for judicial review.

In addressing this issue in the context of the regulations

promulgated by the National Highway Transportation

Safety Administration (NHTSA), the District of Colum-

bia Circuit found no law to apply under the agency’s ap-

plicable regulation—49 C.F.R. § 552.8. See Center for Auto

Safety, 846 F.2d at 1534. Section 552.8 of Title 49 of the

Code of Federal Regulations provides for enforcement of

a petition if the NHTSA determines that there “‘is a rea-

sonable possibility that the order requested . . . will be

issued at the conclusion of the appropriate proceeding.”’

49 C.F.R. § 552.8 (1987). In finding this language insuffi-

cient to establish judicial review, the court reasoned:

The regulation sub judice provides the court no way

to second-guess the weight or priority to be assigned

these elements. In particular, it would be unwise, and

No. 87-1732 A-23 23

inconsistent with the broad mandate of the agency

under the governing statute, to infer a mandatory

allocation of the agency’s limited resources from the

regulation at issue.

Center for Auto Safety, 846 F.2d at 1535.

Our review of the applicable NRC regulations convinces

us that, like the NHTSA regulation, no standard of review

is defined. Neither section 2.202, which provides for orders

to show cause, nor section 2.206, which provides for re-

quests for action, give us any meaningful “law to apply.”’

See 10 C.F.R. § 2.202 (the “Director of Nuclear Reactor

Regulation . . . may institute a proceeding to modify,

suspend, or revoke a license or for such other action as

may be proper by serving on the licensee an order to show

cause . . . .”) (emphasis supplied); 10 C.F.R. § 2.206(b)

(“Within a reasonable time after a request [for a section

2.202 proceeding] . . . has been received, the Director of

the NRC office with responsibility for the subject mat-

ter of the request shall either institute the requested pro-

ceeding in accordance with this subpart or shall advise

the person who made the request in writing that no pro-

ceeding will be instituted in whole or in part, with respect

to his request, and the reasons for the decision.’’). The

regulations clearly commit total discretion to the NRC on

matters of enforcement. See MassPIRG, 852 F.2d at 16

(“The NRC regulations concerning section 2.206 petitions

are entirely permissive.”); Rockford League of Women

Voters, 679 F.2d at 1222 (‘(T]he implementing regulations

lof the Atomic Energy Act] are likewise permissive rather

than mandatory. The only thing the Director is required

to do is, if he decides not to institute a revocation pro-

ceeding, to notify the requesting party in writing of his

decision and of the reasons for it... .”).

The petitioners contend, however, that other regulations,

relating to the testing of containments and the revoca-

tion of licenses, provide sufficient law for us to apply. See,

e.g., 10 C.F.R. Part 50, App. A (1988); 10 C.F.R. Part

00, App. J (1988). The NRC has failed to respond to the

A-24

24 No. 87-1732

petitioners’ citations to these specific regulations. Never

theless, after a thorough review of these regulations, we

do not find that they provide us with the requisite law

to apply. The regulations primarily set forth technical fac-

tors concerning the design of nuclear reactor containments

and the test requirements for “‘preoperational and periodic

verification . . . of the leak-tight integrity of the primary

reactor containment.” 10 C.F.R. Part 50, App. J (1988).

These regulations therefore merely set forth the method-

ology of containment construction and leak-rate testing;

they provide no guidelines for the agency to follow in ex-

ercising its enforcement powers that we, as a reviewing

court, could look to in adjudicating the NRC’s decision

not to take enforcement action.?® As the Supreme Court

succinctly explained in Chaney, “‘an agency decision not

to enforce often involves a complicated balancing of a

number of factors which are peculiarly within its exper-

tise.”’ 470 U.S. at 831. Nothing in the regulations cited

19 See Chaney, 470 U.S. at 832-33 (presumption of unreviewability

rebutted “‘where substantive statute has provided guidelines for

the agency to follow in exercising its enforcement powers”’); see

also Webster, 108 S. Ct. 2052 (statutory language “‘strongly sug-

gests that its implementation was ‘committed to agency discre-

tion by law’” and, thus, unreviewable where Court could see ‘‘no

basis on which a reviewing court could properly assess an Agen-

cy termination decision’’).

The petitioners also contend that 10 C.F.R. § 50.34(a) (1988), 10

C.F.R. § 50.40(a) (1988), and 10 C.F.R. 50.100 (1988) provide us

with a sufficient standard for judicial review. However, § 50.34(a)

merely sets forth the required contents of a preliminary safety

analysis report. Such a report must be included, and prepared by

the applicant, in an application for a construction permit. Section

50.4Qa) simply provides that in applications for a license, the NRC

“will be guided’’ by the “health and safety of the public.’ This

is essentially the same language contained in the AEA itself. Final-

ly, § 50.100 is an enforcement regulation that, like the statutory

enforcement provisions, is worded in the permissive. According-

ly, we do not find that these regulations, either separately or in

concert, alter our holding that we have no jurisdiction to review

the petition.

Ferner

I3-]-

IN THE UNITED STATES COURT OF

APPEALS FOR SEVENTH CIRCUIT

CITIZENS OF ILLINOIS.

Petitioners,

No. 8/-1732

PETIVION FOR REVIEW

NUCLEAR REGULATORY

COMMISSION,

Respondent

PETITION FOR REVIEW OF A DECISION

OF THE NUCLEAR REGULATORY COMMISSION

BRM POR PE TEPIONER

CILIZENS OF ILLINOIS

Mr. JOHN STAINTHORP, Esq

People’s Law Office

$44 5. Dearborn Street

Suite 1607

Chicago. Ilhnois GO604

312-665-5046

}3-1-

TABLE OF CONTENTS

Page

STATEMENT OF FACTS

A. Overview !

B. Procedural liistury J

C. Facts Q

ARGUMENT

1. This court has jurisdiction to

review the denial of the 2.206 Petition

by the Nuclear Regulatory Comiunission 14

2. The Nuclear Regulatory Commission

decision that the Zion Weighting coefficients

did not affect the result of the leak rate

tests was arbitrary and capricious 29

3..The decision by the Nuclear Regulatory

Commission not to issue an order to show case

upon Commonwealth Edison Company to demonstrate

acceptability of its computer programs was

arbitrary and capricious 24

4. The Nuclear Regulatory Comission

decision that the Zion. ISS4, test complied

with the regulations was arbitrary

aud capricious 3]

CONCLUSION 3

B-11-

TABLE OF CASES AND AUTHORITIES

Page

Anacoso-Sanchez v. INS,

779 F.2d 1260 (7th Cir. 1985) 63

Cardoza v. Commodtly Commission,

768 F.2d 1542 (7th Cir. 1985) 17,20

Cerro Wire and Cable Co. vo PERC,

677 F.2d 124, 128 (D.C. Cir. 1982) 19

County of Rockland v. NIC,

709 F.2d 766 (2nd Cir 1983), 104 S.Ct. 21

Florida Powerand Light Co. v. Lorion,

ATO U.S. 729 (1985) i

Heckler v. Chaney.

470 U.S. 821 (1935) 1,15.15,16,18.19.20.

Iicterochemtical Co. vo EDA,

644 F.Supp 271 (hh. D. NOY. 1986). 19,20

Illinois v. NRC,

591 F.2d (7th Cir. 1474) 21

Nader v. NRC.

513 F.2d 1045 (D.C.1975) 2]

Natural ltesources Council ve NRC.

606 I°.2d 1261 (D.C. Cir. 1979) 2]

North. Indiana Publ. Service Co. uv FERC.

762 F.2d 730 (7th Cir Lao ) 1Y

}3-i11-

Porter County Chapter v. NRC,

600 F.2d 136% (D.C. Cir. 1979) 21

Robbins v. Reagan. 7380 F.2d 37 (DC. Cir. 1985) 20

Rockford League of Women Voters v. NRC.

679 F.2d 1215 (7th Cir. 1992) 21

Scacost Anti-Pollutson League of N.H. v. NRC,

690 F.2d 1025 (D.C. Cir. 1982) 20

Service v. Dulles, 345 U.S. 463 (1957) 2)

Sterra Club v. Block,

615 F.Supp 44(D. Col. 1985) 20)

te, | oe” a er

ple OR | SEO sa an see ee a eeeeenae. i

10 C.F_R. §2.400 et seq... LEON ee

10 C.F.R. Part 50. App. J. 1.D2.1.2.4,6,9,10.11.12.16

oR See > | ae 2)

ip OR 0S ES eee

DE ORS rr

42 U.S.C. 42282 et see d.15

42 U.5.C. §3i83 ev sey Soe es

42 tS A. 52236 et seq.. 3

B-iv-

JURISDICTIONAL STATEMENT

The Petition was filed with the Nuclear Regulatory Com-

nussion (hereinafter NRC) on August 30, 1986. The NRC

had jurisdiction to consider the Petition pursuant to 42 U.S.C.

42236 and 10 C.F.R. §2.206. The denial of the Petition be-

came final agency action on March 10, 1987. On May 8, 1987

Petitioner filed with this Court its Petition for Review of the

Director’s Decision. Jurisdiction of this Court to consider to

consider the Petition for Review is pursuant to 5 U.S.C. §701

et seq., 28 U.S.C. §2342(4), and 42 U.S.C. §2239(b). Peti-

tioner requests this Court to reverse the agency's denial of

the Petition and remand the matter to the NRC with instruc-

tions that it issue an Order to Show Cause upon Common-

wealth Edison Company. Respondent does not contest that,

if judicial review 1s available, this Court is the appropriate

forum for such review, see Florida Power and Light Co. v.

Lorion. 470 U.S. 729 (1985), but argues, based upon Heckler

v. Chancy, 470 U.S. 821 (1985), that the NRC decision is a

completely unreviewable refusal to exercise its enforcement

authority.

ieee

125 MONA AC EAA ERED AEN

B-1-

STATEMENT OF FACTS

A. OVERVIEW

This petition for Review challenges the determination

of the Nuclear Regulatory Comission (hereinafter NRC)

that the primary reactor containments for the nuclear power

plants operated by Commonwealth Edison Company (here-

inafter CECo) at Zion aud LaSalle have been demonstrated

safe and effective as required by 10 C.F.R. Part 50 Appendix

é.

The reactor containment system of a nuclear power plant

is, im the event of a reactor accident, the only barrier be-

tween the radioactive contents of the containment bmilding

and the environment. Thus, it is the ultimate neaus to

prevent a major disaster which could thousands, hundred

of thousands, or millions of deaths, vast environmental ce-

struction, and a worldwide spread of rachation. During the

incident at Three Mile Island Plant the containment system

vorked and prevented any substantial escape of radiation

Though the the incident was severe its worst effects were

prevented by an effective comtammicnt system. Jn the iueci-

dent at Chernobyl, the containment structure did uot work

aud substantial amouuts of radiation escaped, quickly killing

several workers in the vicmuty, spreading raciation through-

out Enrope and the world, creating vast economic damage,

an, itis expected, causing thousands. or lamidreds of thou-

sands of deaths for decades to come

3-2-

It is possible to operate a nuclear reactor without any

contamment system. The environment will not be substan-

tially effected as long as the reactor is operating normally

and without an accident. tlowever, because of the massive

potential for damage to life and property posed by an un-

contamed aceident at a nuclear power plant, it is against the

law for any commercial nuclear energy generating plant to

be operated in the United States without a containment. sys-

vem which can accomodate the expected pressure and teim-

perature conditions resulting from a reactor accident, and

prevent leakage in excess of the design leakage rate *. 10

C.FLR. §50.34, Part 50, App. A, Part 50, App. J.

10 C.FLR. instituted the preoperational and periodic

testing of containment systeins for their leak rate. In the

absece of a reliable testing procedure a leaking contaiument

system will be revealed only during an accident wich will

result in the escape of radiation, causing a catastrophic dis-

aster. 10 C.f.R. does not allow operation of a nuclear facility

unless the containment system’s leak rate has been proven

to be below the limits specified in the operating heense.

The Petition to the NRC in this case alleged that the

testing of the containment structures at the Zion and LaSalle

* The containment system leak rate is the amount of

the gases that escape from the containment, under certain

pressure, into the environment in 24 hours, expressed im per

cent to the contents of the econtainment building. 10 C.FLR.

Part 50, App. J. ITD.

B-3-

nuclear power plants has been defective for a number of years

and that there is, therefore, no assurance that these contain-

ment systems would function effectively in the event of an

accident. ‘The Petitioner requested that the leak rate tests

be properly conducted, that the records of these properly

conducted tests be made public documents, that the NRC

review the computer programs used by CiCo in the tests,

that the couservative estunates of the actual leak rates * of

the plants be deterinined, and that, if the leak rate estunates

were outside the limits specified in the in the operating h-

censes, the reactors be placed into cold shut down for repair

and retesting.

The NRC denied the Petitioner's request. The Peti-

tioner has now petitioned this court for review of that deci-

sion on the grounds that itis arbitrary and capricious and

an abuse of discretion.

B. PROCEDURAL ILISTORY.

In august, 1986 the Petitioner. pursuant to 10 CPR.

2.206, subinitted to the NRC an “EMERGENCY RELIES

* The “calculated leak rates” are bused on the test data,

and on certain assumptions. ‘To assure that the real leak

rates are within the limits prescribed by the opating lceuses,

various assumptions are apphed. and the worst (the largest)

resulting leak rate is called “the conservative estimate. Tus

procedure is common and is referred to as a “parametric

study.”

B-4-

PETITION” (Appendix, p.1) alleging that deficient leak rate

testing of nuclear containment systems of CECo nuclear power

plants had created an apparently unsafe situation. The Peti-

tion, which contained a letter from Dr. James Kenevan, As-

sociate Professor, Department of Computer Science, Illinois

Justitute of Technology, and an affidavit froin Dr. Zinovy

Volf Reytblatt, Associate Professor, Department of Mathe-

matics, Illinois Institute of Technology, alleged that the test-

ing was deficient because:

1. The Zion tests used the incorrect weighting coef-

ficients, which was confirmed by the failure of the verification

test;

2. The computer program used by CIECo in the

tests allowed impermissible deletion and alteration of data

recorded during the test;

3. Data produced during the Zion 1983 test had in

fact been substantially altered and there existed a possibility

of using these computer prograius to diminish the valeulated

leak rates for meeting the allowable valnes:

4. The test did not comply with 10 CLP.R. Part

90, App. J in that a test of the Zion coutaniuent svster

in July-August 1984+ was followed Leyeia failing verifieation

test and that the NRC thereafter allowed au illegal short

duration test:

5. That the gas mass equation used in calculating

the leak rate was incorrect *

* This part of Petitioner's claim is now moot. The NRC,

BRO BINS EE RT he SANT pee OLS Wierd Dein hates 3 *

B-5-

The Petition was filed by the NRC on August 30, 1939,

and on October 22, 1986 Harold Denton, Director, Office of

Nuclear Reactor Regulation, NRC, acknowledged receipt of

the Petition in a notice in the Federal Register *, dechned

to take emergency action and indicated he would review the

Petition and issue a formal ruling within a reasonable time

(see LU CLLR. 2.206(b)).

Upon receipt of the Petition the NRC forwarded it te

CECo. CECo then prepared a response (App. p.44) wiuch

attempted to respond to the allegations of the Petition.

after claiming for years that the equation was not “wrong,”

or. in the alternative. that it yielded results which were

permissible approximations aud not significantly diferent

froin. those vieldec by thie “Reyvtblatt method” (see App

p.1G3), las now proposed amendinents to 10 C.F. Ap-

pendix J which include the correct equation suggested: by

Dr. Reytblatt.

* In this notice the NRC misinterpreted the Petition, stat-

mig “Suspension of the operating licenses for the (Zion, LaSalle

and Byron) facilities was requested.” (App.p.26). By Tet-

ter of January 5, 1987 Dr. Keytblatt noted the maceuracy

and requested that the notice be changed to accurately re-

port that the Petition requested “An Order To Show Cans

upon Commonwealth Edisou Company of Nimesis t. favs.

records from: the tests. and contingent upon the leak rate

conservative estimates, suspension of the operating license

for the referenced facilities were requested.” No change was

issued.

[3 -¢ Jo

On February 10, 1987 Harold Denton issued a “Direc-

tor’s Decision Under 10 C.F-R. 42.206" denying the Petition

(DD-87-02, App. p.30). Several prior Director's Decisions

were relied upon by the Director in denying rehef in DD-37-

O2.

The Decision asserted that 1 pricr Director's Decision,

DD-84-6 (App. p.103). the Director had considered claims

(App. p-102, 106), that the methodology used to calcu-

late leakage rate was defective. In DD-84-6 the Director

responded to a Petition filed by Edward Gogol which raised

claims concerning the general methodology of Integrated

Leak Rate Testing, alleging. tater alia, possible fudging of

the calculated leak rate through discarding the first part of

the mass curve, discarding data, insufficient and unjustified

placement of temperature and pressure sensors, USC of un) us-

tified weighting coefficients. and various other errors. [he

Petition also alleged that the requirements for archiving of

raw test data were loose, that ts. the most important data

were not made available for public review. In response to

the Petition, DD-84-6 claimed that “a properly conducted

test would not likely be flawed by the types of deficiences al-

leged in the Petitions such as unjustified discarding of data

or the use of unjustified weightung coefficients.” The decision

discounted the petition’s chum: about loose archiving of raw

data and dechned to order that such data be made available

for public inspection. The Director relicd on this decision bo

dispose of similar claims in the instant petition

DD-a87-02 asserted that in prior decisions DD-s5-2 [Ap-

EBD ree

Meee Stes Ae hl Ratna ie

]3-7-

pendix,p.98 (decision), p.d3 (petition )}, and DD-35-10 [App..

p.s0 (decisions). p.56 (petitions)] the Director had consid-

ered the adequacy of leakage rate testing for the Zion con-

tainment system im particular, and he adopted those deci-

sions to deny the correspouding portions of the instant Pe-

nition.

DD-85-2 responded to petition filed by Mr. Gogol on

June 5, 1984. This petition clauned that the 1@a1 contam-

ment test of the Zion facility, which was submitted to the

uRC in June, 1981, was scientifically invalid. ‘The petition

contained an affidavit from Dr. Reytblatt which, based upon

an evaluation and analysis of data from the 19d] test, identi-

fied several problems with the verification test and concluded

that the test was deficient. The NRC then perforined a spe-

cial inspection of the 1981 and 1983 Zion tests and discovered

faults which led it to conclude that both tests were not lm

compliance with 10 C.F.R. App. J. Upon notification by the

NRC that the problems had been discovered and disclosed

by the Petitioner, CLCo temporarily shut down the Zion

power station for repair and retesting The Director issued

)D-55-2 granting the petition i park, ancl allowing the pe-

titioners uecess to raw data of the Losd test, lnt denying,

the Petitioner's request for access to the computer program

which was used for leak rate calculations

DD-85-10 was In response to a petition filed on March

6. 1985 which claimed, imfer ala, that the lack of rules con-

cerning weight coefficients 1 leak rate testing “may lead to

underestimating abnormally high leak rates to the degree

B3-3-

that such leaks would appear to be wit

and alleged that incorrect weighting coefficients were in fact

used in calculating the Zion leak rate. DD-85-10 noted that

weighting coefficients were subject of DD-84-6 and repeated

that “a properly conducted leak rate test would not contain

the types of deficiences alleged by the Petitioner such as the

use of unjustified weighting coefficients.” The decision also

admitted that the initial verification test of the July, 1984

Zion test failed, but claimed that a subsequent verification,

in which the utility used a larger imposed leak rate, ade-

quately demonstrated the accuracy of the main test

DD-87-02 next stated that the CECo computer pro-

grams that allow deletion and alteration of data are legit

imate and in accordance with accepted engineering practice

Lhe decision concluded that the CECo leak rate tests were

valid and in conformity with applicable regulations and de-

nied the rehef requested by

. ~ ‘ fr

The Director’s decision was file

Secretary of the NRC and. upon expiration of the time

C-oOmlunIssion review, becaliit nal agency af tion on March

LO, 1987

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B- 10-

the terms and provisions of this chapter or of any regulation

of the Commission.” 42 U.S.C. §2236(a).

The regulations promulgated by the NRC provide that

in determining whether a license will be issued to an ap-

plicant the NRC wall be guided by the consideration “that

the health and safety of the public will not be endagered”

10 C_F.R. §50.40(c). The regulations establish minimum re-

quirements for the principal design criteria for water-cooled

nuclear power power plants including that “the reactor con-

taiiment structure, including access openings, penetrations,

and containment heat removal system shall be designed so

that the containment structure and its internal compart-

ments can accomodate, wothout exceeding the design leak-

age rate and with sufficient niargin, the calculated pres-

sure and temperature conditions resulting from any loss-

of-codlant accident.” 10 C.F.R. &50.54(a), Part 50. App. A

Criterion 50.

The way in which these tests are to be carried out 1s

prescribed in Appendix J to 10 © VAR, Part 50. [See also 10

C¥.R. 50.54(0).] The appendix first notes that “one of the

conditions of all operating licenses for water-cooled power

reactors ...ls that primary reactor containments shall meet

the containment leakage test requirements set forth in this

appeudix. ‘These test requirements provide for preopera-

tional and periodic verification by tests of the leak--tight in-

tegrity of the primary reactor contamiment... The appendix

defines the primary reactor cou inment as “the structure or

vessel that encloses the COMpOneNLs of the reactor coolant

B-11-

pressure boundary ... and serves as an esseutially leak-tight

barrier against the uncontrolled release of radioactivity to

the environment.” (A Pp. J ILA) Tests of the containment

are divided into type A - “tests intended to measure the pri-

ary reactor containment overall integrated leakage rate”

(App. JILF); Type B- “tests Intended to detect local leaks

and to measure leakage across each pressure-coultaming or

leakage limiting boundary” for certain listed penetrations

(App. J ILG); and Type © - “tests Intendedto measure con-

lalumeut isolation valve leakage rates.”(App. J IE.). The

rests at issue in this Petition are the Type A tests only

The Appendix provides that a!! Type A tests shal] b.

conducted. im accordance with the provisions of the Ater-

ean National Standard N43.4-1972 Leakage Rate Testing

of Containment Strnetpres for Nuclear Reactors, March 16.

1972 (ANSI N45.4-1972) and that the test shall be verified

by a supplemental test which; shall “be conducted for suff;-

ent duration to establish accurately the change an loakeape

rate between the Type A and supplemental test.” (App. J

IIL. A.3.(a)(b))

In fact, most of the tests im Question were not performed

i accordance with the prescribed 197 standard but rather,

on an exemption basis, in accordance with) A NSI/ANS 56.8-

L981 “Containment Syste Leakage ‘Lesting Requiretmets.”

No regulations endorsing ANSI/ANS 56.8-1981 have ever

* Dr. Reytblatt has been a persistent critic of the Jas]

standard and has actively opposed its endorsement by the

B- 12-

been put into effect. This standard is now being replaced by

an amended version, ANSI/ANS 56.8-1987.

In very simple terms, a ‘Type A test of a containment in-

volves pressurising the containment, using pumps, to a pres-

sure (Pa) which is “the calculated peuk containment internal

pressure related to the design basis accident and specified in

the technical specification ur associated bases.” (10 C.F.R.

Part 50, App. JILI.). Then for the duration of the test,

one pressure gauge mneasures the pressure decay and numer-

ous selisors monitor temperatures at various locations inside

the containment. The adequacy of instrumentation must

be established and certified through the calibration proce-

dure prior to the beginning of the test. The obtained sensor

readings, along with certain assumed parameters (so-called

“weighting coefficients”) are used to obtain the “caleulated”

leak rate. The veracity of these assumptions is supposed to

be verified by the supplemental (“verification”) test.

The verification test must iminediately follow the main

test. It compares a controlled change of the gas mass (ef-

fected by releasing or introducing a kuown inass of gas from

or into the containment) with the chauge of mass calculated

from data provided by the instruments, using the same in-

Struments and assumptions as in the main test. A failing

verification test indicates that either the test assuIn pions

were not correct or the instruments were at fault. or both.*

NRC

* A successful verification test does not necessarily inean

B-13-

ARGUMENT

l. THIS COURT HAS JURISDICTION

LO REVIEW THE DENIAL

BY ‘THE NUCLEAR REGULATORY

COMMISSION OF THF, 2.206 PETITION

The NRC has argued that this court does not have ju-

risdiction to review the NRC’s denial of the 2.206 Petition

on the ground that this decision was one “committed to

agency discretion by law” and thus unreviewable pursuant to

5 U.S.C. §701(a)(b). In support of this argument the NRC

cites Heckler v. Chaney, 470 U.S. 821 (1985).

Chanect involved the refusal of the Pood and Drug Ad-

ministration (FDA) to take investigative or enforcement ac-

tion in response to a petition by prisoners under sentence of

death that the use of certain drugs to execute them would be

a violation of the Food, Drug and Cosmetic Act (FDCA).

The FDA commissioner responded to the prisoners’ peti-

tion by questioning whether the FDA had jurisdiction in the

area, noting the substantial interference with state crimi-

hal justice system that would be caus dif the PDA became

involved, and concluding that even if there were juriscic-

tion still the FDA would exercise its discretion to decline to

pursue enforcement. The prisoners sued, and the Supreme

that the test assumptions were correct. See Reythlatt, 1983

report, pp. 14-15 (App. pp.147-13438)

B-14-

Court granted certiorari “to review the implausible result

that the FDA 1s required to exercise its enforcement power

to ensure that states only use drugs that are 'safe and eftec-

tive’ for human execution.” 470 U.S. 827. Chaney therefore

involved a situation where the agency made no factual inves-

tigation of the claims, made no determination whether the

claims were in fact a violation of the FDCA, and concluded

that, even if the Petitioners’ allegations were true, it would

decline to take enforcement action.

The fact situation here is totally different. The NRC

has, at various times, investigated tle claims made in this

Petition and has. after a fashion, initiated enforcement ac-

tion, though not formal action pursuant to 10 CFR 2.202

In DD-84-6 the Commissioner noted that NRC stafi had re-

viewed documents referenced in the petition, was aware of

Dr. Reytblatt’s work on leak testing inethodology mentioned

ta the Petition, and stated that “(jhe NRC las pursued the

ILRT matter and the recerds involved and assured itself that

the Coimmission’s regulations are being met.” (App. p.114)

As aresult of the petition in DD-85-2, the NRC undertook

regional inspection activities which. together with the afh-

davit of Dr. Reythblatt, did identify deficiences in the 1981

and 1983 Zion tests. and led to the temporary shut down

of that facility. (App. p.lt-108) li DD-d5-10 the NRC ic-

viewed the circumstances of the Jly. 1984 Zion leakage and

verification tests and concluded that the tests were accept-

able. Subsequently, the NRC convened a public meeting on

October 17, 1965 (a transcript of this ineeting appears in

B-15-

the record) for the purpose of “engag(ing) Z. Reytblatt in

a constructive technical review of his comments...” (App.,

p.d4). In the process of preparation of 87-02 the NRC for-

warded the Pettition to CECo for its comments (Appendix

pp.44), reviewed the tests referred to by Dr. Reytblatt in

the Petition, and concluded that the Petitioner’s claims had

no safety or teclinical merit.

Therefore, this is not a case where au agency lias de-

clined enforcement action because of au assessinent “whether

agency resources are best speut on this violation or another

whether the agency is likely to succeed if it acts, whether

the agency has enough resources to undertake the action at

all.” Heckler v. Chaney, 470 U.S. 821, 831. Rather this is a

case where the agency has investigated and has determined

that, based upon its view of the facts, no violation has been

shown. This Petition challenges this decision as arbitrary

and capricious. This is not a case, however, where, if the

violation were established, the NRC would decline to take

enforcement action (see DD 85-2).

In addition to the vast differences in the underlying facts

between Chaney and this Petition, the cases are also distin-

guishable legally.

The Atomic Energy Act of 1954, 42 U.S.C. §2011] et seq.,

established the Atomic Energy Commission, uow the NIC,

with power to license and regulate the comunercial utiliza-

tion of nuclear energy, and with the duty to ensure adequate

protection for the health and safety of the public. 42 U.S.C

B-16-

§2232(a), §2133(b)(d). The NRC has determined that oper-

ation of a commercial reactor without an effective contain-

inent system would breach that duty to ensure the public’s

health and safety, and has, therefore. made it mandatory

for all such reactors to be surrounded by a containment sys-

tem, adequacy of which must be regularly tested. 10 CFR

§50.34(4); 10 CFR Part 50, App. A, Criterion 50; 10 CFR

Part 50, App. J. The regulations provide that the NRC may

revoke a license for any reason that would warrant a refusal

to grant a license on an original application (10 CFR 50.100),

and that in initially deciding to grant. a license, the NIC will

consider that the health and safety of the public will not be

endangered. [10 CFR §50.40(a)]

There is, therefore, a comprehensive statutory scheme

which mandates that the health and safety of the public be

protected through provision of a leak-tight containment sys-

tem. An effective containment systein is not some idealistic

exhortation to be achieved only in the abstract but a realistic

achievable protection for incuibers of the public.

The majority opinion im Chancy held that an agency's

decision not to take enforcement action is presuinptively un-

reviewable by the courts, but that this presumption may be

rebutted where the substantive statute has provided guide-

lines for the agency to follow in exercising its enforcement

powers, such as where Congress has set substantive prior-

ities, or has otherwise circumscribed au agency's power to

discriminate among Issues or cases it will pursue. Chaney,

supra, at 833. The Chaney court was concerned that mean-

3-17-

ingful review of an agency decision ts impossible where there

are no manageable standards for judging how and when an

agency should exercise its discretion. Chaney, at 830.

In the Atomic Energy Act Congress clearly put a pre-

Miuin Upon safety and mandated that nuclear power gen-

eration be undertaken with full regard for the health and

safety of the public. ‘he NRC has translated this concern

into practical rules, which, armong other things, mandate

that there must be effective containment systems. There

is, therefore, no problem in this case in determining what

law should apply. The NRC’s decision can be evaluated on

the merits of its determination that the technical concerns

expressed in the Petition are unfounded. If the agency's

decision approving the testing procedures is not arbitrary

and capricious nor an abuse of discretion then the Petitioner

loses. If the Petitioner can demonstrate that the defects in

the procedure are real and substantial and that therefore the

adequacy of certain containment systems has not been sue-

cessfully demonstrated, then the agency's decision should be

reversed.

Since Chaney many courts have determined that an

agency's failure to act cau be judicially reviewed under an

abuse of discretion standard.

In Cardoza v. Commodity Futures Trading Commis-

ston, 768 F.2d 1574 (7th Cir. 1985), this Court decided that

a decision of CFTC to exercise its discretion not to review a

decision of the Chicago Board of Trade was reviewable by the

13-138.

courts. ‘The Court found the case to be similar to Chaney

Mi that “asin Chaney. Congress granted an agency author-

ity to exercise discretion in a decision making capacity,” 765

f,2d 1548. but noted that the presumption of unreviewalil-

Ly could be “rebutted or overcome by a showing that “there

1s law to apply’ ” or that Congress “ las indicated an in-

tent to circumscribe agency enforcernent discretion, and has

provided meaningful standards for defining the limits of that

discretion,” (quoting Chaney, 470 U.S. at 534). The court

then “read Chaney solely as reaffirming the recognized po-

sition that (8 U.S.C.) §701(a)(2) apples in certain circum-

stances where courts are unqualified to decide whether an

agency has abused its discretion.” 768 F.2d 1549. and held

that “the Court is qualified to review the agency action in

question aud such ChPC denials of review are not unsuitable

for judicial scrutiny.” 768 F.2d 1549.

Inanother post) Chaneycase, Anacoso-Sanchez v. INS.

779 F.2d 1260 (7th Cir. 1985), the Court again analyzed

Chaney as holding that when there is no law to apply, “ju-

dicial review is exceedingly constricted.” 779 F.2d 1265. In

Anacoso the court held that judicial review of a refusal by

INS to reopen a case and grant adjustment of status was

impractical since, “because there are no rules of law here,

courts cannot review ’the merits’ of the decisions. ‘There ts

no standard by which a court may conclude that a failure to

be lenient was error.” 779 F.2c 1265. The court held, how-

ever, that review would be available if the agency “acts for a

forbidden reason or for a reason that a court can determine

}3-19-

)

is erroneous.” 779 F.2d 1265 (emphasis in original).

This Court has also held that Chaney does not prevent

miquiry mjlo whether a refusal to investigate was Uuureason-

able. In Northern Indtana Public Service Co. v. FERC, 782

F.2d 730 (7th Cir. 1986) this Court sustained a challenge

to the failure of FERC tu investigate possible price manip-

ulation by gas companies, citing Cerro Wire v. FERC, 677

I.2d 124, 128 (D.C. Cir. 1982) for the proposition that a

refusal to investigate may only be reversed if it constitutes

an abuse of discretion, and holding that the FERC “cannot

essentially abandon its regulatory function... under the guise

of unreviewable ageney inaction. 782 F.2d at 745.

In a number of other cases after Chaney courts have

considered challenges to an agency failure to take proper en-

forcernent action. in Meterochemical Corporation v. FDA,

644 F.Supp. 271 (E.D. N.Y. 1986) the petition brought suit

to compel the FDA to take action against distributors of

unauthorized animal feed additives. The court distinguished

Chaney, noting that in Heterochemieal the agency had inves-

tigated a possible violation of the FDCA and had evaluated

those posible violations over a seven year period. ‘The court

pointed out that “where Chaney dealt with an initial de-

cision not to commit agency resources. here, the FDA did

cominit agency resources, carrying out an investigation and

publishing its findings” (644 F.Supp. at 274), and suggested

that this made it appropriate to review the F-DA‘s assertion

that no violation existed to determine whether that assertion

was arbitrary and capricious.

B-20-

In Sierra Club v. Block, 615 F.Supp. 44 (D. Col. 1985),

the Court refused to dismiss a petition which sought to force

the Departiusent of Agriculture to claim federal reserved wa-

ter rights in wilderness areas. he court noted that the

Chaney court acknowledged that “Congress did not set agen-

cies free to disregard legislative direction in the statutory

sceme that the agency administers,” Chaney at 821, and held

that the Wilderness Act, 16 U.S.C. §1131, which directed

that wilderness arcas sliail be udiuiiistered so as to ensure

their pretection and preservation, provided sufficient direc-

tion that the court could judge the ments of the agency »

failure to act.

In the instant Petition it is clear that the Congress, and

the agency *, have mandated that the nuclear power plants

shall be operated safely and shall have effective containment

structures and that there is adequate law for the court to

apply.

It should also be noted that the courts have, for a num-

ber of years, reviewed NRC failures to act and have en-

countered no great obstacles in finding and applying law

See, e.g., Seacost Antspollution League of New Hampshire v.

N.R.C., 690 F.2d 1025 (D.C. Cir 1982) (reviewing an or-

* The agency's regulations may provide sufficient law for

the court to apply. See, Service v. Dulles, 354 U.S. 363

(1957); Robbins v. Reagan, 780 F.2d 37 (D.C. Cir. 1985);

Cardoza v. CFTC, supra, at 1550; Heterochemical v. FDA,

supra, at 274.

B-21-

der of the NRC refusing to order a hearing an revocation of

construction permits); Natured Resources Defense Councal v.

NRC, 606 P.2d 1261 (D.C. Cir. 1979) (reviewing a decision

of the NRC that it did not have licensing jurisdiction over

certain nuclear waste storage tanks); Nader v. NRC, 3513

Po2d 1045 (D.C. Cir. 1975) (Denial of a shutdown petition):

County of Rockland v. NRC, 709 F.2d 766 (2nd Cir. 1983),

cert, demed 104 5.Ct. 485 (review of refusal of NRC to grant

2.206 petition); Rockford League of Women Voters v. NRC.

679 F.2d 1218 (7th Cir. 1982) (review of NRC refusal to in-

stitute construction permit revocation proceedings); Illinois

v. NRC, 591 F.2d 12 (7th Cir. 1979); Porter County Chapt.

of Izaak Walton League of America, Inc v. NRC. 600 F.2d

1363 (D.C. Cir. 1979).

Il. THE NUCLEAR REGULATORY COMMISSION

DECISION THAT THE ZION WEIGHTING

COLLPFICIENTS DID NOT AFFECT

TH: RESULT OF THE LEAK RATE TESTS

WAS ARBITRARY AND CAPRICIOUS.

The Petition complained that certain assuinptions sub-

stantially used during the Zion leak rate tests of 1982. 19383

aud specifically 1954 were obviously incorrect. For example,

temperature sensors that were irregularly placed in the Zion

contaimment subvolume 7 were assigued the equal weighting

coefficients

If temperature sensors which in fact represented unequal

B3-22?-

volumes of gas are considered to represent equa] volumes,

the resultant average temperature of the subvolume wall be

jucorrect. Since the gas mass is calculated from subvolume

temperatures and pressure, if the weighting coefficients are

wrong, then the mass will be wrong also. Thus the leak rate

rate will not be calenlated correctly.

The NRC in its decision did not deny that the Zion coef-

ficients were incorrect but claimed that the wrong weight co-

efficients would not substantially affect the test results when

the testing conditions are “stabilized.” This decisio was ar-

bitrary and capricious since the materials submitted to the

NRC conclusively established that the wrong weight coeffi-

cients could substantially change the “calculated” leak rate

to allow misrepresentation of a leaking containment system

as tight.

In the report “Critique of Containment System Leakage

Rate ‘Test Requirements” authored by Dr. Reytblatt and

submitted to the NRC in 1988 by the Oak Ridge Labora-

tory, at pages 13-14, (App. pp. 136-187) an example shows

that a leak rate 44 times higher than allowable at Zion could

be easily misrepresented as an allowable leak rate by chang-

ing slightly the weighting coefficients. In this example the

temperature variations were ligher than usually encountered

but were consistent with the range observed at D.C. Cook

plant in Michigan and were two times higher than those ob-

served at LaSalle 195% test *. The leak rate was calculated

* If LaSalle data were used then a leak rate twenty times

(3-23.

twice with different weight coefficients assigned to each of the

three sensors in each calulation *. In one instance all sensors

were assigned equal weighting coefficients (1/3). In another,

two sensors were given 1/4 and the third 1/2 weighting cof-

ficients. The resulting leak rates were .06 Zf/day (where al]

sensors were assigned equal weighting) and 4.44 %/day in the

second instance. If the second set of weighting coefficients

were correct, areal possibility, then using the first, incorrect,

set would have resulted in a conclusion that the containment

was leak proof whereas in fact it was substantially leaking.

Subsequently, at a public meeting held on October 17.

1985, Pr. Reytblatt presented another example to the NRC,

this one based on real weight coefficients and real temper-

ature variations observed at LaSalle in a 1982 test. The

results show, in attachment figure 2.7 of Reythlatt, four sen-

sors with the CECo assigned weighting coefficients of 0.105

whereas the realistic coefficients were about 0 O07, 0 14, 0.09,

and O12 4* In the abseee of complete LaSalle data the

selected data supplied by NRC were used with respect to

the temperature changes. The maximum snbvolume aver-

higher than the allowable Zion rate would have been Inisrep-

resented as satisfactory.

* The number of sensors might be as well as thirty located

in the three subvolumes by groups of ten, with the subvolurne

temperatures as stated in the report.

** These realistic coefficients were estimated using the the-

ory of numerical evaluation of multiple integrals and were

not contested by the NRC.

B-24-

age temperature change was in excess of 15° but for ex-

ample only 10° was selected) The question of a possibility

of temperatures moving im different directions in the same

subvolame was initially diputed at the meeting, however, a

consensus was that such changes might occur.* With thie

assumption that such changes occurred only at. two loca-

tious, it was established by calculations that the leak rate

wonld have been underestimated using CIZCo assumptions

by 14 %/day, which is more than the total allowable Zion

leak rate. Obviously, incorrect weighting coefficients of other

sensors in other subvolumes could have either increased or

decreased the error. ‘This explains why some of the NRC

presented examples showed error in leak rate which was not

critical.**

While not denying that the Ziomw weighting coefficients

were incorrect, the NIC asserted that due to stabilized con-

ditions the effect of this should not be significant. It should

be noted that the examples presented at the meeting were

under stablized conditions as defined in ANSI/ANS 56.8-

sl. It was shown in detail at the meeting (Mtg.. pp. 99-

* For example. the sensor No.2 (which was cooling) might

have been located near the reactor (cooling “hotspot” ), whereas

the sensor No.1 (which became hotter) might have been Jo-

cated near the containment wall, exposed to intense solar

radiation

** In response to FOIA requests the NRC denied ever pos-

sessing the data which they claimed to have used for their

examples. See letter with NRC 7/11/36

3-25-

100) that “stabilizing” may be totally irrelevant to the test

results, may bar a good containment from testing, or may

help to musrepresent a leaking contammment as a good onc.

‘hese conelusions were not responded to by the NIC at the

luiceling or at any other time.

In DD -87-02 the Director merely referred to his prior

decisions In attempting to auswer the claims of the Peti-

tion with resoect to incorrect weighting coefficients. In DD-

05-10 the Director stated only that “a properly conducted

leak rate test would not contain the types of deficiencies al-

leged by the Petitioner such as the use of ujustified weighting

coefficients.”(App. p.83) DD-85-02 contains no discussion

whatsoever of incorrect weighting coefficients. DD-84-06

states ouly that “a properly conducted test would not likely

be flawed by the types of deficiences alleged in the Petition

such as ....the use of unjustified weighting coefficients.” (App.

p21)

[tis clear, therefore that the use of proper weighting co-

efficients is crucial to leak rate testing aud the problems iden-

tified and presented in this and prior Petitions have never

been adequately addressed or respouded to by the NRC. It

Is Nuportant that the NRC issue an Order To Show Cause

upon CECo requiring that it dernonstrate the acceptability

of the coefficients used in its leak rate fests.

[3-203

Hl. ‘THE DECISION BY ‘THE NUCLEAR

REGULATORY COMMISSION NOT TO ISSUE

AN ORDER TO SHOW CAUSE UPON

COMMONWEALTIT EDISON COMPANY TO

DEMONSTRATE ACCEPTABILITY OF ITS

COMPUTER PROGRAMS WAS

ARBITRARY AND CAPRICIOUS.

The petition complained that certain options in com-

puter programs uscd to calculate the containment leak rate

allow for deletion/or alteration of the data. Specifically,

ERASE, WIPE aud similar options are capable of deleting

the data recorded from certain sensors and replacing actual

readings by something else. This claim was supported by

a letter from Professor Kenevan, and detrimental effects of

such actions demonstrated in Dr. Reytblatt’s affidavit.

A typical option of this kind may climmate, for the pur-

pose of calculation, any given data set, at the whim of the

operator. Typically, the next numbered set then replaces

the erased data set (e.G. the fifth set will replace the fourth.

etc). In some instances, the numbers assigned to the sensors

do not correspond to their consecutive physical location, or

by a combination of data from other locations, which would

mean substitution of the real data by garbage.

Such options have in fact been used during the 1983

Ziontest, 1982 LaSalle test (Mtg. pp.44-45), and very prob-

ably in other tests also. The NRC in its decision acknowl-

B-27-

edged the existence of such or similar options. However,

without any proof, the NRC asserted that the procedure im-

plemented in such options is acceptable. The only record

identified by the NRC as being used to arrive at this deci-

sion, according to POIA respouse, is the CECo document

of October 27, 1986 (App. p. 156) which will be discussed

below.

The result of application of these options is the assign-

rent of a zero weight coefficient to the readings from the

deleted sensor, and a substantial increase in a weighting co-

eflicient of the seusor whose readings are replacingdeleted

sensor. As shown above, changes in the weighting coeffi-

cient of much smaller magnitude may cause drastic changes

in calculated leak rate rate. Obviously, such large changes

as these options actually perform may be detrimental to the

accuracy of leak rate testing.

The CECo document, at point 6. acknowledges that

“the change in caleulations is equivalent to a change in sub-

volume configuration.” that is. to changes in weighting cocf-

ficients. The document asserts the right of tbe utility com-

pany to arbitrarily change the weighting coefficients: “Since

that configuration was set by the utility in the first place,

there is no reason why it cannot be changed by the utility, so

long as a legitimate reason for doing so exists.” The utility

refers to no rule or law that would list possible “legitimate

reasons.” Such “legitunate” reasons simply do not exist.

The atility is correct in stating that the current reg-

ulations set forth no limit on weighting coefficients. The

B-228.

utility was allowed to use the ANSI/ANS 56.8-81 standard,

on an exemption basis. for its testing. Section 4.4.2.1. of the

standard requires that “sufficient seusors shall be installed

so that no one sensor has a volume fraction greater thau

ten per cent during the test.” Renumbering, the deletion

of certain sensors and their replacement by others, may In-

crease beyoud 10 per ceut the voluine fraction assigned to

one sensor, thereby violating this section.

The NRC statement that such options may have legiti-

mate uses is indisputable. For example, one use would be to

assist the parametric studies using archived data. Ilowever,

as shown above use of such options in actual] testing may

underestimate the real leak rate by a factor of ten or more.

What is legitimate in one application may not be legit-

inate in another. The petition requested that these options

be eliminated from leak rate calculations during the testing,

not that they be totally banned in any circumstances. There

is no objection to the use of these options in other than the

specified application. It is undisputed that the CICo com-

puter programs allow alteration of the data, disguised as

alteration of subvolume configurations, for the purpose of

leak rate calculations. [t has been demonstrated that such

alterations may have a detrimental effect on the leak rate

calculation. No applicable regulation allows such manipula-

tions. The NRC should have ordered CECo to show cause

why it had the right to use a computer program which al-

lowed it to arbitrarily manipulate subvolume configurations

during the test.

B-29-

IV. THE NRC DECISION THAT THE ZION, 1984,

TEST COMPLIED WITIL THE REGULATIONS

WAS ARBITRARY AND CAPRICIOUS

The petition complained that the main normal duration

integrated leak rate test at the Zion, Unit 1, containment

system of July, 1984, was immediately followed by a failed

verification test, and therefore was not a valid test. ‘The

Petition further complained that subsequent main test which

was immediately followed by a successful verification test.

was of a short duration, and therefore, was not valid either.

No regulation allows combining two invalid tests into

one valid test. Petition requested that the NRC issue an

Order to Show Cause upon CECo to demonstrate why two

invalid tests are equivalent to one valid test.

The NRC in its decision declined to discuss the matter

referring to its earlier decision DD-85-10. In DD~85-10 the

NRC agreed with the facts as stated above and provided two

arguments: 1) that it suspected that the failure of the ver-

ication test following the normal duration test was caused

by a deficiency in a supplementary lustrumentation, aud not

because the assumptions of the main test were invalid: and

2) that the short duration of the second test was allowed

because the test intermediate results were similar to those

obtained in the first main test (of normal duration).

In his letter to the Commisioner of July 31, 1985 Dr

Reytblatt pointed out that the Commission had presented

J3-30-

no proof of its first assertion. Moreover, one of the duties of

both the utility and the NRC should have been performance

of the second verification test with the sarne parameters as

had been selected for the first (failed) verification. However,

CECo-NRC conducted the second (passing) verification test

using totally different parameters.

Thus their attempt to explain the failure of the verifi-

cation test by reasons other than the generally recognized

reasons of wrong weighting coefficients, is unsuccessful.

In view of so-called “diurnal effects” the NRC con-

tention that the illegal short duration main test would pro-

duce, if allowed to continue, essentially the same results, is

pure speculation. “Diurnal” effects have been clearly exhib-

ited in numerous leak rate tests and are caused, primarily, bv

the wrong assumptions on weighting coefficients (which was,

precisely, the case with the Zion tests). Because of the am-

bient temperature daily periodic fluctuations, the (wrongly)

“calculated” gas mass within the containment periodically

‘“Gnereases” aud “decreases.” Of course, nothing of the sort

occures with the real mass, but by manipulating the test du-

ration and timing, the “calculated” leak rate can be made

substantially lower than the actual leak rate.

It was therefore unreasonable for the NRC to combine

two invalid tests and and proclaim the acceptability of the

containment systein.

B-31-

CONCLUSION

The NRC decision in this case was flawed froin its initial

misinterpretation of the petition to its eventual refusal to

initiate enforcement proceeditigs. This refusal was arbitrary

and capricious and this matter should be remanded to the

NRC with instructions to issue a Rule to Show Cause upon

CECo, as requested in the Petition.

Respectfully submitted,

JOHN L. S'TAINTHORP

343 S. Dearborn St.

Suite 1607

Chicago, Illinois 60604

312-663-5046

Attorney for Petitioners

C-1-

UNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION

OFFICE OF NUCEAR REACTOR REGULATION

Harold R. Denton, Director

In the Matter of

Docket Nos. 50-295

COMMONWEALTH EDISON 50-373

COMPANY

(Zion Nuclear Unit 1) STN 50-454

(Byron Nuclear Unit 1)

(LaSalle Nuclear Unit 1) (10CFR §2.206)

AND ALL LIGHT-WATER

REACTORS

DIRECTOR'S DECISION UNDER 10 CFR §2.206

INTRODUCTION

An emergency relief Petition dated August 13, 1986

sponsored by a number of individuals (petitioners) was sub-

mitted to my office pursuant to 10 CFR §2.206. The Peti-

tioners sought suspension of operating licenses for the Zion

Nuclear Unit 1, LaSalle Nuclear Unit 1, and Byron Nu-

clear Unit 1, facilities of the Commonwealth Edison Com-

pany (CECO) and other similarly situated facilities due to

alleged inadequacies in containment integrated leak rate test

(CILRT) practicies. It was alleged that the testing was at

C-2.

variance with the Commission’s requirements for a CILRT,

specifically 10 CFR Part 50, Appendix J. It was alleged that

there were deficiencies in computer programs used during

‘the testing and that certain data were improperly replaced

by other data, allegedly in violation of the Commission’s

requirements.

I] acknowledged receipt of the Petition in my letter to

certain Petitioners dated October 22, 1986. In that letter,

I also addressed the Petitioners’ request for emergency ac-

tion. I declined to take any immediate action with respect to

the facilities referenced in the Petition based upon the close

monitoring of CILRT’s at commercial nuclear facilities by

NRC inspectors and the confirmatory calculations that are

routinely performed by the NRC with respect to these tests

With respect to the facilities referenced in the Petition, I

noted that NRC inspection reports had been issued describ-

ing the CILRT’s which have been performed and. based upon

this NRC surveillance of the testing, I saw no need to take

any emergency action as requested in the Petition. I noted

that the NRC staff would continue to review the Petition

and that I would issue a formal decision with regard to it in

the reasonably near future. My decision follows.

DISCUSSION

The Petition contains a number of issues with respect

to containment integrated leak rate testing. The issue may

be broadly placed into three categories: (1) allegations re-

garding the general methodology associated with CILRT’s.

C-3-

(2) allegations concerning the validity of certain CILRT’s

performed at the Zion Nuclear Power Station. Unit 1. in

1982 and 1984, and (3) allegations related to certain com-

puter programs emploved by CECO in conducting CILRT’s

for the Zion, LaSalle and Byron Units.

I have had the opportunity to examine and evaluate al-

legations in the first two categories in responding to previous

Petitions pursuant to 10 C.F.R. §2.206.?

In DD-84-6. supra. 1 addressed allegations that there

were serious errors defects and loopholes in the industry

standards which provide detailed measures for performing

the CILRT equired by 10 C.F.R. Part 50, Appendix J. ?

1 Previous Decisions which I have issued regarding the

adequacy of containment integrated leak rate testing in gen-

eral and, more specifically, with regard to certain facilities of

Commonwealth Edison Company include: Commonwealth

Edison Company (LaSalle County Station, Unit 1 & 2) and

All Light-Water Reactors. DD-84-6, 19 NRC 891 (1984):

CECO (Zion Nuclear Station, Unit 1), DD-85-2, 21 NRC

270 (1985); CECO (Zion Nuclear Station, Unit 1) and All

Light-Water Reactors, DD-85-10, 22 NRC 143 (1985)

2 The industry standards are specifically the American

Nuclear Society (ANS) Standard N45.4-1972, “Leakage Rate

Testing Of Containment Structures For Nuclear Reactors”

and the American National Standards Institute (ANSI)/ANS

Standard 56.8-81, “Containment System Leakage Testing

Requirements.»

The specific alleged defects which ] addressed in that Deci-

sion included:

(1) the equation used to calculate containment air

at any given point is wrong:

2) the final calculated leakage rate may be “fudged”

g &

in a variety of ways to presumably yield an invalid

leak rate; and

(3) there are “loose” requirements for the permanent

archiving of raw test data and other data essential

for test evaluation

In concluding in that Decision that these so-called de-

fects did not call into question the adequacy of the Com-

mission’s regulations with regard to CILRT'’s. I considered

the claims of Zinovy Reytblatt which were offered in sup-

port of the Petitions discussed in that Decision I note this

fact since Z. Reytblatt is a co-sponsor of the same allega-

tions put forth in this latest Petition pursuant [to] 10 CFR

§2.206. See Exhibit A to the Reytblatt affidavit attached

to instant Petition. In sum, after considering the allega-

tions raised in the earlier Petitions including the claims of

Z. Reytblatt, ] concluded that current regulayion regarding

CILRT’s of commercial nuclear facilities provided reasonable

assurance that the public health and safety was adequately

protected. As the claims in the current Petition with respect

to containment integrated leak rate testing methodology are

essentially repetitive of those I already have considered, I do

not intend to discuss them further.

eee

C-5-

With respect to the second category of allegations, specif:

ically those dealing with the adequacy of a CILRT performed

at the Zion Nuclear facility, I have considered the adequacy

of containment leak rate testing for the Zion facility in two

Director’s Decisions, specifically DD-85-2 and DD-85-10,

supra. In DD-85-2, I noted that Regional inspection activ-

ities undertaken as a result of the Petitioner's allegations in

this matter, which were also supported by an affidavit of Z.

Reytblatt, identified deficiences in the CILRT performed for

the Zion nuclear facility in 1981 and 1983. As a cosequence.

CECO shut down the Zion facility and performed a valid

CILRT, which were witnessed by Region III inspectors.

On March 6, 1985, Z. Reytblatt himself submitted a

Petition to my office pursuant to 10 C.F.R. §2.206 regard-

ing CILRT’s. New issues raised in that Petition concerned

alleged inadequacies in certain software used by licensees to

conduct CILRT’s. Reytblatt suggested that such software

might have been used with respect to Zion Unit 1 leak rate

testing. The Petitioner also made allegations concerning the

validity of the verification test performed for the July 1984

Zion CILRT.

In DD-85-10, the NRC determined that the software

identified by Petitioner had never been used for the CILRT

for Zion. With respect to the Petitioner's concerns regard-

ing the July 1984 Zion Unit 1 CILRT, the staff reviewed the

Petitioner's concerns and concluded that, contrary to the as-

sertions of the Petitioner, an appropriate test was conducted

With respect to the Petitioner’s claims that an invalid ver-

C6.

ification test was conducted, NRC inspectors reviewed the

circumstances of the verification test and concluded that the

test did confirm the acceptability of the CILRT performed

for Zion Unit 1. Thus. concerns raised in this most recent

Petition with respect to the methodology employed for the

Zion CILRT have already received NRC consideration and J]

do not intend to discuss them further in this decision.*

The remaining allegations in the instant Petition specif-

ical] allege that there were deficiencies in the computer pro-

grams used during integrated leak rate testing at CECO nu-

° The Petition also makes reference to a public meeting

held on October 17. 1985 at the NRC's Region III Offices

The October 17, 1985, meeting was held in an attempt to

engage Z. Reytblatt in a constructive technical review of his

comments as he had requested. The Petition and specifically

the affidavit of Revtblatt and its Exhibit D appear to suggest

that the NRC represented at this meeting that a technical

review would be conducted and that review never occurred

Such a suggestion is incorrect. At that meeting. as Exhibit

D correctly reflects, the NRC staff represented that it would

study the entire record of the meeting and would correspond

with Z. Reytblatt. This in fact occurred. On November 18,

Mr. Robert Bernaro of the NRC staffcorresponded with Z

Reytblatt and provided him with the staff's assessment of

the October 17, 1985 meeting. To the extent the Petition

asserts that the NRC staff did not review the matters raised

at the October 17, 1985 meeting and did not so inform Z.

Reytblatt. those assertions are incorrect.

———

ef.

clear power plants in that certaintest data were improperly

replaced by other data. An affidavit from Z. Reytblatt (As-

sociate Professor at the Illinois Institute of Technology) sub-

mitted with the Petition in support of the allegations pur-

ports to show that subroutines of CECO computer programs

can replace actual] test data with other data. and that such

manipulations have taken place in violation of the Commis-

sion’s CILRT requirements, as confirmed by actual computer

output. A letter from J. Kenevan (Associate Professor at the

Illinois Institute of Technology) is also submitted in support

of the Petition.

The letter from J. Kenevan. dated July 7, 1986. ad-

dresses the data storage properties of a computer code which

apparently was used by CECO in the conduct of the CILRT

at the Byron Station. The letter observes that two program

options, namely EDIT DATA’ and DELETE DATA FILE’.

when invoked, result in modification of the data saved, and

that with regard to the latter option, the program leaves no

record that data has been deleted. Although J. Kenevan's

brief statement is probably a factual assessment of the pro-

gram capability. it also expresses what one would intuitively

expect a data gathering computer program to offer in the

way of options Nevertheless. in the context of the Peti-

tion, as discussed more fully below. the implication is that

the program options are provided for the express purpose

of malicious falsification of the test record. On the contrary,

the subject options are a necessary part of the program; they

literally permit the compilation of bona fide test data. Thus,

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the Kenevan letter does not substantiate the allegations in

the Petition.

The affidavit of Z.Reytblatt alleges that the CECO com-

puter programs contain options (specifically an option called

"ERASE or WIPE’) to permit test data to be manipulated. -

and attempts to show with the aid of test data that inap-

propriate data manipulation in fact occurred. The affidavit

includes two Exhibits (B and C) which contain background

information to support statements made in the body of the

affidavit. ;

The affidavit claims, in part, that the CECO computer

programs contain an option that permits the discarding of

data at the whim of the testing group, leaves no record that

data was deleted and places no limitations on the use of

the option. Exhibit B of the affidavit is referenced to sup-

port this claim. Exhibit B consits of excerpted pages from a

CECO program, which identifies the existence of an option

(called WIPE’) that supposedly permits such data manip-

ulation. 4

* The Petitioners also used the ’WIPE’ option issue to

claim that the data for the 1983 Zion 1 CILRT was fraud-

ulently manipulated to obtain a negative leak rate A neg-

ative leak rate, per se, is not indicative of a fraudulently

conducted test, or a failed test. Rather, if the leak rate fluc-

tuates around the zero mark it is indicative of the exceptional

leak tightness of the containment, and reflects the statistical

nature of the test data. Even though the Zion 1 measured

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All of the CECO programs contain an option of the type

referred to above. 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 transmis-

sion to storage memory. The storage 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 the data was deleted. The

fact that data has 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 1s acquired at prescnbed. uni-

form intervals, missing data sets are easily detected. With

respect to Petitioner's claim that there are no limitations

on the use of this option, it should be noted that current

regulations are silent on the matter of the degree of data re-

jection. Thus, the Petitioners are incorrect when they claim

that current regulations do not allow discarding more than

5% of the test data. There are instances when data may be

properly discarded.° Exhibit B contains a comment state-

ment that addresses the provision in the code for dealing

leak rate was slightly negative, test acceptance is based on

the upper 95% confidence limit. which was a positive value.

This leak rate value was more than a factor of 10 lower than

the maximum allowable leak rate, which is itself set at 75%

of the design leak rate.

* The Reytblatt affidavit contains unclear allegations

concerning the rejection of CILRT data. The industry stan-

C-10-

with bad sensor values within a subvolume. Data rejection is

necessary when a malfunctioning sensor/channel 1s found. If,

for example, a temperature sensor in a subvolume fails and

is locked out, the remaining sensors are used to determine

the average dry bulb temperature of that subvolume. In the

extreme, if there are no temperature sensors remaining in a

subvolume that are functional, then the average temperature

of an adjoining subvolume is used. This will, then, necessi-

tate adjusting the calculational procedure programmed into

the code at the start of the test when all instrument chan-

nels were considered to be functioning properly to exclude

the data from channels found unreliable. Alternatively, the

test may be interrupted to reestablish an effective instru-

mentation systems. Whatever the course of action taken by

a licensee is, it must be justifiable to NRC inspectors.

The treatment of test in the manner described above is

based on accepted engineering practice. The fact that a con-

tainment subvolume weighting coefficient could exceed 0.1.

which the Petitioners claim is unacceptable, is not in viola-

dard (ANSI/ANS 56.8-1981), which Z. Reytblatt is appar-

ently referring to, provides guidance on the rejection of con-

tainment air mass data and raw data on the functionally

dependent parameters. and prescribes that the rejection of

data should be documented. Adherence to this standard is

not a regulatory requirement. Nevertheless, based on staff

review of the CILRT's referred to by Z. Reytblatt, the util-

ity’s testing practices relative to data rejection are in keeping

with this guidance.

C-11-

tion of the requirements of Appendix J to 10 C.F.R. Part 59,

or ANSI N45.4-1972. The regulations do not prescribe leak

testing practices to this level of detail. Rather, the regula-

tions emphasize the importance of stable containment test

conditions; with appropriate stabilization, test results are

relatively insensitive to wide variations in the magnitude of

the weight coefficients. This has been shown to be the case

in the October 17, 1985 meeting attended by Z. Reytblatt.

The Petitioners further charge that CECO computer

program can be manipulated to reinstate previously dis-

carded data. Exhibit C of the Reytblatt affidavit is pro-

vided to demonstrate that this has been done. Exhibit C

presents data sets from the July 1984 Zion 1 CILRT which

purportedly show that the readings from a “malfunctioning

sensor are sudden! declared valid. The Petitioners, however.

errantly assumed that these data sets constituted bona fide

data. On the contrary. they represent pre-test data obtained

during the preparatory stages of the test. In fact, as the data

clearly show, the contaimmieut Was ie" yet pressurized for the

test Furthemore. the data sets show a sensor being returned

to service in the data acquisition system which 1s compatible

with pre-test activitiea. Consequently, Exhibit C does not

support a claim that CILRT test data has been improperly

manipulated. ; ;

The Reytblatt affidavit makes numerous assertions of

impropriety which appear to evolve from an impecise under-

standing of the functions of certain options typically pro-

vided for data contro! in leak test computer codes, a mis-

C-12-

interpretation of the information appearing on printouts of

data sets and misunderstanding of regulatory requirements

and industry guidelines. In any event, while staff does not

review and approve computer codes used in the industry

for the leak rate testing of containment structures, as noted

above, the NRC inspectors carefully scrutinize all aspects of

such testing and obtain raw data for analysis to indepen-

dently assess the acceptability of leak rate test results. This

have been done for each of the facilities identified by the

Petitioners. NRC inspectors have observed CILRT’s con-

ducted by CECO and analyzed test data. and have found

no evidemce of wrongdoing on the part of CECO. The staff

concludes. therefore. that the Petitioner's claims have no

technical or safety merit.

With respect ts the technical assertions raised in this

Petition and which were discussed above. the allegations

raised in the Petition concerning the application of certain

CECO computer programs to containment leak rate testing

at CECO facilities are unsubstantiated. Rather, based upon

CILRT’s conducted by CECO for its LaSalle Zion and Byron

facilities. and the independent review and oversight of these

tests conducted by NRC inspectors, thes facilities conform to

the Commission’s requirements with respect to containment

leak rate testing.

CONCLUSION

Based upon the unsubstantia] nature of the technical as-

sertions made by the Petitioners, the relief requested by the

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Petitioners based on these assertions is denied. Specifically.

I decline to require any further CILRT’s at commercial! nu-

clear power reactor facilities, nor is it necessary to shut down

any facilities. or to undertake any studies and reviews such

as those requested by Petitioners. Finally, with respect to

the Petitioner’s request that records from CECO CILRT’s

including raw data and computer programs, be made public

documents, I have addressed this issue in previous Direc-

tors Decisions where the same relief had been requested ® I

decline such relief now for the same reasons as were stated

there.

For the reasons stated in this Decision, the Petitioner's

request for action pursuant to 10 CFR §2.206 has been de-

nied. As provided by 10 C.F.R. §2.206(c), a copy of this

Decision will be filed with the Secretary for the Commis-

sion s review.

Harold R.Denton, Director

Office of Nuclear Reactor Regulation

Dated at Bethesda, Maryland

this 10 day of February, 1987.

NRC 272-73.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.