# Petition for Writ of Certiorari — Citizens of Illinois v. United States Nuclear Regulatory Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1425%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 813 ## Text OU TUo Wests, si owe a 4 nnn MAY 4 4885 x8- 19 20 In The CLERK t ' \ \ | JOCEPH F SMANIOL, JR. an 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 8 Cnaelusini nee Appendix A. Decision of the Court of Appeals for the Seventh Circuit......:.c¢:s. 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 nt OF | FCERTIORARL ef 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 \ f . qs ? ? a1 , P Lie CV ice | y — ee ere + ‘ f 4 } i I ct FATID DD? ~ > > . es Ve LLLA ¢ , y ’ i. ")()* f (“+ ] | |) [ | } ao so J ’ ¢ | | ~ 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- a: 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. I 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 I] 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. il 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 a. 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. b 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). ee 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). d 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 VS 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. a [3 -¢ Jo \2 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 a 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- p 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 ) -_ ? evans , r a . o* shes ] etitionh Lor le View é) the Dire LOr Ss Dex ISIOTI 7, C ; a —— om oo J m out 20 + ~/ na = am - tS. > Cc ~ ome ~ onda ‘ —, Des 25 ‘~~ ~~ _— wend » 4 o —» - : ; Lnpzfer to 4- Ug Aciil a 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, C-8- 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 C-9- 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1425%3A1. Public record. Not legal advice.