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Arnow v. United States Nuclear Regulatory Commission

*fn* decided: February 3, 1989.

JACOB ARNOW, ECKHARD FESTAG, DAVID KRAFT, SUSAN MICHETTI, PATRICIA SCHAFFNER, AND ABE SKLAR, PETITIONERS,
v.
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.

Ripple, Manion, and Kanne, Circuit Judges.

Author: Ripple

RIPPLE, Circuit Judge.

The petitioners, various persons residing in Illinois,*fn1 seek review of a final order of the respondent, the Nuclear Regulatory Commission (NRC), denying their request for issuance of an order to show cause why certain nuclear power plants owned and operated by the intervening respondent, Commonwealth Edison Company (CECo), should not be suspended from operation and retested. The petitioners' primary concern is that the containments of those nuclear power plants might be inadequate to prevent the spread of radioactive material 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(a)(2) bars our review, we deny the petition for want of jurisdiction.

I

Background

A. Procedural Posture

The petitioners commenced this action by filing a petition with the NRC on August 30, 1986. The petition, captioned an "Emergency Relief Petition," alleged that deficient 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.*fn2

On October 22, 1986, Harold C. Denton, the Director of the NRR, acknowledged receipt of the petition by publishing 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 Petitioners' App. at 26 (copy of notice filed with the Office of the Federal Register). In a written decision on February 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 agency action on March 10, 1987.*fn3 The petitioners timely filed their petition for review with this court on May 8, 1987.*fn4 Thereafter, CECo filed a brief as an intervening respondent.

Subsequent to the filing of the petitioners' petition for review, the respondents filed a motion to dismiss the petition for want of jurisdiction. On October 15, 1987, this court issued an order which stated that "respondents' motion to dismiss will be considered with the merits of this appeal by the panel assigned to consider this case." Citizens 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 event of a nuclear accident. An effective containment therefore ensures that any exposure of the public to radioactive gases will be minimal. To test the effectiveness of a containment, 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."*fn5 Apparently, no two nuclear reactors have the same leak rate due to various factors such as the containment size, and the configuration, location, meteorological and demographic characteristics of the nuclear plant site. See Respondent's Br. at 7.

II

Opinion of the NRR Director

In addressing the merits of the instant case, the Director of the NRR first characterized the contentions of the petitioners as falling into three categories: "(1) allegations regarding the general methodology associated with CILRTs [containment integrated leak-rate tests], (2) allegations concerning the validity of certain CILRTs performed at the Zion Nuclear Power Station Unit 1, in 1982 and 1981, and (3) allegations related to certain computer programs employed by CECO in conducting CILRTs for the Zion, LaSalle, and Byron units." In 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. ยง 2.206. He concluded that the concerns raised in the instant petition already had received sufficient consideration from the NRC and therefore he refrained from discussing them further.

The Director then addressed the third category of allegations 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 falsification of the test record." Id. at 125. The Director determined, however, that "the subject options are a necessary part of the program; they literally permit the compilation of bona fide test data." Id. The Director then addressed the second challenge. The petition alleged that the computer 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 transmission 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 petition 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 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 are acquired 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 result in an illegal amount of data rejection, that the computer programs could be manipulated to reinstate previously discarded data, and that these computer programs impermissibly affected the weighting ...


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