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Arnow v. United States Nuclear Regulatory Commission


*fn* decided: February 3, 1989.


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.



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.


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. § 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.


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 coefficients used to calculate the containment air mass and average temperature.*fn6



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 Regular Comm'n, 251 U.S. App. D.C. 350, 785 F.2d 1038 (D.C. Cir. 1986),*fn7 we believe that our colleagues in the First Circuit were correct in Massachusetts Public Interest Group, Inc. v. United States Nuclear Regular Commission, 852 F.2d 9, 15 (1st Cir. 1988) when they determined 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, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985), its action 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 challenging 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 determination 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 undertake the enforcement proceedings requested by the petition.*fn8 In the NRC's view, the Atomic Energy Act confers 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 Commission 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 nonenforcement 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 systems. There is, therefore, no problem in this case in determining what law should apply.

Petitioners' Br. at 17.

2. Analysis


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 Florida Power & Light Co. v. Lorion, 470 U.S. 729, 84 L. Ed. 2d 643, 105 S. Ct. 1598 (1985):

Under 28 U.S.C. § 2342(4), . . . the courts of appeals have exclusive jurisdiction over petitions seeking review of "all final orders of the Atomic Energy Commission [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 "any 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 exclusive subject matter jurisdiction on courts of appeals to review decisions of the NRC denying petitions made pursuant to 10 C.F.R. § 2.206.*fn9 The Supreme Court determined that the provision did so. However, the Court did not address squarely the issue before us here:*fn10

No party has argued that under the [Administrative Procedure Act], 5 U.S.C. § 701(a)(2), Commission denials of section 2.206 petitions are instances of presumptively 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, 84 L. Ed. 2d 714, 105 S. Ct. 1649 ] 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 resolution. The issue is open to the Court of Appeals on remand should the Commission choose to press it.

Id. at 735 n.8.*fn11 We now address and resolve this question.


Under the Administrative Procedure Act (APA), 5 U.S.C. § § 551-706, final actions of governmental agencies generally are presumed to be reviewable by the courts. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971); Abbott Labs. v. Gardner, 387 U.S. 136, 140-41, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967); see also 5 U.S.C. § § 702 & 704. However, section 701(a)(2) precludes judicial review when "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2).*fn12 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, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985), the Supreme Court further explicated the scope of section 701(a)(2). In that case, several death-row inmates in 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 challenged drugs for certain uses, but not for executions. The inmates were concerned that the drugs might cause "torturous pain," rather than "produc[ing] death quickly and without pain." Chaney v. Heckler, 231 U.S. App. D.C. 136, 718 F.2d 1174, 1177 (D.C. Cir. 1983), rev'd, 470 U.S. 821, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985). In refusing to investigate the petition, the FDA asserted that (1) it did not have jurisdiction to regulate state-sanctioned executions involving lethal injections, and (2) it had inherent agency discretion to refrain from undertaking such an activity.

The Supreme Court held that the court of appeals did not have jurisdiction. Although it noted that the APA provides 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 'applies, 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(a)(2), the Court reasoned:

Review 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 available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for 'abuse of discretion.'

Id. at 830.

Consequently, the Court held that a refusal to take enforcement action by an administrative agency is presumptively unreviewable by the courts. Id. at 831. The Supreme Court gave several reasons in support of its interpretation of section 701(a)(2): (1) an administrative agency is in the best position to assess its resources and technical expertise in claims brought under the statutes and regulations that it is charged to administer; (2) an agency determination not to enforce its authority, as opposed to exercising its authority, generally does not infringe upon an individual's property right or liberty interest; and (3) the situation is analogous to the unreviewable decision of a prosecutor 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 powers." 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, 44 L. Ed. 2d 377, 95 S. Ct. 1851 (1975) (dispute under Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 481 et seq., requesting Secretary of Labor to investigate and file suit to set aside union election). In summarizing 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' factors were present. The decision, therefore, was not 'beyond the judicial capacity to supervise.'"*fn13 In contrast to the LMRDA, the Chaney Court noted that the FDCA's general provision for enforcement, 21 U.S.C. § 372,

provides only that "the Secretary is authorized to conduct examinations and investigations . . . " (emphasis 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(a)(2) precludes judicial review of personnel termination decisions by the Director of the Central Intelligence Agency because the relevant provision of the National Security Act, 50 U.S.C. § 403(c), "strongly suggests that its implementation was 'committed to agency discretion by law.' " Webster v. Doe, 486 U.S. 592, 108 S. Ct. 2047, 2052, 100 L. Ed. 2d 632 (1988) (quoting 5 U.S.C. § 701(a)(2)). In defining what is meant by the statutory language "committed to agency discretion by law," the Court noted that "even when Congress has not affirmatively precluded judicial oversight, 'review 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.'" Id. (quoting Chaney, 470 U.S. at 830).


Only one court has addressed squarely*fn14 the applicability of section 701(a)(2) in the context of a nonenforcement 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 petitioned 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." Id. at 10.*fn15

In addressing the same question presented to the First Circuit, we note that, under the analytical framework provided 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 S. Ct. at 2052; see Chaney, 470 U.S. at 834; see also Overton Park, 401 U.S. at 411. Here, that statute is the Atomic Energy Act. Alter reviewing the Act, the First Circuit concluded that Congress "provid[ed] no guidance as to how the agency should exercise its discretion." MassPIRG, 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."*fn16 Indeed, its entire scheme vests very wide discretion in the agency. See Public Serv. Co. v. NRC, 582 F.2d 77, 82 (1st Cir.), cert. denied, 439 U.S. 1046, 99 S. Ct. 721, 58 L. Ed. 2d 705 (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[s]" the NRC to "make such studies and investigations . . . as the Commission may deem necessary or proper to assist it in [the] . . . enforcement of this chapter . . . ." 42 U.S.C. § 2201(c) (emphasis supplied); cf. 21 U.S.C. § 372 (under the FDCA, "the 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 protect 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 revocation of licenses, like the provision in the FDCA providing 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 application . . ." 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, "any article of food, drug, device, 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 ("whenever in the judgment of the Commission any person" has or will violate the Act, the Attorney General "may" apply for an injunction); cf. 21 U.S.C. § 332 (providing the FDA with no guidance as to when it should seek an injunction).*fn17

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 enforcement. 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).*fn18 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, " 'the Atomic Energy Act of 1954 is hallmarked by the amount of discretion granted the Commission 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 administering agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objective."'" MassPIRG, 852 F.2d at 15 (quoting Public Serv. Co., 582 F.2d at 82 (quoting Siegel v. AEC, 130 U.S. App. D.C. 307, 400 F.2d 778, 783 (D.C. Cir. 1968))); accord Illinois v. NRC, 591 F.2d 12, 16 (7th Cir. 1979).


As pointed out by the District of Columbia Circuit in Lorion v. United States Nuclear Regulatory Commission, 251 U.S. App. D.C. 350, 785 F.2d 1038 (D.C. Cir. 1986), " Chaney did not decide . . . whether non-statutory standards could similarly restrict agency discretion; the court '[left] to one side the problem of whether an agency's rules might under certain 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 subsequently have held that agency regulations can "provide a sufficient standard for meaningful review." MassPIRG, 852 F.2d at 16; see Center for Auto Safety v. Dole, 270 U.S. App. D.C. 73, 846 F.2d 1532, 1534 (D.C. Cir. 1988) (per curiam); see also Padula v. Webster, 261 U.S. App. D.C. 365, 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, 1 L. Ed. 2d 1403, 77 S. Ct. 1152 (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 regard 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 Columbia Circuit found no law to apply under the agency's applicable 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 reasonable 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 insufficient 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 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 requests 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 matter of the request shall either institute the requested proceeding in accordance with this subpart or shall advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to his request, and the reasons 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 ("The implementing regulations [of 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 proceeding, 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 revocation 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 50, App. J (1988). The NRC has failed to respond to the petitioners' citations to these specific regulations. Nevertheless, 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 factors 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 methodology of containment construction and leak-rate testing; they provide no guidelines for the agency to follow in exercising its enforcement powers that we, as a reviewing court, could look to in adjudicating the NRC's decision not to take enforcement action.*fn19 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 expertise." 470 U.S. at 831. Nothing in the regulations cited to us by the petitioners defines how the NRC's decision must be reached or mandates what action the NRC must take if it finds that the technical requirements of the regulations have not been met. Therefore, the presumption that an agency decision not to take enforcement action is an unreviewable action "committed to agency discretion by law," 5 U.S.C. § 701(a)(2), has not been rebutted.*fn20


Despite our determination that the Atomic Energy Act and the regulations promulgated thereunder provide "no law to apply" and fail to rebut the presumption of non-reviewability, we do not hold that every decision of the NRC is insulated from judicial review. In MassPIRG, the First Circuit explicitly noted:

The courts . . . may review NRC decisions which undermine its fundamental statutory responsibility to protect "the health and safety of the public." See, e.g., 42 U.S.C. § 2236(c). In Chaney, the Court noted, without deciding, that an agency policy which "is so extreme as to amount to an abdication of its statutory responsibilities" might be reviewable because "the statute conferring authority on the agency might indicate that such decisions were 'not committed to agency discretion.'" 470 U.S. at 821 n.4.

MassPIRG, 852 F.2d at 19; see also Schering Corp. v. Heckler, 250 U.S. App. D.C. 293, 779 F.2d 683, 687 (D.C. Cir. 1985); Railway Labor Executives Ass'n v. Dole, 760 F.2d 1021, 1025 (9th Cir. 1985) (Schroeder, J., concurring and dissenting). We need not confront this issue today. Here, the Director of the NRR investigated the claims raised in the petition and, in a written decision, found them to be without merit; the NRC agreed. The record simply is barren of any evidence indicating that the NRC abdicated its statutory responsibilities. Accordingly, we hold that section 701(a)(2) of the APA bars our review of the petition because Congress has committed agency enforcement decisions to the discretion of the NRC. Since review of this petition is barred by the APA, we dismiss the petition for review for want of jurisdiction.


Because Congress has not provided us with any meaningful standard of review under the Atomic Energy Act, nor has the NRC under its own regulations, we must dismiss the petition for want of jurisdiction pursuant to section 701(a)(2) of the APA.


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