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Arnow v. NRC

Citation: 19 ELR 20550
No. No. 87-1732, 868 F.2d 223/(7th Cir., 02/03/1989)

The court holds that § 701(a)(2) of the Administrative Procedure Act (APA) bars review of the Nuclear Regulatory Commission's (NRC's) denial of a petition challenging the adequacy of a utility's tests on the containment structures of three nuclear reactors. Petitioners had alleged that the containments might be inadequate to prevent the spread of radioactive material during a nuclear accident. The court holds that the NRC's denial of the petition is a discretionary enforcement action and thus is presumptively unreviewable under the standard established by the Supreme Court in Heckler v. Chaney, 15 ELR 20335. Only one other court, the First Circuit, has addressed the applicability of APA § 701(a)(2) to a nonenforcement decision by the NRC, and it concluded that the decision was unreviewable. The court agrees with the First Circuit that the Atomic Energy Act (AEA) provides no law to apply, vesting broad discretion with the agency. Numerous sections of the AEA provide only that the NRC is authorized to investigate or enforce as it deems necessary, and the section providing for injunctive proceedings specifically defers to the agency's judgment. The court holds that the applicable NRC regulations also do not define a standard of review. Both the regulation providing for orders to show cause and the one providing for requests for action use the word "may," indicating that the NRC has total discretion in determining whether to engage in the requested enforcement action. Other regulations relating to the testing of containments and the revocation of licenses also do not provide law to apply, since they merely establish technical requirements and provide no guidelines for the NRC to follow in exercising its enforcement powers. The court specifically notes that it is not holding that all NRC decisions are insulated from judicial review, concluding that it could review an extreme agency decision that amounted to an abdication of its statutory responsibilities.

Counsel for Petitioners
Zinovy V. Reytblatt
Department of Mathematics
Illinois Institute of Technology, IIT Center, Chicago IL 60616
(312) 567-5343

John L. Stainthorp, Jeffrey Haas
People's Law Office
343 S. Dearborn, No. 1607, Chicago IL 60604
(312) 663-5046

Counsel for Respondents
Charles E. Mullins
U.S. Nuclear Regulatory Commission
1717 H St. NW, Rm. H-1035, Washington DC 20555
(202) 634-3224

Philip R. Steptoe III, Peter Thornton
Sidley & Austin
One First National Plaza, Ste. 3300, Chicago IL 60603
(312) 853-7000

Before RIPPLE, MANION, and KANNE, Circuit Judges.