Dickinson v. Zech

846 F.2d 369, 1988 WL 48087
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 16, 1988
DocketNo. 88-3267
StatusPublished
Cited by7 cases

This text of 846 F.2d 369 (Dickinson v. Zech) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dickinson v. Zech, 846 F.2d 369, 1988 WL 48087 (6th Cir. 1988).

Opinion

BOYCE F. MARTIN, JR., Circuit Judge.

The petitions for review before us arise from the decision of the Nuclear Regulatory Commission to deny the request for emergency relief sought by petitioners Irene P. Dickinson, Susan Dubose, Jay Ku, William Leiper, William McGinness, Fred H. Wright, and The Natural Rights Center.

Petitioners seek to enjoin the full power operation of Unit 2 of the Sequoyah Nuclear Plant by its owner and licensed operator, the Tennessee Valley Authority. During the spring and summer of 1985, TVA determined that its nuclear program was not in compliance with the applicable NRC requirements in many areas. Accordingly, TVA voluntarily shut down its Sequoyah facilities in August of 1985. TVA also voluntarily agreed not to restart any unit without NRC concurrence. This commitment by TVA was confirmed in a September 17, 1985, letter, issued by the NRC pursuant to 10 C.F.R. § 50.54(f). This letter directs TVA to notify the NRC within two working days of any change in TVA’s commitment, and, in any event, to notify the NRC ten working days prior to any resumption of operations without NRC concurrence. The NRC at no point took any action to revoke or suspend TVA’s operating license for Sequoyah Unit 2.

After approximately 32 months of repairs and restructuring at the Sequoyah plant, TVA met on March 4, 1988, with the NRC Commissioners and stated its belief that Sequoyah Unit 2 was ready to resume operation. On March 22, 1988, the Commissioner voted 5-0 to authorize the NRC staff to permit TVA to restart Sequoyah Unit 2, after it had verified TVA’s compliance with the identified “restart items.” The Commission’s vote followed a review of previously submitted assessments by the NRC staff, the Advisory Committee on Reactor Safeguards, and the results of other NRC staff inspections on a wide variety of technical issues, including the ability of the emergency diesel generators to provide emergency power to the plant in the event of a shutdown or loss of off-site power. The Advisory Committee on Reactor Safeguards had concluded that “the testing and analysis by TVA of the Sequoyah diesel generators have demonstrated their adequacy to perform their safety functions.”

[371]*371Petitioners first contacted the NRC by letter on March 25, 1988, three days after restart had been approved. The NRC treated the letter as a petition for emergency relief. The petition sought “immediate emergency action in the form of an order suspending full power operation of the Se-quoyah Nuclear Plant until remedial action can be taken.” The petition based its request upon allegations that the Emergency Diesel Generators were not sufficient to assure safe operation at Sequoyah.

In a letter dated March 28, 1988, the Office Director, Mr. Stewart Ebneter, denied the requested emergency relief. In that letter, the director noted that the staff had addressed these allegations in several different reports and that the allegations had been reviewed by consultants who had concluded that the generators were sufficient to perform their assigned safety functions. The letter included the director’s observation that the petition “raises no new issues not already considered by the NRC staff.” After noting that the request for emergency relief would be denied, the letter concludes that “your technical concerns will be addressed in more detail in a Director’s Decision under 10 C.F.R. § 2.206 to be issued shortly.” Section 2.206(a) provides that: “[a]ny person may file a request ... to institute a proceeding pursuant to § 2.202 to modify, suspend, or revoke a license, or for such other action as may be proper.” 10 C.F.R. § 2.206.

Upon review of the § 2.206 petition, the director of the NRC has two options. First, the director may decide to institute a proceeding whereby the licensee is served with an order to show cause why the requested enforcement action should not be taken. The order must inform the licensee of the nature of the alleged violations and of its right to request a hearing. The director’s second option is to determine that no show cause proceedings are warranted. If the director chooses this option, he must inform the petitioner in writing of that decision and his reasons for so doing. It 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.

In the case at hand, the director has not yet undertaken either of the above two options but has only informed petitioner that no emergency relief will be granted. It is this denial of emergency relief that petitioners ask us to review. Because there has been no judicially reviewable final agency action, we lack jurisdiction to order the relief desired by petitioners.

Section 189(a) and (b) of the Atomic Energy Act of 1954, 42 U.S.C. § 2239(a), (b) (1982), govern which NRC actions are within the subject matter jurisdiction of this court. Those sections provide that “any final order ... in any proceeding” “for the granting, suspending, revoking or amending of any license” “shall be subject to judicial review.” Because we hold that the denial of an emergency petition under these circumstances is not a “final order” within the meaning of the above provisions, we hold that we lack subject matter jurisdiction to provide the relief sought by petitioners.

We are persuaded by the reasoning of the court in Honicker v. United States Nuclear Regulatory Commission, 590 F.2d 1207, 1209 (D.C.Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 374 (1979), where it held that a letter from the Commission “denying [an] emergency petition was not a final order or final agency action within the meaning of the review statutes, 28 U.S.C. § 2342(4) and 42 U.S.C. § 2239.” As was the situation in Honicker, we are presented with a case where the Commission has decided that a petition does not warrant emergency relief. Here, the Commission has stated that the concerns are such that they will be addressed more fully in a decision, pursuant to 10 C.F.R. § 2.206, to be used in the near future.

Like other courts that have addressed the question, we believe an order is final only if it “imposes an obligation, denies a right, or fixes some legal relationship, usually at the consummation of an administrative process.” Natural Resources Defense Council v. NRC, 680 F.2d 810, 815 [372]*372(D.C.Cir.1982) (quoting Honicker, 590 F.2d at 1209). The denial of petitioner’s request for emergency relief by the NRC in this case does not represent the end of that agency’s analysis of the issues involved.

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846 F.2d 369, 1988 WL 48087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickinson-v-zech-ca6-1988.