Burton v. United States , 353 F. App'x 639 ( 2009 )

09-0005-ag
Burton v. United States
UNITED STATES COURT OF APPEALS
F OR T HE S ECOND C IRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO SUMMARY ORDERS FILED AFTER J ANUARY 1, 2007,
IS PERMITTED AND IS GOVERNED BY THIS COURT ’ S L OCAL R ULE 32.1 AND F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1. I N A
BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER , IN EACH PARAGRAPH IN WHICH A CITATION APPEARS , AT LEAST
ONE CITATION MUST EITHER BE TO THE F EDERAL A PPENDIX OR BE ACCOMPANIED BY THE NOTATION : “( SUMMARY ORDER ).” A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS
CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILAB LE IN AN ELECTRONIC DATABASE WHICH
IS PUBLICLY ACCESSIBLE WITHOUT P AY MENT OF FEE ( SUCH AS THE DATABASE AVAILABLE AT HTTP :// WWW . CA 2. USCOURTS . GOV /).
IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE , THE CITATION MUST INCLUDE REFERENCE
TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED .
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 23 rd day of November, two thousand and
nine.
Present: ROBERT D. SACK,
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
Circuit Judges.
__________________________________________________
NANCY BURTON,
Petitioner,
- v. - (09-0005-ag)
UNITED STATES OF AMERICA and UNITED STATES
NUCLEAR REGULATORY COMMISSION,
Respondents,
ENTERGY NUCLEAR OPERATIONS, INC.,
Respondent-Intervenor.
__________________________________________________
For Petitioner: NANCY BURTON, pro se, Law Office
of Nancy Burton, Esq., Redding
Ridge, Connecticut.
For Respondents: JAMES ADLER, United States
Nuclear Regulatory Commission,
(John E. Arbab, United States
Department of Justice,
Environment & Natural Resources
Division, Washington, D.C., on
the brief), Rockville, Maryland.
For Respondent- CATHERINE MASTERS, Schiff Hardin
Intervenor: LLP, Chicago, Illinois.
Petition for review of a final decision of the United
States Nuclear Regulatory Commission.
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
2 AND DECREED that the petition for review is DENIED.
3 Petitioner Nancy Burton challenges a decision of the
4 United States Nuclear Regulatory Commission (“NRC”), which
5 denied two petitions she filed in a license-renewal
6 adjudication relating to the nuclear power facilities at
7 Indian Point. In the first petition, petitioner applied for
8 a waiver of certain generally applicable NRC regulations
9 during the license-renewal adjudication in question. In the
10 second petition, petitioner sought to intervene in the
11 adjudication in order to present evidence that would
12 otherwise be barred by the regulations for which she sought
13 the waiver. The Atomic Safety and Licensing Board denied
14 both petitions, and the NRC denied petitioner’s appeal of
2
1 those conclusions. Relying on 28 U.S.C. § 2342(4),
2 petitioner now challenges the NRC’s decision. 1 We presume
3 the parties’ familiarity with the underlying facts, the
4 procedural history of the case, and the issues on appeal.
5 Our review of a final order of the NRC is governed by
6 the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et
7 seq. Pursuant to the APA, petitions for review of the NRC’s
8 decisions must be denied unless the agency’s conclusions
9 were “arbitrary, capricious, an abuse of discretion, or
10 otherwise not in accordance with law.” Id. § 706(2)(a).
11 Thus, our review is “narrow” and “highly deferential”;
12 “[t]he test here is primarily one of rationality.” County
13 of Rockland v. U.S. Nuclear Regulatory Comm’n, 709 F.2d 766,
14 776 (2d Cir. 1983) (quotations omitted). “‘If the [NRC]
15 based its order on substantial relevant evidence, fairly
16 ascertained, and if it has made no clear error of judgment,
17 this court is not authorized to overturn that order.’” Id.
18 (quoting Cross-Sound Ferry Servs., Inc. v. United States,
19 573 F.2d 725, 730 (2d Cir. 1978)).
1
In the proceedings before the NRC, petitioner filed both petitions jointly,
as an individual and on behalf of the Connecticut Residents Opposed to
Relicensing of Indian Point (“CRORIP”). In her petition to this court,
however, petitioner only signed the petition in her individual capacity. The
omission of CRORIP is immaterial to our analysis, and the same result would
obtain if that organization had been named as a party to these proceedings.
3
1 Upon review of the instant petition, we conclude that
2 petitioner has failed to demonstrate that the NRC acted
3 arbitrarily or capriciously in denying her waiver petition.
4 Absent such a waiver, it cannot be said that the NRC ran
5 afoul of the APA by denying petitioner’s application to
6 intervene in the license-renewal adjudication. We have
7 considered petitioner’s remaining arguments and find them to
8 be without merit. Accordingly, the petition is hereby
9 DENIED.
10
11 For the Court
12 Catherine O’Hagan Wolfe, Clerk
13
14 By: ______________________
15
4