ELR Citation: ELR 21018
No(s). 81-1772 (7th Cir. Jun 3, 1982)

The court declines to review the Nuclear Regulatory Commission's (NRC's) refusal to institute a construction permit revocation proceeding concerning a nuclear power plant at Byron, Illinois. Initially, the court rules that jurisdiction to review the NRC's decision lies in the courts of appeals. The Judicial Code and Atomic Energy Act give the courts of appeals jurisdiction over challenges to final orders in proceedings for granting and revoking construction permits. Although denying a request to initiate a revocation proceeding is technically not a final order and petitioners would still have remedies in the district courts, jurisdiction should be exclusively in the courts of appeals because the request to revoke is an essential first step in the revocation process. The court then rules that petitioner, an organization whose members live near the Byron plant, have standing because of their proximity to the facility and the fact that they allege that the operating license stage comes too late to effectively raise their designrelated challenges to the plant's safety. However, the court rules that the NRC violated neither statute, regulation, nor Commission precedent in denying petitioner's request. It notes that the scope of its review of agency inaction, absent a non-discretionary duty, is very limited, because such review can interfere with agencies' managerial discretion. Finding that petitioner failed to demonstrate that "extremely compelling circumstances" require otherwise, the court denies the petition for review since petitioners may participate in a pending operating license proceeding for the plant where safety issues can be raised.

Counsel for Petitioner
Myron Cherry, Peter Flynn
Cherry & Flynn
One IBM Plaza, Suite 4501, Chicago IL 60601
(312) 565-1177

Counsel for Respondent
Stephen F. Eilperin
Atomic Safety Licensing Appeal Panel
Nuclear Regulatory Commission, Washington DC 20555
(202) 492-7666

Before BAUER, Circuit Judge, GIBSON, Senior Circuit Judge,^* and POSNER, Circuit Judge.