           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




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