Lorion v. U.S. Nuclear Regulatory Com'n, No. 82-1132

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore MIKVA; MIKVA
Citation785 F.2d 1038
Parties, 16 Envtl. L. Rep. 20,788 Joette LORION, d/b/a Center For Nuclear Responsibility, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Florida Power & Light Company, Intervenor.
Docket NumberNo. 82-1132
Decision Date18 March 1986

Page 1038

785 F.2d 1038
251 U.S.App.D.C. 350, 16 Envtl. L. Rep. 20,788
Joette LORION, d/b/a Center For Nuclear Responsibility, Petitioner,
v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and United
States of America, Respondents,
Florida Power & Light Company, Intervenor.
No. 82-1132.
United States Court of Appeals,
District of Columbia Circuit.
Argued Dec. 16, 1985.
Decided March 18, 1986.

Martin H. Hodder, Miami, Fla., with whom Terence J. Anderson, Coral Gables, Fla., of counsel, was on brief, for petitioner.

Richard P. Levi, with whom F. Henry Habicht, II, Asst. Atty. Gen., Herzel H.E. Plaine, Gen. Counsel, William H. Briggs, Jr., Sol., E. Leo Slaggie, Deputy Sol., Dirk

Page 1039

D. Snel, and John A. Bryson, Washington, D.C., were on brief, for respondents.

Harold F. Reis, with whom Holly N. Lindeman, Washington, D.C., and Norman A. Coll, Miami, Fla., of counsel, were on brief, for intervenor.

Before MIKVA, Circuit Judge, and MACKINNON and SWYGERT, * Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

For more than four years, Joette Lorion has been trying to force the Nuclear Regulatory Commission ("NRC" or "the Commission") to take action against a nuclear power plant near Miami, Florida. She fears that the Turkey Point Unit #4 nuclear reactor, which is owned and operated by Florida Power & Light Co. ("FPL"), contains unsafe equipment, and that the danger of a nuclear accident is steadily increasing. Her crusade began with a letter to the Commission; since then it has grown to include a Supreme Court decision, and now a second trip to this court.

Lorion raises a variety of legal issues, some of them quite complex. None of her contentions, however, can overcome the wide latitude that the NRC has in framing its criteria for hearings and its enforcement agenda. We hold that the NRC acted within its discretion in refusing to hold a hearing, and therefore affirm the Commission's decision.

I.

The nuclear fuel that provides the power in a reactor is packaged in rods. When in use, these rods are contained in steel pressure vessels inside the reactor. The steel walls of the vessel are constantly exposed to radiation; this exposure causes the metal to become "embrittled," which means that it is prone to cracking or shattering when subjected to rapid changes in temperature or pressure. These sudden changes are called "pressurized thermal shock" ("PTS"). The underlying issue in Lorion's appeal is the risk posed by PTS to the safety of the steel vessels in Turkey Point Unit #4.

Excessive vessel embrittlement could lead to severe consequences. When a nuclear power plant is faced with an emergency, one of its safety steps is to flood the reactor core with cold water. Without this water, the fuel rods could overheat and burn through the vessel walls, resulting in an infamous "meltdown." The risk is that the sudden temperature change can cause embrittled walls or weld joints to crack, allowing the radioactive coolant water to escape. See generally Edelson, Thermal Shock--New Nuclear-Reactor Safety Hazard?, Popular Science, June 1983, at 55.

In 1981, concern about the embrittlement problem led petitioner, on behalf of the Center for Nuclear Responsibility (of which Lorion was the sole member) to write a short letter to the NRC concerning Turkey Point Unit #4. Her letter noted that the Commission itself had identified this reactor as one of eight around the country that were vulnerable to cracking caused by PTS. Based on this, Lorion asked that the NRC initiate license review procedures, to consider suspending FPL's license until the reactor was proven safe. See Lorion v. Nuclear Regulatory Commission, 712 F.2d 1472, 1473 (D.C.Cir.1983).

The Commission treated Lorion's letter as an enforcement request under 10 C.F.R. Sec. 2.206 (1985). Section 2.206(a) provides that

Any person may file a request [with the NRC] to institute a proceeding pursuant to [10 C.F.R.] Sec. 2.202 to modify, suspend, or revoke a license, or for such other action as may be proper.... The requests shall specify the action requested and set forth the facts that constitute the basis for the request.

Page 1040

On November 5, 1981, the NRC denied petitioner's request. Florida Power and Light Co., 14 N.R.C. 1078 (1981). The Commission stated that its staff had been studying the situation, and that based on the available information, no immediate licensing action was necessary. Id. at 1082-83. The reply acknowledged that embrittlement could present a long term problem, but it assured Lorion that it was monitoring Turkey Point # 4, and that the "NRC will take timely action in relation to the reactor vessel problem." Id. at 1083.

Lorion appealed, but this court dismissed for lack of subject matter jurisdiction. Lorion, 712 F.2d at 1478-79. The Supreme Court reversed and remanded, ordering us to reconsider petitioner's claims on the merits. Florida Power & Light Co. v. Lorion, --- U.S. ----, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). On the same day that it decided Lorion, however, the Court also handed down Heckler v. Chaney, --- U.S. ----, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). In Heckler the Court held that the refusal by an agency to take enforcement action was presumptively unreviewable. The Lorion Court therefore invited us to consider the effects of Chaney on remand. 105 S.Ct. at 1602 n. 8.

The case is now before us again. Lorion's legal theory is that the NRC's decision not to take any enforcement action was an abuse of discretion; for relief, she asks that this court instruct the Commission to order FPL to "show cause" why its operating license should not be suspended or revoked. In the alternative, petitioner claims that the court should remand to the NRC for a reconsideration of her request, with the opportunity for her to provide additional evidence.

II.

We first address the question of whether the NRC's decision not to issue a show cause order is reviewable. In Heckler v. Chaney, the Supreme Court pointed out the difficulties of appellate scrutiny of an agency's choice not to enforce its regulations in a particular case. The Court wrote that this type of decision "often involves a complicated balancing of a number of factors which are peculiarly within [an agency's] expertise.... [t]he agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities." 105 S.Ct. at 1656. Based on these considerations, Chaney held that decisions not to enforce are "presumed" to be "committed to agency discretion by law" under the Administrative...

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9 practice notes
  • Arnow v. U.S. Nuclear Regulatory Com'n, No. 87-1732
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 3 Febrero 1989
    ...for review in this context without first resolving the jurisdictional question, see Lorion v. United States Nuclear Regulatory Comm'n, 785 F.2d 1038 (D.C.Cir.1986), 7 we believe that our colleagues in the First Circuit were correct in Massachusetts Public Interest Group, Inc. v. United Stat......
  • United Transp. Union v. I.C.C., No. 88-1773
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 28 Noviembre 1989
    ...(1970); United States v. Augenblick, 393 U.S. 348, 351-52, 89 S.Ct. 528, 531, 21 L.Ed.2d 537 (1969); Lorion v. Nuclear Regulatory Comm'n, 785 F.2d 1038, 1041 (D.C.Cir.1986); National Page 920 [282 U.S.App.D.C. 50] Wildlife Fed'n v. United States, 626 F.2d 917, 924-26 & n. 16 (D.C.Cir.19......
  • Center for Auto Safety v. Dole, No. 86-5436
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 8 Septiembre 1987
    ...there was no substantial support for that finding in the evidence before the Administrator. See Lorion v. Nuclear Regulatory Commission, 785 F.2d 1038 (D.C.Cir.1986); Association of Data Processing Service Organizations, Inc. ("ADPSCO") v. Board of Governors, 745 F.2d 677 (D.C.Cir......
  • Massachusetts Public Interest Research Group, Inc. v. U.S. Nuclear Regulatory Com'n, No. 87-1865
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 3 Mayo 1988
    ...enforcement proceedings. It stated that it doubted that the Atomic Energy Act restricted the discretion of the NRC, Lorion v. NRC, 785 F.2d 1038, 1040 (D.C.Cir.1968); it declined, however, to address the petitioner's argument that the NRC rules and regulations provided a sufficient standard......
  • Request a trial to view additional results
9 cases
  • Arnow v. U.S. Nuclear Regulatory Com'n, No. 87-1732
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 3 Febrero 1989
    ...for review in this context without first resolving the jurisdictional question, see Lorion v. United States Nuclear Regulatory Comm'n, 785 F.2d 1038 (D.C.Cir.1986), 7 we believe that our colleagues in the First Circuit were correct in Massachusetts Public Interest Group, Inc. v. United Stat......
  • United Transp. Union v. I.C.C., No. 88-1773
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 28 Noviembre 1989
    ...(1970); United States v. Augenblick, 393 U.S. 348, 351-52, 89 S.Ct. 528, 531, 21 L.Ed.2d 537 (1969); Lorion v. Nuclear Regulatory Comm'n, 785 F.2d 1038, 1041 (D.C.Cir.1986); National Page 920 [282 U.S.App.D.C. 50] Wildlife Fed'n v. United States, 626 F.2d 917, 924-26 & n. 16 (D.C.Cir.1980) ......
  • Center for Auto Safety v. Dole, No. 86-5436
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 8 Septiembre 1987
    ...there was no substantial support for that finding in the evidence before the Administrator. See Lorion v. Nuclear Regulatory Commission, 785 F.2d 1038 (D.C.Cir.1986); Association of Data Processing Service Organizations, Inc. ("ADPSCO") v. Board of Governors, 745 F.2d 677 (D.C.Cir.1984). Bu......
  • Massachusetts Public Interest Research Group, Inc. v. U.S. Nuclear Regulatory Com'n, No. 87-1865
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 3 Mayo 1988
    ...enforcement proceedings. It stated that it doubted that the Atomic Energy Act restricted the discretion of the NRC, Lorion v. NRC, 785 F.2d 1038, 1040 (D.C.Cir.1968); it declined, however, to address the petitioner's argument that the NRC rules and regulations provided a sufficient standard......
  • Request a trial to view additional results

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