ML17342A634
| ML17342A634 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 07/29/1986 |
| From: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Fascell D HOUSE OF REP. |
| Shared Package | |
| ML17342A635 | List: |
| References | |
| NUDOCS 8608070003 | |
| Download: ML17342A634 (32) | |
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UNITED STATES NUCLEAR REGULATORY COMM(SSION "
WASHINGTON, D. C. 20555 CENTRAL FILES The Honorable Dante B. Fascell United States House of Representatives Washington, D.
C.
20515 Dear Congressman Fascell:
I am pleased to respond to your May 29, 1986, letter in response to Ms. Joette Lorian of the Center for Nuclear Responsibility who 'alleges:
(1) that Florida Power and Light Company (FPL) did not retest the weld metal of Unit 4 either in 1978 or in 1986, but instead used test data from Unit 3 to predict the safe operation of Unit 4; and (2) that the NRC allows FPL to use data from weld metal tests for Unit 3 to predict the actual levels of embrittlement for the vessel that houses Unit 4.
These contentions are related to Ms. Lorian's concern of reactor vessel embrittlement (pressurized thermal shock) at the Turkey Point power plant.
I Before I respond to these contentions, it should be noted that Ms'orian has made these same arguments before the United States Court of Appeals for the District of Columbia Circuit.
Enclosure 1 is our response to Ms. Lorian's petition for which oral arguments were presented before the court on December 16, 1985.
Enclosure 2 is the court's decision which ruled in favor of the Nuclear Regulatory Commission (NRC).
In relation to Ms. Lorian's contentions, the surveillance program for Turkey Point Units 3 and 4 comprises a set of capsules in each reactor. containing samples of the weld materials and base metals used in fabricating the bel'tline of the reactor vessel.
During construction the capsules are placed in the vessel near the wall where they receive neutron radiation representative of that received by the beltline.
In accordance with regulations, the first capsule, is withdrawn after several years of operation when its contents have been exposed to neutron radiation at vessel operating temperature and the specimens are then tested to determine the change in resistance to brittle fracture caused by the radiation.
Subsequent capsule withdrawals are scheduled at specified intervals to monitor long-term effects throughout the reactor vessel(s) lifetime.
The controlling (most embrittled) material for Turkey Point Units 3 and 4 reactor vessels are the center girth welds which are positioned at about midheight of the cores.
Fabrication records show that the two welds were made with the same materials, that is, the same weld wire heat and the same flux lot.
The surveillance welds made for Unit 3 test specimens were made with the same materials as the center girth welds in both reactor vessels.
The surveillance welds for Unit 4 test specimens were made with the same weld wire heat but different flux lot than the center girth welds in both reactor vessels.
Although the Unit 4 surveillance weld specimens were fabricated using a different flux lot, the weld specimens are considered to be representative of the girth welds in both reactor vessels because flux lot is considered to be of secondary importance in determining sensitivity to radiation damage.
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'The Honorable Dante B. Fascell materials in the center girth welds and the materials used to fabricate the survei11ance weld specimens, the test results from capsules in either Unit 3 or 4 can be used to monitor the neutron radiation damage to both reactor vessels.
In 1985 the utility requested, and the NRC agreed to, an integrated surveillance program for Units 3 and 4.
In each vessel there are two capsules containing the critical weld metal, and under the integrated program the test results from the four capsules will be applied to vessel integrity analyzes for both units.
Section II.C of 10 CFR 50, Appendix H permits an integrated surveillance program for reactors at the same or different physical sites if they meet the following specified criteria:
l.
There must be substantial advantages to be gained, such as reduced power outages or reduced personnel exposure to radiation, as a direct result of not requiring surveillance capsules in all reactors in the set.
2.
The design and operating features of the reactors in the set must be sufficiently similar to permit accurate comparisons of the predicted amount of radiation damage as a function of total power output.
3.
There must be an adequate dosimetry program for each reactor.
4.
There must be a contingency plan to assure that the surveillance program for each reactor will not be jeopardized by operation at reduced power level or by an extended outage of another reactor from which data are expected.
5.
No reduction in the requirements for number of materials to be irradiated, specimen type, or number of specimens per reactor is permitted, but the amount of testing may be reduced if the initial results agree with predictions.
6.
There must be adequate arrangement for data sharing between plants.
The April 22, 1985 letter, which issued the amendments approving the integrated surveillance
- program, included a Safety Evaluation which identified the above criteria which must be met and an evaluation of how FPL met the criteria.
Ms. Lorian included the April 22, 1985 letter as an enclosure to her May 21, 1986 letter to you, however, she did not include the NRC Safety Evaluation.
Enclosure 3 provides the transmittal letter and the Safety Evaluation which includes the NRC staff's basis for accepting the integrated surveillance program.
Ns. Lorian questions the applicability of surveillance test results from Unit 3 to analyses of Unit 4, quoting Dr. George Sih of Lehigh University to support her contention that this is "scientifically invalid."
Clearly this contention is contrary to the basic assumptions behind the nuclear power industry and NRC use of radiation damage trend curves (e.g., Regulatory Guide 1.99) derived from analysis of data from many reactors.
It is also contrary to NRC criteria for an integrated surveillance program (e.g., Appendix H, 10 CFR 50).
Professor Sih's views were considered as par t of the pressurized thermal shock studies in the 1981-82 time period and were rejected as not being substantiated by technical information.
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The Honorable Dante B. Fascel1 Based on the court's decision previously cited and the technical basis in support of the integrated surveillance program for Turkey Point-Units 3 and 4, Ms. Lorian's contentions have no merit. It also appears that Ms. Lorian believes that the only source of information about the neutron embrittlement of the materials in a given reactor vessel comes from the test results for specimens irradiated in that vessel as part of'ts surveillance program.
I must emphasize that there is a sound basis for estimates of neutron embrittlement besides the information obtained from plant specific surveillance.
Until plants have credible surveillance data of their own (preferably from two or more capsules) their submittals for-pressure-temperature limits, which take account of radiation embrittlement, are based on knowledge of the chemical composition and the neutron fluence.
Test data from many sources is used which has been characterized according to the critical variables, chemical composition of the material and neutron fluence.
On this basis, pressure-temperature limits have been established for Turkey Point Units 3 and 4 that ensure safe operation; and the susceptibility to the pressurized thermal shock has been evaluated.
The NRC has accepted certain formulas for calculating the degree of embrittlement.
The basis for these formulas is the rapidly growing surveillance data base from all power reactors.
A significant margin is added to the calculated result to account for uncertainties.
The NRC has established in 10 CFR 50.61 a screening criterion and identified acceptable means for calculating the reference temperature to judge the condition of reactor vessels at all sites.
At the end of their present licensed life, Turkey Point Units 3 and 4 will be 35'F below the screening criteria for safe operation of 300'F for circumferential welds which in their case are the most critical welds for pressurized thermal shock concerns.
In summary, there certainly is a need for care in monitoring the integrity of reactor vessels in all operating nuclear power plants.
The nuclear power industry and the NRC have expended considerable effort to ensure that safety margins are maintained by assuring that the extent of neutron radiation damage is known.
Contrary to Ms. Lorian's opinion, Turkey Point Units 3 and 4 are not operating in violation of NRC safety margins and their integrated reactor vessel material surveillance program conforms to NRC regulations and assures the best use of the available surveillance capsules containing the critical weld material for both units.
I trust you find this responsive to your request and of assistance in assuring yourself and your constituents that the Commission actions in providing protection for all reactor vessels in operating nuclear power plants, including FPL, is based on sound technical judgement.
The criteria identified in Enclosure 3, which is used as the basis for approving integrated surveillance programs for various utilities, including FPL, is also based on sound technical judgement.
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The Honorable Dante B. Fascell I
The technical judgement used and actions taken by the staff in these areas are consistent with the Commission's policy of ensuring all operating facilities achieve and maintain adequate levels of protection of public health and safety.
If we can be of further assistance, please do not hesitate to contact us.
Sincerely,
Enclosures:
As stated Qrigiaal signed bp'4otor StolLo~
Victor Stello, Jr.
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Sincerely, Encl osur es:
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CASE SCHEDULED FOR ORAL ARGUMENT ON DECEMBER 16, 1985 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT JOETTE LORION, d/b/a CENTER FOR NUCLEAR RESPONSIBILITY'NITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA p
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No. 82-1132 RESPONDENTS'ESPONSE TO PETITIONER'S REPLY TO SUPPLEMENTAL BRIEFS OF RESPONDENT AND INTERVENOR In this action petitioner Joette Lorion contests the 1981 NRC denial of her request, based on her concerns about radiation-induced embrittlement of the reactor pressure
- vessel, to consider suspending the operating license for the Turkey Point, Unit 4 nuclear reactor.
Ms. Lorion in. her October 18, 1985 "Reply to Supplemental Briefs of Respondent and Intervenor" ("Petitioner's Reply" ) asserts that the Turkey Point, Unit 4 reactor vessel was more embrittled in 1981 than permitted by the Nuclear Regulatory Commission's
("NRC" or "Commission" ) recently promulgated rule on pressurized thermal
shock
("PTS").
To support this claim Hs. Lorion cites a 1976 study, which was based on destructive tests (Charpy tests) of material taken from capsules in Unit 4.
Ms. Lorion projects from the data in that study, which was not specifically addressed in the NRC's denial of her request, that by 1981 the 1
reference temperature, or RTNDT for the reactor vessel for Unit 4 had exceeded the Commission's current screening criterion of 300'F for protection against PTS.
Petitioner's Reply at ll'-14.
Ms. Lorion also clai'ms that the NRC has avoided this conclusion though the "legal alchemy" of using data from tests on capsules from Unit 3 rather than from Unit 4.
Id. at 14-15.
Ms. Lorion's last-minute attempt to create an entirely new attack on the Commission's denial of her 2.206 petition is based both on a misunderstanding of the NRC's practice in responding to 10 C.F.R. 5 2.206 requests, and on invalid data.
Upon receipt of a 10 C.F.R 5 2.206 request the HRC makes an inquiry appropriate to the facts asserted.
~ Consolidated Edison Com an of New York (Indian Point, Units 1, 2, and 3), CLI-75-8, 2
NRC 173, 175 (1975).
The requestor has an obligation to set forth the basis for the
- request, since the NRC is not required to develop such facts or to assume that they exist.
Public Service Com an of 1In general
- terms, the reference temperature is a calculated number that roughly corresponds to the temperature below which a precipitous drop occurs in the fracture toughness of metal.
Indiana (Marble Hill Nuclear Generating Station, Units 1 i 2),
CLI-80-10, ll NRC 438, 443 (1980).
The NRC, can rely on information from a variety of sources, including staff analyses of generic issues, and need only explain the basis of its decision.
Northern Indiana Public Service Com an (Bailly Generating'Station, Nuclear'-1), CLI-78-7, 7 N.R.C.
429 (1978),
aff'd Porter Count Cha ter v. Nuclear Re ulator Commission, 606 F.2d 1363 (D.C. Cir. 1979).
The NRC cannot reasonably b'e expected to address all documents in its possession which may touch on the subject matter of a'0 C.i.R.
5 2.206 request.
Depending on the issue raised there may be literally thousands of documents which discuss various aspects of technical concerns involving the regulation of nuclear power plants. It may well happen that the agency has material in its possession which has a facial relevance to the subject but which in fact is inaccurate or misleading for reasons that are apparent to experts in the field.
The agency in explaining its decision need not go off on a tangential discussion of the material it is not relying on, particularly when the request neither specifically identified such material nor suggested that it may be relevant.
- Rather, the agency need only provide a reasoned basis for its decision, as was done in this case.
As explained in the attached affidavit of Pryor
- Randall, the NRC had good reason not to rely on the 1976 data
, now cited by Ms. Lorion when it denied her request in 1981.
Those data are currently invalid, and were invalid in 1981, as
a method for determining the embrittlement of the reactor vessel in Unit 4.
Moreover, the agency has appropriately.
used data from all plants to develop an equation for determining embrittlement at, individual plants, including Unit 4,
~ and, contrary to petitioner's assertions, there is no "alchemy" involved.
.Hence, there was'o reason for the agency to address the 1976 data in its 1981 decision.
In sum, the NRC cannot be expected to address the significance of every document in its'ossession in responding to a 10 C.F..R.
5 2.206 request.
The 1976 study at issue here
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was invalid by 1981.
Accordingly, there was no reason for the
agency to discuss that document in.its decision.
Ms. morion's 2
new arguments should be summarily rejected by this Court.
Respectfully submitted, WILLIAMH. BRIGGS, So'licitor E.
LEO SLAGGIE Deputy Solicitor RICHARD P.
LEVI Attorney Office of the General Counsel U.S. Nuclear REgulatory Commission Washington, D.C.
20555 OHN BRYSON Attorney Land and Natural Resources Division U.S. Department of Justice Washington, D.C.
2Petitioner Lorion also appears to be arguing that the Court, should order the agency to address this additional information under 28 U.S.C.
5 2347(c).
Petitioner's new information does not meet the standards of 28 U.S.C.
g 2347(c).
As indicated in the attached affidavit, the data is invalid, and hence it is not material.
- Moreover, petitioner has failed to offer adequate justification for not presenting the data before this late date.
Even if petitioner had met the standard of Section 2347(c),
- moreover, a remand to the agency would not be justified, because petitioner's appropriate remedy would be to file a new 10 C.F.R. 5 2.206 petition.
See Ramirez-Gonzalez
- v. Immi ration and Naturalization Service, 695 F.2d 1208, 1213-14 (9th Cir. 1983); Alaska Steamshi Co. v. Federal Maritime Commission, 356 F.2d 59, 63 (9th Cir. 1966).
DECLARATION OF PRYOR N.
RANDALL 1.
My name is Pryor N. Randall.
I am employed by the Nuclear Regulatory Commission in the Office of Research.
I am making this affidavit in support of the NRC's response to Ms. Lorion's Supplemental Reply Brief.
Ms. Lorion relies on a
1976 document~ Pressure Tem erature Limitations for the Turke I
Point Unit Nos.
3 and 4 Nuclear Power Plants, Southwest Research Institute Project No. 02-4383-039 (June 30, 1976), to argue that pressurized thermal shock (PTS) is a current, serious con'cern at Turkey Point, Unit 4.
As,explained below, the data from the 1976 study were not valid in 1981, and are not currently valid.
2.
Petitioner Lorion to support her argument primarily relies on the results from the Charpy tests on the metals from a surveillance capsule from Unit 4.
Based on the results of those 1976 tests, the Southwest Research Institute projected that the RTNDT at Turkey Point, Unit 4 would be 340'F after ten equivalent full power years (EFPY).
As petitioner Lorion notes, this would exceed the Commission's current screening criterion of 300 F.
However, there are two major flaws in petitioner's reliance on this single data point.
First, it is inappropriate to rely on a single data point, such-as a Charpy test, to determine vessel embrittlement.
Surveillance data like that in the 1976 study have been shown to produce a wide scatter, i;e., they have a wide error band, and are useful only to determine trends and statistical probabilities.
The Commission therefore does not permit the use of results from plant specific capsule tests to show that a vessel
- meets, or does not meet, the screening criterion.
- Rather, the Commission used the results of Charpy tests from many plants to develop an equation that can be used to calculate individual vessel embrittlement.
Under this equation, the RTNDT value is determined essentially as a function of the copper and nickel content of the vessel materials, and the
." intensity of the neutron bombardment to which they have been subjected.
This method was used by the NRC in 1981 to determine the embrittlement of Turkey Point., Unit 4, and is more accurate than the single point method used in the 1976 study.
This method is also that adopted by the Commission in its 1985 rulemaking.
- Second, the 1976 data point was. measured at a Charpy energy level of 42 ft. lb.
The Commission's regulations, which were issued in proposed form on November 14, 1980,
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Rece.
75536, require that measurements be taken at a
Charpy energy level of 30 ft. lb.
10 C.F.R. Part 50,. App. G, g II.E.
The Commission has determined (as demonstrated by that rulemaking) that the 30 ft. lb. level more accurately represents the change in material properties (fracture toughness) resulting from neutron irradiation, i.e., the vessel embrittlement.
If the 30 ft. lb. value is applied to the 1976 data, then the projected ten EFPY RTN value would be within the Commission's current screening criterion.
3.
Ms. Lorion also criticizes the use of Unit 3 data for determining the embrittlement of Unit 4.
Each lot of welding material used in nuclear reactors is somewhat different.
Samples of various lots are put in the capsules.
Since PTS was not a concern when the Turkey Point reactors were built, it was not known at the time which weld would later turn out to be critical.
It. now turns out that no samples of the critical weld lot for Unit 4 were put in a Unit 4 capsule, although some were put in the capsules in Unit 3.
Thus a more accurate data point of embrittlement of the critical weld in Unit 4 can be obtained by using the Unit 3 sample, corrected for differences from Unit 4, than from using the Unit 4 capsules of different welding material.
Contrary to Ms. Lorion's assertions, Petitioner's Reply at 15, the licensee letter dated October 23, 1981, which
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g identifies an RTND value for Unit 4 and states that the value
'I "is based on Unit 3 data which has been shown to'be more representative of Unit 4 than the surveillance capsule removed from Unit 4," does not indicate that Charpy tests of Unit 3 capsules were used to determine the RTNDT of Unit 4.
- Rather, licensee used the chemical content of the Unit 3 surveillance capsule in the formula for determining RT><DT, because, as noted above, the Unit 3 capsule is more representative of the critical weld in the Unit 4 vessel.
'Thus there is no "alchemy", Petitioner's Reply at 14-15, in using Unit 3 surveillance data 'as an input into determining the embrittlement of Unit 4.
4.
With regard to Professor George Sih's
- comments, see Petitioner's Reply at 17-18, his statements that embrittlement depends on the "combined effects of irradiation and pressurized thermal shock" and-that the "loadin histor plays a major role," are unsubstantiated and are contrary to the basic assumptions behind the NRC use of radiation damage trend curves, which are derived from a compilation of data from many reactors.
- See, e.cC., Regulatory Guide 1.99.
Professor Sih's views were considered as part of the PTS studies in the 1981-82 time period and were rejected as not being substantiated by technical information.
5.
The NRC on receipt of 10 C.F.R. 5 2.206 petitions reviews the information presented in the petition and other relevant documentation and explains its decision.
Since the 1976 data now cited by Ms. Lorion was not referred to in her petition, is invalid, and was invalid in
- 1981, the NRC did not find it necessary to address this 1976
- data, or numerous other documents, in order adequately to respond to Ns. Lorion's request.
6.
In sum, to assess the safety of individual plants the'.Coaanission uses available data, corrected to allow for differences between plants, to determine both the amount of radiation at the location of the critical weld and the weld's ability to withstand that radiation.
That was done for Turkey Point, Unit 4, in 1981, and those calculations are not affected by the. outdated 1976 data-points.
I declare under penalty of perjury that. the foregoing is true and correct.
Executed on December ~,
1985.
ryor H.
an a
r Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Reports.
Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press.
%1tifHl SfHfP8 501Rt 8f ApptHIB
'OR THE DISTRICT OF COLUMBIA CIRCUIT No. 82-1132 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 On Petition for Review of an Order of the United States Nuclear Regulatory Commission Argued December 16, 1985 Decided March 18, 1986 Martin H. Hodder, with whom Terence J. Anderson, of counsel, was on brief for petitioner.
Richard P. Levi, with whom R Henry Habicht, II, Assistant Attorney General, Herzel H. E. Plaine, General 9
MCa'ills of costs must be filed vrithin 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out of time.
Counsel, W'illiamH. Briggs, Jr., Solicitor, E; Leo Slaggie, Deputy Solicitor, Dirk D. Snel, and John A. Bryson were on brief for,respondents.
Harold E..leis, with whom Holly N. Lindeman and Norman A. Coll, of counsel, were on brief for intervenor.
Before:
MIKVA, Circuit Judge, and MACEINNON and SwYGERT," Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge MI vA.
MIKvA, Circuit Judge:
For more than four years, Joette Lorion has been trying to force the Nuclear Regu-latory Commission
("NRC" or "the Commission" )
to take action against a nuclear power plant near Miami, Florida.
She fears that the Turkey Point Unit g4 nu-clear 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 in-creasing.
Her crusade began with a letter to the Com-mission; 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 afBrm the Commission's decision.
The nuclear fuel that provides the power in a reactor is packaged in rods.
When in use, these rods are con-tained in steel pressure vessels inside the reactor.
The steel walls of the vessel are constantly exposed to radia-tion; this exposure causes the metal to become "embrit-
~ Of the United States Court of Appeals for the Seventh Circuit, sitting by designation pursuant to 28 U.S.C. g 291(a)
(1982).
tied," which means that it is prone to cracking or shat-tering wHen 'subjected to rapid changes in temperature or pressure.
These sudden changes are called "pressur-ized 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 con-sequences.
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, result-ing 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-Neto Nnclear-Reactor Safety Ho"ard?, Popular
- Science, June 1988, at 55.
In 1981, concern about the embrittlement problem led petitioner, on behalf of the Center for Nuclear Respon-sibility (of which Lorion was the sole member) to write a short letter to the NRC concerning Turkey Point Unit g4.
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 e. Nuclear Regula-tory Commission, 712 F.2d 1472, 1478 (D.C. Cir. 1988).
The Commission'treated Lorion's letter as an enforce-ment request under 10 C.F.R.
h 2.206 (1985).
Section 2.206(a) provides that Any person may file a request
[with the NRC] to institute a
proceeding pursuant to I'10 C.F.R.J 3 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
.o;joe ga forth the facts that constitute the basis for the re-quest.
On November 5, 1981, the NRC denied petitioner's re-quest.
Florida Power and Light Co.,
14 N.R.C.
1078 (1981).
Thy 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 embrittle-ment could present a long term problem, but it assured Lorion that it was monitoring Turkey Point g4, and that the "NRC will take timely action in relation to the reac-tor 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 cfog Light Co. v. Lorion, 105 S. Ct. 1598 (1985).
On the same day that it decided Lorion, however, the Court also handed down Heckler v. Chancy, 105 S.
Ct.
1649 (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 Chancy 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 sus-pended or revoked.
In the alternative, petitioner claims that the court should remand to the NRC for a reconsid-eration of her request, with the opportunity for her to provide additional evidence.
We first address the question of whether the NRC's decision not to issue a show cause order is reviewable.
In
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Heckler v. Chancy, 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 @at this type of decision "often involves a compli-cated balancing of a number of factors which are pecu-liarly 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 pri-orities."
105 S. Ct. at 1656.
Based on these considera-tions; Chancy held that decisions not to enforce are "pre-sumed" to be "committed to agency discretion by law" under the Administrative Procedure Act, and thus free from judicial review. Id.; 5 U.S.C.
5 701(a) (2)
(1982).
This presumption may be rebutted.
A court may re-view a decision when the agency's governing statute pro-vides guidelines as to when the agency must take en-forcement action.
Chancy, 105 S. Ct. at 1656-57; cf. Dun-lop v. Bachomsk~, 421 U.S. 560 (1975)
(cited by Chancy as an example where governing statute gave court "law to apply").
The crucial consideration is whether Con-gress intended to circumscribe agency enforcement dis-cretion, and has provided statutory standards for the re-viewing court to follow. 105 S. Ct. at 1657.
Chancy did not
- decide, however, whether non-statutory standards could similarly restrict agency discretion; the Court
"[left] to one side the problem of whether an agency's rules might under certain circumstances provide courts with adequate guidelines for informed judicial review, of decisions not to enforce." Id. at 1658 (emphasis added).
The parties admit that the application of Chancy to
'this case raises difficult questions, Although we doubt that on the facts before us the NRC's discretion is re-stricted by the Atomic Energy Act, 42 U.S,C.
$ $ 2011-2296 (1982), petitioner argues that the regulations and NRC precedent require the Commission to initiate action when ceitain types of health and safety issues are raised.
She also claims that the NRC's decision was not "analo-
gous" to the type of enforcement action before the Court in Chancy, so that the presumption of non-reviewability does not apply.
Even though it is a "threshold" question, the court need not plumb the intricacies of this reviewability conundrum in the instant case.
The merits of Lorion's underlying claims are sufficiently clear that we can and should avoid the potentially far-reaching questions on the scope of Chancy.
The decision to avoid a difficult threshold ques-tion and resolve the substantive dispute is not new; both the Supreme Court and this court have used the proce-dure to restrict cases to their narrowest possible holding, particularly when the threshold question involves impor-
~ tant constitutional or public policy issues.
In Chinese American Civic Council
- v. Attorney General of the United States, 566 F.2d 321 (D.C. Cir. 1977), we re-fused to decide a complex standing question, and instead resolved the underlying dispute.
We found that "[p1ru-dential considerations also restrain us from deciding the difficult and unquestionably far-reaching standing ques-tion when the merits of the case readily provide a fair, clear resolution of the appeal."
Id, at 325 (footnote omitted); see also Chandler v. Jud ciel Council, 398 U.S.
74, 86-89 (1970)
(Court declined to reach jurisdictional question because petitioner failed to establish underlying case). We find that this case presents a similar situation, and therefore turn to whether the Commission abused its discretion in denying Lorion's enforcement request.
Petitioner mahes three arguments that concern the merits of her appeal.
First, she says that the NRC ig-nored its own policies and precedent in deciding not to institute a license review procedure.
The NRC has ruled that whenever a request for enforcement is made under 10 C.F.R. 3 2.206, the Commission is required to issue a show cause order if it decides that "a substantial health
and safety issue" has been raised.
Consolidated Edison Co. of ¹w York, 2 N.R.G. 173, 176 (1975), cited in Florida. Poioer dc Light v. Lorion, 105 S. Ct. at 1601; In re PJuladelphia Electric Co.,
22 N.R.C.
149 (1985).
Lorion argues that the NRC has conceded that the in-tegrity of steel pressure vessels is a substantial safety issue, and that it was therefore an abuse of discretion not to take action.
Petitioner admits that the Commission never explicitly characterized the potential for vessel embrittlement as a "substantial" safety issue.
She notes, however, that in
.the NRC response to her letter, it referred to the reactor vessel "problem," and that in an unrelated policy state-ment, the NRC stafF considered embrittlement a "safety concern."
NRC Policy
- Issue, SEC Y-81-286, Enclosed Memo at 3A (May 4,,1981)
(April 28, 1981 memo from Eisenhut to Denton).
Even more significant, in Lorion's eyes, is a letter from the Commission to FPL, stating that the vessel embrittlement at Turkey Point Unit +4 was "approaching levels of concern."
Letter from Darrell G.
Eisenhut, Director, Division of Licensing, OfBce of Nu-dear Reactor Regulation to Robert E. Uhrig, Vice Presi-dent, Florida Power & Light Co. (Aug. 21, 1981).
Be-cause of this concern, the letter required FPL to submit information, under oath, on the condition of the reactor.
?d.;
(1985)
(Commission au-thority to require additional information).
We cannot accept the contention that the NRC has im-plicitly categorized the concerns raised by petitioner as "substantial health and safety" problems.
This phrase is a term of art within the Commission, because it is the language reserved as a trigger for action rather than a description of the severity of the concern.
The language of the Commission's references here shows that it consid-ered embrittlement a problem, but not necessarily a "sub-stantial" problem that would mandate a hearing proce-dure.
The Commission's precedents make it clear that it
bli ated to take enforcement action "whenever is no o
iga we receive information adverse to the integri y o exi mg nuuclear power safety or safeguard systems."
In re Nuclear..Regulatory Commission, 5 N.R.C. 16, 21 (19
),
p
~
~
77 citing Nader e.
Nuclear Regulatory Commission, 513 F.2d 1045, 1{)54-55 (D.C. Cir. 1975).
We are not con-vinced that the NRC decided that embrittlement was a substantial issue simply because the problem was "ap-proaching levels of concern."
The broader question of whether a particular issue should be considered substantial, and thus whether en-forcement action is required, must be left to the Com-
~ mission's discretion.
Porter County Chapter v. Nuclear Regulatory Commission, 606 F.2d 1363, 1369 (D.C. Cir.
1979).
We find that the NRC reasonably concluded with respect to Turkey Point Unit +4 that this was not such an issue at this time. As it pointed out in the re-sponse rion to Lorion's letter, the Commission had been study-that ing the pressure vessel problem and had concluded a
the risk to public health was very low. It acknowledged that there was the potential for problems in the long run, but noted that it was working to correct the matter through an ongoing, plant-specific investigation.
I'lorida Power and Light, 14 N.R.C. at 1083.
Based on the d
e cannot say that the Commission abused its cc b
discretion in refusing to consider Lorion's concerns su-stantial," or to institute a licensing procedure.
Petitioner's second claim is that the NRC's rejection of her enforcement request was arbitrary because it failed to consider all the relevant evidence.
She argues that two critical documents which she believes clear y show the danger of the reactor were never mentioned by the Commission in its response to her letter. In her brief, Lorion also provides a long list of other docu-ments that were available to the Commission, but that th were not mentioned or not discussed in the reply.
She suggests that the failure to even acknowledge the
evidence means that it was not properly considered, and that the ultimate decision was therefore irrational.
The two:crucial documents Lorion cites both purport to show that the steel vessels at Turkey Point are em-brittled beyond safe levels.
The first is a 1976 report to the NRC, stating that the embrittlement in Unit.g4 was both higher than expected and higher than the embrittlement in Unit >3.
The second document is the response by Florida Power to the NRC request for information.
In this response, FPL supplied data to show the condition of reactor Unit +4, based on data gathered from Unit g3; the company concluded that it was "more representative" of the conditions at Unit g4 than the Unit +4 data itself. Lorion implies that FPL is trying to camouflage the problems with the g4 reactor by presenting irrelevant evidence, It is true that an agency has a duty to consider all the evidence, and to explain its decision fully. City of Charlottesville
- v. Federal Energy Regulatory Commis-sion, 661 F.2d 945, 950 (D.C. Cir. 1981); Asarco Inc. v.
Environmental Protection Agency, 616 F.2d 1158, 1159 (9th Cir. 1980). It does not necessarily follow, however, that the failure to mention certain evidence means that it was not considered, nor does it follow that an explana-tion is incomplete unless it dutifully lists all the evi-dence that the Commission examined.
The NRC's denial of a request for a show cause order will be upheld as long as all the necessary factors were considered, and provided that the statement of reasons given permits a "rational understanding of the basis for [the] decision."
Consolidated Edison Co.,
2 N.R.C. at 175; see Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance, 463 U.S. 29, 48 (1988).
The Commission easily met its obligation here.
The basis of the NRC's decision was explained in sufBcient detail to allow this court to conduct a meaningful re-view. There will be times, of course, when a reasoned
10
,response is impossible without a discussion of contrary evidence, particularly when that evidence is mentioned in the enforcement request.
But as long as the Commis-sion's reply fairly addresses the. issues raised, the failure to rebut every argument raised by petitioner is not a per se abuse of discretion.
To require the NRC to men-tion and analyze every document relevant to a hearing request would completely clog an agency's decisional
- process, There is nothing in administrative law that allows a complainant to filibuster the processes with a huge number of documents.
Lorion's final argument warrants only brief mention.
~
She asks this court to consider the evidence on embrittle-ment and reverse the NRC's decision; she claims that the overwhelming evidence makes its "impossible" to conclude that no substantial safety issue was presented.
This misinterprets our scope of review, and ignores the latitude we must afford the Commission's decisions.
Courts are required to give their highest level of defer-ence to decisions involving novel questions at the "fron-tiers of science."
Baltimore Gas Ck E/ectric Co. ~. Na-tional Resources Defense
- Council, 462 U.S.
87, 103 (1983).
The susceptibility of steel reactor vessels to pressurized thermal shock seems to be just such an issue.
We would only overturn the Commission's decision if it were completely unsupported by the record; because that is not the case, we decline to substitute our judg-ment for that of the NRC's.
See Porter
- County, 606 F.2d at 136V-VO.
CONCLUSION The NRC provided a reasoned explanation for its de-cision in this case and thus it did not abuse its discre-tion by refusing to issue a show cause order.
We have considered the rest of petitioner's claims, and find them similarly unpersuasive.
We therefore affirm.
It is so ordered.