ML20079L027
| ML20079L027 | |
| Person / Time | |
|---|---|
| Site: | 05000000, Turkey Point |
| Issue date: | 06/28/1982 |
| From: | Slaggie E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20079F227 | List: |
| References | |
| FOIA-83-363, TASK-AII, TASK-SE SECY-82-272, NUDOCS 8401250263 | |
| Download: ML20079L027 (60) | |
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l ADJUDICATORY ISSUE June 28',
1982 (InfOrmation)
SECY 82-272 For:
The Commissioners From:
E. Leo Slaggie Acting Solicitor
Subject:
LORION V. NRC (D.C. CIR. CT. OF APP. NO.
82-1132)
Purpose:
To transmit to the Co:rJnission the NRC's brief in this case.
Discussion:
On June 14, 1982 OGC filed the attached brief involving the denial of a 2.206 petition at Turkey Point Unit 4.
The main issues raised by petitioner Joette Lorion are whether the NRC acted unlawfully in treating her letter to the Commissioners as a petition under 10 CFR 2.206 and whether the Commission must hold an evidentiary hearing on the question of whether to deny or grant a request under
Contact:
Rick Levi, OGC X41465 8401250263 831018 PDR FOIA WEISS83-272 PDR
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2 10 CFR 2.206.1/
The brief points out that the treatment of her letter under 10 CFR 2.206 in no way harmed her, and that such treatment is both reasonable and consistent with the Commission's regulations.
The brief also explains that there is no requirement for a hearing to determine whether to grant or deny a request under 10 CFR 2.206.
Ms. Lorion also argues that the Commission has acted unlawfully in allowing Turkey Foint Unit 4 to operate for longer than six months between inspections of the steam generators.
a The brief explains that the NRC has found that allowing operating extensions for up to ten months between inspections adequately protects the public health and safety.
GC?
i, d U d e y.. I E. Leo Slaggie Acting Solicitor
Attachment:
Brief
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The question presented in this case differs from the normal 2.206 challenge.
Normally petitioners argue that the NRC has abused its discretion in declining to institute a proceeding to determine whether or not to suspend a license or permit.
- See, e.g.,
Seacoast Anti-Pollution League v. NRC- (D.C. Cir. No. 81-2146);
Rockford League of Women Voters v. NRC (7th Cir. No.
81-1772).
Here, however, petitioner argues that due process requires an evidentiary hearing before a 2.206 request can be denied.
DISTRIBUTION
^
Commissioners i
Commission Staff Offices EDO SECY OELD ASLBP ASLAP
. e, s
IN THE UNITED STATES COURT OF APPEALS FOR THE l
DISTRICT OF COLUMBIA CIRCUIT l
NO. 82-1132 JOETTE LORION, d/b/a/
CENTER FOR NUCLEAR RESPONSIBILITY, Petitioner, vs.
)
UNITED STATES NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents, l
FLORIDA POWER AND LIGHT COMPANY, Intervenor.
ON PETITION TO REVIEW FINAL ORDER OF THE UNITED STATES NUCLEAR REGULATORY COMMISSION BRIEF FOR RESPONDENTS
i,
. i, TABLE OF CONTENTS Page QUESTIONS PRESENTED 1
RELATED CASES 2
STATEMENT OF THE CASE 2
1.
Nature of the Case 2
2.
The Facts 4
(a)
Show-cause proceedings under 10 CFR Part 2 4
(b)
The petition to the Commission 6
(c)
The Director's Denial.
8 (d)
Subsequent action before the Commission 13
SUMMARY
OF ARGUMENT 15 ARGUMENT.
18 I.
THE COMMISSION'S TREATMENT OF MS. LORION'S LETTER AS A PETITION UNDER 10 CFR 2.206 WAS A LAWFUL EXERCISE OF AGENCY DISCRETION AND HAS NOT DEPRIVED MS, LORION OF ANY RIGHTS OR OTHERWISE HARMED HER 18 l
A.
Ms. Lorion Has Suffered No Harm.
18 B.
The Commission's Action In Treating Ms. Lorion's Letter Under 10 CFR 2.206 Was Both Reasonable and Consistent With Its Regulations 19 II.
THE COMMISSION IS NOT REQUIRED TO OFFER AN EVIDENTIARY HEARING WHENEVER IT RECEIVES A REQUEST UNDER 10 CFR 2.206 21 III. THE DIRECTOR'S DECISION IS REASONASLE AND LANFUL ON THE MERITS 27 A.
Contrary to Petitioner's Assertion, the NRC Has Never Used "Mootness" to Avoid Responding to Concerns. Bout Steam Generator Integrity 27 i
M B.
The Director's Decision Not to Institute a Proceeding Under'
_10 CFR 2.206 Was Correct 29 CONCLUSION.......................
32
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TABLE OF AUTHORITIES Page CASES A.
Judicial Decisions Dunlop v. Bachowski, 421 U.S. 560 (1975) 29 Honicker v. NRC, 590 F.2d 1207 (D.C. Cir.
1978), cert. denied 441 U.S. 1072 (1979) 22, 31 Jaffer v. NRC, No. 81-8035 (D.C. Cir. Oct.
2, 1981), cert. denied 50 U.S.L.W.
3766
(!! arch 777 1982) 32
- Moten v. Bricklayers, Masona and Plasterers International Union, 543 F.2d 224 (D.C. Cir. 1976).
32
- People of State of Illinois v. NPC, 591 F.2d 12 (7th Cir. 1979) 6, 23
- Porter County Chapter v. NRC, 606 F.2d 1363 (D.C. Cir. 1979) 5,6,16,22, 23,25,29,30
- Rockford League of Women Voters v. NRC, F.2d
, No. 81-1772 (7th Cir. June 3, 1982) 6,23,29 B.
Administrative Decisions Carolina Power & Light Company (Brunswick Steam Electric Plant), 40 Fed. Reg. 17065 (April 16, 1975) 22
\\
Consolidated Edison Company of New York (Indian Point, Units 1, 2 and 3), CLI-75-8, 2 NRC 173 (1975) 5, 6
Consolidated Edison Company of New York (Indian Point Units 1-3), DD-80-5, 11 NRC 351 (1980) 22 Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), DD-dO-9, L1 NRC 392 (1980) 22 Denial of Petition for Revoking Nuclear Power Plant Licenses, 46 Fed. Reg. 39573 (August 4, 1981).
20
(
Cases eniefly relied upon are marked by an asterisx.
iii
.o Page B.
Administrative Decisions (Cont.)
Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit 2), DD-80-33, 12 NRC 598 (1980) 20 Florida Power and Ligh't Co. (Turkey Point Nuclear Generating Station, Units 3 and 4),
LBP-81-14, 13 NRC 677 (1981) 31
- Florida Power and Light Co. (Turkey Point Plant, Unit 3), D0-80-28, 12 NRC 386 (1980) 9,20,28, App. 2 Florida Power and Light Co. (Turkey Point Plant, Unit 4), DD-81-21, 14 NRC 1078 (1981) 3,9,10,11, 12,13 Memorandum and Order Regarding Filing of Petition for Shutdown of Certain Reactors, 38 Fed. Reg. 23815 (September 4, 1973) 4 Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), CLI-78-7,#7 NRC' 429 (1978), aff'd Porter County Chapter v. NRC, 606 F.2d 1363 (D.C. Cir. 1979) 5,18,24,26 Petition for Emergency and Remedial Action, CLI-78-6, 7 NRC 400 (1978) 20 Portland General Electric Co. (Trojan Nuclear Plant), DD-80-26, 12 NRC 241 (1980) 20 Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2),
CLI-80-10, 11 NRC 438 (1980) 5 Rochester Gas & Electric Corp. (R.
E. Ginna Nuclear Power Plant), DD-82-03, NRC (May 22, 1982) 23 Virginia Electric Pcwer Company (North Anna Power Station, Units 1 & 2), 0D-79-24, 10 NRC 862 (1979) 20 Virginia Electric Power Company (Surry Nuclear Power Station, Units 1 and 2), CLI-80-4, 11 NRC 405 (1980) 22
" App." refers to pages in the Appendix to this 3rief.
l iv
9 Page i
STATUTES Administrative Procedure Act, 5 U.S.C. 554 25 Atomic Energy Act of 1954, as amended,.42 U.S.C.
2239 23-REGULATIONS 10 CFR 2.202.
4, 22 10 CFR 2.206.
2,3,4 in passir[~
- 10 CFR 50. 5 4 (b) 13, App. 9 MISCELLANEOUS
- NUREG-0737, Clarification of TMI Action Plan Requirements (1980)
App. 8
- NUREG-0410, NRC Program for the Resolution of Generic Issues Related to Nuclear Power Plants (1978)
.7.....
App. 1,7
- SECY-81-286, Pressurized Thermal Shock (1981)
App. 7,8
- NUREG-0886, Steam Generator Tube Excerience (1982)
App. 1,2,8
- Regulatory Guide 1.83 App. 2 39 Fed. Reg. 12353 (April 5, 1974) 4,15,19 42 Fed. Reg. 36239 (July 14, 1977) 26 42 Fed. Reg. 62569 (December 13, 1977) 31
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i IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
)
JOETTE LORICN, d/b/a/ CENTER
)
FOR NUCLEAR RESPONSIBILITY,
)
)
Petitioner,
)
)
v.
)
)
No. 82-1132 U.S. NUCLEAR REGULATORY
)
)
)
Respondents,
)
)
and
)
)
FLORIDA POWER AND
)
LIGHT COMPANY,
)
Intervenor-
)
Respondent.
)
)
BRIEF FOR RESPONDENTS QUESTIONS PRESENTED 1.
Did the Commission act unlawfully by treating the petitioner's written request for an agency proceeding to shut down Unit 4 of the Turkey Pcint power reactor as a formal petition for enforcement under 10 CFR 2.206?
2.
May the Commission deny a petition to institute an enforcement preceeding without offering the petitioner 4
-1
an evidentiary hearing to determine whether to grant the request?
3.
Did the Commission act unlawfully in dismissing as moot petitioner's request that.the plant be shut down for an inspection of the steam generators when, in fact, such a shutdown had occurred?
STATEMENT REQUIRED BY LOCAL RULE 8 (b)
Th s case has not previously been heard before this Court, nor any other court.
Counsel for respondents are unaware of any related pending case in this or any court.
STATEMENT OF THE CASE 1.
Nature of the Case This case appears to have come before the court primarily because of petitioner Jeette Lorion's belief that the Nuclear Regulatory Commission (NRC or Commission) acted unlawfully in treating her September 11, 1981 letter to the Commission as a request under 10 CFR 2.206, and that she has been prejudiced by that treatment.
Because of this perceived harm, Ms. Lorion is requesting the court to vacate the NRC's decision as being unlawful.
Ms. Lorion also believes that the NRC's action violates NEPA and that the i
l NRC unlawfully said her specific request.was mcot to avoid holding a hearing on her safety concerns.
Ms. Lorian is 2
therefore requesting the Court to direct the NRC to hold such a hearing.
In her September 11 letter, Ms. Lorion requested L
(1) that Turkey Point Unit #4 be shut down immediately-for a.
steam generator inspection, (2) that the NRC "derate" the unit once 25% of the steam generator tubes become plugged, and (3) that the NRC " consider the suspension" of the operating license for Unit 4 until Florida Power & Light (FP&L) shows that Unit 4's pressure vessel would not crack during a loss of coolant accident.
(R. Doc. 1 J.A.
)l/
The Commissioners referred Ms. Lorion's letter to the NRC's Director of the Office of Nuclear Reactor Regulation
(" Director") for treatment as a request for-action under 10 CFR 2.206.
1 The Director issued a response denying Ms.
Lorion's requests.
Florida Power and Light Company (Turkey Point Plant, Unit 4), DD-81-21, 14 NRC 1078 (1981). (R. Doc.
3 J.A.
)
With regard to Ms. Lorion's concerns about the steam generators, the Director noted that Unit 4 had been shut down for an inspection of the steam generators and that the problem of steam generator tube integrity was receiving
'i careful ongoing review and analysis.
Finding that the public health and safety was adequately protected, the Director concluded that further action was unnecessary at 1/
"R.
Doc." refers to Record Decuments which are
~
consecutively numbered in the Certified Index of the Record.
"J.A.
" refers to pages in the Deferred Joint Appendix.
3
a
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i this time.
With regard to pressure vessel integrity, the Director found no near term threat of reactor vessel failure i
and thus no need for immediate licensing action.
The Director also noted, however, that NRC. staff was.taking additional action to resolve the long-term problem.
On receiving the Director's decision Ms. Lorion informed the Commission that her letter had been intended to be merely advisory and requested that the Commission rescind the Director's decision.
(R. Doc. 4& 5 J.A.
)
The Commission declined either to review the decision or rescind it, thus allowing the Director's decision to stand as final agency action.
(R. Doc. 6 J.A.
)
This appeal followed.
2.
The Facts (a)
Show-cause proceedings under 10 CFR Part 2 In the early 1970's, the Commission had no regulatory means of dealing with citizens' letters requesting specific enforcement action against its licensces.
See, e.g.,-Memorandum and Order Regarding Filing of Petition for Shutdown of Certain Reactors, 33 Fed. Reg. 23815 (September 4, 1973).
In response to these concerns, the Commission adopted 10 CFR 2.206 in 1974 "to provide a procedure for the submittal of such requests to the Director of Regulation."
39 Fed. Reg. 12353 (April 5, 1974).
(.J.A.
)
Under 10 CFR 2.206 any person, regardless of interest, may request the NRC staff to institute a i
proceeding under 10 CFR 2.202 to modify, suspend or revoke a 4
license, or for such other action as may be proper.
The regulations specifically contemplate license violations or the existence of a potentially hazardous condition as grounds for issuance of such an order.
10 CFR 2.202 (a). (1).
The director of the cognizant staff office (the Office of Nuclear Reactor Regulation, the Office of Nuclear Materials Safety and Safeguards, or the Offica of Inspection and Enforcement) investigates the request, and either institutes the proceeding or explains in writing the reasons for not doing so.
The appropriate staff director is required only to take an " inquiry apprcpriate to the facts asserted."
Consolidated Edison Company of New York (Indian. Point, Units 1, 2 and 3), CLI-75-8, 2 NRC 173, 175 (1975).
A petition must set forth the facts forming the basis of the request, i
since the Director is not required to develop such facts or assume they exist.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), CLI-80-10, 11 NRC 438, 443 (1980).
The Director can rely on information from a variety of sources, includ'ing staff analyses of generic issues and licensee comments.
Northern Indiana Public Service Co. (Bailley Generating Station, Nuclear-1),
CLI-78-7, 7 NRC 429 (1978), aff'd Porter County Chapter v.
NRC, 606 F.2d 1363 (D.C. Cir. 1979).
The Director need not issue a show-cause order solely because of a dispute over
. factual issues.
Consolidated Edison Ccmpany of New York, CLI-75-8, supra.
This regulatory scheme of having staff 5
I conduct a preliminary investigation to determine whether or not to institute a proceeding has been upheld as reasonable and consistent with both the Atomic Energy Act and the Administrative Procedure Act.
Porter County Chapter v.
Nuclear Regulatory Commission, 606 F.2d 1363, 1368-69 (D.C.
~
Cir. 1979);
People of State of Illinois v. Nuclear Regulatory Commission, 591 F.2d 12, 14 (7th Cir. 1979).
See also Rockford League of Women Voters v. NRC, F.2d
, No. 81-1772 (7th Cir. Jun.e 3, 1982).2/
Directors' decisions of this kind are not appealable to the Commission, but the Commission may review them sua sponte to determine whether the Director has abused his discretion.
See Consolidated Edison Co. of New York, CLI-75-8, supra.
(b)
The petition to the Commission On September 11, 1981 Ms. Lorion wrote the Commission "out of concern about Turkey Point nuclee.r unit i
i
- 4 (R. Doc. 1 J.A.
).
In this letter Ms.
Lorion raised two separate safety concerns:
pressure vessel l
integrity and steam generator tube integrity.
As to pressure vessel integrity, Ms. Lorion asserted "that Turkey Point Unit #4 is one of eight. nuclear reactor units that the t
NRC has named whose steel pressure vessel may be vulnerable 2/
The Seventh Circuit's slip cpinion in Rockford League of Women Voters v. NRC is attached for the Court's i
information in th'e ippendix to this brief.
I k
6
to cracking or shattering" in the event of emergency cooling, and that since a number of steam generator tubes are blocked because of leaks, Unit 4 may be more susceptible to overheating and thus emergency cooling.
Ms. Lorion also noted that pressure vessel integrity is an unresolved safety issue before the NRC.
Based on this, Ms. Lorion requested the NRC to " consider the suspension of the license for Turkey Point Unit #4 until such time as FP&L submits proof that this reactor unit's pressure vessel would maintain its integrity in a loss of cooling accident."
As to the steam generator tube integrity issue, Ms. Lorion stated that " Unit #4 is required to be shut down every six months for steam generator inspection and tube plugging in order to maintain safe operation of the unit" but that the NRC had allowed Unit #4 to continue operation
(
past the scheduled date for its six-month inspection.
Ms.
Lorion also asserted that Unit #4 is now operating with steam generator tubes that may be on the verge of leaking, and that, if only a handful of tubes ruptured in an l
accident, the emergency core cooling system would be stalled l
and the core could melt.
Ms. Lorion further noted thar steam generator tube integrity.is an unresolved safety issue before the NRC.
Ms. Lorion requested that the NRC "derate" 7
the unit when 25% of the tubes become plugged 3/ and that l
the NRC shut down Unit 4 immediately for an inspection of 1
the steam generator. In addition to these. specific. requests,.
Ms. Lorion also asked that "the Nuclear Regulatory Commission take steps to immediately initiate a license i
review of this nuclear reactor unit."
(c)
The Director's Denial i
The Director dealt with each of Ms. Lorion's
-3/
About 25% of the steam generator tubes have.been plugged, or blocked to the flow of coolant water due to cracking problems.
Cracks or other leaks mean that water circulating about the radioactive reactor core (primary coolant) may flow into and mingle with largely uncontaminated water (secondary coolant) which is used to cool the primary coolant and which is converted to steam to turn the turbines that generate electricity.
The interface between the primary coolant and secondary coolant occurs in the steam generator in narrow tubing pipes.
A discussion of the technical background is contained in an Appendix to this brief.
8
requests in turn.4/
Florida Power and Light Company (Turkey Point Plant, Unit 4), DD-81-21, 14 NRC 1078 (1981).
(R. Doc. 3 J.A.
)
As to the request to shut down the
(
plant for an inspection of the steam generators, the i
Director began by explaining the background of the steam 1
generator problem:
In the mid-1970's, a number of nuclear power plants, including Turkey Point Plant Unit Nos. 3 and 4, began to have problems with leaking steam generator tubes due to a corrosive process called
" denting."
On October 29, 1976, the NRC staff set forth minimum requirements to ensure that Units 3 and 4 would not, as a result of this denting phenomenon, operate with reduced integrity of the primary system pressure boundary.
Since that time the plants have operated under strict requirements imposed by the NRC staff.
Id. at 1079 (quoting Florida Power & Light Co. (Turkey Point Plant, Unit 3), DD-80-28, 12 NRC 386, 388 (1980)).
The Director then explained the NRC policy here as follows:
Under the terms of these requirements, Florida Power and Light Company (FPL) has received permission for short-term extensions of operation for Unit Nos. 3 and 4 in the form of license I
l
-4/
For completeness this brief will discuss the Director's decision in its entirety.
It appears, however, that Ms. Lorion's primary concern is her belief that she has been harmed by the treatment of her letter as a petition under 10 CFR 2.2,06.
She presents no argument that the underlying basis of the Director's decision is erroneous beyond her assertion that the Director unlawfully dismissed her request for an inspection as moot.
The Court may thus find it unnecessary to consider the factual background of the steam generator and pressure vessel safety concerns or most of the substance of the Director's decision.
Accordingly, a discussion of the factual background of the steam generator and pressure vessel concerns has been relegated to an appendix to this brief.
9
amendments.
Following shutdown, inspection and plugging of tubes that were judged by the licensee to be in danger of leaking in the ensuing 10 months, and NRC staff analysis of the inspection and plugging, licanse amendments were granted to allow six months of full power equivalent operation.
Subject to operating experience which indicated that further operation befors shutdown and inspection would not endanger public health and safety, additional extensions have also been granted, for totals of up to 10 months of full power equivalent operation between inspections.
Id. at 1079 (J.A.
),
The Director then noted the most recent extensions, explaining that "(a]n Laportant factor underlying the decision to grant the extensions
. has been the continued essentially leak-free operation of the steam generators throughout the period in question."
Id. at 1080 (J.A.
)
The Director concluded, s'ince FP&L had shut down Unit 4 and commenced an inspection of the steam generators on October 19, 1981, that "the request in the petition for a shutdown to inspect the steam generators is now moot."
Id.
The Director next dealt with the allegation that operation of Unit 4 was unsafe because of the number of plugged tubes.
The Director noted that the NRC staff had considered the safety of such operation in evaluating applications for two license amendments in 1980 (no. 50)
(R.
Doc. 11). and in 1981 (no. 60)
(R. Doc. 17) in which the NRC permitted operation of Unit 4 with 25 percent of the tubes plugged, and with 28% of t'he tubes plugged, respectively.
The Director explained the tube plugging program as follows:
10
The safety analysis supporting Amendment 60 does not imply that plugging of more than 28 percent of the tubes would be unsafe; the analysis was performed at the 28 percent level because it is expected that the 28 percent limit will be fully sufficient to allow plugging of all tubes which the current inspection of Unit 4 will show might be' susceptible to leaking in the foreseeable future.
The plugging is, and has been, carried
~
out by the licensee as a prophylactic program, and it has been successful in preventing leakage since mid-1978.
Id. at 1080-81. (J. A.
).
The Director next replied to the statement in Ms.
Lorion's lettsr quoting the NRC to the effect that "we do not have an adequate technical basis to predict steam generator performance for periods longer than six months."
The Director noted that Ms. Lorion had not identified the source for that statement, but that the NRd had made a 4
virtually identical statement in the Safety Evaluation acccmpanying License Amendment 52 for Turkey Point Unit 3.
(R. Doc. 9).
The Director placed that statement in context by noting the sentence quoted and relied on by Ms. Lorion had continued ".
. and that our consideration of extended operation beyond six (6) months would depend upon the operating experience at this and similarly degraded units."
The Director explained that this reflected the consistent policy of the Commission with' regard to Turkey Point Units 3 and 4, that "it is clear the six-month-initial period of operation after an inspection of steam generators may be followed by extensions, provided the technical basis supplied by the licensee, and the relevant operating experience, justify ~the extensions.
This course of action 11
.. _., a.
... ~.
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has been followed in relation to Turkey Point Units No. 3 and 4 since 1977 and satisfactorily protects the public health and safety."
14 NRC at 1081~ (footnote omitted).
(J.A.
).
As to the allegation that the steam generator tubes may be on the verge Of leaking and that rupture of a handful of tubes would result in a core melt, the Director found as follows:
The Staff, based on its studies, does not anticipate that a " handful of tubes" will rupture
(" handful" is undefined in the petition), or that such an event, if it should occur, vould cause a core melt.
Neither does the petitioner advance any factual basis for anticipating such events.
Isolated breaks of single tubes which could be described by the word " rupture" have occurred in steam generators similar to those of Unit 4.
In.
these instances, however, the reactors have been shut down in an orderly fashion.
Id. at 1081-82.
(J.A.
).
The Director concluded that dual NRC requirements of regular monitoring of the steam generator tubes and shutdown of the reactor if leakage is excessive (as defined in the amendments) are fully adequate to protect the health and safety of the public.
Finally, the Director noted that while the generic concern about steam generator tube integrity is not yet fully resolved, "[t]he problem has received careful ongoing review and analysis, as described above.
Accordingly, and in view of the history of the steam generators of Unit 4, further action by NRC regarding Unit 4's steam generators is unnecessary at this time.
The procedures and safeguards instituted in relation to that problem are sufficient to 12
4 1
safeguard the public health and safety."
Id. at 1082 (footnote omitted).
(J.A.
).
,1 As to pressure vessel integrity, the Director first found that no immediate licensing action is required:
As a result of its evaluation to date, the staff has concluded that the probability of a severe i
overcooling transient is relatively low.
The staff has also concluded that, based on 4
present irradiation levels at operating reactors, reactor vessel failure from such an event in the near term is unlikely.
Therefor, no immediate licensing action is required for operating reactors including Unit 4.
Id. at 1082-82' (footnote omitted).
(J.A.
).
The Director also noted, however, that the NRC is 1
{
taking action to resolve the long-term prsblem:
1 (T]he staff believes that additiqnal action should.
be taken to resolve the long-term problem.
Toward this end, the staff, the Pressurized Water Reactor i
(PWR) owners' group, and PWR vendors are working together to determine the scope of the generic pressure vessel problem.
In addition, plants with the most limiting condition (in terms of assured period of continued safe operation) in each
{
vendor's group have been selected for individual I
study.
Unit 4 having been selected as one of the plants for plant-specific study, a letter dated August 21, 1981, was sent to require the licensee in accordance with 10 CFR 50.54 (f) of the i
I Commission's regulations to submit information for review.
Based upon the generic and plant-specific i
studies and reviews, NRC will take timely action in relation to the reactor vessel problem.
l 3
Id. at 1082.
(J.A.
).
1 (d)
Subsequent action before the Commission i
Upon receiving the Director's decision, and before l
the time in which the Commission could exercise its sua 1
l sponte power of review expired, Ms. Lorion_ notified the 4
Commission by letter dated November 12, 1981 that her i
13 1
September 11 letter had been advisory only and that she had not intended it to be a forma.'. petition under 10 CFR 2.206.
(R. Doc. 4 J.A.
).
Ms. Lorion stated that should the Center for Nuclear Responsibility decide to initiate "a formal petition for consideration of license review or possible shutdown of Turkey Point Nuclear Unit #4," the
~
petition would be labelled as such "in accordance with the rules of practice under 10 CFR 2.206" and that she would have representation of counsel.
Ms. Lorion reiterated her position both by telephone and by another letter dated November 12, 1981.
(R. Doc. 5 J.A.
).
In the November 12 letter Ms. Lorion asserted that "our rights are impaired by not having had the. opportunity to be represented by counsel."
Ms. Lorion further asserted that "if the Center for Nuclear Responsibility had intended to file a legal 4
petition on Turkey Point Unit #4, we would have presented a legal as well as factual case, and would have been represented by counsel."
Ms. Lorion req 6ested the Commission to therefor vacate the Director's decision.
The Commission declined to rescind the decision or exercise its power to take review, thus allowing the decision to stand as final agency action.
(R. Doq. 6 J.A.
).
This lawsuit followed.
l 14
SUMMARY
OF ARGUMENT Ms. Lorion apparently initiated this lawsuit because of a belief that she has been legally prejudiced by the Commission's treatment of her letter as a petition under 10 CFR 2.206.
This belief is unfounded.
A decision not to institute requested enforcement action has no res judicata or collateral estoppel effect.
Ms. Lorien may at any time submit another 10 CFR 2.206 petition with additional facts or arguments, and that petition would be given full consideration.
Ms. Lorian is thus requesting this Court to rectify a non-existent harm.
The NRC acted reasonably in following its normal procedures and treating this letter as a request for enforcement action under 10 CFR 2.206.
Even though it was not denominated as a request under 10 CFR 2.206 nor addressed to the Director of Nuclear Reactor Regulation, in its substance the letter was a request that the agency institute an enforcement proceeding.
Such types of letters, whether denominated as 2.206 yequests or not, are forwarded to the appropriate Director for treatment as such under normal NRC practices.
See 39 Fed. Rec. 12353 (April 5, 1974).
(J.A.
).
It could reasonably be seen as a disservice to the public for the NRC to return such requests unconsidered merely because they were inapprcpriately 15
i addressed or to decline formal treatment because the sender neglected to invoke the appropriate words.
In so treating the letter the agency followed its internal procedures and was not required to hold an adjudicatory hearing either on.
r-the merits of the request or on whether or not to grant that request.
See Porter County Chapter v. NRC, 606 F.2d 1363
~
(D.C. Cir 1979).
The correctness of the Director's decision denying Ms. Loricn's requests for specific actions at Turkey Point Unit 4 is not really called into question in this case.
Ms.
Lorion does not dispute the Director's findings.
She argues only that the NRC acted unlawfully in dismissing as moot a request that Turkey Point Unit 4 be shut down for a steam generator inspection every six months.
Her actual request was that Turkey Point Unit 4 be shut down for a single inspection.
The Director reasonably dismissed that request as moot because the plant had in fact been shut down for an a
inspection of the steam generators.
To the extent that the request contained the suggestion that inspections should be required every six months, the Director fully explained why periodic inspections do not have to be held at intervals as short as six months.
Ms. Lorion's assertion that the NRC uses mootness determinations as a " device" to avoid responding to expressed concerns over steam generator tube i?.tegrity at Turkey Point is false.
Finally, Ms. Lorion argues that the Environmental
~
Impact Statement (EIS) prepared prior to the Commission's 16
- - -.~.-
- ~.
-I authorization of the steam generator repairs at Turkey Point was inadequate.
Ms. Lorion was not a party to the license amendment proceeding involving the steam generator repairs.
That proceeding is totally unrelated to the present lawsuit, and the adequacy of that EIS is not properly before this Court.
l l
l l
i l.
l l
o 17
ARGUMENT I.
THE COMMISSION'S TREATMENT OF MS. LORION'S LETTER AS A PETITION UNDER 10 CFR 2.206 NAS A LAWFUL EXERCISE OF AGENCY DISCRETION AND HAS NOT DEPRIVED MS. LORION OF ANY RIGHTS OR OTHERWISE HARMED HER A.
Ms. Lorion Has Suffered No Harm I
The concern that apparently prompted this lawsuit is whether the Commission's treatment of Ms. Lorion's letter as a petition under 10 CFR 2.206 was unlawful or harmed her in any way.
A decision not to institute a proceeding requested pursuant to 10 CFR 2.206 does not " estop" Ms.
Lorian "from seeking remedies in other forums" or even sarve as a bar to the subsequent filing of another request under 10 CFR 2.206.
See generally Northern Indiana Public Service Comoany (Bailley Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 435 (1978) (Commission noted that its refusal to disturb Director's denial "is without prejudice to the right of any person to file a future request pursuant to 10 CFR S 2.206 on the basis of facts or circumstances warranting initiation of a proceeding.
").
If Ms. Lorion were to s'.ibmit another petition under 10 CFR 2.206 setting forth new facts or arguments, under the Commission's regulations the i
Director would be obliged to issue a new opinion dealing t
with those facts or arguments.
Ms. Lorion remains free to-follow this route in seeking action concerning Turkey Point.
Ms. Lorion argues that the Commission's decision collaterally estops her from taking her concerns to Congress 1
18
)
and the FP&L stuckholders.
The Commission's decision not to institute a proceeding here clearly has no such legal effect.
Simply put, the Commission's decision not to institute a proceeding based on the facts set fortn in Ms. Lorion's letter is only a decision not to institute an enforcement action, and as such it has no res judicata or collateral estoppel effect even before the Commission, let alone before Congress or a private corporation.
Ms. Lorion has thus brought this lawsuit in order to contest an issue with no apparent legal consequences.
B.
The Commission's Action In Treating Ms. Lorion's Letter Under 10 CFR 2.206 Was Botn Reasonable and Consistent With its Regulations Since the adoption of 10 CFR 2.206 in 1974 the Commission has regularly referred all correspondence requesting enforcement action -- whether or not denominated a 2.206 request -- to the Executive Director for Operations for further referral to the appropriate office director, regardless of the way they were addressed.
39 Fed. Reg.
I 19
12353 (April 15, 1976).
(J.A.
).5/
Ms. Lorion's letter specifically requested the NRC (1) to " consider the suspension of the license for Turkey Point Unit No. 4 until such time as FP&L submits' proof that this reactor unit's pressure vessel would maintain its integrity in a loss of cooling accident," (2) to "derate" the unit once 25% of the tubes become plugged, (3) to order Unit 4 shut down immediately for a steam generator inspection, and (4) to "take steps to immediately initiate a license review of this nuclear reactor unit."
Thus, on its face this letter was a request for the NRC to institute an enforcement proceeding, including an immediate suspension of reactor operation, and was clearly within~the ambit of 10 CFR 2.206.
NRC's specific procedure for dealing with such a request is 10 CFR 2.206, and it was entirely reasonable for the NRC to treat Ms. Lorion's letter accordingly.
- Indeed, it would generally be a disservice to members of the 5/
- See, e.g.,
Florida & Light Co. (Turkey Point Plant, Unit 3), DD-80-28, 12 NRC 386 (1980) (petition filed before Commission referred to staff); Portland General Electric Co. (Trojan Nuclear Plant)
DD-80-26, 12 NRC 241 (1980) (telegram to Commission referred to staff);
Virginia Electric and Power Comoany (North Anna Powe Station, Units 1 and 2), DD-79-24, 10 NRC 862 (1979)
(letter to Commission referred to staff).
See also Florida Power'& Light Co. (St. Lucie Nuclear Power Plant, Unit 2), DD-80-33, 12 NRC 598 (1980) (motion to Appeal Board referred to Director, NRR as 10 CFR 2.206 petition).
Only in rare cases where the petition has raised broad-based or ccmprehensive challenges has the l
Commission itself directiv-acted.
E.c.
Petition for Emergency and Remedial Action, CLI-7707, 7 NRC 400 (1978) (fira protection requirements), Denial of Petition for Revoking Nuclear Plant Licenses, 46 Fed.
Reg. 39573 (August 4, 1981).
_ i interested public for the NRC to reject out of hand enforcement requests simpl'y because they were not appropriately labelled and addressed.
The statement in 10 CFR 2.206 (b) that all requests be addressed to the appropriate Director merely states where such requests should be addressed.
It is not a jurisdictional requirement.6/
II.
THE COMMISSION IS NOT REQUIRED TO OFFER Ad EVIDENTIARY HEARING WH.ENEVER IT RECEIVES A REQUEST UNDER 10 CFR 2.206 The principal allegation of harm offered by petitioner is'the notion that by treating her letter as a 2.206 request, the NRC has denied her an opportunity for an adjudicatory on-the-record hearing.
Ms. Lorion reveals the underlying basis of her concern in her statement that
"[ulnless this court
. mandates an evidentiary hearing be held, she has no vehicle for vindication of her views.
A major question presented for review here is not whether or not Ms. Lorion's views are correct, but whether she has had any fair opportunity to present -and defend them."
Pet. Br.
at 25.
The 2.206 procedure has in fact provided Ms. Lorion 6/
Counsel for Ms. Lorion, by letter to the court dated May 13, 1982, corrected the misstatement in the petitioner's brief that NRC regulations require that a petitioner be notified when its letter is being treated as a petition under 10.CFR 2.206. 'Thus As. Lorion's only argument that the NRC violated its regulations by referring her letter to the Director, NRR, as a petition under 10 CFR 2.206 is that her letter was not addressed to the Director.
m e,
-+- om mm,
.. m m e n e~,
e-m
-mm-n, m6es. s ava o,
with a fair opportunity to present her views, and the NRC is not required to provide more.
Cf. Honicker v. NRC, 590 F.2d 1207 (D.C. Cir. 1978) (no right to file an emergency petition for direct and immediate action).
Ms. Lorion apparently believes that she is entitled to a hearing simply because she disagrees with the NRC.
It seems clear that the NRC cannot as a practical matter be expected to provide a full evidentiary hearing-to every person who wants to take issue with some aspect of the activities licensed under the Atomic Energy Act.
Rather, the Commission may within its i
discretion institute a proceeding under 10 CFR 2.206 when immediate and substantial health and safety concerns are raised. 10 CFR 2.202 (a) (1).
See Porter County Chacter v.
NRC, supra. /
7 7/
Ms. Lorion asserts that the Commission has generally abused its discretion under 10 CFR 2.206 by " crank [ing]
out large numbers of Director's Decisions denying relief in each perceived threat to their authority."
Pet. Br. at 17.
Actually the Commission has granted numerous petitions in whole or in part since the adoption of 10 CFR 2.206.
- See, e.g.,
Consolidated Edison Company of New York, Inc. (Indian Point Units 1-3), DD-80-5, 11 NRC 351 (1980) (granted with respect to Unit 1 by issuing order to show cause why operating license should not be revoked and why decommissioning plan should not be submitted); Virginia Electric Power Co. (Surry Nuclear Power Station, Units 1 and 2), CLI-80-4, 11 NRC 405 (1980) (granted by requiring EIS on repair of steam generators at Surry 1); Dairyland Power Cooperative (La Crosse
~
Boiling Water Reactor), DD-60-9, 11.NRC 392 (1980)
(granted in part by issuing' order to show cause to resolve issue of whether certain measures were required to preclude liquefaction at-the site).
Carolina Pcwer
& Light Company (Brunswick Steam Electric Plant), 40 Fed. Reg. 17065 (April 16, 1975) (granted in part by (Continued on following page)
. w. -..
Moreover, the implicit suggestion that a hearing for the 2.206 petitioner is mandatory is flatly contrary to settled authority.
Porter County Chaoter v. NRC, 606 F.2d 1363 (D.C. Cir. 1979) ; People of State of Illinois v. NRC, l
l 591 F.2d 12 (7th Cir. 1979).
See Rockford League of Women Voters v. NRC, supra.
This Court in Porter County, in upholding Commission action under 10 CFR 2.206, noted that under this broad discretion an agency can conduct preliminary inquries to determine whether to institute full 1
proceedings:
7/
(Continued from preceding page)
~
issuance of show cause order to require seismic monitoring and evaluation of seismic data).
Even when a request under 10 CFR 2.206 does not lead to a full evidentiary hearing, it may well serve a useful purpose.
The Commission may incorporate suggestions into ongoing studies of asserted problems.
- See, e.g.,
Rochester Gas & Electric Corp. (R.
E. Ginna Nuclear Power Plant), DD-82-03, NRC (May 22,1982)
(granting request that ongoing staff safety review on R.
E. Ginna restart consider specific areas detailed in petition).
8/
Section 189 of the Atomic Energy Act, 42 U.S.C.
- 2239,
~
mandates a hearing only on an application for a construction permit, whether or not one is requested.
Section 189 states that*the Commission shall provide a hearing on request by an interested person in "any proceeding.
for the granting, suspending, revoking or amending of any license or. construction.pernie.
A request under 10 CFR 2.206 is not a licensing proceeding within the meaning of Section 189.
See People of the State of Illinois v. NRC, 591 F.2d 12 (7th Cir. 1979).
Generally speaking, the law gives agencies wide I
discretion to determine the means of administration of pertinent regulatory standards, the techniques of l
interpretation, application, filing in of details, and enforcement.
The agency is not bound to launch full-blown proceedings simply because a violation of the statute is claimed.
It may properly undertake a c.
preliminary inquiries in order to determine whether the claim is substantial enough under the statute to warrant full proceedings.
The appropriate agency l
official has substantial discretion to decline to initiate proceedings based on this review, at least where, as here, he gives reasons for denying or deferring hearing.
Id. at 1369 (emphasis added)."/
G A request for an enforcement proceeding is just that -- a request.
Unless and until granted, it is not a 9/
The Commission described the nature of the-inquiry under 10 CFR 2.206 in the case affirmed in Porter County.
[The Director] is not required to accord presumptive validity to every assertion of fact, irrespective of its degree of substantiation, or to convene an adjudicatory proceeding in order to determine whether an ad3udicatory proceecing is warranted.
Rather, his role at this preliminary state is to obtain and assess the information he believes necessary to make enac determination.
Provided he does not abuse his discretion, he is free to rely on a variety of sources of information, including staff analysis of generic issues, documents issued by other agencies, and the comments of the licensee on the factual allegations.
Once that inquiry and assessmen:
have been made, the standard to be applied in determining whether to issue a show cause order is.
. whether " substantial health or safety issues (have] been raised.
Northern Indiana-Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 432-33 (1973)
(emphasis added).
" proceeding" where the requester has any right to present evidence.10/
This Court in Porter County found that the decision on whether to institute an enforcement proceeding is not a formal adjudication, and that it distorts otherwise reasonable definition to assume "that the decision whether to institute proceedings is a ' contested matter' in which the Director acts as the ' judge.'"
Id.11
The Court 10/
Ms. Lorion implies that the Commission has acted improperly in not serving on her the documents utilized by the Director in reaching his decision, and that it-was improper for the Director to consider these materials.
This Court in Porter County held that an agency could conduct preliminary inquiries to determine whether to institute a proceeding.
There was no proceeding here, and hence no need to inform Ms. Lorion of the materials relied on.
In any event, this material is publicly available.
All but one of those documents are available in the public document rooms as they involve licensing action.
Item 15, SECY-81-286, on thermal shock, was not available at that time in the public document rooms but would have been subject to a request under the Freedom of Information Act. All of the documents have now been sent to counsel for Ms.
Lorion.
--11/
The cases cited by Ms. Lorion concern proceedings before administrative agencies where the agency's decision will amount to-a binding action against a party.
That simply is not the case when the agency merely declines to institute a requested proceeding against a third party.
Similarly, Ms. Lorion cites S 554 of the APA for "the requirements of notice to parties in audicatory [ sic] proceedings."
Pet. Sr. at 21.
This is not an adjudicatory proceeding.
explained that the staff's function involves "the application of expertise to a preliminary sizing up of a l
situation before a procedure is set in train to culminate in a decision in an adjudicative proceeding by on independent decisionmaker.
[T]he essential nature of the staff's function is.
to undertake a preliminary investigation and reach a judgment
. as to whether action is required."
Id. at 1372.
Just as allowing staff to make the determination whether or not to institute a proceeding does not violate due process, so there is no due process right to present or rebut evidence in connection with the agency's determination whether to institute a requested enforcement proceeding against a third party.
In effect, Ms. Lorion would have the Commission institute a proceeding to determine whether or not to institute a proceeding; this is not required.
Northern Indiana Public Service Co.,
supra.- /
12 12/
Ms. Lorion's argument that the Commission acted arbitrarily in not providing notice to her that it was treating her letter as a request under 10 CFR 2.206 Las the same failings as her argument that she has been harmed by the Commission's use of the 2.206 procedures.
She suffered no harm because a decision under 10 CFR 2.206 prejudices no rights of the requester.
Even if such notice were given, the requester would not be enabled to present additional evidence, since a request does not necessitate a formal hearing.
The Commission explained its policy toward providing notice in the Supplementary Information accompanying an amendment to 10 CFR 2.206.
42 Fed. Rec. 36239 (July 14, 1977).
(J.A.
).
As applied to Ms. Lorion's letter, the Commission's policy would omit notice because the issues raised by Ms. Lorion are familiar both to the (Concinued on following page)
.. _ = -
..___m t
i I
III. THE DIRECTOR'S DECISION IS REASONABLE AND LAWFUL ON THE MERITS A.
Contrary to Petitioner's Assertion, the NRC Has Never Used "Mootness" to Avoid Resconding to Concerns About Steam Generator Integrity Ms. Lorion in her September 11 letter noted that Unit 4 had been scheduled for an inspection in July 1981, but that the NRC had granted an additional two-month operating extension.
Ms. Lucion requested that Unit 4 be shut down immediately for an inspection.
On October 19, 1981 FP&L shut down Unit 4 and commenced an inspection of the steam generators.
The Director therefore dismissed Ms. Lorion's request that Unit #4 be shut down for an inspection as moot.
Ms. Lorian now apparently argues that her letter should have been construed as~a request not iust for a single shutdown but for shutdown and inspections every six months.13/
12/
(Continued from preceding page) staff and the public and have already been the subject of extensive comments.
13/
Ms. Lorion in her letter to the Commission specifically
-~
requested only that Unit #4 be shut down for a steam generator inspection.
This was done while her request was pending.
In this appeal Ms. Lorien has characterized her request as one that the Commission require inspections every six months.
The Director dealt with the specific request presented to him; no more is required.
To the extent that Ms. Lorion's letter may have raised the question whether an
-inspection should be required every six months, the Director's discussion of the technical basis for extending the time between inspections adequately addressed the subject.
..,s.
y--..
yere a-,re--o.e---
Nb. Lorion argues that the Commission's policy of limited operating extensions "is part of a continuing pattern of unlawful conduct.
It is apparent that the
. Commission is using a determination of mootness as a device
.+
to preclude the public from ever challenging the legality of its action."
Pet. Br. at 27-28.
In support of this notion,
~
Ms. Lorion cites one case, Florida Power & Light Co. (Turkey Point Plant, Unit 3), DD-80-28, 12 NRC 386 (1980)1AI and states that there "[t]he Director waited to rule un the motion until the inspection was finally performed two months later, and then denied petitioner's request." Pet. Br. at 28.
To the contrary, the Director's decision in that case issued while the plant was still operating, prior to its subsequent inspection, and that decision dealt fully with the merits of the petition.
Indeed, the Director in that case rejected the same argument that is raised here about the inability of the NRC to adequately predict steam generator performance beyond six months:
In support of their petition, the petitioners stress a statement by the staff that it does not have an " adequate technical basis to predict steam generator performance for longer than six months,"
I However, the statement that operation longer than sin months be reliably predicted does not mean that operation of a facility -for longer than six months without steam generator tube inspection cannot ce permitted consistent with the requirement to protect the health and safety of the public.
Rather, it means l
that, following an inspection and plugging program of steam generator tubes, the NRC has reservations about 14,/
Counsel for Ms. Lorion was counsel in that case.
i the ability of its methodology to predict the expected operation of the plant for longer than six months.
If appropriate analysis has been provided and if operation experience of the reactor in question and other reactors with similarly degraded steam generators is satisfactory, extension of the operating intervals may be acceptable, i.e.,
satisfy the NRC requirement that the health and safety of the public will not he adversely affected.
12 NRC at 389.
Ms. Lorion's argument that the Commission is engaged in a " pattern" of unlawful conduct is therefore simply false.
The Director in his decision fully explained the basis for the NRC's decision to allow these operating extensions and for not instituting any further actions.
These extensions are based on operating experience and an expanded tube plugging program design to support full-power operation for ten months between inspections.
Moreover, the operating license requires a cold shutdown if there is a leak.
The NRC has reasonably determined that this program adequately protects the public health and cafety, and Ms. Lorion has offered no argument to the contrary.
B.
The Director's Decision Not To Institute A Proceed 1nc Uncer 10 CFR 2.206 Was Correct The Director's full explaintcion of his decision not to institute a proceeding in this case satisfies all legal requirements.
Dunlop v. Bachowski, 421 U.S.
560
)
(1975); Porter County Chapter v.
NRC, suora; Rockford Leacue of Woman Voters v. NRC, supra.
With regard to pressure vessel integrity, staff has found that no immediate action i
-A M,
..w...w-.
w m - e *e. -
,.mde<-
e-.-
.m..
-_sm is required because of the low likelihood of a reactor vessel crack'ing, but that long-term corrective actions may be necessary.
Both staff and the industry are working to resolve the problem.
See Appendix to Brief.15/
With regard to concerns over the steam generators, the Director found that the problem is receiving careful ongoing review and analysis, and that in view of the history of the steam generators at Unit 4 further action by the NRC is unnecessary at this time.
FP&L has adopted a program of preventive plugging designed to support ten months of operation between inspections.
The NRC has adopted the conservative approach of allowing six months of oper:: ion, to be followed by extensions up to ten months depending on.
further evaluation and performance.
FP&L is in full compliance with its license, and there has been no showing of a presently hazardous condition.
Given these factors there is no basis for requiring enforcement action.
See Porter County Chapter v.
NRC, supra.
The mere raising of generic problems such as those at Turkey Point does not require institution of a proceeding.
Ms. Lorion presents no argument in her brief 15/
Petitioner's brief notes an intention to make an "O::ar j
of Proof" which will include newspaper articles stating that plants may shortly become unsafe because of the potential for so-called thermal shock.
Pet. Br. at 30, n.16.
This offer would be improper.
Ms. I. orion may present additional evidence to the NRC by filing
(
another petition under 10 CFR 2.206.
I i
L_
I that the Director's Decision in this regard was incorrect, nor does she present any argument as to why the Director's decision not to institute a proceeding under the 4
Commission's regulations was arbitrary and capricious.16/
There is therefore no support for the argument that the NRC must institute a proceeding to consider ordering Turkey Point Unit #4 to shut down.17/
T 16/
In her conclusion Ms. Lorion requests this Court to
" require the shut down and inspection of Unit 4 steam generators at six month intervals of operation until such time as a meaningful administrative review in a hearing process demonstrates that the Commission has an adequate technical basis for predicting safe steam generator tube performance without inspection for periods greater than six months. "
Pet. Br. at 37-38.
There is no statutory, regulatory or other basis which can be read as requiring the NRC to conduct a public hearing to demonstrate that it has an adequate technical basis for predicting steam generator tube performance beyond six months.
There is therefore no basis for this Court to consider this request.
See Honicker v. NRC, 590 F.2d 1207 (D.C. Cir. 1978), cert.
denied. 441 U.S. 1072 (1979).
17/
Finally, Ms. Lorion's challenge to the adequacy of the EIS on steam generator repairs is improper in this proceeding.
On September 20, 1977 FP&L proposed to replace the lower assembly in the steam generators at Turkey Point Units 3 and 4.
On December 13, 1977 the NRC published a notice of opportunity for hearing on this proposed repair.
42 Fed. Rec. 62569.
An EIS was prepared in that proceeding and found to be adequate.
Florida Power & Licht Co. (Turkey Point Nuclear Generating Station, Units 3 and 4), LBP-81-14, 13 URC 677 (1981).
Only parties to that proceeding would have standing to challenge the adequacy of administrative action in that proceeding on subsequent judicial (Continued on following page)
)
91
,e,
--m.
- -, - -, + - -,.
CONCLUSION For the foregoing reasons, the petition for review should be denied and the NRC decision affirmed.
Respectfully submitted, LEONARD SICKWIT, JR.
PETER R.
STEENLAND, JR.
General Counsel Chief, Appellate Section j
tL1' S
E.
LEO SLAGGIE MARTIN GREEN Acting Solicitor Attorney Land and Natural Resources Division U.S. Department of Justice RICHARD P.
LEVI Washington, D.C.
20530 Attorney U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Dated:
June 14, 1982.
12/
(Continued from preceding page) review.
Moten v. Bricklayers, Masons and Plasterers International Union, 543 F.2d 224, 227 (D.C. Cir.
1976).
Cf. Jaffer v.
NRC, No. 81-8035 (D.C. Cir. Oct.
2, 1981)7 cert, denied, 50 U.S.L.W.
3766 (March 23, 1982) (non-party lacxs standing to review Turkey Point steam generator license amendment).
Ms. Lorion made no attempt to intervene in that proceeding.
In any event, the present petition for review addresses an entirely different Commission action.
)
l i
l 32 j
APPENDIX ON STEAM GENERATOR AND PRESSURE VESSEL CONCERNS (a)
Steam generator concerns (i)
In general The primary safety goal for steam generator tubes 1/ is that they retain adequate structural integrity to avoid excessive leakage over the full range of normal operational transient and postulated conditions.
Recognizing that PWR steam generators have experienced tube degradation problems,2/
the NRC established the matter as an unresolved safety issue in 1978.
See NUREG-0410, NRC Program for the Resolution of Generic Issues Related to
~
Nuclear Power Plants at C-29 (1978).
See also NUREG-0886, Steam Generator Tube Excerience (1982).
-1/
In pressurized water reactors (PWRs) such as those at Turkey Point, water in the primary cooling system, which cools the core, is kept under sufficient pressure to prevent boiling.
This high-pressure water passes through a bundle of several thousand narrow tubes (the steam generator tubes) around which water circulates in a secondary system.
The water in the secondary system, which is kept separate from the reactor coolant, is converted to steam, which then drives the turbine generators.
The assembly in which the heat transfer takes place is the steam generator.
-2/
These problems include fretting (loss of tube material caused by excessive rubbing of the tube against its support structure resulting from flow-induced vibration of the tubes), pitting (localized attack on tubing resulting from non-uniform corrosion rates caused by tne formation of local corrosion cel1s), and stress corrosion cracking (intergranular cracking of stressed tubes without reference to a causative chemical agent).
l i
- - ~ ~ - -.
- - - - i
Working with the industry, the NRC has developed a two-prong approach to deal with the problem of steam generator tube degradation.
The NRC requires regular inspections to ascertain which tubes are likely to fail, and.
these tubes and those around them are then " plugged" so that the reactor coolant cannot flow through them.
See
~
(R. Doc. 7).
Initially neither the NRC nor the industry was familiar enough with the problem to adequately predict steam generator tube performance over more than a very short period of time.
However, with experience the NRC and the utilities can now better predict future steam generator tube performance, i.e., which tubes are likely to.develcp leaks.
See Florida Sower.& Light Co.
(Turkey Point Plant, Unit 3), DD-80-28, 12 NRC 386 (1980).
Second, the NRC and industry have been working to develop measures to prevent tube deformities.
These include such actions as tube sleeving, reduced operation of generators to slow corrosion, boric acid injection to arrest denting, supoort plant modifications to retard denting, steam generator replacement and improvements in secondary system design and cperation.
In addition, the NRC requires monitoring of primary system.to secondary system leak rates and requires that the plant shut down if that rate exceeds a set limit.
- See, e.g.,
NUREG-0886, Steam Generator Tube Experience (1982).
2
\\
(ii) At Turkey Point Unit #4 At Turkey, Point Unit #4, the primary problem with the steam generator tubes has been " denting."
- Denting, which is a deformation of the tubes, results when corrosion-products build up around the tubes where they pass through support plates.
These corrosive products expand, exerting enough pressure on the tube to " dent" it.3/
This makes the tube more susceptible to failure that can lead to a loss of reactor coolant.
The NRC has required that FP&L institute a program of regular inspections and tube-plugging at Turkey Point Unit #4 since late 1976.4/
Pursuant to this requirement of per' iodic thspections, FP&L~
shut down Unit 4 and inspected the steam generators in November 1980.
In January 1981, following an evaluation of the results of FP&L's latest inspection, the NRC issued FP&L Amendment 54, authorizing continued operation for six
-3/
Additional side effects of this corrosion are (1) a narrowing of the center portion of the flow slots located along the center line of support plates, creating an "hourglassing" effect, and (2) the oblongation of some tubes at the U-bend region, accompanied by cracking and leakage.
-4/
This program was initiated because of the failure in 1976 of a steam generator tube at the Surry nuclear facility, which has a steam generator similar to that at Turkey Point.
3
equivalent full-power months (EFPM). 5 /
(R. Doc. 13 J.A.
).
In the Safety Evaluation accompanying this Amendment the NRC noted that the inspection results indicated that denting activity "is generally consistent with previous experience at this and other similarly I
degraded units."
The NRC further found the inspection and preventive plugging programs " provide reasonable assurance that the vast majority of tubes most likely to develop inservice leaks have been identified and removed from service."
The NRC found that these programs, combined with existing leak rate limits, adequately supported six EFPM of operation from the time of the November 1980 inspection from a denting standpoint.
On July 6, 1981, the Commission issued Amendment No. 62 to allow an additional two months of operation prior to another inspection.
(R. Doc. 18 J.A.
).
The Safety Evaluation accompanying this Amendment noted that FP&L's application (for a four-month extension) "was supported by the extensive inspection program and the conservative plugging program presented in the inspection results dated December 18, 1980, additional steam generator tube wastage l
information dated February 2-7, 1981 and the pertinent operating history of both Unit 3 and Unit 4."
The Safety Evaluatien justified operation for an extension of two l
l
\\
l 5/
An equivalent full power month is decarmined by the number of days that the reactor core is above a certain temperature.
l 4
~_
months.
This Safety Evaluation explained the rationale underlying these extensions:
Since January 1979, the licensee has elected to perform additional preventive type plugging beyond what is required to support six EFPM operation.
This additional plugging has been performed with the objective of supporting a ten EFPM for conservatism, as well as contingency purpose.
The ten EFPM preventive plugging program has been implemented in five inspections, including the most recent inspection at Units 3 and 4.
The staff has previously expressed reservation regarding the conservatism of the implemented criteria to support a full ten EFPM operating interval.
The staff has been concerned that the methodology for anticipating which tubes will become susceptible to stress corrosion cracking and leaks during the next interval becomes increasingly uncertain as the length of interval is increased.
Therefore, the staff has continued to limit the authorized operating interval to six EFPM.
However,.the staff has on a case by case basis approved extended operation beyond six EFPM based upon continued leak free performance during the initial six EFPM and the fact that the previously implemented plugging was more conservative than that required to support six EFPM operation.
The Eraluation concluded that " [b]ased upon the considerations that the implemented plugging in November-1980 was significantly more conservative than that required i
to support six EFPM operation, and that extension granted previously for Units 3 and 4 since mid-1978 have not resulted in denting related leaks, we find that there is adequate justification to authorize at least a two EFPM extension to the currently authorized six EFPM operating interval."
Amendment 66, issued on September 10, 1981, authorized an additional two EFPM cperating interval.
l 5
^
1
~_. _
_. - - - _ l (R. Doc. 21 J.A.
).
The Safety Evaluation explained thes rationale of this decision as follows:
Evaluation Our review of the results of the gauging inspections performed in November 1980 indicated that denting was continuing to develop in a manner consistent with previous experience at this and other similarly degraded units.
The currently authorized eight EFPM operating interval has essentially been completed with no significant leakage, and no significant increase in the rate of denting is indicated.
In the event that significant tube leakage does occur, the 0.3 gym leakage rate limit in the Plant Operating Licens3 provides acsurance that the plant will be shutdown in a timely manner.
This limitation on allowable leakage rate provides reasonable assurance that the steam generator tubes will not develop excessive leakage during normal or postulated accident conditions.
The staff will continue to closely monitor the leak performance of the Unit 4 steam generators.
Depending on the magnitude of any observed changes in detectable leakage, the staff will consider taking action to require a reinspection of the steam generators prior to the completion of ten months operation as an additional precautionary measure.
To this end, we are requiring that (1) the NRC staff shall be promptly notified in the event of any detectable trends in the indicated primary to secondary leakage, and (2) if the reactor is shut down because of steam generator leakage the subsequent findings and any corrective action shall be discussed with the NRC staff prior to the resumption of power operation.
Subsequently,. on October 19, 1981, FP&L shut down Unit 4 and commenced an inspection of the steam generators.
(b)
Pressure vessel intecrity and thermal shock i
(i)
In ceneral The NRC has for some time been concerned abcut the
(
potential effect of thermal shcck on reactor pressure vessel i
l l
l 6
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integrity.6/
- See, e.g.,
NUREG-0410, NRC Program for Resolution of Generic Issues Related to Nuclear Power Plants l
at C-17 (1978).
Enperience has shown that there may be some PWR transient sequences which lead,to rapid cooling of the core while the pressure within the primary system remains high.
This would subject the reactor vessel to tensile stresses superimposed upon the thermal stresses resulting from the thermal gradient across the vessel wall.
See SECY-81-286, Pressurized Thermal Shock (1981).
(R. Doc. 15, l
J.A.
).
As explained in that paper:
The probability of pressure vessel failure due to pressurized thermal shock depends on the following factors:
(a) the frequency and severity of overcooling transients; (b) the probability that the primary system remains pressurized or is repressurized through cperator actions; (c) the existence of a flow of sufficient size to propagate at the location of high thermal stresses; and (d) the fracture toughness, or resistance to crack propagation, of the vessel, which depends on the copper content of weld material and on the irradiation history of the vessel.
The TMI Action Plan included a task requiring a detailed analysis for all PWRs of the potential for thermal shock of reactor vessels resulting from cold safety injection ficw during small-break loss-of-coolant accidents (LOCAs).
1, The reactor vessel houses the core and the coolant which keeps the core from overheating.
If that vessel should crack, the c clant could escape.
A loss of coolant could threaten core cooling capabilley.
7
l t
1 I'
l NUREG-0737, eaarification of TMI Action Plan Recuirements, Task II.K.2.13 (1980).
This work is proceeding on schedule.
The NRC Office of Nuclear Regulatory Research also has a pressurized thermal shock research facility under construction at Oak Ridge National Laboratory (ORNL), and the first tests are scheduled for this year.
See L
SECY-81-286, supra.
In addition, the NRC has sponsored a number of studies and analyses on this subject, focusing its efforts on the identification and characterization of thermal repressurization transient scenarios and their probabilities and on the development of material properties data and improved analytical tools for assessing vessel integrity.
See id.
The staff, based on its evaluation of available information, has concluded that no immediate licensing actions are required because near-term reactor failure is unlikely.
Staff has also concluded, however, that action should be taken to improve understanding of the problem, and what actions are necessary to alleviate it.
Staff is working with the Pressurized Water Reactor (PWR) owners' group and PWR vendors on the generic long-term problem.
See SECY-81-286, supra.
(ii) Turkey Point Unit 4 With specific regard to Turkey Point Unit No.
4, staff has selecred that unic as one of eight units to receive further specific study because of the apparently 8
high neutron irradiation of the vessel relative to other plants.
To that end on August 21, 1981 staff sent FP&L a letter in accordance with 10 CFn 50.54(f) requesting that FP&L submit information to the NRC.
(R. Doc. 20 J.A.
)..
That letter noted staff's conclusion that "all plants could survive a severe overcooling event for at least another year of full power cperation," but that " additional action should be taken now to resolve the long-term problems."
The letter also tock note of the ongoing efforts by the vendors to resolve this problem.
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$11i$PD h$is P5 bdD b@Pld5 sur e a s sewn No. 81-1772
~ ROCKFORD LEAGUE OF WOMEN VOTERS.
Petitioner, v.
UNITED STATES NUCLEAR REGULATORY COMMISSION, Respondent.
COMMONWEALTII EDISON COMPANY, Intervenor-Respondent.
Petition for Review of an Order of the United States Nuclear Regulatory Commission.
ARGUED APRIL 12,1982-DECIDED JUNE 3,1982 Before BAUER, Circuit Judge, GTBSON, Senior Circuit Judge,* and POSNER, Circuit Judge.
POSNER, Circuit Judge. This is a petition to review ad-ministrative agency inaction: the refusal of the Nuclear Regulatory Commission's Director of Nuclear Reactor Regulation to institute a proceeding to revoke Common-wealth Edison Company's pern)it to construct a nuclear
. electrical generating plant at Byron, Illinois.
The permit was granted in 1975 after the NRC staff had reviewed, and a hearing had been conducted pursu-
- Of the Eighth Circuit.
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No. 81-1772 2
ant to 42 U.S.C. I 2239(a) on, Commonwealth Edison's plans for the Byron plant, in order to make sure that "the proposed facility can be constructed and operated at the proposed location without undue risk to the health'and safety of the public." 10 C.F.R. 6 50.35(a).
The issuance of a construction permit is the first step in the two-step process prescribed by 42 U.S.C. 9 2235 for the licensing of nuclear power plants. The second is the granting of the actual operating license for the facility.
Even if a construction permi+. has been issued-even if construction has been completed-the Commission may l
not issue an operating license unless it "has found that the final design provides reasonable assurance that the health and safety of the public will not be endangered by operation of the facility in accordance with the requirements of the license and the [ Commission's] regu-lations...." 10 C.F.R. 5 50.35(c).
In 1978, with completion of the Byron plant in (dis-tant) sight, Commonwealth Edison applied for an oper-ating license. A proceeding on that application is in progress, with hearings scheduled to begin this August.
Among the intervenors in the licensing proceeding was the Rockford League of Women Voters. (Rockford is about 17 miles from the construction site.) However, the League was expelled from the proceeding because of its willful and persistent refusal to comply with discovery orders. Its expulsion is under appeal within the Com-mission.
Before its expulsion from the licensing proceeding the League had requested the Commissions Director of Nuclear Reactor Regulation to institute a separate pro-ceeding to revoke Commonwealth Edison's construction permit. The Commission may revoke a license-defined in 42 U.S.C. 5 2235 to include a construction permit-for any reason that would have justified the Commission in refusing to issue the license in the first place. 42 U.S.C. 9 2236(a). A regulation promulgated by the Com-mission delegates the Commission's authority under this section, so far as is relevant to this case, to the Director of Nuclear Reactor Regulation.10 C.F.R. 9 2.202. An-other regulation provides that "Any person may file a v,
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No. 81-1772 request for the Director of Nuclear Reactor Regulation
... to institute a proceeding pursuant to i 2.202...."
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$ 2.206(a). If the Director decides not to institute such a proceeding, he is required to advise the requesting party of his decision in writing, giving "the reasons therefor." i 2.206(b). The Commission may on its own motion review the Director's decision for abuse of dis-cretion, but it will not entertain any petition or request for such review. I 2.206(c).
The IAague's request that the Director institute a pro-ceeding to revoke the construction permit for the Byron plant was filed in November 1980, when construction was 50 percent complete. The League alleged that a number of issues concerning safe operation of the plant had not been resolved at the construction-permit stage; that some of these had not even been recognized as issues until the nuclear accident at Three Mile Island, Pennsylvania in 1979, which occurred after the con-struction permit had been issued for the Byron plant:
and that Commonwealth Edison did not have enough money to solve the safety problems that the League had l
identified. In May 1981 the Director denied the Imague's request to institute a revocation proceeding. He stated l
that all of the issues raised by the League were being or j
would be considered in the pending proceeding on Com-monwealth Edison's application for an operating license, and he rejected the League's suggestion that considera-tion of these issues would be prejudiced by the invest-ment that Commonwealth Edison would have sunk in the construction of the plant by the time the Commis-sion was ready to act on its application far an operating Heense, or by the alleged inability of Commonwealth r.:dison to spend more money on safety. The Director's l
denial of the League's request became final in August i
1981 when the Commission declined to review his action.
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We consider first, sua sponte, whether the Director's action in refusing to initiate a proceeding to revoke the construction permit for the Byron plant is reviewable in this court-as assumed, without discussion, in Illinois v.
NRC, 591 F.2d 12 (7th Cir.1979), and Porter County Chap. of Izaak Walton League of America, Inc. v. NRC, 6
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No. 81-1772 606 F.2d 1363 (D.C. Cir.1979)-or in the district court.
The Judicial Code,28 U.S.C. $ 2342(4), gives the federal courts of appeals exclusive jurisdiction to enforce those orders of the NRC that are made reviewable by 42 U.S.C. I 2239; and since no other statute gives the courts of appeals jurisdiction to review orders of the NRC besides 28 U.S.C. I 2342(4), which is limited by its terms to orders made reviewable by 42 U.S.C. I 2239, only those orders are reviewable in these courts. See Citizens for a Safe Environment v. AEC, 489 F.2d 1018, 1020 (3d Cir.1973h Honicker v. Hendrie, 465 F. Supp.
414, 418-19 (M.D. Tenn.1979). Section 2239(b), in turn, makes reviewable "Any final order entered in any pro-ceeding of the kind specified in" sectica 2239(a). The proceedings specified in that section, so f.e as is rele-vant to this case, are proceedings for granting and re-voking licenses, inclucing construction parmits.
At least on a literal reading of section 2239 b), the Director's action in denying the petitioner's req (uest to initiate a revocation proceeding was not an order, final or otherwise, in a section 2239 proceeding; it was a re-fusal to initiate such a proceedmg; and while the peti-tioner could in the licensing proceeding to which it was once a party have, if it had remained a party, sought a stay of construction, an immediate hearing on safety questions, or other relief the denial of which might-perhaps-be deemed a final order in a section 2239 proceeding, it did none of these things. The League is emphatic that what it wants is a brand-new proceeding wholly separate from the pending lic~ensing proceeding.
The distinction between the entry of an order in an I
ongoing proceeding and the refusal to launch a new pro-ceeding was recognized in both Rlinois v. NRC, supra, 3
591 F.2d at 14 n.3, and Porter County, supra, 606 F.2d at 1368, though the implications for the jurisdiction of the courts of appeals were' not addressed. In Porter County (and possibly in Rlinois v. NRC as well, though one cannot tell from the opinion in that case) the peti-tioner was a party to an cngoing proceeding before the Commission. The petition for a new proceeding could therefore be construed as a petition for a hearing on 4
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safety in the ongoing proceeding, and there is a hint in 1
Porter County that this is the true basis of the court of appeals' jurisdiction. See 606 F.2d at 1370. But the peti-tioner in the present case was no longer a party to the 1
licensing proceeding or any other proceeding when it i
asked the Director of Nuclear Reactor Regulation to initiate a proceeding to revoke Commonwealth Edison's construction permit. See Gage a AEC, 479 F.2d 1214, 1218 (D.C. Cir.1973).
A ruling that the courts of appeals lack jurisdiction to review the Director's refusal to mitiate a revocation ceeding would not leave the petitioner remediless. pro-The League could still bring suit in district court under 28 U.S.C. 5 1331, the general federal-question jurisdie-tional statute, see Izaak Walton League of America a Schlesinger, 337 F. Supp. 287, 291-92 (D.D.C 1971);
Gage a Commonwealth Edison Co., 356 F. Supp. 80,84 i
(N.D. Ill.1972 and perhaps u);nder other statutes, such as 28 U.S.C. Gage w
~
9 1337 (acts regulating commerce), as well. The district court is arguably the more appropriate venue for a pro-ceeding to review informal agency action, of which agency inaction is a conspicuous example. In deciding not to initiate a proceeding to revoke the Byron con-struction permit, the Director of Nuclear Reactor Regu-lation naturally did not compile the kind of formal record that is the usual predicate for reviewing agency action in the courts of appeals. To decide whether he abused his discretion it might be necessary to reconstruct the informal record on which he based his decision. The district courts are better suited to perform that task than the courts of appeals. See Susquehanna Val'zy Al-liance v. Three Mile Island Nuclear Reactor, 619 F.2d 1
231, 241 (3d Cir.1980).
\\
But despite all this we have concluded, primarily on the authority of Natural Resources Defense Council. Inc.
- v. NRC, 606 F.2d 1261,1265 (D.C. Cir.1979), that the s
courts of appeals rather than the district courts have exclusive jurisdiction to review refusals to initiate sec-tion 2239 proceedings. In NRDC the Commission had refused the petitioner's request to institute certain li-
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No. 81-1772 6
1 censing proceedings, b'elieving it lacked jurisdiction.
The court of appeals held that this refusal was a final order in a section 2239 proceeding because "a licensing jurisdictional determination is a necessary first step in any proceeding for the granting of a license." Similarly, 5
a determination under 10 C.F.R. I 2.206 to initiate a license-revocation proceeding is a necessary first step in that proceeding.
One might be able to distinguish NRDC from this case, pointing out that the court prefaced its holding with the words "In the circumstances of this case," 606 F.2d at 1265, and noting the court's emphasis on the Let that it had "an administrative record on which to base our review," id., which as we have said could be a problem in a discretionary agency inaction case such as this. But jurisdictional lines ought whenever possible to be clear, so that litigants know what ecurt they can pro-ceed in; it would not do to distinguish between jurisdic-tional and discretionary refusals to act for pdrposes'of.
allocating jurisdiction between the courts of appeals and 4
j the district courts.
The District of Columbia Circuit's holding in NRDC admittedly does some violence to the language of 42 U.S.C. 9 2239(b), but not so much, we think, as cannot be justified by the benefits to judicial economy from j
confining judicial review of NRC determinations to the courts of appeals. Whenever the district courts have jurisdiction to review agency action, it means that any-body aggrieved by that action is entitled to two succes-sive judicial reviews of it-first in the district court and then, on appeal, in the court of appeals. This in turn implies five tiers of potential judicial or quasi-judicial review of the petitioner's request in this case: by the Director of Nuclear Reactor Regulation, by the full Commission, by the district court, by the court of appeals, and by the Supreme Court. This is too much.
See Investment Co. Inst. v. Board of Govs. of Fed. Res.
Sys., 551 F.2d 1270,1278-80 (D.C. Cir.1977); Currie &
l' Goodman, Judicial -Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum. L Rev.1,16-19 (1975). The court of appeals' lack of fact-I
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I No. 81-1772 7
finding capacity can be got round in other ways. See
~
Investment Co. Inst., supra, at 1280 and"n.9; Currie &
Goodman, supra, at 41-53. Even if we were somewhat inclined as an original matter to come out the other l
way, we much prefer where possible to avoid creating a conflict among circuits. We therefore interpret " pro-ceeding" in section 2239(b) as encompassing the infor-mal proceeding that is commenced by the request to the Director of Nuclear Reactor Regulation to institute a formal revocation proceeding.
Another jurisdictional question in this case is the peti-tioner's standing to maintain this action. The standing of an organization is derivative of its members' stand-ing, see Sierra Club v. Morton, 405 U.S. 727, 739 (1972),
so we must consider whether members of the Rockford League of Women Voters would have had standing to complain about the Director's action if they had filed this petition personally. They would have if they could
. show a threat of physical illness or injury. The League's request to the Director to initiate a permit-revocation proceeding alleged, plausibly enough given the proxim-ity of Rockford to the construction site, that members of the Imague " live near the site of the Byron Station"-
near enough we should think to be endangered should the Byron plant be unsafe. This does not quite answer the standing question, because until the plant is actually licensed-in separate proceedings to which the League would still be a party but for its procedural defaults-there cannot be any danger to the inhabitants of Rock-ford. But the League further alleges that if the safety problems that it raised in its request to the Di-rector are not solved before construction is completed they will never be solved-the Commission will be stam-peded into granting a license regardless. This allegation is sufficient to confer standing, and we come at last to the merits..
In turning down the League's request that he institute a proceeding to revoke Commonwealth Edison's con-struction ?ermit, the Director of Nuclear Reactor Regu-lation vio ated no statute or regulation. See Illinois v.
NRC, supra, 591 F.2d at 14; Porter County, supra,606
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No. 81-1772 8
F.2d at 1367-69. The' statute, 42 U.S.C. 9 2236(a), per-mits but does not direct the NRC to revoke a license or permit, and the implementing regulations are likewise permissive rather taan mandatory. The only thing the Director is required to do is, if he decides not to insti-tute a revocation proceeding, to notify the requesting party in writing of his decision and of the reasons for it-which he did.
i But the Imague argues that in decisions reviewing the Director's exercise of his discretion to institute or de-cline to institute revocation proceedings the Commission has created, in common law fashion, an implicit rule as to when such proceedings should be instituted, a rule that it violated in this case. We do not understand the force of this argument. If the Commission has the power (and we do not doubt that it has) to create rules by the common law process of case by case inclusion and exclu-sion, it must also have~ the power to modify those rules in the same way, and its refusal to disturb the Direc-tor's decision in this case, if inconsistent with its previ-ous common law rule, may be taken to modify it. But in any event the only two rules we are able to find in the decisions that have been cited to us do not suggest that the Director violated any common law rule of the Com-mission. One rule, obviously inapplicable to this case, is that the Director must initiate a section 2.202 proceed-ing when substantial health or safety issues arise after a l
nuclear facility has gone into operation. See Consoli-dated Edison Co., 2 N.R.C.173,176 (1975). The other is that he should not initiate such.a proceeding when the safety issues that it would address are bein > considered in another proceeding, as they are here. See Pacific Gas
& Elec. Co.,13 N.R.C. 443 (1981). If this is a valid rule, it puts the League right out of court; but since the Com-mission does not rely on it, we shall not either.
Having put aside any, question whether the Commis-sion violated a statute, regulation, or other rule, we have now to consider the scope of judicial review of pure agency inaction-that is, agency refusal to exercise a '
power which is not also a duty. See Stewart & Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev.
1193, 1197, 1205-06, 1284-89 (1982).
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No. 81-1772 9
The Supreme Court h's reminded us in another con-a is very limited. See Dunlop v. Bachowski, 4E1 U.S.
572-73 (1975). Our own decision in Illinois v. NRC, supra, 591 F.2d at 16, a case much like this one, statesth
^
stances." To similar effect see Porter County, supra, 606
{
F.2d at 1369-70. Government agencies have limited t
resources to perform their appointed tasks cannot tell them how to allocate those resou. The courts get the most value out of them. That calls for a man-rces so as to nuclear power plant under construction or in operationag about. The Commission is in the midst of one proce dealing with the Byron plant, the licensing proceeding, in which the safety issues that trouble the league will be considered and in which hearings are about to start.
that the League could have participated in if it had not refused to cooperate in discovery proceedings. We can-ceeding on the same issues at the same time-which isnot what the League wants us to say-rather than use the adjudicatory resources that would be consumed in such a proceeding somewhere else in its regulatory domain.
issues at the operating-license stage. By then the plan is complete, or nearly so; billions of dollars may have been sunk in its construction; the Commission would never insist on costly safety modifications-let alone re-quire that the plant be rebuilt from scratch because its funda here, mental design was unsafe-especially where, as the utility is alleged to be financially shaky. This i
argument would have more force in a case where con-1 struction was in its early stages. But the Byron plant is now 80 to 90 percent completed. If there is the mo-mentum the League fears, it is b~y this time irreversible.
It is hard to resist the suspicion that what the League is really trying to do in this case is to circumvent the order expelling it from the licensing proceeding because of its alleged misconduct in discovery, by making the Commission initiate a parallel proceeding to which the 9
s e
No. 81-1772 10 4
I4 ague would be a party notwithstanding its earlier default. We will not force the Commission to let the League escape the Commission's discovery sanctions in this roundabout fashion.
~
Even if the Byron plant were farther from completion than it is, we doubt that we would find the League's argument for our intervening to compel the Commission to conduct a second, parallel proceeding impressive. In polite but unmistakable innuendo the League accuses the Commission of being the tool of the utility. It refuses to accept the Commission's assurance, founded on sta-tute and regulation, that it will not grant an nerating license for an unsafe plant no matter how muca money has been irrevocably sunk in its construction or how financially distressed the utility is. If the League is i
right in its insinuation that the Commission is a captive of Commonwealth Edison there is very little this court can do. If the Commission will not honestly consider the safety issues raised by the League in the hearings on Commonwealth Edison's application for an operating license that are due to begin this August it will not do so in hearings on a permit-revocation proceeding or-dered by us that realistically could not begin till later.
The nuclear accident at Three Mile Island in 1979, much emphasized in the League's submissions, has caused justifiable anxiety about the safety of nuclear power plants. The Commission points to many steps that it has taken in the wake of the accident to ::ssure their safety. The League argues that these steps are inade-quate. We are not a competent forum to resolve this dis-pute, which is technical in nature. Our job is to assure that the Commission complies with the specific statutes and regulations applicable to its regulatory activities. It has done so here. Beyond that our power to review an agency's decision not to-initiate a proceeding is ex-tremely limited. We would exercise it only if we were strongly convinced that the Commission was inexcusa-bly defaulting on its fundamental responsibility to pro-tect the public safety from nuclear accidents. Given the pendency of the licensing proceeding, we are not so con-vinced in this case.
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No. 81-1772 11 The petition for review is DENIED.
A true Copy:
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit k
i USCA 5730 - Midwest Law Printing Co., Inc., Chicago - 6 4 400 9-
.-.-~
s CSRTIFICATE OF SERVICE I hereby certify that on this 14th day of June, 1982, two copies of the foregoing "Brief for Respondents" have been t
served upon counsel for all parties by placing those. copies in f,
the mail, postage prepaid, addressed to the following:
Martin H. Hodder, Esq.
1131 N.E.
86th Street Miami, Florida 33138 Harold F. Reis, Esq.
Lowenstein Newman Reis & Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 Norman A. Coll, Esq.
Steel Hector & Davis 1400 Southeast Bank Building Miami, Florida 33131 4Cf RICHARD P.
LEVI Attorney Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 k
ff