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Lorion v. NRC

ELR Citation: 16 ELR 20788
Nos. No. 82-1132, 785 F.2d 1038/(D.C. Cir., 03/18/1986) On remand

The court holds that the Nuclear Regulatory Commission (NRC) acted within its discretion in declining to institute licensing review procedures at a Florida nuclear power plant based on a petition alleging that reactor vessel embrittlement raised serious safety concerns. The court initially declines to decide whether the NRC's decision not to issue a show cause order to the utility ordering it to demonstrate why its operating license should not be suspended is reviewable. Although the Supreme Court held in Heckler v. Chaney that an agency's refusal to take enforcement action is presumptively unreviewable, the merits of petitioner's underlying claims are sufficiently clear that the court can avoid the difficult question concerning the scope of Chaney. The court then holds that NRC did not abuse its discretion by not taking any action on petitioner's request for enforcement. The court holds that NRC did not ignore its own policies and precedent in deciding not to institute license review proceedings. The Commission, by its own rules, must issue a show cause order if it decides that a substantial health and safety issue has been raised; however, the Commission never made such a determination in this case. The agency did consider vessel embrittlement to be a problem, but it was not obligated to take action unless the problem was substantial. The court holds that the question of whether a particular problem should be considered substantial is one within the NRC's discretion. The court next holds that NRC's failure, in its response to petitioner's enforcement request, to specifically mention two documents purporting to show that the vessels at the power plant in question are embrittled beyond acceptable levels, does not render its decision arbitrary and capricious. The agency is not required to explicitly rebut every argument petitioner raised. NRC's letter adequately raised the relevant issues and explained the basis for the decision. Finally, the court holds that it cannot consider the evidence on embrittlement itself. The susceptibility of reactor vessels to embrittlement is a novel scientific question entitled to the highest level of judicial deference to agency expertise.

[Previous decisions in this case appear at 14 ELR 20012 and 15 ELR 20321. A related case appears at 16 ELR 20571.].

Counsel for Petitioner
Martin H. Hodder
1131 Northeast 86th St., Miami FL 33138
(305) 751-8706

Counsel for Respondents
F. Henry Habicht II, Ass't Attorney General; Dirk D. Snel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4400

Before: MIKVA, Circuit Judge, and MacKINNON and SWYGERT,* Senior Circuit Judges.