ELR Citation: ELR 20832
No(s). 73-1866 (D.C. Cir. Aug 24, 1973)

In separate opinions Judges Bazelon and Leventhal deny a motion by environmental plaintiffs for summary reversal of an AEC order allowing nine nuclear electricity-generating plants to continue operating at present authorized power levels, pending further study of the newly discovered phenomenon of fuel densification. Chief Judge Bazelon upholds the agency's ruling that normal operation of the plants, pending staff review of the phenomenon, presents no undue risk to public health and safety, but suggests that under circumstances of less urgency a procedure by which the agency would hear experts representing varied and opposing technical views, with some right of cross-examination, would be preferable and perhaps required. Judge Leventhal agrees that there is no substantial basis for judicial intervention before the staff study is completed, but argues that Judge Bazelon has taken the opportunity to express views on issues that were not raised by the parties, and that he is moreover mistaken, since oral presentations in rule-making, however desirable, are generally not required.

Counsel for Plaintiff
Anthony Z. Roisman
Environmental Defense Fund
1712 N Street, NW
Washington, DC 20036

Counsel for Defendants
Jerome Nelson Solicitor
Leon Silverstrom
Atomic Energy Commission
Washington, DC 20545

Wallace H. Johnson Asst. Attorney General
Raymond N. Zagone
Department of Justice
Washington, DC 20530

Counsel for Intervenor Boston Edison Company
George H. Lewald
Harold Reis
Dale G. Stoodley
Ropes & Gray
225 Franklin Street
Boston, MA 12110

Counsel for Intervenor Niagra Mohawk Power Corporation
Arvin E. Upton
Eugene B. Thomas
James P. McGranery
Leboeuf, Lamb, Leiby & MacRae
1757 N Street NW
Washington, DC 20006

Counsel for Intervenors Jersey Central Power and Light Company and Northern States Power Company
George F. Trowbridge
Shaw, Pittman, Potts, Trowbridge & Madden
910 17th Street NW
Washington, DC 20006

Counsel for Intervenor Connecticut Light and Power Company
Jerome Ackerman
William H. Cuddy
888 16th Street, NW
Washington, DC 20005

Counsel for Intervenor General Electric Company
Ezekiel G. Stoddard
Wilmer, Cutler & Pickering
900 17th Street, NW
Washington, DC 20006

Before: Bazelon, Chief Judge, and Leventhal, Circuit Judge.