ELR Citation: ELR 20008
No(s). 85-1182 (D.C. Cir. Sep 9, 1986)

The court holds that the Nuclear Regulatory Commission's (NRC's) decision to authorize a nuclear power plant's full-power operation despite the pendency of two motions to reopen the administrative record did not violate either the Administrative Procedure Act (APA) or the Atomic Energy Act (AEA), and the Commission's subsequent decision not to reopen the record was not an abuse of discretion. Petitioners, two citizen groups, moved to reopen the administrative record after the Atomic Safety and Licensing Appeal Board (Appeal Board) had approved the operating license application for the third unit of the Waterford Steam Electric Station in Louisiana. Petitioners' motions addressed the appearance of cracks in the reactor's concrete basemat and challenged the adequacy of the utility company's management and quality control procedures at the plant. The court first holds that NRC's decision to authorize full-power operation despite the pendency of the two motions before the Appeal Board does not violate the hearing requirements of either the APA or the AEA. The court holds that the Commission's decision was not unlawfully based on information outside the administrative record. NRC properly considered petitioners' pending motions in reaching its decision, since the motions raised serious safety concerns that NRC was required to consider in allowing full-power operation on an interim basis until the motions were resolved. The court holds that petitioners had an adequate opportunity to respond to NRC's use of extra-record evidence, since the material was available to petitioners and could have been used by them in the reopening proceedings.

The court next holds that NRC was not required to resolve the pending motions to reopen the record prior to issuing the final full-power operating license. A long-standing Commission regulation specifically contemplates Commission approval of a full-power operating license prior to the resolution of various appeals or motions. In its decision in this case, NRC explicitly considered whether the issues petitioners had raised in their pending motions warranted a stay of the Atomic Safety and Licensing Board's initial approval of the full-power license. NRC's decision to approve the license did not amount to a decision on the merits against petitioners, but only a determination that the public interest did not warrant a stay. The court holds that the regulation allowing NRC to approve a license prior to the resolution of appeals is lawful under the AEA. The court also holds that the issue of whether NRC should have resolved petitioners' motions prior to authorizing full-power operation is moot, since the motions were subsequently denied.

The court holds that NRC's subsequent decision denying one of petitioners' motions to reopen the proceedings was not an abuse of discretion. The Appeal Board, which rejected petitioners' motion concerning cracks in the concrete basemat and a portion of their motion addressing the adequacy of management and quality control, had referred a portion of the latter motion to the NRC for final disposition. The court holds that the mere fact that NRC was investigating the utility company's alleged falsification of records and harassment of quality assurance personnel does not rise to the level of evidence demonstrating the Commission's unlawful abuse of discretion in denying the motion to reopen.

Counsel for Petitioners
Lynne Bernabei
Newman, Sobol, Trister & Owens
21 Dupont Circle NW, Suite 400, Washington DC 20036
(202) 775-5960

Counsel for Respondents
Carolyn Jourdan, Herzel H.E. Plaine
U.S. Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3214

Maria A. Iizuka, Thomas A. Pacheo, David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2753

Counsel for Intervenor
Bruce W. Churchill
Shaw, Pittman, Potts & Trowbridge
1800 M St. NW, Washington DC 20036
(202) 822-1000

Before EDWARDS, BORK, and BUCKLEY, Circuit Judges.