Ohio Citizens for Responsible Energy v. NRC
Citation: 17 ELR 20006
No. No. 86-3355, 803 F.2d 258/(6th Cir., 10/14/1986)
The court rules that the Nuclear Regulatory Commission's (NRC's) denial of a motion to reopen licensing proceedings before the Atomic Safety and Licensing Appeal Board prior to the issuance or denial of an operating license is not a final order allowing judicial review under the Atomic Energy Act. Petitioner, an intervenor in the licensing proceedings for the Perry Nuclear Power Plant in Ohio, filed its motion to reopen the administrative record after an earthquake that generated more ground movement than the plant was designed to withstand occurred ten miles away while the plant was operating at 5 percent power. The court first holds that the NRC's decision not to reopen the proceedings was not so flagrantly wrong as to justify judicial interference at this stage of the proceedings. Petitioner's only support for its motion was newspaper articles, whereas the Commission presented extensive evidence in opposition. The court then rules that in licensing proceedings before the NRC a final order allowing judicial review is the order granting or denying a license. Review of the final licensing decision is the appropriate time at which to consider all objections; prior to that time the court will not require the agency to reopen its proceedings absent a clear showing of abuse of discretion. A dissent would grant the petition for review under the collateral order doctrine.
Counsel for Petitioner
David A. Baich
1020 Huron Rd., Suite 200, Cleveland OH 44115
Counsel for Respondents
William H. Briggs Jr.
U.S. Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20555
Before: MARTIN, JONES and MILBURN, Circuit Judges.