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San Luis Obispo Mothers for Peace v. NRC

Citation: 17 ELR 20011
No. No. 86-7297, 799 F.2d 1268, 804 F.2d 523/(9th Cir., 09/11/1986)

The court holds that the Nuclear Regulatory Commission (NRC) violated its regulations by denying petitioners a public hearing before it authorized Pacific Gas and Electric's (PG & E's) Diablo Canyon power plant license amendments to redesign radioactive fuel rod configurations and expand storage pools. The court notes that Atomic Energy Act § 189, as amended, requires a prior hearing upon request of any interested party in any license-amending proceeding, unless the NRC determines that the license amendment involves no significant hazards. The court holds that the NRC violated its regulations specifying when the Commission may find that an amendment poses no significant hazards. Citing legislative history weighing against a finding of no significant hazards in borderline cases, the court holds that these regulations require the NRC to hold a hearing whenever a license amendment creates the possibility of a new or different type of accident. The court then holds that the Diablo Canyon license amendments create the possibility of such an accident. The proposed freestanding fuel rod racks would create an increased risk of a nuclear reaction in the event of an earthquake. The plant is located in an active seismic area and the original license did not consider the effect of an earthquake on the new fuel rod rack design. Further, the NRC's decision that a hearing is justified after the license amendments take effect tacitly acknowledges that the amendments create a possibility of a new or different type of accident. Finding that NRC violated its own regulations, the court refuses to reach petitioners' other Atomic Energy Act, Nuclear Waste Policy Act, and National Environmental Policy Act (NEPA) claims. Nonetheless, the court suggests that NRC's site-specific environmental assessment may not be adequate under NEPA.

A dissenting judge would sustain the NRC's decision to grant a hearing after PG & E's license amendments take effect. The dissent notes that only the NRC has statutory authority to determine whether a proposed license amendment involves a significant hazard, and a court may not overturn that decision unless it was arbitrary and capricious.

Counsel for Petitioners
Edwin F. Lowry, Dian M. Grueneich
Grueneich & Lowry
345 Franklin St., San Francisco CA 94102
(415) 861-6930

Counsel for Respondents
Richard K. Willard
Civil Division
Department of Justice, Washington DC 20530
(202) 633-3333

Counsel for Intervenor
Bruce Norton
Norton, Berry, French & Perkins
2002 E. Osborn Rd., P.O. Box 10569, Phoenix AZ 85064
(602) 955-2446

Before Merrill and Wiggins, JJ.

WIGGINS, Circuit Judge, will file his views separately.