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Nader v. NRC

Citation: 5 ELR 20342
No. No. 73-1872, 513 F.2d 1045/7 ERC 2059/(D.C. Cir., 05/30/1975) Aff'g AEC order

The D.C. Circuit Court of Appeals upholds an Atomic Energy Commission order denying plaintiff's request for a shutdown or derating of twenty nuclear power plants on the basis of the alleged inadequacy of Interim Acceptance Criteria (IAC) for emergency core cooling systems. The order is neither arbitrary and capricious nor in conflict with the agency's regulations. The AEC's reliance on the interim criteria does not conflict with a prior agency regulation setting forth General Design Criteria (GDC) since the GDC and IAC were issued "almost contemporaneously", the two criteria are aimed at the same safety standard of "abundant emergency core cooling", and defendant had relied on findings indicating that the IAC complied with that standard. Plaintiff's challenge to those findings on the grounds of certain testimony contrary to the agency's conclusion must fail, since to require shutdowns on the basis of any adverse testimony would effectively deter defendant from attempting to upgrade nuclear plant safety standards. Furthermore, plaintiffs have no standing to challenge the findings since they did not participate in the administrative proceedings that produced them. Finally, the record indicates that the agency findings in regard to the safety of the IAC satisfy the test of reasonableness, the appropriate standard of review in a matter of interim relief such as this one.

Counsel for Plaintiffs
Anthony Z. Roisman
Berlin, Roisman & Kessler
1712 N. St., N.W.
Washington, D.C. 20036

Myron M. Cherry
1 IBM Plaza
Chicago, Illinois 60611

Counsel for Defendants
Guy H. Cunningham, III
Marcus A. Rowden
Jerome Nelson
Atomic Energy Commission
Washington, D.C. 20545

Wallace H. Johnson
Edmund B. Clark
Department of Justice
Washington, D.C. 20530

Counsel for Intervenors Carolina Power and Light Co.
George C. Freeman
Donald P. Irwin
David S. Brollier
Hunton, Williams, Gay & Gibson
700 E. Main St.
Richmond, Virginia 23219
%eugene R. Fidell
Arvin E. Upton
Harry H. Voight
LeBoeuf, Lamb, Leiby & MacRae
1757 N. Street, N.W.
Washington, D.C. 20036

Counsel for Intervenors Southern California Edison Co.
C. Hayden Ames
Chickering & Gregory
111 Sutter Street
San Francisco, California 94104