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Ohio v. NRC

Citation: 17 ELR 20544
No. Nos. 86-4019 et al., 814 F.2d 258/(6th Cir., 03/17/1987) NRC denial of motions to intervene, reopen record aff'd

The court holds that the Nuclear Regulatory Commission (NRC) reasonably exercised its discretion in denying Ohio leave to intervene in licensing proceedings for the Perry Nuclear Power Plant, denying a citizen group's motion to reopen the record in the licensing proceedings, and authorizing the plant's full-power license. The court first holds that the NRC acted within its discretion in denying a citizen group's motion to reopen the record to consider the plant's capacity to resist seismic activity of the magnitude of an earthquake that occurred 10 miles from the plant after the record was closed. The statutory scheme requires the NRC staff to address safety issues not raised in the public licensing hearings, but does not require new hearings. Although the citizen group did present new data on the unexpected earthquake, the NRC reasonably concluded that the group had not shown the new evidence would significantly affect safety. The group submitted only a newspaper article in support of its claims and has made no showing that it has anything to add to the analysis of the plant's seismic security. The NRC did not abuse its discretion by canceling an exploratory mini-hearing scheduled by the appeals panel, since the decision to reopen is committed to the agency's discretion and it reasonably determined that the hearing was unnecessary.

The court next holds that the NRC did not abuse its discretion in denying Ohio's request to intervene in the full-power licensing proceedings to delay operation until Ohio's emergency preparedness plan could be fully studied and revised. While the stays imposed in this case have rendered the issue virtually moot, the court notes that plans for off-site emergency preparations may proceed regardless of the operational status of the plant, the NRC has found that there is "reasonable assurance" that the emergency plan is adequate, and issuance of a license does not preclude Ohio from revising the plan or instituting a proceeding to modify, suspend, or revoke the license. The court rejects petitioners' objections to NRC's issuance of the full-power operating license, since petitioners have raised no other bases for reversal.

A concurring judge writes separately to express concern over the NRC's conduct in canceling the exploratory mini-hearing scheduled by the appeals panel and in refusing to delay the plant's operation where Ohio has expressed bona fide concerns about the adequacy of its off-site emergency plan.

[Related cases are published at 17 ELR 20006 and 20420.]

Counsel for Petitioners
Sharon Sigler, Ass't Attorney General
30 E. Broad St., 17th Fl., Columbus OH 43266
(614) 466-3376

Counsel for Respondents
Peter G. Crain
Office of General Counsel
Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20006
(202) 492-7000

Counsel for Intervenors
Jay Silberg
Shaw, Pittman, Potts & Trowbridge
2300 N St. NW, Washington DC 20037
(202) 663-8000

Before: ENGEL, JONES, and RYAN, Circuit Judges.