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Ohio ex rel. Celebrezze v. NRC

Citation: 17 ELR 20420
No. No. 86-4019, 812 F.2d 288/(6th Cir., 02/24/1987)

The court clarifies the standards it applies in reviewing applications for a stay of a proceeding involving a federal agency, and it reaffirms an earlier holding that Ohio is entitled to a stay in the Nuclear Regulatory Commission's (NRC's) issuance of a full-power license to the Perry Nuclear Plant pending review of the NRC's denial of Ohio's motion to intervene in the licensing proceedings. After noting that the four prongs of the test for whether a stay should be granted are factors to be balanced, not prerequisites that must absolutely be met, the court holds that Ohio has shown a sufficient probability of success on the merits of its action. The state has shown sufficient facts, including the occurrence of an earthquake in northern Ohio and the nuclear accident at Chernobyl in the Soviet Union, to indicate that the emergency preparedness plan for the plant is inadequate. The court holds that Ohio's action satisfies the other prongs of the test as well. Although the likelihood of a nuclear accident is small, the injury that could result from an inadequate emergency preparedness plan is enormous. The economic loss to the utility is neither irreparable nor substantial and is certainly less severe than the potential harm to the public. The public safety at issue is a crucial public interest and outweighs any economic harm suffered as a result of a delay in licensing.

Counsel for Petitioners
David Northrop
Office of the Attorney General
30 E. Broad St., 17th Fl., Columbus OH 43266-0410
(614) 466-3376

Dale Baich
2120 Illuminating Bldg., 55 Public Sq., Cleveland OH 44113
(216) 241-6461

Counsel for Respondents
William Briggs
Office of General Counsel
Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20555
(202) 492-7000

Jay E. Silberg
Shaw, Pittman, Potts & Trowbridge
1800 M St. NW, Washington DC 20036
(202) 822-1000

Before: MARTIN, JONES, and MILBURN, Circuit Judges.