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09/09/86 Oystershell Alliance, Et v. United States Nuclear

September 9, 1986




Edwards, Bork, and Buckley, Circuit Judges.



Petition for Review of Orders of the Nuclear Regulatory Commission. 1986.CDC.300




On March 15, 1985, the Nuclear Regulatory Commission ("NRC" or "Commission") approved the Atomic Safety and Licensing Board's ("Licensing Board") issuance of a full-power operating license for Waterford Steam Electric Station, Unit 3 ("Waterford-3"), a commercial nuclear power reactor owned by Louisiana Power & Light Company and regulated by the NRC pursuant to the Atomic Energy Act . The NRC's approval was given notwithstanding the pendency before the Atomic Safety and Licensing Appeal Board ("Appeal Board") of two motions to reopen the administrative record filed by petitioners Oystershell Alliance and Save Our Wetlands.

Petitioners seek review of the March 15 decision, arguing that the Commission's licensing approval violated the Administrative Procedure Act and the AEA because it was based on evidence outside the adjudicatory record. Petitioners also contend that the Commission could not lawfully authorize full-power operation of Waterford-3 without first resolving the issues raised in the motions to reopen.

These motions were subsequently denied by the Appeal Board and (with respect to one issue referred by the Appeal Board to the NRC) by the Commission, which ruled that petitioners had failed to meet the Commission's standards for reopening a closed record. Petitioners also seek review of this second decision, and the two matters are now before us.

We conclude that the NRC's decision to authorize full-power operation notwithstanding the pendency of motions to reopen was fully consistent with the statutory and regulatory requirements under which the Commission operates, and that the collateral objections raised by petitioners are without merit. I. BACKGROUND

In 1978, eight years after it had first applied for a permit to build the Waterford-3 nuclear reactor and while the plant was still under construction, LP&L applied to the NRC for an operating license for the facility. It was at this stage that petitioners first intervened in the proceeding, citing several problems concerning the environmental and public health risks associated with the ongoing construction and future operation of the plant.

The Licensing Board ultimately approved the Waterford-3 operating license application and, in December 1983, the Appeal Board affirmed the Licensing Board's Order and issued what was intended at the time to be its final merits decision with respect to the Waterford-3 facility. Following the Appeal Board's decision, petitioners filed two motions to reopen the proceedings in order to consider new concerns relating to (1) the appearance of cracks in the concrete basemat on which the reactor was situated and (2) the character of LP&L's management and the adequacy of its quality assurance procedures at Waterford-3.

On March 15, 1985, while these two motions were pending, the Commission issued an order approving the Licensing Board's initial decision authorizing full-power operation of Waterford-3. In re Louisiana Power & Light Co., CLI-85-3, 21 N.R.C. 471 (Mar. 15, 1985). The Commission determined that the plant could operate without danger to the public health and safety on an interim basis, pending the Appeal Board's resolution of the motions to reopen. The Commission made it clear that its decision was "without prejudice to the [petitioners'] motions to reopen. . . ." Id. at 471. Since that time both motions have been denied.

The Appeal Board rejected petitioners' basemat cracking claim on April 4, 1985, finding "no cause to recant its earlier findings that there are no significant safety concerns associated with cracking in the concrete basemat at Waterford." ALAB-803, 21 N.R.C. 575 (Apr. 4, 1985). On July 11, 1985, the Appeal Board similarly rejected all but one element of petitioners' motion to reopen on the management character/quality assurance issues. ALAB-812, 22 N.R.C. 5 (July 11, 1985).

The remaining issue involved petitioners' claim that ongoing investigations by the NRC's Office of Investigations of LP&L's alleged falsification of records and harassment of quality assurance personnel demonstrated its management's lack of integrity. The Appeal Board did not have access to the information it felt it required in order to rule on this matter because the investigations were not yet completed, and the confidential information developed by OI could not be disclosed to the parties. The Board therefore referred this claim to the Commission for its disposition. Id. at 45-47.

In January 1986, the Commission issued a decision declaring that claim to be without merit and holding that petitioners had failed to meet the requisite criteria for reopening the case. CLI-86-1, 23 N.R.C. 1 (Jan. 30, 1986). Petitioners seek review of this final denial of their motion to reopen, and their review petitions of the March 15, 1985 and January 30, 1986 decisions are now before us in consolidated form. II. ARGUMENT

We address the issues raised in each of the consolidated ...

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