Ohio v. Nuclear Regulatory Commission

NATHANIEL R. JONES, Circuit Judge,

concurring.

The opinion of the court in this case sets out as good a basis for affirming the Nuclear Regulatory Commission’s orders as can be done. Because I am persuaded that the scope of judicial review delineated by the Supreme Court in Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983), and Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), is extremely narrow, I concur in today’s result. Nonetheless, I am sufficiently alarmed by the events that gave rise to the instant proceedings to write separately.

The court's opinion summarizes OCRE’s description of the NRC’s “bureaucratic evils” as:

first, the agency’s inclination to shut the public out of the decision-making process, confident in the sufficiency of its own knowledge and expertise; and second, the agency’s impatience with the pace of the democratic decision-making process imposed upon it by statute, which inclines the NRC to dispense with any procedure, however well-founded, that threatens delay.

The majority of this panel finds no merit in such a description. However, if the proceedings in this case are any indication of the Commission’s standard practice, I think that the description is quite accurate. From my perspective, there is no better way to characterize the Commission’s sua sponte order vacating the Appeal Panel’s order scheduling an exploratory mini-hearing. The purpose of that mini-hearing was to determine whether the unexpected and uncharacteristically strong earthquake raised significant safety issues warranting a reopening of the record.

The Commission’s treatment of the State of Ohio’s concerns with the adequacy of the off-site emergency preparedness plan is even more disconcerting. The NRC’s argument in support of its denial of the State’s motion to intervene boils down to the following: While it is not too late for the State to make improvements in the existing off-site emergency plan that it fears may be seriously inadequate in certain respects, it is in fact too late for the State to guarantee the safety of its citizenry by temporarily delaying the issuance of Perry’s full-power license pending the completion of its formal review. Granted, the Commission is not legally required to further stay the plant’s full-power operation since it has satisfied itself that the existing off-site plan is adequate. However, that is not really the point. Where, as here, the State has expressed bona fide concerns for the safety of its people and has in good faith undertaken affirmative investigatory measures, it is at best patronizing for the Commission to turn a deaf ear to the State’s plea for a brief delay. While the Nuclear Regulatory Commission may be secure in its belief that it is the ultimate protector of the American people generally, and of the people of Ohio specifically, from the hazards of nuclear power generation, I do not think that Congress ever intended for the Commission to have this type of one-sided relationship with a sovereign State over a serious matter of local health and safety.