WASHINGTON — A federal appeals court unexpectedly resurrected a decade-long legal battle against the Diablo Canyon nuclear plant Wednesday, ordering a rehearing of a decisive December ruling that had cleared the way for full-power operation of the troubled California reactor.
In a 9-1 vote, the U.S. Court of Appeals for the District of Columbia ordered new arguments over whether the Nuclear Regulatory Commission had disregarded earthquake safety questions last August when it granted a full-power license to the $5.6-billion facility near San Luis Obispo.
Those arguments, which will be heard by the full court, had been rejected by a three-judge panel of the same court in December.
The rehearing will not bar Pacific Gas & Electric Co. from beginning scheduled commercial operation of the plant's 1,084-megawatt first unit next Monday. Jubilant opponents of the project said, however, that it could delay operations of the 1,106-megawatt second unit, which won commission approval last Friday for low-power trials. The second unit is scheduled to begin commercial power generation by early next year.
'Very, Very Concerned'
"The court wouldn't have granted our appeal were it not very, very concerned about the adequacy of the (three-judge) panel's decision," said Joel Reynolds, a Los Angeles attorney representing Mothers for Peace, the San Luis Obispo group that is battling the reactor. "Ultimately, this could reverse the commission's decision to license the plant."
PG&E spokesman Richard Davin said he assumed the reactor would continue to operate even if new hearings on its federal license were ordered. He declined further comment, saying the utility had not read the court's order.
The appeals court's highly unusual order for new arguments reopens--at least temporarily--a caustic legal battle that PG&E appeared to have won more than four months ago. It is far from clear, however, that a rehearing will produce a different verdict.
In December, an appeals panel ruled 2 to 1 that the commission had acted properly in all but "two minor instances" when it granted a full-power license to Diablo Canyon's first unit last August. The lone dissenter, Judge Patricia Wald, said the commission should have conducted public hearings on the issue of whether emergency evacuation plans for communities near the reactor would be affected by a severe earthquake.
In ordering new arguments Wednesday, the full appeals court left most of the December decision intact but specified that there be a rehearing on those parts of the decision dealing with earthquake safety.
The rehearing apparently will allow the appeals court to consider for the first time transcripts of a closed commission meeting last summer in which the earthquake question was raised, then dismissed by the agency's commissioners.
Active Undersea Fault
Reynolds and Mothers for Peace had asked the panel to order that the transcripts be made public, arguing that the Diablo Canyon plant sits only a few miles from an active undersea earthquake fault, but the appeals panel refused.
In the transcripts, which since have become public, commission attorneys and technical staff members repeatedly warned the commission that there should be a public hearing to discuss the effects of an earthquake on emergency evacuation procedures. Over the objections of Commissioner James K. Asselstine, the commission decided that the earthquake threat was small enough that separate hearings were unnecessary.
Attorneys familiar with the case said Wednesday that it is unclear whether the appeals court ordered a rehearing out of direct concern over earthquake safety or because of a technical legal issue: whether the appeals panel should have at least considered the transcripts before rejecting the Mothers for Peace arguments.
Asselstine, who voted against giving PG&E a full-power license, said Wednesday that the appeals court's action is "the right decision." He said, however, that he doubts that the commission would order even a temporary shutdown of the Diablo Canyon reactor if it is forced to reconsider its licensing decision.
Sandy Silver, a spokesman for Mothers for Peace, said in a telephone interview from San Luis Obispo that the court's action is "a strong condemnation" of the earlier decision. "We've always felt the evidence in this case supported what we've been saying. Our only disappointment is that the plant is being allowed to run while they look at the decision," she said.
The appeals court did not set a date for the rehearing.
In California, meanwhile, William M. Bennett, an elected member of the Board of Equalization and former president of the state Public Utilities Commission, filed a complaint with the PUC claiming that PG&E's authorization to build and run the Diablo Canyon plant expired in 1972, five years after the PUC granted it. PG&E spokesman Davin dismissed Bennett's charges as "ridiculous."