A federal judge yesterday threw out an attempt by the Westinghouse Electric Corp. to pry a Philippine nuclear power plant license loose from the Nuclear Regulatory Commission.
The decision appeared to affirm the government's right to consider health and safety questions in export license decisions, a shift in policy that could have wide repercussions in the future.
U.S. District Court Judge June Green said in a brief oral ruling that she had been unable to find the NRC "arbitrary and capricious" in delaying the license, and so had decided in the agency's favor. She declined jurisdiction in a second suit, involving a permit held up at the State Department, and deferred to the U.S. Court of Appeals.
Westinghouse had argued that the NRC and the State Department were guilty of "arbitrary and capricious conduct in excess of their authority under the Atomic Energy Act" when they decided to check health and safety aspects of the proposed reactor. The company applied for licenses beginning in 1976.
"Such considerations relate to the domestic policies of a foreign nation," Westinghouse argued. Traditional U.S. policy and the Atomic Energy Act ordered that sovereign nations must be expected to police their own health, and that U.S. government considerations must be limited to whether a proposed export is "inimical to the common defense and security or the health and safety of the [U.S.] public," it argued.
The Philippine reactor, however, is to be built on the slope of Mount Natib, a sleeping volcano, in a known earthquake zone 65 miles west of Manila. And 12 miles away, at Subic Bay, is a major U.S. military installation where 8,000 Americans live.
"It is conceivable that a safety or health risk could so threaten U.S. relations with a recipient country -- or a U.S. military facility in that country -- that it would jeopardize important U.S. security or defense interests such as relations with an ally or base rights," the government argued.
Since the Philippines is "a longstanding U.S. ally" and Americans live close to the reactor site on a permanent basis, health and safety considerations are justified, the government continued. Its attorneys also cited possible effects from any accident on "the global commons," or the high seas, as giving "a clear interest in insuring that the world's nations carefully evaluate activities taken under their authority."
Westinghouse applied in 1976 for a permit to export the main reactor and its steam producing equipment, and the State Department has been pondering the national security aspects ever since. As part of this case, the department agreed to make up its mind by Sept. 28, an action Judge Green said meant the case should be reviewed after that by the U.S. Court of Appeals.
A second Westinghouse application went to the NRC in 1978, asking that the firm be allowed to export certain reactor parts and related equipment of a non-nuclear nature so that construction could proceed while the State Department deliberated.
The NRC has never authorized the export of components before the main reactor was permitted to be sent, and sees no point in starting now, the government stated. The NRC staff has recommended that the component export be approved, but the full commission has not acted. Green refused yesterday to order an NRC decision.
An NRC spokesman, Frank Ingram, said, "Our people are pleased" by the ruling. "It means they can go about their review of the application in a normal way," he added.
Westinghouse's assistant director for International government affairs, Dixon Hoyle, said the company was "obviously disappointed" by the decision but felt it had been "worth the effort . . . to highlight the problem of the absence of any enforceable guidelines for prompt review of licenses."
The company had argued that license delays are costing it millions of dollars and may jeopardize the contract with the Philippine government.
President Ferdinand Marcos suspended construction of the $1.2 billion plant in June pending the report of a special commission on the unit's safety.