WASHINGTON - The U.S. Court of Appeals for the District of Columbia Circuit will hear, over the objection of Pacific Gas and Electric and the Nuclear Regulatory Commission, a case brought by Friends of the Earth alleging that the NRC illegally allowed PG&E to alter the Diablo Canyon nuclear plant’s license.

Friends of the Earth contends the NRC acted in secret, and in collusion with PG&E to hide Diablo Canyon’s vulnerability to earthquakes stronger than it was built to withstand. A decision in favor of Friends of the Earth could result in PG&E being forced to shut down the reactors, pending a public hearing to examine new earthquake risks at the plant.

The D.C. Circuit ruled late February 20 not to grant a motion by the NRC and PG&E to dismiss the case on procedural grounds. The judges instructed that the case should be heard on its merits.

“This is a big victory,” said Damon Moglen, senior strategic advisor for Friends of the Earth. “The public has a right to know what the NRC and PG&E won’t admit -- hundreds of thousands of people are put at immediate risk by earthquake danger at Diablo Canyon. The evidence will show that the NRC and PG&E colluded to illegally change the terms of Diablo Canyon’s operating license, to cover up the fact that it cannot withstand a rupture of the larger, more powerful earthquake faults that have been discovered since the reactors were designed. This means the plant violates its operating license and must be shut down.”

Under federal law and NRC regulations, changing the way seismic risk or reactor durability is assessed at a nuclear plant requires a license amendment and attendant public adjudicatory hearing. Instead, in consultation with PG&E in 2013, the NRC inserted a secret revision to Diablo Canyon’s license, changing the scientific calculations for assessing earthquake risks and retroactively declaring the plant’s two reactors strong enough to withstand far more shaking than they were built to endure.

The secret revision of Diablo Canyon’s license was revealed in NRC documents made public in September 2014, when the agency rejected a dissenting appeal by the NRC’s own former senior resident inspector. The inspector, Dr. Michael Peck, concluded that Diablo Canyon was operating in violation of its license and should be shut down unless and until new seismic information was addressed.

“PG&E’s recent study revealed that the earthquake threat at Diablo Canyon, as measured by its original license, could be far greater than that for which the reactors were designed. So PG&E and the NRC secretly amended the license to relax the safety requirements,” said David Freeman, former head of the Tennessee Valley Authority, Los Angeles Department of Water and Power and the Sacramento Municipal Utility District and a special advisor to Friends of the Earth.

“This is not only illegal, it shows that PG&E has not really learned the lesson of San Bruno: that safety, not profits, must be its top priority,” said Freeman. “The risk of getting this wrong is the California version of Fukushima.”

Briefing at the U.S. Court of Appeals for the District of Columbia Circuit will likely be completed in the next few months and a ruling is expected later this year.