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Union of Concerned Scientists v. NRC

Citation: 14 ELR 20639
No. No. 82-2053, 735 F.2d 1437/(D.C. Cir., 05/25/1984)

The court rules that the Nuclear Regulatory Commission (NRC) may not issue an operating license for a nuclear power reactor prior to holding a hearing, if requested, on the results of emergency preparedness exercises. The court first rules that the preparedness exercises are material to the NRC's licensing decision under § 189(a) of the Atomic Energy Act (AEA). NRC regulations and applicable precedent make clear that these are safety-related issues that must be resolved before issuance of the operating license, and are therefore material to the NRC's licensing decision under § 189(a) of the AEA. The court next turns to the "core question" in the case, whether the NRC has discretion to exclude such an issue from the scope of pre-licensing hearings in the interests of administrative efficiency. It rules that § 189(a) forecloses that discretion. While the NRC has great discretion in deciding what issues must be addressed in licensing decisions, once it has included an issue in that category, it must, on request, allow it to be raised in a hearing prior to issuance of an operating license. The public hearing requirement was mandated by Congress to give the public a role in the oversight of nuclear power safety, and that role is particularly appropriate where the issue is the ability of the power plant staff and the public to respond to an emergency. Requiring that the adequacy of the preparedness plan as revealed in the exercises by addressed prior to licensing does not infringe on the NRC's discretion to set the substantive standards for licensing and will not delay the overall process if the Commission uses expedited hearing procedures.

The court rejects respondents' argument that the preparedness exercises were properly excluded from the § 189(a) hearing requirement and treated as preoperational testing, which is conducted after § 189(a) hearings. The court finds no basis for any exemptions in § 189(a) itself, but notes that the Administrative Procedure Act authorizes exemptions for decisions based solely on inspections and other on-site expert examinations that are not suited to resolution through hearings. The emergency preparedness exercises do not fall into this category, however, the court concludes. To evaluate the exercises, the Commission must consider and weigh the observations of its own staff and outside participants from federal, state, and local agencies. Nor is there any indication that Congress acquiesced in the practice of treating preparedness exercises as preoperational tests.

A dissent would approve the NRC's rule change and allow the Commission to evaluate emergency preparedness exercises without public hearings. It concludes that § 189(a) requires hearings only on the adequacy of emergency plans, not the subsequent exercises. It rejects the majority's argument that expedited procedures will allow the NRC to conduct special hearings on the exercises, serving the twin goals of (1) making the exercises realistic by holding them close to the time the reactor is ready to start operation and (2) not adding further delays to the already lengthy licensing process.

Counsel for Petitioner
William S. Jordan III, Ellyn R. Weiss, Diane Curran
Harmon, Weiss & Jordan
2001 S St. NW, Suite 430, Washington DC 20009
(202) 328-3500

Counsel for Respondents
Dan M. Berkowitz; Herzel H. E. Plaine, General Counsel; E. Leo Slaggie, Mark E. Chopko, Michael B. Blume
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3288

Anne S. Almy, Blake Watson, Peter R. Steenland Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4427

Counsel for Intervenors
Robert E. Zahler, Hannah E. M. Lieberman
Shaw, Pittman, Potts & Trowbridge
1800 M St. NW, Washington DC 20036
(202) 822-1000

Jo Ann Shotwell, Stephen M. Leonard; Francis X. Bellotti, Attorney General
One Ashburton Pl., Boston MA 02108
(617) 727-3688

Before: WALD and GINSBURG, Circuit Judges, and MacKINNON, Senior Circuit Judge.