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Lorion v. NRC

Citation: 14 ELR 20012
No. No. 82-1132, 712 F.2d 1472/19 ERC 1730/(D.C. Cir., 07/26/1983)

The court holds that the Nuclear Regulatory Commission's (NRC's) denial of a request to institute licensing proceedings is not reviewable in the courts of appeals under § 189 of the Atomic Energy Act (AEA). The court first limits its review to the NRC's action on the request, noting that petitioner's other arguments were never raised below. The court then holds that the NRC properly characterized petitioner's letter as a request under § 2.206 of the NRC rules of practice. The court rules that it lacks jurisdiction to review a denial of such a request. The NRC's processing of § 2.206 requests does not constitute a "proceeding" under aea § 189(a). Under AEA § 189(b) only "proceedings" are reviewable in the courts of appeals. In a prior ruling, Natural Resources Defense Council, Inc. (NRDC) v. NRC, 9 ELR 20630, the court held § 2.206 actions reviewable as "necessary first steps" in a proceeding. The court, after review and approval by the full court, overrules NRDC v. NRC and rules that only full § 189(a) proceedings are reviewable under § 189(b). The court notes that the present ruling does not upset the res judicata effect of any prior rulings. The court transfers the case to a district court to be reviewed under federal question jurisdiction.

Counsel for Petitioner
Martin H. Hodder
1131 NE 86th St., Miami FL 33138
(305) 751-8706

Counsel for Respondents
Richard P. Levi; Leonard Bickwit Jr., General Counsel; E. Leo Slaggie, Acting Solicitor; James A. Fitzgerald
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3288

Peter R. Steenland, Martin Green, Dirk D. Snel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748

Counsel for Intervenor
Harold F. Reis, Steven P. Frantz
Lowenstein, Newman, Reis & Axeland
1025 Connecticut Ave. NW, Washington DC 20036
(202) 862-8400

Before: MIKVA, Circuit Judge, MACKINNON, Senior Circuit Judge, and SWYGERT,* Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.