Jump to Navigation
Jump to Content

Eddleman v. NRC

ELR Citation: 18 ELR 20071
Nos. No. 87-1018, 825 F.2d 46/(4th Cir., 08/10/1987)

The court holds that petitioner citizen groups' procedural rights were not violated when the Nuclear Regulatory Commission (NRC) permitted the Shearon Harris Nuclear Power Plant in North Carolina to begin full operations. The court first holds that petitioners had no right to notice and an opportunity to present arguments when the NRC conducted its informal "immediate effectiveness review," allowing the plant to begin operations while the Commission's review of the licensing board's grant of an operating license was still pending. The court next holds that petitioners had no right to a hearing on their petition, filed pursuant to the NRC's regulation at 10 C.F.R. §2.206, asserting various safety concerns respecting the power plant. Because the disposition of such a petition is not a "proceeding" within the meaning of §189(a) of the Atomic Energy Act (AEA), petitioners have no basis for demanding a hearing. The court holds that the NRC did not err, when deciding petitioners' §2.206 petition, by considering facts not part of the adjudicatory record arising from the licensing proceedings. Such petitions can involve matters that are unrelated to the issues that were before the licensing board. Finally, the court holds that the NRC committed neither procedural nor substantive error when it granted defendant power plant an exemption from the NRC regulations' emergency response plan requirement. The court holds that NRC did not use the wrong procedural mechanism to resolve the exemption issue; the two available procedures in the regulations are closely related, and agencies are afforded discretion in construing their own enabling statutes. The court finds no basis in the record to dispute the NRC's decision on the merits. The court also holds that the NRC did not err by failing to provide a hearing on the exemption issue, because the procedural prerequisites for a hearing under AEA §189(a) were not met. Nor did the NRC err by deciding not to refer the matter to the licensing board.

Counsel for Petitioners
Robert Epting
Epting & Hackney
P.O. Box 1329, Chapel Hill NC 27514
(919) 929-0323

Counsel for Respondents
George Paul Bollwerk III
Office of General Counsel
Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20006
(202) 492-7000

Before PHILLIPS, and CHAPMAN, Circuit Judges, and BRITT, United States District Judge for the Eastern District of North Carolina, sitting by designation.