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Sholly v. NRC

Citation: 11 ELR 20329
No. Nos. 80-1691 et al., 651 F.2d 780/15 ERC 1231/(D.C. Cir., 11/19/1980)

The court rules that under § 189(a) of the Atomic Energy Act (AEA) the Nuclear Regulatory Commission (NRC) is required, upon the request of an interested person, to hold a hearing before issuing an amendment to a construction permit or an operating license for a nuclear power plant. Petitioners, who reside near the Three Mile Island plant, unsuccessfully sought from the NRC a hearing prior to the issuance of a license amendment authorizing the licensee to discharge radioactive gas into the atmosphere. The request was denied on the basis of the NRC's earlier determination that the proposed action did not involve significant hazards considerations.The D.C. Circuit Court of Appeals, though it previously denied petitioners' request for emergency injunctive relief, now rules that the denial of the hearing was contrary to the AEA. The Act, it concludes, requires a hearing prior to the issuance of any permit or license amendment. If an amendment is properly determined not to involve significant hazards considerations, the fourth sentence of § 189(a) relieves the NRC only of the duty to provide 30 days notice of the action. Under no circumstances, however, may the Commission fail to hold a hearing when one is requested. Moreover, the court determines that petitioners' continued interest in and opposition to the activities at the Three Mile Island plant constituted a request for a hearing within the meaning of § 189(a) despite the fact that no formal hearing request was ever transmitted to the NRC. The court also determines that the case is not moot. Even though the action authorized by the contested license amendment has been completed, such an amendment falls under the exception to the mootness doctrine for cases which are capable of repetition yet evading review.

Counsel for Petitioners
Robert Hager, Daniel P. Sheehan
Christie Institute
1324 N. Capital St. NW, Washington DC 20002
(202) 797-8106

Counsel for Respondents
Stephen F. Eilperin, Solicitor; E. Leo Slaggie
Office of the General Counsel
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3288

David A. Strauss, Peter R. Steenland Jr., Sanford Sagalkin, Lois J. Schiffer; James A. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3694

Counsel for Intervenors Metropolitan Edison Co. et al.
Mark Augenblick, George F. Trowbridge, Matias F. Travieso-Diaz, Robert E. Zahler
Shaw, Pittman, Potts & Trowbridge
1800 M St. NW, Washington DC 20036
(202) 822-1000

Before WRIGHT, Chief Judge, and MIKVA and EDWARDS, Circuit Judges.