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West Chicago, City of v. NRC

ELR Citation: 13 ELR 20648
Nos. Nos. 82-1575, -1684, 701 F.2d 632/19 ERC 1006/(7th Cir., 03/01/1983)

The court rules that under §189(a) of the Atomic Energy Act (AEA), the Nuclear Regulatory Commission (NRC) need not hold a formal, trial-type hearing on a challenge to a proposed amendment to a materials license allowing the demolition of a thorium processing plant and temporary storage of off-site wastes at the site. First, the court rules that NRC did not violate its own regulations by failing to hold a formal hearing. Those regulations, 10 C.F.R. §2.104, mandate a formal hearing when "required by" the AEA or NRC regulations, or when NRC concludes that such a hearing is in the public interest. The court upholds NRC's interpretation that "required by" the AEA means mandated under all circumstances, and that the AEA only mandates a hearing for materials license amendments when an interested party requests one.Nor does the other relevant section of NRC regulations, 10 C.F.R. §2.105, require a formal hearing, since a materials license amendment is not included in the proceedings governed by that section. The court also rules that NRC did not abuse its discretion in concluding that the public interest did not require a formal hearing.

Turning to whether the AEA itself mandates a formal hearing, NRC regulations notwithstanding, the court notes that §5 of the Administrative Procedure Act (APA) governs. The court rules that because neither §189(a) nor its legislative history indicates that a hearing "on the record" is required, §5 does not mandate a trial-type hearing. The court rejects its own precedent to the effect that the APA requires formal hearings in adjudications. The court also rules that NRC's hearing procedures satisfy due process requirements since the claimed general health, safety, and environmental concerns do not constitute protected interests. Moreover, the procedures used by NRC provided due process. NRC did not violate the procedural requirements of the National Environmental Policy Act, since the city had adequate opportunity to comment on NRC's decision not to prepare an environmental impact statement (EIS). Finally, the court rules that NRC was not arbitrary and capricious in approving the amendment or in deciding not to prepare an EIS.

[The district court had previously ruled that the court of appeals has exclusive jurisdiction to hear the city's claims since they concern a license amendment. See City of West Chicago v. NRC, 542 F. Supp. 13 (N.D. Ill. 1982) — Ed.]

Counsel for Appellant
Penney Fillmer
Harold J. Spelman & Associates
200 High St., West Chicago IL 60185
(312) 231-1580

Counsel for Respondent
Kay L. Richman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2956

Paul Bollwerk III
Office of the General Counsel
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-1493

Counsel for Respondent-Intervenor
John C. Berghoff Jr., Mary C. Bryant
Chadwell & Kayser
8500 Sears Twr., 233 S. Wacker Dr., Chicago IL 60606-6592
(312) 876-2100

Before CUMMINGS, Chief Judge, BAUER, Circuit Judge, and GRANT, Senior District Judge.*