Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission

No. 77-1570 (D.C. Cir. January 6, 1978)

The court dismisses a petition to review the licensing of the Church Rock uranium mill by New Mexico authorities and affirms the Nuclear Regulatory Commission's (NRC's) denial of a hearing on the state's licensing action. The petition does not point to any specific NRC decision that finally affected the rights of the parties. In addition, the court finds that the NRC has no residual authority over this licensing action because it was conducted by state authorities pursuant to a federal-state agreement authorized by 42 U.S.C. § 2021. A hearing before a body powerless to act is clearly not required.

Counsel for Petitioners
Neil M. Soltman, Brian C. Lysaught
O'Melveny & Myers
Suite 3800, 611 W. Sixth St., Los Angeles CA 90017
(213) 620-1120

Counsel for Respondents
Jerome Nelson, General Counsel; Stephen F. Eilperin, Solicitor; John W. Griggs
U.S. Nuclear Regulatory Commission
Washington DC 20555
(202) 634-1465

McGowan & MacKinnon, JJ.

[8 ELR 20164]

Per curiam:

Order

On consideration of the respondent's motion to dismiss, the memorandum of points and authorities submitted in support thereof, the respondent's supplemental memorandum submitted pursuant to this court's order of October 28, 1977, the petitioner's opposition to the motion to dismiss, and of the petitioner's motion for oral argument on the motion to dismiss, the court is of the view the motion for oral argument should be denied, and the motion to dismiss must be granted in part and denied in part.The court rejects the petitioner's delegation theory as contrary to the statute and its legislative history, 42 U.S.C. § 2021, S. REP. NO. 870, 86th Cong., 1st Sess. 1, 9 (1959), reprinted in 1959 U.S. CODE CONG. & AD. NEWS 2872, 2879. The court further notes that while the petitioner has alleged that the Commission has been "intimately involved" in the licensing of the Church Rock mill, such allegations, assumed to be true, demonstrate only cooperation between state and federal authorities with regard to the regulation of nuclear materials. The petitioner does not point to any specific decision of the Nuclear Regulatory Commission with respect to the licensing proceeding that finally affected the rights and obligations of the parties to this appeal. Therefore, the petition must be dismissed insofar as it seeks review of the Church Rock mill licensing action by New Mexico authorities.

The court is of the view, however, that the letter of the Secretary of the Commission denying the petitioner a hearing on the licensing action by New Mexico authorities is a final order of the Commission subject to this court's review. Considering the denial of a hearing on the merits, the court finds that a licensing action by state authorities pursuant to a federal-state agreement authorized by 42 U.S.C. § 2021 is not an action "under this chapter" for purposes of 42 U.S.C. § 2239. Where such an agreement is in effect, the Commission has no residual authority over individual licensing actions. The statute rationally cannot be construed as requiring a hearing before a body powerless to act. The order of the Commission denying the petitioner's request for a hearing is therefore, sua sponte, summarily affirmed.

The court notes that the petitioner in this case did not request a hearing before the Commission challenging the compatibility of the New Mexico program with the federal regulatory program. The court takes no view on whether the petitioners would have been entitled to such a hearing had they requested it, or on whether the New Mexico program, as it now stands, is compatible with the federal regulatory framework.