ELR Citation: ELR 20153
No(s). 89-1381 (D.C. Cir. Nov 2, 1990)

The court vacates the Nuclear Regulatory Commission's (NRC's) regulations at 10 C.F.R. §52.103(b)-(c), which substantially revise the licensing process for the construction and operation of nuclear power plants, as inconsistent with NRC's authority under §185 of the Atomic Energy Act (AEA). The court upholds the remainder of the regulations. The court finds that AEA §185 requires NRC to make a post-construction, pre-operation finding that a nuclear plant will operate in conformity with the Act. In addition, AEA §189(a) requires NRC to provide an opportunity for a pre-operation hearing to address material issues that come to light post-licensing that implicate NRC's finding obligations under §185. The court further finds that, although §52.103(b) provides for a post-construction, pre-operation hearing on a plant's conformity with its license, it does not provide for a hearing on the plant's or the license's conformity with the AEA. The court thus holds that §52.103(b) is contrary to §185's requirement of a finding of conformity with the AEA and §185(a)'s requirement of a pre-licensing hearing. The court also holds that NRC regulation §52.103(c) is infirm because it assumes that conformity with a plant's license acceptance criteria is equivalent to conformity with the AEA. Congress expressly intended NRC to do more than these regulations provide, since AEA §185 requires NRC to make specific findings after construction, including a finding that the plant will operate in conformity with the Act.

Counsel for Petitioners
Eric R. Glitzenstein
Harmon, Curran & Tousley
2001 S St. NW, Ste. 430, Washington DC 20009
(202) 328-3500

Counsel for Respondents
Steven F. Crockett, Martin G. Malsch, E. Leo Slaggie
U.S. Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20006
(202) 492-7000

Anne S. Almy, Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 492-2000

Before WALD, Chief Judge, SENTELLE and THOMAS, Circuit Judges.