ELR Citation: ELR 21252
No(s). 89-1381 (D.C. Cir. Jul 17, 1992)

The court upholds regulations of the U.S. Nuclear Regulatory Commission (NRC) at 10 C.F.R. pt. 52 establishing procedures for issuing combined construction and conditional operating permits and postconstruction procedures for nuclear reactors that limit NRC's role in determining whether plants were constructed in accordance with their licenses without reexamining issues settled at prior stages in the regulatory process. The court first upholds its prior decision that the NRC's combined license and early approval procedures were acceptable innovations under the Atomic Energy Act (AEA). Applying the U.S. Supreme Court's holding in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 14 ELR 20507, the court next holds that the AEA does not unambiguously prevent NRC from adopting its new postconstruction procedures. Although AEA §189(a) requires a hearing on request before granting a license, it provides no unambiguous instruction as to how the hearing should be held, nor does it speak to the question of whether NRC must rehear issues already resolved at earlier stages in the licensing process. The Supreme Court has held that an agency's reliance on prior determinations is perfectly acceptable, even when the statute before it plainly calls for individualized hearings and findings. Also, the AEA has been consistently read to give the NRC broad regulatory latitude. The court holds that NRC's postconstruction reliance on prior hearings and findings is grounded in a permissible understanding of the AEA. Any potential new information about the NRC's reliance on previous determinations that might arise during construction can be given adequate attention through a petition process under 10 C.F.R. §52.103(b)(2)(ii), which allows any interested party to petition the NRC for a modification to the terms of a combined license, even after construction. The court holds that NRC action on such petitions is reviewable.

Dissenting judges would hold that the case is moot, because Congress has already passed legislation that would accomplish the "streamlined" nuclear licensing scheme for which the administration and NRC have argued.

[A previous decision in this litigation is published at 21 ELR 20153.]

Counsel for Petitioners
Katherine A. Meyer
Harmon, Curran & Tousley
2001 S St. NW, Ste. 439, Washington DC 20009
(202) 328-3500

Counsel for Respondents
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Intervenor
Marcus A. Rowden
Fried, Frank, Harris, Shriver & Jacobson
1001 Pennsylvania Ave. NW, Ste. 800, Washington DC 20004
(202) 639-7000

Before MIKVA, Chief Judge; WALD, EDWARDS, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON, AND RANDOLPH, Circuit Judges.^*