42 U.S.C. § 2239 — Hearings and judicial review

Page 5530 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2237 1 So in original. Probably should be ‘‘section’’. observe any of the terms and provisions of this chapter or of any regulation of the Commission. (b) Procedure The Commission shall follow the provisions of section 558(c) of title 5 in revoking any license. (c) Repossession of material Upon revocation of the license, the Commis- sion may immediately retake possession of all special nuclear material held by the licensee. In cases found by the Commission to be of extreme importance to the national defense and security or to the health and safety of the public, the Commission may recapture any special nuclear material held by the licensee or may enter upon and operate the facility prior to any of the pro- cedures provided under subchapter II of chapter 5 and chapter 7 of title 5. Just compensation shall be paid for the use of the facility. (Aug. 1, 1946, ch. 724, title I, § 186, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 955; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a), was in the original ‘‘this Act’’, meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is clas- sified principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. CODIFICATION In subsecs. (b) and (c), ‘‘section 558(c) of title 5’’ and ‘‘subchapter II of chapter 5 and chapter 7 of title 5’’ substituted for ‘‘section 9(b) of the Administrative Pro- cedure Act [5 U.S.C. 1008(b)]’’ and ‘‘the Administration Procedure Act [5 U.S.C. 1001–1011]’’, respectively, on au- thority of Pub. L. 89–554, § 7(b), Sept. 6, 1966, 80 Stat. 631, the first section of which enacted Title 5, Government Organization and Employees. § 2237. Modification of license The terms and conditions of all licenses shall be subject to amendment, revision, or modifica- tion, by reason of amendments of this chapter or by reason of rules and regulations issued in ac- cordance with the terms of this chapter. (Aug. 1, 1946, ch. 724, title I, § 187, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 955; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is classified prin- cipally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. § 2238. Continued operation of facilities Whenever the Commission finds that the pub- lic convenience and necessity or the production program of the Commission requires continued operation of a production facility or utilization facility the license for which has been revoked pursuant to section 2236 of this title, the Com- mission may, after consultation with the appro- priate regulatory agency, State or Federal, hav- ing jurisdiction, order that possession be taken of and such facility be operated for such period of time as the public convenience and necessity or the production program of the Commission may, in the judgment of the Commission, re- quire, or until a license for the operation of the facility shall become effective. Just compensa- tion shall be paid for the use of the facility. (Aug. 1, 1946, ch. 724, title I, § 188, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 955; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.) § 2239. Hearings and judicial review (a)(1)(A) In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees, and in any proceeding for the pay- ment of compensation, an award or royalties under sections 1 2183, 2187, 2236(c) or 2238 of this title, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. The Commission shall hold a hearing after thirty days’ notice and publication once in the Federal Register, on each application under section 2133 or 2134(b) of this title for a construction permit for a facility, and on any application under sec- tion 2134(c) of this title for a construction per- mit for a testing facility. In cases where such a construction permit has been issued following the holding of such a hearing, the Commission may, in the absence of a request therefor by any person whose interest may be affected, issue an operating license or an amendment to a con- struction permit or an amendment to an oper- ating license without a hearing, but upon thirty days’ notice and publication once in the Federal Register of its intent to do so. The Commission may dispense with such thirty days’ notice and publication with respect to any application for an amendment to a construction permit or an amendment to an operating license upon a de- termination by the Commission that the amend- ment involves no significant hazards consider- ation. (B)(i) Not less than 180 days before the date scheduled for initial loading of fuel into a plant by a licensee that has been issued a combined construction permit and operating license under section 2235(b) of this title, the Commission shall publish in the Federal Register notice of intended operation. That notice shall provide that any person whose interest may be affected by operation of the plant, may within 60 days re- quest the Commission to hold a hearing on whether the facility as constructed complies, or on completion will comply, with the acceptance criteria of the license. (ii) A request for hearing under clause (i) shall show, prima facie, that one or more of the ac- Page 5531 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2239 ceptance criteria in the combined license have not been, or will not be met, and the specific operational consequences of nonconformance that would be contrary to providing reasonable assurance of adequate protection of the public health and safety. (iii) After receiving a request for a hearing under clause (i), the Commission expeditiously shall either deny or grant the request. If the re- quest is granted, the Commission shall deter- mine, after considering petitioners’ prima facie showing and any answers thereto, whether dur- ing a period of interim operation, there will be reasonable assurance of adequate protection of the public health and safety. If the Commission determines that there is such reasonable assur- ance, it shall allow operation during an interim period under the combined license. (iv) The Commission, in its discretion, shall determine appropriate hearing procedures, whether informal or formal adjudicatory, for any hearing under clause (i), and shall state its reasons therefor. (v) The Commission shall, to the maximum possible extent, render a decision on issues raised by the hearing request within 180 days of the publication of the notice provided by clause (i) or the anticipated date for initial loading of fuel into the reactor, whichever is later. Com- mencement of operation under a combined li- cense is not subject to subparagraph (A). (2)(A) The Commission may issue and make immediately effective any amendment to an op- erating license or any amendment to a combined construction and operating license, upon a de- termination by the Commission that such amendment involves no significant hazards con- sideration, notwithstanding the pendency before the Commission of a request for a hearing from any person. Such amendment may be issued and made immediately effective in advance of the holding and completion of any required hearing. In determining under this section whether such amendment involves no significant hazards con- sideration, the Commission shall consult with the State in which the facility involved is lo- cated. In all other respects such amendment shall meet the requirements of this chapter. (B) The Commission shall periodically (but not less frequently than once every thirty days) publish notice of any amendments issued, or proposed to be issued, as provided in subpara- graph (A). Each such notice shall include all amendments issued, or proposed to be issued, since the date of publication of the last such periodic notice. Such notice shall, with respect to each amendment or proposed amendment (i) identify the facility involved; and (ii) provide a brief description of such amendment. Nothing in this subsection shall be construed to delay the effective date of any amendment. (C) The Commission shall, during the ninety- day period following the effective date of this paragraph, promulgate regulations establishing (i) standards for determining whether any amendment to an operating license or any amendment to a combined construction and op- erating license involves no significant hazards consideration; (ii) criteria for providing or, in emergency situations, dispensing with prior no- tice and reasonable opportunity for public com- ment on any such determination, which criteria shall take into account the exigency of the need for the amendment involved; and (iii) procedures for consultation on any such determination with the State in which the facility involved is lo- cated. (b) The following Commission actions shall be subject to judicial review in the manner pre- scribed in chapter 158 of title 28 and chapter 7 of title 5: (1) Any final order entered in any proceeding of the kind specified in subsection (a). (2) Any final order allowing or prohibiting a facility to begin operating under a combined construction and operating license. (3) Any final order establishing by regula- tion standards to govern the Department of Energy’s gaseous diffusion uranium enrich- ment plants, including any such facilities leased to a corporation established under the USEC Privatization Act [42 U.S.C. 2297h et seq.]. (4) Any final determination under section 2297f(c) of this title relating to whether the gaseous diffusion plants, including any such facilities leased to a corporation established under the USEC Privatization Act [42 U.S.C. 2297h et seq.], are in compliance with the Com- mission’s standards governing the gaseous dif- fusion plants and all applicable laws. (Aug. 1, 1946, ch. 724, title I, § 189, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 955; amended Pub. L. 85–256, § 7, Sept. 2, 1957, 71 Stat. 579; Pub. L. 87–615, § 2, Aug. 29, 1962, 76 Stat. 409; Pub. L. 97–415, § 12(a), Jan. 4, 1983, 96 Stat. 2073; renum- bered title I and amended Pub. L. 102–486, title IX, § 902(a)(8), title XXVIII, §§ 2802, 2804, 2805, Oct. 24, 1992, 106 Stat. 2944, 3120, 3121; Pub. L. 104–134, title III, § 3116(c), Apr. 26, 1996, 110 Stat. 1321–349.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a)(1)(A), (2)(A), was in the original ‘‘this Act’’, meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is classified principally to this chapter. For com- plete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. The effective date of this paragraph, referred to in subsec. (a)(2)(C), probably means the date of enactment of Pub. L. 97–415, which was approved Jan. 4, 1983. The USEC Privatization Act, referred to in subsec. (b)(3), (4), is subchapter A (§§ 3101–3117) of chapter 1 of title III of Pub. L. 104–134, Apr. 26, 1996, 110 Stat. 1321–335, which is classified principally to subchapter VIII (§ 2297h et seq.) of this chapter. For complete clas- sification of this Act to the Code, see Short Title of 1996 Amendment note set out under section 2011 of this title and Tables. AMENDMENTS 1996—Subsec. (b). Pub. L. 104–134 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as fol- lows: ‘‘Any final order entered in any proceeding of the kind specified in subsection (a) of this section or any final order allowing or prohibiting a facility to begin operating under a combined construction and operating license shall be subject to judicial review in the man- ner prescribed in the Act of December 29, 1950, as amended (ch. 1189, 64 Stat. 1129), and to the provisions of section 10 of the Administrative Procedure Act, as amended.’’ Page 5532 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2240 1992—Subsec. (a)(1). Pub. L. 102–486, § 2802, designated existing provisions as subpar. (A) and added subpar. (B). Subsec. (a)(2)(A), (C). Pub. L. 102–486, § 2804, inserted ‘‘or any amendment to a combined construction and operating license’’ after ‘‘any amendment to an oper- ating license’’. Subsec. (b). Pub. L. 102–486, § 2805, inserted ‘‘or any final order allowing or prohibiting a facility to begin operating under a combined construction and operating license’’ before ‘‘shall be subject to judicial review’’. 1983—Subsec. (a). Pub. L. 97–415 designated existing provisions as par. (1) and added par. (2). 1962—Subsec. (a). Pub. L. 87–615 substituted ‘‘con- struction permit for a facility’’ and ‘‘construction per- mit for a testing facility’’ for ‘‘license for a facility’’ and ‘‘license for a testing facility’’ respectively, and authorized the commission in cases where a permit has been issued following a hearing, and in the absence of a request therefor by anyone whose interest may be af- fected, to issue an operating license or an amendment to a construction permit or an operating license with- out a hearing upon thirty days’ notice and publication once in the Federal Register of its intent to do so, and to dispense with such notice and publication with re- spect to any application for an amendment to a con- struction permit or to an operating license upon its de- termination that the amendment involves no signifi- cant hazards consideration. 1957—Subsec. (a). Pub. L. 85–256 required the Commis- sion to hold a hearing after 30 days notice and publica- tion once in the Federal Register on an application for a license for a facility or a testing facility. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1992 AMENDMENT Subsec. (a)(1)(B) of this section, as added by section 2802 of Pub. L. 102–486, applicable to all proceedings in- volving combined license for which application was filed after May 8, 1991, see section 2806 of Pub. L. 102–486, set out as a note under section 2235 of this title. AUTHORITY TO EFFECTUATE AMENDMENTS TO OPERATING LICENSES Pub. L. 97–415, § 12(b), Jan. 4, 1983, 96 Stat. 2073, pro- vided that: ‘‘The authority of the Nuclear Regulatory Commission, under the provisions of the amendment made by subsection (a) [amending this section], to issue and to make immediately effective any amend- ment to an operating license shall take effect upon the promulgation by the Commission of the regulations re- quired in such provisions.’’ REVIEW OF NUCLEAR PROLIFERATION ASSESSMENT STATEMENTS No court or regulatory body to have jurisdiction to compel performance of or to review adequacy of per- formance of any Nuclear Proliferation Assessment Statement called for by the Atomic Energy Act of 1954 [this chapter] or by the Nuclear Non-Proliferation Act of 1978, Pub. L. 95–242, Mar. 10, 1978, 92 Stat. 120, see sec- tion 2160a of this title. ADMINISTRATIVE ORDERS REVIEW ACT Court of appeals exclusive jurisdiction respecting final orders of Atomic Energy Commission, now the Nuclear Regulatory Commission and the Secretary of Energy, made reviewable by this section, see section 2342 of Title 28, Judiciary and Judicial Procedure. § 2240. Licensee incident reports as evidence No report by any licensee of any incident aris- ing out of or in connection with a licensed activ- ity made pursuant to any requirement of the Commission shall be admitted as evidence in any suit or action for damages growing out of any matter mentioned in such report. (Aug. 1, 1946, ch. 724, title I, § 190, as added Pub. L. 87–206, § 16, Sept. 6, 1961, 75 Stat. 479; renum- bered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.) § 2241. Atomic safety and licensing boards; estab- lishment; membership; functions; compensa- tion (a) Notwithstanding the provisions of sections 556(b) and 557(b) of title 5, the Commission is au- thorized to establish one or more atomic safety and licensing boards, each comprised of three members, one of whom shall be qualified in the conduct of administrative proceedings and two of whom shall have such technical or other qualifications as the Commission deems appro- priate to the issues to be decided, to conduct such hearings as the Commission may direct and make such intermediate or final decisions as the Commission may authorize with respect to the granting, suspending, revoking or amending of any license or authorization under the provi- sions of this chapter, any other provision of law, or any regulation of the Commission issued thereunder. The Commission may delegate to a board such other regulatory functions as the Commission deems appropriate. The Commis- sion may appoint a panel of qualified persons from which board members may be selected. (b) Board members may be appointed by the Commission from private life, or designated from the staff of the Commission or other Fed- eral agency. Board members appointed from pri- vate life shall receive a per diem compensation for each day spent in meetings or conferences, and all members shall receive their necessary traveling or other expenses while engaged in the work of a board. The provisions of section 2203 of this title shall be applicable to board members appointed from private life. (Aug. 1, 1946, ch. 724, title I, § 191, as added Pub. L. 87–615, § 1, Aug. 29, 1962, 76 Stat. 409; amended Pub. L. 91–560, § 10, Dec. 19, 1970, 84 Stat. 1474; re- numbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a), was in the original ‘‘this Act’’, meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is clas- sified principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. CODIFICATION In subsec. (a), ‘‘sections 556(b) and 557(b) of title 5’’ substituted for ‘‘sections 7(a) and 8(a) of the Adminis- trative Procedure Act [5 U.S.C. 1006(a), 1007(a)]’’ on au- thority of Pub. L. 89–554, § 7(b), Sept. 6, 1966, 80 Stat. 631, the first section of which enacted Title 5, Government Organization and Employees. AMENDMENTS 1970—Subsec. (a). Pub. L. 91–560 required that two members of the board should have such technical or other qualifications the Commission deems appropriate to the issues to be decided.