Nuclear Information Resource Service, et al., Petitioners, v. Nuclear Regulatory Commission and United States of America,respondents,nuclear Management and Resources Council, Inc., Intervenor, 928 F.2d 465 (D.C. Cir. 1991)

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U.S. Court of Appeals for the District of Columbia Circuit - 928 F.2d 465 (D.C. Cir. 1991) March 27, 1991

Before MIKVA, Chief Judge; WALD, EDWARDS, RUTH BADER GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, THOMAS, HENDERSON and RANDOLPH, Circuit Judges.


ORDER

The suggestions for rehearing en banc and petitioners' response thereto have been circulated to the full Court. The taking of a vote was requested. Thereafter, a majority of the judges of the Court in regular, active service voted in favor of the suggestions. Accordingly, it is

ORDERED, by the Court en banc, that the suggestions are granted and this case will be considered and decided by the Court sitting en banc. It is

FURTHER ORDERED, by the Court en banc, that the judgment of the panel filed on November 2, 1990, 918 F.2d 189, be, and the same hereby is, vacated. It is

FURTHER ORDERED, by the Court en banc, that oral argument will be heard on Wednesday, November 20, 1991, at 10:00 AM. The Parties shall submit thirty copies of the joint appendix and of briefs addressing the questions set forth in the attachment to this order, along with any other issues deemed appropriate, and shall do so in accordance with the following schedule:

Petitioners' Brief July 16, 1991 Brief of Amicus Curiae July 31, 1991 Respondents' Brief August 30, 1991 Intervenor's Brief September 16, 1991 Petitioner's Reply Brief September 30, 1991 Joint Appendix October 7, 1991 Final Briefs October 21, 1991

RUTH BADER GINSBURG, Circuit Judge, is not participating in this matter.

ATTACHMENT

(1) Whether the abbreviated licensing procedures contemplated by the Nuclear Regulatory Commission are facially invalid under Sections 185 and/or 189 of the Atomic Energy Act.

(2) Whether it is necessary or appropriate for us to reexamine our pre-Chevron holding in Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984).

(3) Whether the denial of a petition filed pursuant to 10 C.F.R. Sec. 52.103(b) (2) (ii) under the cross-referenced procedures set forth in 10 C.F.R. Sec. 2.206 is subject to judicial review in light of Safe Energy Coalition v. NRC, 866 F.2d 1473 (D.C. Cir. 1989); Commonwealth of Massachusetts v. NRC, 878 F.2d 1516, 1525 (1st Cir. 1989); Arnow v. NRC, 868 F.2d 223, 235 (7th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 61, 107 L. Ed. 2d 29 (1989); and Massachusetts Public Interest Research Group v. NRC, 852 F.2d 9, 14 (1st Cir. 1988) ("MassPIRG ").

(4) Whether either the NRC standard for reopening closed hearings discussed in Kansas Gas & Elec. Co., 7 N.R.C. 320 (1978), or general principles of administrative law subjecting agency refusals to reopen adjudicative proceedings in light of changed facts to judicial review for abuse of discretion, see, e.g., INS v. Rios-Pineda, 471 U.S. 444, 449-52, 105 S. Ct. 2098, 2101-03, 85 L. Ed. 2d 452 (1985); Coalition on Sensible Transp. v. Dole, 826 F.2d 60, 71 (D.C. Cir. 1987); Ohio v. NRC, 814 F.2d 258, 261-63 (6th Cir. 1987); In re Three Mile Island Alert, Inc., 771 F.2d 720, 727-28 (3d Cir. 1985), cert. denied, 475 U.S. 1082, 106 S. Ct. 1460, 89 L. Ed. 2d 717 (1986), Nance v. EPA, 645 F.2d 701, 717 (9th Cir.), cert. denied, 454 U.S. 1081, 102 S. Ct. 635, 70 L. Ed. 2d 615 (1981), constitute "law to apply" consistent with Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985).

(5) How should judicial review of denials of petitions filed pursuant to 10 C.F.R. Sec. 52.103(b) (2) (ii) be integrated with the Commission's certification process?