The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, District Judge.
This matter comes before the Court on a motions of defendants Nuclear Regulatory Commission (NRC), United States of America, and Florida Power and Light Company (FP & L), to dismiss plaintiffs' complaint on the grounds that judicial review over the actions challenged in this matter lies exclusively in the courts of appeal. Fed.R.Civ.P. 12(b)(1). This Court agrees and grants defendants' motions.
The facts pertinent to this case are as follows: On June 3, 1983, FP & L sought the first of two sets of license amendments for its Turkey Point reactors. This set of amendments authorized FP & L to use a new fuel design in the cores of the reactors. In July, 1983 the NRC staff made a "no significant hazards consideration" finding based on the fact that the fuel design itself was similar to fuel in use at other facilities and that there were no significant changes in the overall safety of the reactors. This set of amendments was published at 48 Fed.Reg. 33076, 33080 (July 20, 1983) and interested persons were given thirty days in which to request a hearing. No hearing request was received and these amendments were issued on December 9, 1983 on a final finding that they involved "no significant hazards consideration."
On August 19, 1983, FP & L proposed a second set of amendments. The NRC staff decided that this set of amendments also could be issued on a "no significant hazards consideration" finding because the changes sought were not significant changes under NRC rules. These amendments were published at 48 Fed.Reg. 45,862 (October 7, 1983). On November 4, 1983, plaintiffs filed a timely request for a hearing. These amendments were issued on December 23, 1983 on a "no significant hazards consideration" finding with a prehearing on plaintiffs' request for a hearing scheduled for February 1984.
The first issue before this Court is whether it has jurisdiction to vacate the license amendments and require the NRC to hold prior public hearings on the issuance of license amendments.
The defendants argue that the district court lacks subject matter jurisdiction to review the NRC's finding of "no significant hazards determination." The defendants rely on 28 U.S.C. § 2342(4) and § 189 of the Atomic Energy Act of 1954, 42 U.S.C. § 2239, for the proposition that the NRC's finding of "no significant hazards determination" is reviewable only in courts of appeals. This Court finds their argument persuasive.
Under 28 U.S.C. § 2342(4), the courts of appeal have jurisdiction to review "all final orders of the Atomic Energy Commission [now the Nuclear Regulatory Commission] made reviewable by § 2239 of title 42." 42 U.S.C. § 2239(a)(1) makes reviewable "any final order" in "any proceeding [for the] . . . amending of any license." 42 U.S.C. § 2239(a)(2) makes reviewable a "determination by the Commission that [an] amendment involves no significant hazards consideration. . . ." Plaintiffs' request that the NRC hold prior public hearings on the issuance of the license amendments would require the Court to determine the validity of the "no significant hazards determination" finding. Such a finding falls under 42 U.S.C. § 2239(a)(2) and, therefore, jurisdiction to review this finding lies with the Court of Appeals.*
Plaintiffs further requests this Court to require the NRC to prepare a supplemental Environmental Impact Statement for the Turkey Point Nuclear units. Plaintiffs rely on the National Environmental Policy Act of 1969, 42 ...