Petition — General Public Utilities Corporation v. Susquehanna Valley Alliance

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so-sts ,; “*™

. | LMICHAEL RODAK, JR., CLERK

No.

Suprene Court of the United States

Octorer TERM, 1980

GENERAL PUBLIC UTILITIES CORPORATION, METROPOLITAN

EpIsoN COMPANY, JERSEY CENTRAL Power & LIGHT

CoMPANY AND PENNSYLVANIA ELECTRIC CoMPANY,

Petitioners,

v.

SUSQUEHANNA VALLEY ALLIANCE, Ronatp L. Davis,

Betty ToMPKINS, BEVERLY M. HEss, AND

DoREEN E. SNELL,

Respondents.

.» PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Mark AUGENBLICK

Attorney of Record

GeorGcE FF’. TROWBRIDGE

Wo. Braprorp REYNOLDS

—s PittMAN, Potts & TROWBRIDGE

800 M Street, N.W.

Washington D.C. 20036

(202) 331-4100

Counsel for Petitioners

Press or Byron 8S. ADAMS PRINTING, INC., WASHINGTON, D. C.

i

QUESTION PRESENTED

Whether the court of appeals erred in reversing the

trial court’s decision that plaintiffs must exhaust their

administrative remedies at the Nuclear Regulatory

Commission before filing suit in federal court to chal-

lenge cleanup activities following the nuclear accident

at Three Mile Island?

ili

TABLE OF CONTENTS

Page

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er ere 2

STATEMENT OF THE CASE .........cccccccccceccccces 3

Reasons ror GRANTING THE Writ

The Failure Of The Court Of Appeals To Require

Plaintiffs To Exhaust Their Administrative Rem-

edies Before The NRC Is In Direct And Irrecon-

cilable Conflict With The Decisions Of This Court

And Other Courts Of Appeals ................. 7

De daenebecceces 17

Aprenvix A Order Of The Court Of Appeals Deny-

ES Se la

Aprenpix B- Opinion Of The Court Of Appeals and

ai, os hoe! dees 00.6) * 3a

Aprenvix C Opinion Of The District Court ....... 3la

Aprenpvix D Order extending time to file Petition

for Writ of Certiorari .............. 43a

Appenpix EF NRC Statement dated May 25, 1979 .. 44a

Appenpix F NRC Memorandum And Order dated

I MN eons bak ccenséccececs 46a

| PREVIOUS PAGE WAS BLANK |

iv

TABLE OF AUTHORITIES

CasEs: Page

Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d

Cele eS sicko Vee ce ee Ciba re be aus KOs 16

Calvert Cliffs’ Coordinating Committee v. Atomic

Energy Commission, 449 F.2d 1109 (D.C. Cir.

BOE. Cok sss sms Wedd Meee s Seas ae anette 10

City of Rochester v. Bond, 603 F.2d 927 (D.C. Cir.

SHURA BENS sie iee Teas Seles Chee ss ancertiaen 16, 11

Grand Canyon Dorries, Inc. v. Walker, 500 F.2d 588

CLUGE GENE «Lb patteuse ee weulen, valeioosy ce 10

Honicker v. Hendrie, 465 F.Supp. 414 (M.D. Tenn.

1979), dismissed on the opinion below 605 F.2d 556

(6th Cir. 1979), cert. dented —— U.S. ——, 100

A CR US kG 5s ve wo ba EAST OLES 9, 14

Marshall v. Whittaker Corp. et al., 610 F.2d 1141 (3d

Ce: SPI icen eho dannl $s dhe Lee ves dees. 16

McKart v. United States, 395 U.S. 185 (1969) ....... 16

Myers v. Bethlehem Shipbuilding Corporation, 303

My A SEED ASSO PAF A REN Chinen < ken bade. 7

Natural Resources Defense Council, Inc. v. Nuclear

Regulatory Commission, 606 F.2d 1261 (D.C. Cir.

i BP ee eT PONY Ra ECD Marna 12

Susquehanna Valley Alliance v. Three Mile Island

Nuclear Reactor, 485 F.Supp. 81 (M.D. Pa. 1979) 2

Susquehanna Valley Alliance v. Three Mile Island

Nuclear Reactor, 619 F.2d 231 (8rd Cir. 1980)... 2

Susquehanna Valley Alliance v. Nuclear Regulatory

Commission, et al., No. 79-2800 (3d Cir.) ........ 5

Tram v. Colorado Public Interest Research Group,

SP Ud B-UNWOE: ek ds Oi acteb as bce ok <0 imac 12, 13

Vermont Yankee Nuclear Power Corp. v. Natural Re-

sources Defense Council, Inc., 435 U.S. 519

RMON Calc Cada 605-080 ee ss Kok Ene WER die ka 8, 10

v

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ee ae A POS Si, es ks 4 00'sb pw koe head WER 13

ee ee ee NEED ok kc GU nanekedmhaes de cwotan 14

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Be Rey ye DS CRD. 65.6.4 s be 04S od 0d dco been 2, 10, 13

Se Seen EN een tb ccc acaw va calle cua 10

Administrative Orders Review Act,

ee ae ED ee Cassin cs oo s0s ve Sadd wens dawns 5

Federal Water Pollution Control Act of 1972, as

amenged, 33 U.B.C. SIBLE) 6... vccccccccccnss 4

Atomic Energy Act, 42 U.S.C. § 2011 et. seq. ...... 4,9, 14

National Environmental Policy Act of 1969, 42 U.S.C.

SS seis inwon bakes ecto os kash dense 4

eR TRS ie errr etree Pantene 5, 9

We SA ee BOR OR OE ve nncsinkbsnnad daatassenbene 10

No, —————

Supreme Court of the United States

OcToBER TERM, 1980

GENERAL PuBLIC UTILITIES CORPORATION, METROPOLITAN

EpIisoN COMPANY, JERSEY CENTRAL Power & LIGHT

COMPANY AND PENNSYLVANIA ELEcTRIC COMPANY,

Petitioners,

v.

SUSQUEHANNA VALLEY ALLIANCE, RonaLtp L. Davis,

Betty Tompkins, BeveRLY M. Hess, anp

DorEEN E. SNELL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

General Publie Utilities Corporation, Metropolitan

Edison Company, Jersey Central Power & Light Com-

pany and Pennsylvania Electric Company (‘‘petition-

ers’’) hereby petition for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Third Circuit entered in this proceeding on

March 17, 1980.'

*In the court below, party-appellees other than Three Mile

Island Nuclear Reactor who are not named in the above caption

include the following: Nuclear Regulatory Commission, Joseph A.

Hendrie, Herman Dieckamp, Walter M. Creitz, W. A. Verrochi

and Shepard Bartnoff.

9

os

OPINIONS BELOW

The order of the court of appeals denying the peti-

tions for rehearing en banc (App. A, pp. la-2a, infra)

is not reported. The panel decision of the court of ap-

peals (App. B, pp. 3a-29a, infra) is reported at 619

F.2d 231 (3d Cir. 1980). The decision of the district

court dismissing the case (App. C, pp. 31la-42a, infra)

is reported at 485 F’. Supp. 81 (M.D. Pa. 1979).

JURISDICTION

The judgment of the court of appeals (App. B, at p.

30a, infra) was entered on March 17, 1980, The appel-

late court’s order denying rehearing en banc (App.

A, p. la, infra) was entered on May 12, 1980. By

order dated August 4, 1980, Mr. Justice Brennan ex-

tended the time for filing a petition for a writ of cer-

tiorari to and including September 9, 1980 (App. D,

p. 43a, infra). The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 2239(a) and (b), United States Code, Title

42, provides in relevant part:

(a) In any proceeding under this chapter, for

the granting, suspending, revoking, or amending

of any license or construction permit, or applica-

tion to transfer control, and in any proceeding

for the issuance or modification of rules and regu-

lations dealing with the activities of licensees, * * *,

te Commission shall grant a hearing upon the

request of any person whose interest may be af-

fected by the proceeding, and shall admit any

such person as a party to such proceeding. * * *

3

(b) Any final order entered in any proceeding

of the kind specified in subsection (a) of this

section shall be subject to judicial review in the

manner prescribed in the Act of December 29,

1950, as amended [28 U.S.C, § 2342] and in the

provisions of Section 10 of the Administrative

Procedure Act, as amended.

Section 2342(4), United States Code, Title 28, pro-

vides in relevant part:

The court of appeals has exclusive jurisdiction

to enjoin, set aside, suspend (in whole or in part),

or to determine the validity of

* a ” «

(4) all final orders of the Atomie Energy Com-

mission made reviewable by Section 2239 of Title

42; * &

STATEMENT OF THE CASE

On March 28, 1979, a serious nuclear accident oc-

curred at Three Mile Island Nuclear Station, Unit 2

(““TMI’’). The accident resulted in a significant

amount of water in the plant becoming contaminated

with radioactivity.

On May 25, 1979, the Susquehanna Valley Alliance

and four individual plaintiffs (“‘SVA’’) commenced

this action against the Nuclear Regulatory Commis-

sion (‘‘NRC’’), the owners and operators of TMI,

and several named individuals in the United States

District Court for the Middle District of Pennsyl-

vania pursuant to 28 U.S.C. §§ 1361, 1331, 1337, 33

U.S.C. § 1365(a) (2) and 5 U.S.C. §§ 704 and 706. SVA

sought declaratory and injunctive relief aimed at pre-

venting defendants from treating and eventually dis-

posing of the radioactive wastewater.

4

The complaint specifically alleged that the NRC

approved petitioners’ construction and operation of a

facility to decontaminate intermediate-level radioac-

tive wastewater from the accident, known as EPICOR

II, and planned to allow the processed water from

KPICOR II to be discharged into the Susquehanna

River in violation of: (1) the National Environmental

Policy Act of 1969 (‘‘NEPA’’), 42 U.S.C. § 4321 et.

seq.; (2) the Atomie Energy Act, 42 U.S.C. §§ 2011

et. seq., and various NRC regulations; (3) Section

301(f) of the Federal Water Pollution Control Act, as

amended, (‘‘the Clean Water Act’’), 33 U.S.C. § 1311

(f); and (4) plaintiffs’ constitutional right ‘‘to be

born and to live mentally and physically unimpaired.”’

More generally, the complaint asked the district court

to enjoin all present and future efforts to decontami-

nate the radioactive wastewater pending defendants’

compliance with the statutes listed above and the

U.S. Constitution.

The complaint did not allege that SVA exhausted

its administrative remedies and it is undisputed that

at uo time prior to filing suit did SVA seek relief from

the NRC,

At the time of filing the complaint, SVA also moved

for a temporary restraining order prohibiting any

treatment and discharge of radioactive wastewater

at TMI on the ground that such activities threatened

imminent harm to the community. The district court

denied the motion upon being advised that the NRC

had issued a Statement on May 25, 1979, prohibiting

wastewater treatment and discharge pending prepara-

5

tion of specified environmental assessments.’ See, App.

K, infra.

The NRC and petitioners thereafter moved to dis-

miss the complaint on the ground that SVA had failed

to exhaust its administrative remedies. SVA did not

dispute the availability of administrative procedures

and remedies, but rather argued that exceptions to

the exhaustion doctrine excused it from pursuing these

remedies. The issue was fully briefed and, on October

12, 1979, the district court granted the motions and

ordered the case dismissed. See, App. ©, infra.

The district court began its analysis by determining

whether an administrative remedy was availuble to

SVA. It found that the NRC has provided an admin-

istrative procedure in 10 C.F.R. § 2.206 which “‘allows

* Following the May 25, 1979 Statement, the NRC was involved

over the next several months in the administrative process of

preparing an environmental assessment regarding the operation

of EPICOR II, soliciting public comment on the assessment and

analyzing the comments received. An administrative record of

several hundred pages was compiled. On October 16, 1979, the

NRC issued a Memorandum and Order directing petitioners to

begin to decontaminate the intermediate-level radioactive waste-

water through use of EPICOR II, but expressly prohibiting any

discharge of the processed water pending further environmental

study. See App. F, pp. 46a-60a, infra.

SVA requested the United States Court of Appeals for the

Third Circuit to stay this limited decontamination order pending

appeal, which request was denied on October 18, 1979. On Decem-

ber 13, 1979, SVA filed with the Third Circuit a petition for

review of the NRC’s October 16 order pursuant to the Adminis-

trative Orders Review Act, 28 U.S.C. § 2342. See, Susquehanna

Valley Alliance v. Nuclear Regulatory Commission, et al., No.

79-2800 (3d Cir.). The Third Circuit Court is currently holding

that separate eppeal in abeyance pending disposition of this

appeal. Order dated February 15, 1980.

6

plaintiffs to ask NRC for all the relief sought in this

court.’’ App. C, at p. 36a. The district court noted that

Congress has specifically provided that NRC decisions

resulting from this procedure are subject to judicial

review, 42 U.S.C. § 2239, and that review lies exclu-

sively in the federal courts of appeals. 28 U.S.C.

§ 2342.° Id. at 37a. The district court then carefully

analyzed SVA’s arguments as to why it should be

excused from pursuing its administrative remedies

and concluded that ‘‘[t]he exceptions to the exhaus-

tion doctrine do not apply to the facts of this case.’’

Id. at 42a. Accordingly, the motions to dismiss were

granted ‘‘[b]jecause plaintiffs have failed to exhaust

their administrative remedies’’. Id.

An appeal was taken by SVA to the Third Circuit

Court of Appeals. On March 17, 1980, Judge Gibbons,

writing for the appeal panel, affirmed in part and

reversed in part, ordering all but the Atomic Energy

Act count of the complaint reinstated. The appellate

court ruled that SVA was not required to exhaust its

administrative remedies before the NRC insofar as

its challenge to the proposed cleanup activities was

based on alleged violations of NEPA, the Clean Water

Act, and the U.S. Constitution. Petitions for rehear-

ing with a request for rehearing en bane filed by both

the NRC and petitioners were denied on May 12, 1980.

App. A, pp. la-1b.

* As acknowledged by the Third Circuit below (App. B, p. 10a,

infra), the statutory procedure assigning exclusive judicial review

to the courts of appeals does not leave unattended the public’s

possible need for judicial intervention while a matter is still under

agency consideration. In such event, the allegedly aggrieved party

can seek pendente lite relief from the court of appeals pursuant

to 28 U.S.C. § 2349(b) and 1651(a).

7

REASONS FOR GRANTING THE WRIT

The Failure Of The Court Of Appeals To Require Plaintifis To

Exhaust Their Administrative Remedies Before The NRC Is In

Direct And Irreconcilable Conflict With The Decisions Of This

Court And Other Courts Of Appeals

This Court in Myers v. Bethlehem Shipbuilding Cor-

poration, 303 U.S. 41, 50-51, 58 S.Ct. 459, 463 (1938),

said that, in the absence of special circumstances,

**.,. no one is entitled to judicial relief for a supposed

or threatened injury until the prescribed administra-

tive remedy has been exhausted.’’ The United States

Court of Appeals for the Third Circuit, in a single

stroke, has now effectively emasculated this established

principle of judicial restraint. The Third Circuit ruled

in this case that notwithstanding the availability of a

prescribed administrative remedy, and in the absence

of any special circumstances, these plaintiffs need not

exhaust their administrative remedies before filing

suit in federal district court.

If the decision below is left uncorrected by this

Court, it threatens to flood the federal courts with a

wave of duplicative litigation involving highly techni-

cal and complex issues heretofore regarded as prop-

erly reserved for agency review in the first instance.

With the current caseload of our federal judiciary

already reaching staggering proportions, this Court

ean ill-afford to allow so serious an erosion of the

exhaustion doctrine to go unrepaired.

By failing to adhere to established exhaustion prin-

ciples, the decision below creates unwarranted and un-

necessary interruption of established administrative

processes. The practical result of this decision is to

create a chaotic overlap between the NRC and the

8

courts. The Third Circuit has decreed that the NRC,

the district court and the court of appeals will now

all exercise concurrent jurisdiction over the same

claims at the same time. This overlapping of judicial

and administrative review, with the courts assuming

jurisdiction over matters within the jurisdiction of an

agency before the agency »= rendered a final decision,

and doing so in the absence of any demonstrable rea-

son for such intervention, leadg to the very ‘‘Kafkaes-

que”’ situation condemned by this Court in Vermont

Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, 435 U.S. 519, 557, 98 S.Ct. 1197, 1218

(1978).

The panel’s decision seriously misconceives the very

limited role Congress prescribed for the judiciary in

matters of nuclear energy regulation. Vermont Yankee,

supra, 435 U.S. at 557-58, 98 S.Ct. at 1218-19. It effee-

tively removes from judicial analysis the element of

agency expertise and experience in nuclear matters

which both Congress and the courts have recognized

as critical to a proper resolution of the complex con-

siderations in this area.

The gist of SVA’s Complaint is that the NRC is

approving construction of decontamination facilities

by petitioners and plans to allow the processed water

from those facilities to be discharged into the Susque-

hanna River without properly evaluating the health

and safety implications of such actions. Such a cause

of action is aimed directly, and exclusively, at activi-

ties relating to the operation of a nuclear power plant.

As such, it unmistakeably comes under the administra-

tive review responsibility of the NRC pursuant to

federal statute. See Atomic Energy Act, 42 U.S.C.

§§ 2012, 2013, 2201. Indeed, it is difficult to think of

matters better tailored to NRC jurisdiction than the

9

development and implementation of appropriate clean-

up activities in response to the most severe accident

to occur in this country at an NRC licensed nuclear

facility.

The Third Circuit correctly held that SVA’s claims

in Count II of the complaint—involving allegations

that the cleanup efforts violated the Atomic Energy

Act, certain of the NRC’s implementing regulations,

and the TMI Unit 2 operating license—must be

brought before the agency in the first instance, and

all administrative remedies exhausted before judicial

review can be obtained. (See App. B, at pp. Ta-14a,

infra). What is remarkable, and unprecedented, is

that the Third Circuit then carved out for separate

treatment the allegations contained in the remaining

counts of the complaint involving the same cleanup

efforts and bestowed plenary jurisdiction on the dis-

trict courts to review them simultaneously with on-

going administrative review by the NRC.*

The remaining counts do not challenge any different

activity than that which is the subject of the Atomic

Energy Act count of the complaint. To be sure, the

grounds for objection differ in the various counts.

‘Except perhaps as to the alleged constitutional claims, the

result below was not premised on any finding that judicial inter-

vention was compelled due to the threat of immediat:, irreparable

injury. Indeed, both the district and appellate courts below were

requested by SVA to grant emergency relief based on a claimed

threat of irreparable injury—-and each declined to do so. Nor

was the result below premised on a finding that SVA lacked an

available administrative remedy. The utility of the 10 C.F.R.

2.206 procedure recognized by the district court below is well

established. See e.g, Honicker v. Hendrie, 465 ¥’, Supp. 414, 417

(M.D. Tenn. 1979), dismissed on the opinion below, 605 F.2d 556

(6th Cir. 1979), cert. denied —— U.S. ——, 100 S.Ct. 1015 (1980).

10

Thus, SVA asserts as additional reasons for barring

water decontamination efforts at TMI (1) that the

NRC has not undertaken a proper environmental

assessment under NEPA (Count I), (2) that opera-

tion of decontamination facilities would violate the

Clean Water Act (Count III), and finally (3) that

NRC authorization to commence the cleanup activities

will jeopardize certain of SVA’s constitutional rights

(Count IV).

Each of these contentions is a proper matter for

agency consideration under the review authority dele-

gated to the NRC by the Atomic Energy Act.

NEPA directs the involved agency, not private par-

ties or the federal courts, to undertake an environmen-

tal assessment of major federal action. 42 U.S.C. § 4332

(2)(¢). This is a function which has been fully rec-

ognized as within the province of the NRC’s licensing

responsibility. See 10 C.F.R. §51.1 to 56; Calvert

Cliffs’ Coordinating Committee v. Atomic Energy

Commission, 449 F.2d 1109 (D.C. Cir. 1971).

This Court has recognized that review of the ade-

quacy of NRC compliance with NEPA in licensing

actions lies solely in the courts of appeals pursuant

to 42 U.S.C. § 2239(b) and 28 U.S.C. § 2342. Vermont

Yankee Nuclear Power Corp. v. Natural Resources

Defense Council Inc., 485 U.S. 519, 526-27, 98 S.Ct.

1197, 1203 (1978). The decision below cannot be recon-

ciled with this aspect of Vermont Yankee and is

squarely in conflict with Grand Canyon Dorries, Inc.

v. Walker, 500 F.2d 588 (10th Cir. 1974), and City of

Rochester v. Bond, 603 F.2d 927 (D.C. Cir. 1979).

In Grand Canyon Dorries, Inc., the Court of Ap-

peals for the Tenth Circuit held that the manner and

2? Autre

11

extent to which particular agency action is subject

to the requirements of NEPA must be decided in the

first instance by the responsible agency, and district

courts thus should not entertain jurisdiction over

NEPA claims before the agency has made its own

determination ‘‘whether and how NEPA should be

applied.’’ 500 F.2d at 590.° In Cit” of Rochester, the

Court of Appeals for the District of Columbia Circuit

*The NRC’s action under NEPA was specially noted by the

district court below (App. C at pp. 33a, 34a), but unaccountably

ignored by the court of appeals, although a matter of record (com-

pare App. B, at p. 16a n.10). Thus, on the day plaintiffs filed this

action, May 25, 1979, the NRC issued a directive to its staff to

prepare a NEPA environmental assessment of the EPICOR II

wastewater decontamination system. As part of this assesament,

the NRC staff recommended on August 14, 1979, that the EPICOR

II processing uf intermediate-level radioactive wastewater would

not significantly affect the quality of the human environment, and

thus under NEPA, this limited activity could commence without

the need for an environmental impact statement. Disposal of

processed wastewater, as well as both processing and disposal of

high-level radioactive wastewater, was to await the staff’s further

environmental study. Following public comment on this recom-

mendation, an order was issued by the NRC on October 16, 1979,

permitting EPICOR II processing only of intermediate-level radio-

active wastewater at TMI Unit 2. See App. F, at p. 58a.

Interestingly, this agency action in the October 16, 1979 Order

is the subject of a separate appeal (involving identical parties)

currently pending in the Third Circuit pursuant to 42 U.S.C.

§ 2239. It raises the same NEPA claims regarding segmentation

and inadequate environmental review that are involved in the

instant case filed in the district court. See n. 2, supra. Neverthe-

less, the Third Circuit has now remanded the same issues to the

District Court. Thus, two courts, as well as the NRC, will be

exercising concurrent jurisdiction over the same NEPA issues.

This sort of procedural chaos is inevitable and is bound to be

repeated if the Third Circuit’s failure to apply the exhaustion

doctrine is left unchanged. Moreover, it will increase the un-

desired prospect of inconsistent results and undermine efforts to

achieve judicial economy to the fullest extent possible.

12

was all the more emphatic. It held that, where the

statutory review procedure assigns to the courts of

appeals exclusive review responsibility over agency

action—as does the Atomic Energy Act—a district

court may not exercise concurrent jurisdiction to re-

solve allegations of non-compliance with NEPA. 603

F.2d at 936-37. And see Natural Resources Defense

Council v. Nuclear Regulatory Commission, 606 F.2d

1261, 1265 (D.C. Cir. 1979). The decision below runs

counter to both propositions.

Nor is it on any firmer footing with respect to the

disposition of SVA’s claim under the Clean Water

Act. The NRC has exclusive jurisdiction to regulate

the discharge of certain types of radioactive waste

(source, byproduct, and special nuclear materials)

from nuclear plants. See Train v. Colorado Public

Interest Research Group, 426 U.S. 1, 16-17, 96 S. Ct.

1938, 1945 (1976). The types of radioactive discharges

not subject to NRC’s exclusive jurisdiction are mate-

rials like ‘‘radium and accelerator produced isotopes”’

(426 U.S. at 8 & 11, 96 S.Ct. at 1941 & 1943)—mate-

rials not involved in this proceeding. The NRC, as an

integral part of its administrative review of the pro-

posed cleanup activities, must necessarily ascertain

whether the water to be disposed after processing will

in fact be “‘high level radioactive waste’’ within the

meaning of Section 301(f) of the Clean Water Act, as

SVA claims in Count III of its complaint. That is

precisely the sort of technical fact determination

which can best be made in the first instance by the

agency which has special competence and expertise to

evaluate such matters.

The Third Circuit’s excuse for not requiring ex-

haustion of administrative remedies as to this issue is

13

that the Clean Water Act provides citizens with a pri-

vate right-of-action which ostensibly permits SVA to

litigate its Clean Water Act claim simultaneously in

the district court. See App. B, at pp. 20a-25a. The

Third Circuit’s reasoning is seriously flawed in at

least two respects.

First, the referenced statutory right-of-action is

available to SVA only if the challenged discharge of

processed wastewater is subject to regulation under

the Clean Water Act by the Environmental Protection

Agency (‘‘HPA’’) or a state permitting authority.

Since, as indicated above, the wastewater to be dis-

charged here is of a type subject to the exclusive regu-

latory jurisdiction of the NRC. under the Atomic

Energy Act, it is, as this Court stated in Train, ‘‘be-

yond the reach’’ of the Clean Water Act (426 U.S.

at 22, 96 S.Ct. at 1948).° Accordingly, the citizens’

suit provision of the Clean Water Act is not available

in this case and provides SVA no excuse for failing

to exhaust available administrative remedies at the

NRC.’

° As this Court explained in Train, ‘‘to have included these mate-

rials under the FWPCA would have marked a significant alteration

of the pervasive regulatory scheme embodied in the AEA.’’ 426 U.S.

at 24, 96 S.Ct. at 1948. That scheme requires, as acknowledged by

the Third Circuit below, that a party first go before the NRC and

exhaust his administrative remedies and then seek review only in

a court of appeals pursuant to 42 U.S.C. § 2239(b) and 28 U.S.C.

§ 2342. This Court in Train noted Congress’ intent that ‘‘the exclu-

sive regulatory scheme created by AEA for source, byproduct, and

special nuclear materials was to remain unaltered’’ by the Clean

Water Act. 426 U.S. at 17, 96 S.Ct. at 1945. Surely, Congress’ in-

clusion of a citizens’ suit provision in the Clean Water Act was not

intended to alter implicitly the explicit review process prescribed

by Congress in the Atomic Energy Act.

"This conclusion is confirmed by the structure and content of

the citizens’ suit provision. Section 505(a)(2), 33 U.S.C. § 1365

14

Second, even assuming arguendo that the private

right of action pertains here, the citizens’ suit provi-

sion, by its own terms, is only applicable where an

actual violation of an effluent standard is alleged. Sec-

tion 505(a)(1) of the Clean Water Act, 33 U.S.C.

§ 1365(a) (1). Here, by contrast, no discharge of waste-

water has occurred or has even been alleged. Thus,

there cannot ye’ have been e violation of Section 301

(f), regardless of the composition of the wastewater

proposed to be discharged. In such circumstances, a

citizens’ suit under the Clean Water Act is prema-

ture—precisely the situation sought to be avoided by

the exhaustion doctrine.

Agency review of SVA’s constitutional claims also

should not be interrupted. SVA does not challenge the

constitutionality of the Atomic Energy Act itself, in

which case there might well have been reason not to

apply the exhaustion doctrine. See Honiker v. Hen-

drie, 465 F’, Supp. 414, 417 (M.D. Tenn.), dismissed on

the opinion of the district court, 605 F.2d 556 (6th

Cir. 1979), cert. denied, —— U.S. ——, 100 8.Ct. 1015

(1980). Rather, the alleged constitutional violations

arise out of the very activities which are subject to

(a)(2), authorizes a citizens’ suit against the Administrator of

EPA for failure to perform a nondiscretionary duty. In this

instance, however, the Administrator has no authority over the

challenged discharge and such a suit would be meaningless. Sig-

nificantly, the citizens’ suit provision nowhere authorizes a suit

against the NRC for failure to enforce the Section 301(f) prohi-

bition. Similarly, Section 505(b)(1), 33 U.S.C. § 1365(b)(1),

requires sixty days’ prior notice to the Administrator of EPA and

the appropriate state—neither of which in this instance has author-

ity to regulate or prohibit the discharge in question. It is thus

apparent that in drafting the citizens’ suit provision Congress

never intended to authorize private actions in the federal district

courts with respect to matters within the exclusive regulatory

jurisdiction of the NRC.

15

NRC approval and regulation. By statute, the agency

is obligated to protect the public from radiological

hazards to its health and safety. 42 U.S.C. § 2201(i)

(3). In meeting that responsibility, it necessarily must

ensure that the activity under review does not jeop-

ardize citizens’ fundamental right to life and liberty

guaranteed by the United States Constitution.

The court below apparently accepted the general

applicability of the exhaustion doctrine with respect

to such constitutional objections to particular agency

action, but it ruled that ‘‘plaintiffs’ present allegation

of irreparable harm to their constitutional right to

‘life and liberty’ meets the irreparable harm’’ excep-

tion to the exhaustion doctrine. App. B, at p. 27a,

infra. On the most cursory analysis, it can be seen

that SVA’s assertion that operation of EPICOR II or

other decontamination facilities will present a hazard

to health and safety of a constitutional dimension

simply recasts in different terms the essential objec-

tions to the proposed water cleanup activities already

aired in the first three counts. The threat of irrepara-

ble harm, such as it is, does not attach immediately,

as both the district court and the court of appeals

fully recognized in refusing SVA’s requests below for

emergency relief. Rather, the perceived harm that is

the subject of concern—whether expressed in consti-

tutional or other terms—relates to operation of decon-

tamination facilities and the disposal of wastewater

fellowing its decontaminatior

That activity must await final agency action, includ-

ing a full environmental assessment under NEPA and

opportunity for public comment thereon. There are in

such circumstances sound public policy reasons which

admonish against premature adjudication by the courts

16

of constitutional law questions before opportunity has

been afforded to the agency to develop a factual record

for meaningful review. As stated in Babcock & Wilcox

Co. v. Marshall, 610 F.2d 1128, 1137-38 (3d Cir, 1979) :

Requiring the exhaustion of administrative rem-

edies also ensures the most efficient use of judicial

resources because the Review Commission will de-

velop a factual record so that, if the court must

decide on constitutional grounds, it will be able to

do so with the benefit of a full factual context. If

the [administrative] tribunal decides favorably

to the aggrieved party on nonconstitutional

grounds, the court will find it unnecessary to pro-

ceed with constitutional adjudication.

Accord, Marshall v. Whittaker Corp., 610 F.2d 1141,

1148 (3d Cir. 1979). The above reasoning is fully ap-

plicable to the present case.

All the elements suggesting the need for Supreme

Court review are present in this case. The decision

of the Third Circuit Court of Appeals is clearly

in error insofar as SVA was not first required to

exhaust its administrative remedies before the NRC.

The radioactive wastewater cleanup activities follow-

ing the March 28, 1979 nuclear accident fall squarely

within the jurisdiction of the NRC and are best dealt

with in the first instance by that agency which has

special competence and expertise in the subject mat-

ter. By permitting SVA to circumvent agency review

and pursue its NEPA, Clean Water Act and constitu-

tional claims in the district court, the decision below

contradicts established precedents in the Third, Tenth

and District of Columbia Circuits.

This Court has admonished against ‘‘ premature in-

terruption of the administrative process.’’ McKart v.

17

United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662

(1969). That admonition has uncompromising force

where—as here—Congress has by statute assigned to

a particular agency principal review responsibility

over matters within that agency’s regulatory jurisdic-

tion and has limited judicial review of the final admin-

istrative decision to the courts of appeals. The Third

Circuit’s departure in this case from the statutory

review procedure in the Atomic Energy Act forebodes

an opening of the district courts to untold claims here-

tofore recognized as better resolved in the first instance

by the NRC—claims which, for the most part, the

district courts have neither the expertise nor special-

ized competence to deal with on an informed and

meaningful basis. This result finds support in neither

legal precedent nor public policy, and requires cor-

rection by this Court.

CONCLUSION

Accordingly, this petition for a writ of certiorari

should be granted.

Dated: September 9, 1980.

Respectfully submitted,

Mark AUGENBLICK

Attorney of Record

GrorcE F'’, TrowsBrIpcE

Wo. Braprorp Reyno.ps

SHAW, Pirrman, Potrs & TROWBRIDGE

1800 M Street, N.W.

Washington, D.C. 20036

(202) 331-4100

Counsel for Petitioners

18

CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of September,

1980 a copy of the foregoing Petition For A Writ of

Certiorari To The United States Court of Appeals

For The Third Circuit was served by deposit in the

United States mail, first class, postage prepaid, upon

the following:

Solicitor General

Department of Justice

Washington, D.C. 20530

Stephen F. Hilperin, Esq.

Solicitor

U.S. Nuclear Regulatory Commission

1717 H Street, N.W.

Washington, D.C. 20555

Jean Royer Kohr, Esq.

Minney, Mecum & Kohr

121 EK. King Street

Lancaster, Pennsylvania 17602

Albert J. Slap, Esq. °

Public Interest Law Center of Philadelphia

1315 Walnut Street, Suite 1600

. Philadelphia, Pennsylvania 19107

Larry B. Selkowitz, Esq.

Widoff, Reager, Selkowitz & Adler

P.O. Box 1547

Harrisburg, Pennsylvania 17105

Mark AUGENBLICK

A?PENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79-2446

SusquEHANNA VaLuey ALLIANCE, Davis, Ronaup L.,

Tompkins, Berry, Hess, Beverty M., Snety, Doreen E.,

Appellants,

v.

Turee Mice Istanp Nucuear Reactor, GeneraL Pustwic

Uriuities, Metropouitan Epison Company, Jersey CENTRAL

Power & Licut Co., Pennsyitvania Exectric Co., Nuc Lear

Reaunatory Commission, Henpriz, Josepx A., Dreckamp,

Herman, Creirz, Waiter M., Verrocui, W. A., Bartnorr,

SHEPARD,

Appellees

(D. C. Civil No. 79-0658)

SUR PETITIONS FOR REHEARING

Present: Serrz, Chief Judge, Avoisert, Apams, GrBBons,

Rosenn, Weis, Gartu, HicarnsornHam and S oviter,

Circuit Judges.

The petitions for rehearing filed by Three Mile Island

Nuclear Reactor, General Public Utilities, Metropolitan

Edison Company, Jersey Central Power & Light Co.,

Pennsylvania Electric Co., Nuclear Regulatory Commis-

sion, Joseph A. Hendrie, Herman Dieckamp, Walter M.

Creitz, W. A. Verrochi and Shepard Bartnoff in the above

entitled case having been submitted to the judges who par-

ticipated in the decision of this court and to all the other

available circuit judges of the circuit in regular active

service, and no judge who concurred in the decision having

asked for rehearing, and a majority of the circuit judges

2a

of the circuit in regular active service not having voted

for rehearing by the court in banc, the petitions for re-

hearing are denied.

By the Court,

/s/ Joun J. Grepons

Judge

Dated: May 12, 1980

3a

APPENDIX B

UNITED STATES COURT OF APPEALS, THIRD CIRCUIT

No. 79-2446

SusqueHanna Vauiey AuuiANce, Davis, Ronald L., Tomp-

kins, Betty, Hess, Beverly M., Snell, Doreen E.,

Appellants,

Vv.

Taree Mire Istanp Nucrear Reactor, General Public

Utilities, Metropolitan Edison Company, Jersey Central

Power & Light Co., Pennsylvania Electric Co., Nuclear

Regulatory Commission, Hendrie, Joseph A., Dieckamp,

Herman, Creitz, Walter M., Verrochi, W. A., Bartnoff,

Shepard,

Appellees.

Argued November 13, 1979

Decided March 17, 1980

Albert J. Slap (argued), Public Interest Law Center of

Philadelphia, Philadelphia, Pa., Jean Royer Kohr, Minney,

Mecum & Kohr, Lancaster, Pa., Larry B. Selkowitz, Wid-

off, Reager, Selkowitz & Adler, Camp Hill, Pa., for appel-

lants.

George F. Trowbridge, Mark Augenblick, Thomas A.

Baxter (argued), Shaw, Pittman, Potts & Trowbridge,

Washington, D. C., for private appellees,

Leonard Bickwit, Jr., Gen. Counsel, Stephen F. Eilperin

(argued), Sol., E. Leo Slaggie, Stephen S. Ostrach, Attys.,

U. 8S. Nuclear Regulatory Commission, Washington, D. C.,

Sanford Sagalkin, Acting Asst. Atty. Gen., Peter R. Steen-

land, Jr., Chief, Appellate Section, Jacques B. Gelin, Atty.,

Land and Natural Resources Division, U. 8. Dept. of

4a

Justice, Washington, D. C., for appellee Nuclear Regula-

tory Commission.

Before Gissons, HiceinsotHam and St ovirer, Circuit

Judges.

OPINION OF THE COURT

Gispons, Circuit Judge.

The Susquehanna Valley Alliance, an unincorporated

association of residents of Lebanon, York, and Lancaster

Counties in the Commonwealth of Pennsylvania dedicated

to preservation of the environment of the Susquehanna

River, and four Lancaster County residents, (collectively

the Alliance) appeal from an order dismissing their com-

plaint seeking injunctive and declaratory relief for lack

of subject matter jurisdiction. We conclude that the com-

plaint states some claims over which the district court has

jurisdiction, and we will reverse.

I. Proceedings in the District Court

The defendants are the Nuclear Regulatory Commission

(NRC), Joseph A. Hendrie, its Chairman, General Public

Utilities and several of its subsidiaries, who own and op-

erate Unit 2 of the Three Mile Island Nuclear Power

Station at Middletown, Dauphin County, Pennsylvania

(collectively the Operators) and several officers of the

Operators. The complaint alleges, and it is conceded by all

parties, that on March 28, 1979, an accident at Unit 2 made

it necessary to bring that Unit to a cold shutdown, and that

as a result of the shutdown 600,000 gallons of water, cor-

taminated by a high level of radioactive waste, have ac-

cumulated in the reactor containment building and 250,000

gallons of water contaminated by an intermediate level of

radioactive waste have accumulated in the Unit’s auxiliary

5a

building and associated tanks.' The complaint alleges that

the defendants have planned an attempt to partially de-

contaminate the water and threaten to release this water

eventually into the Susquehanna River, where because of

the proposed decontamination system’s technological limi-

tations it will contaminate both municipal water systems

and fish and other wildlife used by the plaintiffs for food.

More specifically, the complaint alleges that NRC has

authorized the Operators to purchase, erect, and begin the

operation of a system, known as Epicor II, for treatment

of contaminated water. The system will decontaminate the

water by passing it through resin beds in which isotopes

other than hydrogen and oxygen will bind to the resin,

while the decontaminated water will be discharged. Thus,

the radioactive isotopes will be trapped in resin beds while

the non-binding hydrogen and oxygen will be discharged.’

The complaint alleges that there is no known technology

available to maintain the integrity of the resin beds and

that if they disintegrate radioactive waste materials will

be discharged into the river or the air. While the Operators

propose to treat only the intermediate level radioactive

water by means of the Epicor II system, that water is

alleged to contain “high-level radioactive waste” within

the meaning of section 301(f) of the Federal Water Pollu-

tion Control Act (FWPCA),* which prohibits discharge of

such waste into the navigable waters of the United States.

Moreover, the complaint alleges, neither the Operators nor

the NRC have any overall plan to deal with the entire

*It is further conceded that approximately 100,000 gallons of

high level radioactive waste water have accumulated in the reac-

tor’s primary cooling system, from which approximately 1,000 to

1,500 gallons per day is leaking into the containment building.

* See Office of Nuclear Reactor Regulation, Nuclear Regulatory

Comm’n, Use of EPICOR-II at Three Mile Island, Unit 2 §§ 3.3,

5.1-5.2 (Aug. 14, 1979).

* 33 U.S.C. § 1811(f) (1976 & Supp. I) (also referred to by the

short title of Clean Water Act of 1977).

6a

contaminated water problem, or any feasible plan for dis-

posal of the highly radioactive resin residue which Epicor

II will produce. Finally, it is alleged that becarse the con-

taminunt pulléfmg-and the auxiliary building are presently

secure there is no immediate necessity for putting the

Epicor II system into operation.

Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1361,

1331, and 1337 as well as 33 U.S.C. § 1365(a)(2) and 5

U.S.C. §§ 704, 706. The complaint alleges the jurisdictional

amount required by 28 U.S.C. § 1331. Plaintiffs’ complaint

charges that the actions and inactions of the NRC end the

actions of the Operators have given rise to four substantive

claims. Count I charges violations of section 102 of the

National Environmental Policy Act of 1969 (NEPA), 42

U.S.C. §§ 4321-4361, 4332 (1976), and of a provision of the

Operators’ operating license requiring that the licensee,

before engaging in additional construction or operational

activity, prepare and record an environmental evaluation

of such activity. Count II charges violations of various

provisions of the Atomic Energy Act, 42 U.S.C. §§ 2011-

2296 (1976 & Supp. I), regulations of the NRC issued pur-

suant to that Act, and the Operators’ license. Count III

charges violations of section 301(f) of the Federal Water

Pollution Control Act, 33 U.S.C. § 1311(f). Count IV alleges

that the action of the NRC permitting the Operators to

discharge radioactive waste violates plaintiffs’ rights un-

der various provisions of the United States Constitution.

The district court, without separately analyzing the

four Counts of the complaint, concluded that the relief re-

quested was unavailable from any source other than the

NRC, that the plaintiffs had failed to exhaust administra-

tive remedies before that agency, and that the court lacked

subject matter jurisdiction. The complaint thus was “dis-

missed for lack of subject matter jurisdiction, but without

Ta

prejudice to plaintiffs’ right of recourse to the [NRC].”’*

Since the order appealed from dealt only with whether the

complaint stated any cause of action within the subject

matter jurisdiction of the district court, we must first

consider that question with respect to each count.’ Al-

though the complaint pleads the violation of the National

Environmental Policy Act of 1969 as the first Count, we

think that the interaction of several federal statutes upon

which the parties rely can better be understood by com-

mencing our discussion with the alleged violations of the

Atomic Energy Act.

II. The Atomic Energy Act, 42 U.S.C. §§ 2011-2296 (1976 & Supp. I)

The Energy Reorganization Act of 1974, Pub.L.No.93-

438, 88 Stat. 1233, codified in relevant part at 42 U.S.C.

§ 5841, reprinted in [1974] U.S.Code Cong. & Admin.News,

1401, established the Nuclear Regulatory Commission

(NRC) and transferred to it the licensing jurisdiction over

private nuclear power plants originally created in the

Atomic Energy Act of 1954, Pub.L.No.83-703, §§ 1, 101-110,

68 Stat. 919, 921, 936-39, codified at 42 U.S.C. $4 2011, 2131-

2140, and which were formerly exercised by the Atomic

Energy Commission. The Act as amended authorizes the

NRC to prescribe regulations “to govern any activity au-

thorized pursuant to this chapter, including standards and

restrictions governing the design, location, and operation

of facilities used in the conduct of such activity, in order

to protect health and to minimize danger to life and prop-

* See Susquehanna Valley Alliance v. Three Mile Island Nuclear

Reactor, 485 F.Supp. 81, 88 (W.D.Pa. 1979).

* A panel of this court, on October 17, 1979, denied a motion by

appellants for injunctive relief pending appeal. In view of our

disposition on the merits of the district court’s jurisdictional rul-

ing, that court is free to consider any application for preliminary

injunctive relief which may be brought before it.

8a

erty.” 42 U.S.C. § 2201(i)(3) (1976 & Supp. I). The NRC

has adopted regulations setting forth procedures for im-

posing requirements by order, or for modification, suspen-

sion, or revocation of licenses. 10 C.F.R. §§ 2.200-.206

(1978). As currently codified, the Act provides for hear-

ings in any proceedings “for the granting, suspending,

revoking, or amending of any license or construction per-

mit.” 42 U.S.C. § 2239(a). Finally, the Act provides that

[a]ny final order entered in any proceeding of the kind

specified in subsection (a) of this section shall be sub-

ject to judicial review in the manner prescribed in the

Act of December 29, 1950, as amended, and to the pro-

visions of section 10 of the Administrative Procedure

Act, as amended.

Id. § 2239(b). The Act of December 29, 1950, referred to in

the quoted provision, is the Administrative Orders Review

Act, which provides in relevant part that

[t]he Court of Appeals has exclusive jurisdiction to

enjoin, set aside, suspend (in whole or in part), or to

determine the validity of—

(4) All final orders of the Atomic Energy Commis-

sion ®° made reviewable by section 2239 of title 42...

28 U.S.C. § 2342 (footnote added). NRC contends that its

consideration of the problem of disposing of contaminated

water at Unit 2 is a license proceeding falling within sec-

tion 2239(a). It urges that the judicial review provision in

section 2239(b) is an exclusive remedy, that no final order

has yet been entered in that proceeding, and that in the

*Since the NRC is now exercising certain of the powers for-

merly exercised by the Atomic Energy Commission, 42 U.S.C.

§ 5841 (1976), this provision gives the court of appeals jurisdic-

tion over the NRC’s orders that are reviewable under 42 U.S.C.

§ 2239.

9a

absence of a final order no court can review its action or

inaction. The allegations of the complaint, however, are to

the effect that the Operators threaten construction and

operation of the Epicor II system without the required

license or construction permit and therefore in violation of

the Atomic Energy Act. Thus, fairly read, the complaint

seeks more than judicial review of incomplete agency ac-

tion; it seeks to enjoin activity of the licensee said to vio-

late the Act and to endanger the health of the community.

Recognizing this, NRC contends that it is the sole tribunal

authorized to entertain a charge of such a violation. It

points to its regulation, 10 C.F.R. § 2.206, which authorizes

any person to file a request with the Director of Nuclear

Material Safety and Safeguards, or the Director, Office of

Inspection and Enforcement, to institute a proceeding to

modify, suspend or revoke a license or take such other

action as may be proper. NRC thus argues that the Al-

liance must first seek ddministrative relief under section

2.206 and that once NRC’s final order in that proceeding

is issued, the exclusive review provision of section 2342,

28 U.S.C. § 2342, will govern. Moreover, NRC suggests,

this exclusive review mechanism is adequate to protect the

public even from pendente lite harm, since a reviewing

court also has the power to issue interlocutory injunctions.

28 U.S.C. § 2349(b).

It is true that section 2349(b) permits the court of ap-

peals to grant pendente lite relief, but that power exists

only in cases over which the ourt has jurisdiction. It has

jurisdiction only over final orders of the agency, how-

ever, and thus section 2349(b) affords no authority for the

court of appeals to grant relief in order to prevent irrep-

arable injury before the agency gets around to taking

action. The Alliance charges that the Operators are in

violation of the Act and about to cause irreparable injury,

and that NRC has done nothing to prevent that injury.

If NRC is correct in arguing that only it can consider the

the charge of a violation of the Act in the first instance,

10a

and that review under the Administrative Orders Review

Act is exclusive, then the unavailability of pendente lite

relief during the time when the agency has the case under

consideration would seem, superficially, to leave a large

gap in the protection available to the public. However, that

gap appears to be filled by the All Writs Act,’ for in FTC

v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d

802 (1966), the Supreme Court held that section 1651(a)

authorized courts of appeals to issue preliminary injunc-

tions preserving the status quo, pending final agency ac-

tion, of matters over which, by virtue of section 11(c) of

the Clayton Act, 15 U.S.C. ¢21(c) (1976), they had ex-

clusive review jurisdiction. 384 U.S. at 604-05, 86 S.Ct. at

1742-43. The Dean Foods analysis appears to be equally

applicable to cases before the NRC. Thus the Alliance

could have asked NRC to act, see 10 C.F.R. § 2.206(a), and

could have asked the appropriate court of appeals to grant

pendente lite relief while NRC considered the case.

The pendente lite relief available under 28 U.S.C. §§ 2349

(b) and 1651(a), while it makes the NRC argument for

absence of district court jurisdiction more palatable, does

not decide the question. In other instances in which there

was exclusive jurisdiction in the court of appeals under the

Administrative Orders Review Act this court has reserved

decision on the question whether a district court may

entertain cases challenging the timeliness of agency action.

City of Trenton v. FCC, 441 F.2d 1329, 1333 & n.8 (3d Cir.

1971); Bucks County Cable TV, Inc. v. United States, 427

F.2d 438, 442 (3d Cir.), cert. denied, 400 U.S. 831, 91 S.Ct.

62, 27 L.Ed.2d 61 (1970); see Citizens for a Safe Environ-

ment v. Atomic Energy Comm’n, 489 F.2d 1018, 1022-23

(3d Cir. 1974) (expressing no view as to whether Com-

728 U.S.C. § 1651 (1976). That Act provides in relevant part

that the courts of appeals ‘‘may issue all writs necessary or ap-

propriate in aid of their respective jurisdictions and agreeable to

the usages and principles of law.’’ Id. § 1651(a).

lla

mission’s order could be reviewed in district court pro-

ceeding for injunctive, declaratory or mandamus relief).

Tacitly, at least, we have assumed that despite the exclu-

sive jurisdiction language in 28 U.S.C. § 2342 there may be

room for district court relief which did not amount to

judicial review of a final agency order. We have not here-

tofore considered whether, since relief against the Agency

is available in the court of appeals under the All Writs

Act, we should countenance any erosion of the exclusivity

provision. Nor have we considered whether, when an agency

has jurisdiction to consider a claim that the Act it is

charged with enforcing has been violated, there may still

be judicial enforcement against the alleged violator, rather

than against the agency. Certainly, however, the answer

to the latter question is not to be found in the exclusivity

provision. 28 U.S.C. § 2342. For if there is a substantive

cause of action available against violators in a non-agency

forum, the exclusive review provision of that statute would

not apply to the actions of that forum. Rather, the inquiry

must be whether the statutory scheme has expressly or

impliedly confined enforcement to a single agency, preclud-

ing relief in a non-agency forum.

The statutory echeme in issue authorizes no person or

agency other than the NRC to grant, suspend, revoke or

amend a license to operate a nuclear power reactor, 42

U.S.C. § 2239(a). But that section does not in so many

words say that a license suspension proceeding is the only

method of enforcing the prohibitions of the Act. Peculiarly,

however, there are found in the subchapter of the Atomic

Energy Act dealing with enforcement, 42 U.S.C. §§ 2271-

2282, provisions not called to our attention by any of the

parties, which appear to preclude private enforcement.

The enforcement subchapter provides for three types of

enforcement: criminal prosecutions, id. §§ 2272-2278b; in-

junction actions, id. § 2280; and civil penalties, id. § 2282.

Obviously criminal enforcement is entirely in the hands of

the government. Id. §§ 2271(b), 2271(c). The civil penalty

12a

provision, which was added by the Atomic Energy Act

Amendments of 1969, Pub.L.No.91-161, § 4, 83 Stat. 444,

authorizes the Commission to impose such penalties in the

first instance, 42 U.S.C. § 2282(a), while their collection

is by a civil action instituted by the Attorney General at

the Commissioner’s request, Id. § 2282(c). As to the in-

junctive remedy, the Act, as currently codified, provides:

Whenever in the judgment of the Commission any

person has engaged or is about to engage in any acts

or practices which constitute or will constitute a vio-

lation of any provision of this chapter, or any regula-

tion or order issued thereunder, the Attorney Gen-

eral on behalf of the United States may make appli-

cation to the appropriate court for an order enjoining

such acts or practices, or for an order enforcing com-

pliance with such provision, and upon a showing by

the Commission that such person has engaged or is

about to engage in any such acts or practices, a per-

manent or temporary injunction, restraining order, or

other order may be granted.

Id. § 2280. The statutory setting for the Commission’s au-

thority to request injunctive relief must, however, be read

in conjunction with section 221(c), the general enforcement

provision of the Act, id. § 2271(c), which provides:

No action shall be brought against any individual or

person for any violation under this chapter unless and

until the Attorney General of the United States has

advised the Commission with respect to such action

and no such action shall be commenced except by the

Attorney General of the United States ... And pro-

vided further, That nothing in this subsection shall

be construed as applying to administrative action

taken by the Commission.

Id. The injunctive relief provision first appeared in sec-

tion 16(c) of the Atomic Energy Act of 1946, Pub.L.No.585,

13a

§16(c), 60 Stat. 755. It authorized the Atomic Energy

Commission to commence suits for injunctive relief. In the

Atomic Energy Act of 1954, the injunctive remedy was

carried forward in section 232, but the authority to sue

was given to the Attorney General. Atomic Energy Act of

1954, Pub.L.No.83-703, § 232, 68 Stat. 959. The general

prohibition against suits by anyone other than the Attor-

ney General first appeared in section 221(c) of the 1954

Act. Id. § 221(¢), 68 Stat. 958. The final proviso, excepting

administrative action by the Commission from that pro-

hibition, was added when the Act was amended in 1969.

Atomic Energy Act Amendments of 1969, Pub.L.No.91-161,

§5, 83 Stat. 444,

We have not found very much by way of legislative his-

tory illuminating the reasons for the adoption of section

221(c).* But the meaning of that section’s language pro-

hibiting judicial enforcement by anyone other than the

Attorney General or administrative enforcement by the

Commission (now the NRC with respect to private nuclear

power reactors) seems plain. “No action shall be brought

against any individual or person for any violation . . . ex-

cept by the Attorney General of the United States.” 42

U.S.C. § 2271(e). The only exception for private enforce-

*The Senate Report which accompanied the Senate version of

the bill states, with respect to section 221(c) :

No action may be brought for any violation of the act until

the Attorney General has advised the Commission with respect

to such action. All actions are required to be brought by the

Attorney General as the legal representative of the Commis-

sion before the courts. In those cases involving the death pen-

alty, action may be brought on the express direction of the

Attorney General himself.

S.Rep. No. 1699, 83d Cong., 2d Sess. reprinted in [1954] U.S.

Code Cong. & Admin.News 3456, 3485-86. The two Conference

Committee reports make no reference to section 221. See H.R.Conf.

Rep.No. 2639, 83d Cong., 2d Sess. reprinted in [1954] U.S.Code

Cong. & Admin. News 3529; H.R.Conf.Rep.No.2666, 83d Cong., 2d

Sess. reprinted in [1954] U.S.Code Cong. & Admin. News 3534.

l4a

ment appears to be the opportunity to participate in the

NRC’s administrative proceeding as provided in the Com-

mission’s regulations and seek judicial review under sec-

tion 2239(a). See 10 C.F.R. § 2.206 (1978) (permitting any

person to request initiation of commission proceedings to

revoke, suspend, modify or take other action with respect

to an operator’s license). It is true that the “no action”

language in section 221(c) is not couched in jurisdictional]

terms. Compare 42 U.S.C. §2271(c) with the Norris-La-

Guardia Act, § 1, 29 U.S.C. § 101 (1976). But it is also true

that Count II seeks relief which under the enforcement—

scheme of the Atomic Energy Act a district court may not

afford to a private iitffant. Returning that Count to the

district court for the entry of a dismissal under Fed.R.Civ.

P. 12(b)(6), rather than under Fed.R.Civ.P. 12(b)(1),

would be a futile exercise. The dismissal of Count II must

be affirmed because it fails to state a claim upon which

relief may be granted.

Ill. National Environmental Policy Act of 1969,

— 42 U.S.C. $§ 4321-4361 (1976)

Turning to Count I, which charges defendants with vio-

lations of section 102 of the National Environmental Policy

Act of 1969, 42 U.S.C. §§ 4321-4361, 4332 (1976), we note

at the outset that the statute is directed toward the activi-

vn ties not of private parties but of the federal government.

Thus although Count I alleges that the Operators have

violated the provisions of their Operating License for Unit

2 by failing to provide a written evaluation of the environ-

mental impact of their actions, Complaint { 80, that allega-

tion adds nothing of substance to the charge that the Na-

tional Environmental Policy Act has been violated.’ Indeed

* The National Environmental Policy Act’s requirement that an

environmental impact statement be prepared is directed at the

agencies of the federal government, not at private parties. See Na-

tional Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.

§ 4332(2)(C) (1976).

15a

the analysis we have made in Part II, supra, compels the

conclusion that the district court may not consider the

alleged violation of the Operating License. The sufficiency

of Count I must be determined by the allegations that are

directed against NRC,

The NRC has recognized its obligation to comply with

the National Environmental Policy Act by promulgating

regulations governing licensing and regulatory policy and

procedures with respect to environmental protection. Sce

10 C.F.R. §§ 51.1 to .56 (1978). The NRC requires appli-

eants for construction or operation permits to file an en-

vironmental report. Jd. $51.20. A draft environmental

impact statement is then prepared by the NRC staff and

is distributed to appropriate federal agencies and published

in the Federal Register. Jd. §§ 51.22 to .25. After comments

have been received, the Director of Nuclear Reactor Regu-

lation or the Director of Nuclear Material Safety and Safe-

guards or their designee prepares a final environmental

impact statement. Both the draft statement and the final

statement accompany the application through the NRC

review process. Id, § 51.26. The regulations recognize that

the Director of Nuclear Reactor Regulation or the Director

of Nuclear Material Safety and Safeguards may determine

that no environmental impact statement need be prepared

for a particular action, but provide that any party to an

NRC proceeding may take a position and offer evidence

on the aspects of the proposed action claimed to fall within

the Act. Id. §§ 51.5(¢), 51.50(d), 51.51(b) (1). The adequacy

of NRC compliance with the National Environmental Policy

Act in any license proceeding is reviewable in the court of

appeals pursuant to 42 U.S.C. §2239(b) and 28 U.S.C.

§ 2342, See Vermont Yankee Nuclear Power Corp. v. Natu-

ral Resources Defense Council, Inc., 435 U.S. 519, 526-27,

98 8.Ct. 1197, 1203-04, 55 L.Ed.2d 460 (1978) (final decision

of AEC with respect to licensing and compliance with

National Environmental Policy Act requirements is review-

able in court of appeals under 28 U.S.C. § 2342 and 42

16a

U.S.C. § 2239); New England Coalition on Nuclear Pollu-

tion v. NRC, 582 F.2d 87, 93 (1st Cir. 1978) (final environ-

mental impact statement of NRC is reviewable).

What the Alliance charges in this suit is that NRC, by

fragmenting its consideration of the problem of disposing

of the contaminated water in Unit 2, and authorizing the

erection and operation of Epicor II to dispose of the inter-

mediate level contaminated water, without preparation or

consideration of either a draft or a final environmental

impact statement, has frustrated the Act and violated

NRC’s plain statutory duty.’ Segmentation of a large or

cumulative project into smaller components in order to

avoid designating the project a major federal action has

been held to be unlawful." Thus the legal issue presented

by Count I is whether, despite the availability of review

” The NRC, in resisting the grant of an injunction pending

appeal disputed that charge, contending that it had directed its

staff to prepare a draft environmental impact statement. It is

not disputed, however, that NRC gave the Operators oral approval

to begin the installation of Epicor II, without awaiting the prepara-

tion of that draft statement.

" B.g., City of Rochester v, United States Postal Serv., 541 F.2d

967, 972 (2d Cir. 1976) (‘‘To permit noncomprehensive consid-

eration of a project divisible into smaller parts, each of which

taken alone does not have a significant impact but which taken as

a whole has cumulative significant impact, would provide a clear

loophole to NEPA.’’) ; Scientists’ Inst. for Pub, Information, Inc,

v. AEC, 481 F.2d 1079, 1086 n.29, 1086-89 (D.C.Cir, 1973) (state-

ment required for overall project where individual actions are

related logically or geographically). See generally W. Rodgers,

Environmental Law §§ 7.7, 7.9 (1977) (discussing problems aris-

ing from scope and timing of environmental impact statements).

The Supreme Court, however, has made clear that there is no

affirmative obligation to regionalize a proposal under NEPA; a

project of genuinely small scope of course would not be an im-

permissible segmentation. See Kleppe v. Sierra Club, 427 U.S. 390,

399-402, 96 S.Ct. 2718, 2725-2726, 49 L.Ed.2d 516 (1976) (no

obligation to prepare impact statement as to regional effects where

no regional action proposed).

17a

in the court of appeals when the NRC issues a final order,

the district court has jurisdiction to compel compliance

with the National Environmental Policy Act by prohibiting

such segmentation.

Enforcement of the environmental impact statement re-

quirement generally has been assumed to be within the

subject matter jurisdiction of the district courts. E.g., Flint

Ridge Dev. Co. v. Scenic Rivers Ass’n., 426 U.S. 776, 782-

83, 96 S.Ct. 2430, 2435, 49 L.Ed.2d 205 (1976); Environ-

mental Defense Fund v. Tennessee Valley Auth., 468 F.2d

1164 (6th Cir..1972). Moreover, the analysis of the enforce-

ment subchapter of the Atomic Energy Act in Part II,

supra, is inapplicable. Count I is not directed to a violation

of that Act, but to a violation of the National Enviror-

mental Policy Act of 1969, and private enforcement of that

statute has been the rule. Whatever were the policy reasons

for concentrating enforcement of the Atomic Energy Act

in the hands of the Attorney General, they do not apply

to Count I.

Where, however, an agency provides an opportunity for

private parties to intervene and raise the issue of the

necessity for preparation of an environmental impact state-

ment, and where both review and pendente lite relief can be

obtained in the court of appeals, it would not be an unreas-

onable construction of the Administrative Orders Review

Act, 28 U.S.C. § 2342, that enforcement of the National

Environmental Policy Act against that agency is available

only in the court of appeals. That is the construction which

is sought by NRC. In Scientists’ Institute for Public Infor-

mation, Inc. v. AEC (SIPI), 481 F.2d 1079 (D.C.Cir. 1973),

the Court of Appeals for the District of Columbia Circuit

held that the district court could, and should, entertain an

action to enforce the environmental impact statement re-

quirement against the Atomic Energy Commission, to which

the same review scheme applies. In that case Judge Wright

gave considerable attention to the significance of timing of

18a

the impact statement. 7d. at 1093-98. The Alliance makes

the valid point that when by fragmentating its considera-

tion the NRC postpones preparation of an impact state-

ment until after private parties have been permitted to

expend large sums on construction, the resulting change in

the status quo has the almost inevitable effect of distorting

the later view of both the agency and the reviewing court

as to the desirability of the action in question. See Calvert

Cliffs’ Coord. Comm. v. AEC, 449 F.2d 1109, 1127 (D.C.

Cir. 1971) (AEC should not be permitted to foreclose

alternative solutions by delaying environmental impact

statements). Although the Supreme Court has repudiated

the list of factors relevant to timing that was enumerated

by Judge Wright in SIPI, see Kleppe v. Sierra Club, 427

U.S. 390, 403-06, 96 S.Ct. 2718, 2727-28, 49 L.Ed.2d 516

(1976), and has described NEPA’s requirement that an

environmental impact statement be prepared as “precise,”

id. at 406, 96 S.Ct. at 2728, the significance of the timing

decision cannot be ignored. Like other agencies, NRC must

be afforded some flexibility with respect to timing of the

preparation of impact statements. See Aberdeen & Rockfish

R. R. Co. v. SCRAP, 422 U.S. 289, 320, 95 S.Ct. 2336, 2355,

45 L.Ed.2d 191 (1975) (preparation of statement required

by statute once proposal submitted); Westinghouse Elec.

Corp. v. NRC, 598 F.2d 759, 776-78 (3d Cir. 1979) (National

Environmental Policy Act permits NRC to defer statement

preparation pending policy decision) ; New England Coali-

tion on Nuclear Pollution v. NRC, 582 F.2d 87, 93-94 (1st

Cir. 1978) (agency not required to revise statement when

proposal revised). But the timing problem is a real one

especially when private parties are permitted by a federal

agency to make major construction expenditures in advance

of consideration of environmental issues. The Supreme

Court in Kleppe held that once the agency, here the NRC,

is presented with a proposal, as in the instant case, then

the impact statement must be prepared. 427 U.S. at 405-06,

96 S.Ct. at 2728, quoting Aberdeen & Rockfish R. R. Co. v.

19a

SCRAP, 422 US. at 320, 95 S.Ct. 2336; see Kleppe v. Sierra

Club, 427 U.S. at 419 n.1, 96 S.Ct. at 2734 n.1 (Marshall, J.,

coneurring in part and dissenting in part) (majority opin-

ion does not permit agency to delay preparation of state-

ment once proposal submitted). Thus the NRC does not

have unfettered diserction, and the real issue before us is

whether the court ot #ppeals or the district court can con-

sider the claim that such a course of action should not be

permitted.

It is conceivable that the All Writs Act, 28 U.S.C. § 1651,

as interpreted in FTC v. Dean Foods Co., 384 U.S. 597

(1966), may authorize the court of appeals to enforce timely

compliance with the National Environmental Policy Act

with respect to agency proceedings that it may ultimately

review. Another conceivable approach is to hold that when-

ever NRC takes any action having the effect of permitting

a licensee to commence construction of any facility there

is a final order within the meaning of 42 U.S.C. § 2239(b).

Neither approach seems desirable. In many instances de-

termination of when an impact statement should be pre-

pared will require a record. While the court of appeals can

devise procedures for the preparation of a record in a

section 1651 proceeding, the district court has both pro-

cedures and facilities at hand for that task. Thus resort to

the more ordinary remedy of a suit for declaratory or

injunctive relief, or to the mandamus remedy authorized

by 28 U.S.C. § 1361 seems preferable to inviting litigation

here. The approach of treating any NRC action which per-

mits a licensee to do anything as a final order, aside from

the problems arising from the absence of a record, poses

the additional problem of proliferation of litigation over

what agency action is final for purposes of review. See

Westinghouse Elec. Corp. v. NRC, 598 F.2d at 768 n. 35.

This is not a case in which the administrative record is

complete and a final order has undoubtedly been made.

E.g., Natural Resources Defense Council, Inc. v. NRC, 606

F.2d 1261, 1264-66 (D.C.Cir. 1979).

20a

We conclude, therefore, that a claim that NRC is not

complying with the National Environmental Policy Act

states a cause of action over which the district courts have

subject matter jurisdiction, and that dismissing Count I

for lack of subject matter jurisdiction was error. Our hold-

ing that there is subject matter jurisdiction over Count I

should not be construed as an indication that the requested

relief, injunctive or declaratory, should be granted. li may

be that NRC will convince the court that its fragmentation

of the contaminated water problem was entirely proper,

or at least within the range of permissible agency discretion

on the timing of environmental impact statements. It may

be appropriate, moreover, for the district court to stay its

hand pending further agency proceedings, while retaining

jurisdiction. These are issues which on the present record

are not before us. Nor on this record do we have any

occasion to determine what effect the NRC’s November 21,

1979 Statement of Policy and Notice of Intent to Prepare

a Programmatic Environmental Impact Statement may

have on the proper disposition of Count I.

IV. Federal Water Pollution Control Act, 33 U.S.C.

§§ 1251-1376 (1976 & Supp. I)

In Count III the Alliance charges that the Operators are

threatening to violate section 301(f) of the Federal Water

Pollution Control Act, 33 U.S.C. §§ 1251-1376, 1311(f)

(1976 & Supp. I), which provides:

Notwithstanding any other provisions of this chapter

it shall be unlawful to discharge any radiological, chem-

ical, or biological warfare agent or high-level radio-

active waste into the navigable waters.

Id. § 1311(f).

In dealing with Count ITI the district court ruled:

Count ITI, which is tenuous at best because it is based

on a possible future action, is also subject to the ex-

haustion principle.

2la

With no further analysis, the court concluded that it lacked

subject matter jurisdiction over Count III. But the prohi-

bition in section 301(f) is absolute; NRC has no discretion

to consider whether or ot to permit a prohibited discharge.

Moreover the Federa’ Water Pollution Control Act, in

sharp contrast with the Atomic Mnergy Act, provides ex-

pressly for private enforcement. See 33 U.S.C. § 1365 (citi-

zens’ suit provision). Section 505(a) of the Federal Water

Pollution Control Act, 33 U.S.C. §1365(a) provides:

Except as provided in subsection (b) of this section,

any citizen may commence a civil action on his own

behalf—

(1) against any person... who is alleged to be

in violation of (A) an effluent standard or limi-

tation under this chapter... or

(2) against the Administrator where there is al-

leged a failure of the Administrator to perform

any act or duty under this chapter which is not

discretionary with the Administrator.

The district courts shall have jurisdiction without re-

gard to the amount in controversy or the citizenship

of the parties, to enforce such an effluent standard...

or to order the Administrator to perform such act or

duty, as the case may be...

This type of citizens’ suit provision is similar to those

included in a number of federal environmental statutes.”

% Toxic Substances Control Act, §§ 20, 21, 15 U.S.C. §§ 2619,

2620 (1976); Surface Mining Control and Reclamation Act of

1977; § 520, 30 U.S.C. § 1270 (1976 & Supp. I); Marine Protec-

tion, Research, and Sanctuaries Act of 1972, § 105, 33 U.S.C. § 1415

(1976) ; Deepwater Port Act of 1974, § 16, 33 U.S.C. § 1515 (1976) ;

Safe Drinking Water Act, § 2(a), 42 U.S.C. § 300j-8 (1976 & Supp.

I) ; Noise Control Act of 1972, § 12, 42 U.S.C. § 4911 (1976) ; Re-

source Conservation and Recovery Act of 1976, §2, 42 U.S.C.

§ 6972 (1976 & Supp. I); Clean Air Amendments of 1970, § 12(a),

42 U.S.C. § 7604 (1976 & Supp. I).

22a

Like each of those statutes, the citizens’ suit provision in

the Federal Water Pollution Control Act states that no

such action may be brought prior to sixty days after the

plaintiff has given notice of the alleged violation to the

Administrator of the agency responsible for the enforce-

ment of the standard allegedly violated, in this case the

Administrator of the Environmental Protection Agency

(EPA). Federal Water Pollution Control Act Amendments

§ 505(b), 33 U.S.C. § 1365(b). In Train v. Colorado Public

Interest Research Group, 426 U.S. 1, 96 S.Ct. 1938, 48

L.Ed.2d 434 (1976), the Supreme Court addressed the

issue whether the Administrator of the EPA could, under

the Federal Water Pollution Control Act, regulate dis-

charges into navigable waters of nuclear waste materials

which were subject to regulation under the Atomic Energy

Act. There the Court held that the three types of radio-

active material defined in the Atomic Energy Act** were

subject to regulation by the NRC rather than by the EPA.

Id. at 25. We do not decide today whether, on the merits,

plaintiffs can prove that the threatened discharges from

Three Mile Island are radioactive wastes within the scope

of the Federal Water Pollution Control Act. We hold only

that plaintiffs’ allegations under that Act were sufficient

for the purpose of subject matter jurisdiction.

The complaint alleges that two days prior to the filing

of the complaint the Alliance gave the required notice both

to the Administrator of KPA and to the NRC. There are

exceptions in section 505(b) to the 60-day notice require-

ment with respect to violations of sections 306 and 307(a)

of the statute, 33 U.S.C. §§ 1316 and 1317(a). There is no

exception, however, to the waiting period for radioactive

waste discharged in violation of section 301(f), 33 U.S.C.

>The Atomic Energy Act regulates three types of radioactive

materials: special nuclear material, source materials, and byproduct

material. 42 U.S.C. §§ 2014(e), 2014(z), 2014(aa) ; see 42 U.S.C.

§§ 2021a, 2022 (disposal of waste).

23a

§ 1311(f). We have been referred to no legislative history

revealing why high-level radioactive waste, which many

people would consider ultrahazardous, was not included

among the exceptions to the waiting period. Appellants have

urged that the omission was somehow inadvertent, and that

we should read the exceptions as applicable. We decline to

do so. While we are puzzled by the omission we are not

free to rewrite the statute.

NRC has taken before this court a rather pragmatic

approach to the 60-day notice provision. It observes:

The 60-day notice provision in Section 505(b) of the

Clean Water Act, 33 U.S.C. [§] 1365(b) is in the nature

of a statutorily mandated jurisdictional exhaustion re-

quirement designed to afford an agency an opportunity

to pass upon claims of alleged violations of the Clean

Water Act prior to a citizens’ suit to enforce the Act’s

effluent limitations. While plaintiffs’ suit, filed 2 days

after mailing notice, was therefore premature, dismis-

sal for failure to observe the 60-day condition of 33

U.S.C. [§] 13865(b) would serve no purpose. The Agen-

cies, EPA and [NRC], were in fact given an oppor-

tunity to respond to plaintiff’s Clean Water Act claim

and did so prior to judicial disposition of the complaint.

Both found the Clean Water Act claim to be without

merit. . . . It would have been excessive formalism

for the district court to have required Count III of

the complaint to have been re-filed on July 23 in order

to accommodate the 60-day notice provision.

Supplemental Brief for Appellee Nuclear Regulatory Com-

mission at 4. The Operators make no such concession. They

contend that premature suits should be dismissed for lack

of jurisdiction even if at the time when the district court

acts upon the motion to dismiss the responsible agency has

had notice for sixty days.

24a

We agree with NRC that reading section 505(b) to

require dismissal and refiling of premature suits would be

excessively formalistic. At the time the district court acted,

on the face of the complaint it appeared that NRC had had

notice of the alleged violation under consideration for more

than sixty days. Certainly, then, the complaint alleged a

claim over which the district court had subject matter

jurisdiction under section 505(a), 33 U.S.C. § 1365(a).

Moreover, as we recently held in National Sea Clammers

Association v. City of New York, 616 F.2d 1222 (3d Cir.

1980), the savings clause in the citizens’ suit provision,

33 U.S.C. § 1365(e), has independent significance preserv-

ing private causes of action for persons who can allege

the requisite jurisdictional amount for jurisdiction under

28 U.S.C. § 1331. The complaint pleads the jurisdictional

amount and general federa! question jurisdiction under

section 1331. It charges that the plaintiffs will be injured

in fact by the discharge of radioactive waste into the Sus-

quehanna River. Reading the complaint as a whole, it is

clear that Count III states a claim within the subject matter

of the district court entirely apart from the Federal Water

Pollution Control Act’s citizens’ suit provision. 33 U.S.C.

§ 1365(a). See National Sea Clammers Ass'n v. City of

New York, 616 F.2d at 1227-1228.

Thus we hold that the district court erred in dismissing

Count III for lack of subject matter jurisdiction. The NRC

and the Operators, perhaps anticipating that result, urge

that the dismissal should nevertheless be affirmed for fail-

ure to state a claim upon which relief may be granted.

Their theory is that NRC has authority to enforce the

Federal Water Pollution Control Act with respect to radio-

active discharges from nuclear power reactors, and that the

doctrine of exhaustion of administrative remedies prevents

a district court from considering this complaint. This argu-

ment is a variant of that which we discussed in Part II,

supra, that the alleged violation of section 301(f), 33 U.S.C.

25a

§ 1311(f), can be considered by the court of appeals when

it reviews a final order of the NRC.

There is no room for that argument in the enforcement

scheme of the Federal Water Pollution Control Act. The

citizens’ suit provision in section 505, 33 U.S.C. § 1365,

contains its own specification of the degree to which district

courts must defer to administrative agencies. Under the

plain language of that section, the district courts should

defer for sixty days, and at that point determine whether

or not the violation has been halted by administrative action

or otherwise. If it has not been so halted, the citizen’s

suit goes forward. It does not wait in what may be a per-

petual limbo while the agency decides whether or not to

take action. A similar analysis applies to the private causes

of action preserved by section 505(e), 33 U.S.C. § 1365(e).

The very fact that the savings clause was inserted suggests

that there was no intention on the part of Congress to

deprive parties actually injured by conduct violating the

Act of access to conventional legal remedies such as dama-

ges or injunctive relief. NRC has no authority to grant

relief which would make such parties whole, and we would

have to find rather compelling evidence of congressional

intent before we would hold that there was no opportunity

to resort to either preventative or make-whole judicial

remedies while that agency considered the underlying prob-

lem. That is not to suggest that when the district court

considers this case for injunctive and declaratory relief on

the merits a great deal of deference to NRC’s expertise

may be inappropriate. But we can approve dismissal of

Count III on the theory that it fails to state a claim upon

which relief may be granted only if we can fairly conclude

that at final hearing the Alliance could prove no set of facts

upon which either form of relief would be warranted. We

cannot do so. Since Count III states a claim within the

subject matter jurisdiction of the district court upon which

at final hearing some relief might be given the order dis-

missing that Count was error.

26a

V. Constitutional Claims

In Count IV the Alliance charges that NRC, by allowing

effluents from Unit 2 in excess of those permitted by the

operating license, violated various provisions of the Con-

stitution, to plaintiffs’ injury in that they have been ex-

posed to the risk of cancer and genetic damage. The district

court dismissed this claim for lack of subject matter juris-

diction on the theory that since NRC could consider the

same claim, exhaustion of administrative remedies and

resort to court of appeals review under section 2239(b),

42 U.S.C. § 2239(b), was required.

Certainly a complaint alleging a cause of action for

private relief implied from provisions of the United States

Constitution states a claim within the subject matter of the

district court. Bivens v. Sia Unknown Named Agents of

the Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.Ct. 1999,

29 L.Kd.2d 619 (1971); Bell v. Hood, 327 U.S. 678, 66 S.Ct.

773, 90 L.Kid.2d 939 (1946). The legal sufficiency of that

claim is a separate matter, which the district court did not

reach. Whether or not a cause of action in favor of the

plaintiffs against the NRC, implied from the Constitution,

and seeking protection from irreparable harm pendente

lite, could be adjudicated by the NRC is at least doubtful,

if for no other reason than that its arsenal of remedies

includes only those specified in the Atomic Energy Act.

Preliminary injunctive relief to prevent irreparable un-

constitutional injury is not among those remedies. Whether

NRC has adjudicatory competence to consider constitutional

claims at all is a matter we need not reach.” As a judicially

created doctrine, the requirement of exhaustion has tradi-

tionally been waived in three circumstances under the case

law of this circuit. We have declined to require exhaustion

when the challenged agency action presents a clear and

unambiguous violation of statutory or constitutional rights,

* See Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466,

45 L.Ed.2d 522 (1975).

27a,

First Jersey Securities, Inc. v. Bergen, 605 F.2d 690, 697

(3d Cir. 1979); Barnes v. Chatterton, 515 F.2d 916, 920 (3d

Cir. 1975), when resort to administrative procedures is

“clearly shown to be inadequate to prevent irreparable

injury,” Babcock and Wilcox Co. v. Marshall, 610 F.2d

1128, 1138 (3d Cir. 1979), quoting American Fed’n of Gov't

Employees, Local 1004 v. Resor, 442 F.2d 993, 994-95 (3d

Cir. 1971), or when exhaustion is “futile,” United States

ex rel. Marrero v. Warden, Lewisburg Penitentiary, 483

F.2d 656, 659 (3d Cir. 1973), rev’d on other grounds, 417

U.S. 653, 94 8.Ct. 2532, 41 L.Ed.2d 383 (1974). The plain-

tiffs’ present allegation of irreparable harm to their con-

stitutional right to “life and liberty” meets the irreparable

harm standard. Cf. Honicker v. Hendrie, 465 F.Supp. 414,

419-20 (M.D.Tenn. 1979), aff’ and opinion af district court

adopted, 605 F.2d 556 (6th Cir. 1979) (noting that if plain-

tiff had shown irreparable harm under Atomic Energy Act

before available agency action “the court would not feel

constrained by the doctrine of primary jurisdiction and

would not hesitate to act to protect plaintiff’s rights”).

Although we have held that, under the Occupational Safety

and Health Act, 29 U.S.C. §§ 651-678 (1976), fourth amend-

ment claims are subject to the exhaustion requirement,

those holdings do not suggest the same conclusion here. In

those cases exhaustion is required because the Occupational

Safety and Health Review Commission “is the only tribunal

available for the development of a factual record.” Bethle-

hem Steel Corp. v. OSHRC, 607 F.2d 1069, 1074 (3d Cir.

1979) (emphasis added) ; Babcock & Wilcox Co. v. Marshall,

610 F.2d 1128, 1137, 1140 (3d Cir. 1979); Marshall v.

Whittaker Corp., 610 F.2d 1141, 1148 (3d Cir. 1979); Be-

cause the district court is an available forum for creation

of a factual record in the instant case, and is the only forum

in which the claim of irreparable harm can be addressed,

we hold that it is the appropriate forum for the presenta-

tion of these constitutional claims. Thus we conclude that

the district court erred in assuming that Count IV states a

claim within the exclusive jurisdiction of the NRC.

28a

Since it is entirely possible that any relief to which the

defendants may be entitled can be awarded on statutory

grounds under Count I or Count III, it may be unnecessary

for the district court, and thus for this court, to determine

whether Count IV states a claim upon which relief, implied

directly from one or more of the several constitutional

provisions relied upon, may be granted. Consistent with

the policy against premature adjudication of constitutional

law questions, we hold no more than that the district court

has subject matter jurisdiction over Count IV.

VI. Conclusion

Pervading the treatment of the case by the district court,

as well as the briefs of appellees, is the notion that the

judge-made rule of exhaustion of administrative remedies

bears upon the subject matter jurisdiction of the district

court. That error is fundamental. Congress can, of course,

limit the subject matter jurisdiction of the district courts,

and can relegate some matters to the exclusive jurisdiction

of an administrative agency. It can also prohibit private

enforcement of federal statutes. In Part II, supra, we hold

that in the Atomic Energy Act it did both. Where, however,

Congress has not given any such clear indication, judge-

made rules, such as the requirement of exhaustion of ad-

ministrative remedies, cannot affect the subject matter

jurisdiction of the district courts, but affect only the timing,

and in some cases the merits, of the claim for relief. See

generally K. Davis, Administrative Law of the Seventies

§ 20.01 (1976). Determining whether the judge-made rule

requiring exhaustion of administrative remedies should be

relied upon in a given instance to delay or deny a remedy

otherwise available from a court requires a careful analysis

of the statutory scheme relied on by the plaintiff, of the

completeness or incompleteness of remedies available from

the agency, of the presence or absence of harm pendente

lite, and of the likely intention of Congress with respect to

29a

private enforcement. Such analysis is not likely to be

thorough if it is attempted at the outset on a motion to

dismiss under Rule 12, Fed.R.Civ.P. 12.

The judgment appealed from will be affirmed insofar as

it dismissed Count II of the complaint. In all other respects,

it will be reversed.

30a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79-2446

SusqueHANNA VaLLEy AuuiAnce, Davis, Ronald L.,

Tompkins, Betty, Hess, Beverly M.

Sne.tt, Doreen K., Appellants

Vs.

Turee Mite Istanp Nucuear Reactor, Genera, Pustic

Uriuities, Merropotitan Epison Company, JERSEY CENTRAL

Power & Licur Co., Pennsytvania Eectric Co., Nuc LEAR

Recuiatory Commission, Henprit, Joseph A., Dieckamp,

Herman, Creirz, Walter M., Verrocui, W. A., Bartnorr,

Shepard

(D.C. Civil No. 79-0658)

On Appeal From The United States District Court

For The Middle District Of Pennsylvania

Present: Gisnons, HicainsorHam and Svoviter, Circuit

Judges

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the Middle District of

Pennsylvania and was argued by counsel on November 13,

1979.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court, entered October 12, 1979, be, and the same

is hereby affirmed insofar as it dismissed Count II of the

complaint, and in all other respects the said judgment is

reversed in accordance with the opinion of this Court.

AYTTEST :

[signature illegible]

Clerk

March 17, 1980

3la

APPENDIX C

UNITED STATES DISTRICT COURT, M. D, PENNSYLVANIA

Civ. A. No. 79-658

SusquEHANNA VauLey AxLuiance, Ronald L. Davis, Betty

Tompkins, Beverly M. Hess, Doreen E. Snell,

Plaintiff s,

v.

Turee Mite Istanp Nuciear Reactor, General Public

Utilities, Metropolitan Edison Company, Jersey Central

Power & Light Co., Pennsylvania Electric Co., Nuclear

Regulatory Commission, Joseph A. Hendrie, Herman

Dieckamp, Walter M. Creitz, W. A. Verrochi, Shepard

Bartnoff,

Defendants.

October 12, 1979

MEMORANDUM

Ramso, District Judge.

This case is a sequel to the nuclear accident which oc-

curred on March 28, 1979, at Unit No. 2 of the Three Mile

Island (TMI) nuclear power plant. The island on which

the power plant was built is in the Susquehanna River

near Harrisburg, Pennsylvania. As a result of the accident,

there are several hundred thousand gallons of radioactively

contaminated water in the containment building of Unit

No. 2 and in tanks in auxiliary buildings. The water is of

varying levels of contamination. The dispute at hand con-

cerns the steps being taken to dispose of the contaminated

water.

Plaintiff, Susquehanna Valley Alliance, was formed in

1979 to preserve and protect the environmental quality

of the Susquehanna River and the surrounding area. The

32a

individual plaintiffs live in Lancaster County, downstream

from the damaged reactor. They allege that they drink and

bathe in water whose source is the Susquehanna.

Plaintiffs fear that the treatment technology available to

deal with the contaminated water problem may not be ade-

quate to decontaminate the liquid without high risks of

additional releases of radioactive pollutants into the air

and water. As a result of these fears, a suit was filed on

May 25, 1979, against the reactor itself, the Nuclear Regu-

latory Commission (NRC), the private companies which

own TMI (General Public Utilities Corporation, Metro-

politan Edison Company, Jersey Central Power and Light,

and Pennsylvania Electric Company), and several indivi-

duals in decision making positions with either NRC or the

private companies.

It is undisputed that the private defendants have pro-

ceeded with the construction of a system, known as Epicor

II, which is designed to treat the intermediate level con-

taminated water. Highly contaminated water will be treated

by another system which is still in the study and design

stage. NRC did not require the private defendants to ap-

ply for a construction permit prior to building Epicor II,

nor has it yet determined if the private defendants must

apply for a modification of their license before operating

Kpicor IT.

The complaint contains four counts which set forth the

following claims. Count I charges that the steps being

taken to deal with the radioactive wastes at TMI are major

federal actions within the meaning of the National En-

vironmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321,

et seq. NEPA requires that, whenever the federal govern-

ment plans to take action which may have an impact on

the environment, the agency contemplating the action

study and report on the potential environmental impact

of the planned activity. 42 U.S.C. § 4332. Because the waste

water processing and disposal activity is claimed to be with-

33a

in the scope of NEPA, plaintiffs request that the court

declare that the defendants are in violation of NEPA, and

compel NRC to prepare an environmental impact state-

ment.

Count II deals with NRC regulations and parts of the

Atomic Energy Act, 42 U.S.C. § 2011, et seq. It is plain-

tiffs’ contention that, under the statute and regulations,

NRC should have required the nuclear plant operators to

apply for a construction permit prior to building Epicor

II, and should require that TMI’s license be amended be-

fore permitting Epicor II to operate. The court is asked to

declare that the defendants are in violation of the Atomic

Energy Act and to enjoin activitics related to the disposal

of high level radioactive water until both the utilities and

NRC comply with all applicable federal statutes.

Count III states that the defendants will violate Section

301(f) of the Clean Water Act of 1977, 33 U.S.C. § 1311(f),

because “high level radioactive pollutants may be dis-

charged into the river” through failure of the pollution

control technology to treat these wastes. Count IV raises

constitutional issues. It charges NRC with violations under

the first, fifth, ninth, tenth and fourteenth amendments

which allegedly protect plaintiffs’ right “to be born and to

live mentally and physically unimpaired.”’

On the same day that the present action was filed, NRC

issued a statement directing its staff to prepare an environ-

mental assessment dealing with proposals to decontaminate

and dispose of radioactively contaminated waste water at

the TMI facility. In that statement, NRC declared that:

[t]he assessment should include discussion of po-

tential risks to the public health and safety, including

occupational exposures and the risk of accidental re-

leases, and a discussion of alternatives to the Epicor

II system.

34a

The NRC directive ordered that, until the assessment on

processing the intermediate radioactive waste water was

completed, and the public had been given an opportunity

to comment on the staff report resulting from the assess-

ment, the licensee was not to operate Epicor II for other

than testing purposes. NRC permitted the testing to pro-

ceed on the condition that only nonradioactive water was

to be utilized in the trial operations.

The first phase of the environmental assessment was

released on August 14, 1979. The report concluded that the

proposed use of Epicor II for the processing of the inter-

mediate radioactive wastes in the TMI-2 auxiliary building

would not significantly affect the quality of the human

environment. Therefore, the NRC staff recommended that

no environmental impact statement be prepared for the

processing stage related to intermediate level contamina-

tion. The assessment, and the conclusion regarding an

environmental impact statement are subject to a period of

comment by the public and other federal agencies. See

44 Fed.Reg. 48829 (August 20, 1979). Then NRC will de-

cide whether to adopt the staff recommendation and allow

Epicor II to process the intermediate level waste water.

Reports assessing the environmental consequences of

disposal of the intermediate level processed contaminated

water and the processing and disposal of the highly radio-

active water have yet to be released. They also will be sub-

ject to public scrutiny prior to adoption by NRC.

Both NRC and the private defendants filed motions to

dismiss .2e case for failure to state a claim upon which

relief can be granted and for lack of subject matter juris-

diction in this court.’ They contend that Count I should be

* The federal defendants had previously filed a motion to trans-

fer venue pursuant to 28 U.S.C. § 1404(a). At the time the motion

to dismiss was filed, the court had not addressed the venue motion.

Since the court concludes that it has no subject matter jurisdiction

over the action, transfer to another district would be inappro-

priate.

35a

dismissed as moot because NRC has undertaken an envi-

ronmental assessment of the actions related to the cleanup

operations at TMI-2. With regard to the issues raised in all

four counts, defendants urge that this court lacks subject

matter jurisdiction because plaintiffs must first exhaust

their administrative remedies by seeking through NRC the

relief sought in this court. Should NRC render a decision

adverse to plaintiffs, defendants believe those decisions

would fall within the meaning of “final licensing” orders,

and contend that jurisdiction to consider a contested NRC

ruling is in the court of appeals, not the district court.

In order to decide if the defendants are correct in stat-

ing that plaintiffs have failed to exhaust their administra-

tive remedies, the court must determine what administra-

tive remedies, if any, are open to plaintiffs. The first ques-

tion to consider is whether or not plaintiffs have standing

to seek NRC action. Under the following NRC regulation,

groups or individuals with concerns similar to plaintiffs

have a right of recourse to the Commission:

10 C.F.R. Section 2.206

(a) Any person may file a request for the Director

of Nuclear Reactor Regulation, Director of Nuclear

Material Safety and Safeguards, Director, Office of

Inspection and Enforcement, as appropriate, to in-

stitute a proceeding pursuant to §2.202 to modify,

suspend or revoke a license, or for such other action

as may be proper... .

(b) Within a reasonable time after a request pur-

suant to paragraph (a) of this section has been re-

ceived, the Director of Nuclear Reactor Regulation,

Director of Nuclear Material Safety and Safeguards,

Director Office of Inspection and Enforcement, as ap-

propriate shall either institute the requested proceed-

ing in accordance with this subpart or shall advise the

person who made the request in writing that no pro-

36a

ceeding will be instituted in whole or in part, with

respect to his request, and the reasons therefor.

(c)(1) Director’s decisions under this section will

be filed with the Office of the Secretary. Within twenty

(20) days after the date of a Director’s decision under

this section that no proceeding will be instituted or

other action taken in whole or in part, the Commis-

sion may on its own motion review that decision, in

whole or in part, to determine if the Director has

abused his discretion.

The quoted regulation allows plaintiffs to ask NRC for

all the relief sought in this court. The phrase “or for such

other action as may be proper” gives latitude to challenge

a variety of activities related to the construction and pos-

sible use of Epicor II and future deconstamination equip-

ment. The acts complained of in Count II will be reviewed

by NRC if plaintiffs request that NRC determine whether

or not the operation of Epicor II should be subject to a

licensing amendment. Should NRC determine that a licens-

ing amendment is appropriate, then the Commission’s en-

vironmental regulations will have to be followed. See 10

C.F.R. §§ 51.5 through 51.26.

If plaintiffs desire a more comprehensive environmental

analysis than that which NRC has agreed to provide, the

breadth of the regulation would permit a request for an

integrated environmental impact statement on the entire

decontamination process. Thus, Count I, if not moot, is

subject to the exhaustion requirement.

Count ITI, which is tennous at best because it is based on

a possible future action, is also subject to the exhaustion

principle. Plaintiffs may request a proceeding to determine

whether there is a danger that the decontamination process

will result in the discharge of high level radioactive pollu-

tants into the river. Similarly, Count IV is subject to ad-

ministrative review before it may be considered by the

37a

court. It is within the Commission’s expertise to determine

what health hazards, if any, are posed by the recovery

activities at TMI.

If NRC refuses to institute proceedings requested under

10 (.F.R. § 2.206, or, if plaintiffs elect to challenge a final

order resulting from proceedings held by NRC, plaintiffs

have a right of appeal. Congress designated the forum of

review of certain final orders of NRC when it enacted 28

U.S.C. § 2342, which provides:

The court of appeals has exclusive jurisdiction to

enjoin, set aside, suspend (in whole or in part), or to

determine the validity of—

(4) all final orders of the Atomic Energy Com-

mission made reviewable by section 2239 of Title

SB ci citi

Section 2239 of Title 42 of the United States Code makes

reviewable:

[A]ny proceeding under this chapter for the granting,

suspending, revoking, or amending of any license or

construction permit or application to transfer control,

and... any proceeding for the issuance or modifica-

tion of rules and regulations dealing with the activities

of licensees ....

The jurisdiction vested by the two quoted sections of

Title 42 has allowed the courts of appeals to review a

variety of NRC decisions which are relevant to the relief

sought by plaintiffs. A determination by NRC that it would

not institute a proceeding, sought under 10 C.F.R. § 2.206,

to “modify, suspend or revoke” a special nuclear material

*The Atomic Energy Commission was abolished in 1974. Title

42 U.S.C. § 5841(f) transferred to NRC ‘‘all licensing and re-

lated regulatory functions of the Atomic Energy Commission.’’

38a

license was considered by the Seventh Circuit Court of

Appeals. People of the State of Illinois v. Nuclear Regu-

latory Commission, 591 F.2d 12 (7th Cir. 1979).

In another case NRC decided that a particular project

did not fall within its licensing authority. That final order

was reviewed by the Court of Appeals for the District of

Columbia. The court stated that it was reviewing NRC’s

determination on licensing jurisdiction directly, rather than

reviewing a district court’s prior ruling on the same issue,

because the district court lacked jurisdiction to review the

question of NRC’s licensing jurisdiction. Natural Resources

Defense Council, Inc. v. United States Nuclear Regulatory

Commission, 196 U.S.App.D.C. 354, 606 F.2d 1261 (D.C.

Cir. 1979). Thus, if plaintiffs request that NRC either

assert licensing jurisdiction over the recovery activities,

or that it change the present status of the license for

TMI-2, a decision on those requests would be reviewable

in the court of appeals. Similarly, if NRC decides that the

operation of Epicor II should be subject to a licensing

change, the court of appeals could review the sufficiency

of NRC’s consideration of environmental factors during

the licensing proceedings. Vermont Yankee Nuclear Power

Corp. v. NRDC, 435 U.S. 519, 555, 98 S.Ct. 1197, 55 L.Ed.2d

460 (1978); Coalition for Safe Nuclear Power v. United

States Atomic Energy Commission, 150 U.S.App.D.C. 118,

463 F.2d 954 (D.C.Cir. 1972).

It is a well established principle of law that a plaintiff

must seek redress of grievances with the appropriate ad-

ministrative agency, in this case NRC, prior to asking the

court to take action on matters within the jurisdiction of an

agency. Coalition for Safe Nuclear Power, supra. This

requirement has developed to prevent premature interfer-

ence with agency processes, and to allow the agency the

opportunity to review its own decisions. Weinberger v.

Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522

(1975).

39a

Plaintiffs acknowledge the doctrine of exhaustion of ad-

ministrative remedies, but contend that this case is sub-

ject to certain exceptions to that doctrine. Citing City

Bank Farmers Trust Company v. Schnader, 291 U.S. 24,

54 §.Ct. 259, 78 L.Ed. 628 (1934), for the principle that

exhaustion is not required when seeking an administrative

remedy would be futile, plaintiffs claim that recourse to

NRC would be futile. The present case is not factually

similar to City Bank. In City Bank the executor of an

estate was challenging an inheritance tax assessed by the

Commonwealth of Pennsylvania. Plaintiff had been in di-

rect contact with appropriate authorities who had orally

advised him that his claim of nontaxability would be denied.

The court recognized the futility of forcing the plaintiff to

await confirmation of that denial when he would simply

have to file suit again. In the present case plaintiffs do

not allege that they have had any communications with

NRC, in spite of the fact that the NRC regulations recog-

nize and provide for the right of concerned citizens to

question NRC decisions. They argue that the fact that

NRC did not require the reactor owners to apply for a

construction permit before the building of Epicor II dem-

onstrates the futility of approaching the agency for relief.

The situation created by the accident at TMI is highly

complex. NRC may well have been acting in accord with

the totality of its regulatory obligation when it allowed

the construction of Epicor JI to proceed. That decision

does not indicate the futility of the definite nature which

is necessary to allow a court to bypass the prerequisite

of exhaustion of administrative remedies. It would be an

unjustified interference with NRC authority for this court

to intervene in the present instance, when the agency itself

may decide to grant plaintiffs the relief they seek.

The second theory which plaintiffs advance to skirt the

exhaustion rule is that NRC has violated clear, nondiscre-

tionary legal duties. First they charge that, because NRC

40a

has not issued an environmental impact statement regard-

ing the proposed recovery operations at TMI-2, NRC has

disregarded the mandates of the National Environmental

Policy Act."

Plaintiffs rely on Izaak Walton League of American v.

Schlesinger, 337 F.Supp. 287 (D.D.C.1971). In Izaak Wal-

ton the United States District Court for the District of

Columbia did find that it had jurisdiction to consider a

claim that the Atomic Energy Commission (AEC) had

violated a clear, nondiscretionary statutory mandate under

NEPA. The AEC had revised its regulations to permit the

issuance of an interim operating license for a nuclear power

station prior to the preparation of a NEPA statement.‘

*The issue of whether a district court may exercise concurrent

jurisdiction because a violation of NEPA is alleged was decided

in City of Rochester v. Bond, 195 U.S.App.D.C, 345, 603 F.2d 927

(D.C.Cir. 1979). The court rejected the thesis that a district court

could exercise concurrent jurisdiction because the complaint al-

leged a NEPA violation. The following reasoning is equally ap-

plicable to the present case :

The rationale for statutory review is that coherence and

economy are best served if all suits pertaining to designated

agency decisions are segregated in particular courts. The

choice of forum is, as we have said, for Congress and we

cannot imagine that Congress intended the exclusivity vel non

of statutory review to depend on the substantive infirmity

alleged. The policy behind having a special review procedure

in the first place similarly disfavors bifurcating jurisdiction

over various substantive grounds between district court and

the court of appeals. The likelihood of duplication and incon-

sistency would exist in either case. [At p. 354, 603 F.2d at

p. 936].

*Under current NRC regulations a NEPA statement is pub-

lished after an environmental evaluation. It may take the form of

a full scale environmental impact statement, or may be what is

termed a negative declaration. i.e. a statement that, because the

contemplated action will have no significant effect on the environ-

ment, no environmental impact statement will be prepared. Either

form of NEPA statement is available to the public. See 10 C.F.R.

§§ 51.1-51.52.

4la

No interim license had been issued, but the court held that

finality was established by the regulations themselves

which did not require an evaluation of environmental fac-

tors before interim licensing. In that case the court was not

called upon to make a judgment on the sufficiency of the

consideration of environmental factors, but rather had to

decide whether the AEC regulations were in violation of

NEPA.’

NRO’s supervision of the recovery operations at TMI-2

presents a different set of facts. NRC has prepared an

environmental assessment concerning the processing of the

intermediate level waste water by Epicor II. It is under

court order to do an environmental assessment on the

other phases of the recovery. Thus NRC is complying with

NEPA because it is evaluating the environmental conse-

quenses of its actions. The sufficiency of that compliance is

a separate issue. In Izaak Walton AEC had made a deci-

sion, via its regulations, not to do this basic evaluation.

That was the violation of a clear, nondiscretionary duty

which vested the district court with jurisdiction. Here there

is no comparable, clear nondiscretionary duty.

Plaintiffs further contend that by allowing the construc-

tion of Epicor II without requiring the reactor owners to

apply for a construction permit NRC has violated another

clear, nondiscretionary duty. They claim that, if NRC de-

cides to allow the processing of the contaminated water

‘In Natural Resources Defense Council, Inc. v. United States

Nuclear Regulatory Commission, 196 U.S.App.D.C. 354, 606 F.2d

1261 (D.C.Cir. 1979), the court of appeals recognized the jurisdic-

tion of a district court to consider the sufficiency of a NEPA

evaluation made by the Energy Research and Development Ad-

ministration. However, as the court noted in footnote thirteen, the

Energy Research and Development Administration is not subject

to a special statutory review proceeding as is NRC. Thus, Congress

had not divested the district court of jurisdiction over ERDA pro-

ceedings as it has in the case of NRC.

42a

prior to compelling the owners to obtain an amendment to

their operating license, an additional violation of a clear,

nondiscretionary duty will occur. The court does not agree

with those propositions. Not all construction, nor every

alteration at a nuclear power plant requires a construction

permit. Neither is it obvious, under the existing statute,

that an operating license amendment must be obtained be-

fore Epicor II may process the waste water. The technical

expertise needed to evaluate whether or not the recovery

activities are subject to permits or licensing amendments

exists within NRC.° That is the agency designated by Con-

gress to regulate the nuclear industry, the district court

is not. Congress has provided that NRC’s licensing deci-

sions may be reviewed by the courts, but it has vested that

power in the court of appeals. Certainly, given the tech-

nical nature of the factors NRC must weigh in making its

licensing decisions, this court is not in a position to declare

that NRC has violated a clear, nondiscretionary duty.

The exceptions to the exhaustion doctrine do not apply

to the facts of this case. The relief plaintiffs seek must be

requested from NRC. Only after NRC has issued a final

order with respect to the request will it be ripe for con-

sideration by the courts. Because plaintiffs have failed to

exhaust their administrative remedies, the complaint is

dismissed for lack of subject matter jurisdiction, but with-

out prejudice to plaintiffs’ right of recourse to the Nuclear

Regulatory Commission.

°*NRC must decide whether an alteration is involved constitut-

ing a change from the technical specifications previously incor-

porated in the license (10 U.F.R. § 50.54(n)); whether an ‘‘un-

reviewed safety question,’’ as defined in NRC regulations, is in-

volved (10 C.F.R. § 50.59(a)); whether a ‘significant hazards

consideration’’ is involved (10 C.F.R. § 50.91); or whether a

“‘material alteration of a licensed facility’ is involved (10 C.F.R.

§ 50.91).

43a

APPENDIX D

SUPREME COURT OF THE UNITED STATES

No. A-119

GeneraL Pustic UTiitigs, et Au., Petitioners,

v.

SUSQUEHANNA VALLEY ALLIANCE, ET AL.

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Uron Consiveration of the application of counsel for

petitioner(s),

Ir Is Onverep that the time for filing a petition for writ

of certiorari in the above-entitled cause be, and the same

is hereby, extended to and including September 9, 1980.

/3/ Witu1amM J. Brennan, JR.

Associate Justice of the

Supreme Court of the

United States

Dated this 4th day of August, 1980.

44a

APPENDIX E

STATEMENT

The staff is directed to prepare an Environmental Assess-

ment regarding proposals to decontaminate and dispose of

radioactively contaminated waste water from the Three

Mile Island facility. The Assessment will be divided into

several portions. The first portion of the Assessment will

deal with the proposed decontamination of intermediate-

level waste water using the MPICOR-II system at TMI.

The Assessment should include discussion of potential risks

to the public health and safety, including occupational ex-

posures and the risk of accidental releases, and a discussion

of alternatives to the EPICOR-II system. Pending com-

pletion of this portion of the Assessment and opportunity

for public comment, the staff should direct the licensee not

to operate the EPICOR-II system. Testing of the EPICOR-

II system without using contaminated waste may proceed.

Except for discharge of waste water decontaminated by

the existing KPICOR-I decontamination system’ and dis-

charge of industrial waste water’ as consistent with the

facility operating licenses, no discharge of waste water

shall be permitted until completion of a second portion of

the Assessment dealing with any such proposed discharges.

This portion shall include a discussion of alternatives to

discharge into the Susquehanna River. The decontamina-

tion and disposal of high-level waste water will be the

subject of a subsequent Assessment. However, the Director

1 Primarily pre-accident waste water from Unit 1 which has

been partially contaminated by water from Unit 2, with an activity

level of less than 1 microcurie per cc. prior to treatment and with

an activity level approximately 10°’ microcuries per cc. in the

discharge canal after treatment.

2 Waste water slightly contaminated (approximately 10°’ micro-

curies per ce.) due to leakage from secondary plant service sup-

port systems. The discharge of this industrial waste water is

necessary to maintain TMI Unit 2 in a safe condition.

45a

of the Office of Nuclear Reactor Regulation may authorize

measures deemed necessary to cope with an emergency. If

the Director of the Office of Nuclear Reactor Regulation

believes the public health and safety requires the use of

the EPICOR-II system, prior to completion of the first

portion of the Assessment, he shall so report to the Com-

mission and the Commission may then permit use of the

system. The staff should inform the Commission promptly

regarding its estimated schedule for completing each por-

tion of the Assessment and for completing the entire

Assessment.

For the Commission

/3/ Samuegu J. Cuiixk

Secretary of the Commission

Dated at Washington, DC, this 25th day of May 1979,

46a

APPENDIX F

UNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION

Docket No. 50-320

CoMMISSIONERS :

Joseph M. Hendrie, Chairman, Victor Gilinsky, Richard

T. Kennedy, Peter A. Bradford, John F. Ahearne

In the Matter of

Mevropouitan Epison Company, et al.

(Three Mile Island Nuclear Station, Unit 2)

MEMORANDUM AND ORDER

Because of the March 28, 1979 accident at the Three Mile

Island Unit 2 nuclear power plant (TMI-2), substantial

amounts of radioactively contaminated waste water have

been collected in tanks at the facility. As the initial step in

a program to deal with this accumulation, the Commission’s

technical staff has recommended that Metropolitan Edison

Company, the licensee for Three Mile Island, be permitted

to operate an HPICOR-II filtration and ion exchange de-

contamination system to decontaminate intermediate-level

radioactive waste water now held in tanks in the TMI-2

auxiliary and fuel handling building. This recommendation

is accompanied by the staff’s environmental assessment of

the impact of using EPICOR-II and an analysis of com-

ments on the assessment by the public. The staff has con-

cluded, based on this assessment and analysis, that the

proposed use of EPICOR-II will not significantly affect

the environment and therefore that no environmental im-

pact statement need be prepared prior to authorizing the

licensee to operate EPICOR-II. The Commission is now

called upon to decide whether the requirements of the Na-

tional Environmental Policy Act (NEPA) have been met

47a

with regard to the proposed use of EPICOR-II and, if so,

whether the licensee should be directed to operate the

sy 3tom.'

BACKGROUND

There are three major volumes of radioactively con-

taminated waste water accumulated at Three Mile Island

Unit 2 (TMI-2) as a result of the accident in March 28,

1979. These include approximately 630,000 gallons con-

tained in the lower levels of the reactor containment build-

ing, 85,000 gallons in the reactor coolant system in use to

remove decay heat from the reactor core, and about 387,000

gallons stored in tanks in the auxiliary building. The waste

water stored in the auxiliary building has a total radio-

activity concentration less than 40 microcuries/milliliter

and is referred to as intermediate-level waste water. The

radioactivity concentrations of waste water in the reactor

building and in the primary coolant systems have been

measured at greater than 100 »Ci/ml for some isotopes.

This waste water is referred to as high-level waste water.

Principally because of leakage from the primary reactor

coolant system, the volume of water in the reactor contain-

ment building is increasing in volume by about 430 gallons

per day, equivalent to a level increase of about 2 inches

per month. The present height is about 714, feet above the

basement floor in the containment building. Since no paths

of leakage to the outside have been identified, decontami-

nation of this water is not at present an urgent problem.

The situation is different with respect to the intermediate-

level waste water now stored in the auxiliary.building. The

* This decision does not address the subject of disposal of the

decontaminated water. Pursuant to the Commission’s Statement

of May 25, 1979, discharge of TMI waste water is not permitted,

with certain exceptions set out in the Statement, pending com-

pletion of an environmental assessment dealing with such dis-

charges.

48a

inventory of this water is increasing at the rate of about

800-1000 gallons per day.? Remaining capacity in the auxil-

iary building tanks as of the end of September 1979 was

about 29,000 gallons. Thus there is a pressing need to deal

with the intermediate-level waste water. In addition to the

problem of inadequate storage capacity, the retention of

contaminated water in the auxiliary building contributes

to the occupational exposure of workers at the TMI site.

The continued safe shutdown of TMI-2 depends upon the

use of equipment located in the auxiliary building. Approxi-

mately 50 workers per day are currently admitted to the

auxiliary building to perform necessary decontamination,

operations, and construction activities. Occupational expo-

sure to these workers as a group, primarily as a result of

radiation from the stored water, averages about 15 man-rem

per month.

The licensee has developed a procedure to decontaminate

the intermediate-level waste water using the EPICOR-II

filtration and ion exchange system constructed at TMI-2

following the March 28, 1979 accident. Decontamination

would be an effective response to the problems identified

above, since the processed water would not be a source of

significant occupational exposure and could be readily

stored in unshielded tanks outside the auxiliary building.

Successful operation of EPICOR-II will serve to transfer

the significant radioactive contaminants from a mobile form

(suspension in water) to a fixed form (held in filter and

ion exchange resin materials).

In a Statement dated May 25, 1979 the Commission

directed its technical staff, pursuant to NEPA, to prepare

*The dominant source of this increase is leakage from the com-

ponent evaporative cooling system, the demineralized water sys-

tem, and the reactor building cooling system, and from recircula-

tion of water in the tanks prior to sampling. Most of this leakage

is non-contaminated water which becomes contaminated while

passing through auxiliary building floor drains and sumps pro-

vided to collect the leakage.

49a

an environmental assessment of the use of EPICOR-IL

Pursuant to this Statement, the licensee was not permitted

to operate EPICOR-II pending completion of the assess-

ment and opportunity for public comment, except for test-

ing with uncontaminated water. The staff’s assessment,

“Use of EPICOR-II at Three Mile Island, Unit 2,” NUREG-

0591, was issued for public comment on August 20, 1979.

Sec 44 Fed. Reg. 48829. The assessment concluded that the

proposed use of EPICOR-II would not significantly affect

the quality of the environment and that accordingly NEPA

does not require preparation of an impact statement prior

to permitting EPICOR-II to operate.

Some 40 comments were received. In written analyses of

the comments and oral discussion at open Commission

meetings on October 4 and October 10, 1979, the staff

responded to these comments and reaffirmed its conclusion

that the environmental effects of operating EPICOR-II as

proposed would be insignificant. See revised NUREG-0591,

dated October 3, 1979. The public comments, the documents

submitted to the Commission by the staff, and transcripts

of the October 4 and October 10, 1979 meetings are included

in the administrative record and form the basis for the

Commission’s decision on this matter.

IMPACT OF EPICOR-II

Based on Commission review of the facts and analysis

in the staff’s environmental assessment and written and

oral discussion of the comments, the Commission has deter-

mined that the proposed operation of EPICOR-II will not

have a significant effect on the environment. Pursuant to

10 CFR 51.7 and 51.50(d) the staff is directed to issue a

* With respect to the transcripts of the October 4 and October

10, 1979 meetings, the Commission has waived its usual rule that

statements at an open meeting are not part of the record of deci-

sion of the matters discussed therein. 10 CFR 9.103.

50a

negative declaration stating that an environmental impact

statement for the proposed action will not be prepared.

In reaching this conclusion the Commission has taken

note of comments which argue that the Commission has

violated NEPA by considering the impact of EPICOR-II

separately and apart from the overall impact of a complete

program for decontamination of TMI-2. The Commission

does not believe this “illegal segmentation’ argument is

well-founded in this case. In meeting NEPA requirements

an agency may focus on the impact of a single action, even

when it is arguably a segment of a larger program, when

the action in question has independent utility. See e.g.,

Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir. 1973);

Friends of the Earth v. Coleman, 513 F.2d 295 (9th Cir.

1975). The Commission finds that use of EPICOR-II meets

this test.‘

The independent utility of EPICOR-II is emphasized by

the fact that decontamination of the intermediate-level

water appears by a considerable margin to be the best

available response to the impending accumulation of inter-

mediate-level waste water in excess of adequately shielded

storage capacity. The alternative to decontamination would

be to find additional storage facilities, but problems with

*In this regard, by letter of October 10, 1979, the Council on

Environmental Quality asked to meet with the Commission to dis-

cuss its concerns about prospective radioactive cleanup operations

at the Three Mile Island Unit 2 reactor. Our respective General

Counsels and members of their staffs met on October 11 to dis-

cuss these matters. In an exchange of letters with the Commission

dated October 15 and October 16 and based on the assurances made

in the NRC letter, the Council found that the prompt decontamina-

tion of the intermediate-level waste waier through the EPICOR-II

system is an operation necessary to control the immediate impacts

of an emergency situation (40 CFR § 1506.11). In so doing, how-

ever, the Council did not reach those questions concerning the

legality of the Commission’s actions thus far under NEPA. These

letters are part of the administrative record on which the Com-

mission has reached its decision.

Sla

this alternative are severe. Construction of new tanks with

the necessary shielding would require several months, at

least, and could not be accomplished before the auxiliary

building tankage capacity is exceeded. Other than decon-

tamination, there are at present only two timely alterna-

tives available to provide suitably shielded storage space

for the intermediate-level waste water, once the auxiliary

building tanks are filled. One alternative would be to trans-

fer the water to tanks at Unit 1. This action would sig-

nificantly raise the contamination level of piping and tank-

age in Unit 1 and extend the scope of the problem of occu-

pational exposure. The other, even less desirable, alterna-

tive would be to transfer the intermediate-level water to the

TMI-2 reactor building, mixing it with the higher-radiation-

level water presently in the containment, raising the height

of that water and in effect increasing by almost 50% the

amount of water which must subsequently be decontami-

nated by systems yet to be developed to handle high-level

waste water. Both of these alternatives in effect would en-

large rather than reduce the spread of radioactive contami-

nation and would involve potentially significant safety ques-

tions and environmental impacts.

The Commission has thus concluded that prompt decon-

tamination of the intermediate-level water by EPICOR-II

is the best response to the situation. The use of this system

will immobilize most of the radioactivity presently dispersed

in the intermediate-level water, which requires large stor-

age volumes and involves at least some possibility of leak-

age, by transferring this radioactivity to the compact, more

easily stored EPICOR-II resins, thereby reducing the po-.

tential hazard to workers and the public of an excessive

accumulation of intermediate-level waste water. Decontami-

nated water which has been cycled through EPICOR-II can

be readily stored in convention, unshielded tanks while dis-

posal options are considered without any pressing time

constraint. These benefits 0. EPICOR-II operation, to-

gether with the reduction of occupational exposure to work-

52a

ers in the auxiliary building, establish the independent util-

ity of the system,’ thereby confirming that pursuant to

NEPA environmental aspects of EPICOR-II may be evalu-

ated separately from an overall programmatic analysis of

cleanup at TMI-2.°

Another objection to the scope of the environmental

assessment made in some of the comments is that the en-

vironmental assessment did not consider psychological im-

pacts. Without deciding whether NEPA requires the con-

sideration of such impacts, the Commission notes that use

of EPICOR-II would provide no objective reason for con-

cern and there is no indication in the comments received

that the prospect of EPICOR-II operation, as distinct from

release of water, has in fact occasioned public alarm or fear.

Several of the commenters did indicate great concern with

regard to possible discharge of processed waste water into

the Susquehanna, but such disposal activities are separate

from EPICOR-II operation and lie outside the scope of the

assessment. The Commission stresses again that decontami-

nation by EPICOR-II will not of itself result in any waste

° Another criterion for permitting segmentation is that the pro-

posed action will not foreclose subsequent alternatives. Decon-

tamination of the water in the auxiliary building will not fore-

close any alternatives with regard to subsequent processing or

disposal options. Rather, such decontamination may reasonably

be viewed as a prerequisite to a variety of alternative actions

which may subsequently prove necessary and desirable in cleaning

up TMI-2.

* Whether a programmatic impact statement for the overall

cleanup of TMI-2 may eventually be required is an issue the

Commission need not address at the moment. It seems clear that

no such statement is required at present because TMI-2 cleanup

is a project in contemplation and is not yet a formal agency pro-

posal. The Supreme Court has stated that an agency need not

have a final impact statement ready until ‘‘the time at which it

makes a recommendation or report on a proposal for federal

action.’’ Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976) (em-

phasis in the original).

53a

water discharges, and the question whether discharges

should later be approved is in no way prejudged by permit-

ting use of EPICOR-II.

With regard to the many technical issues concerning

EPICOR-II that were raised by the substantive comments,

the Commission, as previously noted, has found the staff’s

responses adequate. Many of the doubts about EPICOR-II

expressed by commenters were not relevant to the question

at issue in the environmental assessment, which is whether

operating EPICOR-II will have a significant environmental

impact. Some comments, for example, questioned whether

EPICOR-II will in fact achieve the decontamination levels

expected by the staff. In the Commission’s judgment, we

expect that EPICOR-IT will be able to remove at least 99%

of the radioactive contamination from the intermediate-level

waste water the system will process. But that aside, the

details of the system’s performance do not bear on the

conclusion that EPICOR-II does not require an environ-

mental impact statement to justify its use. For NEPA

purposes, once it is determined that the proposed action will

have no significant impact, no impact statement is required.

As noted, the Commission believes the staf*’s performance

expectations for EPICOR-II are reasonable, but even if

these expectations are not met, additional decontamination

by recycling through EPICOR-II or, if necessary, by other

methods would in no way be ‘'oreclosed.’

One aspect of the proposed EPICOR-II operation re-

quires further attention here. It is the Commission’s view

"An alternative decontamination technology frequently men-

tioned in the comments is the evaporation method. Because an

evaporation system is not presently available for use at TMI-2,

this technology is not a realistic alternative in the present situa-

tion, in view of the need for prompt action. The Commission notes

that the evaporator method has significant drawbacks, notably the

fact that the highly radioactive sludge remaining after evapora-

tion is in liquid form and may well be more difficult to dispose of

than the resins and filters of the EPICOR-II system.

F<

54a

that solidification of the EPICOR-II radioactive waste prod-

ucts (filter and ion-exchange resin materials) prior to off-

site shipment will contribute to improved safety during

transportation and to the ease of final disposal. Accordingly,

the Commission concludes that the licensee should be di-

rected to construct expeditiously the necessary facilities for

solidification and to store EPICOR-II wastes at TMI-2 until

the resins have been properly solidified.* There should be no

shipment of non-solidified wastes offsite unless necessary to

allow waste water decontamination to continue or unless

otherwise required to protect public health and safety.

ATOMIC ENERGY ACT REQUIREMENTS

We now move to the question whether the Atomic Energy

Act authorizes the Commission to direct prompt operation

of EPICOR-II.® For the reasons stated below, we conclude

that it does.

*A staff memorandum to the Commission, dated October 12,

1979 included in the record of this proceeding, indicates that un-

avoidable occupational exposure associated with the solidification

process can be kept to acceptable levels. Although no specific

facility designs have been developed for the solidification operation

at TMI-2, the staff reviewed three topical reports on systems of

this type which show that routine maintenance and operation

activities are expected to result in an occupational dose of less

than 10 man-rem per year. Solidification of resins from EPICOR-

II, which has not been specifically designed to accommodate solidi-

fication, will likely involve design features not previously analyzed

by the staff. Further, resins from EPICOR-II will be more radio-

active than the average from an operating plant. However, the

staff judgment was that solidification of EPICOR-II resing de-

veloped from decontamination of the auxiliary building water

would result in occupational exposure levels similar to those of

systems previously reviewed if no unusual problems were encoun-

tered, and that a best estimate upperbound for the operation would

be 25 man-rem.

*°One of the commenters has argued that construction of

EPICOR-II without a construction permit violated the Atomic

Energy Act. We do not think that construction of EPICOR-II,

55a

Our earlier discussion about the accumulation of contami-

nated water at TMI Unit 2 indicates that public health and

safety requires that some action be taken to deal with the

intermediate-level waste water, and that the timely alter-

natives to EPICOR-II operation all present health and

safety problems. Although no action which involves the

handling of radioactive materials can be found inherently

free of all risk, the evaluation of EPICOR-II indicates that

no significant health and safety (or environmental) impact

will likely result from the proposed operation. We are thus

confronted with a situation where some action must be

taken to reduce health and safety risks, and an appropriate

action to reduce those risks has been identified that itself

entails no significant health and safety hazards. Under sec-

tions 161b. and i. of the Atomic Energy Act the Commis-

sion is empowered to issue such orders affecting activities

of licensees as it deems necessary or desirable to protect

health and to minimize danger to life or property. Further,

every facility license, including the operating license for

TMI-2, is expressly subject to further Commission orders.

10 CFR § 50.54(h). An order to the licensee here to promptly

begin the process of decontaminating the intermediate-level

waste water by operating EPICOR-II would be entirely

consistent with the purpose of the Act and regulations.

Some of the public commenters have argued in litigation

that the Commission cannot take such action without first

holding an adjudicatory hearing under Section 189a. of the

a minor commitment of resources in a $1 billion facility and un-

related to operation of the reactor itself, is a material alteration

of a utilization facility within the meaning of our regulations and

therefore requiring a construction permit. 10 CFR 50.91. See,

Portland General Electric Co. (Trojan Nuclear Plant), LBP-77-

70, 6 NRC 1179, 1183 (1977). Beyond this, the NRC staff has

monitored the design and construction of EPICOR-II from the

beginning, so that there are no serious questions about whether

the facility is flawed in some manner that might have been de-

tected if a formal permit proceeding had been held.

56a

Atomic Energy Act to amend the TMI Unit 2 operating

license. We find section 189a. inapplicable to the type of

order contemplated here. Section 189a. is quite careful in

specifying the types of proceedings to which it applies,

even going so far as to cite to specific sections of the Act.

A proceeding for a Commission order under sections 161b.

and i. is not one of the proceedings listed in section 189a.

Thus, the plain language of the statute supports the Com-

mission’s exercise of authority here. Of course it is possible

to argue here that the order alters the licensee’s obligation

to the Commission, as such has the effect of amending the

license, and consequently that a Section 189a. proceeding for

such an amendment should be held. We think, however, that

the entire thrust of the Atomic Energy Act indicates that

Congress intended the Commission to be able to act with

dispatch when in its judgment the public health and safety

calls for prompt action. Even if for purposes of argument

it is assumed that the order constitutes a form of license

amendment, the result would be a conflict between the au-

thorization to issue immediate orders necessary to protect

health and safety in sections 161b. and i. and the hearing

requirement in section 189a. We have no difficulty resolving

that conflict in favor of protection of the public health and

safety especially where, as here, there has already been a

fair opportunity for public participation in the form of

written comments.

While we conclude that an order for operation of

EPICOR-II is not subject to section 189a. of the Act, the

licensee itself has due process hearing rights under the

Constitution quite apart from section 189a. The law is clear

that, given the public health and safety need for prompt

EPICOR-II operation, any due process hearing rights can

be satisfied by an offer of a prompt hearing after the order

for EPICOR-II operation becomes effective. E.g., Ewing v.

Mytinger & Casselberry, 339 U.S. 594 (1950); Bowles v.

Willingbaum, 321 U.S. 503 (1944). And, given that the

57a

licensee is free to request a hearing for purposes of chal-

lenging the order, we believe that sound administrative

policy in these circumstances dictates that other interested

persons be given a similar right. Accordingly, we provide

below that the licensee and any other person whose interest

may be affected may request a hearing with a view toward

lifting or modifying the order, but that the order shall re-

main effective pending decision in any hearing that may be

requested.

One final matter warrants our attention. Operation of

EPICOR-IT will add several effluent discharge paths to

those presently listed in the TMI-2 operating license. As

discussed in the staff’s environmental evaluation, radio-

nuclide discharges through these additional paths will have

no significant impact on the environment. Further, the Com-

mission’s regulations in 10 CFR Part 50, Appendix A, Cri-

terion (GDC 64), require that the new discharge paths be

monitored. It has been the staff’s practice in developing

operating license technical specifications to include in the

specifications a listing of discharge paths that require moni-

toring under GDC 64.

It is not necessary to amend the technical specifications

to assure that monitoring will be conducted, given the clear

requirement of GDC 64 and the provision of 10 CFR § 50.54

(h) that all facility licenses are conditioned on compliance

with all applicable Commission regulations. Nevertheless,

we believe that the Commission’s inspection and enforce-

ment program will be simplified if the requirements for

discharge path monitoring are spelled out in a single legal

document—the operating license—that can be readily ref-

erenced by the licensee and Commission inspectors. For the

same reason there is merit in including in the operating

license the obligation to operate EPICOR-II and the condi-

tions associated with solidification and shipment of the

spent resins, Accordingly, we are proposing to amend the

T'MI-2 operating license to include these provisions. In light

58a

of our disposition in this regard, and the reasons already

discussed as to our authority under Section 161 of the

Atomic Energy Act, we need not and do not reach the ques-

tion whether such a license amendment is required here.

Under section 18a. of the Act, the licensee and other

interested persons may request a hearing on this proposed

amendment. Given the similarity of issues, hearings re-

quested on this proposed amendment and on the order for

EPICOR-II operation will be consolidated.

ORDER

For the reasons stated above, the Commission orders as

follows:

1, The licensee shall promptly begin the process of decon-

taminating the intermediate-level waste water from TMI-2

by operating EPICOR-II. Prior to operation, the licensee

shall consult the Director of NRR for approval of the final

operating procedures and design and construction details.

In order to reduce the inherent risk from the contaminated

water most expeditiously and prudently, the licensee should

to the extent possible process all the water once through the

EPICOR-II system.

2. The licensee shall maintain suitable tankage at TMI-1

that could be used to store waste water from TMI-2 at an

appropriate state of readiness, should additional storage

capacity become necessary.

3. The licensee shall not ship spent resins offsite unless

they have been solidified, and only then with the prior ap-

proval of the Director of NRR, provided however, that the

licensee may ship non-solidified but dewatered spent resins

offsite if it determines, and the Director of NRR concurs,

that such shipment is required to assure continued operation

of EPICOR-II or otherwise required to protect public

health and safety. The licensee shall expeditiously construct

59a

a facility for solidification of the spent resins and shall

use such facilities for resin solidification upon receiving

the Director of NRR’s concurrence with the design and

operating procedures,

4. This Order, except as provided by the Commission’s

Statement of May 25, 1979, does not authorize discharge into

the environment of any of the processed or unprocessed

waste water, or processing of any waste water other than

the intermediate-level waste water. In carrying out the ac-

tions directed by paragraphs 1, 2, and 3 of this Order the

licensee shall be subject to all applicable Commission regu-

lations.

5. The Director of NRR has been instructed promptly to

prepare and issue an order for the modification of the TMI-

2 operating license to (a) add EPICOR-II discharge paths

to those presently listed in the technical specifications as

requiring monitoring under GDC 64, and (b) include the

provisions of paragraphs 1, 2, and 3 of this Order. The order

shall state that within 20 days of the date of this Order the

licensee and any other person whose interest may be af-

fected may request a hearing on the proposed amendment

pursuant to 10 CFR § 2.714 to be held prior to the amend-

ment of the license, i.e., not prior to operation of EPICOR-

II but rather prior to the adoption of the formal amend-

ment.

6. Within 20 days from today, the licensee may file an

answer to paragraphs 1, 2, and 3 of this Order, and the

licensee and any other person whose interest may be

affected may request a hearing pursuant to 10 CFR § 2.714

for the purpose of challenging all or any part of paragraphs

1, 2, and 3 of this Order. In any hearing that may be re-

quested, the issues will be those within the scope of whether

(a) paragraphs i, 2, and 3 of this Order are necessary and

sufficient to protect health and safety or to minimize danger

to life or property, and (b) actions directed under para-

graphs 1, 2, and 3 would significantly affect the quality of

60a

the human environment. Any hearing that may be requested

shall be consolidated with any hearing that may be re-

quested pursuant to the order to be published under para-

graph 5. The Commission finds that the public health, safety,

and interest require that this Order become effective imme-

diately and shall remain effective notwithstanding the filing

of any requests for a hearing.

7. An Atomic Safety and Licensing Board, consisting of

Marshall E. Miller, Chairman, and Dr. Richard F. Cole and

Dr. Martin J. Steindler, is hereby appointed to rule on any

requests for a hearing under paragraph 6, or any requests

for a hearing that may be filed in response to the order to

be published under paragraph 5, and to preside over any

hearing that may be held upon those requests. In conduct-

ing any such hearing the Board shall bear in mind that the

process of operating EPICOR-II to decontaminate the in-

termediate-level waste water may take as little as two

months. Accordingly, the hearing shall be conducted as

expeditiously as possible, and the Board is authorized to

immediately stay the effectiveness of all or part of para-

graphs 1, 2, and 3 of this Order should it determine, based

upon affidavits or such other summary stay procedures it

deems appropriate, that this is required in order to pro-

tect public health and safety.

It is so Orperep.

For the Commission

/s8/ Samuew J. Cuiix

Secretary of the Commission

Dated at Washington, D.C., this 16ih day of October, 1979.