Appendix — United States Nuclear Regulatory Commission v. Sholly

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 80-1691

STEVEN SHOLLY and DONALD E. HOSSLER,

PETITIONERS

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION,

ET AL. and UNITED STATES OF AMERICA, RESPONDENTS

METROPOLITAN EDISON COMPANY, ET AL.,

INTERVENORS

No. 80-1783

PEOPLE AGAINST NUCLEAR ENERGY, PETITIONER

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION ;

JOHN AHEARNE, VICTOR GILINSKY, RICHARD T.

KENNEDY, JOSEPH M. HENDRIE, and PETER A.

BRADFORD, in Their Individual Capacities; and THE

UNITED STATES OF AMERICA, RESPONDENTS

METROPOLITAN EDISON COMP‘ NY, JERSEY POWER &

LIGHT COMPANY, and PENNSYLVANIA ELECTRIC

COMPANY, INTERVENORS

28

No. 80-1784

IN RE: PEOPLE AGAINST NUCLEAR ENERGY,

PETITIONER

Petitions for Review of Orders of the

United States Nuclear Regulatory Commission

and for Writ of Mandamus

Argued September 8, 1980

Decided November 19, 1980

Before WRIGHT, Chief Judge, and MIKVA and

EDWARDS, Circuit Judges.

Opinion per curiam.

PER CURIAM: In this case petitioners seek review of

two orders by the Nuclear Regulatory Commission

(NRC) permitting the Metropolitan Edison Company

to release radioactive gas into the atmosphere from

the Three Mile Island nuclear plant.’ The claim here

is that the orders issued by the NRC were made ef-

fective without affording petitioners their statutory

rights to notice and a hearing.’

1 Metropolitan Edison Co., Pennsylvania Electric Co., and

Jersey Central Power and Light Co. jointly hold the operating

license to the Three Mile Island nuclear plant. In this opinion

they are called collectively either “the licensee” or ““Metropoli-

tan Edison.”

2 The petitioners primarily rely on § 189(a) of the Atomic

Energy Act of 1954, 42 U.S.C. § 2289(a) (1976), as amended

8a

On June 26, 1980, this court denied petitioners’ re-

quest for emergency injunctive relief to block the

release of the radioactive gas. Now that the radio-

active gas from the nuclear plant has been fully

vented into the atmosphere, the petitioners seek only

declaratory relief from this court.

I. BACKGROUND

This case arises in the aftermath of a widely pub-

licized accident that occurred on March 28, 1979 at

“Unit 2” of the Three Mile Island nuclear plant. As

a result of the accident, dangerous concentrations of

radioactive gas collected in the reactor containment

building, inhibiting cleanup and maintenance work.

in 1957, Pub. L. No. 85-256, § 7, 71 Stat. 579 (1957), and in

1962, Pub. L. No. 87-615, § 2, 76 Stat. 409 (1962). Section

189(a) reads in pertinent part as follows:

In any proceeding, under this chapter, for the granting,

suspending, revoking, or amending of any license. . . the

Commission shall grant a hearing upon the request of any

person whose interest may be affected by the proceeding,

and shall admit any such person as a party to such pro-

ceeding. The Commission shall hold a hearing after thirty

days’ notice and publication once in the Federal Register,

on each application . . . for a construction permit for a

facility .... [T]he Commission may, in the absence of a

request therefor by any person whose interest may be af-

fected, issue . . . an amendment to an operating license

without a hearing, but upon thirty days’ notice and publi-

cation once in the Federal Register of its intent to do so.

The Commission may dispense with such thirty days’

notice and publication with respect to any application for

...an amendment to an operating license upon a determi-

nation by the Commission that the amendment involves no

significant hazards consideration.

4a

- Three months after the accident, the NRC issued

an “Order for Modification of License,” 44 Fed. Reg.

45,271 (1979), suspending Metropolitan Edison’s au-

thority to operate Unit 2 of the Three Mile Island

plant (TMI-2), and requiring it to “maintain the fa-

cility in a shutdown condition.” Id.* The NRC order

indicated that, in about thirty days, the Commission

would issue a “Safety Evaluation” addressing “the

imposition of new and/or revised Technical Specifi-

cations setting forth appropriate license conditions.”

Id.

In fact, the NRC issued no such evaluation. In-

stead, on November 21, 1979, the NRC issued a

“Statement of Policy and Notice of Intent to Pre-

vare a Programmatic Environmental Impact State-

ment,” 44 Fed. Reg. 67,738 (1979), which was to be

an “overall study of the decontamination and disposal

process.” Jd. The NRC Statement of Policy directed

the agency’s staff

to include in the programmatic environmental im-

pact statement on the decontamination and dis-

posal of TMI-2 wastes an overall description of

the planned activities and a schedule for their

completion along with a discussion of alterna-

tives considered and the rationale for choices

made.

Id.

On February 11, 1980, the NRC issued another or-

der, 45 Fed. Reg. 11,282 (1980), which stated that

®’ Much of the factual basis for the NRC’s actions is con-

tained in its report, the “Final Environmental Assessment for

Decontamination of the Three Mile Island Unit 2 Reactor

Building Atmosphere” (May 1980), which is reprinted in the

Intervenor-Resyondents’ Appendix (App.) 18.

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the facility’s operating license should be modi-

fied so as to: ... (3) Prohibit venting or purg-

ing or other treatment of the reactor building

atmosphere . . . until each of these activities has

been approved by the NRC, consistent with the

Commission’s Statement of Policy and Notice

of Intent to Prepare a Programmatic Environ-

mental Impact Statement.

Id.*

Six weeks later the NRC published a notice of the

“Availability of Environmental Assessment for De-

contamination of the Three Mile Island Unit 2 Re-

actor Building Atmosphere,” 45 Fed. Reg. 20,265

(1980). The notice stated that the Assessment “con-

siders five alternative methods for decontaminating

the reactor building atmosphere and recommends that

the building atmosphere be decontaminated by purg-

ing to the environment through the building’s hydro-

gen control system.” Jd.° The NRC staff concluded

in the Assessment that venting the gas into the at-

* The February 11, 1980 order specified that any interested

person or the licensee could request a hearing before March 21,

1980 on whether the proposed changes in the technical speci-

fication would be sufficient “to protect health and safety or to

minimize danger to life and property” or “whether the provi-

sions of this Order would significantly affect the quality of the

human environment.” Jd. at 11,283. The order also provided,

however, that a request for a hearing on part (8) of the order

would not stay the effectiveness of the order. Jd.

* The NRC desired to remove the radioactive gas from the

reactor building so that workers could begin to clean the build-

ing, maintain the equipment, and prepare to remove the dam-

aged fuel from the reactor core. Removing the radioactive gas

from the reactor containment building was only the first step

in an extensive cleanup.

6a

mosphere would “not constitute a significant environ-

mental impact and, accordingly, the staff does not

propose to prepare a separate Environmental Impact

Statement on this action.” Jd. at 20,265-66. Public

comments on the Assessment originally were due by

April 11, 1980, but the period was extended to May

16, 1980. 45 Fed. Reg. 30,760 (1980).

In May of 1980, the NRC issued the “Final En-

vironmental Assessment for Decontamination of the

Three Mile Island Unit 2 Reactor Building Atmos-

phere.” On June 12, 1980, the NRC issued without a

hearing two final orders, entitled “Order for Temp-

orary Modification of License” and ““Memorandum and

Order,” App. 119 and 125, respectively. The first

order modified the operating license* to permit the

licensee to release the radioactive gas from the re-

actor building at a faster rate than the existing speci-

fications allowed.’ The first order also expressly

stated that, because the NRC had found that the modi-

fication of the operating license involves “no sig-

nificant hazards consideration,” requests for a hear-

ing would not stay the implementation of the order.

App. 121-23.° The second order authorized release

* As part of its argument, the NRC contends that the second

order, permitting purging, was not a license amendment. How-

ever, the NRC admits that the first order amended the TMI-2

operating license.

7 Before the accident of March 28, 1979, the TMI-2 operating

license authorized periodic release of specified amounts of

radioactive gas into the atmosphere as a normal and necessary

part of plant operations.

® Part of the basis for the Commission’s determination of

“no significant hazards consideration” was its conclusion that,

although existing release rate limits would be exceeded, off-

site dose limits would not be breached. Since the NRC’s con-

7a

of radioactive gas from the reactor building.’ Vent-

ing was to begin on June 22.”

On June 16, petitioners wrote a letter to the NRC

requesting that it reconsider its finding of “no sig-

nificant hazards consideration” and its decision to

make the June 12 orders effective immediately. The

NRC did not respond.

On June 23, petitioners filed a petition in this

court for review of the two June 12 orders." Three

days later this court denied the petitioners’ requests

for emergency injunctive and declaratory relief. The

next day, one day before the venting began, the peti-

tioners filed a request for a hearing with the NRC on

two June 12 orders. The hearing request was referred

to an Atomic Safety and Licensing Board. On July

8, the petitioners moved the Board to suspend the

venting, however, this request was subsequently with-

cern was the effect of the venting on human health, the Com-

mission felt that the more direct measure—off-site dose limits

—would provide a satisfactory standard to determine the

appropriate limits on the venting of the radioactive gas.

® The NRC inade no finding that this order involved “no sig-

nificant hazards consideration.” See Brief for Respondent

Nuclear Regulatory Commission at 30, 35.

10 By making the orders effective immediately, the Commis-

sion failed to give any notice in the Federal Register of the

license amendment. The Commission contends that so long as

it makes a finding of “no significant hazards consideration,”

the governing statute does not impose such a notice require-

ment. See note 2 supra for statutory notice and hearing

requirements.

_™ On July 8, 1980, a petition for review (No. 80-1783) and

an accompanying petition for writ of mandamus (No. 80-

1784) were filed in the Third Circuit. On the NRC’s motion,

those cases were transferred to this court and consolidated for

review with No. 80-1691, the case originally filed in this court.

8a

drawn, on July 8, shortly before the venting was com-

pleted.

Metropolitan Edison began to vent the reactor

building on June 28, 1980, at a rate that was within

the original license specifications for a normally oper-

ating reactor. On July 8, the licensee began to vent

the radioactive gas at a faster rate, pursuant to the

specifications set in the June 12 license amendment.

The venting was completed on July 11. As the NRC

had anticipated, the off-site doses from the venting

were below the limits set in the June 12 radiation

license amendment. In its draft Programmatic En-

vironmental Report Statement, issued August 14,

1980, the Commission stated that it did not an-

ticipate a recurrence of the purging of the reactor

building atmosphere, but that some minor releases of

gas might be necessary for data gathering purposes.

See Brief for Respondent Nuclear Regulatory Com-

mission at 6 n.4 & 20 n.11.

II. MOOTNESS

Because the licensee has completed the venting of

the reactor containment building, and because both

of the June 12 orders have expired, the Commission

and the licensee claim that petitioners’ claims for in-

junctive and declaratory relief are moot.* However,

12 Metropolitan Edison seems to argue that since petitioners’

claims for injunctive relief are moot (i.e., the reactor building

atmosphere has been purged), the case should be dismissed.

This argument, however, misstates the nature of the relief

sought by petitioners. They have sought both injunctive and

declaratory relief in this action. Although petitioners cannot

now obtain injunctive relief to prevent the purging, they con-

tinue to pursue their claim for a declaratory judgment that

the NRC must grant them statutorily mandated notice and a

hearing whenever it amends a license, See, e.g., Super Tire

9a

because we find that these cases are “capable of repeti-

tion, yet evading review,” we hold that the peti-

tioners’ claims are justiciable in this court.“

The mootness doctrine is primarily based on article

III of the United States Constitution, which limits

federal court jurisdiction to “cases” or “controver-

sies.” Courts have interpreted the constitutional pro-

Engineering Co. v. McCorkle, 416 U.S. 115 (1974) (the Court

found that even though the strike had been settled, mooting

injunctive relief, the petitioner alleged sufficient facts in sup-

port of declaratory relief so that the case should not be dis-

missed as moot).

18 See Southern Pac. Terminal Co. v. Interstate Commerce

Comm’n, 219 U.S. 498, 515 (1911).

14 We note that the United States has taken the position that

the petitioners’ claims are “capable of repetition”—since the

Commission has stated that it will continue to deny requested

hearings when it finds no significant hazards considerations

are involved—but that future claims will not evade review—

since “there is no reason to believe that [NRC] actions will

characteristically be irreversible.” Memorandum of Respond-

ent United States at 4. Consequently, the United States also

argues that the petitions should be dismissed as moot.

We reject the Government’s position for two reasons. First,

as we explain in the text of the opinion, many NRC license

amendments are irreversible. The facts in the present case

illustrate how making an amendmen! effective immediately

can preclude complete judicial review. Second, we believe that

it is unreasonable for the Government to take the position

that, in order to seek judicial review of a license amendment,

a petitioner must race to the courthouse before the NRC takes

an irreversible action. Even if a petitioner could file the peti-

tion before the NRC acted, a court more often than not will

decline to grant emergency relief. Indeed, such a request for

emergency relief was denied in this case. Consequently, be-

cause a petitioner will not receive complete judicial review of

his claim, even though it might be meritorious, we find that

these claims evade review.

10a

vision to limit their jurisdiction to “a present, live

controversy of the kind that must exist if we are

to avoid advisory opinions on abstract propositions

of law.” Hall v. Beals, 396 U.S. 45, 48 (1969). The

case or controversy requirement “preserves the sep-

aration of powers” and “ ‘limit[s] the business of

federal courts to questions presented in an adversary

context and in a form historically viewed as capable

of resolution through the judicial process.’ ” Tennes-

see Gas Pipeline Co. v. Federal Power Comm’n, 606

F.2d 1373, 1379 (D.C. Cir. 1979) (quoting Flast v.

Cohen, 392 U.S. 83, 95 (1968) ).

Cases arising from agency action, no less than

cases involving only private parties, are subject to the

mootness doctrine. Yet, as this court has recently

noted, “the concept of mootness is placed under some

strain in the context of administrative orders whose

formal legal effect is typically shortlived.” Tennessee

Gas Pipeline Co. v. Federal Power Comm'n, 606 F.2d

at 1379-80. The strain is relieved somewhat by an ex-

ception first articulated in Southern Pac. Terminal

Co. v. Interstate Commerce Comm’n, 219 U.S. 498

(1911), where the Supreme Court held that tech-

nically moot cases are justiciable if they involve

“short term orders, capable of repetition, yet evading

review.” Id. at 515.

A case is considered justiciable if “the litigant

show[s] the existence of an immediate and definite

governmental action or policy that has adversely af-

fected and continues to affect a present interest.”

Super Tire Engineering Co. v. McCorkle, 416 U.S.

115, 125-26 (1974). As this case demonstrates, ad-

ministrative orders, like labor disputes, often “do

not last long enough for complete judicial review of

the controversies they engender... . The judiciary

lla

must not close the door to the resolution of the im-

portant questions these concrete disputes present.”

Id. at 126-27. Yet, in order to invoke the Southern

Pacific exception, the petitioner must not only show

that “the challenged action was in its duration too

short to be fully litigated prior to its cessation or ex-

piration,” he must also show that “there was a rea-

sonable expectation that the same complaining party

would be subjected to the same action again.” Wein

stein v. Bradford, 423 U.S. 147, 149 (1975).

The issue in the present case is not simply whether

the NRC will again purge the reactor building at-

mosphere without first giving notice and holding a

hearing. At stake is whether the NRC will continue

its policy of making immediately effective license

amendments without holding a hearing, even though

petitioners request one, whenever the NRC finds that

the amendment involves “no significant hazards con-

sideration.”

Under this view of the issues in this case, the con-

ditions for avoiding dismissal on grounds of moot-

ness, set forth in Weinstein, are met. The Commis-

sion has candidly conceded that

at some point in the TMI-2 cleanup, perhaps on

more than one occasion, the Commission will

amend the utility’s license in respects so minor

that the Commission will think itself justified in

making the amendment immediately effective

based upon a no significant hazards consideration

finding. Certainly, that kind of finding has

been utilized in the past.

Brief for Respondent Nuclear Regulatory Commis-

sion at 23. The Commission plainly intends to ad-

1% This admission entirely undercuts Metropolitan Edison’s

argument that there is no evidence that the actions complained

12a

here to its policy of denying a hearing on a license

amendment, under certain circumstances, even though

interested parties specifically request a hearing. The

chances of recurrence are more than speculative; be-

cause the NRC policy will be carried out during the

TMI-2 cleanup, there is a “reasonable expectation that

the same complaining part[ies]” will be denied their

alleged statutory rights to hearing and notice.

As the present case demonstrates, challenges to the

NRC’s policy of denying a hearing on license amend-

ments may well escape review. The difficulty here is

that the orders are often shortlived and the NRC ac-

tions, like venting, may be irreversible. The difficulty

is compounded when the NRC elects, as in this case,

to make its orders effective immediately. These con-

siderations indicate that future challenges to the

NRC policy may easily “evade review.”

This court has stated that “[t]he situations [in-

volving appellate consideration of recurrent contro-

versies] are necessarily variant, and the variables

complex. . . .[T]he court’s decision to maintain the

of will be repeated. In each of the cases cited in Metropolitan

Edison’s brief, the challenged governmental activity had

ceased with no indication that it would be continued at a later

time. See, e.g., Murphy v. Benson, 270 F.2d 419 (2d Cir. 1959),

cert. denied, 8362 U.S. 929 (1960). In the present case, by con-

trast, the NRC has clearly stated its intention to continue with

its allegedly unlawful conduct—making certain license amend-

ments effective immediately without holding a requested hear-

ing or giving notice. We think it obvious that the NRC will

also continue to rely on the second method employed in this

case for avoiding the notice and hearing requirements of

§ 189(a)—<describing an order as something other than a

license amendment. See note 6 supra. The Commission’s con-

tinued belief in its authority to follow this policy makes

petitioners’ challenge to the policy “capable of repetition.” See

Nader V. Volpe, 475 F.2d 916 (D.C. Cir. 1978).

13a

appeal, in the interest of sound judicial administra-

tion, is dependent on a prediction of a recurrence or

continuation of what is perceived to be essentially the

same legal dispute.” Alton & Southern Railway Co.

v. International Ass’n of Machinists & Aerospace

Workers, 463 F.2d 872, 879 (D.C. Cir. 1972). “While

an ‘effective remedy’ for the immediate dispute is not

obligatory, there must be at least a capacity for a

declaration of legal right concerning a future pro-

jection of the actual dispute that precipitated the

litigation.” Jd. at 879-80. In the present case, that

capacity exists, and we hold that this case is not

moot.

III. THE ORDER FOR TEMPORARY MODIFICATION

OF LICENSE

The NRC issued without a hearing the “Order for

Temporary Modification of License (OTML) of June

12, 1980, which substituted off-site dosage limits for

release limits in the THI-2 operating license. The

petitioners contend that the NRC’s failure to provide

a hearing violated section 189(a) of the Atomic

Energy Act of 1954. The first sentence of that sec-

tion provides in relevant part:

In any proceeding under this chapter, for the

granting, suspending, revoking, or amending of

any license or construction permit ... the Com-

mission shall grant a hearing upon the request

of any person whose interest may be affected by

the proceeding, and shall admit any such person

as a party to such proceeding.

The NKC and Metropolitan Edison do not dispute

that the OTML constituted a license amendment sub-

l4a

ject to the terms of section 189(a). They do main-

tain, however, that under the fourth sentence of the

section the Commission could dispense with a hearing.

The fourth (and last) sentence of section 189(a)

reals:

The Commission may dispense with such thirty

days’ notice and publication with respect to any

application for an amendment to a construction

permit or an amendment to an operating license

upon a determination by the Commission that the

amendment involves no significant hazards con-

sideration.

The NRC and the licensee argue that the NRC prop-

erly made a finding of “no significant hazards con-

sideration” with respect to the OTML, and that con-

sequently a hearing was not required. Although the

last sentence of section 189(a) only explicitly “dis-

pense[s] with ... thirty days’ notice and publication”

upon a determination of “no significant hazards con-

sideration,” the NRC and the licensee contend that

such a determination also permits the Commission to

dispense with a hearing because notice and a hearing

are inextricable.”

16 The petitioners, challenging the correctness of the “no

significant hazards consideration” determination, also con-

tend that the NRC was required under the third sentence of

§ 189(a) to provide 30 days’ notice and publication in the

Federal Register of the Commission’s intent to issue the

license amendment without a hearing. The third sentence

provides that

the Commission may, in the absence of a request therefor

by any person whose interest may be affected, issue an

operating license or an amendment to a construction per-

mit or an amendment to an operating license without a

15a

We are convinced that such a finding did not per-

mit the NRC to dispense with a hearing that is other-

wise required by section 189(a).” This is not the

first case in this circuit in which it has been argued

that a finding of “no significant hazards considera-

tion” permits the NRC to issue a license amendment

without a hearing. In Brooks v. Atomic Energy

Comm’n, 476 F.2d 924, 926 (D.C. Cir. 1973) (per

curiam), this court soundly rejected the contention

th:t the fourth sentence in section 189(a) “‘indi-

cate[d] Congressional intent to dispense with hear-

ings in construction permit amendment proceed-

ings . . . when the Commission determines that the

amendment involves ‘no significant hazards consider-

ation.’ ”’ Instead this court, after an examination of

the legislative history of section 189(a), held that

the fourth sentence only dispenses with requirements

of notice and publication. Because this circuit has

previously rejected the very construction of section

189(a) offered by the NRC and the licensee,”* the

hearing, but upon thirty days’ notice and publication once

in the Federal Register of its intent to do so.

(Emphasis added.) Since, however, we hold that the petition-

ers requested a hearing, see note 25 infra, and that the NRC

was required to hold a hearing, we need not reach the ques-

tion whether the Commission was required to provide 30 days’

notice of its intent to issue the license amendment without a

hearing.

17 It is noteworthy that respondent United States concedes—

indeed argues—that the NRC’s failure to provide a hearing

violated § 189(a) of the Atomic Energy Act. See Memoran-

dum of Respondent United States at 4-21.

48Tt is true, of course, that 15 months after the Brooks

decision this court stated in dictum in a footnote that “[a]n

amendment can be made without opportunity for a hearing

16a

doctrine of stare decisis compels us to hold that the

NRC improperly failed to provide a hearing in the

instant case.

Moreover, even if this court were not bound by

stare decisis, we would still adopt the Brooks inter-

pretation of the last sentence of section 189(a). The

plain language of section 189(a) dispels any notion

that by a finding of “no significant hazards considera-

tion” the NRC may dispense with the hearing require-

ment. The fourth sentence makes no mention of the

hearing requirement’s being lessened, but makes refer-

ence only to the requirements of notice and publication.

Despite the plain, unambiguous language contained in

the last sentence, the NRC and Metropolitan Edison

suggest that the requirements of hearing and notice are

so intertwined that the reference to notice in the fourth

sentence must also comprehend a hearing. While it

is true that requirements of notice and hearing are

interrelated, it is clear that Congress was not merg-

ing them in section 189(a). That is demonstrated

by the third sentence of the section where Congress

made explicit reference to the hearing requirement.”

That sentence plainly demonstrates that Congress did

indeed intend to disentangle the two requirements of

notice and hearing,” and “to lessen the mandatory

if the AEC determines that it ‘involves no significant hazards

consideration.’” Union of Concerned Scientists v. Atomic

Energy Comm’n, 499 F.2d 1069, 1084 n.86 (D.C. Cir. 1974).

The court provided no support for its far-reaching statement,

nor did it even make mention of the recently decided Brooks

case, which had squarely held to the contrary on the basis of

the legislative history of § 189(a). We accordingly decline to

place any reliance on the dictum in Union of Concerned

Scientists.

19 For the text of the third sentence, see note 16 supra.

2 We are cognizant of the fact that the plain meaning of the

third and fourth sentences of § 189(a), when read together,

17a

hearing requirement only when there was no request

for a hearing.” Brooks v. Atemic Energy Comm’n,

476 F.2d at 927.

A review of the legislative history of the 1962

amendments to section 189(a)—by which the last

two sentences of the section were added—also firmly

persuades us that the Brooks court properly construed

the last sentence of section 189(a). That history

demonstrates that the 1962 amendments to section

189(a) had their origin in congressional concern

over a hearing requirement in wncontested cases—

that is, when a hearing had not been requested.” Rep-

produces in theory a somewhat paradoxical result. Under

the fourth sentence the NRC may issue a license amendment

without providing 30 days’ notice and publication in the Fed-

eral Register of its intent to do so, while under the third sen-

tence the NRC need not provide a hearing when one has not

been requested. As the NRC and the licensee note, it is diffi-

cult to imagine how a hearing can be requested when the NRC

issues a license amendment without notice. This “paradoxi-

cal result” did not occur, however, in the instant case. Al-

though petitioners did not formally request a hearing prior to

issuance of the OTML, their prior expressions of interest con-

stituted in effect a request for a hearing. See note 25 infra.

It is also unclear whether the “paradoxical result” will ever in

fact occur. As the NRC conceded at oral argument, there

may be some type of notice requirement—although perhaps

not 30 days’ notice and publication in the Federal Register—

implicit in the opportunity to seek judicial review of determi-

nations of “no significant hazards consideration.” Moreover,

our decision today does not reach the question whether some

notice of the NRC’s intention to amend a license is required

under the due process clause of the Fourteenth Amendment

or the Administrative Procedure Act notwithstanding a find-

ing of “no significant hazards consideration.”

21 Indeed, counsel for Metropolitan Edison testified in 1961

before the Joint Committee on Atomic Energy and argued for

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resentative of that concern was the statement by

Raoul Berger, serving as an American Bar Associa-

tion spokesperson, that

14 out of 15 of [the Atomic Energy Commis-

sion’s] cases have been uncontested. And the cen-

tral problem appears to be whether triai-type

proceedings should be employed under sections 7

and 8 of the Administrative Procedures [sic] Act

in uncontested cases ....

AEC Regulatory Problems: Hearings on H.R. 12336

and S. 3491 Before the Subcomm. on Legislation of

the Joint Comm. on Atomic Energy, 87th Cong., 2d

Sess. 64 (1962) (statement of Raoul Berger) (em-

phasis added). Accord, e.g., id. at 32 (statement

of Herzel H.E. Plaine, Chairman, Special Comm. on

retention of a hearing requirement when a hearing has been

requested : ;

I hope that this committee will seriously consider re-

peal of the mandatory hearing requirements of section

189(a), leaving intact, of course, the provisions for a

hearing at the request of any person whose interest may

be affected by the licensing proceedings.

Radiation Safety and Regulation: Hearings Before the Joint

Comm. on Atomic Energy, 87th Cong., Ist Sess. 266 (1961)

(testimony of George F. Trowbridge).

22In response the staff counsel to the Joint Committee

noted :

Mr. Berger, I think you are absolutely correct that the

difficulty, the background that led to the Joint Committee

study and the bills, was the concern over the handling by

AEC of uncontested cases. ...

AEC Regulatory Problems: Hearings on H.R. 12336 and

S. 8491 FRefore the Subcomm. on Legislation of the Joint

Comm. on Atomic Energy, 87th Cong., 2d Sess. 70 (1962)

(remarks of David Toll).

19a

Atomic Energy Law, ABA). Thus an interpreta-

tion of section 189(a) that would permit the NRC

to issue a contested license amendment without a

hearing would enlarge section 189(a) beyond the

scope originally intended.”

The 1962 Report of the Juint Committee on Atomic

Energy also suggests that Congress perceived the

changes to section 189(a) as permitting the NRC to

dispense only with notice and publication—not a hear-

ing—upon a finding of “no significant hazards con-

sideration” :

In the absence of a request for a hearing, issu-

ance of an amendment to a construction permit,

or issuance of an operating license, or an amend-

ment to an operating license, would be possible

without formal proceedings, but on the public

Finally, it is expected that the authority given

AEC to dispense with notice and publication

would be exercised with great care and only in

*3In support of its interpretation of §189(a) the NRC

quotes from a letter written in 1961 by former AEC Commis-

sioner L.K. Olson to the Joint Committee on Atomic Energy,

reprinted in Staff of the Joint Comm. on Atomic Energy, 87th

Cong., 1st Sess., Improving the Regulatory Process, Vol. II,

at 578-87 (Comm. Print 1961). The quoted portions of the

letter suggest, in ambiguous terms, that the Commissioner

was of the view that the AEC should be able to dispense with

hearings on license amendments upon a finding that “no sub-

stantial new safety questions” are presented. See Reply Brief

for Respondent Nuclear Regulatory Commission at 9. Even if

Commissioner Olson intended his comments to apply to con-

tested matters, it is clear from the rest of the legislative his-

tory that Congress did not share the Commissioner’s view.

those instances where the application presented

no significant hazards consideration.

H.R. Rep. No. 1966, 87th Cong., 2d Sess. 8 (1962) ;

S. Rep. No. 1677, 87th Cong., 2d Sess. 8 (1962)

(emphasis added). And in a committee hearing one

year prior, the Joint Committee on Atomic Energy

had noted:

When no substantial safety question is involved

in... the amendment . . . the public interest

would be protected by . . . publication of an apt

notice in the Federal Register '*! and the giving

of an opportunity to any interested party to

intervene....

Staff of the Joint Comm. on Atomic Energy, 87th

Cong., 1st Sess., Improving the Regulatory Process,

Vol. II, at 49-50 (Comm. Print 1961) (emphasis

added). The language of the reports, consonant with

the plain meaning of section 189(a), thus indicates

that the section only permits the NRC to issue a

% It is not entirely clear what the Committee meant by the

phrase “publication of an apt notice in the Federal Register.”

Presumably it only refers to publication of the amendment

after the Commission has issued it. This is not inconsistent

with the fourth sentence of § 189(a), adopted in 1962, which

dispenses with 80 days’ notice and publication in the Federal

Register of the Commission’s intent to issue a license amend-

ment without a hearing.

This ambiguity in the quoted language is not unique in the

context of §189(a). The text and legislative history of the

section are replete with ambiguities and inconsistencies. Cf.

note 20 supra. But there is no ambiguity in the legislative

history or the text of §189(a) with respect to the question

before this court—whether a finding of “no significant haz-

ards consideration” permits the NRC to dispense with a

hearing.

2la

license amendment without a hearing when there

has been no hearing request.” .

Statements by Representative Holifield, Chairman

of the Joint Committee on Atomic Energy, and Sen-

ator Pastore, Vice-Chairman, on the floors of their

respective houses further reinforce the language in

the reports. Both individuals explicitly stated that

the “amendment [to section 189(a)] in no way limits

the right of an interested party to intervene and

request a hearing at some later stage, nor does it

affect the right of the Commission to hold a hearing

on its own motion.” 108 Cong. Rec. 16,548 (1962)

(remarks of Rep. Holifield); see id. at 15,746 (re-

marks of Sen. Pastore). The interpretation that the

NRC and the public utilities press upon us,” however,

25 Whether petitioners did in fact request a hearing was not

argued by the parties. While respondent United States sug-

gests in a footnote that “[i]t is not wholly clear that petition-

ers did make such a request,” Memorandum of Respondent

United States 6 n.2, we are convinced that the petitioners

requested a hearing. In Brooks v. Atomic Energy Comm’n,

476 F.2d 924, 926 (D.C. Cir. 1973) (per curiam), this court

held that expressions of interest may be sufficient to constitute

a request for a hearing. In the instant case petitioners’ con-

tinued interest in—and opposition to—the actions of the NRC

at TMI-2 clearly constituted a request for a hearing. Indeed,

the petitioners were among the many that subinitted com-

ments in April-May 1980 to the NRC regarding the Commis-

sion’s Environmental Assessment for Decontamination of the

Three Mile Island Unit 2 Reactor Building Atmosphere. See

text at notes 5-6 supra.

26 As part of their argument the NRC and the public utili-

ties contend that the NRC, and the Atomic Energy Commis-

sion prior to the creation of the NRC, consistently interpreted

the section as permitting license amendments to be issued

without a hearing upon a finding of “no significant hazards

22a

would “limit[] the right of an interested party to

intervene and request a hearing.”

In sum, we are confident that Brooks was properly

decided and that it dictates the construction that must

be attached to the last sentence of section 189(a).

Because the NRC’s finding of “no significant hazards

consideration” did not entitle the Commission to dis-

pense with a requested hearing prior to issuance of

the OTML, we hold that its failure to provide a hear-

ing violated section 189(a) of the Atomic Energy

Act.

consideration.” See 10 C.F.R. §2.105(a) (8) (1980); id.

§ 50.58(b); id. §50.59(c) (1968); 45 Fed. Reg. 42,908

(1980) ; 45 Fed. Reg. 20,491-92 (1980) ; 48 Fed. Reg. 13,928

(1978) ; 41 Fed. Reg. 10,482-88 (1976) ; 40 Fed. Reg. 18,231

(1975) ; 89 Fed. Reg. 10,554 (1974); 39 Fed. Reg. 1,875-76

(1974) ; 27 Fed. Reg. 12,184 (1962); Consumers Power Co.,

7 A.E.C. 297 (1974); General Electric Co., 1 A.E.C. 541

(1960). Even if the history of regulations and administra-

tive practice by the AEC and the NRC were unambiguous—

which we do not think it is—deference to the agencies’ inter-

pretations would be inappropriate in this case. As we have

indicated, the statute and legislative history are in our view

unambiguous: a finding of “no significant hazards considera-

tion” does not permit the NRC to dispense with a hearing. As

the Supreme Court has noted, “[A]dministrative practice

does not avail to overcome a statute so plain in its commands

as to leave nothing for construction.” Norwegian Nitrogen

Products Co. v. United States, 288 U.S. 294, 315 (1933).

It is also worth noting that because of today’s decision the

NRC will not be able to put into effect a regulation proposed

earlier this year that would explicitly permit the NRC to

dispense with hearings on license amendments upon a finding

of “no significant hazards consideration.” See 45 Fed. Reg.

20,491-92 (1980). Such a regulation would be clearly in-

consistent with the congressional mandate in § 189(a).

IV. THE NRC’s MEMORADUM AND ORDER

The second order issued by the NRC on June 12, .

1980, entitled “Memorandum and Order” (Venting

Order), authorized Metropolitan Edison to vent the

atmosphere of the reactor containment building. Re-

spondents argue that section 189(a) did not require

a hearing with respect to the Venting Order because

the order was not a license amendment. We reject

respondents’ description of the order and find that

section 189(a) was indeed applicable and, as a con-

sequence, that petitioners were entitled to a hearing

on the Venting Order.

Section 189(a), quoted in pertinent part in note 2

supra, requires that a hearing be given upon request

“Tijn any proceeding under this chapter, for the

granting, suspending, revoking, or amending of any

license or construction permit.” 42 U.S.C. § 2239(a)

(1976). Respondents maintain that because the Vent-

ing Order merely lifted a prior suspension of the li-

censee’s authority to vent, and did not authorize re-

lease of a greater amount of radioactive gas than

was permitted by the original technical specifications

of the operating license, it was not a license amend-

ment. However, on the facts here, this characteriza-

tion of the Venting Order appears to be nothing more

than an after-the-fact rationalization, which finds no

support in the record of this case.

The NRC’s July 20, 1979 “Order for Modification

ef License” suspended Metropolitan Edison’s author-

ity to operate TMI-2 and directed the licensee to

“maintain the facility in a shutdown condition in

accordance with the approved operating and contin-

gency procedures.” 44 Fed. Reg. 45,271 (1979). In

a second order, dated February 11, 1980, the NRC

recognized that TMI-2’s operating license did not

24a

permit venting as part of a cleanup operation be-

cause the license specifications pertained only to nor-

mal operation of the facility:

[I]n the present post-accident status of the fa-

cility, the license itself does not include explicit

provisions or Technical Specifications for assur-

ing the continued maintenance of the plant in a

safe, stable condition or for coping with fore-

seeable off-normal conditions. Moreover, certain

portions of the facility’s operating license relate

to or govern power operation of the facility, the

authority for which was suspended by the Order

of July 20, 1979. These provisions are now sim-

ply inapplicable to the facility im its present post-

accident condition.

45 Fed. Reg. 11,282 (1980) (emphasis added). The

NRC concluded that “the facility’s operating license

should be modified so as to: . . . [p]rohibit venting

or purging... until... approved by the NRC.” 7d.

(emphasis added).

There is no indication that this order was intended

or perceived as a mere suspension of the licensee’s

existing authority to vent. In February 1980, it ap-

peared that adequate venting of the reactor building

might not be possible under the existing license au-

thority. Consequently, the NRC acted to modify—

and thus amend—the TMI-2 license in order to reg-

ulate the plant in an “off-normal” condition and to

facilitate whatever venting scheme might be deter-

mined to be necessary. By its very terms, the Feb-

ruary 11, 1980 order was a license amendment in-

tended to reflect TMI-2’s post-accident condition.

Given that the original operating license was inap-

plicable, the NRC could not simply rely on its terms

as authority for the venting. Authority for venting—

25a

in this case the June 12 Venting Order—therefore

had to come in the form of a license amendment.

The specific language of the June 12 Venting Or-

der further corroborates our interpretation of that

order as a license amendment. In the Venting Order,

the NRC noted that TMI-2 was being operated ac-

cording to the provisions of the February 11, 1980

order, see Venting Order at 10, reprinted in App. 134,

and the Venting Order did nothing to change that.

TMI-2’s operating license was not simply “unsus-

pended” by the Venting Order. Instead, in the words

of the NRC, “[iJn the present order we give the

approval contemplated by [the February 11] restric-

tion insofar as necessary for the licensee to conduct

a purging of the TMI-2 containment.” Jd. at 11,

reprinted in App. 135. Nowhere does the Venting

Order support respondents’ characterization of it as

a reinstatement of some preexisting authority. Rather,

the Venting Order appears as an amendment to the

February 11 amendment to TMI-2’s operating license.

Because the June 12 Venting Order modified the Feb-

ruary 11 order, and granted the licensee authority

to do something that it otherwise could not have

done under the existing license authority, the Venting

Order was a license amendment within the scope of

section 189(a).

Our reading of the Venting Order is also supported

by Congress’ intent in enacting section 189(a). By

requiring a hearing upon request whenever a li-

cense is “grant[ed], suspend[ed], revok[ed], or

amend[ed],” Congress apparently contemplated that

interested parties would be able to intervene before

any significant change in the operation of a nuclear

facility. Whatever the Venting Order is called, it

certainly was such a change. :

26a

As we held in Section III of this opinion, the NRC

is required under section 189(a) to hold a hearing

on a license amendment whenever interested parties

request one.” Petitioners did so in this case, see note

25 swpra, and the NRC therefore acted unlawfully

in refusing to hold a hearing on the Venting Order.”

27 We note that the NRC and the public utilities briefly

argued that a full adjudicatory hearing was not required

here. See Brief for Respondent Nuclear Regulatory Commis-

sion at 32-34; Brief for Intervenor-Respondents at 44-45. Be-

cause this question was not fully briefed and argued by the

parties, we express no opinion on the precise nature of the

hearing required by § 189(a).

28 Respondent United States argued that petitioners re-

quested a hearing, as provided for in the OTML, and then

failed to exhaust their administrative remedies by withdraw-

ing their motion. The intended scope of that hearing and the

facts surrounding the withdrawal are somewhat muddled by

the record. What is clear, however, is that the offer of a

hearing was made only in the OTML and not in the Venting

Order. Presumably, then, petitioners would have been able to

challenge only the license amendment substituting off-site

dosage limits for release limits and not the actual decision to

vent. Moreover, any hearing was to revolve around the issues

whether the license amendment was in the public interest and

whether it should be sustained. See App. 123. It appears

from this description that petitioners would not have been

permitted to raise their arguments regarding the NRC’s in-

terpretation of § 189(a), which formed the basis of the suit.

Finally, the Commission specifically provided that a request

for a hearing would not stay the effectiveness of the order.

See id. But § 189(a) required a hearing upon request on the

Venting Order before it went into effect; a hearing after the

venting had been completed would not have satisfied the

statute’s requirement. For all these reasons, the remedy that

petitioners allegedly failed to exhaust was an inadequate one

and therefore need not have been pursued. See McNeese v.

Board of Educ., 378 U.S. 668, 674-76 (1963) ; Union Pac. R.R.

Co. Vv. Board of County Comm’rs, 247 U.S. 282 (1918).

27a

V. CONCLUSION

Because the NRC’s actions in this case are “capable

of repetition yet, evading review,” the issues pre-

sented by petitioners are not moot. We hold that

under section 189(a) the NRC is required to hold

a hearing on license amendments whenever interested

parties request one. Finally, we hold that the June 12

Venting Order, which authorized the NRC to release

radioactive gas from the disabled nuclear reactor, was

a license amendment subject to the hearing require-

ments of section 189(a). Because the petitioners re-

quested a hearing on the two June 12 license amend-

ments, they were entitled to a hearing under section

189(a). The NRC’s refusal to hold a hearing violated

the petitioner’s statutory rights.

28a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 80-1691

STEVEN SHOLLY and DONALD E. HOSSLER,

PETITIONERS

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION,

ET AL. and UNITED STATES OF AMERICA,

RESPONDENTS

METROPOLITAN EDISON COMPANY, ET AL.,

INTERVENORS

No. 80-1783

PEOPLE AGAINST NUCLEAR ENERGY,

PETITIONER

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION;

JOHN AHEARNE, VICTOR GILINSKY, RICHARD T.

KENNEDY, JOSEPH M. HENDRIE, and PETER A.

BRADFORD, in Their Individual Capacities; and THE

UNITED STATES OF AMERICA, RESPONDENTS

METROPOLITAN EDISON COMPANY, JERSEY POWER &

LIGHT COMPANY, and PENNSYLVANIA ELECTRIC

COMPANY, INTERVENORS

No. 80-1784

In Re:

PEOPLE AGAINST NUCLEAR ENERGY, PETITIONER

ON SUGGESTION FOR REHEARING EN BANC

FILED 4 MARCH 1981

Before: McGowan, Chief Judge, WRIGHT, TAMM,

ROBINSON, MACKINNON, Ross, WILKEY,

WALD, MIKVA, EDWARDS and GINSBURG, Cir-

cuit Judges.

ORDER

The suggestion for rehearing en banc of the Public

Utilities has been circulated to the full court and a

majority of the court has not voted in favor thereof.

On consideration of the foregoing, it is

ORDERED, by the Court, en banc, that the sug-

gestion of the Public Utilities is denied.

Per Curiam

Circuit Judges Tamm, MacKinnon, Robb and Wilkey

would grant rehearing en banc. Their statement is

attached.

80a

STATEMENT ON DENIAL OF REHEARING EN BANC

TAMM, MACKINNON, RoBB and WILKEY, Circuit

Judges: We would grant a rehearing en banc in

Sholly, et al. v. United States Nuclear Regulatory

Commission, et al., No. 80-1691 (D.C. Cir. 19 Nov.

1980) to review the startling proposition found

within that opinion: that even when the Nuclear Reg-

ulatory Commission (NRC) has expressly found that

a proposed amendment to an existing nuclear power

plant operating license poses “no significant hazards”

to human health or safety, the Nuclear Regulatory

Commission is nevertheless required to provide a pre-

amendment hearing to anyone who has expressed

“continued interest in—and opposition to” its actions

on related matters. Slip op. at 19 n.25.*

The panel’s action raises an issue of “exceptional

importance.” Fed. R. App. P. 35(a). Under the rub-

ric of statutory interpretation, the panel has made a

policy decision of major consequence. The panel has

read into section 189(a) of the Atomic Energy Act

of 1954, 42 U.S.C. § 2239(a) (1976), as amended,

the requirement that even notwithstanding a finding

of “no significant hazards consideration” in a pro-

posed license amendment, the NRC must nonetheless

hold a prior hearing on the proposed amendment upon

request of any interested person. By then drastically

loosening the standard for what constitutes a “re-

quest” for a hearing, the panel has thrust upon the

NRC the burden of holding full-fledged hearings be-

fore even the most trivial amendments to NRC oper-

ating licenses may be adopted.

1 We would only have this court reconsider pages 12-21 of

the panel opinion, where this proposition is set forth.

8la

We believe that the panel’s inflexible blanket rule

violates the Supreme Court’s unanimous mandate in

Vermont Yankee rejecting judicial imposition of ad-

ministrative procedures upon an agency in excess of

the statutory minima prescribed by Congress. Ver-

mont Yankee Nuclear Power Corp. v. NRDC, 4385

U.S. 519, 548 (1978). Furthermore, by reversing

long-standing NRC policy, the panel’s decision forces

a major reallocation of Commission resources, which

appears likely both to overwhelm the agency’s hearing

machinery and to divert staff attention from safety

issues of greater significance. Finally. the panel de-

cision threatens to result in the closing—for as much

as nine months—of numerous power plants currently

awaiting license amendments pending completion of

hearings, when post hoc hearings might in fact be

more than adequate to ventilate any health and safety

issues posed by most amendments.

The license amendment in this case—a temporary

modification of the Three Mile Island nuclear power

plant’s operating license to permit post-accident re-

lease of radioactive gas from the reactor building at

rates exceeding existing specifications—was atypical

among NRC operating license amendments.’ Only a

2 The peculiar circumstances under which the Sholly appeal

arose made this case particularly inappropriate for judicial

articulation of sweeping procedural rules. In the aftermath

of the widely publicized Three Mile Island incident, the NRC

had suspended the licensee’s authority to operate the stricken

plant, requiring that the facility be maintained in a shutdown

condition. Slip op. at 4. Before the accident, the plant’s

operating license had expressly authorized periodic release

of specified amounts of radioactive gas into the atmosphere

as part of the plant’s normal and necessary operations. /d.

at 6 n.7. Because the incident had caused “dangerous con-

centrations of radioactive gas [to] collect[ ] within [the

82a

tiny fraction of all license amendments involve emer-

gency matters so subject to factual dispute as the

power plant’s] reactor containment builaing, inhibiting clean-

up and maintenance work,” id. at 4, the NRC proceeded to

prepare an overall study of the environmental impacts likely

to result from decontamination and disposal of wastes result-

ing from the incident. In the meantime the Commission

modified the facility’s operating licence to prohibit any vent-

ing or purging of the reactor building atmosphere pending

explicit future approval. Id. at 5.

Almost a year after the incident, after extensive environ-

mental assessment and after concluding that release of gas

from the plant would not constitute a significant environmen-

tal impact, the Commission tentatively recommended that the

reactor building atmosphere be decontaminated by venting the

gas through the building’s hydrogen control system. Id. at

5-6. On 12 June 1980 the NRC moziified the plant’s operating

license to permit the licensee to vent the gas from the reactor

building at a rate faster than allowed by existing specifica-

tions, based on its explicit finding that offsite radioactive

dose limits would not be breached if the gas were vented at a

rate in excess of existing release rate limits. Jd. at 6 & n.8.

The Commission further expressly found that modification

of the operating license would involve “no significant hazards

consideration.” Id. at 6. The petitioners who later chal-

lenged the NRC’s decision not to provide a hearing on that

modification did not file a request for a hearing until the

day before venting was to begin. Jd. at 7. When venting

finally began, release proceeded at first at a rate within the

levels previously specified for normally operating reactors.

Id. During this period petitioners moved to suspend the

venting but then subsequently withdrew their request on

8 July. On the same day as the request was withdrawn, the

licensee began t> vent gas at the faster rate permitted by the

12 June license amendment. Venting was completed in three

days, producing offsite doses well under the expected limits;

shortly thereafter the 12 June venting orders expired. The

Commission has asserted, and petitioners have not contro-

verted, that any future purging of the Three Mile Island reac-

tor atmosphere will be at worst minor and sporadic. /d. at 8.

83a

hazards attendant to venting radioactive gas into the

atmosphere. The Commission acts on an average of

more than 400 license amendments per year. NRC’s

Motion to Stay Issuance of Mandate at 3. kor the

seventy-one power reactors currently licensed for op-

eration, some 800 license amendment actions are pres-

ently before the Commission. The vast bulk of these

concern matters such as: changing or adding to the

myriad Technical Specifications embedded in a given

power plant’s 400-page operating license, detailing a

plant’s operating conditions, modifying surveillance

requirements, administrative controls, design features

or the like. Affidavit of Roger S. Boyd, Former Direc-

tor of the Division of Project Management, NRC Of-

fice of Nuclear Reactor Regulation at 3, attached to

Intervenor-Respondents’ Petition for Rehearing and

Suggestion for Rehearing En Banc [Boyd Affidavit].

The NRC staff completes review of some fifty of

these amendments per month; typically, it refuses to

make a finding of “no significant hazards considera-

tion” in a proposed amendment unless (1) the pro-

posed change raises no significant new safety infor-

mation of a type not previously considered in prior

safety reviews, (2) the change raises no significant

increase in the probability or consequences of an acci-

dent, or (3) the change offers no significant decrease

in the plant’s safety margin. Id. at 3-4. Over the

past four calendar years, the NRC has published

notice in the Federal Register of more than 1500

amendments to operating plant licenses which the

NRC staff found to have “no significant hazards con-

siderations.” Id. at 4. The NRC has recognized that

delay in issuance of license amendments would require

plant shutdown if agency review is not expeditiously

34a

completed.* Moreover, plants already shutdown fcr

refueling or other reasons cannot restart until such

review is completed. Thus NRC, practice and regula-

tions have long called for approval of license amend-

ments without hearing upon a finding of no signifi-

cant hazards, accompanied by post-approval publica-

tion of notice in the Federal Register.

We believe that the agency’s past practice complied

fully with statutory mandates. Whether or not a

finding of “no significant hazards consideration” has

been made, no hearing is required under the appli-

cable language of section 189(a) of the Atomic En-

ergy Act, 42 U.S.C. § 2239(a) (1976), unless a hear-

ing has first been specifically requested. The first

sentence of section 189(a) only requires the NRC to

grant a hearing on a license amendment proposal

“upon the request of any person whose interest may

be affected by the proceeding.” (Emphasis added.)

The third sentence, however, permits the NRC “in the

absence of a request therefor by” such a person to

issue an amendment without a hearing, “upon thirty

days’ notice and publication once in the Federal Reg-

ister of its intent to do so.” (Emhasis added.) With-

out mentioning hearings, the fourth sentence then

specifies that the Commission may even dispense with

such “thirty days’ notice and publication . . . upon a

* The former Director of the NRC’s Division of Project

Management estimates that there are about 50 license amend-

ment applications now pending before the NRC which are

likely to be classified as having “no significant hazards con-

siderations” and which, if not approved within the next few

months, will result in the shutdown of the reactor involved.

Boyd Affidavit at 5.

* Id. at 6.

85a

determination by the Commission that the amend-

ment involves no significant hazards consideration.” *

The Sholly panel read this language to conclude

that the agency has for years in fact been operating

in violation of section 189(a). The panel first argued

that this court had previously held in Brooks v.

Atomic Energy Comm’n, 476 F.2d 924, 926 (D.C.

Cir. 1973) “that the fourth sentence [of section 189

(a)] only dispenses with requirements of notice and

publication,” not the requirement of a hearing. Slip

op. at 14. Furthermore, the panel then independently

read the statutory language to require the same con-

clusion, finding that because the fourth sentence of

sev:ion 189(a) refers only to thirty days’ notice and

publication, it “plainly demonstrates that Congress

* Section 189(a) of the Atomic Energy Act of 1954, 42

U.S.C. § 2289(a) (1976), as amended in 1957, Pub. L. No. 85-

256, § 7, 71 Stat. 579 (1957), and in 1962, Pub. L. No. 87-615,

§ 2, 76 Stat. 409 (1962), reads in pertinent part as follows:

In any proceeding, under this chapter, for the granting,

suspending, revoking, or amending of any license . . .

the Commission shali grant a hearing upon the request

of any person whose interest may be affected by the

proceeding, and shall admit any such person as a party

to such proceeding. The Comission shall hold a hearing

after thirty days’ notice and publication once in the Fed-

eral Register, on each application . . . for a construction

permit for a facility .... [T]he Commission may, in the

absence of a request therefor by any person whose inter-

est may be affected, issue . . . an amendment to an

operating license without a hearing, but upon thirty

days’ notice and publication once in the Federal Register

of its intent to do so. The Commission may dispense with

such thirty days’ notice and publication with respect to

any application for . . . an amendment to an operating

license upon a determination by the Commission that the

a.nendment involves no significant hazards consideration.

86a

did . . . intend to disentangle the two requirements

of notice and hearing.” Slip op. at 15. The legisla-

tive history of the 1962 amendments to section 189

(a), the panel concluded, demonstrates that “Con-

gress perceived the changes to section 189(a) as per-

mitting the NRC to dispense only with notice and

publication—not a hearing—upon a finding of “no

significant hazards consideration.” Jd. at 18.

We believe that the panel unjustifiably relied on

this court’s brief per curiam opinion in Brooks to

support its central proposition. We further believe

that the panel’s independent interpretation of the

relevant language in section 189(a) ignored logic and

distorted the legislative history of that section.

In Brooks two utility companies petitioned the

Atomic Energy Commission to modify the provisional

construction permits for two nuclear power plant

units in order to extend the “latest completion date”

specified in the permite. Petitioners, persons living

near the proposed construction site, had earlier filed

a timely request for a hearing with respect to two

issues: whether the provisional construction permits

should be modified to protect environmental values in

accordance with NEPA and whether operating li-

censes for those facilities should issue. 476 F.2d at

925-26. The Commission gave petitioners notice that

a hearing would be held on the second matter, “but

inexplicably failed” to give notice that the proceed-

ings would also permit discussion of the first issue:

modification of the construction permits. Jd. at 926

& n.6.

In ordering a hearing on the issue of extension of

permit completion dates, the court made two points.

Noting that the Commission’s order summarily ex-

tending those dates had given “no indication whatso-

87a

ever that the amendment involved no significant haz-

ards consideration,” the court stated “the Commission

must surely make the required significant hazards de-

termination, and note such determination in its order,

if it intends to put forward such determination as the

basis for its denial of a hearing.” Id. at 926. Second,

the court stated that because petitioners had made an

undeniable request for a hearing on modification of

permits, the Commission had erred in issuing the or-

der without notice that the hearing scheduled to take

place would also concern permit modification.

We believe Brooks to be plainly inapposite here.

The Brooks court was addressing two questions not

before the Sholly panel: whether the Commission

could dispense with a hearing without first making a

finding of no significant hazards, and whether the

Commission could dispense with the notice statutorily

required in the third sentence of section 189(a) when

a clear request for a hearing has been made. The

Brooks court plainly did not seek to lay down the

broad rule which the panel here articulates: that the

fourth sentence of section 189(a) requires a hearing

even when the Commission has made a “no significant

hazards consideration” finding. If that rule has in-

deed been the law of this Circuit since Brooks, it

comes as a great surprise to us. At least one member

of this court, addressing the proposition directly in a

case decided after Brooks, stated the view that “[a]n

amendment can be made without opportunity for a

hearing if the AEC determines that it ‘involves no

significant hazards consideration.’” Union of Con-

cerned Scientists v. AEC, 499 F.2d 1069, 1084 n.36

(D.C. Cir. 1974) (McGowan, J.). Furthermore, some

thirteen NRC regulations and cases listed within the

panel opinion, but summarily dismissed there, indi-

88a

cate that both before and after Brooks the NRC con-

sistently interpreted section 189(a) to permit issu-

ance of license amendments even without hearings

upon a finding of “no significant hazards considera-

tion.” Slip op. at 20 n.26.

The panel buttresses its puzzling statutory con-

struction with citation from a legislative history

which it concedes to be “replete with ambiguities and

inconsistencies.” Slip op. at 18-19 n.24. We would

submit that the confusion inherent within that legis-

lative history is alone sufficient reason why it should

not have been cited selectively in support of the

panel’s sweeping rule. While the panel holds that

the NRC’s “no significant hazards consideration”

finding did not entitle the Commission to dispense

with a hearing prior to the license amendment, slip

op. at 20, none of the legislative history cited sup-

ports the notion that Congress intended to require

a prior hearing.*® Furthermore, although the panel

6 See, e.g., the remarks of Representative Holifield and Sena-

tor Pastore cited in the panel opinion at p. 19: “[A]mend-

ment [to section 189(a)] in no way limits the right of an

interested party to intervene and request a hearing at some

later stage ...” (Emphasis added).

Even if petitioners sought to bottom their right to a prior

hearing on due process grounds, rather than on the language

of section 189(a), cf. slip op. at 15-16 n. 20, discussed in

note 9 infra, it is not clear why in most license amendment

cases that right could not be accommodated “at a meaningful

time and in a meaningful manner” by a post-amendment hear-

ing. Cf. Mathews v. Eldridge, 424 U.S. 319, 348-49 (1976).

Intervenor-Respondents have suggested that in the vast ma-

jority of license amendment cases involving no significant

hazards considerations, opportunity for a hearing after the

amendment has issued would still allow full consideration of

all issues involved without endangering plant safety or inter-

fering with normal plant operations. See Intervenor-

rejects Judge McGowan’s unambiguous statement in

Union of Concerned Scientists as dictum, its subse-

quent analysis of the legislative history of the 1962

amendments to section 189(a) makes no mention of

the broad and careful statutory analysis of those

amendments which lay at the heart of Judge Mc-

Gowan’s well-reasoned opinion.”

Respondents’ Petition for Rehearing and Suggestion for Re-

hearing En Banc at 12. See also Boyd Affidavit at 5; note 11

infra.

Certainly the panel could have reached its result without

disrupting the Commission’s prevailing practice of dispensing

with prior hearings on trivial license amendments involving

no significant hazards, simply by adopting the type of balanc-

ing test previously approved by this court in Union of Con-

cerned Scientists:

[A]dministrative action taken prior to a full hearing has

always been permissible when the state’s interest in act-

ing promptly to promote the general welfare, including

economic well-being, outweighs the individual’s interest

in having an opportunity to be heard before the state

acts, perhaps in error, in ways that may cause him

significant injury.

Union of Concerned Scientists v. AEC, 499 F.2d 1069, 1081

(D.C. Cir. 1974) (emphasis added). This principle allows the

decision whether or not to grant a prior hearing to be based

on the facts of the individual case, rather than upon a pro-

nouncement as broad as the one made here.

TIronically the panel rejects Judge McGowan’s statement

as dictum because “[t]he court provided no support for its

far-reaching statement, nor did it even make mention of the

recently decided Brooks case,” a case which we believe to be

inapposite. Slip op. at 14 n.18. Yet the panel’s subsequent

analysis of the legislative history of the statutory language

at issue ignored both the general thrust as well as the express

language of Judge McGowan’s opinion.

In Union of Concerned Scientists, Judge McGowan read the

Atomic Energy Act to “erect [ ] a regulatory scheme vir-

40a

The panel’s reading of the statute and legislative

history becomes even more remarkable when com-

bined with its extraordinarily broad conception of

what constitutes a request for a hearing, slip. op.

at 19 n.25. Reading Brooks to hold “that expressions

of interest may be sufficient to constitute a request for

a hearing,” the pane! then finds that “petitioners’

continued interest in—and opposition to—the actions

of the NRC at TMI-2 clearly constituted a request

tually unique in the degree to which broad responsibility is

reposed in the administrative agency, free of close prescrip-

tion in its charter as to how it shall proceed in achieving the

statutory objectives,” 499 F.2d at 1077, citing Siegel v. AEC,

400 F.2d 778, 783 (1968). The legislative goal of the 1962

amendments, he noted, was to eliminate the kind of unneces-

sary procedures imposed here: “[T]he primary purpose of the

1962 amendments [was] to unburden the Commission by

authorizing it to... remov[e] the necessity of holding unnec-

essary an! duplicative hearings.” 499 F.2d at 1077 (D.C.

Cir. 1974) (emphasis added).

Furthermore, Judge McGowan expressed a marked lack of

sympathy with petitioners’ “fundamental misunderstanding

of the AEC licensing process,” suggesting that in cases like

this one Congress did not intend to give the public an un-

equivocal right to participation:

The role of the A[tomic] S[afety] L[icensing] B[oard]

is not to compile a record; it is to review a record already

compiled by the Staff and A[dvisory] C[ommittee on]

R{eactor] S[{afeguards], who have responsibility for the

sufficiency of that record. .. . In the Atomic Energy Act

. .. [Congress] authorized the Commission, in its discre-

tion, to determine that certain applications present no

“significant hazards considerations” and to dispense with

notice and publication of impending approval, excluding

the public altogether.

Id. at 1078 (emphasis added).

4la

for a hearing.” * By finding such facts to constitute

a hearing request, the per curiam opinion has vir-

tually read out of the statute the requirement that

a hearing be requested. Yet the statutory language

leaves no doubt that the NRC has no statutory duty

to provide hearings on license amendments when none

are requested. Furthermore, as the panel recognized,

slip op. at 15 n.20, the statute expressly authorizes

the NRC to dispense with thirty days’ notice and

publication, even if an express request for a hearing

is made, so long as the NRC has made the requisite

finding of “no significant hazards consideration.”

We submit that the panel’s interpretation of sec-

tion 189(a), taken as a whole, renders it virtually

impossible for the NRC faithfully to follow the ex-

plicit congressional directives found within that sec-

tion. The panel has, in effect, eviscerated the congres-

sional mandate found in both the third and fourth

sentences of section 189(a). Since under the panel’s

standard almost any expression of interest constitutes

a “request,” the NRC will rarely be able confidently

to dispense with a hearing on a licensing amendment,

despite the fact that Congress authorized it to do so

in sentence three. Since the panel recognizes that it

is absurd to hold a hearing without first providing

notice to interested persons,’ the NRC will never be

8 Slip op. at 19 n.25. The panel finds the fact that “‘petition-

ers were among the many that submitted comments in April-

May 1980” to the NRC regarding the NRC’s Environmental

Assessment of the plant’s decontamination somehow to but-

tress its finding of an individual hearing request. Id.

® The panel opinion requires that even when there is an un-

disputed finding of no significant hazards, clearly permitting

the Commission to dispense with the 30 days’ notice and publi-

cation statutorily prerequisite to a hearing, that a hearing

must be held nonetheless, even without notice or publication

42a

able safely to dispense with the publication even when

a routine amendment undisputedly involves no sig-

nificant hazards considerations, despite the fact that

Congress authorized it to do so in sentence four.”

to anyone who has a continuing interest in the matter. While

acknowledging that this result is “paradoxical,” slip op. at

15-16 n.20, the panel implies that such a result might never

come about because the due process clause of the Fifth Amend-

ment or the Administrative Procedure Act may mandate that

the Commission give interested persons some form of notice

and publication prior to amending a license, even if the statute

expressly authorizes it to dispense with thirty days’ notice and

publication. Id. If the panel meant to imply by this tantalizing

suggestion that notice and publication were in fact constitu-

tionally required in this case, we believe it should have made

that point explicitly so that that finding could properly have

been the subject of further review.

This repeated evasive tactic by some panels of this court has

not gone unnoticed. See, e.g., Scalia, Vermont Yankee: The

APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. CT.

REv. 345, 372 (criticizing this court’s tendency to render deci-

sions which are de facto unreviewable) :

{T]he most important factor leading to the de facto

unreviewability of the D.C. Circuit’s positions is the

failure of that Court itself to facilitate review, even

when the most fundamental issues are at stake. Or to

put the point more critically: The pattern of dicta,

elternate holdings, and confused holdings out of which

the D.C. Circuit’s [hybrid rulemaking principles] . . . so

clearly and authoritatively emerged had the effect, if not

the purpose of assuring compliance below while avoiding

accountability above.

10 Even if the Commission makes an uncontested finding

that no significant hazards will result from a license amend-

ment, must it nevertheless hold a hearing on that amendment

for anyone who has previously expressed interest in or oppo-

sition to the NRC in related matters in the past, so long as

that person continues to express some interest? Despite the

48a

Finally, while we believe the question deserves fur-

ther briefing, we are also troubled by the clear indica-

tions in the opinion that the panel stretched to lay

down a blanket rule for all cases in a case that was

arguably moot “ and whose facts were unique and, at

points, ambiguous. The parties have suggested that

fact that the Commission is statutorily authorized to dispense

with thirty days’ notice and publication in such a case, is it

nevertheless required, swa sponte, to contact anyone who has

submitted a comment about a relevant rulemaking in the pre-

ceding months to see if that person would like a hearing?

41 Although we do not specifically challenge the panel’s find-

ing of mootness, slip op. at 8-12, we express some doubt that

the issue which the panel chose to resolve was truly one both

“capable of repetition, yet evading review.” Southern Pac.

Term Corp. v. ICC, 219 U.S. 498, 515 (1911) (emphasis

added). The Department of Justice, the Commission, and

intervenors all convincingly argued that although tle question

decided here—whether the NRC is required to hold a hearing

before issuing a license amendment based on a finding of “no

significant hazards”——may well recur in the future, it is un-

likely to evade review. See Memorandum of Respondent

United States of America at 4 (“[T]here is no reason to be-

lieve that [the NRC’s] actions will characteristically be irre-

versible.”) ; Brief for Respondent Nuclear Regulatory Com-

mission at 19-25. See also Intervenor-Respondents’ Petition

for Rehearing and Suggestion for Rehearing En Banc at 12:

The vast majority of operating license amendments—

and particularly those involving no significant hazards

consideration—are reversible. Changes such as shortened

surveillance intervals can be lengthened; revised calcula-

tional techniques can be replaced with the prior methods.

. .. In this respect, the amendment facilitating krypton |

venting from Three Mile Island Unit 2 was truly excep-

tional in that once released the krypton could not be

reclaimed. Even in cases where “irreversible action” is

involved, a subsequent hearing would still have the salu-

tory [sic] effect of assuring thorough NRC consideration.

44a

the panel erred not only in summarily finding that a

proper request for a hearing had been made, but also

in finding that such a request, even if made, had not

later been withdrawn.” At a minimum, we would

have the parties brief and argue these questions as a

prerequisite to determining whether the panel’s broad

ruling was in fact necessary to its disposition of the

case.

A number of judges and commentators have leveled

criticism at this court for its continuing unwilling-

ness to be guided by the Supreme Court’s unequivocal

directive in Vermont Yankee Nuclear Power Corp.

v. NRDC, 485 U.S. 519 (1978) (reversing NRDC

v. NRC, 547 F.2d 688 (D.C. Cir. 1976), and remand-

ing to this court for a determination of adequacy of

the record) .”

12 See Memorandum of Respondent United States of Amer-

ica at 22:

At the ASLB hearing, . . . petitioner Sholly had an

opportunity to press his claim that §189(a) entitled

him to such a hearing; he could have attempted to con-

vince the ASLB that the license amendment was invalid

because the Commission had not granted a prior hearing.

Instead of attempting to do so, he “formally withdrew”

his motion to stop the release of radioactive krypton

pending the outcome of the hearing. ... He refused to go

forward with the hearing. In this way the Commission

was deprived of an early opportunity to correct its error.

... This is a further reason for believing that the petition

is moot... .

(Emphasis added.)

18 See, e.g., Scalia, Vermont Yankee: The APA, the D.C.

Circuit, and The Supreme Court, 1978 Sup. CT. REv. 345, 345

(Vermont Yankee brought “into question the willingness of

the D.C. Circuit to be guided by the Supreme Court”) ;

Friendly, Book Review, 8 HorsTRa L. REV. 471, 481 (1980)

45a

In Vermont Yankee, the Suyreme Court spoke to

this court with one voice, making it “absolutely

clear” that “[a]bsent constitutional constraints or

extremely compelling circumstances the ‘administra-

tive agencies should be free to fashion their own rules

of procedure and to pursue methods of inquiry capa-

ble of permitting them to discharge their multitudi-

nous duties.’” 435 U.S. at 543 (citations omitted).

The unanimous Court went on specifically to caution

us against the type of procedural-imposition which

has occurred here:

[Ijf courts continually review agency proceed-

ings to determine whether the agency employed

procedures which were, in the court’s opinion,

perfectly tailored to reach what the court per-

ceives to be the “best” or “correct” result, judi-

cial review would be totally unpredictable. And

the agencies, operating under this vague injunc-

tion to employ the “best” procedures and facing

the threat of reversal if they did not, would un-

doubtedly adopt full adjudicatory procedures in

every instance.

Id. at 546.

It is hard to imagine a case where the Supreme

Court’s concluding statement in Vermont Yankee

could be more apposite than here:

(D.C. Circuit judges may have become “overly enthusiastic”

in imposing procedural requirements on administrative

agencies); Byse, Vermont Yankee and the Evolution

Of Administrative Procedure: A Somewhat Different View,

91 Harv. L. REV. 1823, 1832 (1978) (continued judicial im-

position of procedural requirements on agencies reflects ‘“‘in-

sensitivity to the concerns of the agency in deploying its re-

sources to conduct its business, undue self-confidence in the

assumption that the court’s procedural prescription is ‘best,’

and lack of trust in the political process ...”).

46a

Nuclear energy may some day be a cheap, safe

source of power or it may not. But Congress has

made a choice to at leest try nuclear energy, es-

tablishing a reasonable review process in which

courts are to play only 2 limited role. The funda-

mental policy questions appropriately resolved in

Congress and in the state legislatures are not

subject to xeexamination in the federal courts un-

der the guise of judicial review of agency action.

Time may prove wrong the decision to develop

nuclear energy, but it is Congress or the States

within their appropriate agencies which must

eventually make that judgment. In the meantime

courts should perform their appointed function.

435 U.S. at 557-58 (emphasis in original).

We submit the issues raised by Sholiy demand recon-

sideration.

47a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1980

No. 80-1691

STEVEN SHOLLY and DONALD E. HOSSLER,

PETITIONERS

Vv.

UNITED STATES NUCLEAR REGULATORY COMMISSION,

ET AL. and UNITED STATES OF AMERICA, RESPONDENTS

METROPOLITAN EDISON COMPANY, ET AL.,

INTERVENORS

80-1783

PEOPLE AGAINST NUCLEAR E‘NERGY, PETITIONER

Vv.

UNITED STATES NUCLEAR REGULATORY COMMISSION;

JOHN AHEARNE, VICTOR GILINSKY, RICHARD T.

KENNEDY, JOSEPH M. HENDRIE, and PETER A.

BRADFORD, in Their Individual Capacities; and THE

UNITED STATES OF AMERICA, RESPONDENTS

METROPOLITAN EDISON COMPANY, JERSEY POWER &

LIGHT COMPANY, and PENNSYLVANIA ELECTRIC

COMPANY, INTERVENORS

48a

No. 80-1784

IN RE: PEOPLE AGAINST NUCLEAR ENERGY,

PETITIONER

PETITIONS FOR REVIEW OF ORDERS OF THE

UNITED STATES NUCLEAR REGULATORY COMMISSION

and for WRIT OF MANDAMUS

Before: WRIGHT, Crief Judge, and MIKVA and

EDWARDS, Circuit Judges

JUDGMENT

These causes came on to be heard on the petitions

for review of orders of the United States Nuclear

Regulatory Commission and for a Writ of Mandamus

and were argued by counsel. On consideration of the

foregoing, it is

ORDERED AND ADJUDGED by this Court, that

respondent Commission acted unlawfully in refusing

to hold a hearing in connection with the June 12,

1980, Venting Order, all in accordance with the opin-

ion of this Court filed herein this date.

Per Curiam

For the Court

/s/ George A. Fisher

GEORGE A. FISHER

Clerk

Date: November 19, 1980

Opinion Per Curiam

49a

APPENDIX D

UNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION

Commissioners:

John F, Ahearne, Chairman

Victor Gilinsky

Richard T. Kennedy

Joseph M. Hendrie

Peter A. Bradford

Docket No. 50-820

IN THE MATTER OF

METROPOLITAN EDISON CoMPANY, é¢ al.

(Three Mile Island Nuclear Station,

Unit 2)

MEMORANDUM AND ORDER

The Commission has before it a staff recommenda-

tion that the licensee, Metropolitan Edison Company,

et al., be authorized to commence a controlled purging

of the TMI-2 reactor building atmosphere in order to

remove the remaining radioactive Krypton-85.’ To

meet the requirements of the National Environmental

Policy Act, the staff has submitted in support of this

1 Most of the radionuclides originally released into the con-

tainment atmosphere have decayed to insignificant levels.

The dominant remaining radionuclide is the gas, Krypton-85

(Kr-85), which has a 10.7-year half-life. The Environmental

Assessment states that approximately 57,000 curies of Kr-85

are mixed in the containment atmosphere, as determined by

periodic sampling of Kr-85 concentrations.

50a

recommendation a “Final Environmental Assessment

for Decontamination of the Three Mile Island Unit

2 Reactor Building Atmosphere,” NUREG-0662, May

1980. The draft version of this assessment and two

subsequent addenda were issued for public comment,

and by the close of the comment period on May 16,

1980 approximately 800 responses have been received.

These are summarized in Section 9 of the final assess-

ment and major comments are included in Volume II

of NUREG-0662. The Commission received further

information regarding the proposed purging at oral

briefings by the staff on June 5, 1980 and June 10,

1980.

In a Statement of Policy dated November 21, 1979

the Commission announced its intent to prepare a

programmatic environmental impact statement on de-

contamination and disposition of radioactive waste

resulting from the March 28, 1979 accident at Three

Mile Island, Unit 2. The policy statement noted that

if the best interest of public health and safety re-

quired prompt decontamination action prior to com-

pletion of the programmatic statement, such action

would not be precluded. The Commission stated

among other things, however, that no action to purge

the containment of radioactive gases would be taken

without a prior eavironmental review and opportun-

ity for public comment. Before we can approve the

staff’s recommendation for controlled purging of the

TMI-2 containment, we must thus decide whether

there is sufficient need for prompt decontamination of

the containment atmosphere to justify going ahead

prior to completion of the programmatic impact state-

ment. We must also decide whether the decontamina-

tion method recommended by the staff can be carried

out consistent with the Commission’s statutory man-

date to ensure adequate protection of public health and

5la

safety and whether the environmental review has

met the requirements of the National Environmental

Policy Act.

The immediate goal of the proposal to purge the

reactor building atmosphere is to remove radioactive

particulates and gases released into the containment

by the accident. There are s2veral methods discussed

in the Environmental Assessment by which the radio-

active krypton can be removed. The method recom-

mended by the staff involves controlled release to the

outside atmosphere of the gases in the containment

through the existing plant ventilation system, the

hydrogen control subsystem, and the reactor building

purge system. The release rates would be controlled

so as to take place only during acceptable metrologi-

cal conditions, which would be continuously monitored,

such that the dose limits established by 10 CFR Part

20, the design objectives of 10 CFR Part 50, Ap-

pendix I, and the provisions of 40 CFR Part 190.10,

to the extent they may be applicable, will not be

exceeded by the controlled purging.’ In addition to

monitoring of releases by the NRC, radiological moni-

toring during the proposed controlled purging would

2 The most restrictive regulation is 10 CFR Part 50, Appen-

dix I. Appendix I sets forth gaseous release annual off-

site dose design objectives of 5 millirems to the total body

and 15 millirems to the skin. The purging will be limited

so that the maximally exposed individual could not receive a

dose from purging that exceeds this objective. Gaseous

releases from TMI-2 unrelated to purging are expected to be

insignificant, so that the annual dose from gaseous effluents

should not exceed the annual Appendix I design objective by

any significant amount, if at all. Purging will likely result

in doses that will exceed the reporting levels of IV.A of

Appendix I, but this is of no concern in view of the assurance

that the purging will be within the annual design objective.

52a

be conducted by the U.S. Environmental Protection

Agency (EPA), the Commonwealth of Pennsylvania,

the U.S. Department of Energy and Metropolitan

Edison Company.

The Environmental Assessment contains ample evi-

dence to show that risk to physical health from the

proposed purge or from any of the alternative de-

contamination methods considered by the staff would

be negligible. See Table 1.1, NUREG-0662. The as-

sessment also addresses the effects on the psychological

well-being of persons living in the vicinity of TMI.

The staff concluded that psychological stress result-

ing from the proposed venting of Kr-85 will be less

than from any of the alternatives, including the al-

ternative of taking no action. Testimony at the June

5, 1980 oral briefing by expert consultants on the

question of psychological stress supported this con-

clusion and indicated that purging the containment

should have the net effect of reducing the stress which

otherwise would occur if positive steps are not taken

promptly to proceed with decontamination and re-

duce uncertainty about the present and future condi-

tion of TMI-2.

Removing Kr-85 from the containment atmosphere

would yield a number of important and immediate

benefits. Radiation from Kr-85 at the concentration

levels found inside the containment significantly

limits worker access and precludes extensive opera-

tions needed to gather information, inspect and main-

tain equipment, and proceed toward the eventual re-

moval of the highly radioactive damaged nuclear fuel

from the reactor core. Decontaminating the atmos-

phere would relieve workers performing necessary

maintenance and cleanup activities from hazards of

working in awk»rd protective clothing and risk from

53a

penetrating gamma radiation associated with the

decay of Kr-85.° Moreover, there is no serious ques-

tion that removal of the Kr-85 from the containment

atmosphere is a necessary step toward core defueling.

Until the fuel is removed, TMI-2 will continue to

present a potential risk to public health and safety.

Thus, decontaminating the containment atmosphere

has an immediate and independent utility which jus-

tifies proceeding at this time,* provided that the pro-

posed method is acceptable on health and environ-

mental grounds.

Because of the importance to the public of having

a clear understanding that purging the TMI-2 con-

tainment presents a minimal risk to physical health,

we review here the basis for concluding that the phy-

sical health impacts of venting Kr-85 under proper

controls will be negligible. This conclusion was sup-

ported by the U.S. Environmental Protection Agency,

the U.S. Department of Health and Human Services,

the National Council on Radiation Protection and

Measurements, the Pennsylvania Department of En-

vironmental Resources, and the Union of Concerned

Scientists. Governor Thornburgh of Pennsylvania has

indicated in a letter to Chairman Ahearne, dated May

8 Only .4% of the Krypton-85 decays in a way that emits

gamma rays. At the concentrations in the reactor building,

this would be significant to workers. After mixing with the

atmosphere, it does not threaten the public health and safety.

4The President’s Council on Environmental Quality was

consulted on the staff’s proposal to vent Kr-85. In a letter

dated May 19, 1980, and relying on the staff’s technical

analysis, the Council advised “that as a matter of procedure,

staff’s proposal does not violate 40 CFR Section 1506.1 (1979)

(limitations on actions during NEPA process) of the Council’s

regulations implementing the National Environmental Policy

Act.”

54a

16, 1980, that he adopts the consensus that the dose

rates associated with controlled purging are insig-

nificant. Krypton-85 has no significant food pathway

involvement and in 99.6 percent of its radioactive

decays emits only low energy beta particles which

primarily affect the skin, one of the tissues least

susceptible to radiogenic concerns. The Environ-

mental Assessment estimates that to the maximally

exposed individual the risk of skin cancer “would be

equivalent to spending 30 minutes in the sun. The

average individual in the population would have an

added risk of skin cancer equal to about a half-second

of exposure to the sun’s rays.” NUREG-0662, p. 7-7.

The total lifetime-individual cancer risk to the maxi-

mally exposed individual would be about one in six-

teen million, compared to a normal lifetime expect-

ancy of one chance in five from all types of cancer.

NUREG-0662, p. 7-2.

Of course, most persons would receive a dose much

smaller than the estimated maximum. The Environ-

mental Assessment estimates that the collective offsite

dose to the population within 50 miles of TMI-2 will

be 0.76 and 63 person-rem for total-body and skin

doses, respectively. NUREG-0662, Table 1.1. Based

on these figures and on a cancer mortality risk esti-

mate of 135 deaths per million person-rem,* the En-

vironmental Assessment finds that “[t]he cancer mor-

6 At the oral briefing the staff reported that estimated total-

body doses to the U.S. and world populations were about 15

person-rem and 60 person-rem respectively.

* This risk estimate is taken from the 1972 Report of the

Committee on the Biological Effects of Ionizing Radiation,

“The Effects on Populations of Exposure to Low Levels of

Ionizing Radiation,” National Academy of Sciences, Novem-

ber 1972.

55a

tality risk among the general population within 50

miles resulting from the purge option would be about

0.0001.” In other words, the chance that the pro-

posed purge would cause a cancer death among the

general public living within 50 miles of TMI is about

one in ten thousand. Although the impacts described

above apply specifically to a slow purge as originally

recommended by the staff, the Environmental As-

sessment notes that they also apply approximately

to a fast purge alternative conducted under meteoro-

logical conditions favorable for atmospheric disper-

sion. The staff’s current recommendation calls for

use of a fast purge rate if weather conditions permit.

The Commission agrees with the technical staff that

the physical health impact of this recommended action

may be termed insignificant.”

Alternative methods which could reduce offsite radi-

ation exposure still further were considered in the

Environmental Assessment, including several sugges-

tions offered by commenters on the draft assessment.

These included variations of the purging method

whereby the Kr-85 would be injected into the at-

mosphere at a higher level, either by various means

of elevating the release po’ :t higher than the existing

160-foot stack or by heating the gases prior to dis-

charge to increase its buoyancy. The staff also con-

sidered methods whereby the krypton could be cap-

tured and stored indefinitely or until the radioactivity

decayed to insignificant levels (about 100 years).

These methods include (1) selective absorption of

7 At the oral briefing the staff noted in answer to a question

by the Commission about possible health hazards to animals

that humans are generally more sensitive to radiation than

other living things and that the proposed purging would

clearly have no significant effect on animals.

56a

krypton by a scaled-up version of a system now in

operation at Oak Ridge National Laboratory, (2)

absorption of large quantities of charcoal, (3) gas

compression and storage in pressurized containers,

and (4) extracting the Kr-85 by liquefying it through

cryogenic processing. The alternatives considered ap-.

pear to have varying degrees of practicality, but the

staff found that none of them could be implemented

in the near future or, for that matter in a time period

much short of a year at the best.* The controlled

purging method of decontamination recommended by

the staff can be implemented immediately. Since the

physical health risks of the purging method are ex-

tremely small to begin with and since decontaminat-

ing the TMI-2 containment atmosphere should not be

unnecessarily delayed, for reasons we have already

discussed, the Commission agrees with the staff that

the possibility of reducing very small physical health

risks still further does not justify significant delay

and uncertainty associated with implementing an al-

ternative process.

Although the Commission has considered the ques-

tion of psychological stress, firm conclusions on this

subject are not possible. We believe that the alterna-

tive chosen will in fact minimize stress, but we heve

no special competence in this field. It is clear tnat

different aspects of the TMI clean-up are sources of

®In particular, the staff investigated a suggestion that the

selective absorption process could be placed into operation

in six months by using equipment said to be available from

the National Aeronautics and Space Administration and other

sources. The suitability of this equipment turned out to be

questionable, and the proposed schedule for design and pro-

curement appeared unrealistic. The staff’s minimum time

estimate for making a selective absorption system operational

was 16 months.

57a

stress to different people. However, it is difficult for

us to evaluate with precision whether choosing an al-

ternative which would delay TMI cleanup would cause

more or less stress than the controlled purging of

Kr-85 which a broad consensus of scientific opinion

considers safe. We are confident only that the stress

will be lessened 1) by our having chosen a plan which

rests on a very wide consensus that physical health

is not threatened by the krypton release, 2) by having

the krypton release occur over the shortest time con-

sistent with the public health and safety, and 3) by

a clear step toward cleaning up other potential

sources of radiation at the damaged reactor. These

three principles are part of this decision.

The Commission thus finds that decontamination

of the TMI-2 containment atmosphere should be

carried out promptly by the purging method recom-

mended by the staff. Physical health impacts will be

negligible, and a long-term reduction in the sources

of psychological stress is expected.’ Thus, there is

adequate assurance that public health and safety

will be protected as required by the Atomic Energy

Act. We agree with the conclusion of the Environ-

mental Assessment that the proposed action will have

no significant adverse effect on the environment. Ac-

cordingly, no environmental impact statement need

® The Commission has not yet determined whether psycho-

logical stress is a health concern cognizable under the Atomic

Energy Act and/or an environmental impact cognizable under

NEPA. We are presently considering these issues in connec-

tion with the TMI-1 restart proceeding. In the Matter of

Metropolitan Edison Company (Three Mile Island Nuclear

Station, Unit No. 1), Docket No. 50-289. In view of our

finding that the proposed venting of Kr-85 is likely to have an

overall beneficial effect on psychological stress, the present

decision does not hinge on how the issues are finally resolved.

58a

be prepared and a negative declaration to this effect

may issue. In view of the scope and detail of the

Environmental Assessment and the extensive solicita-

tion of public comment, we believe in any case that

the purposes of NEPA have been served and that

preparation of a formal EIS, had one been required,

could not add significantly to the level of environ-

mental consideration and public disclosure already

achieved.

TMI-2 is presently being maintained pursuant to

restrictions in an order issued by the Director, Office

of Nuclear Reactor Regulation on February 11, 1980

requiring the licensee, Metropolitan Edison Company,

to maintain the facility in accordance with the re-

quirements of revised technical specifications set forth

as an attachment to that order. In implementation

of the Commission’s Policy Statement of November

21, 1979, these specifications included the restriction

that “purging or other treatment of the containment

atmosphere is prohibited until approved by the NRC

. -’ In the present order we give the approval

contemplated by that restriction insofar as necessary

for the licensee to conduct a purging of the TMI-2

containment, commencing no sooner than 10 days

from the date of this order, in accordance with the

proposal recommended by the NRC staff as presented

to the Commission in the record for this proceeding.

The licensee shall conduct this purging in accordance

with procedures approved by the NRC, pursuant to

Section 6.8.2 of proposed Appendix A to the Tech-

nical Specifications, NUREG-0432, as made binding

on the licensee by the February 11, 1980 order of the

Director, Office of Nuclear Reactor Regulation.

Commissioner Gilinsky concurs in the result. Com-

missioner Bradford’s separate views are attached.

59a

Information regarding the carrying out of this de-

cision will be available at 717-782-4014 or 944-0418.

It is so ORDERED.

Yor the Commission

/s/ Samuel J. Chilk

SAMUEL J. CHILK

Secretary of the Commission

Dated at Washington, D.C.

this 12th day of June, 1980.

60a

SEPARATE VIEWS OF

COMMISSIONER BRADFORD

While I agree with the result and much of the rea-

soning in the foregoing Order, I feel compelled to note

that it is misleading in three respects:

1. It states that the Union of Concerned Scientists

“supported” the conclusion that the physical health

impacts of venting Krypton-85 under proper con-

trols will be negligible. The Union of Concerned

Scientists did agree with that proposition, but it

is disingenuous to imply that UCS agrees with the

venting alternative chosen here. The UCS report

to Governor Thornburgh is explicit in stating that

the NRC’s venting alternative should not be un-

dertaken because other alternatives are avaiiable

within what UCS views as a reasonable period of

time and would reduce psychological stress. Thus,

UCS should not be listed in the Commission’s

statement in a fashion designed to imply that they

are in accord with the NRC’s action.

2. The Order states that the staff also considered

methods “whereby the krypton could be captured

and stored indefinitely or until the radioactivity

decayed to insignificant levels (about 100 years).”

In fact, as was brought out at the June 10 meet-

ing on this subject, there would probably be no

need to store the krypton for any long period of

time. There is a commercial market for Krypton-

85, and if an alternative to venting were chosen,

the recovered krypton could probably be sold and

would not need to be stored. The real argument

against recovering the krypton is that the several

recovery methods take too long and cost too much

6la

when weighed against the fact that venting will

have no significant radiation-related public health

impacts. The language suggesting that long-term

storage is a serious problem should not have ap-

peared in the staff’s environmental assessment and

should not appear in this Order.

3. The staff assessment of the cryogenic processing

method of recovering the Krypton-85 did not deal

adequately with the availability of a completed

cryogenic processing system at the Hope Creek

nuclear facility. This system is already completed

and is on skids and could be moved easily to the

site. It could certainly complete its task in less

than the 20 months assigned as the minimum for

a cryogenic processing alternative. However, I am

persuaded that it too would be likely to take at

least a year and is therefore not a reasonable al-

ternative to the venting plan endorsed in this

order.

I am astonished to have to make these points in a

separate opinion, but the Commission has declined to

include them in the body of the Order.

62a

APPENDIX E

UNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION

Docket No. 50-320

IN THE MATTER OF

METROPOLITAN EDISON COMPANY, ET AL.

(Three Mile Island Nuclear Station, Unit 2)

ORDER FOR TEMPORARY MODIFICATION

OF LICENSE

I,

Metropolitan Edison Company, Jersey Central

Power and Light Company and Pennsylvania Elec-

tric Company (the licensee) are the holders of Facil-

ity Operating License No. DPR-73, which had au-

thorized operation of the Three Mile Island Nuclear

Station, Unit 2 at power levels up to 2772 megawatts

thermal. By Commission order dated July 20, 1979,

the licensee’s authority to operate the facility, except

as provided therein, was suspended. The facility,

which is located in Londonderry Township, Dauphin

County, Pennsylvania, is a pressurized water reactor

used for the commercial generation of electricity.

IL,

On March 28, 1979, an accident at the Three Mile

Island Nuclear Station Unit 2 resulted in substantial

damage to the reactor core and to certain reactor

systems and components. The facility is not capabie

of normal operation and is in a shutdown condition

with fuel in the core. The facility is being main-

68a

tained in a stable, long-term cooling mode in accord-

ance with the previsions of the Commission order,

dated February 11, 1980. That order did not affect

the limits on release of gaseous radioactive effluents

set forth in Appendix B, section 2.1.2 of the technical

specifications attached as a condition of the license.

However, the krypton-85 (Kr-85) released into the

reactor building during the accident must be removed

from the building so that workers can begin the

tasks necessary to clean the building, maintain in-

struments and equipment, and eventiially remove the

damaged fuel from the reactor core. Those tasks

must be performed whether or not the plant ever

again produces electricity. Radiation from the kryp-

ton gas, although thinly dispersed through the re-

actor building atmosphere, nevertheless poses a threat

to workers who would have to work in the building

for prolonged periods. The preferred method for

removing Kr-85 is a kind of flushing or purging

process by which the gases would be exhausted from

the building and fresh air pulled in.

Section 2.1.2 of the Appendix B technical specifi-

cations contains both instantaneous and quarterly

limits for releases of noble gases, including Kr-85,

to the atmosphere. These limits were developed with

normal facility operations in mind and were phrased

as limits on releases rather than limits on off-site

doses (the effects of the releases) so that compliance

with the limits would not necessarily depend on off-

site dose measurements. Instead, on-site measure-

ments of the amounts of materials released would be

used for determining compliance. These limits could

serve to unnecessarily delay the time required to

complete the purging process. The revised limits de-

scribed below would remove this difficulty. They are

64a

expressed as limits on off-site doses rather than as

limits on releases. An extensive environmental moni-

toring network is set up in the Three Mile Island

area that is capable of producing prompt and fre-

quent off-site dose measurements. This network,

along with on-site measurements of releases and

meteorology measurements, will be used to assure

compliance with the new limits. Under the revised

limits the dose to the maximally exposed individual

off-site will be within the limits of the Commission’s

regulations that would apply if the reactor were

operating normally.* Thus the new limits will not

be inimical to public health and safety. In addition,

since the principal effect is merely to switch from

release limits to dose limits, with the same concept

of limiting health effects to a specified low amount

in mind, the change involves no significant hazards

consideration.

The nature and effects of the purging process are

described more fully in the Commission’s Memoran-

dum and Order in this matter, dated June 12, 1980,

and NUREG-0662, “Final Environmental Assess-

ment for Decontamination of the Three Mile Island

Unit 2 Reactor Building Atmosphere”, May 1980.

* The most restrictive regulation is 10 CFR Part 50, Ap-

pendix I. Appendix I sets forth gaseous release annual off-

site dose design objectives of 5 millirems to the total body

and 15 millirems to the skin. The purging will be limited so

that the maximally exposed individual could not receive a dose

from purging that exceeds this objective. Gaseous releases

from TMI-2 unrelated to purging are expected to be insig-

nificant, so that the annual dose from gaseous effluents

should not exceed the annual Appendix I design objective by

any significant amount, if at all. Purging will likely result in

doses that will exceed the reporting levels of IV.A of Appendix

I, but this is of no concern in view of the assurance that the

purging will be within the annual design objective.

65a

Il.

The Commission has found for the reasons stated

above that a temporary and immediate revision to

section 2.1.2 of the Appendix B technical specifica-

tions would not be inimical to the public health and

safety and involves no significant hazards considera-

tion. Accordingly, pursuant to sections 161b and 189a

of the Atomic Energy Act of 1954, as amended, and

10 CFR sections 2.204 and 50.54(h) of the Commis-

sion’s regulations, section 2.1.2 of the Appendix B

technical specifications is amended, effective immedi-

ately, by adding at the end thereof the following:

Only for the period of the purge of the TMI-2

reactor building atmosphere, Section 2.1.2h is

deleted and Sections 2.1.2a and 2.1.2c are super-

seded by the following:

Do not exceed for the maximally exposed in-

dividual * in any one of the 16 (221%4°)

sectors centered on the T’MI-2 reactor build-

ing any of the following:

(a) 15 mrem skin dose

(b) 5 mrem total body dose

(c) 20% of the limits in (a) and (b)

shall not be exceeded over any one

hour period,

* Maximally Exposed Individual

(1) One hypothetical individual within each of 16 sectors

at off-site location with maximum anticipated dose.

(2) No allowance for occupancy time—assume individual

present continuously.

(8) No hypothetical individual shall receive more than

dose design objectives of (a) and (b) above.

66a

In addition, pursuant to Section 6.8.2 of the

proposed Appendix A Technical Specifica-

tions, NUREG-0432, made binding on the

licensees by the February 11, 1980 order of

the Director of the Office of Nuclear Reactor

Regulation (NRR), any purging shall be

conducted in accordance with procedures ap-

proved by the Director, NRR.

Under the above conditions, the licensee is

to minimize the total time required to com-

plete purging the reactor building to 10 CFR

Part 20 MPC (for workers).

IV.

The licensee or any person whose interest may be

affected may, within thirty days, file a request for a

hearing with respect to this Order in accordance with

the provisions of 10 CFR 2.714. In the event a hear-

ing is held, the issues shall be: (1) whether the temp-

orary technical specification modification imposed

herewith (described in Part III above) is in the in-

terest of the public health and safety; and (2) whether

this Order should be sustained. A request for a hear-

ing will not stay the effectiveness of this Order. In

the event a hearing is held, it shall be consolidated

with any hearing held in regard to Commission or-

ders in this docket dated February 11 and May 12,

1980. 5

A request for a hearing by the licensee or another

person must be filed with the Office of the Secretary,

U.S. Nuclear Regulatory Commission, Washington,

D.C. 20555. Attention: Docketing and Service Sec-

tion. A copy of the request for a hearing should also

be sent to the Executive Legal Director, U.S. Nuclear

67a

Regulatory Commission, Washington, D.C. 20555 and

to Mr. George F. Trowbridge, of Shaw, Pittman,

Potts, and Trowbridge, 1800 M Street, N.W., Wash-

ington, D.C. 20036, attorney for the licensee. Any

questions regarding the contents of this Order should

be directed to the Chief Hearing Counsel, Office of the

Executive Legal Director, U.S. Nuclear Regulatory

Commission, Washington, D.C. 20555.

For further details with respect to this action, see

(1) Operating License DPR-73, as amended, (2)

NUREG-0662, “Final Environmental Assessment for

Decontamination of the Three Mile Island Unit 2

Reactor Building Atmosphere”, dated May 1980, (3)

Commission Memorandum and Order, dated June 12,

1980. All of the above documents are available for in-

spection at the Commission’s Public Document Room,

1717 H Street, N.W., Washington, D.C. and at the

Commission’s Local Public Document Room at the

State Library of Pennsylvania, Government Publica-

tions Section, Education Building, Commonwealth and

Walnut Streets, Harrisburg, Pennsylvania 17126, and

of the York College of Pennsylvania, Country Club

Road, York, Pennsylvania.

For THE NUCLEAR REGULATORY

COMMISSION

/s/ Samuel J. Chilk

SAMUEL J. CHILK

Secretary of the Commission

Dated at Washington, D.C.

on June 12, 1980.

YG. ©. covennmant printine orrice; 1981 342969 294