# Appendix — United States Nuclear Regulatory Commission v. Sholly > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1552%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 451 U.S. 1016 ## Text la 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. ba 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)— 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1552%3A02. Public record. Not legal advice.