Petition — United States Nuclear Regulatory Commission v. Steven Sholly

Office-Supreme Court, U.S.

FILED

80-1656

APR 2 1961

No.

=.

Supreme Court of the United State

OcTOBER TERM, 1980

METROPOLITAN EDISON COMPANY, JERSEY CENTRAL

Power & LIGHT COMPANY AND PENNSYLVANIA ELECTRIC

COMPANY,

Petitioners,

V.

PEOPLE AGAINST NUCLEAR ENERGY, STEVEN SHOLLY AND

DONALD E. HOssLer,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

MARK AUGENBLICK

Attorney of Record

GEORGE F. TROWBRIDGE

Jay E. SILBERG

SHAW, PITTMAN, PoTTs & TROWBRIDGE

1800 M Street, N.W.

Washington, D.C. 20036

(202) 822-1000

Counsel for Petititoners

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C,

i

QUESTION PRESENTED

Whether the court of appeals erred in ruling that the

Nuclear Kegulatory Commission must hold a prior hear-

ing on a proposed amendment to a nuclear power plant

license whenever an interested party requests one, not-

withstanding a correct finding by the Commission that

the amendment presents ‘‘no significant hazards con-

sideration’’?

Supreme Court Rule 28.1 Statement:

General Public Utilities Corporation Parent

Metropolitan Edison Company Subsidiary

Jersey Central Power & Light Company Subsidiary

Pennsylvania Electric Company Subsidiary

GPU Service Corporation Subsidiary

eee

TABLE OF CONTENTS

PAGE

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DORRIT OO TES CAMB os i Sk See hie eee hex bs 3

REASONS FOR GRANTING THE WRIT ..............200005 6

Rs ou Wa smh nines oe oalieh eee Owe bs a eee wk wis 17

Appenpbix A: Order Of The Court Of Apes Denying

Suggestion For Rehearing En Banc...... la

APPENDIX B: Order Of The Court Of Appeals Denying

UNE Sin oh aie 4G 6 kw AMER Oe Ea Ces 19a

Appenpbix C: Opinion Of The Court Of Appeals And

FE iis v's PEST os eh ee Pe be abe 2la

APPENDIX D: NRC Order For Temporary Modification

Of License Dated June 12, 1980 ........ 45a

APPENDIX E: NRC Memorandum And Order Dated

FU Ads BOOO 0 8s CUO Re ee thes Sla

APPENDIX F: Exhibit A To Petition For Rehearing And

Suggestion For Rehearing En Banc...... 6la

iv

TABLE OF AUTHORITIES

CASES: PAGE

Brooks v. Atomic Energy Commission, 476 F.2d 924

GA Os RUGS Win ah abbabtacheve coeands eo eons e 11

E.E.O.C. v. Associated Dry Goods Corp., ____. U.S.

SE Tees COE CEDURE aes aaa Eke vo seen ve 13

General Electric Company (Vallecitos Boiling Water

Reactor), 1 AEC 541 (1960) .............ceeeeeee 8

Maggio v. Zeitz, 333 U.S. 56 (1948) .......... eee eee 11

Mullane v. Central Hanover Bank & Trust Company,

BOP UB FeO IO hi 60k ASA ir sa ere heces teveds 12

North Alabama ress, Inc. v. United States, 585 F.2d

PUR Tals, COTM i a vine So cinGin 8K oee aaa: Wane we he 12

Northern Indiana Public Service Co. v. Porter County

Gen of the Izaak Walton League, 423 U.S. 12 -

Power Reactor Development Co. v. International Union

of Electrical, Radio and Machine Workers, AFL-

BER, SOT MP: SOO TIONED occd dv eeeevbeens sc because 13

Schroeder v. City of New York, 371 U.S. 208 (1962).... 12

Sholly v. Nuclear Regulatory Commission, F.2d

A. CE, os chp ebe meee Ohi es oceans 2

Union of Concerned Scientists v. Atomic Energy Com-

mission, 499 F.2d 1069 (D.C. Cir. 1974)........... 11

Vermont Yankee Nuclear Power Corporation v. National

Resources Defense Council, 435 U.S. 519 (1978)... 7, 16

Walker v. City of Hutchinson, 352 U.S. 112 (1956) ..... 12

STATUTES AND RULES:

Ae Io 65.6 4d dae 0 5 cia ena s Veendeace de phen hh 12

Be REED o's «6 G4 1k p Sahn we Dp ERE Ves bane 2

es Sa NID 5 i iin Sin’ nas Mo AAO ROR ROCs Ceghage 15

Se Ware RE a 6 ab 65d 00'S Uh CR EGCEL EMO 00 00 deen 15

Vv

Table of Authorities Continued

STATUTES AND RULES: PAGE

RRM MCS | o's gue 02 oS Rede aA w OOH REEL Oe CaaS 4

Mes AMO ee Cede cee hN ee eNea code bakes cceen oils 12

A SD ses chu ewkkuws be cemeeee denne’ 2

Administrative Procedure Act, 5 U.S.C. §551 et seq..... 6

Pub. L. 85-256, 71 Stat. $76 (1957)... ccc cree ccs ense 8

Pub. L. 87-615, 76 Stat. 409 (1962) ..........ceeeenee 7

Pub. L. 93-438, 88 Stat. 1233 (1974) ..........ceee eee 9

mi Menweateon 50.59 (ISG) ks i eee boo iiciae cba tats 9, 10

MISCELLANEOUS:

Staff of the Joint Committee on Atomic Energy, 87th

Cong., Ist Sess., Improving the AEC Regulatory

Process, Joint Comm. Print (1961)............... 9, 10

AEC Regulatory Problems: Hearing Before the Subcom-

mittee on Legislation of the Joint Comm. on

Atomic Energy, 87th Cong., 2d Sess. (1962)........ 8, 10

S. Rep. No. 1677, 87th Cong., 2d Sess., reprinted in

[1962] U.S. Code Cong. & Ad. News 2207........ 10, 13

27 Federal Register 5491 (1962) ................000005- 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

METROPOLITAN EDISON COMPANY, JERSEY CENTRAL

Power & LIGHT COMPANY AND PENNSYLVANIA ELECTRIC

COMPANY,

Petitioners,

Vv.

PEOPLE AGAINST NUCLEAR ENERGY, STEVEN SHOLLY AND

DONALD E. HOssLer,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Metropolitan Edison Company, Jersey Central

Power & Light Company and Pennsylvania Electric

Company (‘‘petitioners’’) hereby petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the District of Columbia Circuit

entered in this case.'

' In the court below, party-respondents who are not named in the

above caption include the following: The United States of America,

United States Nuclear Regulatory Commission, John Ahearne, Vic-

tor Gilinsky, Richard T. Kennedy, Joseph M. Hendrie and Peter A.

Bradford.

2

OPINIONS BELOW

The orders of the court of appeals denying the peti-

tion for rehearing and the suggestion for rehearing en

banc, with a dissenting statement filed by four Judges,

(App. A and B, pp. la-19a, infra) have not been

reported. The panel decision of the court of appeals

(App. C, pp. 21a-44a) also has not been reported.

JURISDICTION

The judgment of the court of appeais was entered

on November 19, 1980. The appellate court’s orders de-

nying rehearing and rehearing en banc (App. A, p. 2a;

App. B, p. 19a), were entered on March 4, 1981. The

jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

STATUTE INVOLVED

Section 189(a) of the Atomic Energy Act (the

“‘Act’’), as amended, 42 U.S.C. §2239(a), provides in

relevant part:

In any proceeding under this chapter, for the

granting, suspending, revoking, or amending of any

license or construction permit *** 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

proceeding. The Commission shall hold a hearing

after thirty days’ notice and publication once in the

Federal Register, on each application *** for a con-

struction permit for a facility *** [T]he Commission

may, in the absence of a request therefor by any

person whose interest may be affected, issue *** an

amendment to an operating license without a hear-

ing, 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 ap-

3

plication for *** an amendment to an operating

license upon a determination by the Commission

that the amendment involves no significant hazards

consideration.

STATEMENT OF THE CASE

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

curred at Three Mile Island Nuclear Station, Unit 2

(‘*TMI-2’’), resulting in the accumulation of radioactive

krypton gas in the reactor containment building.

Removal of the gas was necessary before further decon-

tamination and cleanup of the facility could be

undertaken.

In the year following the accident, the Nuclear

Reguiatory Commission (‘‘the Commission’’) prepared

and issued first a Draft and then a Final Environmental

Assessment on decontamination of the TMI-2 reactor

containment building atmosphere. These documents

evaluated various alternatives to accomplish decon-

tamination in light of over eight hundred written com-

ments received from individuals and organizations,

statements made at public hearings, meetings held with

representatives of citizen groups in the area around

TMI-2, and the advice of Federal, State and local

government agencies and scientists having expertise with

regard to the subject of decontamination and related

matters. The Final Environmental Assessment concluded

that decontamination of the reactor building atmosphere

was essential, that all the alternative means for ac-

complishing decontamination would have a negligible im-

pact on the public health, and that a controlled release

of the containment atmosphere to the outside environ-

ment (‘‘purging’’) was the most desirable alternative and

therefore the recommended course of action.

4

The Commission reviewed the Final Environmental

Assessment at two public meetings and at one meeting

with the Advisory Committee on Reactor Safeguards

(“‘ACRS’’), a prestigious independent panel charged with

reviewing Commission licensing actions for their poten-

tial safety implications. See, 42 U.S.C. §2039. These

deliberations resulted in unanimous agreement that purg-

ing the reactor containment building atmosphere was the

best way to eliminate the krypton gas, and that the

physical health and environmental impacts from purging

would be negligible.

The Commission ther issued two Orders on June

12, 1980. One, entitled ‘‘Order For Temporary

Modification of License’’, made a temporary modifica-

tion to the TMI-2 license to permit purging to occur at a

faster rate than the plant’s Technical Specifications then

aliowed, but without increasing the radioactive dose to

any member of the public. Appendix D, pp. 45a-49a.

The other Order, entitled ‘‘Memorandum and Order’’,

authorized purging to be conducted starting 10 days

from the date of the Order. Appendix E, pp. 51la-60a.

The Order for Temporary Modification of License

was made effective immediately. That Order included a

finding that the license amendment it authorized

presented no significant hazards consideration within the

meaning of Section 189(a) of the Act. Appendix D at p.

47a. The Order also provided that a hearing could be

sought within 30 days by any party whcse interest might

be affected, but a request for a hearing would not stay

the effectiveness of the Order. Jd. at p. 48a.

Respondents filed a petition for review of the two

Orders with the United States Court of Appeals for the

District of Columbia Circuit. Their petition sought to

suspend the effectiveness of the Orders and further

5

sought a declaratory judgment that amendments to the

TMI-2 operating license required notice and a prior hear-

ing. The court of appeals denied respondents’ request for

temporary relief, which precipitated a flurry of motions

and petitions filed with the Courts of Appeals for both

the District of Columbia Circuit and the Third Circuit,

in which respondents sought to enjoin the scheduled

purging of the TMI-2 reactor containment building. All

motions for injunctive relief were denied, and the actions

in the two Circuits were consolidated in the District of

Columbia Circuit.

Purging at TMI-2 began on June 28 and was com-

pleted on July 11, 1980. It resulted in off-site radioactive

doses even lower than anticipated and well within all

permissible dose limits set forth in applicable Commis-

sion regulations, the restrictions set in the TMI-2

operating license, and the requirements of the June 12

Order.

The consolidated review petitions went forward on

respondents’ request for a declaratory judgment that the

Commission had deprived them of their statutory right

to notice and a prior hearing on the TMI-2 license

amendment and the Order authorizing purging. On

November 19, 1980, a panel of the Court of Appeals for

the District of Columbia Circuit held, in a per curiam

decision, that under Section 189(a) of the Act the Com-

mission ‘‘is required to hold a hearing on license amend-

ments whenever interested parties request one.’’ Appen-

dix C, p. 44a. The court was of the view that respond-

ents had requested a hearing.? Therefore, under the

court’s construction of the statute, the Commission

? The court of appeals held that ‘‘petitioners’ continued interest

in — and opposition to — the actions of the NRC at TMI-2 clearly

constituted a request for a hearing.’’ App. C at p. 39a, n.25.

6

was required to hold a hearing prior to making the

Orders effective.

Petitions for rehearing by petitioners and the Com-

mission, and petitioners’ suggestion for rehearing en

banc, were denied by the court of appeals on March 4,

1981. Appendix A and B at pp. la-19a. Four Judges

dissented from the denial of the suggestion for rehearing

en banc and filed a 15 page ‘‘Statement On Denial of

Rehearing En Banc.’’ Appendix A at pp. 3a-17a.

REASONS FOR GRANTING THE WRIT

The court of appeals below decided an important

question of federal law, namely whether the Commission

is required under Section 189(a) of the Act to hold a

prior hearing on a proposed amendment to a nuclear

power plant operating license upon request, notwithstan-

ding that the amendment has no health or safety

significance. The court of appeals’ decision requires the

attention of this Court, since it construes a federal

statute in a manner that is directly contrary to the intent

of Congress, that conflicts with a prior judicial construc-

tion of the same provision, that results in an anomalous

procedure which offends both the Administrative Pro-

cedure Act (“‘APA’’), 5 U.S.C. §551 ef seqg., and fun-

damental notions of due process, and that flies in the

face of the interpretation consistently given to the statute

by the agency charged with administering it.

If allowed to stand, the decision below will throw

the Commission’s regulatory process back to the paralyz-

ed state that prompted Congress to amend the Act in

1962 to add the very ‘‘no significant hazards considera-

tion’ language which the Commission invoked here. The

practical result of the decision will be to force the closing

of nuclear power plants throughout the nation, without

7

compensating benefits to the health and safety of the

public. Review by this Court is therefore imperative.

1. Section 189(a) of the Act does not require a man-

datory prior hearing on every amendment to a nuclear

power plant license simply because one is requested. Sec-

tion 189(a) provides that licensing actions for nuclear

power reactors fall into three categories:

(1) construction permits, which require a man-

datory hearing after thirty days notice and publica-

tion in the Federal Register (second sentence);

(2) operating licenses or amendments to construc-

tion permits or operating licenses involving signifi-

cant safety issues, which do not require a prior

hearing if none is requested after thirty days notice

and publication, but do require a hearing if one is

requested by an interested party (first and third

sentence); and

(3) amendments to construction permits or

operating licenses with respect to which the Com-

mission has made a determination that the amend-

ment ‘‘involves no significant hazards considera-

tion,’’ which require neither notice nor a prior hear-

ing (fourth sentence).’

This construction follows from a fair reading of Section

189(a) and is inescapable when the statute is read in light

of its legislative history, particularly the purpose sought

to be served by the amendments which added the ‘‘no

significant hazards consideration’’ language at issue here.

Section 189(a) reached its present form in the 1962

amendments to the Act, Pub. L. 87-615, 76 Stat. 409

> The complex process established by the Act and Commission

regulations for the licensing of commercial nuclear power reactors

is described in Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, 435 U.S. 519, 525-527 (1978).

(1962). As first enacted in 1954, Section 189(a) contained

only the first sentence of what is now the text of the

statute. In 1957, the Act was amend ed to add essentially

the second sentence, which established a mandatory

public hearing at the construction permit stage of licens-

ing a nuclear power reactor. Pub. L. 85-256, 71 Stat.

576 (1957).

The Commission initially interpreted the 1957

amendments to require it to give notice and to hold a

hearing every time an operating license or a construction

permit was granted or amended.‘ The Commission’s in-

terpretation resulted in an inordinate number of un-

necessary hearings,’ a situation which both Congress and

the Commission rapidly came to regard as unacceptable.

The Commission began to grapple with the problem

in the Vallecitos proceeding, General Electric Company

(Vallecitos Boiling Water Reactor), 1 AEC 541 (1960).

There, the Commission authorized a simplified pro-

cedure whereby a license amendment found by the Com-

mission staff to present ‘‘no significant new hazards con-

siderations’”” could be approved directly by the staff

without prior notice or opportunity for a hearing. Copies

of the “‘no significant new hazards consideration’’ fin-

ding and the amendment authorization were filed in the

public record of the proceeding so that interested parties

could file exceptions or seek judicial review.

* See, e.g., AEC Regulatory Problems: Hearing Before a Sub-

comm. on Legislation of the Joint Comm. on Atomic Energy, 87th

Cong., 2d Sess. (1962) (‘AEC Regulatory Hearing’), at 6

(Testimony of Commissioner Olson).

* As Commissioner Olson illustrated ‘‘the technical specifications

often covered even the color of outbuildings, and in order to

vhange them we had to go through the same process [of hearings.]"’

AEC Regulatory Hearing at 7.

9

This change was favorably received by the Staff of

the Joint Committee on Atomic Energy in its 1961 study

on how to improve the Atomic Energy Commission

(‘‘AEC’’) regulatory process. The Joint Committee

Staff there criticized the Commission for holding hear-

ings on all licensing actions, endorsed the Vallecitos ap-

proach, and noted that ‘‘[t]he handling of changes

would be facilitated if the Commission’s recent order in

the Vallecitos case, could be broadened by statute or

regulation to a general rule.’’’

The Commission acted on this suggestion and pro-

mulgated AEC Regulation 50.59, which codified the pro-

cedure used in Vallecitos. 27 Fed. Reg. 5491, 5492-5493

(1962). Under AEC Regulation 50.59, if the Commission

staff found that a proposed amendment to a facility’s

license did not present ‘‘significant hazards considera-

tions,’’ the staff could authorize the amendment without

notice or a prior hearing. On the other hand, if the staff

found that the proposed change presented significant

hazards considerations, the change had to be referred to

the ACRS and the Commission had to order a public

hearing in accordance with applicable procedures.

It was against this backdrop of the problems caused

by the Commission’s post-1957 practice, and the subse-

quent administrative efforts to mitigate them in

Vallecitos and AEC Regulation 50.59, that the Joint

Committee on Atomic Energy proposed the 1962 amend-

ments to Section 189(a) of the Act. In hearings on the

* The Atomic Energy Commission is the forerunner of what is

' now the Nuclear Regulatory Commission. Pub. L. 93-438, 88 Stat.

1233 (1974).

’ Staff of the Joint Committee on Atomic Energy 87th Cong., Ist

Sess., Improving the AEC Regulatory Process, Joint Comm. Print

(1961), Vol. I at 73, n.4.

10

proposed legislative changes, considerable attention was

focused on the Commission’s experience of the past

several years, as reflected in submitted studies and

reports and in testimony at the Committee hearings.’ In-

deed, the Joint Committee’s report on the bill that

enacted the 1962 amendments to the Act expressly

adopted the Vallecitos approach as embodied in AEC

Regulation 50.59.°

There is thus no question that the 1962 amendments

were intended by Congress to ratify the Commission

practice as embodied in AEC Regulation 50.59, thereby

providing explicit statutory authorization for the Com-

mission to continue dispensing with notice and oppor-

tunity for a prior hearing on proposed license amend-

ments which involved no significant safety implications.

Despite this unequivocal legislative intent, the court of

appeals below reverted to the pre-Vallecitos procedures

by ordering the Commission to hold a prior hearing

whenever one is requested, making it irrelevant whether

the Commission finds that the proposed amendment has

no safety significance. Thus, the court of appeals effec-

tively read the ‘‘no significant hazards consideration’’

language out of the Act while substituting its judgment

for the will of Congress.'°

* See, Improving the AEC Regulatory Process, Vol. I at 35-37,

49-50, 73; Id., Vol. Il at 464, 484-96, 579, 581 and 582. See also,

AEC Regulatory Hearings at 6-7.

* See, S. Rep. No. 1677, 87th Cong., 2d Sess. at 7-8, reprinted in

[1962] U.S. Code Cong. & Ad. News 2207, 2214-2215.

'° The court of appeals ignored the legislative history set forth

above and instead cited selectively from portions of the legislative

history which do not, in fact, support the proposition that Congress

intended a prior hearing to be held on amendments presenting no

significant hazards considerations. See, Statement on Denial of

Rehearing En Banc, App. A at p. 10a.

In so concluding. the court of appeals relied

primarily on its earlier decision in Brooks v. Atomic

Energy Commission, 476 F.2d 924 (1973), described

below as holding that a prior hearing on a license

amendment may not be denied if requested. Brooks,

however, dealt only with the Commission’s obligation to

give notice of a proposed amendment if it does not make

a “‘no significant hazards consideration’’ determination.

The court of appeals declined to follow a subsequent

decision from the same circuit, Union of Concerned

Scientists v. Atomic Energy Commissior., 499 F.2d 1069

(1974), in which a different panel, after reviewing the

legislative history of the 1962 amendments to the Act,

stated twice that a license amendment can be made

without opportunity for a hearing if the Commission

determines tha: it involves no significant hazards con-

sideration. 499 F.2d at 1078, text at n.22, and 1084,

n.36. The court of appeals’ reliance on Brooks and

disregard of Union of Concerned Scientists evidences a

clear conflict within the District of Columbia Circuit,

which is the circuit most likely to rule on cases arising

out of Section 189(a) of the Act. This conflict,

underscored by the sharply worded dissent from the

denial of rehearing en banc, is further reason for this

Court to review the decision. Cf. Maggio v. Zeitz, 333

U.S. 56, 59-60 (1948).

2. The court of appeals’ strained reading of Section

189(a) offered below is clearly in error and must be cor-

rected. The decision acknowledges that the fourth

sentence of Section 189(a) permits the Commission to

dispense with notice of a proposed license amendment

where the amendment presents ‘‘no significant hazards

consideration.’’ App. C at p. 34a. However, in precisely

the same circumstances, the court of appeals construes

12

the statute as requiring a prior hearing on request. The

obvious paradox was dismissed below as being no more

than a paradox ‘‘in theory.’’ App. C at p. 35a, n.20.

Yet, in the court’s own words, “‘it is difficult to imagine

how a hearing can be requested when the NRC issues a

license amendment without notice.’’/d.

When judicial construction of a federal statute pro-

duces such an anomalous result, it is inherently suspect.

The effect of the decision below is to read Section 189(a)

as affording an interested party the right to demand a

prior hearing, while simultaneously denying him the right

to receive notice of the proposed action on which he is

entitled to be heard. Neither the APA nor fundamental

notions of due process countenance such a result.'' It is

inconceivable that Congress, which incorporated the pro-

cedural safeguards afforded by the APA into the Act,'?

'' Under the APA, it is beyond dispute that, if a party is entitled

to a hearing on proposed agency action, he is also entitled to

receive adequate notice of that action. See, 5 U.S.C. §554(b); North

Alabama Express, Inc. v. United States, 585 F.2d 783, 786 (Sth Cir.

1978). Indeed, this notice requirement is fundamental to due pro-

cess. Schroeder v. City of New York, 371 U.S. 208, 211-12 (1962).

Notice or proposed action and opportunity for a hearing thereon

cannot be disassociated. As this Court stated in Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), the right to a

hearing ‘‘ has little reality or worth unless one is informed that the

matter is pending and can choose for himself whether to appear or

default, acquiesce or contest.’’ See also, Walker v. City of Hutchin-

son, 352 U.S. 112, 115 (1956) (‘‘the right to a hearing is mean-

ingless without notice’). The statutory construction of Section

189%a) offered by the court below impermissibly uncouples these

two basic concepts. See App. C at p. 35a, n.20.

'2 Section 181 of the Atomic Energy Act, 42 U.S.C. §2231, states

that ‘‘[t}he provisions of the Administrative Procedure Act shall ap-

ply to all agency action taken under this chapter, and the terms

‘agency’ and ‘agency action’ shall have the meaning specified in the

Administrative Procedure Act.’’ The legislative history of the 1962

13

ever intended such an anomalous result. Rather, the

clear intent was to dispense with both notice and a prior

hearing where the proposed license amendment presents

no significant hazards to public health and safety.

3. This is the manner in which the Commission has

consistently read the statute for almost twenty years.'’

Its interpretation should not be lightly dismissed. See,

e.g., Northern Indiana Public Service Co. v. Porter

County of the Izaak Walton League, 423 U.S. 12, 14-15

(1975); Power Reactor Development Co. v. International

Union of Electrical, Radio and Machine Workers, AFL-

CIO, 367 U.S. 396, 408 (1961). This Court very recently

again emphasized that an agency’s contemporaneous

construction of its founding statute ‘‘deserves special

deference when it has remained consistent over a long

period of time [citaiion omitted].”” E.E.0.C. v.

Associated Dry Goods Corp., U.S. , 101 St.

Ct. 817, 823, n.17 (1981).

In giving short shrift to the Commission’s inter-

pretation of Section 189(a),'* the court of appeals never

amendments makes it clear that Congress intended the APA. pro-

cedures to remain applicable to the licensing process established by

the amendments. See Senate Report No. 1677, 87th Cong., 2d

Sess., at pp. 5-6, reprinted in [1962] U.S. Cong. & Admin. News,

at pp. 2212-13.

'' The Commission has consistently interpreted the 1962 amend-

ments to allow it to make license amendments which present ‘‘no

significant hazards considerations’ effective immediately without

notice or opportunity for a prior hearing. Some examples of this in-

terpretation by the Commision are listed in the court of appeals’

opinion. See, App. C at p. 40a, n.26.

'* The court of appeals felt that the Commission’s interpretation

was not worthy of deference because the statute and its legislative

history are ‘‘unambiguous’’. App. C at 40a, n.26. Only a few

sentences earlier, however, the court of appeals made the point that

14

inquired into the purposes and policies underlining that

interpretation. Had it done so, it would have realized the

grave practical consequences of abandoning the pro-

cedure that has heretofore been followed by the Com-

mission in reviewing license amendment applications.

It is noteworthy that the amendment process plays

an integral and pervasive role in the Commission’s

regulatory program for all seventy-one licensed nuclear

power reactors. Operating license amendments are ex-

tremely numerous. For example, at the present time,

there are about eight hundred license amendment actions

pending."

As part of its review of license amendment applica-

tions, the Commission staff determines whether the

amendment involves ‘‘no significant hazards considera-

tion.’’ Changes falling into that category involve changes

which are essentially neutral from a safety standpoint, as

well as changes which are believed to improve safety.

Boyd Aff. at para. 5. Of the hundreds of license amend-

ment applications pending at any one time, many would

be found to present no significant hazards consideration.

For example, in the last four calendar years, the Com-

mission has published in the Federal Register notice of

more than 1500 license amendments which fall into this

category. Id.

Obviously, any reinterpretation of statutory re-

quirements which might necessitate Commission hearings

on such a large scale, would have a dramatic impact on

the administrative machinery for regulation of nuclear

“*{t}he text and legislative history of the section are replete with am-

biguities and inconsistencies.’’ App. C at pp. 38a-39a, n.24.

'’ Affidavit of Roger S. Boyd, dated December 3, 1980 (‘‘Boyd

Affidavit’), App. F, infra at p. 62, para. 4.

15

plants. The expected delay in processing a ‘‘no hazards’’

amendment application would be at least nine months.

Boyd Aff. at para. 9. Moreover, this estimate assumes

that the Commission staff has at its disposal sufficient

resources to handle the increase in the number of hear-

ings, which is not the case. Jd. at para. 10. Nor does the

possible use of rulemaking in an effort to avoid delays

and resource allocation problems offer a viable alter-

native procedure for dealing with the expanded

workload. Id.

Such a monumental disruption of the Commission’s

current license amendment review process would serve

no discernable purpose. In fact, it would significantly

undermine the public interest. The operating license

amendments which are subject to the court of appeals’

ruling are those which present no significant danger to

public health and safety. At the present time, they or-

dinarily can be reviewed in a timely manner by the Com-

mission and, where appropriate, receive agency approval

without threatening a plant shutdown. This action is, in

most instances, not irreversible, and the availability of a

subsequent hearing assures further consideration by the

Commission of relevant issues raised by interested par-

ties. See, Boyd Aff. at para. 8.'°

The imposition of a prior hearing requirement raises

the very real specter of needless plant shutdowns while

the cumbersome hearing process runs its course. Jd. at

para. 7. In economic terms alone, the impact on the

public would be severe. Replacement power for a typical

'* Where a party alleges that he is threatened with irreparable in-

jury by a ‘‘no hazards’’ license amendment, he is not without a

remedy. The allegedly aggrieved party can seek pendente iite relief

from the court of appeals, as did petitioners here, pursuant to 28

U.S.C. §§2349(b) and 1651(a).

16

nuclear plant will cost the licensee and its customers bet-

ween $250,000 and $500,000 for each day the reactor is

down. Boyd Aff. at para. 11. In some areas of the coun-

try, particularly the Northeast, replacement power will

be generated in large part from more expensive imported

oil, used at a rate of about 30,000 barrels per day for a

1000 MWe nuclear plant. Jd. These consequences are

multiplied for every nuclear unit forced off-line as a

result of the procedures which the court of appeals’ deci-

sion would require.

4. The need for review by this Court is therefore

compelling. ‘‘[T]he panel’s interpretation of Section

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

for the NRC faithfully to follow the explicit congres-

sional directives found in that section.’’ Statement On

Denial of Rehearing En Banc, App. A at p. 13a. In so

construing the statute, the United States Court of Ap-

peals for the District of Columbia Circuit has once again

*‘unjustifiably intruded into the administrative process.”’

Vermont Yankee, supra, 435 U.S. at 556. It has dictated

a radical change in nuclear energy regulation, a change

that turns on its head the Congressional framework for

licensing nuclear power plants, and_ effectively,

‘“‘eviscerate[s] the congressional mandate found in both

the third and fourth sentences of section 189(a)... .’’

Statement on Denial of Rehearing En Banc, App. A at

p. 13a. The decision below severly impacts on the Com-

mission’s regulatory function to the decided detriment of

the utility industry and without discernible benefit to the

public. It should not be allowed to stand.

17

CONCLUSION

For all of the foregoing reasons, this petition for a

writ of certiorari should be granted.

Dated: April 2, 1981

Respectfully submitted,

MARK AUGENBLICK

Attorney of Record

GEORGE F. TROWBRIDGE

JAY E. SILBERG

SHAW, PITTMAN, Potts & TROWBRIDGE

1800 M Street, N.W.

Washington, D.C. 20036

(202) 822-1000

Counsel for Petititoners

19

CERTIFICATE OF SERVICE

I hereby certify that on the 2nd day of April, three

copies of the foregoing Petition for a Writ of Certiorari

to the United States Court of Appeals for the District of

Columbia Circuit were served by deposit in the United

States mail, first class, postage prepaid, upon each of the

following:

Hon. Wade Hampton McCree, Jr.

Solicitor General of the United States

Department of Justice

Washington, D.C. 20530

Stephen F. Eilperin, Esq.

Solicitor

U.S. Nuclear Regulatory Commission

1717 H Street, N.W.

Washington, D.C. 20555

Daniel P. Sheehan, Esq.

Robert Hager, Esq.

1324 North Capitol Street

Washington, D.C. 20530

/s/ MARK AUGENBLICK