Appendix — United States Nuclear Regulatory Commission v. Steven Sholly

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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

No. 80-1783

PEOPLE AGAINST NUCLEAR ENERGY,

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

2a

No. 80-1784

In Re:

PEOPLE AGAINST NUCLEAR ENERGY, PETITIONER

ON SUGGESTION FOR REHEARING EN BANC

FILED 4 MARCH 1981

Before: MCGOWAN, Chief Judge, WRIGHT, TAMM,

ROBINSON, MACKINNON, ROBB, WILKEY, WALD,

MIKVA, EDWARDS and GINSBURG, Circuit Judges.

ORDER

The suggestion for rehearing en banc of the Public Utili-

ties has been circulated to the full court and a majority of

the court has not voted in favor thereof. On consideration

of the foregoing, it is

ORDERED, by the Court, en banc, that the suggestion

of the Public Utilities is denied.

Per Curiam

Circuit Judges Tamm, MacKinnon, Robb and Wilkey would

grant rehearing en banc. Their statement is attached.

3a

STATEMENT ON DENIAL OF REHEARING EN BANC

TAMM, MACKINNON, ROBB and WILKEY, Circuit Judges:

We would grant a rehearing en banc in Sholly, et al. v.

United States Nuclear Regulatory Commission, et al., No.

80-1691 (D.C. Cir. 19 Nov. 1980) to review the startling

proposition found within that opinion: that even when the

Nuclear Regulatory Commission (NRC) has expressly

found that a proposed amendment to an existing nuclear

power plant operating license poses “no significant haz-

ards” to human health or safety, the Nuclear Regulatory

Commission is nevertheless required to provide a pre-

amendment hearing to anyone who has expressed “contin-

ued interest in—and opposition to” its actions on related

matters. Slip op. at 19 n.25.!

The panel’s action raises an issue of “exceptional impor-

tance.” Fed. R. App. P. 35(a). Under the rubric of statuto-

ry interpretation, the panel has made a policy decision of

major consequence. The panel has read into section 189a)

of the Atomic Energy Act of 1954, 42 U.S.C. § 2239(a)

(1976), as amended, the requirement that even notwith-

standing a finding of “no significant hazards consideration”

in a proposed license amendment, the NRC must nonethe-

less hold a prior hearing on the proposed amendment upon

request of any interested person. By then drastically loos-

ening the standard for what constitutes a “request” for a

hearing, the panel has thrust upon the NRC the burden of

holding full-fledged hearings before even the most trivial

amendments to NRC operating licenses may be adopted.

We believe that the panel’s inflexible blanket rule vio-

lates the Supreme Court’s unanimous mandate in Vermont

Yankee rejecting judicial imposition of administrative pro-

cedures upon an agency in excess of the statutory minima

prescribed by Congress. Vermont Yankee Nuclear Power

Corp. v. NRDC, 435 U.S. 519, 543 (1978). Furthermore, by

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

panel opinion, where this proposition is set forth.

4a

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

forces a major reallocation of Commission resources, which

appears likely both to overwhelm the agency’s hearing ma-

chinery and to divert staff attention from safety issues of

greater significance. Finally, the panel decision threatens

to result in the closing—for as much as nine months—of

numerous power plants currently awaiting license amend-

ments pending completion of hearings, when post hoc hear-

ings might in fact be more than adequate to ventilate any

health and safety issues posed by most amendments.

The license amendment in this case—a temporary modifi-

cation of the Three Mile Island nuclear power plant’s

operating license to permit post-accident release of radioac-

tive gas from the reactor building at rates exceeding ex-

isting specifications—was atypical among NRC operating

license amendments.? Only a tiny fraction of all license

2The peculiar circumstances under which the Sholly appeal

arose made this case particularly inappropriate for judicial ar-

ticulation of sweeping procedural rules. In the aftermath of the

widely publicized Three Mile Island incident, the NRC had sus-

pended the licensee’s authority to operate the stricken plant,

requiring that the facility be maintained in a shutdown condi-

tion. Slip op. at 4. Before the accident, the plant’s operating li-

cense had expressly authorized periodic release of specified

amounts of radioactive gas into the atmosphere as part of the

plant’s normal and necessary operations. /d. at 6 n.7. Because

the incident had caused “dangerous concentrations of radioac-

tive gas [to] collect{ ] within [the power plant’s] reactor con-

tainment building, inhibiting cleanup and maintenance work,”

id. at 4, the NRC proceeded to prepare an overall study of the

environmental impacts likely to result from decontamination

and disposal of wastes resulting from the incident. In the mean-

time the Commission modified the facility’s operating licence to

prohibit any venting or purging of the reactor building atmos-

phere pending expiicit future approval. Jd. at 5.

Almost a year after the incident, after extensive environmen-

tal assessment and after concluding that release of gas from the

5a

amendments involve emergency matters so subject to fac-

tual dispute as the hazards attendant to venting radioactive

gas into the atmosphere. The Commission acts on an aver-

age of more than 400 license amendments per year. NRC’s

Motion to Stay Issuance of Mandate at 3. For the seventy-

one power reactors currently licensed for operation, some

800 license amendment actions are presently before the

Commission. The vast bulk of these concern matters such

as: changing or adding to the myriad Technical Specifica-

tions embedded in a given power plant’s 400-page operating

license, detailing a plant’s operating conditions, modifying

plant would not constitute a significant environmental impact,

the Commission tentatively recommended that the reactor

building atmosphere be decontaminated by venting the gas

through the building’s hydrogen control system. Jd. at 5-6. On

12 June 1980 the NRC modified the piant’s operating license to

permit the licensee to vent the gas from the reactor building at

a rate faster than allowed by existing specifications, based on

its explicit finding that offsite radioactive dose limits would not

be breached if the gas were vented at a rate in excess of ex-

isting release rate limits. Jd. at 6 & n.8.

The Commission further expressly found that modification of

the operating license would involve “no significant hazards con-

sideration.” Jd. at 6. The petitioners who later challenged the

NRC’s decision not to provide a hearing on that modification did

not file a request for a hearing until the day before venting was

to begin. /d. at 7. When venting finally began, release pro-

ceeded at first at a rate within the levels previously specified

for normally operating reactors. Jd. During this period petition-

ers moved to suspend the venting but then subsequently with-

drew their request on 8 July. On the same day as the request

was withdrawn, the licensee began to vent gas at the faster rate

permitted by the 12 June license amendment. Venting was com-

pleted in three days, producing offsite doses well under the ex-

pected limits; shortly thereafter the 12 June venting orders ex-

pired. The Commission has asserted, and petitioners have not

controverted, that any future purging of the Three Mile Island

reactor atmosphere will be at worst minor and sporadic. /d. at

8.

6a

surveiliance requirements, administrative controls, design

features or the like. Affidavit of Roger S. Boyd, Former

Director of the Division of Project Management, NRC Of-

fice of Nuclear Reactor Regulation at 3, attached to

Intervenor-Respondents’ Petition for Rehearing and Sug-

gestion 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 find-

ing of “no significant hazards consideration” in a proposed

amendment unless (1) the proposed change raises no signifi-

cant new safety information of a type not previously consid-

ered in prior safety reviews, (2) the change raises no signif-

icant increase in the probability or consequences of an

accident, or (3) the change offers no significant decrease in

the plant’s safety margin. /d. at 3-4. Over the past four

calendar years, the NRC has published notice in the Feder-

al Register of more than 1500 amendments to operating

plant licenses which the NRC staff found to have “no signif-

icant hazards considerations.” Jd. at 4. The NRC has rec-

ognized that delay in issuance of license amendments would

require plant shutdown if agency review is not expeditious-

ly completed.* Moreover, plants already shutdown for re-

fueling or other reasons cannot restart until such review is

completed. Thus NRC, practice and regulations have long

called for approval of hcense amendments without hearing

upon a finding of no significant hazards, accompanied by

post-approval publication of notice in the Federal Regis-

ter.

We believe that the agency’s past practice complied fully

with statutory mandates. Whether or not a finding of “no

%The former Director of the NRC’s Division of Project Man-

agement estimates that there are about 50 license amendment

applications now pending before the NRC which are likely to be

classified as having “no significant hazards considerations” 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.

7a

significant hazards consideration” has been made, no hear-

ing is required under the applicable language of section

189(a) of the Atomic Energy act, 42 U.S.C. § 2239(a)

(1976), unless a hearing has first been specifically re-

quested. The first sentence of section 189(a) only requires

the NRC to grant a hearing on a license amendment pro-

posal “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 amend-

ment without a hearing, “upon thirty days’ notice and pub-

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

(Emphasis added.) Without mentioning hearings, the

fourth sentence then specifies that the Commission may

even dispense with such “thirty days’ notice and publication

. upon a determination by the Cornmission that the

amendment involves no significant hazards consideration.”®

5Section 189(a) of the Atomic Energy Act of 1954, 42 U.S.C.

§ 2239(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 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 Commis-

sion shall hold a hearing after thirty days’ notice and

publication once in the Federal Register, on each ap-

plication . . . for a construction permit for a facility

.. ++ [T]he Commission may, in the absence of a re-

quest therefor by any person whose interest may be

affected, issue ... an amendment to an operating li-

cense without a hearing, but upon thirty days’ notice

and publication once in the Federal Register of its in-

tent to do so. The Commission may dispense with

such thirty days’ notice and publication with respect

to any application for ... an amendment to an

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 conclusion, finding

tha\: because the fourth sentence of section 189(a) refers

only to thirty days’ notice and publication, it “plainly dem-

onstrates that Congress did . . . intend to disentangle the

two requirements of notice and hearing.” Slip op. at 15.

The legislative history of the 1962 amendments to section

189(a), the panel concluded, demonstrates that “Congress

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

NRC to dispense only with notice and publication—not a

hearing—upon a finding of “no significant hazards consider-

ation.” /d. 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 in-

dependent interpretation of the relevant language in sec-

tion 189%a) ignored logic and distorted the legislative histo-

ry 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 ex-

tend the “latest completion date” specified in the permits.

Petitioners, persons living near the proposed construction

site, had earlier filed a timely request for a hearing with re-

spect to two issues: whether the provisional construction

permits should be modified to protect environmental values

operating license upon a determination by the Com-

mission that the amendment involves no significant

hazards consideration.

9a

in accordance with NEPA and whether operating licenses

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 proceedings would also permit discussion of

the first issue: modification of the construction permits. Id.

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 extending those dates

had given “no indication whatsoever that the amendment

involved no significant hazards consideration,” the court

stated “the Commission must surely make the required sig-

nificant hazards determination, and note such determina-

tion in its order, if it intends to put forward such determi-

nation as the basis for its denial of a hearing.” Jd. at 926.

Second, the court stated that because petitioners had made

an undeniable request for a hearing on modification of per-

mits, the Commission had erred in issuing the order with-

out 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 sec-

tion 18%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 18%a) requires a hearing even

when the Commission has made a “no significant hazards

consideration” finding. If that rule has indeed 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 prop-

osition directly in a case decided after Brooks, stated the

view that “jajn amendment can be made without opportuni-

ty for a hearing if the AEC determines that it “involves no

10a

significant hazards consideration.’” Union of Concerned

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, mdicate that both before and

after Brooks the NRC consistently interpreted section

189(a) to permit issuance of license amendments even with-

out hearings upon a finding of “no significant hazards con-

sideration.” Slip op. at 20 n.26.

The panel buttresses its puzzling statutory construction

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 legislative 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 legis-

lative history cited supports the notion that Congress in-

tended to require a prior hearing.* Furthermore, although

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

tor Pastore cited in the panel opinion at p. 19: “{A]mendment [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), ¢f. slip op. at 15-16 n. 20, discussed in note 9 in-

fra, 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 hearing. Cf.

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

Respondents have suggested that in the vast majority of license

amendment cases involving no significant hazards considera-

tions, opportunity for a hearing after the amendment has issued

would still allow full consideration of all issues involved without

lla

the panel rejects Judge McGowan’s unambiguous statement

in Union of Concerned Scientists as dictum, its subsequent

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 McGowan’s weil-reasoned opinion.”

endangering plant safety or interfering with normal plant oper-

ations. See Intervenor-Respondents’ Petition for Rehearing and

Suggestion for Rehearing En Banc at 12. See also Boyd Affida-

vit at 5; note 11 infra.

Certainly the panel could have reached its result without dis-

rupting the Commission's prevailing practice of dispensing with

prior hearings on trivial license amendments involving no signif-

icant hazards, simply by adopting the type of balancing test pre-

viously approved by this court in Union of Concerned Scien-

tists:

{A]jdministrative action taken prior to a full hearing

has always been permissible when the state’s interest

in acting promptly to promote the general welfare,

including economic well-being, outweighs the individ-

ual’s interest in having an opportunity to be heard be-

fore 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 de-

cision whether or not to grant a prior hearing to be based on the

facts of the individual case, rather than upon a pronouncement

as broad as the one made here.

7Ironically the panel rejects Judge McGowan’s statement as

dictum because “[tJhe court provided no support for its far-

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

ly decided Brooks case,” a case which we believe to be inappo-

site. 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 virtually

12a

The panel’s reading of the statute and legislative history

becomes even more remarkable when combined with its

extraordinarily broad conception of what constitutes a re-

quest for a hearing, slip. op. at 19 n.25. Reading Brooks to

hold “that expressions of interest may be sufficient to con-

stitute a request for a hearing,” the panel then finds that

“petitioners’ continued interest in—and opposition to—the

actions of the NRC at TMI-2 clearly constituted a request

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

unique in the degree to which broad responsibility is reposed in

the administrative agency, free of close prescription in its char-

ter as to how it shall proceed in achieving the statutory objec-

tives,” 499 F.2d at 1077, citing Siegel v. AEC, 400 F.2d 778,

783 (1968). The legislative goal of the 1962 amendments, he not-

ed, was to eliminate the kind of unnecessary procedures

imposed here: “(T]he primary purpose of the 1962 amendments

{was} to unburden the Commission by authorizing it to ... re-

movie] the necessity of holding unnecessary and 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 unequivocal

right to participation:

The role of the A[tomic] Safety] Liicensing] Board]

is not to compile a record; it is to review a record al-

ready compiled by the Staff and A([dvisory]

Clommittee on] R{eactor] S{afeguards}], who have re-

sponsibility for the sufficiency of that record. ... In

the Atomic Energy Act ... [Congress] authorized

the Commission, in its discretion, to determine that

certain applications present no “significant hazards

considerations” and to dispense with notice and publi-

cation of impending approval, excluding the public

altogether.

Id. at 1078 (emphasis added).

®Slip op. at 19 n.25. The panel finds the fact that “petitioners

were among the many that submitted comments in April-May

13a

ing request, the per curiam opinion hae virtually 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 amend-

ments when none are requested. Furthermore, as the panel

recognized, slip op. at 15 n.20, the statute expressly au-

thorizes 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 section

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

the NRC faithfully to follow the explicit congressional di-

rectives found within that section. The panel has, in effect,

eviscerated the congressional mandate found in both the

third and fourth sentences of section 189(a). Since under

the panel’s standard almost any expression of interest con-

stitutes a “request,” the NRC will rarely be able confident-

ly to dispense with a hearing on a licensing amendment, de-

spite 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 interest-

ed persons,’ the NRC will never be able safely to dispense

1980” to the NRC regarding the NRC’s Environmental Assess-

ment of the plant’s decontamination somehow to buttress its

finding of an individual hearing request. /d.

*The panel opinion requires that even when there is an

undisputed 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 to any-

one 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

l4a

\

with notice and publication even when a routine amend-

ment undisputedly involves no significant hazards consider-

ations, despite the fact that Congress authorized it to do so

in sentence four.'°

Finally, while we believe the question deserves further

briefing, we are also troubled by the clear indications in the

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 constitution-

ally 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, ¢.g., Scalia, Vermont Yankee: The

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

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,

alternate holdings, and confused holdings out of

which the D.C. Circuit’s [hybrid rulemaking princi-

ples} . . . so clearly and authoritatively emerged had

the effect, if not the purpose of assuring compliance

below while avoiding accountability above.

1©Even if the Commission makes an uncontested finding that

no significant hazards will result from a license amendment,

must it nevertheless hold a hearing on that amendment for any-

one who has previously expressed interest in or opposition to

the NRC in related matters in the past, so long as that person

continues to express some interest? Despite the fact that the

Commission is statutorily authorized to dispense with thirty

days’ notice and publication in such a case, is it nevertheless re-

quired, sua sponte, to contact anyone who has submitted a com-

ment about a relevant rulemaking in the preceding months to

see if that person would like a hearing?

1Sa

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 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

't Although we do not specifically challenge the panel’s finding

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

issue which the panel chose to resolve was truly one both “capa-

ble 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 con-

vincingly argued that although the 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 unlikely to evade

review. See Memorandum of Respondent United States of

America at 4 (“(TJhere is no reason to believe that [the NRC’s)

actions will characteristically be irreversible.”); Brief for Re-

spondent Nuclear Regulatory Commission at 19-25. See also

Intervenor-Respondents’ Petition for Rehearing and Suggestion

for Rehearing En Banc at 12:

The vast majority of operating license amend-

ments—and particularly those involving no signifi-

cant hazards consideration—are reversible. Changes

such as shortened surveillance intervals can be

lengthened; revised calculational techniques can be

replaced with the prior methods. . . . In this respect,

the amendment facilitating krypton venting from

Three Mile Island Unit 2 was truly exceptional in that

once released the krypton sould not be reclaimed.

Even in cases where “irreversible action” is involved,

a subsequent hearing would still have the salutory

(sic) effect of assuring thorough NRC consideration.

12See Memorandum of Respondent United States of America

at 22:

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

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

léa

the parties brief and argue these questions as a prerequi-

si 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 criti-

cism at this court for its continuing unwillingness to be

guided by the Supreme Court’s unequivocal directive in

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.

519 (1978) (reversing NRDC v. NRC, 547 F.2d 633 (D.C.

Cir. 1976), and remanding to this court for a determination

of adequacy of the record).'®

In Vermont Yankee, the Supreme Court spoke to this

court with one voice, making it “absolutely clear” that

him to such a hearing; he could have attempted to

convince 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 hear-

ing. ... 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.)

13Se¢e, e.g., Scalia, Vermont Yankee: The APA, the D.C. Cir-

cuit, and The Supreme Court, 1978 Sup. CT. Rev. 345, 345

(Vermont Yankee brought “into question th» willingness of the

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

Book Review, 8 HorstRa L. REV. 471, 481 (1980) (D.C. Circuit

judges may have become “overly enthusiastic” in imposing pro-

cedural requirements on administrative agencies); Byse,

Verment Yankee and the Evolution Of Administrative Proce-

dure: A Somewhat Different View, 91 HARV. L. REV. 1823, 1832

(1978) (continued judicial imposition of procedural requirements

on agencies reflects “insensitivity to the concerns of the agency

in deploying its resources to conduct its business, undue self-

confidence in the assumption that the court’s procedural pre-

scription is ‘best,’ and lack of trust in the political process

Are wy

17a

“la]bsent constitutional constraints or extremely compelling

circumstances the ‘administrative agencies should be free

to fashion their own rules of procedure and to pursue meth-

ods of inquiry capable of permitting them to discharge their

niultitudinous 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:

[I}f courts continually review agency proceedings

to determine whether the agency employed proce-

dures which were, in the court’s opinion, perfectly

tailored to reach what the court perceives to be

the “best” or “correct” result, judicial review

would be totally unpredictable. And the agencies,

operating under this vague injunction to employ

the “best” procedures and facing the threat of re-

versal if they did not, would undoubtedly adopt

a full adjudicatory procedures in every instance.

. at 546.

It is hard to imagine a case where the Supreme Court’s

concluding statement in Vermont Yankee could be more ap-

posite than here:

Nuclear energy may some day be a cheap, safe

source of power or It may not. But Congress has

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

tablishing a reasonable review process in which

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

mental policy questions appropriately resolved in

Congress and in the state legislatures are not

subject to reexamination 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 Sholly demand reconsider.-

tion.

19a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1980

No. 80-1691

STEVEN SHOLLY, DoNALD E. HossLer, Petitioners,

Vv.

Unitep STATES NUCLEAR REGULATORY COMMISSION, ef al.,

and the UNITED STATES OF AMERICA, Respondents

METROPOLITAN EDISON COMPANY, ET AL., /ntervenors.

and consolidated cases

BrroreE: Wright, Mikva and Edwards; Circuit Judges

Order

(Filed March 4, 1981)

On consideration of the petitions for rehearing of the

Nuclear Regulatory Commission and the Public Utilities, it is

ORDERED by the Court that the aforesaid petitions are

denied.

Per Curiam

For THE CourRT:

GeorGe A. FisHER, Clerk

By: Ropert A. BONNER

Robert A. Bonner

Chief Deputy Clerk

2la

APPENDIX C

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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

No. 80-1783

PEOPLE AGAINST NUCLEAR ENERGY, 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

22a

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

Robert Hager, with whom Daniel P. Sheehan was on

the brief, for petitioners.

Stephen Eilperin, Solicitor, United States Nuclear

Regulatory Commission, with whom E. Leo Slaggie, At-

torney, United States Nuclear Regulatory Commission,

was on the brief, for respondent United States Nuclear

Regulatory Commission.

David A. Strauss, Attorney, Department of Justice,

with whom James A. Moorman, Assistant Attorney Gen-

eral, and Peter R. Steenland, Jr., Attorney, Department

of Justice, were on the brief, for respondent United States

of America. Stanford Sagalkin and Lois Schiffer, Attor-

neys, Department of Justice, also entered appearances for

respondent United States of America.

Mark Augenblick, with whom George F. Trowbridge

and Matias F. Travieso-Diaz were on the brief, for inter-

venors. Robert E. Zahler also entered an appearance for

intervenors.

Before WRIGHT, Chief Judge, and MIKVA and

EDWARDS, Circuit Judges.

Opinion per curiam.

23a

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 effective without affording

petitioners their statutory rights to notice and a hearing.”

On June 26, 1980, this court denied petitioners’ request

for emergency injunctive relief to block the release of the

radioactive gas. Now that the radioactive gas from the nu-

clear plant has been fully vented into the atmosphere, the

petitioners seek only declaratory relief from this court.

1Metropolitan 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.”

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

Energy Act of 1954, 42 U.S.C. § 2239(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). 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 Federa! 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.

24a

I. BACKGROUND

This case arises in the aftermath of a widely publicized

accident that occurred on March 28, 1979 at “Unit 2” of the

Three Mile Island nuclear plant. As a result of the acci-

dent, dangerous concentrations of radioactive gas coliected

in the reactor containment building, inhibiting cleanup and

maintenance work.

Three months after the accident, the NRC issued an

“Order for Modification of License,” 44 Fed. Reg. 45,271

(1979), suspending Metropolitan Edison’s authority to op-

erate Unit 2 of the Three Mile Island plant (TMI-2), and

requiring it to “maintain the facility in a shutdown condi-

tion.” Jd. 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

Specifications setting forth appropriate license condi-

tions.” Jd.

In fact, the NRC issued no such evaluation. Instead, on

November 21, 1979, the NRC issued a “Statement of Pol-

icy and Notice of Intent to Prepare a Programmatic En-

vironmental Impact Statement,” 44 Fed. Reg. 67,738

(1979), which was to be an “overall study of the decon-

tamination and disposal process.” Jd. The NRC Statement

of Policy directed the agency’s staff

to include in the programmatic environmental impact

statement on the decontamination and disposal of

TMI-2 wastes an overall description of the planned

activities and a schedule for their completion along

with a discussion of alternatives considered and the

rationale for choices made.

Much of the factual basis for the NRC’s actions is contained

in its report, the “Final Environmental Assessment for Decon-

tamination of the Three Mile Island Unit 2 Reactor Building

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

or-Respondents’ Appendix (App.) 18.

25a

Id.

On February 11, 1980, the NRC issued another order,

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

the facility’s operating license should be modified so

as to: ... (3) Prohibit venting or purging 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 Programma-

tic Environmental Impact Statement.

Id.

Six weeks later the NRC published a notice of the

“Availability of Environmental Assessment for Decon-

tamination of the Three Mile Island Unit 2 Reactor Build-

ing Atmosphere,” 45 Fed. Reg. 20,265 (1980). The notice

stated that the Assessment “considers five alternative

methods for decontaminating the reactor building atmos-

phere and recommends that the building atmosphere be

decontaminated by purging to the environment through

the building’s hydrogen control system.” Jd.5 The NRC

staff concluded in the Assessment that venting the gas

into the atmosphere would “not constitute a significant

“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 specifica-

tions 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 (3) of the order

would not stay the effectiveness of the order. /d.

5The NRC desired to remove the radioactive gas from the

reactor building so that workers «ould 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.

26a

environmental impact and, accordingly, the staff does not

propose to prepare a separate Environmental Impact

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

ments on the Assessment originally were due by April 11,

1986, but the period was extended to May 16, 1980. 45

Fed. Reg. 30,760 (1980).

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

tal Assessment for Decontamination of the Three Mile Is-

land Unit 2 Reactor Building Atmosphere.” On June 12,

1980, the NRC issved without a hearing two final orders,

entitled “Order for Temporary Modification of License”

and “Memorandum and Order,” App. 119 and 125, respec-

tively. The first order modified the operating license® to

permit the licensee to release the radioactive gas from the

reactor building at a faster rate than the existing specifi-

cations allowed.” The first order also expressly stated

that, because the NRC had found that the modification of

the operating license involved “no significant hazards con-

sideration,” requests for a hearing would not stay the im-

plementation of the order. App. 121-23. The second order

® 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.

7Before 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, al-

though existing release rate limits would be exceeded, off-site

dose limits would not be breached. Since the NRC’s concern was

the effect of the venting on human health, the Commission felt

that the more direct measure—off-site dose limits—would pro-

vide a satisfactory standard to determine the appropriate limits

on the venting of the radioactive gas.

27a

authorized release of radioactive gas from the reactor

building.® Venting was to begin on June 22.'°

On. June 16, petitioners wrote a letter to the NRC re-

questing that it reconsider its finding of “no significant

hazards consideration” and its decision to make the June

12 orders effective immediately. The NRC did not re-

spond.

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 in-

junctive and declaratory relief. The next day, one day be-

fore the venting began, the petitioners filed a request for a

hearing with the NRC on the two June 12 orders. The

hearing request was referred to an Atomic Safety and Li-

censing Board. On July 3, the petitioners moved the Board

to suspend the venting; however, this request was sub-

sequently withdrawn, on July 8, shortly before the venting

was completed.

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 operating reactor. On

July 8, the licensee began to vent the radioactive gas at a

faster rate, pursuant to the specifications set in the June

*The NRC made no finding that this order involved “no sig-

nificant hazards consideration.” See Brief for Respondent Nu-

clear Regulatory Commission at 30, 35.

10By 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 requirement.

See note 2 supra for statutory notice and hearing requirements.

110n July 8, 1980, a petition for review (No. 80-1783) and an

accompanying petition for writ of mandamus (No. 80-17" © 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.

28a

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 radia-

tion license amendment. In its draft Programmatic En-

vironmental Report Statement, issued August 14, 1980,

the Commission stated that it did not anticipate a recur-

rence 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 Nu-

clear Regulatory Commission 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 injunctive and

declaratory relief are moot.’* However, because we find

that these cases are “capable of repetition, yet evading re-

view,”?* we hold that the petitioners’ claims are justici-

able in this court.'¢

‘2Metropolitan 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 de-

claratory relief in this action. Although petitioners cannot now

obtain injunctive relief to prevent the purging, they continue 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 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 support of declaratory

relief so that the case should not be dismissed as moot).

13See Southern Pac. Terminal Co. v. Interstate Commerce

Comm'n, 219 U.S. 498, 515 (1911).

14We note that the United States has tak... ae position that

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

29a

The mootness doctrine is primarily based on article III

of the United States Constitution, which limits federal

court jurisdiction to “cases” or “controversies.” Courts

have interpreted the constitutional provision 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.’” Tennessee Gas Pipeline

Co. v. Federal Power Comm’n, 606 F.2d 1873, 1879 (D.C.

Cir. 1979) (quoting Flast v. Cohen, 392 U.S. 83, 95

(1968)).

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 charac-

teristically be irreversible.” Memorandum of Respondent

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 illus-

trate how making an amendment effective immediately can pre-

clude complete judicial review. Second, we believe that it is un-

reasonable for the Government to take the position that, in

order to seek judicial review of a license ar dment, a

petitioner must race to the courthouse before the is RC takes an

irreversible action. Even if a petitioner could file the petition

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

to grant emergency relief. Indeed, such a request for emer-

gency relief was denied in this case. Consequently, because a

petitioner will not receive complete judicial review of his claim,

even though it might be meritorious, we find that these claims

evade review.

30a

Cases arising from agency action, no less than cases in-

volving only private parties, are subject to the mootness

doctrine. Yet, as this court has recently noted, “the con-

cept of mootness is placed under some strain in the context

of administrative orders whose formal legal effect is typ’-

cally shortlived.” Tennessee Gas Pipeline Co. v. Federal

' Power Comm'n, 606 F.2d at 1379-80. The strain is re-

lieved somewhat by an exception first articulated in

Southern Pac. Terminal Co. v. Interstate Commerce

Comm’n, 219 U.S. 498 (1911), where the Supreme Court

held that technically moot cases are justiciabie if they in-

volve “short term orders, capable of repetition, yet evad-

ing review.” Jd. 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 affected and continues

to affect a present interest.” Super Tire Engineering Co.

v. McCorkle, 416 U.S. 115, 125-26 (1974). As this case

demonstrates, administrative orders, like labor disputes,

often “do not last long enough for complete judicial review

of the cor sversies they engender .... The judiciary

must not close the door to the resolution of the important

questions these concrete disputes present.” Jd. at 126-27.)

Yet, in order to invoke the Southern Pacific exception,

the petitioner must not only show that “the challenged ac-

tion was in its duration too short to be fully litigated prior

to its cessation or expiration,” he must also show that

“there was a reasonable expectation that the same com-

plaining party would be subjected to the same action

again.” Weinstein 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 atmosphere

without first giving notice and holding a hearing. At stake

is whether the NRC will continue its policy of making im-

mediately effective license amendments without holding a

hearing, even though petitioners request one, whenever

the NRC finds that the amendment involves “no signifi-

cant hazards consideration.”

3la

Under this view of the issues in this case, the conditions

for avoiding dismissal on grounds of mootness, set forth in

Weinstein, are met. The Commission has candidly con-

- ceded 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 Commis-

sion will think itself justified in making the amend-

ment immediately effective based upon a no signifi-

cant hazards consideration finding. Certainly, that

_ kind of finding has been utilized in the past.

Brief for Respondent Nuclear Regulatory Commission at

23.15 The Commission plainly intends to adhere to its pol-

icy of denying a hearing on a license amendment, under

certain circumstances, even though interested parties spe-

cifically request a hearing. The chances of recurrence are

more than speculative; because the NRC policy will be

carried out during the TMI-2 cleanup, there is a “reason-

able expectation that the same complaining part[ies]” will

18This admission entirely undercuts Metrop...can Edison’s

argument that there is no evidence that the actions complained

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, 362 U.S. 929 (1960). In the present case, by contrast,

the NRC has clearly stated its intention to continue with its al-

legedly unlawful conduct—making certain license amendments

effective immediately without holding a requested hearing or

giving notice. We think it obvious that the NRC will also con-

tinue to rely on the second method employed in this case for

avoiding the notice and hearing requirements of § 189(a)—

describing an order as something other than a license amend-

ment. See note 6 supra. The Commission’s continued belief in

its authority to follow this policy makes petitioners’ challenge to

the policy “capable of repetition.” See Nader v. Volpe, 475 F.2d

916 (D.C. Cir. 1973).

32a

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 amendments

may well escape review. The difficulty here is that the or-

ders are often shortlived and the NRC actions, like vent-

ing, may be irreversible. The difficulty is compounded

when the NRC elects, as in this case, to make its orders

effective immediately. These considerat.cns indicatc that

future challenges to the NRC policy may easily “evade re-

view.”

This court has stated that “(t]he situations [involving

appellate consideration of recurrent controversies] are

necessarily variant, and the variables complex. . . . [T]he

court’s decision to maintain the appeal, in the interest of

sound judicial administration, is depet.dent on a prediction

of a recurrene~ or continuation of what is perceived te be

essentially tl. same legal dispute.” Alton & Southern

Railway Co. v. International Ass’n of Machinists &

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

“While an ‘effective remedy’ for the immediate dispute is

not obligatory, there must be at least a capacity for a dec-

laration of legal right concerning a future projection of the

actual dispute that precipitated the litigation.” Jd. at

879-80. In the present case, that capacity exists, and we

hold that this case is not moot.

III. THE ORDER FOR TEMPORARY MODIFICATION

OF LICENSE

The NRC issued without a hearing the “Order for Tem-

porary Modification of License” (OTML) of June 12, 1980,

which substituted off-site dosage limits for release limits

in the TMI-2 operating license. The petitioners contend

that the NRC’s failure to provide a hearing violated sec-

tion 189(a) of the Atomic Energy Act of 1954. The first

sentence of that section provides in relevant part:

33a

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 NRC and Metropolitan Edison do not dispute that the

OTML constituted a license amendment subject to the

terms of section 189(a). They do maintain, however, that

under the fourth sentence of the section the Commission

could dispense with a hearing. The fourth (and last) sen-

tence of section 189(a) read:

The Commission may dispense with such thirty days’

notice and publication with respect to any application

for an amendment to a construction permit or an

amendment to an opereting license upon a determina-

tion by the Commission that the amendment involves

no significant hazards consideration. -

The NRC and the licensee argue that the NRC properly

made a finding of “no significant hazards consideration”

with respect to the OTML, and that consequently a hear-

ing was not required. Although the last sentence of section

189(a) only explicitly “dispense[s] with ... thirty days’

notice and publication” upon a determination of “no sig-

nificant hazards consideration,” the NRC and the licensee

contend that such a determination also permits the Com-

missien to dispense with a hearing because notice and a

hearing are inextricable. '®

16The petitioners, challenging the correctness of the “no sig-

nificant hazards consideration” determination, also contend that

the NRC was required under the third sentence of § 189(a) to

provide 30 days’ notice and publication in the Federal Register

of the Commission's intent to issue the license amendment with-

out a hearing. The third sentence provides that

the Commission may, in the absence of a request therefor

by any person whose interest may be affected, issue an

34a

We are convinced that such a finding did not permit the

NRC to dispense with a hearing that is otherwise required

by section 189(a).*7 This is not the first case in this circuit

in which it has been argued that a finding of “no significant

hazards consideration” permits the NRC to issue a license

amendment without a hearing. In Brooks v. Atomic

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

curiam), this court soundly rejected the contention that

the fourth sentence in section 189(a) “indicate[d] Congres-

sional intent to dispense with hearings in construction

permit amendment proceedings . . . when the Commission

determines that the amendment involves ‘no significant

hazards consideration.’” Instead this court, after an

examination of the legislative history of section 189(a),

held that the fourth sentence only dispenses with require-

ments of notice and publication. Because this circuit has

previously rejected the very construction of section 189(a)

offered by the NRC and the licensee,’* the doctrine of

operating license or an amendment to a construction per-

mit or 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.

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

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

required to hold a hearing, we need not reach the question

whether the Commission was required to provide 30 days’ notice

of its intent to issue the license amendment without a hearing.

17It is noteworthy that respondent United States concedes—

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

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

of Respondent United States at 4-21.

31t is true, of course, that 15 months after the Brooks deci-

sion this court stated in dictum in a footnote that “[aJn amend-

ment can be made without opportunity for a hearing if the AEC

determines that it ‘involves no significant hazards considera-

_ tion.’” Union of Concerned Scientists v. Atomic Energy

Comm'n, 499 F.2d 1069, 1084 n.36 (D.C. Cir. 1974). The court

provided support for its far-reaching statement, nor did it

35a

stare decisis compels us to hold that the NRC improperly

failed to provide a hearing in the instant case.

Moreover, even if this court were not bound by stare

decisis, we would still adopt the Brooks interpretation of

the last sentence of section 189(a). The plain language of

section 189(a) dispels any notion that by a finding of “no

significant hazards consideration” the NRC may dispense

with the hearing requirement. The fourth sentence makes

no mention of the hearing requirement’s being lessened,

but makes reference only to the requirements of notice

and publication. Despite the plain, unambiguous language

contained in the last sentence, the NRC and Metropolitan

Edison suggest that the requirements of hearing and

notice are so intertwined that the reference to notice in

the fourth sentence must also comprehend a hearing.

While it is true that requirements of notice and hearing

are interrelated, it is clear that Congress was not merging

them in section 189(a). That is demonstrated by the third

sentence of the section where Congress made explicit ref-

erence to the hearing requirement.’® That sentence plainly

demonstrates that Congress did indeed intend to disen-

tangle the two requirements of notice and hearing,?° and

even make mention of the recently decided Brooks case, which

had squarely held to the contrary on the basis of the legislative

history of § 189(a). We accordingly decline to place any reliance

on the dictum in Union of Concerned Scientists.

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

20We are cognizant of the fact that the plain meaning of the

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

duces in theory a somewhat paradoxical result. Under the

fourth sentence the NRC may issue a license amendment with-

out providing 30 days’ notice and publication in the Federal

Register of its intent to do so, while under the third sentence

the NRC need not provide a hearing when or? has not been

requested. As the NRC and the licensee note, __‘s difficult to

imagine how a hearing can be requested when the NRC issues a

license amendment without notice. This “paradoxical result” did

36a

“to lessen the mandatory hearing requirement only when

there was no request for a hearing.” Brooks v. Atomic

Energy Comm'n, 476 F.2d at 927.

A review of the legislative history of the 1962 amend-

ments to section 189(a)—by which the last two sentences

of the section were added—also firmly persuades us that

the Brooks court properly construed the last sentence of

section 189(a). That history demonstrates that the 1962

amendments to section 189(a) had their origin in congres-

sional concern over a hearing requirement in uncontested

cases—that is, when a hearing had not been requested.?*

Representative of that concern was the statement by

not occur, however, in the instant case. Although petitioners did

not formally request a hearing prior to issuance of the OTML,

their prior expressions of interest constituted in effect a re-

quest for a hearing. See note 25 infra. It is also unclear whether

the “paradoxical result” will ever in fact occur. As the NRC

conceded at oral argument, there may be some type of notice

requirement—although perhaps not 30 days’ notice and publica-

tion in the Federal Register—implicit in the opportunity to seek

judicial review of determinations of “no significant hazards

consideration.” Moreover, our decision today does not reach the

question whether some notice of the NRC’s intention to amend a

license is required under the due process clause of the Four-

teenth Amendment or the Administrative Procedure Act not-

withstandin _ finding of “no significant hazards consideration.”

21Indeed, counsel for Metropolitan Edison testified in 1961

before the Joint Committee on Atomic Energy and argued for

retention of a hearing requirement when a hearing has been re-

quested:

I hope that this committee will seriously consider repeal

of the mandatory hearing requirements of section 189(a),

leaving intact, of course, the provisions for a hearing at the

request of any person whose interest may be affected by

the licensing proceedings.

Radiation Safety and Regulation: Hearings Before the Joint

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

timony of George F. Trowbridge).

37a

Raoul Berger, serving as an American Bar Association

spokesperson, that

14 out of 15 of [the Atomic Energy Commission’s]

cases have been uncontested. And the central prob-

lem appears to be whether trial-type proceedings

should be employed under sections 7 and 8 of the Ad-

ministrative Procedures [sic] Act in uncontested

cases ....

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

S. 3491 Before the Subcomm. on Legislation of the Joint

Comm. on Atomic Energy, 87th Cong., 2d Sess. 64 (1962)

(statement of Raoul Berger) (emphasis added).22 Accord,

e.g., id. at 32 (statement of Herzel H.E. Plaine, Chairman,

Special Comm. on Atomic Energy Law, ABA). Thus an

interpretation of section 189(a) that would permit the

NRC to issue a contested license amendment without a

hearing would enlarge section 189(a) beyond the scope

originally intended.?*

22In response the staff counsel to the Joint Committee noted:

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

difficulty, the backgrou' ‘hat led to the Joint Committee

study and the bills, was t..e concern over the handling by

AEC of uncontested cases... .

AEC Regulatory Problems: Hearings on H.R. 12336 and S. 3491

Before the Subcomm. on Legislation of the Joint Comm. on

Atomic Energy, 87th Cong., 2d Sess. 70 (1962) (remarks of

David Toll).

23In support of its interpretation of § 189(a) the NRC quotes

from a letter written in 1961 by former AEC Commissioner

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

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

Cong., lst Sess., Improving the Regulatory Process, Vol. II, at

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

suggest, in ambiguous terms, that the Commissioner was of the

view that the AEC should be able to dispense with hearings on

license amendments upon a finding that “no substantial new

safety questions” are presented. See Reply Brief for Re-

spondent Nuclear Regulatory Commission at 9. Even if Com-

38a

The 1962 Report of the Joint Committee on Atomic

Energy 2iso suggests that Congress perceived the changes

to section 189(a) as permitting the NRC to dispense only

with notice and publication—not a hearing—upon a find-

ing of “no significant hazards consideration”:

In the absence of a request for a hearing, issuance of

an amendment to a construction permit, or issuance of

an operating license, or an amendment to an operat-

ing license, would be possible without forma! pro-

ceedings, but on the public record. . . .

Finally, it is expected that the authority given

AEC to dispense with notice and publication would

be exercised with great care and only in those in-

stances where the application presented no significant

hazards consideration.

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

No. 1677, 87th Cong., 2d Sess. 8 (1962) (emphasis added).

And in a committee hearing one year prior, the Joint

Committee on Atomic Energy had noted:

When no substantial safety question is involved in

... the amendment... the public interest would be

protected by ... publication of an apt notice in the

Federal Register '“ and the giving of an opportunity

to any interested party to intervene... .

missioner Olson intended his comments to apply to contested

matters, it is clear from the rest of the legislative history that’

Congress did not share the Commissioner’s view.

24It is not entirely clear what the Committee meant by the

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

Presumably it only refers to publication of the amendment after

the Commission has issued it. This is not inconsistent with the

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

with 30 days’ notice and publication in the Federal Register of

the Commission's intent to issue a license amendment without

a hearing.

This ambiguity in the quoted ianguage is not unique in the

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

39a

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

ist Sess., Improving the Regulatory Process, Vol. II, at

49-50 (Comm. Print 1961) (emphasis added). The language

of the reports, consonant with the plain meaning of section

189(a), thus indicates that the section only permits the

NRC to issue a license amendment without a hearing when

there has been no hearing request.?5

Statements by Representative Holifield, Chairman of

the Joint Committee on Atomic Energy, and Senator

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

houses further reinforce the language in the reports. Both

individuals explicitly stated the’ “he “amendment [to sec-

tion 189(a)] in no way limits th- right of an interested

party to intervene and request a hearing at some later

stage, nor does it affect the right of the Commission to

hold a hearing on its own motion.” 108 Cong. Rec. 16,548

(19€2) (remarks of Rep. Holifield); see id. at 15,746 (re-

marks of Sen. Pastore). The interpretation that the NRC

tion are replete with ambiguities and inconsistencies. Cf. note

20 supra. But there is no ambiguity in the legislative history or

the text of § 189(a) with respect to the question before this

court—whether a finding of “no significant hazards considera-

tion” permits the NRC to dispense with a hearing.

25 Whether petitioners did in fact request a hearing was not

argued by the parties. While respondent United States suggests

in a footnote that “{iJt is not wholly clear that petitioners did

make such a request,” Memorandum of Respondent United

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

a hearing. In Brooks v. Atomic Energy Comm'n, 476 F.2d 924,

926 (D.C. Cir. 1973) (per curiam), this court held that expres-

sions of interest may be sufficient to constitute a request for a

hearing. In the instant case petitioners’ continued interest in—

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

constituted a request for a hearing. Indeed, the petitioners were

among the many that submitted comments in April-May 1980 to

the NRC regarding the Commission’s Environmental Assess-

ment for Decontamination of the Three Mile Island Unit 2 Reac-

tor Building Atmosphere. See text at notes 5-6 supra.

40a

and the public utilities press upon us,2* however, would

“limit[ ] the right of an interested party to intervene and

request a hearing.”

In sum, we are confident that Brooks was properly de-

cided and that it dictates the construction that must be

attached to the last ~-ntence of section 189(a). Because the

NRC’s finding of “no .gnificant hazards consideration” did

not entitle the Commission to dispense with a requested

hearing prior to issuance of the OTML, we hold that its

26 As part of their argument the NRC and the public utilities

contend that the NRC, and the Atomic Energy Commission

prior to the creation of the NRC, consistently interpreted the

section as permitting license amendments to be issued without a

hearing upon a finding of “no significant hazards consideration.”

See 10 C.F.R. § 2.105(a)(3) (1980); id. § 50.58(b); id. § 50.59(c)

(1963); 45 Fed. Reg. 42,908 (1980); 45 Fed. Reg. 20,491-92

(1980); 48 Fed. Reg. 13,928 (1978); 41 Fed. Reg. 10,482-83

(1976); 40 Fed. Reg. 18,231 (1975); 39 Fed. Reg. 10,554 (1974);

89 Fed. Reg. 1,875-76 (1974); 27 Fed. Reg. 12,184 (1962);

Consumers Power Co., 7 A.E.C. 297 (1974); General Electric

Co., 1 A.E.C. 541 (1960). Even if the history of regulations and

administrative practice by the AEC and the NRC were

unambiguous—which we do not think it ‘s—deference to the

agencies’ interpretations would be inappropriate in this case. As

we have indicated, the statute and legislative history are in our

view unambiguous: a finding of “no significant hazards consid-

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

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

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

to leave nothing for construction.” Norwegian Nitrogen Prod-

ucts Co. rv. United States, 288 U.S. 294, 315 (1933).

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

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

earlier this year that would explicitly permit the NRC to dis-

pense with hearings on license amendments upon a finding of

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

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

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

4la

failure to provide a hearing violated section 189(a) of the

Atomic Energy Act.

IV.’ .& NRC’S MEMORANDUM AND ORDER

Tre second order issued by the NRC on June 12, 1980,

entitled “Memorandum and Order” (Venting Order), au-

thorized Metropolitan Edison to vent the atmosphere of

the reactor containment building. Respondents argue that

section 189(a) did not require a hearing with respect to the

Venting Order because the order was not a license

amendment. We reject respondents’ description of the

order and find that section 189(a) was indeed applicable

and, as a consequence, that petitioners were entitled to a

hearing on the Venting Order.

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

requires that a hearing be given upon request “{iJn any

proceeding under this chapter, for the granting, suspend-

ing, revoking, or amending of any license or construction

permit.” 42 U.S.C. § 2239(a) (1976). Respondents maintain

that because the Venting Order merely lifted a prior sus-

pension of the licensee’s authority to vent, and did not au-

thorize release of a greater amount of radioactive gas than

was permitted by the original technical specifications of

the operating license, it was not a license amendment.

However, on the facts here, this characterization of the

Venting Order appears to be nothing more than an after-

the-fact rationalization, which finds no support in the rec-

ord of this case.

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

License” suspended Metropolitan Edison’s authority to

operate TMI-2 and directed the licensee to “maintain the

facility in a shutdown condition in accordance with the ap-

proved operating and contingency procedures.” 44 Fed.

Reg. 45.271 (1979). In a second order, dated February 11,

19&0, the NRC recognized that TMI-2’s operating license

did not permit venting as part of a cleanup operation be-

cause the license specifications pertained only to normal

operation of the facility:

42a

{I]n the present post-accident status of the facility,

the license itself does not include explicit provisions

or Technical Specifications for assuring the continued

maintenance of the plant in a safe, stable condition or

for coping with foreseeable off-norma! conditions.

Moreover, certain portions of the facility’s operating

license relate to or govern power operation of the

facility, the authority for which was suspended by the

Order of July 20, 1979. These provisions are now

simply inapplicable to the facility in its present

post-accident condition.

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

concluded that “the facility’s operating licerise should be

modified so as to: ... [pJrohibit venting or purging . . .

until . . . approved by the NRC.” Jd. (emphasis added).

There is no indication that this order was intended or

perceived as a mere suspension of the licensee’s existing

authority to vent. In February 1980, it appeared that

adequate venting of the reactor building might not be pos-

sible under the existing license autliority. Consequently,

the NRC acted to modify—and thus amend—the TMI-2

license in order to regulate the plant in an “off-normal”

condition and to facilitate whatever venting scheme might

be determined to be necessary. By its very terms, the

February 11, 1980 order was a license amendment in-

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

that the original operating license was inapplicable, the

NRC could not simply rely on its terms as authority for

the venting. Authority for venting—in this case the June

12 Venting Order—therefore had to come in the form of a

license amendment.

The specific language of the June 12 Venting Order fur-

ther corroborates our interpretation of that order as a

license amendment. In the Venting Order, the NRC noted

that TMI-2 was being operated according to the provisions

of the February 11, 1980 order, see Venting Order at 10,

reprinted in App. 184, and the Venting Order did nothing

to change that. TMI-2’s operating license was not simply

43a

“unsuspended” by the Venting Order. Instead, in the

words of the NRC, “{iJn the present order we give the

approval contemplated by [the February 11) restriction in-

sofar as necessary for the licensee to conduct a purging of

the TMI-2 containment.” /d. at 11, reprinted in App. 135.

Nowhere does the Venting Order support respondents’

characterization of it as a reinstatement of some pre-

existing authority. Rather, the Venting Order appears as

an amendment to the February 11 amendment to TMI-2’s

operating license. Because the June 12 Venting Order

modified the February 11 order, and granted the licensee

authority to do something that it otherwise could not have

done under the existing license authority, the Venting

Order was a license amendment within the scope of section

189(a).

Our reading of the Venting Order is also supported by

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

hearing upon request whenever a license is “grant[ed],

suspend[ed], revok[ed], or amend[ed],” Congress appar-

ently contemplated that interested parties would be able

to intervene before any significant change in the operation

of a nuclear facility. Whatever the Venting Order is called,

it certainly was such a change.

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

required under section 189(a) to hold a hearing on a license

amendment whenever interested parties request one.??

Petitioners did so in this case, see note 25 supra, and the

NRC therefore acted unlawfully in refusing to hold a

hearing on the Venting Order.?®

27We note that the NRC and the public utilities briefly argued

that a full adjudicatory hearing was not required here. See Brief

for Respondent Nuclear Regulatory Commission at 32-34; Brief

for Intervenor-Respondents at 44-45. Because this question was

not fully briefed and argued by the parties, we express no opin-

ion on the precise nature of the hearing required by § 189(a).

28Respondent United States argued that petitioners re-

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

44a

V. CONCLUSION

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

repetition yet, evading review,” the issues presented by

petitioners are not moot. We hold that under section

189(a) the NRC is required to hold a hearing on license

amendments whenever interested parties request one. Fi-

nally, we hold that the June 12 Venting Order, which au-

thorized the NRC to release radioactive gas from the dis-

abled nuclear reactor, was a license amendment subject to

the hearing requirements of section 189(a). Because the

petitioners requested a hearing on the two June 12 license

amendments, they wezs entitled to a hearing under sec-

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

the petitioners’ statutory rights.

to exhaust their administrative remedies by withdrawing their

motion. The intended scope of that hearing and the facts sur-

rounding the withdrawal are somewhat muddled by the record.

What is clear, however, is that the offer of a hearing was made

only in the OTML and not in the Venting Order. Presumably,

then, petitioners would have been able to challenge only the

license amendment substituting off-site dosage limits for release

limits and not the actual decision to vent. Moreover, any hear-

ing was to revolve around the issues whether the license

amendment was in the public interest and whether it should be

sustained. See App. 123. It appears from this description that

petitioners would not have been permitted to raise their argu-

ments regarding the NRC’s interpretation of § 189(a), which

formed the basis of this suit. Finally, the Commission specif-

ically provided that a request for a hearing would not stay the

effectiveness of the order. See id. But § 189(a) required a hear-

ing upon request on the Venting Order before it went into ef-

fect; a hearing after the venting had been completed would not

have satisfied the statute’s requirement. For all these reasons,

the remedy that petitioners allegedly failed to exhaust was an

inadequate one and therefore need not have been pursued. See

McNeese v. Board of Educ., 873 U.S. 668, 674-76 (1963); Union

Pac. R.R. Co. v. Board of County Comm’rs, 247 U.S.

282 (1918).

45a

APPENDIX D

UNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION

Docket No. 50-320

In the Matter of METROPOLITAN EDISON ComPANY, ef al.

(Three Mile Island Nuclear Station, Unit 2)

ORDER FOR TEMPORARY MODIFICATION OF LICENSE

(June 12, 1980)

I.

Metropolitan Edison Company, Jersey Central Power

and Light Company and Pennsylvania Electric Company (the

licensee) are the holders of Facility Operating License No.

DPR-73, which had authorized 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 iicensee’s authority to operate the facility, except as

provided therein, was suspended. The facility, which is

located in Londonderry Township, Dauphin County, Penn-

sylvania, is a pressurized water reactor used for the commer-

cial generation of electricity.

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 capable of normal operation and is in a

shutdown condition with fuel in the core. The facility is being

maintained in a stable, long-term cooling mode in accordance

with the provisions 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

46a

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 instruments and equipment, and

eventually 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 krypton gas,

although thinly dispersed through the reactor building at-

mosphere, nevertheless poses a threat to workers who would

have to work in the building for prolonged periods. The

preferred method for removing the 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 specifications

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 rathe; 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 measurements of the amounts

of materials released would be used for determining com-

pliance. These limits could serve to unnecessarily delay the

time required to complete the purging process. The revised

limits described below would remove this difficulty. They are

expressed as limits on off-site doses rather than as limits on

releases. An extensive environmental monitoring network is

set up in the Three Mile Island area that is capable of produ-

cing prompt and frequent off-site dose measurements. This

network, along with on-site measurements of releases and

meterology 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 reac-

47a

tor 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 signifi-

cant hazards consideration.

The nature and effects of the purging process are describ-

ed more fully in the Commission’s Memorandum and Order

in this matter, dated June 12, 1980, and NUREG-0662,

‘Final Environmental Assessment for Deccotamination of the

Three Mile Island Unit 2 Reactor Building Atmosphere’’, May

1980.

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 specifications would not be inimical

to the public health and safety and involves no significant

hazards consideration. 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 Commission’s

‘egulations, section 2.1.2 of the Appendix B technical

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

dividual could not receive a dose from purging that exceeds this ob-

jective. Gaseous releases from TMI-2 unrelated to purging are ex-

pected to be insignificant, so that the annual dose from gaseous ef-

fluents should not exceed the annual Appendix I design objective by

any significant amount, if et 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.

48a

specifications is amended, effective immediately, 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 ‘s deleted and Sec-

tions 2.1.2c are superseded by the following:

Do not exceed for the maximally exposed individual*

in any one of the 16 (22 1/2°) sectors centered on

the TMI-2 reactor building 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.

In addition, pursuant to Section 6.8.2 of the pro-

posed Appendix A _ Technical Specifications,

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.

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 hearing is held, the issues shall be:

(1) whether the temporary 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

* 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.

(3) No hypothetical individual shall receive more than dose

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

49a

Order should be sustained. A request for a hearing 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 orders in this docket dated February 11 and

May 12, 1980.

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 Section. A copy of the request for a

hearing should also be sent to the Executive Legal Director,

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

20555 and to Mr. George F. Trowbridge, of Shaw, Pittman,

Potts, and Trowbridge, 1800 M Street, N.W., Washington,

D.C. 20036, attorney for the licensee. Any questions regar-

ding the contents of this Order should be directed to the Chief

Hearing Counsel, Office of the Executive Legal Director, U.S.

Neclear 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 inspection at the Commission’s Public Document Room

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

sion’s Local Public Document Room at the State Library of

Pennsylvania, Government Publications Section, Education

Building, Commonwealth and Walnut Streets, Harrisburg,

Pennsylvania 17126, and of the York College of Penn-

sylvania, Country Club Road, York, Pennsylvania.

For THE NUCLEAR

REGULATORY COMMISSION

/s/ Samus. J. CuHiILk

Samuel J. Chilk

Secretary of the Commission

Dated at Washington, D.C.

on June 12, 1980.

S5la

APPENDIX E

UNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION

Docket No. 50-320

In the Matter of

METROPOLITAN EDISON COMPANY, ef al.

(Three Mile Island Nuclear Station, Unit 2)

Commissioners:

John F. Ahearne, Chairman

Victor Gilinsky

Richard T. Kennedy .

Joseph M. Hendrie

Peter A. Bradford

Memorandum And Order

(June 12, 1980)

The Commission has before it a staff recommendation

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 Na-

tional Environmental Policy Act, the staff has submitted in

support of this recommendation a ‘‘Final Environmental

Assessment for Decontamination of the Three Mile Island

' Most of the radionuclides originally released into the contain-

ment 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 ap-

proximately 57,000 curies of Kr-85 are mixed in the containment at-

mosphere, as determined by periodic sampling of Kr-85 con-

centrations.

52a

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 had been received. These are summarized in Section

9 of the final assessment 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 decontamination and

disposition of radioactive waste resulting from the March 28,

1979 accident at Three Mile Island, Unit 2. The policy state-

ment noted that if the best interest of public health and safety

required prompt decontamination action prior to completion

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 radioac-

tive gases would be taken without a prior environmental

review and opportunity 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 contain-

ment atmosphere to justify going ahead prior to completion

of the programmatic impact statement. We must also decide

whether the decontamination method recommeded by the

staff can be carried out consistent with the Commission’s

statutory mandate to ensure adequate protection of public

health and 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

several methods discussed in the Environmental Assessment

by which the radioactive krypton can be removed. The

53a

method recommended 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 du-

ring acceptable meteorological 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,

Appendix 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 monitoring during the proposed con-

trolled purging would be conducted by the U.S. Environmen-

tal Protection Agency (EPA), the Commonwealth of Penn-

sylvania, the U.S. Department of Energy and Metropolitan

Edison Company.

The Environmental Assessment contains ample evidence

to show that risk to physical health from the proposed purge

or from any of the alternative decontamination methods con-

sidered by the staff would be negligible. See Table 1.1,

NUREG-0662. The assessment also addresses the effects on

the psychological well-being of persons living in the vicinity of

TMI. The staff concluded that psychological stress resulting

from the proposed venting of Kr-85 will be less than from any

of the alternatives, including the alternative of taking no ac-

tion. Testimony at the June 5, 1980 oral briefing by expert

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

dividual could not receive a dose from purging that exceeds this ob-

jective. Gaseous releases from TMI-2 unrelated to purging are ex-

pected to be insignificant, so that the annual dose from gaseous ef-

fluents 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.

54a

consultants on the question of psychological stress supported

this conclusion and indicated that purging the containment

should have the net effect of reducing the stress which other-

wise would occur if positive steps are not taken promptly to

proceed with decontamination and reduce uncertainty about

the present and future condition of TMI-2.

Removing Kr-85 from the containment atmosphere would

yield a number of important and immediate benefits. Radia-

tion from Kr-85 at the concentration levels found inside the

containment significantly limits worker access and precludes

extensive operations needed to gather information, inspect

and maintain equipment, and proceed toward the eventual

removal of the highly radioactive damaged nuclear fuel from

the reactor core. Decontaminating the atmosphere would

relieve workers performing necessary maintenance and

cleanup activities from hazards of working in awkward pro-

tective clothing and risk from penetrating gamma radiation

associated with the decay of Kr-85.’ Moreover, there is no

serious question that removal of the Kr-85 from the contain-

ment 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, decon-

taminating the containment atmosphere has an immediate and

independent utility which justifies proceeding at this time,‘

provided that the proposed method is acceptable in health and

environmental grounds.

* 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.

‘The President’s Council on Environmental Quality was con-

sulted on the staff’s proposal to vent Kr-85. In a letier 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 Na-

tional Environmental Policy Act.’’

55a

Because of the importance to the public of having a clear

understanding that purging the TMI-2 containment presents a

minimal risk to physical health, we review here the basis for

concluding that the physical health impacts of venting Kr-85

under proper controls will be negligible. This conclusion was

supported 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 Environmental Resources, and

the Union of Concerned Scientists. Governor Thornburgh of

Pennsylvania has indicated in a letter to Chairman Ahearne,

dated May 16, 1980, that he adopts the consensus that the

dose rates associated with controlled purging are insignificant.

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 En-

vironmental Assessment estimates that to the maximally ex-

posed 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 maximally exposed individual would be about one in

sixteen million, compared to a normal lifetime expectancy 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 Environmental

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 esitmate of 135 deaths per million

* 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.

56a ‘

person-rem,* the Environmental Assessment finds that ‘‘[t}he

cancer mortality risk among the general population with in 50

miles resulting from the purge option would be about

0.0001.” In other words, the chance that the proposed 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 En-

vironmental Assessment notes that they also apply approx-

imately to a fast purge alternative conducted under

meteorological 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 radiation

exposure still further were considered in the Environmental

Assessment, including several suggestions offered by com-

menters on the draft assessment. These included variations of

the purging method whereby the Kr-85 would be injected into

the atmosphere at a higher level, either by various means of

elevating the release point higher than the existing 160-foot

stack or by heating the gases prior to discharge to increase its

buoyancy. 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).

These methods include (1) sele ve absorption of krypton by

a scaled-up version of a system now in operation at Oak

Ridge National Laboratory, (2) absorption of large quantities

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

mittee on the Biological Effects of lonizing Radiation, ‘“The Effects

on Populations of Exposure to Low Levels of Ionizing Radiation,’’

National Academy of Sciences, November 1972.

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 signifi-

cant effect on animals.

57a

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 decon-

tamination recommended by the staff can be implemented im-

mediately. Since the physical health risks of the purging

method are extremely small to begin with and since decon-

taminating 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 im-

plementing an alternative process.

Although the Commission has considered the question of

psychological stress, firm conclusions on this subject are not

possible. We believe that the alternative chosen will in fact

minimize stress, but we have no special competence in this

field. It is clear that different aspects of the TMI clean-up are

sources of stress to different people. However, it is difficult

for us to evaluate with precision whether choosing an alter-

native which would delay TMI clean-up would cause more or

less stress than the controlled purging of Kr-85 which a broad

consensus of scientific opinion considers safe. We are confi-

dent 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

* In particular, the staff investigated a suggestion that the selec-

tive 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 procurement appeared unrealistic.

The staff’s minimum time estimate for making a selective absorp-

tion system operational

58a

having the krypton release occur over the shortest time consis-

tent 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 prompt-

ly by the purging method recommended 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 pro-

tected as required by the Atomic Energy Act. We agree with

the conclusion of the Environmental Assessment that the pro-

posed action will have no significant adverse effect on the en-

vironment. Accordingly, no environmental impact statement

need 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 solicitation 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 re-

quired, could not add significantly to the level of environmen-

tal consideration and public disclosure already achieved.

TMI-2 is presently being maintained pursuant to restric-

tions 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 requirements of revised

technical specifications set forth as an attachment to that

* The Commission has not yet determined whether psychological

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 connection 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.

59a

order. In implementation of the Commission’s Policy State-

ment of November 21, 1979, these specifications included the

restriction that ‘“‘purging or other treatment of the contain-

ment atmosphere is prohibited until approved by the

NRC... .’’ In the present order we give the approval con-

templated by that restriction insofar as necessary for the

licensee to conduct a purging of the TMI-2 containment, com-

mencing 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 accor-

dance with procedures approved by the NRC, pursuant to

Section 6.8.2 of proposed Appendix A to the Technical

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. Commis-

sioner Bradford’s separate views are attached.

Information regarding the carrying out of this decision

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

It is so ORDERED.

For the Commission

/s/ Samus. J. CHmk

Samuel J. Chilk

Secretary of the Commission

Dated at Washington, D.C.

this 12th day of June, 1980.

Separate Views Of Commissioner Bradford

While I agree with the result and much of the reasoning

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 ‘‘sup-

ported’’ the conclusion that the physical health impacts

of Union of Concerned Scientists did agree with that pro-

60a

position, 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 undertaken

because other alternatives are available within what UCS

views as a reasonable period of time and would reduce

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 decayed to insignificant levels

(about 100 years).’’ In fact, as was brought out at the

June 10 meeting 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 when weighed against the fact that venting will

have no significant radiation-related public health im-

pacts. The language suggesting that long-term storage is a

serious problem should not have appeared 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 as 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 persuad-

ed that it too would be likely to take at least a year and

is therefore not a reasonable alternative 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.

6la

APPENDIX F

Affidavit Of Roger S. Boyd

CITY OF WASHINGTON _)

: SS

DISTRICT OF COLUMBIA )

Rocer S. Boyp, being first duly sworn, deposes and says:

1. | am Vice President of KMC, Inc., a Washington, D.

C. tirm that provides a broad range of consulting services to

the nuciear industry and specializes in matters relating to the

licensing of nuclear power plants by the Nuclear Regulatory

Commission. After serving in the U. S. Air Force, I attended

Ohio State University, receiving a B.S. degree in Physics in

1956. From 1956 to 1961, I was employed with the Systems

Engineering Division of Battelle Memorial Instituie. During

that period, | worked on analyses for the nuclear ship N.S.

Savannah and was a licensed operator of the Battelle Research

Reactor. From 1961 to 1975, I was on the staff of the U. S.

Atomic Energy Commission and from 1975 to 1979 the U. S.

Nuclear Regulatory Commission (‘‘NRC’’). I worked initially

in the Division of Licensing and Regulation. Subsequently, I

was appointed Chief of the Research and Power Reactor Safe-

ty Branch (1964), Assistant Director for Reactor Projects

(1967), Assistant Director for Boiling Water Reactors (1970),

Assistant Deputy Director for Reactor Projects (1972), Deputy

Director of the Division of Reactor Licensing (NRC) (1975),

and Director of the Division of Project Management, Office

of Nuclear Reactor Regulation (NRC) (1975). As Deputy

Director, I was responsible for licensing and safety review

coordination / all U, S. nuclear power reactors, including is-

suance of construction permits, operating licenses, and related

license amendments. As Director, my responsibility included

project management of the entire construction permit and

operating license program.

2. The operation of U. S. nuclear power plants is govern-

ed by the operating licenses issued by the NRC. The operating

license itself contains many conditions. It also contains the

62a

Technical Specifications which govern how the plant can

operate by specifying detailed requirements for operation. A

change of any of these detailed operating requirements or to

any other license condition requires that the operating license

be amended.

3. Since about 1962, Technical Specifications have grown

from a description of the plant design and a statement of sim-

ple operating limits (taking up less than 100 pages) to some

400 pages of extremely detailed requirements, including the

plant’s safety limits, limiting conditions for operation,

surveillance requirements, adminisirative controls, and plant

design features.

4. Because of their great detail and scope, Technical

Specifications and other license provisions frequently require

modification. As these provisions increased in number and

specificity over the years, the number of changes requested by

licensees has increased accordingly. In addition, over the

past several years, the NRC has reqvired increasing numbers

of Technical Specification and license changes in carrying out

its regulatory functions. As a consequence, for the seventy-

one power reactors licensed for operation, I estimate that

there now are about 800 license amendment actions presently

pending, most of which deal with changes or additions to

Technical Specifications. The number of pending applications

has been around this level for several years. Typically, the

NRC Staff completes its review of about fifty amendments

each month.

5. As a part of its review of applications for amendments

to operating licenses, the NRC Staff determines whether or

not the change will involve ‘‘no significant hazards considera-

tion’’. The tests which the NRC Staff uses to determine

whether there is ‘‘no significant hazards consideration’’ are

whether the proposed change involves:

a. significant new safety information of a type not con-

sidered by a previous NRC safety review of the

facility;

63a

b. a significant increase in the probability or conse-

quences of an accident; or

c. a significant decrease in a safety margin.

Typical classes of license amendments which the NRC Staff

has found to involve ‘‘no significant hazards consideration”’

include administrative changes, more stringent surveillance re-

quirements, changes to conform to new or revised regulations,

changes to reflect core reloadings involving no significant dif-

ferences from previously reviewed cores, relief from operating

restrictions with compensatory measures, and relief from

previously imposed operating restrictions based upon

demonstration of acceptable operation without such restric-

tions. Most of the amendment actions presently pending are

likely to be determined to involve ‘‘no significant hazards

considerations’. A review of the last four calendar years

found that NRC published in the Federal Register notice of

more than 1,500 license amendments which the NRC Staff

found to have ‘‘no significant hazards considerations.’’ As an

example, I have attached hereto a list of those notices publish-

ed in 1977.

6. Many operating license amendments cannot be an-

ticipated and are needed in a short-time span. Others with

predictable lead times, such as core reloadings, are filed mon-

ths in advance; however NRC review time generally consumes

the entire period from completion of the fuel design to the

refueling outage. In these cases, NRC review is not completed

until the amendment is needed to permit continued plant

operation.

7. Even though many (and perhaps the majority) of

license amendments involve ‘‘no significant hazards considera-

tions’’, delay in issuance can seriously affect plant operation.

In many cases, such delay may require plant shutdown or

keep a plant which is already shut down (such as for refueling

or maintenance) from restarting. For example, a _ recent

amendment provided one week’s relief from a limiting condi-

tion for operation of a unit’s salt service water system (45

64a

Fed. Reg. 77204 (1980)); this temporary relief was needed to

permit continued plant operation. Another example was an

extension of the surveillance interval for hydraulic shock ab-

sorbers (42 Fed. Reg. 1320 (1977)), which if not granted

would have required plant shutdown. I would estimate that

there are about fifty license amendment applications now

pending before the NRC which are likely to be classified as

having ‘‘no significant hazards consideration’’ and which, if

not issued within a few months, will result in shutdown of the

reactor involved.

8. In the vast majority of cases, the actions authorized by

a license amendment are not irreversible. This is especially the

case for amendments involving ‘‘no significant hazards con-

sideration’. A surveillance interval once shortened can be

lengthened, a calculation technique once revised can be

changed back to the prior method. In this respect, the amend-

ment facilitating venting of krypton from Three Mile Island

Unit 2 was very atypical. In the vast majority of cases, the

opportunity for a hearing after the amendment becomes effec-

tive will allow full consideration of the issues which may be

involved without jeopardizing plant safety or operation.

9. Where a ‘“‘no significant hazards’’ determination is

made, NRC practice and its regulations call for the publica-

tion of a Federal Register notice of the action after approving

the amendment. This notice does not stay the effectiveness of

the amendment. If the current practice is changed as a result

of the Sholly decision, I believe that there will be a substantial

number of hearings requested and convened. If a hearing were

required before the NRC could amend the license, the time

needed to effect those changes would be dramatically increas-

ed. Given the adjudicatory procedures afforded by NRC’s

rules and the length of the hearing and decisionmaking

process, it is unlikely that a hearing on a license amendment

could be completed in less than nine months. For those situa-

tions where the license amendment is needed to permit con-

tinued operation or avoid plant shutdown, even where there

are ‘‘no significant hazards considerations’’, a hearing would

65a

result in the reactor being shut down for extended periods of

tine.

10. It is my opinion that the risk of piant shutdowns

from hearings on issues involving ‘‘no significant hazards con-

siderations’ will have consequences which are adverse to

overall plant safety. To avoid the risk of shutdowns, licensees

may simply not request license amendments which would im-

prove plant operations or piant safety. Even those changes

which would not risk plant shutdown due to hearings might

not be proposed because the licensee might perceive that there

was a greater probability for becoming embroiled in ad-

judicatory hearings. A similar dilemma would face the NRC

Staff. License amendments which it deems necessary might

not be issued since NRC would be faced with the possibility

of a hearing before the amendment could be made effective.

If there were hearings requested on ‘‘no significant hazards’’

issues, NRC Staff resources would have to be shifted to these

matters, with a corresponding decrease in the manpower

available to consider significant safety issues. The NRC Staff

does not have the resources to handle a significant increase in

its hearings. While NRC could elect to impose new re-

quirements by rulemaking, rather than by license amendments

issued on a case-by-case basis, rulemaking would require

significantly more time before the new requirements could be

imposed and NRC would not have the flexibility to impose re-

quirements tailored to the specific characteristics of each plant

and plant design. It is my judgment that the overall effect of

requiring hearings on license amendments involving ‘‘no

significant hazards consideration’’ would be to diminish plant

safety and decrease the NRC’s regulatory effectiveness.

11. Finally, any increase in the shutdowns of nuclear

units caused by the need for hearings on issues without

‘significant hazards considerations’’ will have major impacts

to the utilities and their customers. At the present time,

nuclear power generates about 12% of the nation’s electricity.

This value is much higher in some areas of the country, for

example 34% in New England (including 60% in Maine and

66a

55% in Connecticut) and 45% in Northern Illinois. The cost

of replacing power generated by a nuclear plant is estimated

at between $250,000 and $500,000 per day. Furthermore, in

some areas of the country, particularly the Northeast, replace-

ment power will come in large part from.imported oil, about

30,000 barrels per day for a 1000 MWe nuclear plant. Thus,

increased shutdowns can have both major economic costs and

major impacts on use of imported oil.

/s/ Rocer S. Boyp

Roger S. Boyd

Subscribed and sworn to before me this 3rd day of December,

1980.

/s/ Laura A. SIMON

Notary Public

My commission expires: [Illegible]

LICENSE AMENDMENTS FOR THE YEAR 1977 WHERE

THE NRC MADE A FINDING OF NO SIGNIFICANT

HAZARDS CONSIDERATION

Date

Published Page in

Plant Name in Fed. Reg. 42 Fed. Reg.

i. Indian Point 1/6 1320

2. Cooper 1/6 1320

3. Calvert Cliffs 1/10 2138

4. Oyster Creek 1/10 2138

5. FitzPatrick 1/10 2110

6. Indian Point 1/10 2112

7. Peach Bottom 1/10 2143

8. Rancho Seco 1/17 3228

9. St. Lucie 1/24 4224

10. Cook 1/24 4225

11. Arkansas 1/27 5154

12. Calvert Cliffs 1/27 5155

13. Quad Cities 2/3 6649

67a

LICENSE AMENDMENTS FOR THE YEAR 1977 WHERE

THE NRC MADE A FINDING OF NO SIGNIFICANT

HAZARDS CONSIDERATION

Date

Published Page in

Plant Name in Fed. Reg. 42 Fed. Reg.

14. Haddam Neck 2/3 6649

15. Palisades 2/3 6650

16. La Crosse 2/3 6650

17. Oyster Creek 2/3 6651

18. Rancho Seco 2/3 6653

19. Surry 2/3 6653

20. Surry 2/3 6653

21. Kewaunee 2/3 6654

22. Kewaunee 2/3 6654

23. Beaver Valley 2/7 7179

24. Quad Cities 2/10 8438

25. Zion 2/10 8438

26. Vermont Yankee 2/10 8444

27. Oyster Creek 2/14 9067

28. Oyster Creek 2/14 9068

29. Quad Cities 2/14 9069

30. Cooper 2/14 9074

31. Robinson 2/24 10909

32. Dresden 2/24 10909

33. Quad Cities 2/24 10909

34. Arnold 2/24 10911

35. Arnold 2/24 10911

36. Millstone 2/24 10912

37. Peach Bottom 2/24 10912

38. Browns Ferry 2/24 10912

39. Vermont Yankee 2/24 10913

40. St. Lucie 2/28 11292

41. Calvert Cliffs 2/28 11292

42. Vermont Yankee 2/28 11292

. Arkansas 3/3 12269

44. St. Lucie 3/3 12273

68a

LICENSE AMENDMENTS FOR THE YEAR 1977 WHERE

Date

Published

Plant Name in Fed. Reg.

Cook 3/3

Indian Point 3/10

Big Rock Point 3/10

Nine Mile Point 3/10

Peach Bottom 3/10

Browns Ferry 3/10

Point Beach 3/10

Brunswick 3/17

Hatch 3/21

Arnold 3/21

Millstone 3/21

Arkansas 3/24

Palisades 3/24

Prairie Island 3/24

Prairie Island 3/24

Haddam Neck 3/24

Calvert Cliffs 3/28

Big Rock Point 3/28

Three Mile Island 3/28

Fort Calhoun 3/28

Indian Point 4/7

Oconee 4/7

Oyster Creek 4/7

Nine Mile Point 4/7

Fort Calhoun 4/7

Vermont Yankee 4/7

St. Lucie 4/\l

Kewaunee 4/\1

Yankee-Rowe 4/11

Yankee-Rowe 4/i1

Haddam Neck 4/11

THE NRC MADE A FINDING OF NO SIGNIFICANT

HAZARDS CONSIDERATION

Page in

42 Fed. Reg.

12273

13360

13361

13362

13364

13364

13365

14939

15378

15384

15385

15983

15983

15984

15984

15986

16493

16500

16501

16504

18462

18463

18463

18463

18464

18465

18910

18910

18911

18911

18911

69a

LICENSE AMENDMENTS FOR THE YEAR 1977 WHERE

Date

Published

Plant Name in Fed. Reg.

Peach Bottom 4/14

Point Beach 4/14

Arkansas 4/18

Arkansas 4/18

Dresden 4/21

Arnold 4/21

Arnold 4/21

Three Mile Island 4/21

Trojan 4/21

Surry 4/21

Vermont Yankee 4/21

Peach Bottom 4/25

Arkansas 4/25

Pilgrim 4/25

Zion 4/25

Indian Point 4/25

Hatch 4/25

Arnold 4/25

Monticello 4/25

Turkey Point 4/28

Trojan 4/28

Ginna 4/28

Pilgrim 4/28

Brunswick 4/28

Turkey Point 5/9

Maine Yankee 5/9

Peach Bottom 5/9

Palisades 5/9

Calvert Cliffs 5/12

Prairie 5/12

Trojan 5/12

THE NRC MADE A FINDING OF NO SIGNIFICANT

HAZARDS CONSIDERATION

Page in

42 Fed. Reg.

19534

19536

20200

20200

20685

20685

20686

20686

20687

20689

20689

21119

21121

21121

21122

21122

21122

21123

21123

23561

21671

21671

21674

21674

23561

29577

23565

23568

24126

21128

21128

70a

LICENSE AMENDMENTS FOR THE YEAR 1977 WHERE

THE NRC MADE A FINDING OF NO SIGNIFICANT

HAZARDS CONSIDERATION

Date

Published Page in

Plant Name in Fed. Reg. 42 Fed. Reg.

107. San Onofre 5/12 21129

108. Point Beach 5/12 21130

109. Brunswick 5/16 21773

110. Dresden 5/16 24774

111. Hatch 5/16 24774

112. Cooper 5/16 24775

113. Quad Cities 5/19 25784

114. Arnold 5/19 25785

115. Yankee 5/19

116. Crystal River 5/26 27071

117. Arnold 5/26 27071

118. Three Mile Island 5/26 27072

119. Cooper 5/26 27072

120. Nine Mile Point 5/26 27073

121. Indian Point 5/31 27701

122. Indian Point 5/31 27701

123. Palisades 5/31 27701

124. Millstone 5/31 27702

125. Humbolt Bay 5/31 27702

126. Brunswick 6/6 28943

127. Cook 6/6 28943

128. Oconee 6/6 28946

129. Browns Ferry 6/6 28947

130. Maine Yankee 6/9 29577

131. Salem 6/9 29578

132. Maine Yankee 6/13 30254

133. Three Mile Island 6/13 30255

134. Fort Calhoun 6/13 30255

135. San Onofre 6/13 30256

136. Davis - Besse 6/13 30256

137. Arkansas 6/16 30697

be ce ee -

Tla

LICENSE AMENDMENTS FOR THE YEAR 1977 WHERE

138.

139.

140.

141.

142.

143.

144.

145.

146.

147.

148.

149.

150.

151.

152.

153.

154.

155.

156.

157.

158.

159.

160.

161.

162.

163.

164.

165.

166.

167.

168.

Date

Published

Plant Name in Fed. Reg.

Arkansas 6/16

Fort Calhoun 6/16

Prairie 6/20

Ginna 6/20

Ginna 6/20

Browns Ferry 6/20

Yankee-Rowe 6/20

Arkansas 6/23

Robinson 6/27

Davis - Besse 6/27

Arnold 6/27

Arnold 6/27

Millstone 6/27

Peach Bottom 6/27

Pilgrim 6/27

Millstone 6/27

Monticello 6/27

Monticello 6/27

Fort Calhoun 6/27

Yankee-Rowe 6/30

Big Rock Point 1/5

Millstone 1/5

Nine Mile Pt. 1/5

Nine Mile Pt. 1/5

Fitzpatrick 1/7

Pilgrim 7/11

Brunswick 7/11

Indian Point 7/11

Big Rock Pt. Wil

Oconee 7/11

St. Lucie Tl

THE NRC MADE A FINDING OF NO SIGNIFICANT

HAZARDS CONSIDERATION

Page in

42 Fed. Reg.

30697

30698

31201

31201

31201

31202

31203

31846

32592

32592

32593

32593

32593

32594

32595

32595

32595

32596

32596

33387

34394

34394

34397

34397

34954

35709

35709

35710

35710

35711

35711

a

LICENSE AMENDMENTS FOR THE YEAR 1977 WHERE

THE NRC MADE A FINDING OF NO SIGNIFICANT

HAZARDS CONSIDERATION

Date

Published Page in

Piant Name in Fed. Reg. 42 Fed. Reg.

169. Peach Bottom Wl 35712

170. Oconee 1/14 36325

171. Crystal River 7/14 36325

172. Fitzpatrick 7/14 36325

173. Salem 7/14 36328

174. Davis-Besse 7/18 36902

175. Oconee 7/25 37882

176. Davis-Besse 1/25 37883

177. Calvert Cliffs 7/28 38439

178. Dresden 7/28 38439

179. Haddem Neck 7/28 38439

180. Beaver River 7/28 38440

181. Turkey Point 7/28 38440

182. Nine Mile Point 7/28 38441

183. Rancho Seco 1/28 38441

184. Peach Bottom 7/28 38442

185. Brunswick 8/8 40059

186. Arnold 8/8 40060

187. Millstone 8/8 40061

188. Surry 8/8 40064

189. Oconee 8/11 40788

190. Beaver Valley 8/11 40788

191. Hatch 8/11 40789

192. Farley 8/18 41674

193. Farley 8/18 41674

194. Farley 8/18 41674

195. Crystal River 8/18 41675

196. Fitzpatrick 8/18 41676

197. Calvert Cliffs 8/18 41677

198. Fitzpatrick 8/22 42261

199. Zion 8/22 42262

73a

LICENSE AMENDMENTS FOR THE YEAR 1977 WHERE

THE NRC MADE A FINDING OF NO SIGNIFICANT

HAZARDS CONSIDERATION

Date

Published Page in

Plant Name in Fed. Reg. 42 Fed. Reg.

200. Cook 8/22 42265

201. Fort Calhoun 8/29 42460

202. Browns Ferry 8/29 42460

203. Rancho Seco 9/1 44038

204. Cook 9/1 44039

205. Rancho Seco 9/1 44043

206. Yankee Rowe 9/6 44617

207. Yankee Rowe 9/6 44618

208. Crystal River 9/8 45045

209. Point Beach 9/12 45722

210. Browns Ferry 9/15 46429

211. Salem 9/15 46429

212. Davis-Besse 9/15 46430

213. Point Beach 9/15 46431

214. Yankee Rowe 9/15 46432

215. St. Lucie 9/22 47895

216. Millstone 9/22 47895

217. Fort Calhoun 9/22 47896

218. Fitzpatrick 9/22 47896

219. Oconee 9/26 48949

220. Monticello 9/26 48949

221. Browns Ferry 9/26 48950

222. St. Lucie . 9/29 51677

223. Oyster Creek — 9/29 51677

224. Fitzpatrick 9/29 51678

225. Salem 9/29 51678

226. Arkansas 10/3 53688

227. Cooper 10/3 53688

228. Fort Calhoun 10/3 53688

229. Fitzpatrick 10/3 53689

230. Fitzpatrick 10/3 53689

74a

LICENSE AMENDMENTS FOR THE YEAR 1977 WHERE

HAZARDS CONSIDERATION

Date

Published

Plant Name in Fed. Reg.

Indian Point 10/3

Arkansas 10/6

Dresden 10/6

Quad Cities 10/6

Indian Point 10/6

San Onofre 10/11

Hatch 10/11

Vermont Yankee 10/11

Turkey Point 10/17

Hatch 10/17

Monticello 10/17

Calvert Cliffs 10/20

Vermont Yankee 10/20

Oconee 10/20

. Turkey Point 10/20

Hatch 10/20

Trojan 10/20

Pilgrim 10/25

Nine Mile Point 10/25

Prairie Island 10/25

Hatch 10/25

Rancho Seco 10/25

Surry 10/25

Brunswick 10/27

Brunswick 10/27

Dresden 10/27

Quad Cities 10/27

Zion 10/27

Haddam Neck 10/27

Monticello 10/27

Haddam Neck 10/31

THE NRC MADE A FINDING OF NO SIGNIFICANT

Page in

42 Fed. Reg.

53690

54474

$4475

54476

54476

54891

54893

54893

55501

$5502

55502

55954

55954

55955

55955

55955

55956

56381

56381

56381

75a

LICENSE AMENDMENTS FOR THE YEAR 1977 WHERE

Plant Name

Big Rock Point

Cooper

Pilgrim

Millstone

Fort St. Vrain

Haddam Neck

Palisades

Point Beach

Haddam Neck

Point Beach

Haddam Neck

Crystal River

Fort Calhoun

Calvert Cliffs

Pilgrim

Brunswick

Haddam Neck

Oconee

Oconee

Indian Point

Cooper

Indian Point

Oconee

Fort Calhoun

Browns Ferry

Oyster Creek

Oconee

Davis-Besse

Three Mile Island

Millstone

Millstone

Date

Published

in Fed. Reg.

10/31

10/31

11/3

11/3

11/4

11/8

11/8

11/10

1/11

1/11

11/14

11/14

11/14

11/17

11/17

11/21

11/21

11/21

11/21

11/22

11/22

11/25

11/25

11/29

11/29

12/7

12/8

12/9

12/9

12/9

12/9

THE NRC MADE A FINDING OF NO SIGNIFICANT

HAZARDS CONSIDERATION

Page in

42 Fed. Reg.

56968

56958

57572

57575

57777

58228

58288

58585

58801

58802

58987

58987

58988

59434

59435

59782

59782

59782

59783

59934

59935

60234

60234

60810

60811

61903

62051

62222

62223

62223

62223

76a

LICENSE AMENDMENTS FOR THE YEAR 1977 WHERE

SESSRRSSSESSSERSES

Date

Published

Plant Name in Fed. Reg.

Point Beach 12/9

Brunswick 12/13

Haddam Neck 12/13

Indian Point 12/13

Oconee 12/13

Beaver Valley 12/13

Crystal River 12/13

San Onofre 12/13

Vermont Yankee 12/13

Surry 12/13

Yankee Rowe 12/13

Calvert Cliffs 12/15

Dresden 12/15

Oconee 12/15

Rancho Seco 12/15

Palisades 12/20

Turkey Point 12/20

Humbolt Bay 12/20

Peach Bottom 12/20

. Three Mile Island 12/20

Prairie Island 12/23

Monticello 12/23

Cook 12/28

Rancho Seco 12/28

Arkansas 12/28

THE NRC MADE A FINDING OF NO SIGNIFICANT

HAZARDS CONSIDERATION

Page in

42 Fed. Reg.