ML19318D106
| ML19318D106 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 06/27/1980 |
| From: | Hossler D, Sheehan D, Sholly S AFFILIATION NOT ASSIGNED, SHEENAN, D.P. |
| To: | |
| Shared Package | |
| ML19318D099 | List: |
| References | |
| 80-1691, NUDOCS 8007070353 | |
| Download: ML19318D106 (12) | |
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IN THE UNITED STATES COURT OF APPEALS FOR TEE DISTRICT OF COL *O3IA 80-1691 STEVEN SHOLLY, DONALD E. HOSSLER,
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f4 Petitioners,
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vs.
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THE UNITED STATES NUCLEAR REGLU TORY )
0 9 g etcfJU COMMISSION, Chair =an Ahearne and the )
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other co==1ssioners as individuals,
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Respondents.
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BRIEF IN SUP? ORT OF MOTION FCR REHEARING AND SUGGESTION FOR HEARING EN 3ANC On June 23 and 24, 1980, Petitioners coved this Court to enjoin i
the Nuclear Regulatory Co==ission (NRC) from denying statutorily-guaranteed procedural rights as a result of two NRC orders entered on June 12, 1980.
l The NRC has sought to avoid a public hearing which would consider the hazards associated with preceditated and unnecessary release of massive radiation into the at=osphere around the Three Mile Island nuclear power station, Unit (TMI-2).
1 The NRC has staged a decision-=aking process through which it purports to have considered the scientific evidence about the hazards from its proposed action, but which instead has been designed to justify i
its decision to permit the economically pressed owners of TX_ to cdopt the cheapest and most injurious =ethod for purging radioactive gases and
'1 800.707o3(3
9' particulates from the IMI reactor containment building.
The Petitioners seek to assert their statutory right to a public hearing concerning the significant hazards associated with the venting and the reasonable alternatives to the environ = ental degradation that action will involve. They have sought in the =atter now before the Court to preserve their statutory right to a hearing by demanding that the NRC comply with the statutory require =ent that a full 30 days notice be given before the NRC effectuates a license a=endment.
The NRC has denied petitioners' right to a 30 days notice on the basis that (1) its license a=endment involves no change hi the " substantive effect on public health and safety".
(NRC's Opposition brief, p.17), and therefore presents no significant hazards consideration, and (2) that " slow" venting does not require a license a=end=ent.
Both the NRC and petitioners agree that in the absence of significant hazards considerations, $189(.a) of the Atomic Energy Act per=its waiver of the 30 day notice requirement. But if, as in the present case, con-sideration of hazards is the very issue about which a hearing is de=anded, and these hazards to be considered are not fanciful or negligible but real and significant - then a hearing is required by law to assure that these considerations be accorded the impartf ul, fact finding process of a fair hearing.
It can no longer be debated whether radiation is a hazard to living beings. It is open to this Court to find as a matter of law that the intentional release of massive radiation into the atmosphere raises for consideration a significant hazard.
The NRC has spent a great deal of ti=e considering these hazards only to ultimately dismiss the= as insignificant. The finding of in-significance is based on reasoning which is not relevant to the issue and
is therefore clearly erroneous. The NRC's finding is based on the dif-farence between release standards and dose standards. The NRC does not deny that any increase of radiation in the atmosphere that could result in increased doses is sign 1ficant.
Rather it maintains that the doses eernitted for an operating reactor under 10 C.F.R. 50, App. I and the doses permitted under its order for the cleanup operation are one and the sa=e.
Accordingly, no significant change is contemplated by the intentional purging of the TMI containment building according to the NRC.
However, this view is designed and intended to show two things j
that are quite different - and irrelevant one to another - to be identictl.
If we, like the NRC, can pretend that a partially melted down reactor is the same as an operating reactor, then NRC's analysis =ight seem pertinent.- But, TMI-Unit 2 is not operating.
It is shut down and is not presently releasing to the atmosphere radioactivity incident to its operations. The status cuo, the present situation, is the standard 1
from which significant change in hazards must be measured. There are techniques available, and that have'been considered, which would remove the radioactive gases and particulates from the reactor containment building without significantly increasing the releases of radioactivity into the atmosphere. These techniques have been studied and recommended by the Union of Concerned Scientists. They are techniques which, with some expense and some delay, would keep radioactive releases into the atmosphere as low as reasonably achievable, as the NRC regulations and l
the TMI-2 license requires.
It is the failure of the NRC to adopt one of these techniques which i
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raises the most significant hazards consideration in this case.
If there l'
were no alternative methods for ridding the containment: building atmosphere l
of radioactive gases and particulates - then there would be the single
consideration of whether or not to vent. But there are several techniques Available from among which the NRC has chosen the technique which releases the greatest possible radiation into the at=osphere.
The cardinal principle of radiation protection - ALARA - states that releases of radioactive caterials in effluents to unrestricted areas should be "as low as is reasonably achievable." Because this standard is incorporated in the license, see 10 C.F.R. 20.1 and THI-2 License DPR-73,
- p. 3(c), the authorization by the NRC of a procedure during the cleanup which does not comply with this standard in effect amends the license.
Therefore, prior to any venting under the NRC's July 12, 1980 orders -
whether " fast" or " slow" - there must be 30 days notice and a hearing if requested.
The NRC has failed to adopt a procedure designed to minimize the release of radioactive ele =ents into the ambient air (i.e. unrestricted areas) because of a claimed urgency to begin the venting operation i=-
mediately. This is the sa e urgency which is now asserted to avoid, after 15 :onths delay with no adverse ccnsequences, an additional delay needed to accord a hearing on the alternatives and their associated hazards.
The principal reason offered by the NRC for this urgency is that a speedy procedure will reduce psychological stress.
The NRC itself has found "we have no special co=petence in this field" (June 12, 1980, ik=orandum and Order, p.9).
The NRC is expressly charged with the protection of the public from radiation, by mini =izing releases of radioactive =aterials in effluents.
Nowhere is it charged with =in-imising the psychological stress arising from the activities of its licensees.
-The whole basis ~ for the NRC's refusal to adopt the procedure which satisfies ALARA, as well as for its argn=ent against pausing now in order to hold a hearing, rests on a consideration which is not only unscientific but which also is outside,the scope of the NRC's authority and expertise.
It was the purpose of Congress in drafting the significant hazards consideration provision into Section 189(a) to assure that the public's procedural rights of notice and hearing would be protected whenever a license amendment raised significant hatards for consideration. Congress did not require that a =e:ber of the public prove conclusively that the 4
action of a U.S. agency would inevitably inflict intentional injury on the public just in order to obtain a hearing. Rather the presence of a,c3 -
sideration of a possible hazard arising fro = the action, if significant, was intended by Congress to trigger these procedural rights.
It is the function of courts to require agencies to co= ply with legislative intent when that intent is clear. NRDC v. Costle, 568 F.2d 1369, 1381.(D.C. Cir.
1977).
It is inconceivable that Congress intended a-premeditated release of radioactivity comparable to a full years' emissions from a nuclear 4
reactor, in a manner inconsistent with ALARA, to.be exempt from notice and hearing require =ents si= ply because after lengthy consideration the NRC staff were able to build a case that the doses ad=inistered would be
' safe'.
The doses which the NRC calls ' safe' are considered highly injurious by many reputable scientists. Moroever, the dose measurement relies on extrapolations and calculations based on assu=ptions that are challenged and which yield only hypothetical results. The measurement of releases is much less speculative. And it is an unchallengeable truth that the greater the radiation released into the environ =ent, the greater the hazard of injurious consequences.
The NRC operates under the broadest delegation of authority and,
'because of the preemption doctrine, with some of the most ab' solute power
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of any govern =ent agency. The require =ent for notice and hearing is one of the very few fetters on its power. This Court's supervisory power is all that stands between the NRC and abuse of its power in a manner gravely injurious to the public. 1The Court's supervisory function "begins at the threshold, with enforcement of the require =ent of reasonable procedure, with fair notice and opportunity to the parties to present their case... Expertise is strengthened in its role as the servant of government when it is denied the opportunity to 'become a =onster which rules with no practical linits on its discretion'", Greater Boston Television Corp. v. FCC, 444 E.2d 841 (D.C. Cir. 1970 cert, den. 403 U.S. 923 (1971) (e:phasis added).
T1.e overweening power to which the NRC has become accustomed is a= ply demonstrated by its insistence in this case that the only ' practical 11mit' on its power - notice and hearing - be avoided.
The NRC has fabricated a need for' urgency that has been uniformly denied even by authorities accepted by the NRC. The Union of Concerned Scientists stated:
none of the concerns expressed by Met Ed and h2C have sufficient merit to justify their pro;.osed schedule.
Further= ore, we have identified no other concerns that would support a conclusion that prompt entry in the short time they propose is needed.
The UCS study group concludes that taking additional time to develop an alternative course of action to the Met Ed/NRC venting proposal is justifiable...Such a course would not pose an undue risk to the health and safety of the public.Decouta=1 nation of krypton 85 from Three Mile Island Nuclear Plant, May 15, 1980, p.18.
Even in the face of such clear authority, the NRC insists upon its idiosyncratic and even Kafkaesque sense of urgency - based on some vaguely intended avoid-ance of psychological stress which indeed could only be aggravated by the NRC's choice of the =ost harardous alternative for re=oving radioactive gas and particulates fro = the containment at=osphere.
The NRC's int'erpretation of the "significant hazards consideration" provision will not bear up under a probing analysis. A Court will give
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i close scrutiny to'the evidence to determine whether the agency decision was rational and b'ased on the consideration of the relevant factors.
Ethyl Corp. v. E.P. A., 541 F.2d 1, 36 (D.C. Cir.
) cert den. 426 U.S.
941 (1976). The inquiry into the facts is to be searching and careful.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct.
814, 28 L.Ed.2d 136 (1971).
The basis upon which the NRC concluded that no significant hazards considera' tion is involved in its license amendment suspending the A1 ARA standards for this cleanup operation requires this close and probing understanding by the Court before the Court may correctly apply the statutory language to this situation. The first issue presented by this case is the meaning of the statutory term. There is an impressive body of law sanctioning free substitution of judicial for administrative judgment when the question involves the meaning of a statutory term.
Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49 (2d Cir.1976)
(Friendly, J.) aff'd. sub. nom. Northeast Marion Terminal Co. v. Caputo, 432 U.S. 249 (1977). Accordingly, this Court is not bound by the standards of review for agency factual findings. The decision whether the statute requires 30 d'ys notice rests solely with this court.
In a similar a
case dealing with waiver of notice, it was said that the exception should be read narrowly...It should not be used...to circumvent the notice and comment zaquirements whenever an agency finds it convenient not'to follow them.
U.S. Steel Corp. v. U.S.E.P.A., 595 F.2d 207, 214 ~ (5th Cir.1979) (5 U.S.C. 5553 rule making).
See also Sharon Steel Coro, v. E.P.A., 597 F.2d 377 (3rd Cir. 1979) at 379-80.
This Court should similarly give the notice waiver exception of $189 a similarly narrow construction. If the intentional and avoidable venting l-of a year's worth of radioactive pollution does not raise a significant i
hazards consideration it is hard to imagine what will.
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The Court's ruling of June 26, 1980 setting this =atter down for hearing in September rather than on a expeditious basis effectively denies the possibility of ever enforcing against the NRC the 30 days not1ce requirement. The NRC routinely sakes "no significant hazards consideration" findings.
If the venting of the reactor contain=ent building at Three Mile Island - upon which the eyes if not.just our nation but the whole world are focused - cannot raise enough concern in a Court of Appeals to obtain a judicial hearing on this nation to enforce the 30 days notice requirement before the issue becomes moot, it is difficult to imagine any case that might disinter this provision.
The second issue raised by petitioners' pleadings herein is whether venting of any kind inconsistently with ALARA requires a license amendment.
A study of respondents' own NUREG 0662 shows the alternatives rejected by the NRC which conformed to ALARA. The NRC clearly states that urgency was th'e reason for rejecting these alternatives.
This Court can easily determine that the NRC has waived the applicability of the ALARA standard to the TMI cleanup for reasons of urgency and this waiver clearly amounts to a license amendment.
In order to grant petitioners' request for injunction pendente lite, the Court need weigh tha four considerations set forth in Virginia Petroleum Jobbers Association v. F.P.C., 104 U.S. App. D.C. 106, 259 F.2d 921 (1958), as described below:
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Petitioners have =ade a ' strong showing that they are likely k-to prevail on the cerits.
6 It is practically certain that once petitioners are permitted to y
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present their proof at a hearing they will show the NRC finding (that the amendment of the ALARA provisions of the TMI-2 license do not present h
significant hazards consideration) to be wholly capricious and arbitrary
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and an abuse of discretion. This certainty is strengthened considerably in this case by the highly professional and responsible admission in the response of the Justice Department filed on behalf of the respondent
- I United States in this matter that $189 requires in this case not just the requested 30 days notice but also a "public hearing before the Commission =ay amend the operating license." This admirably and ef-fectively concedes on behalf of the government the necessity of a notice and hearing before giving effect to the " fast" vent amend =ent, leaving 1
i the question of whether the suspension of ALARA was a license amendment still at issue between petitioners and the NRC.
Since ALARA is part of the license, it is clear that its suspension is a license amendment.
2.
Petitioners have shown that, in the absence of extraordinary relief, they will be irreparably injured.
The NRC devotes a large part of its Opposition to Petitioners' Motion i
attempting to rehash its conclusion that petitioners will suffer no injury from the venting. Petitioners do assert that they will be injured by the radiation hazards of the =aterials that will be released in the atmosphere near their dwelling and work places. However, the proper forum for airing and resolving -the dispute between NRC's staff and petitioners' independent experts is the hearing required by statute - not the papers before this j
Court. The irreparable injury that will be done to petitioners if this Court does not grant the= relief is the denial of~their procedural right to 30 days notice of the hearing so they and others may make a fully con-sidered and unhurried preparation for =aking a request for a hearing.
This procedural right to notice of the full 30 days set out in the statute is important especially in the context of the present case where there are numerous citinens groups nearby IMI who are attempting to coordinate their efforts and at tegy in resisting the NRC's decision to release these radioactive materials nearby their work and homes. The loss of this time to prepare inflicts irreparable harm on their statutory right to due t
process. NRC's unseemly haste to release these radioactive =aterials has forced petitioners to request energency relief with the help of pro bono public interest lawyers, on extremely short notice si= ply to forestall the venting while they prepare to request a hearing and assure that the hearing is held prior to the venting. The venting is prepared to begin on Saturday,' June 28, 1980. When potencial physical injury, real psychological distress and the irreparable loss of the procedural rights of 30 days notice and opportunity for prior hearing vill occur.
Whether or not the radioactive =aterials in the plant will in fact be injurious to petitioners _ and others sinilarly situated, the hazard that they will he exists cs a real consideration in the opinions of reputable, independent and disinterested scientists who are too facilely dismissed
' by an agency known for its pro =otion of, and co==on revolving door with the industry it regulates. The hazard also exists in the minds of the petitioners and the other residents of the TMI vicinity, who are acutely conscious that the hazards have not been considered in an open and fair hearing and that the NRC is making every effort to go forward without i
such a hearing. This can and does leave only grave doubts in the minds of those who ~ desire a hearing in order to fully test in the verifying
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- process of the formal public forum all sides and shades of opinion, not just that of a captive, agency. These doubts have and will continue to cause acute psychological distress until a fair public hearing has cleared the air. Many who are able will atte=pt to leave their ho=es during the venting described as harmless by the NRC.
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. Issuance of an e=ergency stay wculd not substantially harm the
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3 other parties.
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NRC has asserted that failure to move promptly ahead with the venting and cleanup is " uncomfortable in its public health i=plications
. and grating on those responsible for cleaning up the accident." (Opposition, p.5) These assertions leave =uch to speculation and surely contain no cognizable legal injury. " Grating" conjures up investors anxious to sweep TMI under the carpet, but not a legiti= ate injury assertable by the NRC. The only real injury the NRC does atte=pt to advance is that of psychological stress to the public upon whom the NRC has authorized the venting of these radioactive materials.. The NRC supposes that :the public like conde=ned prisoners on death row, si= ply want to get it over with fast rather than take any further steps that might affect their fate.
First, the petitioners in this case are both persons who represent and work with grass roots organizations that oppose the NRC's action and i
their hot-air theories about psychological stress.
Second, the NRC is well known for its poor record in protecting the public health from
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radiation. Its new-found concern for the public's psychological health f
therefore rings perversely cynical. Third, any theories about psychologica.'
stress rest on such thin and untested scientific grounding and are so far h
removed from the areas of NRC co=petence and legitimate concern as to be next to worthless in the context of discussing legal harms.
Only petitioners have standing in this action to assert psychological stress, 3
and their stress would be te=porarily relieved, and not in any way I'
aggravated,by the grant of extraordinary relief pendente lite.
Ej-9.
The public interest lies in recuiring i= mediate co=pliance 5
with Section 189.
It is quite clear that the Peti:1oners and the Justice Department 5
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are taking positions in the public interest in this action, while the NRC E
and its licensee are seeking a cheap solution to their mutual e=barrassment 5
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at T%I without regard to the public interest. The NRC here, as always is adroit at =anufacturing facially plausible public policy rationalizations for actions singularly designed to pro =ote nuclear power at any cost.
By allowing the NRC to violate Section 189 and per=lt their licensee to release -radioactivity under a license anand=ent =ade effective without 30 days notice, the Court has abandoned its all-i=portant supervisory function at the threshold. This case presents a co=pelling context for e=ergency relief. Life is at stake here and =inor procedural technicalities should not be set up as a bar to early review of the NRC's precipitous.
action. The petitioners have been at a disadvantage because of the ti=e constraints NRC's haste has i= posed upon then, and lack of resources.
However, the justice and law of the case should now be sufficiently clear to warrant the Court's i= position of a brief stay pending an early hearing on the =erits of this issue. Otherwise justice will si= ply never be done by.being delayed, and the law vill beco=a =oot.
Respectfully sub=itted, k
Daniel P. Sheehan and Robert Hager
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1324 North Capitol St.
Washington, D.C. 20002 (202) 797-8106 ATTORNEYS FOR PETITIONERS.
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